Christchurch Ltd Golf Resort v Canterbury Regional Council

• Jurisdiction: New Zealand
• Judge: J R Jackson,K D F Fletcher
• Judgment Date: 29 July 2010
• Neutral Citation: [2010] NZEnvC 259
• Court: Environment Court
• Date: 29 July 2010

In the Matter of the Resource Management Act 1991

and

In the Matter of appeals under Clause 14 of the First Schedule to the Act

BETWEEN

Christchurch Limited (ENV-2009-CHC-240)

and

Canterbury Regional Councilc (ENV-2010-CHC-141)

Ouruhia Styx Action Group (ENV-201 0-CHC-142)

Appellants

And

Christchurch City Council

Respondent

Christchurch Limited Golf Resort

Applicant

[2010] NZEnvC 259

Court:

Environment Judge J R Jackson (presiding), and Deputy Environment Commissioner K D F Fletcher

BEFORE THE ENVIRONMENT COURT

Plan change appeals — application for joinder — whether appeals on same subject matter should be heard together — order in which should be heard — hierarchy of instruments under RMA — whether it was impractical, unnecessary, undesirable or otherwise inappropriate for the two sets of appeals to be heard together — precedent effect.

Appearances:

J G Hardie for Christchurch Golf Resort Limited

M Perpick for Canterbury Regional Council

J Winchester for Christchurch City Council

C Fowler for Ouruhia Styx Action Group

PROCEDURAL DECISION

• A: Under section 270 of the Resource Management Act 1991 the Environment Court orders that the two sets of proceedings:

  • (1) ENV-2009-CHC-240 Christchurch Golf Resort Limited v Canterbury Regional Council;

  • (2) ENV-2010-CHC-141) Canterbury Regional Council v Christchurch

  • ENV-2010-CHC-142) City Council;

  • shall not be heard together.

• B: Costs are reserved.

REASONS

Table of contents	Para
1. Introduction	[1]
1.1 The issue	[1]
1.2 Background	[2]
Plan Change 45	[2]
Change 1 to the Regional Policy Statement	[4]
The application for joinder	[6]
1.3 The chronology and scale of the changes	[9]
1.4 Directly applicable provisions of the RMA (sections 269, 270 and 272)	[16]
Section 270	[17]
Section 272	[18]
2. What are the relevant discretionary factors?	[21]
2.1 The arguments of counsel	[21]
2.2 The authorities on order of hearing	[30]
The cases on priority of resource consent applications	[30]
Priority to resource consent or plan change appeal?	[32]
2.3 What is relevant to timing of hearing RPS and plan appeals?	[36]
The context of sections 269, 270 and 272 of the RMA	[36]
The purpose of the Act	[38]
The scheme of the RMA for policy statements and plans	[39]
Regional policy statement	[41]
District plans	[45]
Efficiency	[47]
Precedents	[48]
2.4 Listing the relevant principles and factors	[50]
3. Consideration	[51]
3.1 Are the proceedings about the same subject-matter?	[51]
3.3 Is it impractical, unnecessary, undesirable or inappropriate for them to be heard together?	[54]
Impractical?	[54]
Unnecessary?	[58]
Undesirable or inappropriate?	[59]
The hierarchy of instruments in the RMA	[63]
The scale of the site-specific proposal and its impact on Change 1	[65]
The efficient use of resources of the parties and of court time	[69]
The potential prejudice and/or costs arising from any delay	[69]
4. Weighing the relevant factors	[81]
5. Outcome	[86]

1. Introduction

1.1 The issue

1 The issue for this procedural decision is whether the three proceedings identified in the intitulement should be heard together.

1.2 Background

Plan Change 45

2 Christchurch Golf Resort Limited (“CGRL”) has an interest in approximately 160 hectares of land at Styx in the northern part of Christchurch city. The Styx land is zoned rural. CGRL's land and adjacent land along the Styx River together totalling 175 hectares we will call “the Styx land”. CGRL wishes to build a golf course, a golf resort, associated retail facilities, 86 resort apartments and 150 houses on the property. It promoted a plan change, seeking to zone the Styx land for a golf resort, to the Christchurch City Council (“the CCC”).

3 On 4 July 2009 Plan Change 45 to the Christchurch City Plan was notified. This plan change proposes to rezone 132 hectares of the Styx land from Rural 3 to Open Space 3D (Christchurch Golf Resort) and a further 43 hectares of the land adjoining the Styx River to Conservation 3.

Change 1 to the Regional Policy Statement

4 Two years earlier, on 28 July 2007, the Canterbury Regional Council (“Ecan” – its operating name) notified proposed Change 1 to the Canterbury Regional Policy Statement. In general, this seeks to set an outer limit to the growth of ‘Greater Christchurch’ over the period to 2041, by defining both a geographic boundary to urbanisation and urban activities and giving a maximum number of new dwellings within that boundary. The Styx land falls outside the urban limits proposed in Change 1.

5 Acting under its powers1 to change its regional policy statement, Ecan has promulgated Change 1. The change proposes to introduce a new Chapter 12A to the operative regional policy statement. Chapter 12A aims to 2:

… provide… direction for the growth, development and enhancement of the urban and rural areas of the Greater Christchurch sub-region for the period to 2041.

The chapter identifies eight issues for greater Christchurch. These are not easy to understand because many of them look like assertions rather than questions 3. The chapter then states eight objectives (although there is not a one to one correspondence between the eight issues and the eight objectives) and the policies it proposes should implement them.

The application for joinder

6 Decisions have now been issued by the respective respondents, and appeals to the Environment Court have been lodged and served. Both Ecan and the Ouruhia Styx Action Group Incorporated (“the Ouruhia Society”) have appealed against Plan Change 45 and are section 274 parties to CGRL's appeal against Change 1. The most relevant appeals are:

We record that in addition to the CGRL appeal on Change 1, there are another 49 appeals on that change and the variations to it. The hearings on Change 1 are likely to be very lengthy.

On Change 1:	ENV-2009-CHC-240	Christchurch Golf Resort Limited v Ecan;
On PC 45:)	ENV-2010-CHC-141	Ecan v CCC; and	) ENV-2010-CHC-142	Ouruhia Styx Action Group v CCC.

7 Ecan and the CCC (collectively “the councils”) have applied 4 under section 278(1) of the Resource Management Act (“the RMA” or “the Act”) and rule 3.72.1 of the District Courts Rules 2009 to have the two sets of appeals heard together and following the hearing and determination of the ‘higher order’ matters 5 on the appeals

• How to accommodate expected population and household growth and economic activity in

• Greater Christchurch in the foreseeable future in a sustainable manner.

about Change 1. The application was accompanied by the affidavit of Mr L R McCallum 6 which included a useful list of other plan changes to territorial plans within the area covered by Change 1, and where in the statutory process those have reached

8 The application for joinder is supported by the Ouruhia Society, which lodged affidavits by several of its members; it is opposed by CGRL which lodged an affidavit by Mr M T Ansett 7.

1.3 The chronology and scale of the proposed changes

9 The past chronology of the notification of the changes and the lodgement of the relevant appeals is set out below:

Date	PC 45	Change 1 to RPS
28 July 2007		Change 1 publicly notified
4 July 2009	PC 45 publicly notified
19 December 2009		Decisions on Change 1
22 December 2009		Change 1 appeal lodged by CGRL
15 March 2010		Section 274 notice and application for waiver of time filed by City Council
25 March 2010	Decisions on PC 45
26 March 2010		Section 274 notice and application for waiver of time filed by Ouruhia Society
14 May 2010	PC 45 appeals lodged by Regional Council and Ouruhia Society

10 It will be seen that Change 1 was notified nearly two years before PC 45.

11 The current likely future chronology of Change 1 is set out in a timetable set by the court for the service of evidence. That reads 8:

That may seem a rather tortoise-like timetable, but it was fairly derived from the time that the councils needed to lodge and serve their initial evidence-in-chief.

Deadline Event

• 25.6.10 each party seeking:

  • (a) further households; or

  • (b) key activity centre status, not already shown on Map 1 to Chapter 12A to the RPS; or

  • (c) any other allocation of units (e.g. HUEs) rationed in Chapter 12A to the RPS; or

  • (d) an area of business land;

  • (e) an area to be described as a “Special Treatment Area”– must lodge and serve a memorandum specifying:

  • (f) the maximum number of households sought and their location; and/or

  • (g) the location of its proposed key activity centre; and/or

  • (h) the maximum number of other units or the maximum area sought;

• 27.8.10 evidence-in-chief for the CRC, the local authorities, CIAL (if any) and NZTA — and for section 274 parties supporting the CRC and the local authorities — must be lodged and served;

• 19.11.10 evidence-in-chief for appellants must be lodged and served;

• 10.12.10 evidence-in-chief for section 274 parties supporting appellants must be lodged and served;

• 18.2.11 final rebuttal evidence must be lodged and served 9.

12 Those timetable directions are running in parallel with the court's attempts to define the issues between the parties. It might look back to front that the issues have not been defined first, but the court is hopeful that the evidence for the councils may make clear what is at present rather obscure in the text of Change 1. For example, the ‘Issues’ are not questions about how to manage adverse effects but mainly a set of broad assertions; and, as we have stated, the Objectives do not all obviously relate to the Issues.

13 There is at present no timetable for evidence running in respect of the two PC 45 appeals. That awaits this...