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
| Jurisdiction | New Zealand |
| Judge | Environment Judge Harland |
| Judgment Date | 13 December 2013 |
| Neutral Citation | [2013] NZEnvC 292 |
| Court | Environment Court |
| Date | 13 December 2013 |
[2013] NZEnvC 292
Environment Judge Harland, sitting alone pursuant to section 279 of the Act in Chambers at Auckland, on the papers
BEFORE THE ENVIRONMENT COURT
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.
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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:
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(a) Proposed Rule 4 — Earthworks
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(b) Proposed Table 2 Flood Hazard Restricted Discretionary Matters
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(c) Proposed Flood Hazard Maps which identify Flood Hazard Areas to which Rule 4 and Table 2 apply.
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B. The definition of “earthworks” in the operative Thames-Coromandel District Plan will apply until the latter of:
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(a) The closing date for submissions, if there are no submissions on the new definition of “earthworks” contained in the proposed District Plan; or
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(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.
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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.
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.
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.
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.
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);…
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.
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.
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
Mr Berry in his Memorandum accompanying the application outlined what he submitted were a number of principles that emerge from a review of the cases as to the matters in consideration that are likely to be important in the Court's determination of an application under s86D 3. These, he submitted, include:
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(a) the nature and effect of the proposed changes by reference to the status quo;
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(b) the basis upon which it can be said that immediate legal effect is necessary to achieve the sustainable management purpose of the Act;
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(c) the spatial extent of the area/s which are to become subject to the proposed changes and/or the approximate number of properties potentially affected;
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(d) consultation (if any) that has been undertaken in relation to the proposed changes;
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(e) whether the application should be limited or publicly notified, including consideration of potential prejudice.
I agree that these themes emerge from the cases, but fall short of determining that they are principles that apply to the exercise of the discretion. Nonetheless they encompass the procedural and substantive matters that ought to be considered, and provide a useful framework against which the facts of this case can be tested.
The application was filed on 25 November 2013. The proposed rules which are now 4 the subject of the application are:
(a) “Rule 4 — Earthworks” (“Rule 4”) which relates to determination of the activity status of earthworks in flood hazard areas;
(b) “Table 2 — Flood Hazard Restricted Discretionary Matters” (“Table 2”) which sets out the matters over which discretion is reserved in considering applications for earthworks that qualify as a restricted discretionary activity under Rule 4; and
(c) Proposed Flood Hazard Maps which identify Flood Hazard Areas to which Rule 4 and Table 2 apply.
Approximately 3,390 properties are identified by the Flood Hazard Maps as being affected by flood hazard. This includes properties where only part of the land is prone to flooding. The approximate number of properties that are affected by each of the categories of Flood Hazard Area are as follows 5:
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• Low Flood Hazard Area 1972
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• Medium Flood Hazard Area 746
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• High Flood Hazard Area 764
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• Defended Area 508
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• Overland Flow Area A 497
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• Overland Flow Area B 325
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• Overland Flow Area C 29
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• Ponding Area 855
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• Floodway 142
The total number of properties that are identified by the Flood Hazard Maps is lower than the combined total for separate categories of Flood Hazard Area. The reasons for this include that ground topography results in a property being subject to more than one Flood Hazard Area, particularly if it is a larger lot in the industrial area or is a lot that is close to a stream or the Waihou River. The Floodway Area is generally land adjacent to or in drainage channels and streams. 6
The application was served on the Kopu Landowners and Occupiers Association (“the Association”) which incorporates the Kopu Land Drainage Committee because the Council identified it as having a particular interest in the matters raised by the application. Mr Lawrence, a planning and resource management consultant, represents the Association and advised the Court that the Association has some sixty-nine (69) members made up of approximately fifty (50) industrial landowners and industrialists 7 and nineteen (19) farmers and homeowners in the area known as the Kopu Locality lying between Totara in the north and Kirikiri in the south. The Kopu Locality contains the area described in proposed Rule 4.1(a) as “the area bounded by Kirikiri West Road, Ngati Maru Highway, Waipapa Stream and the Waihou River.”
After the application was served on it, the Council and the Association met and...
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