Cook Adam Trustees Ltd v Queenstown Lakes District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeJudge J R Jackson
Judgment Date10 Jul 2013
Neutral Citation[2013] NZEnvC 156
Docket Number(ENV-2011-Chc-006)

Decision No. [2013] NZEnvC 156

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J R Jackson (sitting alone under section 309 of the Act)

(ENV-2011-Chc-006)

In the Matter of the Resource Management Act 1991

and

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

Between
Cook Adam Trustees Limited & Rmonk
Appellants
and
Queenstown Lakes District Council
Respondent
Written submissions received from:

I M Gordon for the appellants

J E Macdonald for the Queenstown Lakes District Council

John M Hanan for himself (section 274 party)

E Hanan for herself (section 274 party)

D Hanan for himself (section 274 party)

S H N Stamers-Smith for Arrowtown Village Association (section 274 party)

Judith M Hanan for herself

Application for a declaration under s310 Resource Management Act 1991 (“RMA”) (scope and effect of declaration) that a reduced version of a proposed private plan change (“PC39”) was within the jurisdiction of the Environment Court (“EC”) — appellants proposed private plan change to allow subdivision of 226 allotments in Arrowtown South — was declined by council — on appeal to EC, appellants sought alternative relief in the form of a reduced version allowing 19 urban allotments and 23 rural residential allotments — s274 RMA (representation at proceedings) parties opposed on ground that the alternative relief was not within the jurisdiction of the EC — whether the appellants were barred (promissory estoppel) by an earlier agreement that they withdraw PC39 if the Urban Growth Boundary in another proposed plan change included Arrowtown South — whether the reduced PC39 had been reasonably and fairly raised in submissions and the EC had jurisdiction to consider it.

Held: The EC had jurisdiction to consider on an appeal, relief that fairly and reasonably fell in the union of three sets of possibilities:

a) the plan change; and

b) the operative district plan … to the extent it dealt with the resources, the subject of, and the issues raised in respect of them, by the plan change; and

c) submissions on the plan change.

On that approach the relief sought by an amended PC39 would need to be generally somewhere between the existing Rural General Zoning of Arrowtown South and the Special Zone sought by PC39 as notified.

The EC had very limited jurisdiction in respect to questions of equitable estoppel. Although agreements between parties or undertakings to the Court about procedures were not irrelevant, to be enforced any agreement or undertaking had to be direct and unambiguous. If an outcome was not fully and unambiguously contemplated by an agreement or undertaking then the latter could not be enforced.

In making the agreement the appellants and the Council were contemplating an either/or scenario: either Arrowtown South would be included in the UGB or it would not. Clearly they had not envisaged that only part might be included (which was what happened). In those circumstances the appellants were not bound to withdraw PC39 particularly since it was not tied in with the UGB concept introduced by PC29 in the first place.

The appellants' new proposal was not a completely different concept in that it proposed comprehensive development with some residential units. The density and location of development was designed (it appeared) to fall short of being residential so that Arrowtown South would not be urbanised. However, there was the spectre of further future subdivision. That suggested volunteering of no-subdivision covenants might be an important issue if the EC had jurisdiction to consider the amended PC39.

The issue as to whether a different structure plan as contemplated by the amended PC39 was within the scope of the appeal was not simply a matter of scale. The character and intensity of the effects of the amended structure plan were also relevant. If the effects were not fairly and reasonably of the same general character and of the same or less intensity than the parameters set by the proposed change (or the status quo), then the proposal might be beyond jurisdiction.

The amended PC39 must be “fairly and reasonably” within what was contemplated by the notified PC39. Substantially fewer houses than stated in notified PC39 was still fairly and reasonably within scope. The proposed effects of the new structure plan were still the effects of new dwellings. They were also of less urban intensity than proposed by PC39, but less rural than the existing Rural-General Zoning. If the appellants had proposed to pursue a business zoning then that would not be within the boundaries of PC39.

Potential submitters at the time of notification were not now prejudiced by what was proposed. There was always room for compromise within the framework of the outer limits set by the existing plan on one hand and the proposed plan change on the other and they should have contemplated that when reading the Council's summary of submissions.

What was now sought was generally within jurisdiction. PC39 originally requested the “rezoning” of the Arrowtown South land “for urban use” as a special zone. What was now sought by amended PC39 was some kind of “rural residential” or “rural lifestyle” use. That was somewhere between the existing rural general zoning and an urban zoning such as the “Residential” zones in the district plan. Such a substantive outcome was within the range of potential outcomes that could fairly and reasonably be given after a hearing of the appeal on PC39.

Under s313 RMA (decision on application) the EC had jurisdiction to hear and determine the Notice of Appeal on PC39.

DECISION AS TO JURISDICTION

A: Under section 313 of the Resource Management Act 1991 the Environment Court declares that the court has jurisdiction to hear and determine the appellants' Notice of Appeal on Plan Change 39, and in particular, that the relief now sought by the appellants as set out in the affidavits of B Espie and J B Edmonds dated 10 May 2013 is fairly and reasonably within the triangle of possible outcomes constituted by the notified Plan Change 39, the submissions on the plan change, and the operative district plan (to the extent it deals with the same resources and issues), and thus potentially open to the court to insert in the Queenstown Lakes District Plan with further amendments (if any) that may also held to be within jurisdiction.

B: All issues about the Environment Court's jurisdiction under section 293 of the Act are adjourned.

C: Any application that I should recuse myself must be by notice of motion, stating grounds, lodged and served by 9 August 2013.

D: Under section 279(1)(a) and (d) I direct that the parties must follow this timetable for the lodging and service of evidence:

• 30 August 2013:

all evidence-in-chief from the appellants must be served on the other parties;

• 20 September 2013:

all evidence-in-chief from the Queenstown Lakes District Council must be served;

• 11 October 2013:

all evidence-in-chief from section 274 parties must be served;

• 25 October 2013:

any rebuttal evidence from the appellants must be served;

• 1 November 2013:

the Queenstown Lakes District Council shall lodge four copies of all evidence with the Registrar of the Environment Court in Christchurch.

E: At the same time as they comply with the directions in Order D, each party must serve four (4) extra copies of its evidence with the Queenstown Lakes District Council (for lodging with the Registrar in due course).

F: Costs are reserved.

REASONS

Table of Contents

Para

1. Introduction

[1]

1.1 Arrowtown South

[1]

1.2 The application for a declaration

[3]

2. The plan changes relating to Arrowtown

[5]

2.1. The three recent plan changes (PC29, PC30, PC39)

[5]

2.2. The history of PC39 (Arrowtown South)

[9]

2.3. Proposed amendments to PC39

[22]

2.4. The scheme of the district plan

[26]

3. Is an amended PC39 within jurisdiction?

[28]

3.1. The legal test

[28]

3.2. The arguments about jurisdiction

[32]

3.3. Overall assessment of fairness and reasonableness

[45]

4. Conclusions

[52]

4.1. Result

[52]

4.2. Recusal?

[54]

1. Introduction
1.1 Arrowtown South
1

Arrowtown South is the subject of a private plan change — numbered as Plan Change 39 by the Queenstown Lakes District Council and here shortened to “PC39”. The issue for preliminary determination is “Are the amendments sought to be made by the appellants since they lodged their appeal within the jurisdiction of the Environment Court?”

2

The appellants, Cook Adam Trustees Ltd and R Monk, own land near Arrowtown between McDonnell Road to the west and Centennial Avenue to the east. Their appeal concerns an area of approximately 31 hectares of land (including their land) which is bounded by the Arrowtown urban area to the north, by the Arrowtown Golf Course to the south, McDonnell Road to the west and Centennial Avenue to the east. This area, which contains nine land titles in different ownerships, is called “Arrowtown South” by the appellants 1, so I will adopt that usage.

1.2 The application for a declaration
3

The appellants have lodged affidavits by Mr B Espie, a landscape architect, and by Mr J B Edmonds, a planner, describing a reduced version of PC39 which the appellants say they wish to pursue in their appeal. In reliance on those affidavits, the appellants have applied for a declaration that the more limited relief now sought by them is still within the scope of PC39 and of the appeal and thus within the jurisdiction of the court. The declaration is opposed by various members of the Hanan family (identified below) and the Arrowtown Village Association (“the AVA”), all of whom are section 274 parties in the substantive proceeding except Ms Judith M Hanan. The Queenstown Lakes District Council takes a more ambivalent approach.

4

The appellants rely on section 310 of the Resource...

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