Palmerston North Industrial and Residential Developments Ltd (env-2013-wlg-000069)
| Jurisdiction | New Zealand |
| Judge | B P Dwyer,A C E Leijnen,J R Mills |
| Judgment Date | 04 February 2014 |
| Neutral Citation | [2014] NZEnvC 17 |
| Court | Environment Court |
| Date | 04 February 2014 |
In The Matter of applications for declarations pursuant to s311 of the Resource Management Act 1991
(env-2013-wlg-000069)
(ENV-2013-WLG-000073)
[2014] NZEnvC 17
Environment Judge B P Dwyer
Environment Commissioner A C E Leijnen
Environment Commissioner J R Mills
BEFORE THE ENVIRONMENT COURT
Application for a declaration that a proposed plan change be put on hold pending completion of the airport noise review, and that it be amended to incorporate all of the applicant's land into the Proposed Urban Growth Area — application by the Council that any evaluation under s32 Resource Management Act 1991 (requirements for preparing and publishing evaluation reports) to rezone to residential any land within the Urban Growth Path had to assess the scale of reverse sensitivity effects on the Palmerston North Airport; the economic impact of reverse sensitivity effects on the Airport and could not assume the land would be served by infrastructure — applicant owned land zoned as rural but was subject to a notation showing that the land formed part of the Urban Growth Path — whether the applicant's submissions were on the plan change and within the jurisdiction of the plan change.
M J Slyfield for Palmerston North Industrial and Residential Developments
J W Maassen and N Jessen for Palmerston North City Council
R J Fowler QC for Palmerston North International Airport Ltd (s274 party)
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A: Declarations declined
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B: Costs reserved
On 24 September 2013, Palmerston North Industrial and Residential Developments Ltd (PNIRDL) applied to the Court for declarations in the following terms:
1. In respect of the written submission dated 21 June 2013 lodged by Palmerston North Industrial and Residential Developments Limited in response to Proposed Plan Change 6 to the Palmerston North City District Plan (the submission):
(a) The relief sought in paragraph 16(a), and the matters raised in all associated paragraphs, are within the jurisdiction of Plan Change 6;
(b) The relief sought in paragraph 16(b), and the matters raised in all associated paragraphs, are “on” Plan Change 6 within the meaning of clause 6(1) of Schedule 1 to the Resource Management Act;
(c) The relief sought in paragraph 16(c), and the matters raised in all associated paragraphs are “on” Plan Change 6 within the meaning of clause 6(1) of Schedule 1 to the Resource Management Act.
It will be seen from the above that the declarations sought relate to issues raised in paragraphs 16(a), (b) and (c) of a submission filed by PNIRDL in response to a Proposed Plan Change 6 (PPC6) 1 to the Palmerston North City District Plan (the District Plan). The matters raised in the relevant paragraphs were as follows:
16. PNIRDL seeks one of the following outcomes, or — to the extent that the outcomes may be complementary to each other — a combination of some of the following outcomes:
(a) That PC 6 be put on hold pending completion of the airport noise review.
(b) That PC6 be amended to incorporate into the Proposed Urban Growth Area all of PNIRDL's land on its own or in any combination with some or all of
(i) the land to the west of PNIRDL's land that forms part of the Operative Urban Growth Area,
(ii) the land to the south of PNIRL's land that forms part of the Operative Urban Growth Area,
(iii) the land that was notified as the Proposed Urban Growth Area. Such amendments would include:
• amending the zoning maps and structure plan to reflect the new growth boundaries,
• adding airport noise provisions (policies and rules/standards) that would apply to land inside the Outer Control Zone resulting in airport noise controls no more onerous than under operative R 10.7.1.1.(h),
• adding text to specify that the airport noise contours are shortly to be reviewed, and
• Making only consequential amendments as may be required for consistency with the changes described above.
(c) Any alternative relief that enables PNIRDL's land, on its own or in combination with some or all of
(i) the land to the west of PNIRDL's land that forms part of the Operative Urban Growth Area,
(ii) the land to the south of PNIRDL's land that forms part of the Operative Urban Growth Area,
to be subject to urban growth provisions equivalent to those proposed for the Proposed Urban Growth Area, and additional performance standards for Airport Noise Control no more onerous than those under Operative R
We will return in further detail to these matters in the Background section of this decision.
The other parties to these proceedings, Palmerston North City Council (the Council) and Palmerston North International Airport Ltd (the Airport Company) did not oppose the relief sought under Application 1(a) (paragraph 16(a) submission), but opposed the relief sought under paragraphs 1(b) and (c) of the application (paragraphs 16(b) and 16(c) — submission) 2.
The PNIRDL application triggered the filing of an application for declarations by the Council on 14 October 2013. The Council sought declarations in the following terms:
[1] The Palmerston North City Council applies for the following declarations:
(a) Any evaluation under RMA, s32 on a proposal under RMA, Schedule 1 to rezone to residential any land within the Urban Growth Path — Kelvin Grove in Map 9.1 of the Operative Palmerston North District Plan (not within the Whakarongo Residential Area under Proposed Plan Change 6);
(i) N Must assess the scale of reverse sensitivity effects on the Palmerston North Airport;
(ii) Must assess the economic impact of reverse sensitivity effects on the Palmerston North Airport;
(iii) Must not assume the land will be served by infrastructure (other than by means of connections to existing services where sufficient capacity exists) funded by Palmerston North City Council unless the Palmerston North City Council expressly provides for that infrastructure by a decision made under the Local Government Act 2002 where available network capacity is limited;
(iv) Must assess the nature, timing and provision of water, wastewater and stormwater infrastructure necessary to service the area for residential use;
(v) Must evaluate the option against other options for urban growth available in Palmerston North.
On 3 December 2013, counsel filed a joint statement advising that PNIRDL Declaration 1(a)/16(a) had been agreed to by all parties (subject to some amendments
and one area of residual dispute) so that a declaration could be made on those matters. In paras 1(a)/16(a) PNIRDL sought that PPC6 be put on hold pending completion of an airport noise review. We were informed that the Council has in fact put PPC6 on hold. We advised the parties during the course of the hearing that in our view the issue of putting PPC6 on hold was an administrative matter for the Council and was not the appropriate subject of a declaration by the Court. We understood Mr Slyfield to accept our view in that regard and we do not propose to take that aspect of the application any furtherThe joint statement advised that the declarations sought by PNIRDL in paragraphs 1(b)/16(b) and 1(c)/16(c) remained in dispute and we will return to the context of those applications in the Background section of this decision.
For the sake of completeness, we record that it was agreed by the Council that if we declined to make the declarations sought by PNIRDL in paragraphs 1(b)/16(b) and 1(c)/16(c) on the basis that the relief sought in those respective paragraphs was not on PPC6, then there was no need for the Court to make the declarations sought by the Council.
PNIRDL owns a parcel of land containing 23.8ha adjacent to the corner of Kelvin Grove Road and Stoney Creek Road bordering the north-eastern corner of Palmerston North City's residential area known as Kelvin Grove. The land is zoned Rural in the District Plan.
In addition to its Rural zoning, PNIRDL's land (together with adjacent Rural Zone land owned by other parties) is subject to a notation contained in Map 9.1 and referred to in the Rural chapter of the District Plan showing that the land forms part of an Urban Growth Path (UGP). The UGP notation contained in Map 9.1 has been included in the District Plan since it was first notified in 1995 3. We were told that at that time it was the Council's preferred urban growth node for Palmerston North, by virtue of its proximity to the city and generally flat contour 4.
The UGP notation does not constitute a zone and does not contain within it any rules directing the form of urban growth which might be undertaken within the UGP. The UGP land is generally subject to the same Objectives, Policies and Rules as all other Rural Zone land in the District Plan with one addition. Section 9 — Rural Zone contains one Objective together with related Policies and Explanation which relate specifically to the UGP land, namely:
1.1 To protect the urban growth path for the City identified in Map 9.1.
1.2 To ensure, as far as possible, that existing urban land is fully utilised before the rural land contained within the identified urban growth path is released for urban purposes.
1.3 To ensure that the urban conversion of the land contained within the
identified urban growth path proceeds in an orderly manner.
1.4 To avoid, where possible, the fragmentation of land contained within the identified urban growth path into small blocks.
It is important that future urban expansion within the City is carefully managed in order to ensure that...
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