Brookby Quarries Limited v Auckland Council
[2019] NZHC 2648
•17 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-792
[2019] NZHC 2648
BETWEEN BROOKBY QUARRIES LIMITED ENV-2018-AKL-000150
Appellant
AND
AUCKLAND COUNCIL
Respondent
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED;
ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED; FULTON HOGAN
LIMITEDSection 274 Parties
Hearing: On the papers Counsel:
R E Bartlett QC and B J Matheson for Appellant and Fulton Hogan Limited
M Gribben and J Robertson for Respondent
S Gepp for Royal Forest and Bird Protection Society of NZ Inc as agent of Environmental Defence Society IncJudgment:
17 October 2019
JUDGMENT OF WHATA J
This judgment was delivered by me on 17 October 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Russell McVeagh, Auckland
Buddle Findlay, Auckland
Royal Forest and Bird Protection Society of New Zealand Incorporated
BROOKBY QUARRIES LIMITED v AUCKLAND COUNCIL [2019] NZHC 2648 [17 October 2019]
Introduction
[1] The parties to this appeal are the Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest and Bird), the Environmental Defence Society Incorporated, and Brookby Quarries Limited and Fulton Hogan Limited - two large quarry operators in Auckland (together, Quarry Operators) - as well as Auckland Council. The case centres on which planning provisions should regulate the removal of vegetation in an area that is classified in the Auckland Unitary Plan (AUP) by a significant ecological area (SEA) overlay, within a Special Purpose Quarry Zone (SPQZ). On 18 May 2018, I allowed an appeal from Forest and Bird amending the provisions of the Proposed Auckland Unitary Plan (PAUP) in accordance with a draft consent order. 1
[2] Following that judgment, Brookby Quarries Limited lodged an appeal challenging the AUP objectives and policies, matters of discretion and assessment criteria relating to the vegetation removal.
[3] Before the Environment Court hearing, an issue arose as to whether my directions provided the Environment Court with jurisdiction to reconsider the AUP’s objectives and policies. The Environment Court now refers several questions of law to this Court for determination, pursuant to s 287 of the Resource Management Act 1991 (RMA). These are set out below at [13].
Background
[4] The procedural background to the case is set out in the Environment Court’s statement of the case largely as follows.
[5] The PAUP contained several areas subject to a SEA overlay. The Independent Hearings Panel (IHP) recommended that Auckland Council delete the SEA overlay where it overlaid the SPQZ, because it believed there was a conflict between the purpose of the zone as a quarry and the SEA protection, which would frustrate the purpose of the SPQZ.
1 Royal Forest and Bird Protection Society of New Zealand Inc v Auckland Council [2018] NZHC 1069.
[6] The IHP also recommended deletion of all the objectives, policies, rules, matters of discretion and assessment criteria that had been in the PAUP addressing the removal of SEA vegetation within an SPQZ, and which had been the subject of mediation by the parties. Forest and Bird appealed that decision to the High Court, arguing that the deletion of the SEA overlay, based on other planning imperatives, constituted an error of law.
[7] The other parties to the appeal (which included all of the parties in this matter) agreed there had been an error of law and that the SEA overlay should be reinstated (or abided the Court’s decision). Because the IHP and the Council had also deleted the surrounding objective, policy and rule matrix, the parties agreed to criteria that would constitute an “alternative solution” for the purposes of ss 148 and 156 of the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA). However, the parties could not agree on whether there was jurisdiction to include particular objectives or policies, so the alternative solution did not contain any specific objectives or polices.
[8] I endorsed the approach proposed by the parties and resolved the issue of jurisdiction as follows:
[35] ... ordinarily it would be a matter for this Court to determine whether relief was within scope. The facts here are, however, complicated by the Panel's decision to remove the SEAs from quarry lands and with it the planning and policy matrix that applies to SEAs, which included restricted discretionary activity status benched marked against that policy matrix. The relief then sought seeks to reinstate the SEAs, the associated policy matrix and thereby restricted discretionary status.
[36] Problematically, this leaves the affected quarries in a worse position than that envisaged by the Panel, which may have, had it adopted the correct approach, sought to identify given areas as SEAs but modify the activity status of the activities in the applicable areas considering other planning imperatives. It seems to be therefore, that fairness dictates that there should be an opportunity afforded to affected persons to seek modification of the activity status even though the SEA designation applies to the relevant area. Given that at least one submitter sought the removal altogether of SEAs from quarry lands, I am satisfied there is scope to resolve the substantive issue.
[37] On that basis, the Environment Court need not be troubled with issues of jurisdiction. Rather, it must assess whether the Council approved version of the SEA policy matrix, including restricted activity status, should apply to quarry lands.
[38]Save in this respect, I endorse the approach proposed by the parties…
[9] I then set out a draft consent order in an appendix to the judgment. This specified that:
6.Pursuant to the power vested in it under the Local Government (Auckland Transitional Provisions) Act 2010 the Court orders, by consent, that the Auckland Unitary Plan be amended by:
(a)Including within the AUP maps, the identification of Significant Ecological Areas on certain sites, as shown in Appendix A.
(b)Including a new activity for Any vegetation alteration or removal within a Quarry Zone, within an SEA, in Chapter E15, along with matters of discretion and assessment criteria related to this new activity, as shown in Appendix B.1
7.These amended provisions be treated as an alternative solution for the purposes of sections 148 and 156 of the LGATPA, with this order triggering a right of appeal to the Environment Court under section 156(1) limited to the matters set out in paragraph 6(a) and (b) of this order.
8.There is no order as to costs.
[10] As the Environment Court has noted, the consent order was only in draft form, and was not separately issued or sealed by the High Court.
[11] In the week prior to the Environment Court hearing of 25 March 2019, counsel became aware of a potential jurisdictional issue related to the manner in which the consent order had been framed. The potential areas of uncertainty included:
(a)Whether paragraphs [6](a) and (b) and [7] should be read literally, thereby excluding any ability to consider the broader objective/policy framework, or whether any objective and policy framework associated with those identified provisions was implicitly within scope.
(b)Whether the consent order intended to limit the right of appeal under s 156 of the LGATPA and, if not, whether the broader objective/policy framework was amenable to appeal under s 156.
[12] At the commencement of the substantive hearing on 25 March 2019, the parties agreed that there would be benefit in resolving the potential jurisdictional issue prior to the Environment Court hearing. This was particularly because all the expert evidence filed with the Environment Court addressed the policy framework, with positions ranging from the view that the existing framework is adequate and that only minor amendments to the policies are warranted, through to support for a new objective and policy specific to vegetation removal for mineral extraction in SPQZs.
Statement of case
[13] Given the concerns about jurisdiction, the Environment Court referred the following questions to High Court:
(a)Did the High Court in its decision resolving the High Court Appeal intend to provide for a s 156(1) LGATPA appeal right in relation to AUP objectives and policies relating to the Significant Ecological Area overlay as it applies to mineral extraction activities occurring on land zoned Special Purpose – Quarry Zone?
(b)If so, does the consent order provide scope for a person to appeal the AUP objectives and policies relating to the Significant Ecological Area overlay as it applies to mineral extraction activities occurring on land zoned Special Purpose – Quarry Zone?
(c)If the consent order does not provide scope, is there nonetheless scope for the parties to appeal to the Environment Court any objectives and policies of the Significant Ecological Area overlay as they apply to mineral extraction activities on land zoned Special Purpose – Quarry Zone under s 156(1) of the LGATPA?
Position of the parties
[14] The Council and the Quarry Operators submit that the answer to all questions is yes. Royal Forest and Bird adopt a neutral position. As will become apparent, I
agree that the answer to questions (a) and (b) is yes, but that the draft consent order should be amended to make this clear.
Assessment
Question (a)
[15] The answer to question (a) is yes as per paragraph [37] of my earlier judgment (which includes an express direction to assess the policy matrix) and for the reasons stated at [35] and [36].
[16] To reiterate, the PAUP contained bespoke rules, objectives and policies relating to the removal of vegetation within the SEA overlay. The Hearing Panel’s decision to delete the SEA overlay from the SPQZ effectively removed not only all of the SEA rules from applying to activities within that zone, but it also removed all associated objectives and policies, including those bespoke objectives and policies that applied within the SPQZ. The full and fair ventilation of the substantive appeal before the Environment Court therefore demanded an opportunity be afforded to the affected submitters to revisit not only the activity status per se, but also the objective and policy framework relating to the SEA overlay as it applies to mineral extraction activities occurring on land zoned Special Purpose – Quarry Zone.
Questions (b)and (c)
[17] The question as to whether the consent order provides scope for a person to appeal the AUP objectives and policies relating to the SEA overlay, as it applies to mineral extraction activities occurring on land zoned SPQZ, is also answered in the affirmative. As Auckland Council and Brookby submit, while the consent order set out in my earlier judgment does not expressly extend to the objectives and policies, that outcome logically follows from my decision, which forms part of the context in which the order is made. Furthermore, it must have been known to the parties that that was the intended scope of the order.
[18] But I accept that the Environment Court is justified in taking a cautious approach to the exercise of what is a reasonably novel jurisdiction. Given this, the final consent order should make that clear.
[19] Amendments have been proposed by the Council. The amended draft order would read as follows:
6.Pursuant to the power vested in it under the Local Government (Auckland Transitional Provisions) Act 2010 the Court orders, by consent, that the Auckland Unitary Plan be amended by:
(a)Including within the AUP maps, the identification of Significant Ecological Areas on certain sites, as shown in Appendix A.
(b)Including a new activity for Any vegetation alteration or removal within a Quarry Zone, within an SEA, in Chapter E15, along with matters of discretion and assessment criteria related to this new activity, as shown in Appendix B.
7.These amended provisions be treated as an “alternative solution” for the purposes of sections 148 and 156 of the LGATPA, with this order triggering a right of appeal to the Environment Court under s 156(1) limited to the matters set out in paragraphs 6(a) and (b) of this order and any associated objective and policy matrix in either the regional or district plan, relating to the removal of vegetation within a “Special Purpose – Quarry Zone”.
8.There is no order as to costs.
[20]I am content to make these amendments.
[21] It is perhaps fortuitous that my judgment had not been sealed. It is therefore open to me to recall my judgment for the purpose of amending the consent order to correspond exactly to my judgment.2 Plainly bringing requisite clarity to an order bearing on the jurisdiction of the Environment Court to hear and determine an appeal is a special reason to exercise the recall jurisdiction per Horowhenua v Nash.3 Accordingly I recall my judgment, in accordance with r 11.9 of the High Court Rules 2016, for the purpose of amending the draft consent order. For avoidance of doubt, had it been necessary to do so I would have also made an order pursuant to the slip
2 High Court Rules 2016, r 11.9.
3 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.
rule, r 11.10. I also do not consider it is necessary to alter the date of issue of the first judgment. Its effect remains unchanged.
Result
[22] My earlier decision provided for a s 156(1) LGATPA appeal right in relation to AUP objectives and policies relating to the SEA overlay as it relates to vegetation alteration or removal within the SPQZ. But for avoidance of doubt, I make the amendments sought by the Council to the consent order as set out at [19]. If the parties have any residual concerns about the framing of the order, they should advise the Court within 5 working days. If no concerns are raised the judgment is to be sealed.
[23]There is no order as to costs.
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