Palmerston North Industrial and Residential Developments Ltd (env-2013-wlg-000069)

 
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[2014] NZEnvC 17

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge B P Dwyer

Environment Commissioner A C E Leijnen

Environment Commissioner J R Mills

In The Matter of applications for declarations pursuant to s311 of the Resource Management Act 1991

BETWEEN
Palmerston North Industrial and Residential Developments Limited

(env-2013-wlg-000069)

Applicant
Palmerston North City Council

(ENV-2013-WLG-000073)

Applicant
Counsel/Appearances:

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)

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.

The issue was whether PNIRD's relief was on the plan change and within the jurisdiction of the plan change.

Held: Other than signalling an ultimate intention that the land be used for the City's anticipated urban growth requirements, the Objective and Policies did not seek to enable any particular form of urban growth or development on the UGP land but rather sought to protect the UGP land from fragmentation until such time as it was required for that growth or development. The provisions were clearly restrictive rather than permissive and effectively land banked the land for future undefined urban development.

Clearwater Resort Limited v Christchurch City Council, High Court, Christchurch, AP34/02, 14th March 2003 identified the preferred approach to determining whether or not a submission was on a plan. A submission could only be regarded as “on” a variation if it addressed the extent which the variation changed the pre-existing status quo. If the effect of such a submission would be to permit a planning instrument to be amended without real opportunity for participation by those potentially affected, that could count against any argument that the submission was truly “on” the variation.

PPC6 did not amount to a rezoning of the land within the UGP, nor did it propose any amendments to the Rules applicable to Rural Zone land within the UGP. The remedies sought by PNIRD were effectively seeking rezoning by asking for inclusion of PNIRD land for residential growth or by making the PNIRD land (and possibly other land within the UGP) subject to urban growth provisions allowing residential development.

PNIRD's submission incorrectly presumed that its land was presently included within the UGP and identified as appropriate for residential growth. The notation indicated that the land contained within the UGP was appropriate for urban growth. The term urban growth was not defined in the District Plan. However, the District Plan defined urban areas as land zoned Residential, Business, Industrial, Institutional or Recreation. It was clear from the definition that urban activities extended considerably beyond just residential activity. The change to the status quo brought about by the plan change was removal of identification of the PNIRD land as being suitable for any form of urban growth, not just residential growth.

Section 79(3) RMA (review of policy statements and plans — if, after reviewing the provision, the local authority considered that it did not require alteration, the local authority must still publicly notify the provision as if it were a change and in the manner set out in Part Schedule 1) did not help PNIRD. It was clear from the documents that the Council had not reviewed nor made any determination as to matters pertaining to the rural zoning of the UGP land at Kelvin Grove as part of its Sectional Review under s32 RMA. There was nothing in the s32 RMA evaluation which gave rise to any suggestion that rezoning or rule amendment in respect of the UGP land was a likely outcome of the PPC6 process. Consideration of a s32 RMA analysis was only one way of considering whether or not a submission was on a plan change.

The PNIRD submissions were not on PPC6.

  • A: Declarations declined

  • B: Costs reserved

DECISION ON APPLICATIONS FOR DECLARATIONS
Introduction
1

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.

2

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.

3

The other parties to these proceedings, Palmerston...

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