Franco Belgiorno-Nettis v Auckland Council

• Jurisdiction: New Zealand
• Judge: Asher,Brown,Williams JJ
• Judgment Date: 22 May 2019
• Neutral Citation: [2019] NZCA 175
• Court: Court of Appeal
• Docket Number: CA645/2017
• Date: 22 May 2019

Between

Franco Belgiorno-Nettis

Appellant

and

Auckland Unitary Plan Independent Hearings Panel

First Respondent

Auckland Council

Second Respondent

[2019] NZCA 175

Court:

Asher, Brown and Williams JJ

CA645/2017

CA184/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Judicial Review, Local Government, Resource Management — Auckland Unitary Plan — duty to provide reasons — Local Government (Auckland Transitional Provisions) Act 2010

Counsel:

S J Ryan and R H Ashton for Appellant

No appearance for First Respondent

M C Allan for Second Respondent

C E Kirman and A K Devine for Housing New Zealand Corporation as Intervener

R E Bartlett QC for Emerald Group Limited as Intervener

• A The appeal against the refusal to grant judicial review is allowed.

• B The application for judicial review is granted.

• C The application for leave to appeal is declined.

• D The Auckland Unitary Plan Independent Hearings Panel is ordered to give reasons for its recommendations to the Auckland Council relating to the zoning and height requirements for the Promenade and Lake Road Blocks in Takapuna.

• E The respondents are to pay one set of costs for a standard application on a band A basis with usual disbursements. We certify for two counsel.

• F The High Court costs orders in favour of the respondents and the Housing New Zealand Corporation are quashed.

• G The High Court is to make the appropriate order for costs in the High Court in the light of this judgment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

	Para No
Introduction	[1]
The Combined Unitary Plan	[5]
The Panel	[1l]
Background to this appeal	[15]
The Proposed Plan	[15]
Creation of the Panel	[17]
Submissions	[20]
Hearings	[27]
The Panel recommendations	[31]
(i) General	[31]
(ii) The Promenade Block	[35]
(iii) The Lake Road Block	[38]
The High Court judgment	[40]
The issue	[44]
The obligation to give reasons	[46]
What reasons were given?	[66]
The impracticality argument	[91]
Relief	[102]
Jurisdiction to grant leave to appeal to this Court?	[111]
Result	[114]
Costs	[118]

Introduction

1 This appeal concerns the Auckland Unitary Plan. The appellant, Franco Belgiorno-Nettis, challenges recommendations by the first respondent, the Auckland Unitary Plan Independent Hearings Panel (the Panel) to the second respondent, the Auckland Council (the Council), and the Council's decision based on those recommendations. He submits that neither body gave reasons or adequate reasons for the recommendations and the decision. His submissions and those of other parties focused on the Panel's recommendations, which in relation to the issue relevant to this appeal were adopted by the Council. The lawfulness of the Council's decision therefore rests on the Panel's recommendations.

2 Mr Belgiorno-Nettis seeks relief by way of an order quashing or setting aside the Panel's zoning and building height recommendations as they relate to certain parts of the Takapuna area, and an order remitting those matters back to the Council for a rehearing and reconsideration of submissions.

3 This appeal comes to us through two routes. First it comes as an appeal against a refusal by Davison J to grant judicial review of the recommendation and decisions in question. 1 Second it comes as an application for leave to appeal the determination of a point of law of the High Court, and if leave is granted the determination of that point of law in the appellant's favour. Davison J determined this point in a separate judgment, dismissing the application for leave to appeal. 2 An issue arises whether there is jurisdiction to hear the appeal on the point of law, which we refer to at the end of this judgment.

4 There was a statement of agreed facts filed in the High Court which agreed various background matters, some of which we include in this judgment. The Panel took no steps in the proceeding and abided the decision of the Court, and the Council with the interveners took the burden of responding to the appeal.

The Combined (Unitary) Plan

5 The Auckland Council was established on 1 November 2010 by the Local Government (Auckland Council) Act 2009. 3 Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Transitional Provisions Act) was added in 2013, 4 and set out the process for the preparation, consideration and finalisation of a “first combined plan for Auckland Council”. Section 3(2)(d) provided that the Act's purpose was to provide “a process for the development of the first combined planning document for Auckland Council under the Resource Management Act 1991”. This document has become known as “the Unitary Plan” and we will adopt that name.

6 The Unitary Plan was not simply a consolidation of the existing District Plans of the old pre-amalgamation cities and districts. It also brought together the land use planning functions under the Resource Management Act 1991 (the RMA) controlled by District and City Councils and the coastal, river and lake beds, water use and contaminant discharge powers vested in Regional Councils. 5 This made Auckland City a Unitary Authority. 6

7 The Unitary Plan process involved five steps. The first stage of the process involved the preparation and notification of the Proposed Unitary Plan. 7 The second stage involved a process of receiving and processing submissions. Then the Panel was to be established to carry out the third stage. 8 At the third stage, the Panel was to consider the submissions on the content of the Proposed Unitary Plan as notified. 9 The Panel was required to make recommendations no later than “50 working days before the expiry of 3 years from the date on which the Council has notified the proposed plan”. 10 In the fourth stage the Council was to make decisions

considering those recommendations within a further 20 working days. 11 The fifth stage was the appeal phase

8 Clearly prompt decision-making was important. The Hon Amy Adams MP, stated in the first reading: 12

I am concerned that under existing law Auckland Council estimates that its first Unitary Plan could take up to 10 years to become operative. No one benefits from long, drawn-out, and expensive processes, during which time Auckland's development stagnates in a cloud of uncertainty. Auckland's economy is too important to New Zealand for us to wait up to a decade for the plan to be implemented. Auckland represents some of our most pressing housing affordability issues, and the council needs to be able to make changes to address this issue without long delays.

9 The Council was responsible for stages 1, 2 and 4. The expectation was that under the new process the Unitary Plan would become operative within three years from notification, instead of the six to 10 years likely under the first schedule process of the RMA. This was reflected in the provisions of the Act. There is provision in s 147 of the Transitional Provisions Act for an extension.

10 Apart from the timeframes and the more limited appeal rights, the structure of the Unitary Plan process was not greatly different from the process set out in the first schedule of the RMA. The process was for the preparation of a draft, the giving of notice, the receiving of submissions, provision for hearings, and a decision. However, the decision of the Panel was a recommendatory decision, and the ultimate decision was for the Council.

The Panel

11 Section 115(1)(g) of the Transitional Provisions Act describes the Panel as “specialist”. Under s 161 the Minister for the Environment and Minister of Conservation were to appoint a chairperson and three to 10 other members. The Panel members were required collectively to “have knowledge of, and expertise in relation to” the RMA; district and regional plans and policy statements prepared under the Act; Tikanga Maori (as applied in Tamaki Makaurau); the Auckland region, the people and

mana whenua groups of Auckland; and the management of legal proceedings. Ultimately 11 members were appointed, consisting of an Environment Court Judge as Chair and senior lawyers, planners, independent hearings commissioners, and other experts in local government and economics. There was a team of support staff including a Hearings Team that over the period employed eight people (not all at once) and a Planning Team of fourteen planners (again not all at the same time). As well there were various support persons and consultants

12 Section 164 of the Transitional Provisions Act set out the Panel's functions:

164 Functions of Hearings Panel

The Hearings Panel has the following functions and powers for the purposes of holding a Hearing into the submissions on the proposed plan and any variation permitted by section 124(4):

• (a) to hold hearing sessions; and

• (b) for the purposes of paragraph (a),—

  • (i) to hold or authorise the holding of pre-hearing session meetings, conferences of experts, and alternative dispute resolution processes; and

  • (ii) to commission reports; and

  • (iii) to hear any objections made in accordance with section 154; and

• (c) to make recommendations to the Auckland Council on the proposed plan and any variation; and

• (d) except as expressly provided by this Part, to regulate its own proceedings in the manner it thinks fit; and

• (e) to carry out or exercise any other functions or powers conferred by this Part or that are incidental and related to, or consequential upon, any of its functions and powers under this Part.

13 Following the hearing of submissions the Panel was obliged to make recommendations to the Council under s 144(4) of the Transitional Provisions Act. Section 144(4)-(6) provides:

Scope of recommendations

• (4) The Hearings Panel must make...