Box Property Investments Limited v The Expert Consenting Panel
[2025] NZHC 1773
•1 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002125
[2025] NZHC 1773
UNDER COVID-19 Recovery (Fast-track Consenting) Act 2020 IN THE MATTER OF
An appeal against a decision of an Expert Consenting Panel to refuse resource consent for the Quarterdeck Project
BETWEEN
BOX PROPERTY INVESTMENTS LIMITED
Appellant / Applicant
AND
THE EXPERT CONSENTING PANEL
Respondent
Hearing: 19 – 20 March 2025. Further submissions received 5 June 2025,
10 June 2025 and 12 June 2025.
Appearances:
A W Braggins for Appellant No appearance for Respondent
A F Buchanan and D K Hartley for Auckland Council and Watercare Services Ltd
A Cameron for Interested Party (Environmental Defence Society Incorporated)
L Slee for Interested Party (Cockle Bay Residents and Ratepayers Association)
S Pratt for Interested Party (Reydon Place Residents’ Society Incorporated)
J Brett as Interested PersonJudgment:
1 July 2025
JUDGMENT OF ANDREW J
This judgment was delivered by me on 1 July 2025 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BOX PROPERTY INVESTMENTS LTD v THE EXPERT CONSENTING PANEL [2025] NZHC 1773 [1 July 2025]
TABLE OF CONTENTS
Introduction [1]
The broad statutory context [6]
The FTCA [6]
Resource Management (Enabling Housing Supply and Other Matters)
Amendment Act 2021 [8]
The Resource Management Act 1991 (RMA) [10]
The project and the relevant planning context [16]
Approach on appeal [27]
Question 1 — Having regard to an irrelevant consideration [30]
Question 2 — Breach of natural justice [50]
Question 3 — Consideration of PC78 [68] Question 4 — Incorrect interpretation of s 77G(1) of the RMA [83] Question 5 — Incorrect weighting test [100] Question 6 — Incorrect interpretation and application of the SHZ [113] Question 7 — Incorrect interpretation and application of pt 2 of the RMA [120] The recent Court of Appeal decision — Glenpanel Development Ltd v
Expert Consenting Panel [126]
Conclusion and result [128]
Introduction
[1] This is an appeal on questions of law from a decision of an Expert Consenting Panel (the Panel) established under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA). The purpose of the FTCA is to provide a fast and simplified decision-making process for resource consent to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19, while continuing to promote sustainable management of natural and physical resources.1
[2] In the impugned decision, the Panel rejected the appellant’s, Box Property Investments Ltd (Box), application for resource consents to construct and subsequently subdivide 70 dwellings at 30 and 40 Sandspit Road, Howick (the project/ the Quarterdeck project). The Panel determined that, as a whole, the project was contrary to the relevant Residential-Single House Zone (SHZ) objectives and policies of the Auckland Unitary Plan (AUP). It held that “the proposed built form, bulk and resulting intensity” was not compatible with the existing or planned suburban character and not in keeping with the amenity values of the surrounding residential neighbourhood.
[3] There are seven questions of law to address. They include the following three principal issues:
(a)Did the Panel have regard to an impermissible (i.e. irrelevant) consideration, namely proposed legislative change? In contending that the Panel did, and thereby erred in law, Box relies on the seminal decision of Fitzgerald v Muldoon.2
(b)Did the Panel misdirect itself in its assessment of the relevance and status of Plan Change 78 (PC78) (i.e. PC78 to the AUP)?
1 Waipapa Bay Protection Society Inc v Ariki Tahi Sugarloaf Wharf Ltd [2023] NZHC 3379 at [6]. Also see: COVID-19 Recovery (Fast-track Consenting) Act 2020 [FTCA], s 4.
2 Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC).
(c)Did the Panel breach natural justice by failing to accord Box an opportunity to comment on an expert landscape report commissioned by the Panel?
[4] A key feature of the appeal is PC78. PC78 is an intensification planning instrument (IPI) intended to give effect to the Auckland Council’s (the Council) obligation under s 77G of the Resource Management Act 1991 (RMA) to incorporate medium density residential standards (MDRS) into its residential zones. That section was incorporated into the RMA by the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 (EHA). The new mandatory MDRS provisions support a shift to a more urban built character, including three-storey buildings.
[5] The said irrelevant and impermissible proposed legislative change arose from ministerial statements that signalled a legislative policy change in relation to intensification requirements with the MDRS becoming optional. The intent of the proposed policy change is to “give Councils more choice and flexibility”.
The broad statutory context
The FTCA
[6] Under s 12 of the FTCA, an application for resource consent made under the FTCA is determined by applying the process provided in s 6 of the FTCA, rather than the consent process of the RMA. A resource consent granted, confirmed or modified under the FTCA has the same force and effect as if it were granted, confirmed or modified under the RMA.3
[7] Summarising the provisions of the FTCA, this Court in Waipapa Bay Protection Society Inc v Ariki Tahi Sugarloaf Wharf Ltd held:4
The provisions of the RMA otherwise apply to the extent they are relevant and with any necessary modifications. The Panel’s consideration of a referred project is almost identical to the usual considerations of a consent authority
3 FTCA, s 12(2)(b) and (3)(b).
4 Waipapa Bay Protection Society Inc v Ariki Tahi Sugarloaf Wharf Ltd, above n 1, at [7].
under the RMA.5 The only substantive difference is the requirement for the Panel’s consideration to be subject to the purpose of the FTCA as well as the purpose of the RMA.
Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021
[8] The EHA was enacted to “rapidly accelerate the supply of housing where the demand for housing is high” to help “address some of the issues with housing choice and affordability” facing New Zealand’s largest cities.6 The EHA required territorial authorities in major cities to set more permissive land use regulations to enable greater intensification in urban areas by bringing forwarding and strengthening the National Policy Statement on Urban Development (NPS-UD).7
[9] In Kāpiti Coast District Council v Waikanae Land Company Ltd,8 Johnstone J held that the EHA was “clearly intended to override the implicit, historic inclination of territorial authorities not to establish district plans which provide sufficiently, in Parliament’s view, for more intensive residential housing development.”
The Resource Management Act 1991 (RMA)
[10]Section 77G(1) of the RMA reads:
Every relevant residential zone of a specified territorial authority must have the MDRS9 incorporated into that zone.
5 FTCA, s 12(10).
6 Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill 2021 (83-1), Explanatory Note.
7 The Proposed Plan Change 78 Information Sheets 7 and 8 (Qualifying Matters: Part 1 and Part 2) describe the NPS-UD as follows: “The government’s National Policy Statement on Urban Development (NPS-UD) came into force in August 2020 and was updated in May 2022. The NPS-UD directs Auckland Council to enable more building height and housing density within and around Auckland’s city centre, metropolitan centres and rapid transit stops such as train and busway stations. The NPS-UD also requires more building height and housing density within and around neighbourhood, local and town centres.”
8 Kāpiti Coast District Council v Waikanae Land Company Ltd [2024] NZHC 1654, [2024] NZRMA 466 at [54]. See also Live Wellington Trust v Wellington City Council [2025] NZHC 946.
9 Footnote added. The Proposed Plan Change 78 Information Sheets 7 and 8 (Qualifying Matters: Part 1 and Part 2) refer to the MDRS as follows: “Through the use of MDRS the government requires the council to enable medium-density housing across most of Auckland’s residential suburbs. Three dwellings of up to three storeys, including terrace housing and low-rise apartments, are to be permitted on most residential properties unless a ‘qualifying matter’ applies
… Four or more dwellings are to be enabled through a non-notified resource consent.”
[11] Under s 77G(5) a specified territorial authority must include the objectives and policies set out in sch 3A cl 6.
[12]Clause 6 of sch 3A of the RMA reads:
(1)A territorial authority must include the following objectives in its district plan:
Objective 1
(a)a well-functioning urban environment that enables all people and communities to provide for their social, economic, and cultural wellbeing, and for their health and safety, now and into the future:
Objective 2
(b)a relevant residential zone provides for a variety of housing types and sizes that respond to—
(i)housing needs and demand; and
(ii)the neighbourhood’s planned urban built character, including 3-storey buildings.
(2)A territorial authority must include the following policies in its district plan:
Policy 1
(a)enable a variety of housing types with a mix of densities within the zone, including 3-storey attached and detached dwellings, and low-rise apartments:
Policy 2
(b)apply the MDRS across all relevant residential zones in the district plan except in circumstances where a qualifying matter is relevant (including matters of significance such as historic heritage and the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga):
Policy 3
(c)encourage development to achieve attractive and safe streets and public open spaces, including by providing for passive surveillance:
Policy 4
(d)enable housing to be designed to meet the day-to-day needs of residents:
Policy 5
(e)provide for developments not meeting permitted activity status, while encouraging high-quality developments.
[13]Under s 77G(6):
A specified territorial authority may make the requirements set out in Schedule 3A or policy 3 less enabling of development than provided for in that schedule or by policy 3, if authorised to do so under section 77I.
[14]Section 77I provides:
A specified territorial authority may make the MDRS and the relevant building height or density requirements under policy 3 less enabling of development in relation to an area within a relevant residential zone only to the extent necessary to accommodate 1 or more of the following qualifying matters that are present:
…
(j) Any other matter that makes higher density, as provided for by the MDRS or policy 3, inappropriate in an area, but only if section 77L is satisfied.
[15] Pursuant to s 77L, a matter is not a qualifying matter (QM) under s 77I(j) unless the evaluation report required by s 32 also:
(a)identifies the specific characteristic that makes the level of development provided by the MDRS (as specified in Schedule 3A or as provided by policy 3) inappropriate in the area; and
(b)justifies why that characteristic makes that level of development inappropriate in light of the national significance of urban development and the objectives of the NPS-UD; and
(c)includes a site-specific analysis that:
(i)identifies the site to which the matter relates; and
(ii)evaluates the specific characteristic on a site-specific basis to determine the geographic area where intensification needs to be compatible with a specific matter; and
(iii)evaluates an appropriate range of options to achieve the greatest heights and densities permitted by the MDRS (as specified in Schedule 3A) or as provided for by policy 3 while managing the specific characteristics.
The project and the relevant planning context
[16] The project is a proposed integrated residential development (IRD)10 under both the operative SHZ in the AUP Operative in Part and the proposed residential mixed housing urban zone (MHUZ) under PC78 to the AUP. The project:
(a)consists of three four-storey apartment buildings up to 15.185 metres in height containing 58 residential units and 12 two-storey terraced houses up to 7.5 metres in height, with associated parking and access, including
13 open-air communal car parks for the terraced houses and 102 basement carparks for the apartments, 74 secure bicycle parks and a communal recreation area;11 and
(b)requires land use, subdivision and resource consents under the RMA and has an overall discretionary activity status.12
[17] As explained in its decision, of particular relevance to the Panel’s consideration of the application are cls 31 and 32 of sch 6 of the FTCA.13 Clause 31(1)(c) in combination with cl 29(2)(f) required the Panel to have regard to “a plan or proposed plan.”14 The AUP is a “plan” under the definition in s 43AA of the RMA. The definition of “proposed plan” in s 43AAC of the RMA includes a proposed plan change and an IPI. PC78 to the AUP, the Council’s IPI, was therefore a relevant consideration for the Panel.
[18] Because of the discretionary activity status, s 104B of the RMA was relevant to the Panel’s determination (by virtue of sch 6 cl 32 of the FTCA) and enabled the
10 “Integrated residential development” is defined in the Auckland Unitary Plan (AUP) as “A residential development on sites greater than 2,000 m2 which includes supporting communal facilities such as recreation and leisure facilities, supported residential care, welfare and medical facilities (inclusive of hospital care), and other non-residential activities accessory to the primary residential use”; see Auckland Council Auckland Unitary Plan Operative in Part [AUP] at J14.
11 Expert Consenting Panel Decision, 31 July 2024 [Decision] at [32]–[33].
12 Decision at [75]. While various resource consents were required, the overall activity status of the proposal was determined on the most restrictive rule that applied to the proposal.
13 Decision at [12]–[14].
14 FTCA, sch 6 cls 29(2)(f) and 31(1)(c).
Panel to grant or refuse consent.15 As the AUP is a combined plan, there are two interrelated levels of provisions relevant to the proposal. These were the higher order AUP regional policy statements provisions, and the lower order regional and district plan provisions. Of relevance to the appeal are:
(a)AUP district plan provisions (especially H3: Residential – SHZ); and
(b)PC78 proposed district plan provisions (H5: Residential – MHUZ).
[19] The site is zoned SHZ under the AUP and proposed to be zoned MHUZ under PC78.16 As noted above, following amendments introduced by the EHA, the RMA now requires specified territorial authorities, including the Council, to incorporate the MDRS (and the objectives and policies set out in sch 3A cl 6 of the RMA) into every “relevant residential zone”17 in their district.18 The MDRS enable up to three residential units of a three-storey height in relevant residential zones as a permitted activity without the need to obtain a resource consent where various specified “density standards” are complied with.
[20] Territorial authorities can modify the MDRS to make them less enabling of development if a QM applies to an area that would make higher density inappropriate.19 Broadly, QMs are planning, natural resource or infrastructure requirements or constraints that might make higher density inappropriate in an area.20 Council-initiated plan changes are needed to incorporate the MDRS into relevant residential zones in district plans. Under s 77G(3) of the RMA, when changing their plans for the first time, specified territorial authorities must use an IPI21 and the intensification streamlined planning process (ISPP) in pt 6 of sch 1 of the RMA. Under s 80F(1) of the RMA, the Council was required to notify its IPI before 20 August 2022.
15 See Glenpanel Development Ltd v Expert Consenting Panel [2025] NZCA 154 [Glenpanel CA] at [11]–[12]. This was a referred project under the FTCA and not a listed project. Listed projects do not have the equivalent of cl 32(1).
16 Decision at [44] and [47].
17 See definition of “relevant residential zone” in the Resource Management Act 1991 (RMA), s 2.
18 RMA, s 77G(1) and (5)(a).19 Section 77I.
20 Sections 77I–77L.
21 Section 80E.
[21] On 18 August 2022, to meet the requirements to incorporate the MDRS into relevant residential zones (and to give effect to Policy 3 and Policy 4 of the NPS-UD), the Council publicly notified its IPI, PC78, for public submissions as required by s 80F of the RMA.22
[22]PC78 has been prepared using the ISPP, and key features of the ISPP include:
(a)pre-notification consultation, notification, submissions and further submission steps;23
(b)a hearing of submissions, which must be held by an independent hearings panel (IHP) having the powers prescribed in sch 1 cl 98 of the RMA;24
(c)following the hearing of submissions, the IHP is required to make recommendations to the Council on submissions on PC78;25
(d)the Council must consider the IHP’s recommendations and decide whether to accept or reject each recommendation;26
(e)each rejected recommendation must be referred to the Minister for decision with reasons for rejecting the recommendation, and any alternative recommendation provided by the Council;27
(f)decisions of the Council and the Minister are to be publicly notified by the Council and the affected parts of the AUP will be deemed to have been approved by the Council under sch 1 cl 17 of the RMA and will become operative under cl 20 on the date of notification;28 and
22 This is not to be mistaken for the Council publicly notifying its decision in relation to PC78 (see below at [88] and [93]).
23 Schedule 1, cl 95(2).
24 Schedule 1, cls 96–98. These include the power to make recommendations outside the scope of submissions on an IPI.
25 Schedule 1, cl 99.
26 Schedule 1, cl 101(1).
27 Schedule 1, cl 101(2).
28 Schedule 1, cls 102(1), 104(2) and 106.
(g)there is no right of appeal.29 However, the right of judicial review is preserved.30
[23] There have been various directions pursuant to s 80L of the RMA in terms of when the Council is to notify decisions on the IHP’s recommendations on submissions on PC78. However, pursuant to the Resource Management (Direction for the Intensification Streamlined Planning Process to Auckland Council) Amendment Notice 2024, the Council currently has until 31 March 2026 to notify its decisions.31
[24] The PC78 also proposes that the Wastewater QM is applied to the site. As discussed in the valuation report for the Wastewater QM, that QM is intended to apply to sites where:32
(a)the site is serviced by a water supply and/or wastewater network where significant servicing constraints apply;
(b)the identified serving constraints will not be resolved in the next 10 years; and
(c)PC78 would result in development on the site that is greater in intensity compared to what the AUP zoning would enable prior to application of the MDRS.
[25] The purpose of the Wastewater QM is to require development of more than one dwelling per site to be assessed as a restricted discretionary activity. A restricted discretionary activity may be declined or granted with or without conditions, but only on the basis of matters over which the Council’s discretion is restricted.33
29 Schedule 1, cl 107.
30 Schedule 1, cl 108.
31 “Resource Management (Direction for the Intensification Streamlined Planning Process to Auckland Council) Amendment Notice 2024” (15 April 2024) New Zealand Gazette No 2024-sl1708.
32 Auckland Council “Water and Wastewater Servicing Constraints: Section 32 Report and section 77J and s 77L new (other matter) qualifying matter Evaluation Report”.
33 RMA, s 87A(3).
[26] Application of the Wastewater QM means that resource consent will be required for two or more dwellings per site, and specific consideration must be given to the servicing of the site from a water supply and/or wastewater perspective and where possible development of site-specific solutions.34
Approach on appeal
[27]The principles applicable in relation to questions of law are not in dispute.
[28] This Court in Auckland Council v Matvan Group Ltd35 held that the case law principles on questions of law appeals under s 299 of the RMA are relevant to appeals under the FTCA.
[29] The principles were recently summarised by this Court in Speargrass Holdings Ltd v FPM and DMJ Van Brandenburg as trustees of the Flax Trust.36 Appeals must be confined to points of law and not invite re-examination of the merits of the lower court’s decision. If an error of law is established, it must be material to one of the lower court’s ultimate determinations.37
Question 1 — Having regard to an irrelevant consideration
[30]At [49] of its decision, the Panel held:
Given the emphasis placed on PC78 by the applicant, the Panel considers it relevant and necessary to consider the current position in respect of the PC78 statutory hearing process and recent government reforms announced in relation to residential intensification.
[31]At [63], the Panel held:
As referred, PC78 is at an early stage in the planning process and hearings will not occur until April 2025. It is yet to be tested through that hearing process. Meanwhile, the MDRS rules are not effective because of the QM applying at Cockle Bay. In addition, the government has clearly signalled a policy change in relation to intensification requirements and the provision for MDRS.
34 “Water and Wastewater Servicing Constraints: Section 32 Report and section 77J and s 77L new (other matter) qualifying matter Evaluation Report”, above n 32.
35 Auckland Council v Matvan Group Ltd [2023] NZHC 2481, (2023) 25 ELRNZ 227 at [12].
36 Speargrass Holdings Ltd v FPM and DMJ Van Brandenburg as trustees of the Flax Trust [2021] NZHC 3391, (2021) 23 ELRNZ 454 at [110]–[116].
37 There is no need to spell out the remaining principles which, I have noted, are not in dispute.
Discussions to implement those changes are under way between the government and Council.
[32] Box alleges that the Panel erred at [49] and [63] (it also relies on [49]–[60]) by having regard to the following irrelevant considerations:
(a)recent government reforms in relation to residential intensification;
(b)the Going for Housing Growth work programme;
(c)the potential for MDRS to be optional;
(d)a Beehive press release dated 4 July; and
(e)the three fact sheets released by the Ministry for the Environment.
[33] In its written submission to the Panel dated 7 May 2024, Box had expressly addressed the issue of a possible law change to the RMA to provide for a removal of the mandatory MDRS provisions. It cited Fitzgerald v Muldoon in support of the proposition that decision-makers need to follow the law as Parliament has enacted and not statements from ministers (or even the Prime Minister) about what might happen as a result of a potential future law change.
[34] Having been alerted to a possible law change, the Panel of its own volition, and in response, it seems, to Box’s submission, made further investigations and identified further documents relating to the proposed law change. This included the ministerial press release of 4 July 202438 and three fact sheets issued by the Ministry for the Environment providing more detail in respect of the changes identified by the Minister.39
[35] All parties, including the Environmental Defence Society Inc (EDS) agree, and I concur, that the Panel was required to apply the law as it stood at the time it made its decision. Ministerial statements suggesting a possible legislative change to the
38 Hon Chris Bishop “Going for Housing Growth stage one unveiled” (press release, 4 July 2024), referred to at [58] and fn 2 of the Panel’s decision.
39 Decision at [59].
mandatory requirements of the MDRS were not relevant to the substantive evaluation the Panel was required to carry out.
[36] This important constitutional principle is discussed in the following dicta of Elias CJ in Ngāti Whātua Ōrakei Trust v Attorney-General:40
[114] I consider that the Court of Appeal in the present case mischaracterised the claim when it said that its effect was to declare the authorisation to be obtained through Parliament as “unlawful” and in breach of Ngāti Whātua Ōrakei’s rights “if made now in the course of a process already underway and with legislation intended to be introduced.” Parliament speaks to the courts only through enacted legislation. Whether the enactment proposed will proceed and, if so, the form it will take is uncertain because it is a matter for Parliament. Just as the executive cannot bind itself by contract to introduce and pass legislation, it cannot properly give any assurance to the court that the legislation it proposes will be passed.
[119] I do not think the circumstance that the plaintiff in Fitzgerald v Muldoon sought to uphold statutory obligations is reason not to apply the same approach. Until Parliament changes the law, the courts must be open to citizens who seek to have their existing legal interests and rights determined. The rights recognised in s 27 of the New Zealand Bill of Rights Act 1990 to natural justice and to bring proceedings against the Crown on equal terms would not otherwise be fulfilled. Parliamentary freedom of debate and in its proceedings is unaffected by the judicial responsibility to hear and determine rights and interests protected by law.
[37] In Fitzgerald v Muldoon, a decision which Elias CJ expressly refers to in the above passage, the issue was whether press releases by the Prime Minister, Robert Muldoon, had the effect of suspending provisions of a statute by “regall authority”, and in doing so, breached s 1 of the Bill of Rights (1688). Those press releases were being relied upon by government officials to defer or refuse entitlements under government superannuation schemes. Wild CJ reiterated the principle of Parliamentary sovereignty that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.41
[38]There is some obvious merit to this ground of appeal. On the face of [49] and
[63] of the Panel’s decision, it would seem that the Panel, as part of its weighing and evaluative exercise, expressly took into account the government’s announcements
40 Ngāti Whātua Ōrakei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [114]–[119] (emphasis added, footnotes omitted).
41 Fitzgerald v Muldoon, above n 2, at 622.
about a law change. Paragraph [63] in particular suggests that the proposed legislative changes are a reason for giving less weight (responding to Box’s submission) to PC78.
[39] In my view, it was unfortunate and perhaps unnecessary for the Panel to have given such attention to the issue of proposed legislative change. It addressed that issue in some detail at [54]–[59] of its decision. As the EDS submitted, there is nothing to suggest, having mentioned these documents and the proposed change, that the Panel expressly disavowed or disregarded them.42 On the face of the particular paragraphs I have identified (i.e. [49] and [63]), it was an error for the Panel to have addressed the issue of weight to be given to PC78 by reference to what Parliament might do to amend ss 77G and 80G, and sch 3A.
[40] However, the critical issue is whether any error was material. That issue is to be answered by interpreting the Panel’s comments in the context of its overall findings, including, in particular, its acknowledgment at [60] of the decision that it cannot assume any particular outcome from the legislative processes currently under way.
[41] The question of materiality is “one of judgment rather than proof to a standard”.43 In addressing this issue of materiality, it is important to address the context in which the Panel referred to the various ministerial statements and its ultimate conclusion on the status of PC78.
[42] The starting point is that the Panel recognised and was responding to the principal submission of Box that the Panel was required to place considerable weight, reliance and emphasis on PC78 and the proposed zoning of the site (and the future environment, incorporating the mandatory MDRS requirements). In its submission of 7 May 2024, Box had submitted: “Nevertheless, given the directive in s 77G(1) and the clear directives in Schedule 3A, it would be contrary to s 77G(1) to place weight on the SHZ provisions that seek to maintain existing character, amenity or a planned (1–2 storey) neighbourhood character.”
42 I record the position of Environmental Defence Society Inc that, while it contends the Panel was in error, it takes no position on the issue of the materiality of the error to the decision.
43 Manos v Waitakere City Council [1996] NZRMA 145 (CA) at 148.
[43] Importantly, the Panel, responding directly to that submission, describes it as having “some force”.44 It goes on, correctly in my view, to note that despite that “force”, the obligation to make provision for MDRS is not to the exclusion of all single houses (that is clear from references in policy 1(a) in sch 3A to “a variety of housing types with a mix of densities within the zones”).
[44] It is also important to note that the Panel records its agreement with the approach of the Panel in the Waimarie fast track decision. The Panel in Waimarie noted the policy shift that has occurred through PC78 to support the enabling of greater housing intensification. The Panel agreed with the Waimarie Panel’s reference to the “new mandatory MDRS provisions” and how they are “in accord with Part 2 [of the RMA] given their purpose is to assist in expediting the implementation of the NPS-UD”.
[45] Having referred to and agreed with those important findings of the Waimarie Panel, the Panel concluded that the policy changes “are not in themselves sufficient justification for the Quarterdeck project, given its effects, (and noting also that the 3 apartment buildings exceed the MDRS building envelope in a significant degree).”
[46] I find that the conclusions of the Waimarie Panel, which the Panel in this case endorsed and followed, and the Panel’s subsequent conclusions that the policy changes are not in themselves sufficient justification for the project at issue, are all sound legal findings based upon the correct interpretation of the legislation. These findings all led to the ultimate and important conclusion of the Panel that it will not speculate on the outcome of PC78 but that both PC78 and the operative AUP SHZ provisions are relevant and are to be given consideration. I find that in its ultimate and critical evaluative decision-making, the Panel correctly acknowledged the legal status of PC78, engaged with Box’s submissions on the point and, in reaching its critical findings on issues of both the interpretation of the legislation and the merits of its decision, was uninfluenced in any real or meaningful way by its observations and references to the documents signalling legislative change.
44 Decision at [70].
[47] The Panel held (correctly) that Box had overstated the legal effect and status of PC78 with its mandatory MDRS provision. It correctly concluded that the effect of Box’s submission, if accepted, would render the SHZ obsolete and of historical relevance only. Its key reasons for rejecting the proposal and that submission had no connection with its reference to proposed legislative change.
[48] It follows from this analysis that I reject the principal contention of Box that the Panel’s erroneous consideration of the proposed legislative changes tainted its whole assessment.
[49]I dismiss the first ground of appeal.
Question 2 — Breach of natural justice
[50] Box submits that the Panel failed to adhere to the principles of natural justice by refusing to give them an opportunity to respond to a report, prepared by Julia Wick of Boffa Miskell and dated 23 July 2024 (the Landscape Report). That report provided a peer review of Box’s landscape and visual assessment reports. On 23 July 2024, the Panel issued a minute noting that it had received the Landscape Report and that the report was available on the EPA website. The same day, pursuant to sch 6 cl 23 of the FTCA, the appellant requested the processing of their application be suspended to allow the consideration of, and a potential response to, the Landscape Report “to assist the Panel”. The Panel declined this request on 24 July 2024, advising that it had not requested a response from Box under sch 6 cl 25(5) of the FTCA and that a response would not affect the Panel forming a final view of the application.
[51] Box says it should have been allowed to respond to the Landscape Report; the Panel breached natural justice and this materially affected its decision. That is because the report provided an analysis of Box’s proposal under both the SHZ and MHU provisions and, while it took no position as to weighting, it maintained an unreasonable uncertainty around what law was in force and incorrectly placed more weight on the SHZ than the MHU zoning.
[52] Box says the use of the Panel’s suspension power would not have altered the timeframes the Panel was working to but would have allowed Box to provide a
technical and legal critique of the Landscape Report; that may have affected the Panel’s decision. Box submits that sch 6 cl 25(5), referred to by the Panel in declining to suspend proceedings, does not apply to Box as it was the applicant and accordingly had a right to provide further comment on the Landscape Report.
[53] In opposition, the Council emphasised that the FTCA provides that it is for a panel to regulate its own procedures and no person has a right to be heard by a panel. It further notes that sch 5 cl 10(3) of the FTCA enables a panel to appoint “a special adviser to assist the panel with an application in relation to any matters the panel may determine.” The Council says the Panel relied on this provision in appointing Ms Wick to assist the Panel and, given this reliance, Box’s emphasis on the effect of sch 6 cl 25 is misplaced. The Council submits that it was fair and reasonable for Box to simply be provided with the Landscape Report without an opportunity to comment and that there was no surprise or resulting prejudice when the provision of the Landscape Report is viewed in the context of sch 5 cl 10(3) and the wider decision-making context of the FTCA.
[54] The principles of natural justice provide the basis for the statutory and common law requirements for decision making bodies to act fairly.45 Section 27(1) of the New Zealand Bill of Rights Act 1990 provides:
Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
[55]Both parties have relied on Khalon v AG, in which Fisher J noted:46
… there is no rule of natural justice of general application that a decision-maker must disclose that which he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he makes a final decision.
… a party should normally be given the opportunity to respond to an allegation which, with adequate notice, might be effectively refuted. The converse will generally be true if the risk of an adverse finding was always foreseeable, particularly if the challenge to the finding relates to the way in which the tribunal had exercised a value judgment rather than the completeness of the
45 Daganayasi v Minister for Immigration [1980] 2 NZLR 130 (CA) at 141, citing Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.
46 Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 464.
material which had been placed before the tribunal. The key elements are surprise and potential prejudice. If an adverse finding is foreseeable there is no surprise. Even where there is surprise, there could be no prejudice unless better notice might have allowed the affected party to do something about it.
[56] What is required by natural justice is highly context dependent. As the Court of Appeal noted in Greenpeace Aotearoa Inc v Hiringa Energy Ltd, “It is well established that [what natural justice will require] is context-dependent and is considered in light of the statutory scheme.”47
[57] The relevant clauses of the statutory scheme are set out below. Schedule 5, cl 10 provides:
Procedures of panel
(1)A panel must regulate its own procedure as it thinks appropriate, without procedural formality, and in a manner that best promotes the just and timely determination of an application.
(2)Subclause (1) applies subject to any other provision in this Act relevant to the procedures of a panel.
(3)A panel may appoint a special adviser to assist the panel with an application in relation to any matters the panel may determine.
[58]Schedule 6, cl 25 provides:
Further information
(1)At any time before a panel issues its final decision on a consent application or notice of requirement under clause 37, the panel may direct the EPA—
(a)to request further information on a proposal from any of the following:
(i)a consent applicant or requiring authority:
(ii)a relevant local authority:
(iii)any person or group invited to provide comments under clause 17(2):
(b)to prepare or commission a report (including a report from a relevant local authority) on an issue relevant to the consent application or notice of requirement.
…
47 Greenpeace Aotearoa Inc v Hiringa Energy Ltd [2023] NZCA 672, [2024] NZRMA 93 at [211].
(4)As soon as is reasonably practicable after the date on which any information or report is received by the EPA from any person or body requested or commissioned under subclause (1)(a) or (b), the EPA must provide electronic copies of the information or report—
(a)to the members of the panel; and
(b)to the consent applicant or requiring authority; and
(c)to every person or group that provided comments under clause 17(2).
(5)The persons and groups that receive the information or report under subclause (4)(c) may not make further comments unless requested by the panel.
[59] As Dunningham J noted in Glenpanel Development Ltd v Expert Consent Panel, the statutory context of the FTCA imposes short timeframes on expert panels.48
[60] Before addressing the substantive submissions on this ground, I first deal with the appellant’s contention that the Panel’s reliance on sch 6 cl 25(5) was misplaced. It appears that the appellant’s submission that the subclause does not apply to the applicant is correct. As can be seen above, sch 6 cl 25(5) applied to persons and groups that receive information under sub-cl (4)(c). Subclause (4)(c) relates to every person or group that provides comments under cl 17(2). The persons or groups under cl 17(2) are “the persons or groups listed in subclauses (4) to (8).” These subclauses do not provide for comments to be provided by the applicant. As such, it is unusual that the Panel declined Box’s request on the basis that it had not sought further comment from them. There is no situation in which it would seek further comment from the applicant under that provision. However, while it clearly referred to the incorrect provision as the reason for declining the request, I find that the Panel was nonetheless entitled to decline such request; the provision under which the Panel appointed Ms Wick does not provide for responses from parties to the advice obtained independently by the Panel.
[61] In commissioning the Landscape Report, the Panel was clearly considering a discretionary, procedural power under the FTCA. It was entitled to do so. There is nothing in the FTCA to suggest that, where such a power is exercised, parties should
48 Glenpanel Development Ltd v Expert Consenting Panel [2023] NZHC 2069 [Glenpanel HC] at [161]–[169]. See below at [63]–[64].
have the opportunity to respond. Indeed, it would be contrary to the purpose of the FTCA for that to be so. The FTCA is intended, as the appellant notes, to allow for the efficient determination of applications. Section 10 of the FTCA provides:
10 Procedural principles
(1)Every person performing functions and exercising powers under this Act must take all practicable steps to use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions, duties, or powers being performed or exercised.
[62] Given the broad discretion granted to the Panel, and in light of the purposes of timeliness and efficiency, it would be unreasonable to suggest that a party can insist on responding to every finding of a special adviser appointed to assist the Panel. Such an approach would undermine the purpose of the FTCA. I find there is nothing unfair or prejudicial in the appellant having been unable to respond to Ms Wick’s report.
[63] In the High Court’s decision in Glenpanel,49 the applicant contended that the principles of natural justice required the Panel to draw the “key issues that troubled the Panel in its decision” to the applicant’s attention so that it could make a “focused response.”50 The applicant submitted that the Panel’s decision took the applicant by surprise and did not serve the purposes of the FTCA, thereby breaching the fundamental principles of natural justice. However, Dunningham J dismissed that ground of review and held:
Given the timeframes in which the decision was made it would be quite impractical for the Panel to revert to the applicant whenever it proposed to make a finding which was adverse to the applicant.
[64] Dunningham J was not prepared to read in an obligation of that kind into the FTCA. This element of her decision was not disturbed on appeal.51
[65] Box acknowledges that there is no obligation for a Panel to revert to an applicant whenever it proposes to make a finding adverse to an applicant. However, it says the time constraints referred to in Glenpanel would not have been an issue for the Panel here as the timeframes would not have been affected. While I accept that
49 Glenpanel HC, above n 48.
50 At [163].
51 Glenpanel CA, above n 15.
Box’s proposal would not have affected the timeframe for the Panel in terms of the time limits imposed under the FTCA, I do not consider that Glenpanel can be distinguished on the basis contended for by Box. First, as held in the Court of Appeal’s recent decision in Glenpanel:52
Under cl 10(1) of sch 5, a panel is empowered to regulate its own procedure as it thinks fit, without procedural formality, and in a manner that best promotes the just and timely determination of an application. This contemplates a balancing of considerations. A panel could adopt an iterative approach … and it might consider that approach to better serve the purposes of the Act under this power. But given that prompt decision making is to be given weight, there would need to be good reason for doing so … There is no procedure of this kind prescribed in the legislation, and it is for a panel to decide how it should proceed when balancing timeliness and just decision-making.
[66] As such, the presence or absence of time constraints is immaterial. In all circumstances, a panel is empowered to regulate its own procedure. This does not change simply because there is scope for the proceedings to be suspended. Second, it would be impractical and unrealistic to suggest that there has been a breach of natural justice where a panel, that has already received experts’ reports from an applicant on the matter, declines to suspend proceedings to allow for a response to information obtained by the Panel under a specific statutory power.
[67] I find that there was no breach of natural justice and reject this ground of appeal.
Question 3 — Consideration of PC78
[68] Box contends that the Panel erred in its consideration of PC78 at [72] of its decision. At [72], the Panel held:
The Panel considers that the legal position at present is that the Council must introduce MDRS, hence PC78, but that the rules in PC78 do not yet have legal effect because of the QM. Further, the objectives and policies in RMA Schedule 3A now incorporated in PC78 (including those relevant to MDRS), do not apply to any area or site that is a QM.
(footnotes omitted)
52 Glenpanel CA, above n 15, at [52].
[69] It is not in dispute (and I concur) that PC78 was a proposed plan which the Panel was required to have regard to in its evaluation of the proposal pursuant to cl 31(1)(c) of the sixth Schedule to the RMA. That included the mandatory objectives and policies in sch 3A (as noted above, PC78 is the Council’s IPI incorporating the density standards in pt 2 of sch 3A of the RMA and the objectives and policies in cl 6 of that Schedule).
[70] In its notice of appeal, Box has contended that the Panel “erred by inadequately considering the provisions of PC78 as a proposed plan”. It submits, in reliance on the Supreme Court decision in Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency,53 that it was the Panel’s duty to give genuine attention and thought to PC78 “rather than consider it and then put it to one side”.
[71] In his submissions, Mr Braggins emphasised that the Panel ought to have recognised that the mandatory objectives and policies in sch 3A (as incorporated in PC78) were “invulnerable” to a QM.
[72] During the application process before the Panel, Box reached agreement with Watercare that the proposed development could be adequately supplied with water and wastewater services. Mr Braggins submitted that having reached the position that there was no QM prohibiting or constraining the proposed development, the Panel, if it had correctly directed itself as to its legal obligations, would have reached the conclusion that PC78 was dominant. He submitted that the Panel failed to recognise that, in the circumstances, there was a mandated legislative outcome (i.e. s 77G(1) of the RMA, as incorporated in PC78) which meant that the only reasonable and logical outcome was to apply PC78 in a way that should have led to the granting of the application. In its submissions to the Panel, Box had submitted as follows:
(a)There is a clear and strong policy directive to place little or no weight on those parts of the SHZ that are inconsistent with PC78; and
(b)To place material weight on the SHZ would be contrary to the purpose of the FTCA, the NPS-UD, the RMA (as amended by the EHA) and Part 2 of the RMA.
53 Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency
[2024] NZSC 26, [2024] 1 NZLR 241 at [169].
[73] As the Council fairly acknowledged, [72] of the Panel’s decision could have been more clearly expressed. However, the critical issue is whether this particular paragraph, read in the context of the whole decision, means that the Panel misdirected itself in law as to the legal effect and status of PC78 and, in particular, the legislated mandatory considerations. In addressing that issue, it is important to focus on the Panel’s reasoning for rejecting Box’s submissions, being that little or no weight could legally be placed upon SHZ and that the primary factor of weight was PC78. The essential question I must determine is whether Box’s complaint is fundamentally about the weight that the Panel gave to PC78 and is thus not a question of law but rather, a challenge to the merits of the Panel’s ultimate determination.
[74] At the core of Box’s submissions on this issue is the contention that the Panel misinterpreted and misapplied s 77M of the RMA (as amended by the EHS). Box contends that s 77M did not apply because the application to the Panel was not made under s 88 of the RMA.
[75] Section 77M provides that s 104(1)(b)(vi) of the RMA is to be applied in a particular way when considering applications for residential units in relevant residential zones if an application for resource consent under s 88 is lodged following notification of an IPI. Where s 77M applies, the mandatory objectives and policies set out in sch 3A cl 6 of the RMA also apply. In addition, under s 77M(2)(a) of the RMA, any “provisions” in the operative plan will cease to have effect under s 104(1)(b)(vi) to the extent that they are inconsistent with the mandatory MDRS objectives and policies proposed in the IPI. In substance, this means that objectives and policies which are inconsistent with the MDRS objectives and policies will “fall away”.
[76] It is not in dispute, and I concur, that s 77M does not apply because the application here was not made under s 88 of the RMA. As noted, it was made under sch 6 cl 12 of the FTCA. Clause 31(1)(c) of sch 6 to the FTCA required the Panel to have regard to PC78. The key issue, is whether it did or not.
[77] It is important to note that, in a footnote to [72] of its decision, the Panel refers to s 77M(4) of the RMA and notes as follows: “The section addresses applications for consent under s 88 and does not expressly refer to referred applications under the FTA.
Hence there is a degree of uncertainty around the application of the section.” In my view, that is an important, and correct, acknowledgment, albeit that I ultimately find that s 77M(4) did not apply. The Panel was also correct (and again this is not disputed) in finding that the rules in PC78 do not yet have legal effect because of the QM (that is the effect of ss 86B and 86BA(1)(c)(ii) of the RMA.54 It is the final sentence in [72] of the decision in relation to the objectives and policies in sch 3A that is at issue.
[78] The fundamental problem with Box’s submission on this issue is that it focuses solely on [72] to the exclusion of other important findings made by the Panel. As the Council submitted, Box, in effect, isolates and decontextualises [72] of the decision.
[79] In analysing the decision as a whole, including [62], [64], [70], [74] and [147], I find that the Panel did not misdirect itself in law as to the legal effect and status of PC78. It correctly recognised that the PC78 objectives and policies had legal relevance and that it was required, as a matter of law, to have regard to them. It did so, and, in my view, gave genuine attention and thought to them.
[80] In reading the decision as a whole, I find that the Panel did not simply conclude that the PC78 MHUZ objectives and policies (containing the mandatory objectives and policies set out in sch 3A cl 6 of the RMA) did not apply to its consideration of the application under sch 6 cl 31 of the FTCA. On the contrary, it accepted, correctly, that they did apply and, in applying them, the question of weight to be accorded to them was a matter for the Panel to determine in the exercise of its discretion. This is apparent from the following:
(a)The Panel recognised at [62] of its decision that the application needed to be considered in terms of the objectives and policies of the proposed plan (PC78) as well as those of the existing plan (AUP);
54 Under s 86B, a rule in a proposed plan has legal effect only once a decision on submissions relating to the rule is made and publicly notified under sch 1 (with exceptions). Section 86BA(1) provides that, for a rule in a proposed plan to have immediate legal effect, it must meet all of the following criteria: the rule is in an IPI prepared using the ISPP; the rule authorises as a permitted activity a residential unit in a relevant residential zone, and the rule does not apply to (relevantly) a qualifying matter area (s 86BA(1)(c)(ii)). Clearly, this last criterium disqualifies the rules from having immediate legal effect.
(b)At [19], the Panel explained that it had “carefully considered all the material provided”. This included Box’s planning assessment (setting out relevant PC78 MHUZ objectives and policies and associated commentary);
(c)At [64] of its decision, the Panel held that it was not persuaded that the reliance or weight to be applied to PC78 was as great as maintained by Box. It went on to note that the operative provisions of the AUP in the SHZ “still” required due consideration. In saying as much, the Panel did not exclude PC78 from its consideration;
(d)As noted above, at [70] of its decision, the Panel noted the “force” in Box’s contended interpretation that, given the directives in sch 3A, it would be contrary to s 77G(1) to place weight on the SHZ provisions that seek to maintain existing character or amenities. The finding of some “force” is again a clear recognition that the mandatory objectives and policies as contained in PC78 were relevant and did have to be taken into account;
(e)At [74], when summarising its overall view, the Panel concluded that it did not consider that “PC78 and MDRS can have the weight contended for by the applicant.” The Panel is clearly not saying that PC78 does not apply; it recognises that it is a mandatory relevant consideration. The issue for the Panel was what weight to give to PC78. There was no error in the Panel’s approach;
(f)The Panel’s evaluation of effects in the decision makes repeated reference to “the planned outcomes within” the PC78 MHUZ (or similar);55 and
(g)As the Panel noted at [147] of its decision, it requested the Environmental Protection Agency to commission an independent landscape review. The Panel noted that the approach used in that
55 See for example: Decision at [104], [117] and [158].
review was to consider the appropriateness, in regard to the potential landscape effects, of the development in terms of both the planned one to two storey SHZ operative provision and a planned predominantly three-storeyed PC78 urban built character. The Panel’s observations on this issue are entirely consistent with its conclusion that PC78 was a mandatory relevant consideration.
[81] As a matter of law, the Panel did not give inadequate consideration to PC78 and/or the mandatory objectives and policies under sch 3A. The Panel was not legally required to give those particular matters dominant consideration. The Panel correctly concluded that it was legally required to give consideration to the operative AUP SHZ provisions. The Panel’s finding that those provisions (i.e. the operative AUP SHZ) continued “to require careful consideration” was not in error; ultimately, the Panel’s decision on the weighing of all matters, including both PC78 and the MDRS and the AUP SHZ, was a matter for it to determine.
[82]I reject the third ground of appeal.
Question 4 — Incorrect interpretation of s 77G(1) of the RMA
[83] Box contends that the Panel was in error in stating at [73] of its decision that it was “reluctant to speculate on the outcome of PC78”. Box contends, in reliance on ss 77, 77I and 77L of the RMA that the Panel was obliged to conclude:
(a)that the provisions of the RMA and PC78 required the site to be zoned MHUZ;
(b)that there was no uncertainty about the future zoning of the site, given the Panel’s finding on the water and wastewater effects of the proposal; and
(c)that the SHZ provisions relating to amenity, residential character and neighbourhood character were inconsistent with the provisions of the RMA and PC78.
[84] As noted above, s 77G(1) of the RMA requires the Council to incorporate the MDRS into every relevant residential zone and, when changing its plan for the first time, in incorporating the MDRS, to use the IPI and the ISPP.
[85] Under s 77I of the RMA, the Council may make the MDRS less enabling only to the extent necessary to accommodate one or more QMs that are present.
[86] Subpart 7 of pt 5 of the RMA, which governs the legal effect of rules in a proposed plan (such as PC78), is also relevant. Subpart 7 includes ss 86A and 86B.
[87] Section 86A of the RMA provides that the purpose of ss 86B–86G is to specify when a rule in a proposed plan has legal effect.
[88] Under s 86B of the RMA (with some exceptions), the usual approach is that rules in a proposed plan or plan change have legal effect only once the Council publicly notifies its decisions on submissions. Section 86BA (which is referred to in s 86B), reverses the usual presumption in the RMA about the circumstances in which proposed land use rules generally have immediate legal effect and thus can be treated as operative. Section 86B sets out which rule(s) in the IPI will have immediate legal effect from the date of notification of the IPI. The balance of the IPI does not have legal effect until it becomes operative in accordance with sch 1 cl 20 of the RMA.
[89] The effect of s 86BA(1) is that a rule in an IPI authorising the construction and use as a permitted activity of up to three residential units per site in a relevant residential zone in accordance with the MDRS standards set out in pt 2 of sch 3A of the RMA (i.e. the MDRS permitted activity rule) would have immediate legal effect
— assuming of course that the rule does not relate to the areas set out in s 86BA(1)(c) of the RMA, which include a “qualifying matter area”.56
[90] Because the Wastewater QM applies to this site, the MDRS permitted activity rule does not have immediate legal effect as a consequence of s 86BA(1)(c)(ii) of the RMA. The Panel was correct in its conclusion on that issue at [72] of its decision.
56 See the definition in RMA, s 86BA(7).
[91] However, despite that finding, Box appears to go further and submit that the Panel was effectively obliged to apply ss 77G–77L of the RMA.
[92] I reject that submission. As the Council submitted, the Panel was not tasked with changing the AUP, as provided for in s 77G of the RMA. It had a much narrower role in the context of applying cls 31(1)(c) and 29(2)(f) of sch 6 of the FTCA. That required the Panel to have regard to relevant provisions of both the AUP and PC78.57
[93] It would have been contrary to s 86BA(1)(c)(ii) of the RMA for the Panel to have treated the MDRS permitted activity rule as having immediate legal effect. The outcome in relation to the Wastewater QM is yet to be determined through the PC78 process. The outcome of PC78 will not be known until the conclusion of the ISPP process, when the recommendations of the IHP submissions on PC78 are made and decisions of the Council (and/or the Minister) on the IHP recommendations are publicly notified. Because the Wastewater QM currently precludes the MDRS permitted activity rule relevant to the site from having immediate legal effect,58 it will only be at that time of public notification that the rule will have legal effect.
[94] I further agree with the Council submission that, while the Panel recognised that a wastewater mitigation solution was agreed between Box and Watercare, the Panel was correct in concluding that the Wastewater QM still applied to the site.
[95] I find that the Panel did not err in its interpretation of s 77G(1) of the RMA. It was not in error in failing to conclude that the provisions of the RMA and PC78 required the site to be zoned MHUZ.
[96] I agree with Box’s submission that the policy directive in Policy 1, provided in sch 3A cl 6(2), intentionally excludes single houses from being the maximum development potential. The Panel did not conclude otherwise. Its finding that “… although the obligation to make provision for MDRS is not to the exclusion of all single houses” was not incorrect.
57 At [71] of its Decision, the Panel records as follows: “ [Box] maintain that ‘the Enabling Housing Amendment Act has imposed what is effectively a mandatory change to the zoning’ and that the Panel must apply the law as it finds it.”
58 See above n 54.
[97] The Panel was not in error in failing to conclude that the SHZ provisions (relating to amenity, residential character and neighbourhood character) were contrary to pt 2 of the RMA in the present circumstances (i.e. because they were inconsistent or incompatible with the RMA and PC78). The Panel was legally required to consider both the AUP SHZ and PC78.
[98] In addressing these issues, it is also important to recall that the proposal always required a resource consent. The MDRS permitted activity rule only deals with up to three dwellings per site. Here, the proposal was for four or more dwellings per site. The status at issue was a discretionary activity status and the Panel had a broad discretion to grant or refuse consent to the application.59
[99]I reject the fourth ground of appeal.
Question 5 — Incorrect weighting test
[100] The fifth question of law is put as follows: Did the Panel err in its description of the weighting test to be applied when considering PC78 and, in particular, by failing to outline the test in the context of the mandatory considerations under the FTCA?
[101] At [62] of its decision, the Panel outlined the legal test for the weighting of PC78 and subsequently applied that test. Those tests have been developed over time, primarily by the Environment Court and in the context of the RMA. This Court in Burton v Auckland City Council60 held that the RMA does not distinguish between the approach to an operative or a proposed plan, but does not accord proposed plans equal importance with operative plans. The Court concluded that each case depends on its own circumstances. In Lee v Auckland City Council, the Planning Tribunal held that more weight may be given to a proposed plan where, for example, there has been a significant shift in Council policy.
59 At [75] of its Decision, the Panel concluded that the project is a discretionary activity as an integrated residential development (IRD) under both the AUP and PC78. There is no challenge to that determination. At [201], the Panel noted that the apartment blocks proposed are significantly higher than residential development in the locality and exceed the MDRS height limit. At [198], it held that the project is not located in one of the areas identified by the NPS-UD for intensive development.
60 Burton v Auckland City Council [1994] NZRMA 544 (HC), approving Hanton v Auckland City Council [1994] NZRMA 289 (PT); see also Lee v Auckland City Council [1995] NZRMA 241 (PT).
[102] In its submissions, Box emphasised that PC78 is a different statutorily directed planning change with statutorily directed certain outcomes. It is not an orthodox proposed plan, with the content of any change or movement away from the MDRS/sch 3A permissible only under tightly controlled circumstances set out in ss 77I or 77L.
[103] This fifth alleged error of law is closely related to alleged errors 3 and 4 addressed above. It is not necessary to repeat matters in any real detail.
[104] It is not in dispute that PC78 is a “plan or proposed plan” under sch 6 cl 29(2)(f) and thus a relevant consideration under sch 6 cl 31(1)(c) of the FTCA.
[105] The Court of Appeal in Soroka v Waikato District Council61 recently summarised the relevant legal principles in the context of s 104 of the RMA as follows:
[53] … When considering an application for a resource consent, the consent authority must have regard to both “a plan or proposed plan”.62 A proposed plan includes a plan change … When a plan and a proposed plan are inconsistent, it is not possible to give full effect to both and it is a matter for the decision-maker to assess the weight that should be given to one over the other. There are a number of established principles governing the extent to which a proposed plan should prevail over an operative plan or vice versa.63 The assessment will depend on the circumstances and may include the stage at which the proposed plan is towards becoming operative and whether the proposed plan represents a significant shift in policy.64
[106] It is clear from the case law that the phrase “have regard to” in s 104(1) of the RMA means that matters must be given genuine attention and thought, and such weight as is considered to be appropriate by the decision-maker.65 Generally, s 104(1) of the RMA does not give primacy to any one of the matters listed. Rather, all matters are to be considered and given such weight as the decision-maker thinks fit.66
61 Soroka v Waikato District Council [2023] NZCA 510, (2023) 25 ELRNZ 295 at [53].
62 RMA, s 104(1)(b)(vi).
63 Hanton v Auckland City Council, above n 61; Burton v Auckland City Council, above n 61, at [552]–[553].
64 Keystone Ridge Ltd v Auckland City Council HC Auckland AP24/01, 3 April 2001, at [16]–[17].
65 Unison Networks Ltd v Hastings District Council [2011] NZRMA 394 (HC) at [70].
66 Kennett v Dunedin City Council [1992] 2 NZRMA 22 (PT).
[107] Like s 104(1)(b)(vi) of the RMA, sch 6 cl 31(1)(c) of the FTCA requires the decision-maker to “have regard to … the plan or proposed plan” and does not identify any particular priority between “a plan or proposed plan”.
[108] I agree with the submission of the Council that there is no reason why the case law principles that apply to s 104(1)(b)(iv) of the RMA do not apply to sch 6 cl 31(1)(c) of the FTCA.
[109] The submissions of Box on this issue are not without merit. The new mandatory MDRS provisions are clearly a relevant factor/circumstance that could properly have been relied upon so as to have accorded greater weight to PC78. However, the Panel was clearly alive to that possibility; it expressly referred to the Waimarie Fast Track decision and noted that, in that case, the Panel had given inconsistent provisions in the MHU zone substantially less weight. However, I reject the contention that the Panel was in error in adopting an incorrect weighting test. The fundamental problem for Box is that the Panel ultimately had regard to all relevant considerations (including as discussed above); the recognition that PC78 objectives and policies were mandatory relevant considerations. Ultimately, it was for the Panel to determine the question of weight to be accorded to all the relevant factors. In substance, Box challenges the Panel’s assessment of weight; that determination is not one that can be challenged as involving an error of law.67
[110] I agree with the submission of Box that, in determining the weight to be accorded to the various relevant factors, the Panel was required to have regard and apply the purpose of the FTCA as set out in s 4. However, the Panel clearly had regard to the purpose of the FTCA which it describes at [108] and [109] as the “Positive effects (Housing choice; economic/employment benefits)”.
[111] It is clear that Box in its submissions to the Panel contended that substantial weight should be placed on PC78 as the dominant consideration. In my view, the Panel was entitled to find that it would not give as much weight to PC78 and MDRS
67 Clutha District Council v Otago Regional Council [2022] NZHC 510, [2022] NZRMA 242 at [91].
as Box had contended it should. As noted above, the Panel was correct to conclude that the operative AUP SHZ provisions continued to require careful consideration.
[112]I reject the fifth ground of appeal.
Question 6 — Incorrect interpretation and application of the SHZ
[113] The sixth question of law is as follows: Did the Panel err in its interpretation and application of the provisions of the SHZ and in its associated assessment that the proposal was inconsistent with them?
[114] Box contends that the Panel failed to recognise the flexibility provided within the SHZ objectives and policies through the word “predominantly” which is used multiple times throughout the relevant provisions and that the word “neighbourhood” is not limited to the SHZ area.68
[115] Box further contends that its IRD is the kind of development that falls within the “predominantly” exception, because it can only occur on a larger site, and is inherently larger scale and so does not represent a wider change to the overall character of the neighbourhood (although it may represent a localised change). It says that express provision for it in the SHZ provisions means that it is anticipated in the zone.
[116] In substance, this is a challenge to the merits of the Panel’s decision and does not, in my view, give rise to any question of law. I accept that the ordinary meaning of the phrase “predominantly one to two storeys” on its own does not in itself exclude taller buildings. However, taller buildings (e.g. four storeys) would not be in keeping of the built character of predominantly (i.e. mostly) one to two-storey buildings. That is clear in the repeated focus of Objective H3.2(2) and Policies H3.3(1) and (2). The words “predominantly one to two storeys” are not to be divorced from the immediate and wider context.
[117] It is also important to note that IRD is a discretionary activity in the SHZ.69 The AUP expressly states that “activities are classed as discretionary where they are
68 AUP, above n 10, at H3.2(1)–(2) and H3.3(1)–(2).
69 At H3.4.1.
not generally anticipated to occur in a particular environment, location or zone.” I also note that the zone description for the SHZ expressly states “multi-unit development is not anticipated.”
[118] I also reject Box’s submission that the Panel failed to interpret and apply the provisions of the SHZ in accordance with the Supreme Court’s decision Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency.70 The Panel directly engaged with the relevant planning instruments and the key submissions of Box that addressed them, and gave them fair appraisal. At [149], it noted the high-quality design and appearance of the proposed buildings and landscape treatments and its stepped vertical and horizontal configuration. It then went on to note, however, that that outcome did not align well with the planned character of the residential SHZ, primarily due to the “extent of the building bulk and coverage proposed.” It had earlier noted the key issue of the scale and intensity of the Quarterback Project at [110]. It further noted at [152] that the buildings’ bulk, scale and mass are still significantly larger than what was anticipated within the SHZ and the character of Sandspit Road south of the school sites and further to the east.71
[119]I dismiss this ground of appeal.
Question 7 — Incorrect interpretation and application of pt 2 of the RMA
[120] The seventh question of law is as follows: Did the Panel err in its interpretation and application of pt 2 of the RMA, in particular its reliance on the SHZ being consistent with, rather than contrary to, pt 2?
[121] Box contends that this error is an error consequential on the alleged preceding errors. It contends that the SHZ is incompatible with ss 77G, 77I and 77L of the RMA as well as sch 3A of that Act and that those provisions give effect to the purpose of the
70 Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency, above n 53, at [112].
71 I note that, at [147] of the Decision, the Panel stated that it had requested the EPA to commission an independent landscape review (the Boffa Miskell commissioned report). The Panel noted that the approach used in the review by Boffa Miskell was to consider the appropriateness, in regard to potential landscape effects, of the development in terms of both the planned one to two storey SHZ operative provision and a planned predominantly three storeyed PC78 urban built character.
RMA under pt 2. Box submits that the Panel was required to recognise that the SHZ’s application to the site was inconsistent and incompatible with pt 2 of the RMA.
[122]In the final two paragraphs of its decision the Panel concluded:
[248] Clause 31(1) schedule 6 [FTCA] provides that the panel’s considerations are subject to Part 2 of the RMA and the purposes of the [FTCA]. No weighting or priority is expressed between the purpose and principles in Part 2 RMA and the purpose of the [FTCA]; they are clearly complementary. The [FTCA] purpose of urgently promoting employment in the economic and social recovery from COVID-19, is to occur “while continuing to promote the sustainable management of natural and physical resources”. “Sustainable management” has the meaning given in s 5(2) of the RMA.
[249] The Panel has concluded that the Project does not meet that sustainable management purpose, particularly given the scale and dominance of the apartment buildings in its SHZ context and suburban location.
(emphasis in original)
[123] I agree with the Panel that pt 2 of the RMA and the purpose of the FTCA are complimentary in the sense that they are intended to work together in the context of some inherent tensions.72 As the Court of Appeal held in Glenpanel Development Ltd v Expert Consenting Panel,73 the FTCA generally continues to promote sustainable management (which includes both economic and environmental factors) and there is no specific provision directing how a panel should balance the positive economic advantages of any project against adverse environmental effects. The Court of Appeal in that case held that the provisions of the RMA are to be applied in the normal way.
[124] I agree with the submission of the Council that it was not for the Panel to consider whether the operative SHZ plan provisions were appropriate. Rather, it was required to undertake the evaluation required by sch 6 cl 31 of the FTCA. It did so. Clause 31 did not enable the Panel to determine the appropriate zoning of the site in the context of a resource consent application. That is the effect (a misplaced one) of the Box submission on this issue.
72 This includes, in the case of the FTCA, factoring in the economic and infrastructure (which includes housing) factors referred to in s 4 and s 19 (where the project helps to achieve purpose of acts).
73 Glenpanel CA, above n 15, at [24].
[125]I reject the seventh ground of appeal.
The recent Court of Appeal decision — Glenpanel Development Ltd v Expert Consenting Panel
[126] The Court of Appeal delivered its judgment in Glenpanel Development Ltd v Expert Consenting Panel74 on 8 May 2025, after the conclusion of the hearing. I invited short submissions from the parties addressing the implications of that judgment.
[127] I find that the decision contains some helpful general comments about the policy and purpose of the FTCA. However, ultimately it does not assist Box in relation to any of the grounds of appeal advanced. It is important to record the limited application of that decision to this case:
(a)In the Court of Appeal, the only ground of appeal on which the appeal succeeded related to whether the Panel had correctly applied s 104D(1)(b) of the RMA in light of the Supreme Court’s decision in Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency.75 Section 104D of the RMA (particular restrictions for non-complying activities) is not relevant to this appeal.76
(b)A key finding of the Court of Appeal in the context of s 104D(1)(b) of the RMA was that the relevant Panel’s conclusions “were too squarely based on the wording of the more restrictive policies” in the relevant plan “without taking into account whether the intentions in the wider instruments meant that the application could be granted as an exception [to those restrictive policies]”.77 Central to its reasoning on this issue, the Court of Appeal held that the relevant Panel had erroneously concluded the relevant provisions in issue “did not permit” Glenpanel’s
74 Glenpanel CA, above n 15.
75 Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency, above n 53.
76 At issue here is a discretionary activity under sch 6, cl 31(1)(c) and s 29(2) of the FTCA.
77 Glenpanel CA, above n 15, at [39]–[40].
application to be granted, and the text of the provisions “dictated the result”.
(c)I reject Box’s submission that the Panel made a “substantially similar error”. The Panel here made no equivalent finding and instead considered the application in terms of the objectives and policies of the proposed plan. It did not conclude that the plain wording of the relevant provisions prevented the application from being granted. In any event, it separately considered pt 2 of the RMA as well as the s 4 purpose of the FTCA.
(d)I would note that there is also merit to the Council submission that Box’s submission on the seventh error of law appears to have evolved since the substantive hearing and does not reflect the error as pleaded in its notice of appeal. However, nothing turns on that.
Conclusion and result
[128] I find that none of the grounds of appeal succeed. Each of the questions of law must be answered “No” (i.e. there was no error of law).
[129]The proceedings are accordingly dismissed.
[130] As to costs, I am of the preliminary view that having succeeded, that the interested parties, the Auckland Council and Watercare Services Ltd, are entitled to costs on a 2B basis plus disbursements. If costs cannot be agreed, then written submissions (no more than five pages) are to be filed and served by 23 July 2025.
Andrew J
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