An Application for an Order Pursuant to Section 86D of The Resource Management Act 1991 by Thames-Coromandel District Council to Have Rules in Their Proposed Thames-Coromandel District Plan Take Legal Effect Upon Notification

 
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[2013] NZEnvC 292

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge Harland, sitting alone pursuant to section 279 of the Act in Chambers at Auckland, on the papers

BETWEEN
In the matter of an application for an order pursuant to section 86D of the Resource Management Act 1991 by Thames-Coromandel District Council to have rules in their proposed Thames-Coromandel District Plan take legal effect upon notification

Application for an order pursuant to s86D Resource Management Act 1993 (“RMA”) (Environment Court may order rule to have legal effect from date other than standard date) to have rules in the proposed Thames-Coromandel District Plan take legal effect on notification — rules had been changed to address flooding which had been a major issue for the Thames-Coromandel District — plan change sought to achieve that by introducing additional land use and subdivision controls for areas identified as being subject to flood hazard — contentious definition of “earthworks” in the plan change had reverted back to previous definition, alleviating opposition — consideration of “legal effect” and “operative” under the RMA — whether there was prejudice to any part if the application was granted — whether the rules should take effect upon notification.

The issue was whether the rules should take effect upon notification.

Held: Sections 86A to 86G RMA (legal effect of rules) were introduced by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (“Amendment Act) and set out when rules came into legal effect. Section 86D RMA provided that a local authority could apply to the Environment Court (“EC”) to have rules in a proposed plan take effect from a date earlier than the date on which a decision on the submissions was publicly notified.

Section 86D RMA did not specify any process to be followed by the EC in determining such an application, nor did it specify the criteria to be applied, or the matters to be taken into account when determining an application. While the EC had a wide discretion to determine whether to grant or refuse an application, it had to be exercised on a principled basis having regard to the purposes under s5 RMA (purpose).

As far as the merits or the substance of the application were concerned, the Court had to determine the basis on which it ought to depart from Parliament's clear intention expressed in s86A RMA (Purpose of sections 86B to 86G) that rules need not be complied with until they had been through the public submission and decision process.

In the EC's determination of an application under s86D the relevant factors to be considered included:

  • a) the nature and effect of the proposed changes by reference to the status quo;

  • b) the basis upon which it could be said that immediate legal effect was necessary to achieve the sustainable management purpose of the RMA;

  • c) the spatial extent of the areas which were to become subject to the proposed changes and/or the approximate number of properties potentially affected;

  • d) consultation (if any) that had been undertaken in relation to the proposed changes; and,

  • e) whether the application should be limited or publicly notified, including consideration of potential prejudice.

While these matters were not principles that applied to the exercise of the discretion, they encompassed the procedural and substantive matters to be considered and provided a useful framework against which the facts of this case could be tested.

It was desirable for the confusion of interpretation that had arisen to be clarified at that time. The changes proposed favoured those who were likely to be affected because they effectively reduced the activity status that would apply to earthworks in Flood Hazard Areas apart from High Flood Areas in circumstances where currently the rules relating to earthworks High Flood Areas were less onerous than the other identified Flood Hazard Areas.

No party was therefore likely to be prejudiced by the rules having immediate effect, particularly given the Association's input and the fact that the definition of “earthworks”, which was likely to be contentious, had reverted to the definition that appeared in the operative District Plan.

The EC's determination that the proposed rule and proposed Table 2 have immediate legal effect did not prevent them being the subject of the submission and appeal process under Schedule 1 RMA (Preparation, change, and review of policy statements and plans) because a rule having “legal effect” was different from a rule becoming “operative.” The definition of “operative” was found in s43AA RMA (interpretation). Accordingly, even though a rule may have “legal effect” it was not “operative” until the end of the submission/appeal process under Schedule 1 RMA.

Application granted.

  • A. The application as amended is granted with the result that the following provisions contained in Section 34 Natural Hazards: Coastal, Erosion, Tsunami, Flooding and associated Flood Hazard Maps in the proposed Thames-Coromandel District Plan will take immediate legal effect upon notification:

    • (a) Proposed Rule 4 — Earthworks

    • (b) Proposed Table 2 Flood Hazard Restricted Discretionary Matters

    • (c) Proposed Flood Hazard Maps which identify Flood Hazard Areas to which Rule 4 and Table 2 apply.

  • B. The definition of “earthworks” in the operative Thames-Coromandel District Plan will apply until the latter of:

    • (a) The closing date for submissions, if there are no submissions on the new definition of “earthworks” contained in the proposed District Plan; or

    • (b) A decision on submissions relating to the definition of “earthworks” in the proposed Plan has been made and publicly notified under clause 10(4) of Schedule 1.

DECISION OF THE ENVIRONMENT COURT
REASONS FOR DECISION
Introduction
1

The Thames-Coromandel District Council (“the Council”) has applied to the Court for an order pursuant to s86D of the Act to have specified rules in Section 34 Natural Hazards: Coastal Erosion, Tsunami, Flooding and associated Flood Hazard Maps in the Thames-Coromandel proposed District Plan (“the proposed Plan”) take immediate legal effect upon notification. The proposed Plan is due to be notified on 13 December 2013, and whilst acknowledging that it is not imperative from a legal perspective that the application be determined prior to this date, there would be considerable costs savings if that could occur.

2

I have decided to allow the application and this decision sets out my reasons for doing so. The decision will firstly outline the legal principles that apply, next set out the relevant details of the application and finally will provide the detailed reasons for the decision I have reached.

The legal principles
3

Sections 86A —86G of the Act were introduced by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 and set out when rules come into legal effect.

4

Section 86B provides that, subject to specified exceptions, rules in a proposed Plan take legal effect and must therefore be complied with once the decision on submissions relating to the rule is made and publicly notified under clause 10(4) of Schedule 1. One of the specified exceptions is where the Environment Court, in accordance with s86D makes an order that the rule is to have legal effect from a different date.

5

The relevant parts of s86B are set out below:

86B When rules in proposed plans and changes have legal effect

(1) …(b) the Environment Court, in accordance with section 86D, orders the rule to have legal effect from a different date (being the date specified in the court order);…

6

Section 86D provides that a local authority can apply to the Environment Court to have rules in a proposed plan take effect from a date earlier than the date upon which a decision on the submissions is publicly notified. This can be the date that a proposed plan is publicly notified, or some later date approved by the Court. Section 86D does not specify any process to be followed by the Court in determining such an application, nor does it specify the criteria to be applied, or the matters to be taken into account when determining an application. There have been, however, a number of Environment Court decisions 1 that have considered what may be relevant and whilst these are not binding they are helpful to review.

7

Whilst the Court has a wide discretion to determine whether to grant or refuse an application, as with any discretion exercised by the Environment Court it should be exercised on a principled basis and having regard at all times to the purpose of the RMA contained in s5. As much was said by Judge Dwyer in re New Plymouth District Council. 2 I agree that this is the correct approach to take.

8

In cases such as this, the Court must consider both the procedural and substantive aspects of the application. In terms of procedure, an application such as this is often effectively an ex parte application and therefore the obvious question is

whether or not there ought to be the opportunity for input into the application by...

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