Cook Adam Trustees Ltd v Queenstown Lakes District Council

• Jurisdiction: New Zealand
• Judge: Judge J R Jackson
• Judgment Date: 10 July 2013
• Neutral Citation: [2013] NZEnvC 156
• Court: Environment Court
• Docket Number: (ENV-2011-Chc-006)
• Date: 10 July 2013

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

Decision No. [2013] NZEnvC 156

Court:

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

(ENV-2011-Chc-006)

BEFORE THE ENVIRONMENT COURT

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.

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

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 Management Act 1991 (“the RMA” or “the Act”). That enables the court to declare the existence or extent of any function, power, right, or duty under the Act. The appellants submit that gives the court jurisdiction to hear and determine an appeal which seeks relief expressed in the alternative.

2. The plan changes relating to Arrowtown

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

5 How far the village of Arrowtown should extend into the country to the south and west has been debated for decades. In recent years, three proposed plan changes to the operative district plan of the Queenstown Lakes District Council addressed the issue either generally or specifically. They were:

• • PC30 which introduced some objectives and policies as to urban extensions within the district;

• • PC29 which attempted to settle an urban growth boundary (“UGB”) to the south of Arrowtown;

• • PC39 which was a private plan change promoted by the appellants in those proceedings which sought a special zoning to allow urban densities of subdivision and residential development to the south of Arrowtown.

6 PC30 was resolved by agreement by all parties and added some objectives and policies to Chapter 4 of the district plan. These are relevant and I will refer to them shortly.

7 The relevant appeals on PC29 — about the appropriate urban growth boundary to the south of Arrowtown — were resolved by the Environment Court in Monk v Queenstown Lakes District Council 2

in a decision issued on 4 February 2013. In that decision the court largely confirmed the council's decision as to the location of the UGB except for a small extension along McDonnell Road 3. However, the court added: 4

Finally, we reiterate (with PC39 in mind) that a soft edge to the southern boundary of Arrowtown does not have to be within the urban growth boundary. Indeed, given the rather wide landscape provisions and high densities of the Residential Zones it seems preferable to us that most of the land within Arrow South be outside the urban growth boundary. As hinted above, at least one of the court contemplates that some subdivision and development (but not at residential or urban scales) might be desirable in the remainder of Arrow South, but is unsure as to whether that should be under the current Rural General rules, or whether it would be better as a Rural Living or Rural Residential or other special (Rural) zone or a combination of those.

8 PC39 is of course, the subject of these proceedings. I set out its history in a little more detail next.

2.2 The history of PC39 (Arrowtown South)

9 PC39 was initiated in September 2009 when the appellants requested the council to make a plan change (creating a “special zone” for Arrowtown South) to the operative district plan under clause 21 of the First Schedule to the RMA. The council accepted the request as Plan Change 39 on 24 November 2009.

10 The proposed objectives and policies for Arrowtown South in PC39 were:

Objective 1:

To provide for residential activities in a way and at a rate that ensures a comprehensive and sustainable pattern of development is achieved.

Policies:

• 1.1 To provide for development within the Arrowtown South Special Zone that

  • — creates legible residential neighbourhood areas

  • — integrates with the existing character and sense of place in Arrowtown

  • — creates a network of open spaces that contribute to the amenity and distinctiveness of neighbourhoods

  • — demonstrates high quality urban design

  • — defines and enhances the urban boundary of Arrowtown and the contribution of the Zone to the arrival and departure experience

  • — identifies, protects and, where appropriate, adapts and enhances, any items, structures or features of archaeological, historic or cultural significance

  • — adopts a Structure Plan that identifies a number of different...