Auckland Council v Matvin Group Limited
[2023] NZHC 2481
•6 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-835
[2023] NZHC 2481
UNDER the COVID-19 Recovery (Fast-Track Consenting) Act 2020 IN THE MATTER
of an appeal against a decision of an Expert Consenting Panel under the Act to approve resource consents for the Botanic Riverhead project
BETWEEN
AUCKLAND COUNCIL
Appellant
AND
MATVIN GROUP LIMITED
First Respondent
MARAETAI LAND DEVELOPMENT LIMITED
Second Respondent
Hearing: 15 August 2023 Appearances:
S F Quinn for Appellant
J Brabant and S Darroch for First Respondent
R E Bartlett KC and V J Toan for Second RespondentJudgment:
6 September 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 6 September 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
AUCKLAND COUNCIL v MATVIN GROUP LIMITED [2023] NZHC 2481 [6 September 2023]
[1] This is an appeal by Auckland Council (Council) against a decision of the Expert Consenting Panel (Panel) dated 29 March 2023 (Panel decision) granting, subject to conditions, the land use and subdivision consents sought by Matvin Group Limited (Matvin) to establish a retirement village and associated facilities at 1092 Coatesville, Riverhead Highway, Riverhead, Auckland.1 Matvin is the first respondent. The second respondent is Maraetai Land Development Limited (Maraetai). It is the registered owner of an adjoining property and supports Matvin’s application for land use and subdivision consents.
[2] The decision was made by the Panel under the COVID-19 Recovery (Fast- Track Consenting) Act 2020 (FTA).2 The proposal was referred to the Panel by the Minister for Environment under the FTA. This appeal is brought under sch 6 cl 44 of the FTA, which enables appeals on questions of law only.
Background
[3] The proposal is for land use and subdivision consents to establish a retirement village and associated facilities. The proposal consists of the development of 422 residential units, 88 care beds and associated facilities, and a separate childcare facility and café. The site is zoned Future Urban Zone (FUZ) in the Auckland Unitary Plan (operative in part) (AUP) and required a number of consents as a non-complying activity within that zone.
[4] Because the application was processed under the FTA, the Resource Management Act 1991 (RMA) public notification and hearing process was replaced by a streamlined notice and comments process. The Council provided its position to the Panel in writing and took part in expert conferencing. No formal hearing took place in this case.3
1 Record of decision of the Expert Consenting Panel under clause 37, schedule 6 of the COVID-19 Recovery (Fast-Track Consenting) Act 2020, concerning land use and subdivision consents to establish a retirement village and associated facilities at 1092 Coatesville, Riverhead, Auckland, 29 March 2023 [Panel Report].
2 Repealed on 8 July 2023 by s 3(1).
3 COVID-19 Recovery (Fast-Track Consenting) Act 2020, sch 6 cl 20.
The planning context
[5] The subject site is in two records of title and has an area of approximately 10 hectares. It is currently being used to grow strawberries in fields bordered by large shelterbelt trees. The site contains an existing single storey farmstead and several accessory buildings. It is described as overgrown and in an untidy state.
[6] The site forms part of 80 hectares of land at Riverhead that is zoned Future Urban in the AUP. The eastern boundary of the site is adjacent to the existing urban edge of Riverhead. The housing to the east of the site consists predominately of one to two storey dwellings. The adjoining land to the west zoned Future Urban is similarly used for horticulture. Under the Future Urban Land Supply Strategy, the FUZ land at Riverhead is sequenced to be “development ready” in 2028 to 2032 with supporting infrastructure in place. “Development ready” means the area has been structure planned, has a “live” AUP zoning, and bulk infrastructure (transport, water, wastewater) is available to service urban development.
[7]The FUZ is described in the AUP as follows:
H18.1 Zone description
The Future Urban Zone is applied to greenfield land that has been identified as suitable for urbanisation. The Future Urban Zone is a transitional zone. Land may be used for a range of general rural activities, but cannot be used for urban activities until the site is rezoned for urban purposes.
[8]There are four objectives and six policies set out as follows:
H18.2 Objectives
(1)Land is used and developed to achieve the objectives of the Rural – Rural Production Zone until it has been rezoned for urban purposes.
(2)Rural activities and services are provided for to support the rural community until the land is rezoned for urban purposes.
(3)Future urban development is not compromised by premature subdivision, use or development.
(4)Urbanisation on sites zoned Future Urban Zone is avoided until the sites have been rezoned for urban purposes.
H18.3 Policies
(1)Provide for use and development which supports the policies of the Rural – Rural Production Zone unless that use and development is inconsistent with policies H.18.3(2) to (6).
(2)Enable activities that are reliant on the quality of the soil or require a rural location to operate or which provide for the day to day needs of the local rural community.
(3)Require subdivision, use and development to maintain and complement rural character and amenity.
(4)Avoid subdivision that will result in the fragmentation of land and compromise future urban development.
(5)Prevent the establishment of more than one dwelling on a site except for the provision for minor dwellings and workers’ accommodation.
(6)Avoid subdivision, use and development of land that may result in one or more of the following:
(a) structures and buildings of a scale and form that will hinder or prevent future urban development;
(b) compromise the efficient and effective operation of the local and wider transport network;
(c) require significant upgrades, provisions or extension to the wastewater, water supply, or stormwater networks or other infrastructure;
(d) inhibit the efficient provision of infrastructure;
(e) give rise to reverse sensitivity effects when urban development occurs;
(f) give rise to reverse sensitivity effects in relation to existing rural activities or infrastructure; or
(g) undermine the form or nature of future urban development.
Panel decision
[9] As summarised by the Panel, the key issues arising from the proposal were whether:4
(a)The proposal was premature before the site was rezoned for urban development, and therefore contrary to the AUP provisions; and
4 Panel Report at [5].
(b)The proposal was suitable for the site and its effects on the surrounding neighbourhood could be managed at an acceptable level through conditions of consent.
[10] The Panel issued a split decision with a majority of two (Mr P Cooney and Mr R Kirikiri) finding that:5
(a)Approving the development would not be contrary to relevant objectives and policies in the AUP.
(b)Any actual or potential adverse effects from the construction and operation of the retirement village facility on the site could be adequately avoided, remedied or mitigated through conditions of consent.
(c)The development (Option B – four storey main building and three storey apartment buildings) was overall suitable for the site.
(d)The construction and operation of the retirement village complex and associated facilities would create employment opportunities and provide social and economic benefits to the community at Riverhead and the wider area.
[11] Panel member Dr L Beattie provided a dissenting view, considering that the application should be refused because:6
(a)The application failed to meet both limbs of s 104D of the RMA gateway test; because the adverse effects of activity on the environment would be more than minor and it was contrary to the AUP provisions.
(b)It was questionable whether the proposal met the purpose of the FTA.
5 Panel Report at [6].
6 Panel Report at [190]–[193].
Approach on appeal
[12] As a question of law appeal concerning a resource consent decision, counsel submits that the case law principles on question of law appeals under s 299 of the RMA are relevant, even though the appeal is made under the FTA. I agree.
[13] The tests for a question of law appeal under the RMA were recently summarised by the High Court in Speargrass Holdings Limited v FPM & DMJ Van Brandenburg as trustees of the Flax Trust, as follows: 7
(a)Appeals to the High Court are on questions of law and must be confined to points of law and not invite re-examination of the merits of the Environment Court’s decision;
(b)The High Court will not interfere with the decision unless it can be shown that the Environment Court has applied a wrong legal test, come to a conclusion without evidence or one to which on the evidence it could not reasonably have come, took into account irrelevant matters, or failed to take into account relevant matters;
(c)The High Court may also set aside a decision as a matter of law if the Environment Court has not relevantly applied the principles of natural justice;
(d)The High Court is slow to interfere with a decision of the Environment Court within its specialist area.
[14] An error of law, if established, must be material to one of the Court’s ultimate determinations in order for relief to be granted.
Grounds of appeal
[15]The Council raises five questions of law:
7 Speargrass Holdings Ltd v FPM & DMJ Van Brandenburg as trustees of the Flax Trust [2021] NZHC 3391 at [110]–[116].
(a)Did the Panel err in finding that the overall purpose of the FUZ was to preclude activities that may compromise future urban development?
(b)Did the Panel err in finding that the proposal was not contrary to the objectives and policies of the AUP under s 104D(1)(b)(i) of the RMA?
(c)Did the Panel err in finding that because Regional Policy Statement (RPS) Policies B2.2.2(3) and B2.2.2(8) were ‘enabling’ they were not offended by the proposal?
(d)Did the Panel err by taking into account irrelevant matters in finding that granting resource consent would not give rise to precedent and plan integrity issues?
(e)Did the Panel err by failing to take into account a relevant consideration, being whether the proposal was consistent with the purpose of the FTA, in terms of whether it would promote employment urgently?
First question of law
Did the panel err in finding that the overall purpose of the FUZ was to preclude activities that may compromise future urban development?
[16]The crucial finding of the Panel is expressed as follows:8
In our reading of the objectives and policies of the FUZ, we consider the overall purpose is to preclude activities that may compromise future urban development.
[17] The Panel cites two of the FUZ Policies in support of its finding – H18.3(4) and H18.3(6).
[18] It acknowledges that some provisions “pull in a different direction” and “appear to support a blanket restriction on urban development”.9 It cites Objective
8 Panel Report at [163].
9 Panel Report at [165].
18.2(4), which states, “[u]rbanisation on sites zoned Future Urban Zone is avoided until the sites have been rezoned for urban purposes”. The Panel acknowledges Matvin’s proposal is inconsistent with Objective 18.2(4), but states that Objective 18.2(4) is to be read alongside Objective H18.2(3) and Policies H18.3(4) and H18.3(6).
[19]The Panel then states:10
When the Objectives and Policies for the FUZ are read as a whole we are unable to accept the provisions direct that no urban development is to be allowed in the FUZ pending its urbanisation.
We are not persuaded in our assessment of the provisions that a strict literal interpretation of the provisions should be taken as contended by Auckland Council. Rather the overall intent and purpose of the provisions is to avoid new development in the FUZ that is likely to compromise planned urbanisation.
Appellant’s submissions
[20] The Council submits that the Panel disregarded the plain and ordinary meaning of Objective H18.2(4). ‘Avoid’ is a strong word, meaning ‘not allow’ or ‘prevent the occurrence of’. This objective requires that urbanisation simply not occur until the site has been rezoned for urban purposes. The Council then cites Objective H18.2(1), which, it says, was not considered by the Panel. The Council also submits that the policies support the proposition that the land is to be used for a range of rural production, rural industries and rural commercial activities and not urban purposes until after the land has been rezoned. It cites H18.3(3), (5) and (6) as the most directive policies.
[21] The Council submits that instead of finding that urban development was not allowed in the zone, the Panel wrongly interpreted and applied the FUZ provisions in a way that would enable any urban development (as opposed to rural development) to proceed in the FUZ prior to a structure plan and plan change process provided that development was not considered to conflict with or limit the future urbanisation of the area. On the Panel’s reading of the provisions, any urban development would be ‘anticipated’ despite the transitional nature of the FUZ.
10 Panel Report at [167]–[168].
Respondents’ submissions
[22] Matvin submits that the Panel did not err in its interpretation and application of the FUZ provisions when considering the application for consent. It submits that the Panel’s approach needs to be considered in totality. The Panel made reference to the activities already allowed for in zone and observations by the Environment Court in Albert Road Investments Ltd v Auckland Council.11 Matvin submits that the Panel’s holistic approach was entirely appropriate. It cannot be said that in the context of the FUZ that no urban use or development can occur at all.
[23] Matvin submits that Objective H18.2(3) effectively acknowledges that there is a spectrum of effects from subdivision, use or development, and it is only those forms of development which compromise future urban development which are of concern. Matvin acknowledges that its proposal is inconsistent with the three other listed objectives (H18.2(1), (2) and (4)) in the context of it progressing prior to rezoning, but on the basis the Panel found the proposed development on its merits delivers an appropriate urbanised outcome, then it cannot be said that the proposal is contrary to the objectives as a package.
[24] As to the six listed policies, Matvin submits that Policies H18.3(1) and (2) are enabling. The proposal does not advance use, development or activities which rely on those provisions, but neither is it contrary to them. Policy H18.3(3) requires the maintenance of rural character and amenity, but the Panel formed the view that the effect of the proposal which included effects on rural character and amenity, were appropriate. Policy H18.3(4) does not prevent urbanisation. The “avoid” terminology used is expressly conditional. With respect to Policy H18.3(5), more than one dwelling will be established on the site, which is an outcome inherent in the delivery of future urban development which strategic planning documents envisaged for the land. Finally, Policy H18.3(6) sets out a list of effects to be avoided. Like H18.3(4), the “avoid” terminology is expressly conditional. Those effects are addressed by the Panel. Matvin submits that in the context of the effects findings, the proposal cannot be said to be contrary to Policy H18.3(6).
11 Albert Road Investments Ltd v Auckland Council [2018] NZEnvC 102.
[25] Maraetai supports the Panel’s approach to the interpretation of the objectives and policies in the FUZ. The case of Albert Road Investments Ltd is of most relevance.12 In that case the Environment Court held that the FUZ did not intend to put a freeze on the development of land pending structure planning and urban rezoning. The FUZ “allows some tolerance for land development.”
Discussion
[26] Both parties accept that the relevant principles applying to District Plan interpretation are identified in Powell v Dunedin City Council.13 Reference was also made to Environmental Defence Society v New Zealand King Salmon Company Ltd,14 in which the Supreme Court finds that “avoid” is a strong word, meaning “not allow” or “prevent the occurrence of” and that policies “expressed in more directive terms will carry greater weight than those expressed in less directive terms”.
[27] The Panel and both parties also referred to the Environment Court’s decision in Albert Road Investments Ltd,15 in which the Court approved a proposal for a two lot subdivision in a FUZ. In Albert Road Investments Ltd the Court concluded that it is not correct to characterise the FUZ as only providing for activities that are “rural in nature”. It did not intend to put a freeze on the capacity to use and develop land pending structure planning and urban rezoning. It allowed some tolerance for land development. The more significant issue was how much (if any) non-rural development of FUZ land was intended.
[28] However, I do not see the Albert Road Investments Ltd case as directly applicable to the present case. It was on a completely different scale, being a two lot subdivision. The consent notice also prohibited urbanisation of the subdivided land until a plan change had been completed. The decision does not provide justification for such intensive urbanisation ahead of rezoning as is proposed.
12 Albert Road Investments Ltd v Auckland Council, above n 11.
13 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [35].
14 Environmental Defence Society v New Zealand King Salmon Company Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [24], [92]–[93] and [129].
15 Albert Road Investments v Auckland Council, above n 11.
[29] The Panel criticises the “strict literal” interpretation of the FUZ provisions taken by the Council. However, words are generally to be given their natural or ordinary meanings. The Panel also says that they do not read the Zone description as being absolute.16. However, I view the Zone description as a synthesis of the objectives and policies. It is quite clear in its meaning. It succinctly states in three sentences:
The Future Urban Zone is applied to greenfield land that has been identified as suitable for urbanisation. The Future Urban Zone is a transitional zone. Land may be used for a range of general rural activities but cannot be used for urban activities until the site is re-zoned for urban purposes.
The Zone description uses the words, “cannot be used”, not “can perhaps be used” or “may be used.”
[30] Objective H18.2(4) is similarly quite clear – “Urbanisation on sites zoned Future Urban Zone is avoided until the sites have been rezoned for urban purposes.”
[31] As noted by the Supreme Court in the New Zealand King Salmon case,17 “avoid” is a strong word meaning “not allow” or “prevent the occurrence of”.
[32] I agree with the Environment Court in Albert Road Investments Ltd18 that the FUZ allows some tolerance for land development. Objective H18.2(1) allows development to achieve the objectives of the Rural – Rural Production Zone until it has been rezoned for urban purposes so long as such development does not compromise future urban development (Objective H18.2(3)). Non-rural development of FUZ land is not envisaged.
[33] Matvin’s strongest argument relies on Objective H18.2(3) – “Future urban development is not compromised by premature subdivision, use or development”. However, the position taken by Matvin requires the objective to be interpreted as including the word “urban” before the word “development”, such that the objective reads, “Future urban development is not compromised by premature … urban development”. The more logical interpretation is that the word “development” in
16 Panel Report at [162].
17 Environmental Defence Society v New Zealand King Salmon Company Ltd, above n 14.
18 Albert Road Investments Ltd v Auckland Council, above n 11.
H18.2(3) refers to development which is specifically allowed by Objective H18.2(1) to achieve the objectives of the Rural – Rural Production Zone.
[34] Looking then to the policies of the FUZ, the only development specifically allowed is development which supports the policies of the Rural – Rural Production Zone unless that development is inconsistent with policies H18.3(2) to (6), (H18.3(1)). Policy H18.3(3) requires development to maintain and compliment rural character and amenity. Policy H18.3(5) prevents the establishment of more than one dwelling on a site except for the provision for minor dwellings and workers’ accommodation. Finally, Policy H18.3(6) requires the avoidance of development of land that may result in one or more of seven specified results, one of which is to undermine the form or nature of future urban development.
[35]Again, quite strong words are used – “require”, “avoid” and “prevent”.
[36] In interpreting the FUZ provisions, it is not a question of weighing up the various objectives and policies for and against urban development. There are no provisions specifically allowing urban development.
[37] Here I agree with the dissenting opinion of the Panel Member, Dr Lee Beattie, when he states:19
This policy framework (Objectives and policies) sets a very high threshold test of “avoiding” urbanisation until these issues can be appropriately addressed. In my view the current proposal represents ad hoc development, (non-sequenced and un-funded urban growth) which pre-determines the most appropriate form of urban growth for the site and the wider Riverhead area as a whole, thereby being contrary to both the intent and actual wording of the District Plan section of the AUP (Operative in Part) and therefore failing the ‘policy’ gateway test at s 104D.
[38] I am therefore persuaded that the Panel made an error of law in finding that the overall purpose of the FUZ was to preclude activities that may compromise future urban development. The overall purpose of the FUZ is as a holding zone and to provide a transition from rural to urban use and development. The zone recognises
19 Panel Report at [196].
the need for comprehensive and intentional design for soon-to-be urban areas. Until rezoned urban, the primary set of activities that are to occur in the FUZ are rural.
[39]The first question of law is answered “yes”.
Second question of law
Did the Panel err in finding that the proposal was not contrary to the objectives and policies of the AUP under s 104D(1)(b)(i) of the RMA?
[40] Section 104D of the RMA provides for particular restrictions for non- complying activities. It provides a dual gateway through which a non-complying activity must pass before a consent authority may grant a resource consent. Either:
(a)the adverse effects of the activity on the environment … will be minor (the effects gateway); or
(b)the application is for an activity that will not be contrary to the objectives and policies of the relevant plan (the policy gateway).
[41] It was common ground between the parties that the construction and operation of the facility would have moderate adverse effects on the surrounding environment. The proposal was, therefore, unable to satisfy the first limb of s 104D(1)(a).
[42] The panel found that in terms of s 104D(1)(b), the construction and operation of the retirement facility on the site would not be contrary to the objectives and policies of the AUP and therefore it met the second limb of s 104D(1)(b).
Appellant’s submissions
[43] The Council submits that not only did the Panel misinterpret the provisions of the FUZ, but it applied the wrong test. It submits that the relevant objectives and policies require that urbanisation does not occur in advance of rezoning. The development of 422 residential units, 88 care beds and associated facilities and a separate childcare facility and café was clearly contrary to the relevant objectives and policies.
[44] The Council further submits that the Panel asked itself the wrong question by considering whether Matvin’s proposal was inconsistent with Objective H.18.2(4). It held it was. But it did not ask itself whether the proposal was contrary to Objective H18.2(4), which it was required to do when considering the “policy” gateway in s 104D(1)(b).
Respondents’ submissions
[45] Matvin submits that a conclusion on whether a proposal is contrary to the relevant objectives and policies must be reached in the context of a consideration of the objectives and policies as a whole. It cites the case of Akaroa Civil Trust v Christchurch City Council, in which the Environment Court stated:20
We add that it is rare for a consent authority, or the court, to base its decision either way, on a single objective or policy. The usual position is that there are sets of objectives and policies either way, and only if there is an important set to which the application is contrary can the local authority rightly conclude that the second gate is not passed.
[46] Matvin submits that in relation to Objective H18.2(4), while the Panel considered the proposal to be inconsistent with that objective, it did not find it to be contrary. In the context of s 104D(1)(b), a conclusion of inconsistency is not sufficient to fail the policy gateway. Matvin submits that the Panel was correct to take a holistic approach to consideration of the s 104D test.
[47] Matvin also refers to comments in Wilson v Whangarei District Council in which the Environment Court noted:21
[35] It is self-evident that a non-complying activity will rarely, if ever, find direct support in the objectives and policies of a plan, but an absence of support does not equate to the activity being contrary to these provisions.
[48] In conclusion, Matvin submits that as a transitional zone, the ultimate outcome for FUZ land is urban use. There is no requirement for the proposal to satisfy each individual objective and policy. The proposal was not contrary to the plan.
20 Akaroa Civil Trust v Christchurch City Council [2010] NZEnvC 110 at [74].
21 Wilson v Whangarei District Council EnvC W020/07.
[49] Maraetai submits that the assessment requires more than just isolating one or two policies with which the proposed activity may be inconsistent. A non-complying activity may not find direct support from any specific provisions in the AUP but may still not be contrary to the objectives and policies. An absence of support or ambivalence does not equate to “contrary to” and “contrary” means opposed to in nature, different, opposite to.
Discussion
[50] Having been persuaded that the Panel made an error of law in finding that the overall purpose of the FUZ was to preclude activities that may compromise future urban development, I have little difficulty in also finding that the Panel erred in finding that the proposal was not contrary to the objectives and policies of the AUP under s 104D(1)(b)(i) of the RMA.
[51] Here it is important to note that urban activities are not prohibited entirely in the FUZ, but that based on the directiveness of the policies and the non-complying activity status, it is only those urban activities that have minor or less than minor effects on the environment that may be granted consent by means of the effects gateway in s 104D(1)(a).
[52] However, large scale urban developments such as the proposal, which have more than a minor effect on the environment, are contrary to the objectives and policies of the FUZ. Objectives H18.2(1), (2) and (4) are directive. I agree with the Council that simply pointing to Objective H18.2(3) as a directive policy that seeks to enable any subdivision, use or development, provided future urban development is not compromised, does not undo the clear requirements of the other three objectives or creates a conflict that needs to be reconciled when undertaking a s 104D(1)(b) analysis. Rather than enabling development, objective H18.2(3) requires that any development that may be enabled does not compromise future urban development.
[53] The proposal is also contrary to Policies H18.3(3), (5) and (6). Policy H18.3(3) requires any development to maintain and compliment rural character and amenity. The Panel placed little weight on this requirement. Although it acknowledged that the rural characteristics of the site could be maintained until an urban zone is applied to
the FUZ, it stated that any perceived loss of rural character would be of limited duration until the area became urbanised. As the Council observes, if temporary effects were acceptable, the policy would serve no purpose.
[54] Policy H18.3(5) is also quite clear. “Prevent the establishment of more than one dwelling on site”. The proposal is clearly contrary to this policy. Finally, Policy H18.3(6) is not conditional, but instead reflects the situation where development is to be avoided. It is illustrative of the scale of urban development that may be able to proceed prior to rezoning. The proposal is clearly contrary to this policy.
[55]The second question of law is answered “yes”.
Third question of law
Did the Panel err in finding that because RPS Policies B2.2.2(3) and B2.2.2(8) were “enabling” they were not offended by the proposal?
[56] In addition to considering the FUZ provisions at length, the Panel gave limited consideration to two policies contained in AUP’s Urban Growth and Form Regional Policy Statement (RPS) provisions – Policies B2.2.2(3) and B2.2.2(8). These two policies provide:
B2.2 Urban Growth and Form B2.2.2
(3) Enable rezoning of future urban zoned land for urbanisation following structure planning and plan change processes in accordance with Appendix 1 Structure plan guidelines.
(8) Enable the use of land zoned future urban within the Rural Urban Boundary or other land zoned future urban for rural activities until urban zonings are applied, provided that the subdivision, use and development does not hinder or prevent the future urban use of the land.
[57] The Panel found that both policies were enabling rather than directory, and that Matvin’s proposal if granted would not offend the relevant objectives and policies in the RPS. Having said that, the Panel noted that the focus of the planning evidence before them centred on the FUZ objectives and policies.
Appellant’s submissions
[58] The Council refers to Southern Cross Healthcare Ltd v Eden Epsom Residential Protection Society, in which the High Court stated, in respect of the meaning of the word “enable” in the RPS of the AUP, that: 22
[118] The use of the word “enable” does not mean that the policies provide no direction. It is not as if the Council is at liberty to ignore the policies. Ms Hartley, counsel for the Council, implicitly acknowledged this when she said that the Council ‘had to’ make provision for the activities in the policies (more correctly, had to enable the activities).
…
[121] I therefore consider that policies B2.8.2(1) – (4) are directive. I also consider the policies are expressed in strong directive language. The policies do not use weak directive language as “take account of”. “Enable” is more directive than other verbs used in relation to positive outcomes, such as ‘encourage’ or ‘promote’. Strong direction is consistent with chapter B2’s statement of issues and principal reasons.
[59] The Council submits that the Panel failed to consider the wording of the policies and what they are seeking to enable. Policy B2.2.2(3) seeks to enable rezoning of FUZ land following a plan change, which is not consistent with the application (which precedes a plan change). Policy B2.2.2(8) seeks to enable rural activities on FUZ land until urban zonings are applied, which is not consistent with the application (because it is not a rural activity).
Respondents’ submissions
[60] Matvin accepts that the word “enable” does not mean that the policies provide no direction. However, the action required of Council is that provision for specified activities is made. Council has put in place provisions which provide a pathway to rezoning as required by B2.2.2(3). Council has also put in place zone provisions which enable the use of the land in question for rural activities as required by B2.2.2(8). The proposal has no effect on plan provisions put in place as required by these policies.
[61] Matvin submits that although the Panel dealt with the RPS policies in three short paragraphs, it did not fail to consider what the policies enabled. The matters
22 Southern Cross Healthcare Ltd v Eden Epsom Residential Protection Society Incorporated [2023] NZHC 948.
were squarely engaged with in the application material and in the legal memorandum provided by Matvin’s counsel.
[62] Matvin notes that most of the RPS objectives and policies are pitched at a high level – with a focus on urban form. Considered in the round (looking beyond only these which reference land zoned future urban), Matvin submits that its proposal responds successfully to them. Matvin submits that its proposal is deserving of consent by reference to the lower order plan provisions which, in essence, means that it is also deserving of consent by reference to the RPS.
[63] Maraetai submits that the Panel’s findings that the application is consistent with these policies is correct in that the application does not interfere with the rezoning of the FUZ land following structure planning and plan change processes and the application does not hinder or prevent the future urban use of the application site because the proposed use of the application site is consistent with a future live urban zoning.
Discussion
[64] Clauses 31(1)(c) and 29(2) of Schedule 6 of the FTA required the Panel, when considering a consent application in relation to a referred project, to have regard to a RPS. The Panel’s assessment of the relevant RPS is limited and integrated with its findings on the AUP provisions.
[65] However, I am not persuaded that the Panel fell into error by misinterpreting and misapplying RPS Policies B2.2.2(3) and B2.2.2(8). Policy B2.2.2(3) is an enabling policy for rezoning. Although using directive language, the policy’s focus is the Council, rather than Matvin or any other landowner applicant. Structure planning has been undertaken by the Council. Any rezoning process would not be hindered by Matvin’s application.
[66] Similarly, Policy B2.2.2(8) is another enabling policy directed primarily at the Council. Rural use is enabled in the relevant AUP provisions. The rural uses are subject to a theoretical limitation that they not hinder or prevent the future urban use of the land. Matvin’s application does not change the uses enabled in the FUZ.
[67]The third question of law is answered “no”.
Fourth question of law
Did the Panel err by taking into account irrelevant matters in finding that granting resource consent would not give rise to precedent and plan integrity issues?
[68] The Council has always taken the position that a grant of resource consent in the present case would give rise to precedent and plan integrity issues. In considering this issue, the Panel made reference to Rodney District Council v Gould,23 in which the High Court acknowledged that granting a consent for a non-complying activity that is found to be contrary to objectives and policies in a planning document is likely to give rise to issues of public confidence in the administration of the plan and the plan integrity.
[69] The Panel did, however, consider that the proposal had a number of factors that distinguished it from the generality of other cases:
(a)the development will not result in the fragmentation of FUZ land. The proposal is a comprehensive development over the one site.
(b)a retirement village is an appropriate activity for the intended use of the land for residential development at Riverhead as identified in strategic planning documents.
(c)the proposal is not contrary to the objectives and policies of the FUZ in the AUP.
(d)the proposal will not give rise to infrastructure issues.
(e)the proposal will provide positive social and economic benefit to Riverhead and the wider area.
23 Rodney District Council v Gould [2006] NZRMA 217 (HC).
(f)it is unlikely this proposal will trigger other retirement applications at Riverhead.
(g)a private plan change has been lodged with Council.24
(h)urbanisation at Riverhead may occur sooner than 2028.
[70] The Panel, therefore, found that granting resource consent would not give rise to precedent and plan integrity issues.
Appellant’s submissions
[71] Council submits that the potential for a precedent to be created can be a relevant factor under s 104(1)(c) of the RMA when considering a resource consent application, on the basis that like cases will be treated alike and Council will consistently administer the provisions of its District Plan. Section 104(1)(c) of the RMA is analogous to cl 31(1)(d) of Schedule 6 of the FTA and the law on precedent in the RMA context can be applied in the present case.
[72] Council submits that the last four factors listed above in [69](e), (f), (g) and (h), which the Panel took into account were irrelevant as a matter of law. The positive effects of the proposal ([69](e)) are not factors about this proposal that could not be replicated elsewhere in the FUZ.
[73] Other retirement villages in Riverhead ([69](f)), are not a relevant matter to consider when determining precedent effects. Rather, it is urban development occurring out of sequence in the FUZ.
[74] Council further submits that the private plan change ([69](g)) and the implication of that plan change, being that urbanisation at Riverhead may occur sooner than 2028 ([69](h)), were not legally relevant matters to the determination of the application. This was accepted by the Panel elsewhere in its decision.25
24 Fletcher Living and the Neil Group have lodged a Plan Change Request for all of the 80 ha of FUZ land at Riverhead, including the subject site to be “live zoned” in accordance with a draft structure plan.
25 Panel Report at [145].
Respondents’ submissions
[75] Matvin acknowledges that whether a private plan change had been lodged with Council, and whether urbanisation at Riverhead might occur sooner than 2028, are not relevant matters. However, Matvin submits that the two other factors asserted by Council to be irrelevant are considerations which can lawfully be considered in combination with the other identified factors to determine that the proposal was outside the generality of cases. Matvin submits that, even if the Court found that two of the eight factors were irrelevant, there are still sufficient (and appropriate) reasons why precedent issues do not arise such that the Panel’s decision in this respect is not materially undermined.
[76] Maraetai submits that precedent only arises as an issue if granting consent is likely to have an adverse effect on public confidence in the consistent administration of the District Plan or the integrity of the District Plan. Granting consent to a proposal that does not comply with one or more parts of the District Plan does not result automatically in an adverse precedent effect. Not all precedents are adverse.
Discussion
[77] The granting of a resource consent has no precedent effect in the strict sense.26 In factual terms, no two applications are ever likely to be the same, although one may be similar to another. It is also not necessary for a proposed non-complying activity to be truly unique before planning integrity ceases to be a potentially important or decisive factor in granting an application.27
[78]In Gould, the Environment Court stated:28
In an appropriate case the Environment Court can decide that there are aspects of a proposal which takes it outside the generality of cases, so that the case may be seen as exceptional, and if it can be said that the proposal was not contrary to the objectives and policies of the district plan, it will not be necessary also to consider and make findings on the issues of public confidence in administration of the district plan and plan integrity.
…
26 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [32].
27 Rodney District Council v Gould, above n 23 at [90] and [102].
28 Rodney District Council v Gould, above n 23 at [90] and [102].
But if a case is truly exceptional, and can properly be said to be not contrary to the objectives and policies of the district plan, such concerns may be mitigated or may not even exist.
[79] In Neil Construction Ltd v Rodney District Council the Court considered the circumstances under which an application for a non-complying activity might fall outside of the generality of cases, saying:29
This Court has long been concerned that consent to non-complying activities can threaten the integrity of planning documents and their consistent administration unless there is some feature of the application which takes it outside the generality of cases (Batchelor v Tauranga District Council). That approach was upheld by the High Court in that case, and has been reiterated comparatively recently by that Court in Rodney District Council v Gould. In this case, it is agreed by all parties that the application satisfies the requirement of not being contrary to the objectives and policies of the relevant planning documents. Far more, the planning witness called by the Aurora Green Society agreed that it was consistent with the intention of the Future Urban Zone, even though it is non-complying. That in itself takes this application beyond the generality of cases.
(footnotes omitted)
[80] I am not persuaded that the Panel erred in a material way by taking into account irrelevant factors in finding that granting resource consent would not give rise to precedent and plan integrity issues. It was open to the Panel to consider that the application was outside the generality of cases based on the application, reports and other information before them. The merits of that decision are not open to challenge in the context of this appeal on a question of law.
[81]The fourth question of law is answered “no”.
Fifth question of law
Did the Panel err by failing to take into account a relevant consideration, being whether the proposal was consistent with the purpose of the FTA, in terms of whether it would promote employment urgently?
[82] Clause 31 of Schedule 6 of the FTA sets out the matters to which the Panel must have regard when considering consent applications. These are expressed to be subject to the purpose and principles of the RMA and the purpose of the FTA.
29 Neil Construction Ltd v Rodney District Council EnvC Auckland A35/06, 27 March 2006 at [75].
[83]The purpose of the FTA is:30
[T]o urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19 and to support the certainty of ongoing investments across New Zealand, while continuing to promote the sustainable management of natural and physical resources.
[84]The Panel concluded:31
We are satisfied the Project will meet the purpose of the FTA by providing significant employment opportunities and economic and social benefits for the Riverhead community and wider area.
Appellant’s submissions
[85] The Council submits that the Panel did not appropriately consider the purpose of the FTA in reaching its decision to grant consent to the proposal because it did not expressly consider the timeframe within which the proposal would promote employment and investment. Matvin proposed an eight-year construction period. Council submits that the proposal will, therefore, not deliver the significant employment opportunities and economic and social benefits “urgently”.
Respondents’ submissions
[86] Matvin submits that the Panel did turn its mind to the purpose of the FTA and concluded that the proposal was consistent with that purpose. The word “urgently” must be taken in context. Matvin submits that the FTA urgently promotes employment by providing a streamlined consent process. The expediated consenting process also includes a reduced two-year lapse date for an FTA consent requiring a consent holder to act quickly once a consent is obtained.
[87] Maraetai submits that the purpose of the FTA includes both the urgent promotion of employment and support for the certainty of ongoing investment in New Zealand. The eight year timeframe comprises eight years of employment and investment. The application clearly meets the purpose of the FTA.
30 COVID-19 Recovery (Fast-Track Consenting) Act 2020, s 4.
31 Panel Report at [184].
Discussion
[88] I am not persuaded that the Panel made an error of law in failing to make a specific finding as to whether the timeframe of the proposal met the directive that the proposal “urgently” promote employment. The Panel had both an Assessment of Environmental Effects (AEE) report in which it was noted that the proposed development was “shovel ready” and an Economic Assessment report by Urban Economics Ltd. This report disclosed construction of the retirement village would generate 850 FTE jobs,32 and add $113 million to the construction sector GDP over the construction phase. Once the retirement village was operational, it would create 64 FTE jobs on an on-going basis.
[89] The FTA does not define the word “urgently” nor does the FTA seek to distinguish the type of employment promoted. Moreover, the word “urgently” relates to the verb ‘promote’, not to the verb ‘provide’. To my mind the proposal “urgently” promotes employment and will, in due course, provide employment. I also agree with counsel for Matvin that the fast-track consenting process itself urgently promotes employment and with counsel for Maraetai as to the certainty of ongoing investment across New Zealand.
[90]The fifth question of law is answered “no”.
Result
[91] Having concluded that the Panel erred in law with respect to the first two grounds advanced by the Council, I allow the appeal, for the forgoing reasons and on the basis that those errors materially affected the outcome of the Panel’s decision.
[92] Pursuant to r 20.19(1)(b) of the High Court Rules 2016, the Panel’s decision of 29 March 2023 is quashed. Matvin’s application for land use and subdivision consents to establish a retirement village and associated facilities at 1092 Coatesville, Riverhead Highway, Riverhead, Auckland, is referred back to the Panel for
32 This number can be interpreted as the number of FTE jobs created on an annualised basis (that is, if construction took eight years and was split evenly between the years, then 106 FTE jobs would be created each year).
reconsideration in terms of this judgment. I consider that remitting the decision back to the Panel best serves the interests of justice, having regard to the Panel’s proximity to the material and specialist expertise.33
Costs
[93] Auckland Council is entitled to costs. If they cannot be agreed, the parties are to file memoranda within six weeks after the date of this judgment and a costs decision will be made on the papers.
Woolford J
Solicitors: DLA Piper (S Quinn), Auckland
Anthony Harper (L Van), Auckland Glaister Ennor (V Toan), Auckland
Counsel: J Brabant, Auckland
R Bartlett KC, Auckland
33 Commissioner of Inland Revenue v Morris [1998] 1 NZLR 344 (HC) at 23-24.
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