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

JurisdictionNew Zealand
CourtEnvironment Court
JudgeEnvironment Judge J R Jackson
Judgment Date05 Nov 2013
Neutral Citation[2013] NZEnvC 258
Docket NumberENV-2009-CHC-000193

Decision No. [2013] NZEnvC 258

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J R Jackson

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

ENV-2009-CHC-000193

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
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

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.

The issue was: what was the EC's power under s293 RMA.

Held: Under s293(1)(c) RMA the EC could direct the local authority to submit the changes to the court for confirmation. That appeared to be discretionary. The overall effect of s293(1)(c) RMA was to reinforce that the EC was not the primary writer of the relevant plan.

Section 293 RMA gave the EC powers to resolve the situations where if, after considering all the relevant factors, it became apparent on the evidence and/or on the face of the local authority's decision that:

  • •in order to achieve the purpose of the RMA, an objective not sought in any appeal was the most appropriate objective in terms of s32 RMA (requirements for preparing and publishing evaluation reports) because that objective recognized and provided for a s6 RMA (matters of national importance) and s8 RMA (Treaty of Waitangi);

  • •a policy not sought by any appeal was most appropriate in order to implement an objective having regard to its efficiency and effectiveness compared with the alternatives including the status quo;

  • •an objective might have been amended under s290(2) but then consequential amendments to policies and methods (not sought by any submission but related to it) might be found by the court to be the most appropriate solutions under s32 RMA..

Section 293 RMA could also be used where the local authority had made an error of law or had substantially failed to carry out one of its duties under the RMA or under a statutory instrument.

When s293 RMA was read as a whole in the scheme of the RMA, there was also a limited jurisdiction given to the EC where the court identified or found that a duty of the local authority in respect of a relevant issue had not been adequately complied with. Provided there was a rational connection between the issue which was the subject of the plan provision or the plan change and the matter identified by the EC, the EC had jurisdiction under s293 RMA to give directions about the matter, notwithstanding that it was not raised in an appeal.

The tests for whether directions were within jurisdiction were:

  • (1) in the case of a plan change were the directions about amending the provision ‘on’ the issue(s) raised by the plan change? and

    • •did the directions fairly and reasonably address a matter or provision which was the subject of an appeal (and the submission on which it was based)? or

    • •did the directions address a “consequential alteration arising out of … any other matters [the Council] considered relating to matters raised in submissions? or

    • •did the directions fairly and reasonably flow from a direct breach of a nationally important statutory duty or a departure from a higher statutory instrument? and

  • (2) were fairness and participation issues fairly and reasonably resolvable by consultation and notification?

A new policy should be written which recognised that within the Mackenzie Basin's outstanding natural landscape there were some areas where different types of development and use (such as irrigated pastoral arming and/or residential subdivision) were appropriate, identified those areas; and recognised that there were areas where use and development beyond pastoral activities on tussock grasslands was either generally inappropriate or should be avoided; and encouraged a healthy productive economy, environment, and community within, and maintain the identity of, the Mackenzie Country.

The Council was directed to consult with the members of the Mackenzie Trust and any other persons it considered appropriate in relation to imposing restrictions on subdivision development and use, adjacent to State Highway 8 and other tourist roads within the Mackenzie Basin, in order to protect the outstanding natural landscape through which the highway passed. The Council should write a policy for farm buildings which avoided farm buildings in lakeside areas, scenic viewing areas and along the tourist roads. It would be useful for the Council to consider a policy dealing with subdivision within the Mackenzie Basin so as to minimise its adverse effects.

In relation to the rules the Council was directed to lodge an affidavit as to: what changes to the rules should be made to implement the policies directions had been given about; who should be consulted; and whether further notification should be directed.

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]

...

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1 cases
  • Federated Farmers of New Zealand (Inc.) Mackenzie Branch v Mackenzie District Council
    • New Zealand
    • High Court
    • 23 October 2014
    ..., (2013) 17 ELRNZ 402 [ Sixth Decision]. 2 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council (No 7) [2013] NZEnvC 258 [ Seventh Decision]. 3 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council [2013] NZEnvC 304 [ Eighth Dec......