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

JurisdictionNew Zealand
CourtHigh Court
JudgeGendall J
Judgment Date23 October 2014
Neutral Citation[2014] NZHC 2616
Docket NumberCIV-2013-476-000311
Date23 October 2014

[2014] NZHC 2616

IN THE HIGH COURT OF NEW ZEALAND

TIMARU REGISTRY

CIV-2013-476-000311

Between
Federated Farmers of New Zealand (Inc) Mackenzie Branch
Appellant
and
Mackenzie District Council
Respondent
Appearances:

M Casey QC and J Derry for Appellant

D C Caldwell and Ms McCallum for Respondent

J Maassen for Meridian Energy Ltd

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.

Held: Once notified, an issue could not be deleted. The EC had formed an erroneous view of the law, and had sought to impose an artificial limit on the powers of Commissioners in circumstances such as this. That approach was unfounded in terms of both the statutory provisions and prior case law.

The mandatory and permissible contents of district plans were set out in s75 RMA (contents of district plans). A statement of significant resource management issues could be included. A person was permitted to make submissions on the proposed plan as notified. That was expressed in the RMA in unqualified terms and, in the absence of clear language or Parliamentary intent to the contrary, there was no need to read into that qualifications as to the scope or content of submissions. The EC had been wrong to hold that an issue once notified could not be deleted from a notified plan or plan change.

Section 290A RMA was mandatory and required the EC when determining an appeal to have regard to the decision appealed against. The issue appealed against related to the decision of the EC with respect to ‘greening’. Namely, Federated Farmers sought to question the Sixth Decision of the EC in reinstating the reference to ‘greening’ in the issues statement.

The decision that was the subject of the appeal had to be given genuine attention and thought, and accorded weight as was appropriate. However, such consideration did not mean the appellate body was beholden to the decision appealed from; it was entitled to depart when appropriate. There was no presumption that the EC on appeal would follow the decision appealed from. The appellate body was not obliged to give reasons for departure from the decision appealed from, though the requirement to give genuine consideration would normally be manifest in a requirement that an explanation be given as to why the EC was departing.

The s290A RMA obligation was not onerous. The first instance decision simply assumed the mantle of another element of the factual matrix which the de novo decision of the EC had to take into account in reaching its determination.

The jurisdiction under s293 was central to this appeal. On its face, s293 RMA was broadly worded. It contained no statutory restrictions on the Court's discretion to direct that changes be prepared to a local authority's district plan to address any matters identified by the Court. The fundamental purpose of s293 RMA was to give the Court power to direct changes to a proposed plan (or plan change), which were not otherwise within the Court's jurisdiction due to the scope of the appeal before it. However, that power was not unlimited. Section 293 RMA was to be exercised cautiously and sparingly. The discretion had be exercised in a manner consistent with the EC's role as a judicial body with appellate jurisdiction given it by statute.

The first aspect of s293 RMA appeared to confer upon the EC a power to assume a quite significant planning role. The power to direct changes was qualified only by the fact that the matters directed must be identified by the Court.

The ultimate purpose of district plans was to achieve the purpose of the RMA. As a matter of logic, if a district plan was not achieving the purpose of its existence, then it would be absurd to let that plan (or plan change) stand undisturbed by the limited planning role explicitly conferred upon the EC.

Generally, the s293 RMA jurisdiction should ordinarily be invoked only to address live issues, and not to create them. However, at least to a significant extent, that distinction could be put to one side. In the present case this issue, was to a large degree, a question of fact, not one of law. For the purposes of this appeal the issue of greening (and thereby pastoral intensification) was ‘on’ PC13 for the following reasons:

PC13 as notified, had made express and unequivocal reference to the issue of greening as associated with increased irrigation.

The purpose of PC13 was stated to be to protect the “Mackenzie Basin from inappropriate subdivision, development and use.” Issues associated with farming (including pastoral intensification) were capable of falling within the scope of that purpose.

Submitters were alive to this issue as the Commissioners saw fit to comment on the matter on the basis of submissions.

Where the discretion was exercised, the Court could not go beyond directing the local authority to prepare changes to the plan to address the matters identified by the Court. It had been open to the EC to utilise s293 RMA in the way it had.

There had been a positive and unchallenged final decision that the Mackenzie Basin was an outstanding natural landscape. That was a finding from PC13. Section 6(b) RMA (matters of national importance) not only required, but mandated, that all persons exercising functions and powers under the RMA recognised and provided for the “protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development. The broad purpose was to protect the Mackenzie Basin. The EC was required by the mandatory direction in s6 RMA, to recognise and provide for its protection.

The EC might have stepped beyond its role pursuant to s293 RMA by drafting the proposed changes. The jurisdiction was to direct that changes be made, not to make the changes and direct that they be implemented. The Court was ill-equipped to carry out the s32 RMA analysis of the proposed changes given their extent. Where significant changes were proposed by the EC, the Council should be directed to publicly notify the changes so comment was sought and received on each issue.

The changes proposed by the EC were so wide ranging and of such import that the summary process adopted by the Court for dealing with the proposed changes was inadequate. The appropriate course was to refer the matter back to the EC

Federated Farmer's appeal allowed in so far as the EC had been incorrect to hold that an issue, once notified, could not be deleted from a plan change.

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.

...

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