Environlviental Defence Society v Kaipara District Council

 
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[2010] NZEnvC 284

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge L J Newhook sitting alone pursuant to S279 ofthe Act (Decision made on the papers)

In The Matier of an application fora declaration under S311 of the Resource Management Act 1991

Between
Environlviental Defence Society

(ENV-2009-AKL-000512)

Applicant
and
Kaipara District Council
Respondent
Counsel:

G Milne-White for Applicant

A Green and MDickey for Respondent

Application for declarations that a Proposed District Plan did not give effect to certain environmental policy statements. The applicant alleged the respondent Council had promulgated a Proposed District Plan that deliberately omitted a chapter providing for the recognition and protection of outstanding natural features/landscapes from inappropriate subdivision, use and development which breached s6(b) Resource Management Act 1991 (Matters of national importance) — whether the Council's District Plan complied with its duties under the Resource Management Act 1991.

At issue was: whether or not the Council was undertaking some sort of staged or rolling District Plan review or not, and if it was, whether that was lawful; whether the PDP complied with the Council's duties under the RMA; and whether there was any significance in the Council passing a resolution that a variation on the subject of outstanding landscapes would be done.

Held: The new s79(1) RMA (review of policy statements and plans) applied since the promulgation of the PDP occurred after 1 October 2009. A staged or rolling review of district plans now seemed open to councils as a matter of law, given that the obligation to conduct periodic review now related to individual provisions rather than an entire plan.

The creation of a deliberate hiatus from the identification of/consultation on Outstanding Landscapes took the concept of integrated management beyond breaking point. Leaving aside the later resolution, the Council embarked on a course of action that failed to include provisions that recognised and provided for the protection of outstanding natural features and landscapes from inappropriate subdivision, use and development contrary to section 6(b) RMA.

It was also possible there were breaches by the Council of s31 (functions of territorial authorities under this Act) and s32 (consideration of alternatives, benefits, and costs) RMA — the PDP should not undermine the essential function of the territorial authority which was to establish objectives, policies and methods to achieve integrated management of the effects of land uses and associated natural and physical resources.

With regard to the NZCPS and NRPS, s75(3) RMA (contents of district plans) provided that a district plan must give effect to any national, NZ and regional policy statement. The evidence was that the Council had yet to meet its obligations under the RMA, but there was no basis under the RMA to argue that the EDS should do the work for the Council and create a landscape charter. There was a right of participation but no obligation on anyone other than the Council. The Council's Variation Resolution only foreshadowed that something would be done in a few weeks time, with no detail offered as to what that would be, but it was possible that the Variation would show the Council was meeting its obligations and carrying out its functions. Proceedings were adjourned to await the Variation.

  • A. Application adjourned for further consideration.

  • B. Costs Reserved.

JUDGMENT OF THE ENVIRONMENT COURT ON APPLICATION FOR DECLARATION
Reasons.
1

On 23 December 2009 the applicant lodged proceedings seeking declarations in circumstances where the respondent had promulgated a Proposed District Plan (“PDP”), allegedly on the basis that it had deliberately omitted a chapter providing for the recognition and protection of outstanding natural features and landscapes from inappropriate subdivision, use and development. That is, that it was in breach of section 6(b) of the Act.

2

Declarations were also sought as follows: that the PDP does not give effect to the New Zealand Coastal Policy Statement (“NZCPS”) as required by section 74( 2) and 75(3) of the Act; that it does not give effect of the Northland Regional Policy Statement (“NRPS”) as required by section 74( 2) and 74(3) of the Act; and has not been prepared in accordance with the Kaipara District Council's functions under section 31, the provisions of Part 2, and its duty under section 32 as required by section 74(1) of the Act.

3

The application also sought a declaration that in light of the above, KDC has a duty under the Act to notify a proposed plan or a variation to the PDP that recognises and provides for the protection of outstanding natural features and landscapes from inappropriate subdivision, use and development, and gives effect to the NZCPS and NRPS (including identification of outstanding natural features and landscapes in the district).

4

The parties each arranged for a planner to make an affidavit. Subsequently, rebuttal affidavits were filed by each of those planners. Two features of this process are worthy of note. First, that despite the sheer volume of affidavit evidence, there was a relatively high measure of agreement between the two experts on matters of fact (an important requirement in declaration proceedings), and despite the sheer volume of evidence lodged, it has been possible to distil the essential features of the case down to first principles.

5

Where the planners differed was more in the area of interpretation of certain documents, including resolutions passed by KDC, and other council documentation. Those interpretations are in any event probably more the province of counsel, and ultimate interpretation by the Court. Nevertheless I have considered those parts of the affidavits as carefully as I have all the other materials placed before me.

The Factual Background
6

Each of the witnesses referred to documentation created during the preparatory process for the promulgation of the PDP, commencing as long ago as 2005. They also referred to the relevant provisions of the PDP itself, as well as to relevant provisions of the operative plan.

7

A useful starting point will be the PDP. On the contents page, reference is made to a “Chapter 18”, but on turning to that, the reader is greeted by the advice “this chapter is intentionally blank”. This is the issue at the heart of the proceedings.

8

Notably, the council had commissioned a landscape study by a consultancy Littoralis Landscape Architecture in 2006, which resulted in the identification of a number “outstanding” and “amenity” landscapes within the district.

9

The experienced planning expert called by the applicant, Mr P D Reabum, opined that he would have expected a landscape chapter to include objectives, policies, methods and rules relating to outstanding landscapes, as well as a list and map of the Outstanding Landscape Units (“OLUs”) advised by Littoralis. The PDP does not contain such provisions, although it does offer other provisions and maps of matters of “environmental benefit” that I shall describe shortly.

10

Also at the heart of the proceedings was a resolution of KDC on 26 November 2008, based on recommendations made to it by its planning officers at a workshop held on 29 October 2008. The resolution read:

…that Council takes no further action on the identification of, and consultation on, Outstanding Landscapes in the Review of the Kaipara District Plan

11

The reasons recorded for the recommendation were as follows:

…Council needs to concentrate on key strategic elements of the District Plan including the promotion of economic growth and environmental wellbeing. Council considers the resources of managing the outstanding landscape process outweighs the benefit to the rate payer and the community. Council notes the issue is likely to be dealt with in the public and Environment Court processes of the District Plan Review.

12

The planning report for the council meeting on 26 November 2008 also contained the following information under the heading “Landscape Direction”:

…Council is of the opinion that the stakeholders opposing the identification of outstanding landscapes are holding entrenched positions and are not prepared to enter into free and frank discussions with council with the intention of resolving the differences. Council is also concerned that these stakeholders are not addressing the planning process and legal facts of the matter and Council is not prepared to commit resources to a process that is unlikely to result in an outcome that enables the District Plan Review to progress. Council is aware that the changing direction is not avoiding the statutory requirement to protect outstanding landscape, merely delaying it to a later time in the process of adopting a reviewed District Plan.

13

In the course of preparation of the PDP, KDC, as required by law, undertook processes under s32 RMA. The s32 Evaluation Report Summary in relation to the landscape chapter 18, included the following commentary:

District Plan Development Process

Throughout the District Plan development process, which commenced in 2005, Council has held workshops and undertaken consultation with the community on the issues, environmental outcomes sought and possible method options for valued landscapes in the...

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