New Plymouth District Council

• Jurisdiction: New Zealand
• Judge: B P Dwyer,Environment Judge
• Judgment Date: 17 December 2010
• Neutral Citation: [2010] NZEnvC 427
• Docket Number: ENV-2010-WLG-000064
• Court: Environment Court
• Date: 17 December 2010

[2010] NZEnvC427

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer sitting alone under s279 of the Act

ENV-2010-WLG-000064

In the Matter of an application by the New Plymouth District Council to make rules Operative under s86D of the Resource Management Act 1991

• A: Application granted

DECISION ON APPLICATION TO MAKE RULES OPERATIVE

1 On 13 August 2010 I issued a procedural decision in respect of an application made by New Plymouth District Council (the Council) for an order pursuant to s86D Resource Management Act 1991 (RMA) that Rules in its Proposed Future Urban Development (FUD) Overlay Plan Change 15 (PC 15) are to have legal effect from the date that PCI 5 is publicly notified.

2 The procedural decision raised a number of issues which I required to be addressed by the Council before I could consider the application.

3 The procedural decision required (in summary) that the Council provided information:

• • Comparing the current status of activities which were to be affected by PCI 5, what their amended status might be and what additional criteria or considerations such activities would become subject to under PC 15;

• • The spatial areas which are to become subject to the FUD overlay;

• • The Approximate Numbers Of Properties And/or Property Owners Which Or Whom Would Potentially Be Affected By PC15;

• • An Objective Analysis Of The Outcome Of Public Consultation Under Local Government Act 2002 (lga 2002).

4 The information which I had sought has been provided by the Council by way of a supplementary affidavit of Mr F C Versteeg (General Manager Strategy and Policy at the Council). Mr Versteeg had also provided affidavit evidence in respect of the application as filed.

5 I will traverse only briefly in this decision, the various findings and comments which I made in the procedural decision as to the provisions of ss86A-86G RMA. In the procedural decision I commented on the sea change brought about by the insertion of ss 86A-86G into RMA, in particular, the provision that a rule in a proposed plan would have legal effect only once a decision on submissions relating to the rule had been made and publicly notified but subject to exceptions identified in 86B(1)(a)-(c).

6 Prior to 1 October 2009 (being the date on which the Resource Management (Simplifying and Streamlining) Amendment Act 2009 came into force), such rules had legal effect from the date upon which they were notified. I held in the procedural decision that the reference to rules having legal effect is a reference to when those rules must be complied with.

7 I also identified in the procedural decision that s86D(2) RMA enables a local authority to apply either before or after notification of a proposed plan for a Rule to have legal effect from a date other than the date on which decisions on submissions relating to the Rule are made and notified. I noted in the procedural decision that s86D does not specify any process to be followed by the Court in determining whether or not it ought allow rules to become operative at an earlier date nor the matters to be taken into account in determining such an application.

8 In summary, therefore I conclude that:

• • It was the intention of Parliament that, as a matter of common practice, rules in a proposed plan would not have legal effect until parties who might be affected by those rules had had the opportunity to make submissions on them and have their submissions heard and determined by the local authority;

• • Nevertheless, it was recognised by Parliament that there were situations where it might be appropriate for rules to have legal effect earlier;

• • One of those situations was where the Environment Court made an order to that effect;

• • The absence of any specific criteria or matters to be considered by the Court indicates that the Court has a wide discretion in determining whether to grant or refuse an application pursuant to s86D(2). As with any discretion exercised by the Environment Court it ought be exercised on a principled basis and having regard at all times to the purpose of RMA contained in s5.

9 The genesis of PC15 is a document entitled Final Frame Work for Growth adopted by the Council in March 2008 which sought to identify the needs of the district for urban expansion for the next 20 years. The FFG was the outcome of a Land Supply Review commenced by the Council in 2006 and addressed the supply of residential and employment land in New Plymouth, Bell Block, Waitara, Inglewood, Okato, Onaero and Egmont Village. In addition to the FFG the Oakura Structure Plan and Urenui Structure Plan recommended future urban growth areas for those townships. All of the areas identified above are included in PC15.

10 Although it is likely to commonly be the case that particular plan changes will be seen as important or significant by the local authority proposing them, it is apparent on perusing the documents provided by the Council in this case that PC 15 is part of a strategic process being undertaken by the Council to meet the reasonably foreseeable urban growth needs of the district.

11 PCI5 seeks to accommodate those needs by bringing down a Future Urban Development Overlay (FUD) which identifies the areas which the Council considers most suitable to accommodate future urban growth in and around the various towns and townships described above. PC 15 seeks to impose constraints on activities which might be undertaken on land identified in the FUD Overlays pending the introduction of site specific plan changes which will seek to rezone the identified areas to give effect to the Council's growth intentions.

12 PC 15 of itself does not seek rezoning of the areas in question. It identifies the areas where the Council anticipates or intends that future growth will occur and seeks to impose interim controls pending rezoning of those areas. In particular, it seeks to control development such as subdivision to ensure that subdivision patterns are not inconsistent with the likely long-term development requirements of the identified areas. Subdivision is however not the only activity which will be subject to new controls or rules under PC15.

13 In his supplementary affidavit Mr Versteeg addressed a number of matters out of the procedural decision.

14 Firstly, he advised that PC 15 was publicly notified in October 2010. That has now been done(20 November 2010)

15 Secondly, he advised that Council had notified two site specific plan changes (PCs 18 and 25) which sought to rezone identified areas of Inglewood and New Plymouth which have been identified by the FUD overlay. Additionally, a third plan change relating to an area in or near New Plymouth which has been identified is subject to negotiation between the landowner and the Council to develop a structure plan as part of progressing an intended plan change.

16 Thirdly, Mr Versteeg provided a comparison of Rules in the present District Plan and those contained in PC 15 in tabulated form, enabling a comparison of the new Rules and the status quo. Table 1 of Mr Versteeg's supplementary affidavit identified three categories of activity which he claimed would be affected by the relevant Rules having legal effect, namely:

• • Erection of structures;

• • Hazardous substances;

• • Subdivision of land.

17 Insofar as erection of structures was concerned the most substantial changes appeared to relate to erection of structures associated with intensive pig farming, intensive poultry farming, or industrial activity. Under the District Plan in its present form such structures could be classified as permitted, controlled or restricted discretionary activities. Under PC 15 they will become non-complying activities. The constraints are to apply not only on land contained within the FUD Overlays but also within 2,500m of such Overlays in the case of intensive pig farming, 600m for intensive poultry farming and 500m for industrial activity. I accept that these are significant constraints on the...