Re Application by Queenstown Airport Corporation Ltd

 
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Decision No. [2013] NZEnvC 95

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J E Borthwick

Environment Commissioner R M Dunlop

Environment Commissioner D J Bunting

(ENV-2011-WLG-41)

In the Matter of the Resource Management Act 1991 (the Act) and of an application under section 149T of the Act

Between
Queenstown Airport Corporation Limited
Applicant
Appearances:

D A Kirkpatrick and R M Wolt for Queenstown Airport Corporation Ltd

J G A Winchester for Queenstown Lakes District Council (regulatory)

Dr R J Somerville QC and R A Davidson for Remarkables Park Ltd

Final decision in respect of the applicant's notice of requirement to extend Designation 2 (the Aerodrome Designation) — notice of requirement stated it was required to ensure the continued efficient functioning of the Queenstown Airport through expansion of the Aerodrome to meet projected growth — interim decision found work and designation were reasonably necessary for achieving the objectives of the requiring authority but only 9.75 ha of the original 19.1 ha to be designated were required — whether the EC had jurisdiction under s149U(4) Resource Management Act 1991 (“RMA”) (consideration of matter by EC — cancel, confirm or modify requirement) to part confirm, modify or impose conditions in respect of the balance land — whether the word “cancellation” used in the Court's order could be read to mean “modification” — whether the order should be recalled and amended to read “modified” under the slip rule — whether the lapsing period for the designation should be five or ten years under s184 RMA (lapsing of designations which have not been given effect to).

Held: A notice of requirement could not be cancelled in part. Section s149U(4) RMA required that the court confirm the requirement, modify it or impose conditions. If it confirmed, then it could modify or impose conditions.

In the Interim Decision the court had infelicitously employed the term “cancelled” to record in Order A. It was plain from reading the Interim Decision that Order A concerned the extent of land required and not the notice of requirement per se. When the decision was read as a whole, and its words were not considered in isolation from their context, that was the only possible meaning of Order A. Recalling the decision to amend Order A to read “modified” was not necessary.

The Court could not be said to be functus officio in terms of Order A because it could not know with any certainty what precise area of land was not to be confirmed and therefore cancelled or modified. RPL's submission that limiting the extent of the designation could not be a modification as it would alter the essential nature or character of the requirement was also not accepted.

It was an inefficient and costly exercise to require QAC to lodge a new notice of requirement where the court had a power to modify the notice by reducing the extent of land required and where the court was satisfied that the modification did not render the requirement inconsistent with what was notified.

In respect of the lapsing period of the designation, no guidance was given as to the principles that were to be applied in determining a period different to the 1–5 year period mentioned in the RMA. The discretion had to be exercised in a principled manner, after considering all of the circumstances of a particular case. QAC's reasons for a 10 year lapsing period were not known. In the absence of any cogent evidence addressing these matters, the statutory lapse period of five years was confirmed.

In the Interim Decision, QAC was directed to propose conditions which required QLDC at the outline plan of works stage to consider the extent to which the outline plan of works gives effect to the Integrated Design Management Plan and achieves the relevant objectives. It was highly likely it would engage a landscape architect at this stage. A report from a landscape architect was an important step in establishing achievement of these objectives and that the requirement to produce a report should be tied to the relevant condition. RPL's proposed conditions were modified accordingly. Concerns on traffic safety had been satisfactorily addressed.

The notice of requirement was modified by excluding land required for works associated with either the operation of Code D aircraft or the operation of a precision approach instrument runway.

FINAL DECISION OF THE ENVIRONMENT COURT

A: The notice of requirement is modified by excluding land required for works associated with either the operation of Code D aircraft or the operation of a precision approach instrument runway. The extent of the Designation is shown in Figure 1 Aviation Precinct Concept Detail (Optimised) Code C TaxiwaySeparation 93m, dated 9 November 2012, attached to and forming part of this decision,

B: Subject to the modification of the notice of requirement and the conditions attached to this decision, the notice of requirement to extend Designation 2 is otherwise confirmed.

REASONS

Introduction
1

This is the Final Decision of the court in respect of Queenstown Airport Corporation Limited's notice of requirement to extend Designation 2 (the Aerodrome Designation). The court released its Interim Decision 1 on this proceeding in September 2012 and the hearing was resumed for the purpose of determining the conditions on the Designation and the lapsing period that is to apply.

2

Notwithstanding the fact that the Interim Decision has been appealed, all parties are agreed that the court should release its final decision and, in the circumstances, we also consider this an appropriate course. And so in this decision we address the conditions that are to apply to the designation extension, the lapsing period for the designation and a legal issue raised by Remarkables Park Ltd during the resumed hearing, namely the cancellation of the designation,

The cancellation in part of the notice of requirement
3

During the course of the resumed hearing on conditions, RPL submitted that the court did not have jurisdiction to confirm the notice of requirement; it submitted that the court could only cancel the notice of requirement because of the wording of Order A in the court's Interim Decision. As all other parties were caught by surprise with this submission, directions were made that counsel identify the issues to be determined in relation to the scope of the court's powers and file further submissions.

4

The issues identified for the court's determination are as follows:

  • (a) does the Environment Court have jurisdiction to part confirm, modify or impose conditions in respect of the balance land?

  • (b) can the word “cancellation” in Order A be read to mean “modification”?

  • (c) can Order A be recalled and amended to read “modified” under the slip rule? 2

5

Submissions were filed by Queenstown Airport Corporation (QAC), Remarkables Park Ltd (RPL), Queenstown Lakes District Council (QLDC) and Air New Zealand Ltd (Air New Zealand).

Context of the legal arguments
6

QAC has given notice of its requirement to extend Designation 2 (the “Aerodrome Designation”). The location of the extension is described in the notice and its attachments (Figure 1 and Appendix 1). 3 The notice of requirement states that it is “required to ensure the continued safe and efficient functioning of the Queenstown Airport through expansion of the Aerodrome to meet projected growth”. 4 Secondly, the requirement to expand the Designation is the result of growth projections for aircraft operations and operational requirements over the next 30 years.

7

The objective for the notice of requirement is found in Annexure 2 and states “…this NOR is to provide for the expansion of Queenstown Airport to meet projected growth while achieving the maximum operational efficiency as far as practicable”. 5 The nature of the works within the aerodrome designation is described in the notice; these works do not include those associated with either the operation of Code D aircraft from Queenstown Airport or the operation of a precision approach instrument runway. 6 The parties will recall their submissions on this matter, RPL drawing the court's attention to the fact that these activities were not included within the scope of works. 7

8

In the Interim Decision the court found (relevantly):

  • (a) the objective of the notice of requirement is “to provide for the expansion of Queenstown airport to meet growth while achieving maximum operational efficiency as far as possible”;

  • (b) there is insufficient land within the aerodrome designation to develop an instrument precision approach runway, southern parallel taxiway for Code D aircraft and to develop a general aviation/helicopter precinct;

  • (c) Queenstown Airport is, and will remain, an instrument non-precision approach runway;

  • (d) airline manufacturers will respect the existing Codes when planning new and upgraded aircraft so that aircraft can continue to operate within the constraints of existing airport infrastructure. 8 The evidence tended against the proposition airlines would seek to operate Code D at Queenstown Airport;

  • (e) the court noted that the traffic witnesses appeared to have identified a smaller area of land required for carparking, circulation and landscaping than had been required under the notice of requirement. The parties were directed to file memoranda addressing whether this land was surplus...

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