Air New Zealand v Waipa District Council

 
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Decision [2010] NZEnvC 366

BEFORE THE ENVIRONMENT COURT

Environment Judge R G Whiting sitting alone under section 279 of the Act IN CHAMBERS at Auckland

In the Matter of the Resource Management Act 1991

In the Matter of an appeal under clause 14 of the First Schedule to the Act

Between
Air New Zealand Limited ENV-2008-AKL-000339
Appellant
and
Waipa District Council
Respondent

Direction by the Environment Court to the parties to file submissions for the purpose of determining whether an agreement reached as a result of an appeal from a decision on a private plan change, which would resolve the appeal in its entirety, was with or without jurisdiction. This was on the basis that the relief sought in the proposed consent order did not satisfy the requirements of clause 14(2) of Schedule 4 Resource Management Act 1991 (“the Act”) (Appeals to Environment Court only if provision referred to) — whether there was the potential that persons affected by the relief being sought would not have contemplated such relief when reading the appellant's submissions and thus might be prejudiced.

Direction by the Environment Court to the parties to file submissions for the purpose of determining whether an agreement reached as a result of an appeal from a decision on a private plan change, which would resolve the appeal in its entirety, was with or without jurisdiction. This was on the basis that the relief sought in the proposed consent order did not satisfy the requirements of clause 14(2) of Schedule 4 Resource Management Act 1991 (“the Act”) (Appeals to Environment Court only if provision referred to) — whether there was the potential that persons affected by the relief being sought would not have contemplated such relief when reading the appellant's submissions and thus might be prejudiced.

Held: The test to be applied was whether the amendment made went beyond what was reasonably and fairly raised in submissions. The assessment of whether any amendment was reasonably and fairly raised in the course of submissions, should be approached in a realistic workable fashion rather than from the perspective of legal nicety. This was because persons making were unlikely to fill in forms exactly as required by the First Schedule to the Act and the Regulations. The Act encouraged public participation in the resource management process and the process should not be bound by formality. In determining the scope of a plan appeal, the Court would also take into consideration whether any person would be disadvantaged by the amendments.

The relief sought in Air NZ's notice of appeal specifically raised the issue of exemptions. On this basis, it was clear that the relief sought in the proposed consent order came within the scope of the relief sought in Air NZ's notice of appeal.

Clause 14(1)(c) of the First Schedule to the Act allowed a person to bring an appeal in respect of a matter excluded from a plan. The issue was not whether the matter was raised in the proposed plan change, but whether it was raised in the relevant submissions. The test to be applied was whether the amendment was reasonably and fairly raised in the course of submissions and this was a matter of degree.

It was not farfetched to envisage the issue of exemptions to undertake engine testing as being within the scope of the further submissions. Restrictions on noise and engine testing could reasonably and fairly encompass exemptions and it was possible to make a credible link between the two. On these grounds the issue of scope was satisfied.

All submitters•were served with a copy of Air NZ's appeal, and therefore placed on notice that the issue of exemptions to engine testing had been raised. On these grounds, allowing the amendments to the plan, as sought by the parties, would not prejudice any person.

Accordingly, the relief sought in the proposed consent order was within jurisdiction. It came within the scope of the relief sought in the appeal and reasonably and fairly within the scope of Air NZ's further submissions.

The relief sought in the consent order was granted.

Held: The test to be applied was whether the amendment made went beyond what was reasonably and fairly raised in submissions. The assessment of whether any amendment was reasonably and fairly raised in the course of submissions, should be approached in a realistic workable fashion rather than from the perspective of legal nicety. This was because persons making were unlikely to fill in forms exactly as required by the First Schedule to the Act and the Regulations. The Act encouraged public participation in the resource management process and the process should not be bound by formality. In determining the scope of a plan appeal, the Court would also take into consideration whether any person would be disadvantaged by the amendments.

The relief sought in Air NZ's notice of appeal specifically raised the issue of exemptions. On this basis, it was clear that the relief sought in the proposed consent order came within the scope of the relief sought in Air NZ's notice of appeal.

Clause 14(1)(c) of the First Schedule to the Act allowed a person to bring an appeal in respect of a matter excluded from a plan. The issue was not whether the matter was raised in the proposed plan change, but whether it was raised in the relevant submissions. The test to be applied was whether the amendment was reasonably and fairly raised in the course of submissions and this was a matter of degree.

It was not farfetched to envisage the issue of exemptions to undertake engine testing as being within the scope of the further submissions. Restrictions on noise and engine testing could reasonably and fairly encompass exemptions and it was possible to make a credible link between the two. On these grounds the issue of scope was satisfied.

All submitters•were served with a copy of Air NZ's appeal, and therefore placed on notice that the issue of exemptions to engine testing had been raised. On these grounds, allowing the amendments to the plan, as sought by the parties, would not prejudice any person.

Accordingly, the relief sought in the proposed consent order was within jurisdiction. It came within the scope of the relief sought in the appeal and reasonably and fairly within the scope of Air NZ's further submissions.

The relief sought in the consent order was granted.

DECISION ON JURISDICTION

A. The relief sought in the proposed consent order is within jurisdiction.

B. The relief sought in the consent order is granted as set out in attachment “A”.

Introduction
1

On 28 October 2008 the Appellant filed an appeal against the Council's decision on a private plan change (Plan Change 57) to the Waipa District Plan to rezone 117 hectares of land currently zoned Rural and Airport Industrial to Airport Business Zone.

2

The parties have now filed consent documentation setting out a proposed settlement that will resolve this appeal in its entirety.

3

In a minute dated 18 August 2010, the Court directed the parties to file submissions setting out whether the agreement reached is with or without jurisdiction.

4

The Appellant has filed submissions saying that the agreement reached is within the Court's jurisdiction. The Council has filed submissions saying that while it supports the settlement agreement reached between the parties, it considers that the. agreement reached is without jurisdiction.

Submissions
5

The Council submitted that the appellant's original submission related to the entire Plan Change. There was no express mention in the submission of either noise from engine testing generally or Rule 7A.4.11(b). Accordingly, it is the Council's contention that the relief sought in the proposed consent order does not satisfy the requirements of clause 14(2) of the Act. Nor does it consider that the relief now sought falls fairly and reasonably within the scope of the Plan Change as notified.

6

It submitted that there is potential that persons affected by the relief now being sought would not have contemplated such relief when reading the appellant's submissions and might be prejudiced.

7

The appellant submits that its appeal on Rule 7A.4.11 is fairly and reasonably within the general scope of its submissions and satisfies the requirements of clause 14(2) because of its further submission.

8

It submitted that its original submission was made in relation to the entire plan change, and particularly in relation to sustaining the operational requirements of the Airport, which encompassed Rule 7A.4.11.

9

Its further submissions opposed submitters who wished to add further operational barriers on the Airport, especially where these barriers involved tightened noise and engine testing controls such as the Keill / Ingram submissions.

10

Furthermore, the appellant considered that there will be no prejudice if the relief is granted, for the following reasons:

  • i. Engine testing at the Airport is not a new activity. The airport features a special aviation facility and a daytime testing (scheduled) regime. Affected persons in the vicinity are aware that engine testing occurs and can reasonably anticipate that airline operators are interested in engine testing rules,

  • ii. The appellant clearly stated its concern with the engine testing rule (7A.4.11 — Activities in Special Noise Area) and suggested relief in its notice of appeal, and served this notice on all original and further submitters on the plan change. This relief specifically raised the concept of exemptions. Interested persons had the...

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