In this judicial review decision, the High Court considered the extent to which environmental decision makers rely on assurances of compliance by applicants and where errors in an application may be material to a non-notification decision.
Introduction
Palmerston North Airport Limited v Palmerston North City Council [2026] NZHC 224 is a judicial review of a decision to process a resource consent application for a resource consent on a non-notified basis. The High Court was required to consider the extent to which environmental decision makers can accept the assurances of resource consent applicants that a proposal will comply with certain requirements without interrogating the evidence or feasibility of those assurances. The High Court was also called upon to consider whether a series of errors in the information that was before the decision maker were material to the decision to process the application non-notified.
The Airport Development Proposal
The Palmerston North Airport (the Airport) is unlike other airports in residential areas as it operates 24 hours a day. The Airport’s masterplan recorded that businesses are likely to be attracted to the surrounding area to take advantage of proximity to the Airport. In this case, Paul Barris and Brian Green Properties (Palmerston North) Limited (the Developers) intended to do exactly that through a joint venture to build a commercial storage facility. The proposed building would consist of 296 units, with external dimensions of 198 by 27 metres. Importantly, if built as planned the nearest edge of the building would be 150 metres from the south-eastern corner of the runway.
In late 2023, the Developers first applied to the Palmerston North City Council (the Council) for a resource consent on a non-notified basis. However, in September 2024 an Independent Commissioner appointed by the Council (the Commissioner) determined that the application should be the subject of limited notification to enable the Airport to make submissions as an affected person.
Instead of proceeding on a notified basis, the Developers submitted an amended application in October 2024, which sought to address the aspects affecting the Airport. The Commissioner allowed the application to proceed on a non-notified basis, and a subsequent resource consent was issued on 17 February 2025.
Judicial Review of Notification Decision
The Airport sought judicial review of the Commissioner’s decision that the application could proceed on a non-notified basis. The Airport submitted that the information advising the Commissioner’s decisions was materially inaccurate and therefore, it should have been quashed. The Developers acknowledged that there were some errors, but they argued that the errors would not have made any difference to the notification decision and therefore, it should stand.
The Developers engaged an expert aviation industry consultant who prepared four formal reports in support of the application. The expert ensured that the storage facility complied with both the requirements in the District Plan and the Civil Aviation Rules. The particular rules at issue in this case were the obligations to have sufficient Airport Protection Surfaces (APS) to keep the runway clear of obstacles, and a Runway End Protect Area (REPA) to protect people on the ground in the event of an accident.
The initial resource consent required notification because the construction phase was expected to penetrate the APS, creating potential adverse effects for the Airport. In the revised application, however, the developer made a series of minor amendments and assured the Commissioner that it no longer sought consent to breach the APS, either during construction or once the facility was completed. On that basis, the Commissioner accepted that the consent would not authorise any such breach.
In the revised application, the maps showed that part of the facility would fall within the REPA. In order to comply with the REPA, the Developers added a condition to the application in which no more than nine people would be allowed inside the facility at one time through a technology-based solution. The Developers proposed that every business at the facility would be issued with an access card which they must tap to enter and leave the building. Once nine people are inside the building, no-one else will be permitted to enter until someone leaves, ensuring the development always adheres to the nine-person limit under the District Plan.
The revised application addresses the APS issue by proposing dig the stormwater trench in a shape that curved away from the runway, as opposed to running parallel with it. This would provide an extra 90 centimetres of head room for aircrafts to pass over.
It was uncontested that the information provided in the revised application contained several errors. Such errors meant the proposed changes were no longer viable. The issue before the Court was whether those errors were sufficiently material to justify setting aside the Commissioner’s decision not to notify. The first error was that the planning maps failed to show that the facility and its entire carpark would be inside the REPA. The second was that the plans did not reveal that the whole building would permanently protrude above the APS. The final issue was that the Commissioner had been led to believe that a similar development would be acceptable near an airport in the United States, but this proposition was incorrect.
JV argued that the errors were immaterial and that it was up to the JV to find a lawful solution and it did not matter that it had not done so yet. In response, PNAL’s counsel submitted that it was impossible to be confident the Commissioner would have recommended the application proceed on a non-notified basis if she had been aware of the true picture. For example, it was difficult to imagine how the JV proposed to build such a major structure without construction equipment or earthworks ever protruding more than a couple of metres into the air. If such a feat is possible, counsel submitted it was at least incumbent upon the developer to give the Commissioner an idea of how the work might be undertaken without breaching the APS zone.
Outcome
The Court held that these errors were fundamental, given the scale of the facility and its proximity to the runway. These mistakes cannot be characterised as immaterial as they deprived the Commissioner of the necessary evidence to properly assess the development discount the risks it created. Therefore, the Commissioner’s notification decision and subsequent resource consent were set aside.
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