Careful consideration needed when challenging Council notification decisions

Josh McBride, Senior Associate and Julia Harker, Senior Solicitor | Wednesday 29 April 2009

Late last year the High Court struck out applications for judicial review by the Upland Landscape Protection Society Inc of the Project Hayes and Mahinerangi wind farm notification decisions. The court's decision has implications for the notification of resource consent applications and the awarding of security for costs against public interest groups in future.

Upland Landscape is a public interest body whose interests include the preservation of the upper slopes and mountains of New Zealand. It sought judicial review of the decisions by Clutha District Council and Central Otago District Council to publicly notify the Mahinerangi wind farm by TrustPower, and the Project Hayes wind farm by Meridian. The action was brought on the basis that the councils were under a statutory obligation to ensure that they were in possession of adequate information to enable potential submitters to ascertain the effect of the application on them, and to facilitate public participation on an informed basis.

The society argued that the photographic simulations provided by Meridian for the Project Hayes wind farm did not truly represent the effects on the environment, and were inadequate, insufficient and misleading.

The High Court considered whether this alleged failure might amount to a reviewable error. The judge noted that a consent authority must be satisfied that an application contains "...sufficient information to enable recipients of the notice to assess both their own position and the effect on the environment...", and that where a consent authority considers that an application's assessment of environmental effects is inadequate, it must request further information from the applicant. If the authority unreasonably fails to do so, it may be subject to judicial review.

However, the judge went on to state that the adequacy of an assessment of environmental effects is a question of degree, which may be decided reasonably in a number of different ways. On the Project Hayes application the judge considered there was "significant latitude of the reasonableness of the response by the local authority in this situation." The court found that the simulations presented to Central Otago District Council were sophisticated visual depictions which had no readily apparent deficiency.

The judge noted that:

"The fact that reasonable persons may differ on adequacy does not mean... that the local authority has fallen into reviewable error. Moreover, a judgment as to adequacy has to be made in a practical fashion. The local authorities are entitled to rely on what appears to be professionally prepared assessments of environmental effects"

The judge went on to state that, had the proceedings been allowed to continue, he would have awarded security for costs, in the order of $130,000. In the wake of costs being awarded against Save Happy Valley Coalition (opponents of the Solid Energy coal mining activities at Stockton Mine), this indicates a clear willingness on the part of the High Court to award costs against public interest groups where such claims are unmeritorious.

The High Court's willingness to award security for costs in these circumstances can be expected to migrate through to the Environment Court, once the Government's Resource Management (Simplifying and Streamlining) Bill is enacted. The Bill provides for the reinstatement of the Environment Court's power to award security for costs. While public participation in resource management processes will continue to be recognised under the legislation, we expect the Courts to also recognise that applicants are entitled to protection from impecunious objectors, who can otherwise act without restraint in advancing their objections to a developer's proposal.