Federated Farmers of New Zealand (Inc.) Mackenzie Branch v Mackenzie District Council

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 23 October 2014
• Neutral Citation: [2014] NZHC 2616
• Docket Number: CIV-2013-476-000311
• Court: High Court
• Date: 23 October 2014

Between

Federated Farmers of New Zealand (Inc) Mackenzie Branch

Appellant

and

Mackenzie District Council

Respondent

[2014] NZHC 2616

CIV-2013-476-000311

IN THE HIGH COURT OF NEW ZEALAND

TIMARU REGISTRY

Appeals against three decisions of the Environment Court (“EC”) relating to decisions made by the respondent in respect of Plan Change 13 (“PC13”) to its Mackenzie District Plan (the District Plan) pursuant to the Resource Management Act 1991 (“RMA”) — prior to PC13 being notified, the appellant had applied to subdivide part of farm land it owned in — the Mackenzie Basin subzone — the primary purpose of PC13 was to provide greater protection of the landscape values of the Mackenzie Basin from inappropriate subdivision, development and use — the EC cancelled the respondent's amendment to PC13 and had directed that a new policy should be written recognising there were some areas where different types of development and use were appropriate — to what extent was the EC required to have regard to the decision of the respondent pursuant to s290A (EC to have regard to decision that is subject of appeal or inquiry) — what was the EC's jurisdiction pursuant to s293 RMA (EC may order change to proposed policy statements and plans) — whether the EC, in reliance on s290 RMA, could cancel a decision of the respondent in advance of following the process contemplated by s293 RMA.

Appearances:

M Casey QC and J Derry for Appellant

D C Caldwell and Ms McCallum for Respondent

J Maassen for Meridian Energy Ltd

JUDGMENT OF Gendall J

Table of Contents

	Para No
Introduction	[1]
Background	[4]
The Mackenzie District Plan	[7]
Plan Change 13 (PC13)	[20]
Submissions on PC13 and the Commissioner's decision	[32]
Appeals from the Commissioner's decision	[42]
Environment Court decisions	[64]
First Interim Decision	[64]
Sixth Decision	[73]
Seventh Decision	[82]
Eighth Decision	[88]
The three appeals	[91]
Appeal against the Sixth Decision	[92]
Appeal against the Seventh Decision	[95]
Appeal against the Eighth Decision	[97]
The issues	[101]
Legislative regime	[103]
Appeals	[103]
Substantive provisions	[104]
Discussion	[105]
Introduction	[105]
Plan Changes generally	[107]
Issue (a) – The ability to delete a notified issue	[113]
Issue (b) – The obligation under s 290A	[117]
Issue (c) – Jurisdiction pursuant to s 293	[119]
Interpretation of the Statute	[124]
The plain meaning of s 293	[128]
In light of the purpose	[131]
The role of the Environment Court on appeal	[136]
The test for determining whether a submission is “on” a Plan Change	[139]
Jurisdiction under s 293	[144]
Summary of findings	[156]
Issue (d) – Interrelationship between ss 290 and 293	[160]
Result	[161]
Costs	[168]
Relief	[169]

Introduction

1 The appellant (Federated Farmers) appeals against three decisions of the Environment Court dated 1 November 2013 ( Sixth Decision), 1 5 November 2013 ( Seventh Decision), 2 and 23 December 2013 ( Eighth Decision). 3 All of these decisions concern, to a greater or lesser extent, decisions made by the respondent in respect of Plan Change 13 (PC13) to its Mackenzie District Plan (the District Plan) pursuant to the Resource Management Act 1991 (RMA).

2 Though the Mackenzie District Council (the Council) is described as the respondent in this appeal and Mr Caldwell appeared as its counsel throughout, in essence it is not challenging major aspects of the substance of these appeals. Simply put, it takes the position that it supports the appeals insofar as it wishes the Environment Court decisions to be correct jurisdictionally, although it does take issue with some aspects of those appeals.

3 Meridian Energy Limited (Meridian) originally opposed these appeals in part. However, shortly before the hearing (but after filing submissions) Meridian advised that it no longer opposed the appeals and that it would abide the decision of this Court. At Meridian's request, its submissions have not been considered and play no part in this judgment. For completeness I simply observe that although Meridian withdrew, Mr Maasen nevertheless appeared before me as its counsel throughout the hearing, simply with a watching brief.

Background

4 The background facts in this case and the planning history concerning the District Plan and PC13 are complex. It is useful here to set these out in some detail. They will assist in understanding the issues facing the Council with its District Plan and the extent of change to the then-existing position proposed by PC13.

5 The District Plan promulgated by the Council became operative on 24 May 2004. The proposed Plan Change in question, PC13, relates to the Mackenzie Basin subzone of the District Plan. The Mackenzie Basin subzone comprises a large area of central South Island high country from the Northern Shores of Lake Ohau in the south, to the mountains north of Lake Tekapo in the north, and from the Southern Alps including Aorangi/Mt Cook to the west to the small towns of Twizel and Tekapo in the east. Within the subzone are 25 farms and stations which are the major proportion by far of its occupied land. Of these farms and stations, 22 are members of the appellant Federated Farmers Mackenzie Branch.

6 Special zoning in the District Plan within the Mackenzie Basin also accommodates major hydro electric operations owned by Meridian and Genesis Energy Limited including dams, storage areas, lakes, power stations and an extensive canal and road network.

The Mackenzie District Plan

7 As the genesis of the present appeals before this Court lies in the District Plan and PC13 it is useful to review the provisions of these instruments in some detail.

8 The District Plan came into force on 24 May 2004. Section 7 of the District Plan covers the rural zone. It included under “Issue 7 – Landscape Values” a comment that the landscapes of the Mackenzie District are of significant value. The District is said to contain three basic landscape units. These are essentially the mountainous chain of the main divide, vast tussock grasslands of the Mackenzie Basin and the more intensively farmed and settled farmland east of the Two Thumb, Albury and Dalgety Ranges.

9 The majority of the Mackenzie Basin is described as being regionally outstanding. On this aspect, Issue 7 in the District Plan records that:

The challenge is to find an appropriate balance between land uses and activities and the maintenance of outstanding landscape qualities.

10 The District Plan also emphasised under “Rural Objective 3 – Landscape Values” the need for:

Protection of outstanding landscape values, the natural character of the margins of lakes, rivers and wetlands and of those natural processes and elements which contribute to the District's overall character and amenity.

11 Appropriate development particularly in the high country and the Mackenzie Basin was to have an overriding regard to these wider visual and landscape considerations.

12 A range of other relevant policies were included in the District Plan. Amongst other things these covered concerns to avoid or mitigate the effects on lakeside landscapes by controlling the scale, appearances and location of buildings, concerns as to earthworks in the Basin, attempts to limit structures and tall vegetation within scenic viewing areas, to avoid or mitigate the effects of subdivision, uses or development which might impinge on aspects including important landscapes, concerns to control the spread of wilding trees in the District, to generally encourage guidelines for siting and design of buildings, structures, tracks, roads and the like and agreed colour schemes, and to encourage land use activities which sustain or enhance the ecosystem functions and natural values of the High Country.

13 The Council through its District Plan, had thus identified a range of landscape issues and endeavoured to address these through objectives and policies in the Plan. However, it seems some of the rules in the District Plan were permissive, with buildings in the rural zone generally permitted, as long as they achieved a number of minimum standards.

14 With regard to subdivision, there were no specified minimum allotments in the rural zone, with allotment size (in relation to the ability to provide onsite sewage disposal) being the only element of control. In essence therefore, as long as onsite sewage disposal could be achieved without adverse effects, there was no practical limit on allotments that could be created in the rural zone and therefore no real limit on how dense residential or built development could potentially become in most areas of this zone.

15 Mr Caldwell for the Council noted that, while the District Plan did recognise that houses could be built within the rural area, the Council did not anticipate the recent scale of lifestyle development which has occurred within the Mackenzie Basin and particularly the growth of retirement and holiday homes.

16 It had become apparent he said that the controlled activity status for subdivisions and the permitted activity for dwelling houses was now not appropriate to ensure the protection of landscape values generally. Thus, after obtaining reports and recommendations, in June 2006 a decision was made by the Council to prepare a Plan Change. This resulted in PC13, the pertinent provisions of which are annexed hereto marked “A”.

17 The District Plan had remained in force since its inception, until the Council made this decision that steps needed to be taken to alter the Plan. The reason for this was outlined in a report of Mr Graham Densem, dated November 2007:

• 1.10 The Operative Mackenzie...