Understanding the Objective.pdf

Most examples include applications for nudist camps

  • No School
  • AA 1
  • 22

This preview shows page 16 - 17 out of 22 pages.

Most examples include applications for nudist camps and funeral parlours. 61 In the majority of cases (and absent more compelling adverse effects) the court has adopted a robust approach, rejected the opposition and consented to the activities. There are clear policy reasons for this best expressed perhaps by Judge Sheppard in a case concerning an application for a nudist camp: 62 It is our understanding that tolerance of a variety of attitudes is evidence of healthy social conditions in a free and democratic society … [I]f the practice of nudity on the applicant’s own private property in circumstances where it is not displayed to 60 Note that the High Court in Mount Victoria Residents Association Inc v Wellington City Council HC Wellington CIV-2008-485-1820, 5 March 2009 per Dobson J, found that s 15 of the Prostitution Reform Act 2003 meant an application for resource consent for a brothel must be notified to the public to ensure public participation in the decision making process but the Court did not answer how the consent authority was to approach the objective test once it had received any evidence of psychological effects. Note also that the by-law making power under the Prostitution Reform Act 2003 has been the subject of judicial review (see Conley v Hamilton City Council [2007] NZCA 543; Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791 (HC); JB International Ltd v Auckland City Council HC Auckland CIV-2005-404-2214, 14 March 2006). However none of these cases illuminate the issue at hand. 61 See for example McQueen v Waikato District Council PT Auckland A45/94, 20 June 1994; Tainui Investments v Waimea County Council (1981) 8 NZTPA 65 (PT); Cook Islands Community Centre (HB) Inc v Hastings District Council [1994] NZRMA 375 (PT); Gateway Funeral Services v Whakatane District Council EnvC Wellington W005/08, 5 February 2008; Sanddown Developments Ltd v Rodney County Council Town and Country Planning Appeal Board 292/76, 300/76, 5 October 1976. 62 McQueen v Waikato District Council PT Auckland A45/94, 20 June 1994 at 6. Critically, Judge Sheppard alludes to a major difficulty with mere knowledge cases: causation. If mere knowledge of the activity taking place causes certain sensitive souls to become distressed, whilst other more robust individuals remain unmoved, has the activity caused the effect? This constitutes an interesting discussion that is beyond the scope of this brief paper. Note that Judge Sheppard in McQueen also tantalisingly adds: “Nudity as such is not illegal, nor is it generally regarded in this country as immoral … the fact that some residents of the neighbourhood of an activity find that activity embarrassing, objectionable or unacceptable does not necessarily amount to an effect of the activity on the social or cultural conditions which affect the community…” (at 5–6), but he does not suggest what might be the result if the activity was generally regarded as immoral but not criminal. Could the adverse effects flowing from the mere knowledge that party-pills (presently a legal activity) were to be produced next door be enough to prevent a successful resource consent application?
Image of page 16

Subscribe to view the full document.

Image of page 17

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern