16 Feb 2021

Council's petrol station consent breached iwi commitment - High Court

6:02 pm on 16 February 2021

The High Court has found the Whakatāne District Council breached a commitment to engage with iwi before making a decision to grant consent for a petrol station.

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A sign advertises the disputed new petrol station near Whakatāne. Photo: Charlotte Jones/ LDR

The judge ruled that the council set aside its decision to grant a non-notified consent to build a petrol station on the outskirts of Whakatāne.

Last November, Te Rūnanga o Ngāti Awa and Lysaght Developments sought a judicial review of Whakatāne District Council's decision in April to grant consent for the station.

Ngāti Awa argued that access to the proposed station is via a private road, part-owned by Ngāti Awa landowners.

The private roadway provides access to the Lysaght Developments offices on the left and the proposed petrol station on the right, the site of which is currently a paddock.

It is also access for residential homes at the base of the cul-de-sac.

Te Rūnanga o Ngāti Awa (TRONA) challenged the council's decision not to notify as a breach of a legitimate expectation of engagement with the rūnanga prior to any decision being made.

In Justice Whata's judgement, he was satisfied the breach of the commitment to engage with TRONA prior to the final decision and the failure to reasonably assess the potential for conflict between the increased car usage and the local resident pedestrians, including young children who reside at or travel to the whānau blocks.

"TRONA's legitimate expectation and unreasonableness claims are successful in part, but only in one key respect: the consenting officers did not adequately or reasonably assess the potential for conflict between the increased traffic use and local resident pedestrian use of or near to the roadway; including, in particular, use by children who reside immediately adjacent, or in close proximity, to the service station," Justice Whata found.

The court has directed the council to reconsider the decision to proceed on a non-notified basis in light of the judgement.

Te Rūnanga o Ngāti Awa said it was pleased with the High Court judgment and that it was now up to Whakatāne District Council to reconsider its non-notification decision, having regard to the matters raised in the court's decision, including pedestrian safety.

In a statement, the Whakatāne District Council said it would abide by the court's decision and would consider what this meant in terms of notification for the consent.

It said no decisions had been made on this yet.