The Attorney-General v Alan Parekura Torohina Haronga

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date19 December 2016
Neutral Citation[2016] NZCA 626
Docket NumberCA353/2015
Date19 December 2016

[2016] NZCA 626

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France P, Harrison and Cooper JJ

CA353/2015

CA545/2015

BETWEEN
The Attorney-General
Appellant
and
Alan Parekura Torohina Haronga
First Respondent

and

Aitanga A Mähaki Trust
Second Respondent

and

Waitangi Tribunal
Third Respondent

and

David Donald Harry Brown
Fourth Respondent
BETWEEN
Venerable Timoti Flavell
Appellant
and
Waitangi Tribunal
First Respondent

and

The Attorney-General
Second Respondent
Counsel:

CRW Linkhorn, C D Tyson and A J Allan for Appellant (CA353/2015) and Second Respondent (CA545/2015)

P J Radich QC, K S Feint and M S Smith for First and Second Respondents (CA353/2015)

R N Zwaan and B R Lyall for Third Respondent (CA353/2015) and First Respondent (CA545/2015)

Appeals relating to decisions made by the respondent and Independent Hearings Panel (“IHP”) relating to the Auckland Unitary Plan (“AUP”) — the appeals related to Urban Growth, Rural Urban Boundary, Residential Zones, Rezoning and Precincts — whether the IHP interpreted its statutory duties contained in Part 4 Local Government (Auckland Transitional Provisions) Act 2010 (“LGATPA”) (process for development of first combined plan for Auckland Council) lawfully, when deciding whether its recommendations to the defendant were within the scope of submissions made in respect of the first Auckland Combined Plan — whether the IHP had a duty to identify specific submissions — whether it was lawful for the IHP to determine the scope of submissions by reference to another submission — to what extent were principles (regarding the question of scope) established under the Resource Management Act 1991 case law relevant — whether the IHP correctly applied the legal framework in the test cases — were the appellants'/applicants' allegations against the respondent concerning the IHP's determination on issues of scope appealable pursuant to the LGATPA and/or reviewable — what relief could the High Court grant the appellants/applicants if the IHP and/or the respondent had acted unlawfully in respect of the IHP's determination on an issue of scope under the LGATPA.

The issues were: whether the IHP interpreted its statutory duties contained in Part 4 Local Government (Auckland Transitional Provisions) Act 2010 (“LGATPA”) (process for development of first combined plan for Auckland Council) lawfully, when deciding whether its recommendations to the defendant were within the scope of submissions made in respect of the first Auckland Combined Plan; whether the IHP had a duty to identify specific submissions; whether it was lawful for the IHP to determine the scope of submissions by reference to another submission; to what extent were principles (regarding the question ofscope) established under the Resource Management Act 1991 (“RMA”) case law relevant; whether the IHP correctly applied the legal framework in the test cases; whether the appellants'/applicants' allegations against the respondent concerning the IHP's determination on issues of scope appealable pursuant to the LGATPA and/or reviewable; and what relief could the High Court (“HC”) grant the appellants/applicants if the IHP and/or the respondent had acted unlawfully in respect of the IHP's determination on an issue of scope under the LGATPA.

Held: The question of scope raised two related issues of legality and fairness. Legality was concerned with whether the IHP had adhered to the statutory requirement to identify all recommendations that are outside the scope of submissions pursuant to s144(8) LGATPA (hearings Panel must make recommendations to Council on proposed plan). Fairness concerned whether affected persons had been deprived of the right to be heard. The IHPhad not misinterpreted its duties on the issue of scope in either respect, having regard to the words and text used at s144 LGATPA, informed by purpose and context, including the scheme of Part 4 LGATPA and the relevant parts of the RMA. The IHP approach addressed the relevant statutory criteria, was consistent with the RMA's policy of public participation, accorded with the schemes of Part 4 LGATPA and relevant parts of the RMA, largely conformed with orthodox jurisprudence dealing with scope and was not materially inconsistent with the approach and principles set out in Clearwater Resort Ltd v Christchurch City Council and Palmerston North City Council v Motor Machinists Ltd.

The IHP had framed its scope decision employing a similar definition of necessary from Environmental Defence Society Inc v Mangonui County Council (“necessary is a fairly strong word falling between expedient or desirable on the one hand and essential on the other) when it expressed the requirement for the consequential relief to be “necessary” in two ways, the consequential changes must be “necessary and desirable” and “foreseen as a direct or otherwise logical consequence of a submission.

Part 4 LGATPA incorporated the Schedule 1 process from the RMA (preparation, change, and review of policy statements and plans) save that it did not require service of a public notice on directly affected persons and unlike the usual RMA processes, there were no full rights of appeal to the Environment Court except for recommendations that were out of scope or in respect of recommendations rejected by the Council. A process for re-notification of out of scope changes pursuant to s293 RMA was also removed. The IHP's integrated approach to scope accorded with that scheme and more broadly with the orthodox top down and integrated approach to resource management planning demanded by the RMA. Provided the lower order recommendation was a reasonably foreseen logical consequence of the higher order submission, taking such an integrated approach to scope was lawful. A submission on the PAUP was not likely to be out of scope if the relief raised in the submission was not specifically addressed in the original s32 RMA (requirements for preparing and publishing evaluation reports) report. The primary function served by s32 RMA was to ensure that the Council had properly assessed the appropriateness of a proposed planninginstrument, including by reference to the costs and benefits of particular provisions prior to notification. The s32 report RMA was amenable to submissional challenge and there was no presumption that the provisions of the proposed plan were correct or appropriate on notification. The IHP had not erred by failing to determine scope strictly by reference to the options considered in the s32 RMA reports. The IHP was not constrained by the s32 RMA reportage forthe purpose of establishing whether a submission was “on” the PAUP.

In accordance with relevant statutory obligations, the IHP had correctly adopted a multi-layered approach to assessing scope, having regard to numerou considerations, including context and scale (a 30 year plan review for the entire Auckland region), preceding statutory instruments (including the Auckland Plan), the s32 RMA reportage, the PAUP, the full gamut of submissions, the participatory scheme of the RMA and Part 4 LGATPA, the statutory requirementto achieve integrated management and case law as it related to scope. That culminated in an approach to consequential changes premised on a reasonably foreseen logical consequence test which accords with the longstanding Countdown Properties (Northlands) Ltd v Dunedin City Council “reasonably and fairly raised” orthodoxy and adequately responds to the natural justice concerns raised in Clearwater and Motor Machinists.

There was flaw in the IHP's reporting having regard to the provisions of s144 LGATPA in light of the statutory purpose, the scheme of Part 4 LGATPA andin context. Section 144 LGATPA did not expressly or by necessary implication require the IHP to identify and respond to specific submissions.

There was nothing wrong with approaching the resolution of issues raised by submissions in a holistic way, that was the essence of integrated management and the requirement to give effect to higher order objectives and policies pursuant to the RMA. It was entirely consistent with the RMA scheme to draw on specific submissions to resolve issues raised by generic submissions on the higher order objectives and policies and/or the other way around in terms offraming the solutions (in the form of methods) to accord with the resolution of issues raised by generic submissions. Framing the scope of general submissions to accord with the regional policy statement (“RPS”) and the cross pollination of submissions for the purpose of making recommendations was not per se unlawful.

The recommendations made by the IHP were reasonably and fairly raised by the submissions identified by the IHP. There was a sufficient basis for the recommendations given the full background to the submission process. The IHP was empowered under s144 LGATPA to make recommendations that are within or beyond the scope of submissions and was obliged to identify recommendations that were beyond scope. The Council was empowered to make decisions on the recommendations. It may accept or reject the recommendations. Section 148(3) LGATPA made it clear that the Council may accept recommendations that were beyond the scope of the submissions on the proposed plan.

The HC on appeal may, having found error of law, make any decision it thinks should have been made. The full corrective power on appeal avoided, where appropriate, the need to refer the relevant aspect of the decision back to the Council or IHP.

The IHP had interpret its statutory duties contained in Part 4 LGATPA lawfully, when deciding whether its recommendations to the Council were within the scope of submissions made in respect of the first Auckland Combined Plan. The IHP did not have a duty to identify specific submissions seeking relief onan area by area basis with specific reference to suburbs, neighbourhoods or streets or when it was exercising its powers to...

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