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

• Jurisdiction: New Zealand
• Judge: J R Jackson
• Judgment Date: 05 November 2013
• Neutral Citation: [2013] NZEnvC 258
• Court: Environment Court
• Docket Number: ENV-2009-CHC-000193
• Date: 05 November 2013

In the Matter of the Resource Management Act 1991

And of appeals under clause 14(1) of the First Schedule to the Act

BETWEEN

Federated Farmers of New Zealand (Inc) Mackenzie Branch (env-2009-chc-193)

Mount Gerald Station Limited (Env-2009-Chc-L 81)

Mackenzie Properties Limited (Env-2009-Chc-183)

Meridian Energy Limited (Env-2009-Chc-184)

The Wolds Station Limited (Env-2009-Chc-187)

Fountainblue Limited & Others (Env-2009-Chc-190)

R, R and S Preston And Rhoborough Downs Limited (Env-2009-Chc-191)

Haldon Station (Env-2009-Chc-192)

Appellants

and

Mackenzie District Council

Respondent

Decision No. [2013] NZEnvC 258

Court:

Environment Judge J R Jackson

(sitting alone under section 279(l)(c) and (e) RMA)

ENV-2009-CHC-000193

BEFORE THE ENVIRONMENT COURT

Decision concerning the Environment Court's (“EC”) jurisdiction to amend the general “outstanding natural landscape” objective for the Mackenzie Basin in the Mackenzie District Council's Plan Change 13 — decision considered the various submissions on the jurisdiction and merits of the proposed orders under s293 Resource Management Act 1991 (“RMA”) (Environment Court may order change to proposed policy statements and plans) as outlined in the First (Interim) Decision of the EC — submissions called for because EC was unclear as to how the Resource Management Amendment Act 2005 had affected the court's jurisdiction and powers — what were the court's powers under s293 RMA (post-2005) — whether there was jurisdiction under s293 RMA in relation to the objectives and policies proposed in the First (Interim) Decision.

Appearances:

M Casey QC and J Derry for Federated Farmers of New Zealand (Inc) Mackenzie Branch

J W Maassen for Meridian Energy Limited

A J Schulte for Fountainblue Ltd, Southern Serenity Ltd and Pulcaki Tourism Holdings K Reid for Simons Pass Limited

D C Caldwell and G C Hamilton for Mackenzie District Council

SEVENTH (PROCEDURAL) DECISION

• 7A: Under section 293 of the Resource Management Act 1991 in respect of the Mackenzie District Council's Plan Change 13 the Environment Court directs the Mackenzie District Council:

  • (1) to write policies to implement Objective 3B annexed to the Sixth Decision and generally in accordance with the guidance in part 4 of this decision and to lodge and serve them as an amended version of PC 13 (“the PC 13 (s 293)”);

  • (2) to lodge and serve on the parties an affidavit from an authorized officer or planner for the Council setting out:

    • (a) what further methods or rules are most appropriate to give effect to the objectives referred to in the Sixth Decision and/or the objectives and policies to be determined under Order 7A(1);

    • (b) any further section 32 analysis the Council wishes to put forward to support the proposed policies and methods;

      — together with a memorandum from counsel, inter alia, as to what directions as to notification (if any) under section 293 RMA are appropriate, so that the court can give further directions about these matters;

  • (3) after receipt of directions under (2) above, to consult about PC 13 (s 293) with:

    • • the parties to this proceeding;

    • • the members of the Mackenzie Country Trust under the “Mackenzie Agreement” of May 2013;

    • • any other person the council considers appropriate;

  • (4) to lodge and serve a further amended version of PC13 (s293) with the Registrar of the Environment Court for confirmation by the court (if necessary after a further hearing by the court if that is sought by any party).

• 7B: In relation to the hazards policy with respect to dam or canal failure, Meridian Energy Ltd and Genesis Energy Ltd are:

  • (1) to comply with Order C2 of the First (Interim) Decision as amended by the High Court, i.e. they are to lodge and serve evidence on:

    • (i) the nature and extent of any hazard; and/or

    • (ii) the planning provisions including controls on subdivision use and development that should apply, if any, to address any such hazard; and

  • (2) to lodge and serve draft directions from the Environment Court to the Mackenzie District Council

    — within two months of issue of this decision.

• 7C: In relation to farm bases:

  • (1) any party seeking an alternative or amended farm base is to lodge and serve evidence identifying the area and briefly justifying the choice within four (4) months of issue of this decision;

  • (2) the Mackenzie District Council is to draft amended policies, schedules and rules in accordance with the intentions of the First (Interim) Decision in parts 5.2 and 6 of that decision.

• 7D: Leave is reserved for any party to apply for further or alternative directions if any aspect of Orders 7A to 7C is impracticable or ambiguous or if they do not cover all the directions needed to meet the intent and spirit of the Reasons below.

• 7E: Costs are reserved.

REASONS

Table of Contents

Introduction	[1]
The Sixth Decision	[1]
The questions for this decision	[2]
Background	[4]
The Resource Management Amendment Act 2005	[7]
What are the court's powers under section 293 (post-2005)?	[8]
The words of section 293 in their immediate context	[10]
The purpose of section 293	[31]
Section 293 in the scheme of the Act	[38]
Other guides to meaning	[46]
Summary: revisiting how to apply sections 290 and 293 RMA	[47]
Is there jurisdiction under section 293 in relation to the objectives and policies proposed in the First (Interim) Decision?	[56]
The landscape objective suggested by the court	[57]
The proposed policies	[67]
Rules	[89]
What directions should be given?	[91]
Further evidence to be considered	[91]
The correct approach	[99]
What are the appropriate directions?	[102]
Rules	[120]
Other matters	[123]

Introduction

The Sixth Decision

1 The Sixth Decision in these proceedings considered the court's jurisdiction to amend the general “outstanding natural landscape” objective for the Mackenzie Basin in the Mackenzie District Council's Plan Change 13 (“PC13”). It also considered that while some objectives and most of the implementing policies and methods were on the subject of PC 13, they should not be the subject of section 290 orders.

The questions for this decision

2 This decision considers the various submissions on the jurisdiction and merits of the proposed orders under section 293 of the Resource Management Act 1991 as outlined in the First (Interim) Decision 1 of the court in these proceedings. The questions to be decided here are:

• (1) do the remaining orders proposed in the First (Interim) Decision come within section 293 and, if so:

• (2) should the court exercise such powers?

3 Question (1) is a legal issue and thus may be determined by an Environment Judge alone 2. Question (2) is a discretionary question for the Environment Court as a whole. Environment Commissioner Mills had been scheduled to sit with me so that the court could determine this question also. When he was unavoidably called away at the last minute for more pressing matters, the parties agreed 3 at the hearing that I should resolve question (2) also.

Background

4 The questions have arisen out of the Mackenzie District Council's Plan Change 13 (“PC13”) which was notified on 19 December 2007. The history of PC13 is described in the First (Interim) Decision 4 in these proceedings. There the Environment Court stated (inter alia):

• [473] We should consider the exercise of section 293 powers separately and cumulatively in relation to each of the following issues:

  • (1) the amended objective 3B [for the Mackenzie Basin] and its implementing policies and rules;

  • (2) the natural hazards policy and its effect on farm bases;

  • (3) intensive farming activity;

  • (4) wilding [conifer] spread.

5 In relation to those issues the court directed:

…

B: In respect of section 293 of the Resource Management Act 1991:

• (1) if any party wishes to make submissions to the court on the interpretation of the section or on the exercise of our discretion under that section, they must give notice summarising the argument(s) to be made in writing to the Registrar by 29 February 2012 (and serve copies on all other parties);

• (2) if notice is given under (1) all subsequent orders will be suspended until the parties have been heard on section 293 by the court and a decision issued.

…

Order B was made because the court was unclear as to how the Resource Management Amendment Act 2005 had affected the court's jurisdiction and powers. Unfortunately counsel largely treated section 293 as if it had not been changed in 2005 so I did not receive written submissions on the changes, with limited — but helpful — exceptions from Mr Maassen for Meridian Energy Ltd (“Meridian”) and Mr Schulte for Fountainblue Ltd and others.

6 The position of the parties at the hearing was:

Issue (4) was resolved in the Sixth Decision when the court decided it could not be the subject of any orders. I need not consider it any further here.

The Resource Management Amendment Act 2005

• • the Mackenzie District Council accepts the use of section 293 RMA in respect of issues (1) and (2) in paragraph [4] above but not in relation to (3) and (4);

• • the Mackenzie Branch's position is that parts of issue (1) and all of (3) and (4) should be excluded. It acknowledges that issue (2) should be considered;

• •; Meridian Energy Limited, another appellant, supports 5 the exercise of the court's power under section 293 to address issues (1) and (2); opposes addressing issue (4); and is “agnostic” as to issue (3) although it “acknowledges the strength of the reasoning for excluding issue (3) as presented in the submissions by Mackenzie District Council”;

• • the appellants, Fountainblue Ltd and others (“Fountainblue”) support (1) and (2) but oppose (3) and (4);

• • Simons Pass Ltd, a section 274 party, supports the Mackenzie Branch's...