Meridian 37 Ltd v Waikato Regional Airport Ltd

 
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Decision [2015] NZEnvC 119

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner K A Edmonds

Environment Commissioner I A Buchanan

ENV-2011-AKL-000234

In the Matter of an appeal under s 174 of the Resource Management Act 1991

Between
Meridian 37 Limited
Appellant
and
Walpa District Council
Territorial Authority

and

Waikato Regional Airport Limited
Respondent Requiring Authority
Counsel:

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.

DECISION ON APPEAL
Introduction
1

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.

2

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.

3

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.

4

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.

The parties' positions — summary
5

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.

6

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 designation, but terms could not be agreed, and so the issue of the esignation's term comes to the Court for resolution.

The background
7

The Airport's existing runway is 2195m long, sufficient for current aircraft types to operate domestically and to eastern Australian airports, although with payload limitations in some instances. WRAL has plans (but no timetable — because there is not a business case for it at present) to extend the runway to enable it to accommodate unrestricted wide-bodied passenger and freight aircraft on longer routes to Australia, Asia and beyond. WRAL's advice is that a total sealed runway length of 2,984m, with an available take-off distance of 2856m, would be sufficient to reduce take-off weight restrictions on long-haul flights to destinations in Asia and the west coast of the USA. The landing distance of 2,608m would be sufficient for all targeted passenger and freight aircraft.

8

The HIAL is one of the navigation aids required for a precision instrument approach runway, the other being an...

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