Meridian 37 Ltd v Waikato Regional Airport Ltd
Decision  NZEnvC 119
BEFORE THE ENVIRONMENT COURT
Environment Judge C J Thompson
Environment Commissioner K A Edmonds
Environment Commissioner I A Buchanan
In the Matter of an appeal under s 174 of the Resource Management Act 1991
PM Lang for Waikato Regional Airport Limited
R M Macky for Meridian 37 Limited
Appeal against the decision of the Waikato Regional Airport Ltd under s172 Resource Management Act 1991 (RMA) (Decision of requiring authority) that a designation should have a lapse period of 15 years instead of the statutory default five year period under s184 RMA (Lapsing of designations which have not been given effect to), which was recommended by the Council Commissioners — the requiring authority was an airport and the designation related to a projected runway extension and approach lights facilities — there was no current interest by long haul operators in the extension and it was economically not feasible to build it without such interest — requiring authority said the 15 year period would allow the extension to be implemented in stages at short notice if there was later interest shown in it, that it kept its options open and that it safeguarded the land from inappropriate use — whether the designation was an inhibiting factor on the land owner's use of its land and if so, whether the 15 year term was unreasonable and unfair — whether the balance of the interests of the parties favoured the shorter lapse period.
The issues were: whether the designation was an inhibiting factor on the land owner's use of its land and if so, whether the 15 year term was unreasonable and unfair; whether the balance of the interests of the parties favoured the shorter lapse period.
Held: There were no airlines inquiring about the possibility of long haul operations, despite feelers being put out by the company, and in the absence of a commitment for that sort of operation the extended runway could not be justified. The cost of a HIAL installation could not be justified for present operations (ie without the runway extension). There was therefore some doubt about WRAL's position that the runway extension/HIAL possibility should be seen as elevated above a simply commercial operation, because the airport was a piece of regionally significant infrastructure. The relevant decisions about it to be made by WRAL were driven by commercial considerations.
Meridian had not put forward any particular potential development that might be stifled by the designation, and its location directly under the airport's approach/take-off area imposed practical limitations. But particularly given that 1.3ha of its land within the HIAL designation was zoned Industrial Zone, and that its future zoning had industrial uses specifically in mind, it was not pushing imagination too far to imagine, for instance, a single storied industrial building there. Such a project might be perfectly acceptable and sensible in an industrial area.
It was however unlikely to survive the “prevent or hinder” test of s176. Whether or not there was a specific example proposal put forward, the HIAL designation realistically had to be seen as an inhibiting factor for the future use of the land.
The position, to a point, was uncertain on both sides. WRAL could not say when, if ever, it would wish to extend the runway and install the RIAL. Meridian was not able to say exactly what it wished to do with the affected piece of land, and how the existence of the designation could affect any proposed use. There was no win-win situation here and, as the Court had commented in the past, what was needed was a decision as to what was fair, as between the parties, in each set of circumstances. Reasonableness and fairness as between the rights of those involved on the one hand, and the burdens that could imposed on those persons or organisations on the other, were what should guide the outcome of such a dispute.
Balancing the positions, to expect a landowner to endure such a planning blight on a not insubstantial portion of otherwise valuable land, and for such a long period, was unreasonable and unfair. The proposed, or perhaps more accurately envisaged, runway extension and HIAL installation could not be said to be unimportant. However, a private landowner should not have the use of its land significantly limited for such a long period (i.e. a total of three times the statutory default period) because of a possible third-party requirement that, literally, might never happen.
The fairness of the situation called for that burden of uncertainty to be borne by the party which wished to keep its options open for such a length of time. In practical terms, that would mean that unless the parties could agree on a use of the affected land that was satisfactory to both, WRAL could consider buying the land and assuming the risk and uncertainty itself, rather than imposing it on the present owner for such an extended period.
Waikato Regional Airport Limited (WRAL) is a requiring authority in terms of s166 of the Resource Management Act 1991. In a decision made under s172 of the Act WRAL made decisions on designations to the Waipa District Plan for the extension to the north of the main runway of Hamilton Airport, and changes to the Obstacle Limitation Surfaces (OLS) for that airport. The designation relevant to the appeal as it now stands is designation DN 64, for the northern High Intensity Approach Lights (HIAL) and, in particular, the term of the designation for those lights is the issue. In their Decisions and Recommendations of 15 July 2011, the Councils' Commissioners recommended a lapse period of five years, but the WRAL decision of 15 September 2011 amended that to 15 years.
A term of 15 years had been sought from the Council Commissioners by WRAL, but the Commissioners were not persuaded to do so. They noted that: WRAL is concerned that the default period of a five year term on the designations may require a further major planning process to reconsider the designations should the works not have proceeded within five years. Their view about the statutory default term of five years for designations was that it … recognises that there should be a commitment from the designating authority to progress the related works or to make the necessary landpurchases/agreements for that purpose.
In brief, the Commissioners considered that a 15 year term would be … too heavily weighted in favour of WRAL, at the expense of the affected parties… (ie the private landowners). The owners would be subject to limitations on use of the land, and to uncertainty about its future use and WRAL's intentions. The Commissioners noted that WRAL had the options of buying the affected land, or of seeking an extension of the designation's term, if the grounds in si84(2) RMA could be made out.
The reasons given by WRAL for the extension to 15 years were these:
(a) WRAL has developed master plans out to 2030 to provide long-term planning and certainty of management. Consistent with that it is appropriate that a medium term horizon is fixed for development of the long-term infrastructure assets represented by a runway extension. The extension may occur in stages or at one time, depending on demand and economic justification.
(b) The high intensity approach lights are an integral part of the runway extension project and the inability to build them could frustrate construction or operation of the whole extension project. To avoid this there needs to be a consistent designation term for all elements of the project.
(c) A 15 year term safeguards the land required from inappropriate use. This protects against the possibility of erection of substantial buildings on or near where the HIAL facility is to be located. This could hamper installation or effective operation of the lights in the future.
(d) The HIAL designation is a relatively small part of the Meridian 37 land holding which contains some 92ha outside the HIAL area. Most activities that are permitted and would be expected to occur at this location are unaffected by the designation and can be undertaken in the interim. It is only buildings permitted by the rural zoning that may be restricted, and there are multiple building sites available on the balance of the land. Therefore there is a no significant interim effect of the designation on the Meridian 37 land.
Meridian 37 Ltd, as the affected landowner, is not satisfied with WRAL's decision, and this appeal followed, seeking a term no longer than the default term of 5 years. WRAL wishes to retain the 15 year lapse period. In the course of submissions, Mr Lang clarified that it seeks 15 years from the date of the presently effective decision — ie 28 October 2011. The Council, whose District Plan is affected by the designation, did not wish to express a view either way, and indicated that it will abide the decision of the Court. It was excused from the hearing, but offered to provide any assistance the Court might require.
In the nearly four years since the decision there have apparently been considerable negotiations between Meridian 37 and WRAL towards resolution, including the possibility of the airport company buying the land covered by the HIAL...
To continue readingREQUEST YOUR TRIAL