Re Application by Queenstown Airport Corporation Ltd

JurisdictionNew Zealand
JudgeJudge J E Borthwick,R M Dunlop,D J Bunting
Judgment Date08 May 2013
Neutral Citation[2013] NZEnvC 95
CourtEnvironment Court
Docket Number(ENV-2011-WLG-41)
Date08 May 2013

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

Decision No. [2013] NZEnvC 95

Court:

Environment Judge J E Borthwick

Environment Commissioner R M Dunlop

Environment Commissioner D J Bunting

(ENV-2011-WLG-41)

BEFORE THE ENVIRONMENT COURT

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).

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 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 Taxiway Separation 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 to the requirement. This particular land requirement was to be considered together with the court's general directions on landscaping;

  • (f) pursuant to section 171(1)(c) the court held that a general aviation/helicopter precinct south of the main runway is reasonably necessary in order for the notice of requirement's objective to be achieved. 9 However, there is no nexus between this objective and the enablement of Code D aircraft operating at Queenstown Airport. And likewise, there is no nexus between this objective and the provisioning for an instrument precision approach runway. Therefore, these works and designation are not reasonably necessary for achieving QAC's objective. 10 Of the original 19.1 hectares of land proposed to be designated, approximately 9.75 hectares of land was not required. 11

9

The court was unable to make a final decision in relation to the balance of the land and reserved its decision. As noted above, pursuant to section 171(1)(c) the court held that a general aviation/helicopter precinct south of the main runway is reasonably necessary in order for the notice of requirement's objective to be achieved. 12 However, on the evidence, the court found the proposal inconsistent with relevant provisions of the District Plan in that the proposed traffic management arrangements for the western access created risk to the safety of pedestrians and to the motoring public. The court presented a solution for the consideration of the parties, with leave reserved for the parties to call further evidence addressing this topic. 13 The court also found that QAC had prioritised its operational requirements without giving adequate consideration to how development of the precinct would address the surrounding landscape and urban context. Because of that the court was unable to conclude that confirming the notice of requirement would achieve the purpose of the Act. 14 In relation to the topic of landscape the Court directed that the parties confer and propose an Integrated Design Management Plan. Confirmation of the requirement was contingent upon QAC satisfactorily addressing the court's concerns. 15

10

This decision has been delayed as the conditions proposed by the parties following the resumed hearing were unworkable and did not adequately address the court's concerns in relation to the management of access to the new precinct,

Appeals to the High Court
11

While QAC and RPL have appealed the Interim Decision the court understands QAC's position to be that the notice of requirement's objective can be achieved notwithstanding the court's decision that land is not required for works associated with either Code D aircraft or the operation of a precision approach instrument runway.

12

With this background outlined, we turn next to the three issues posed for the court's determination.

Issue: Does the Environment Court have jurisdiction to part confirm, modify or impose conditions in respect of the balance land?
RPL's position
13

RPL submits that section 149U(4)(b)(iii) is clear; while a notice of requirement can be confirmed with or without modifications and conditions being imposed, the modifications and conditions must relate to the confirmation of the requirement and...

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