Christchurch Ltd Golf Resort v Canterbury Regional Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJ R Jackson,K D F Fletcher
Judgment Date29 Jul 2010
Neutral Citation[2010] NZEnvC 259

[2010] NZEnvC 259

BEFORE THE ENVIRONMENT COURT

Court:

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

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
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

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.

Held: The relevant provisions of the RMA were s269 (Court may regulate its own procedure), s270 (Court to hear together two or more proceedings relating to the same subject-matter unless impractical, unnecessary, or undesirable) and s272 (Court to hear and determine proceedings as soon as practicable after the date of lodging unless, in the circumstances of a particular case, it is not considered appropriate to do so). The discretion in s269 was subject to the directions in ss270 and 272. Sections 270 and 272 may be in tension if hearing two or more proceedings on the same subject matter is not compatible with the obligation to hear the proceeding as soon as practicable.

The context of ss269, 270 and 272 RMA must be interpreted and applied in the light of the purpose and organisation of the Act. The two core themes identified by the Court of Appeal in Central Plains Water Trust v Synlait Limited as running through the RMA were efficiency and the dominant theme of sustainable management.

Section 270 referred to proceedings relating to the same “subject-matter”, rather than the same natural and physical resources. That contained a wider set of issues than proceedings about the same resources. In respect of s272, while the presumption was that appeals should be heard in the order in which they were lodged, this was subject to the discretion to do otherwise if it was considered appropriate. If the first lodged matter was large and complicated and likely to take many months and the second was smaller, simpler and shorter, “as soon as practicable” often took priority over order of lodgement.

The applicable principles under s269 for deciding how to case manage these proceedings were:

  • 1. if the proceedings related sufficiently to the same subject-matter then they should be heard together (s270(1);

  • 2. there was a strong presumption that the first proceeding lodged or notified should be heard first (s272);

  • 3. this was subject to the pragmatic principle that it may be impractical, unnecessary or undesirable to hear the proceedings together (s270(1) provisos) and principle 2 did not apply if it was inappropriate (s272);

  • 4. principles 1 to 3 were subject to Part 2 RMA.

When considering principles (3) and (4) the relevant factors included:

  • 1. the extent to which the proceedings were about the same subject-matter;

  • 2. the timing of public notification and lodgement of appeals regarding the separate proceedings;

  • 3. the statutory context — the top-down approach of the RMA and the hierarchy of different statutory instruments;

  • 4. the scale of the site-specific proposal and the impact of that proposal on the higher order planning instrument;

  • 5. the efficient use of the resources of the parties and of court time;

  • 6. the extent of delay caused by adjourning the site-specific proceeding and potential prejudice and/or costs arising from such delay;

  • 7. whether the decision will open floodgates by creating an undesirable precedent.

Because the procedural steps in Change 1 came before the equivalent steps in Plan Change 45, the presumption in s272 favoured hearing the Change 1 proceeding first. This reinforced the s270 presumption that the proceedings be heard together because they were related.

Ordinarily the hierarchy of the documents would favour joinder, to ensure that Plan Change 45 was heard at the appropriate lower stage of the Change 1 appeals. This factor was not decisive, however, and issues of scale and timing were still important, including the possibility of a 16 month delay while higher order issues were resolved in Stage 1.

In terms of scale, there was a disparity in size between the two proceedings and Change 1 was very large. Following s270 to hear the matters together would be in conflict with the s272 obligation to hear and determine matters as soon as practicable.

The efficient use of all parties' resources would normally favour joinder. Hearing matters dealing with similar issues and with similar evidence together was usually the more efficient use of the court's resources. However, large plan or policy statement appeals (like Change 1) could become so large that it was much more difficult to manage the proceeding and it may have to be broken down so that different issues are tried at different stages.

Weighing all the relevant factors, including potential prejudice to the parties and/or costs arising from delay, the scale and timing issues together favoured separate hearings. It would make a travesty of the RMA if a case that potentially provided for 0.39% of the proposed increase in the housing of Christchurch was held up for more than 16 months. The court should strive for procedural efficiency in RMA procedures, rather than permitting them to be swamped by aspiring to substantive perfection ( Central Plains Water Trust v Synlait Limited).

In respect of the precedent issue, applications to hear future appeals before Change 1 could be considered on a case-by-case basis having regard to all the factors including particularly the two dimensions of time and scale. Questions of scale and impact on the potential effectiveness of Change 1 could also be determined on a case by case basis.

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...

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