Gock v Auckland Council - [2022] NZHC 3126

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-000094

[2022] NZHC 3126

IN THE MATTER of the Local Government (Auckland Transitional Provisions) Act 2010 and Resource Management Act 1991

BETWEEN

JOE GOCK and FAY GOCK

Appellants

AND

AUCKLAND COUNCIL

Respondent

Hearing: 21 June 2021 4 August 2021 supplementary submissions

Appearances:

A G Webb for Appellants

T R Fischer & E M Moon for Respondents

Judgment:

28 November 2022

JUDGMENT OF DUFFY J

This judgment was delivered by me on 28 November 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Simpson Grierson, Auckland Wilson McKay, Remuera

GOCK v AUCKLAND COUNCIL [2022] NZHC 3126 [28 November 2022]

TABLE OF CONTENTS

Background  [2]
Parties’ submissions  [19]
Legal principles governing appeals from the Environment Court                   [22] The grounds of appeal  [26]
The elite and prime soils issue  [33]
Did the 2020 EnvC decision misinterpret Policy B2.2.2(2)(j)?  [35]
Was the Environment Court correct to conclude the subject soils
were significant for their ability to sustain food production?  [42]
Analysis  [80]

Mana whenua issues [106]

Guideline 1.4.1(5)  [139]
Guidelines 1.4.2(1) and (2)  [143]
Guideline 1.4.3 – natural and built heritage  [144]
Guideline 1.4.4 – use and activity  [147]

Analysis [157]

The Structure Plan Guidelines issue [173]

Guideline 1.4.1(1) – urban growth [184]

Analysis [188]
Guideline 1.4.2(3) – integration of green networks [191]

Analysis [194]
Guideline 1.4.5 – urban development [195]

Analysis [198]

Giving effect to the RPS/other issues [200]

Chapter B2 – Urban Growth and Form [205]

Analysis [208]
Chapter B9 – Rural Environment [209]

Analysis [212]

Conclusion [217]

Result [226]

[1] The appellants, Mr and Mrs Gock, own 58 hectares of land at Pūkaki Peninsula, South Auckland. This land is currently in a rural production zone that lies beyond the Rural Urban Boundary (RUB) of the Auckland Unitary Plan (AUP). When the RUB was first drawn the Independent Hearing Panel (the Panel) recommended this land should be on the urban side of the RUB. However, the Auckland Council (the Council) excluded the Pūkaki Peninsula from the urban side of the RUB. The appellants have brought various challenges against this decision; the present appeal being their latest.1 The Council opposes the appeal.

Background

[2] The Pūkaki Peninsula is situated along Pūkaki Road with the Auckland International Airport to the west and Ngā Kapua Kohoura (Crater Hill) to the east. The peninsula is bounded by the Pūkaki Creek and the Waokauri Creek and the Pūkaki volcano and public reserve is along the north eastern boundary. The Pūkaki and Waokauri Creeks are inlets of the inner Manukau Harbour.

[3] The appellants’ land is a total of approximately 58 hectares held in 13 separate titles. Theirs is not the only land on the Pūkaki Peninsula that is affected by this appeal. There are other landowners of smaller parcels of land; they did not take an active role in this appeal.2 Part of the affected land, including land owned by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 3126
Decision Date: 28 November 2022

CaseChat Overview and Summary

The appellants, Mr and Mrs Gock, appealed a decision of the Environment Court that had upheld the decision of the Auckland Council to exclude their land on the Pūkaki Peninsula from the urban side of the Rural Urban Boundary (RUB) of the Auckland Unitary Plan (AUP). The appellants had previously appealed this decision of the Council to the High Court, which had found the Environment Court had erred in its interpretation of Policy B2.2.2(2)(j) relating to elite and prime soils and in its assessment of whether the relevant areas on the Pūkaki Peninsula containing elite and prime soils were significant for their ability to sustain food production. The High Court had directed the Environment Court to reconsider the location of the RUB on the Pūkaki Peninsula, having regard to its findings. The Environment Court on rehearing again upheld the Council’s decision. The appellants appealed this second decision to the High Court. The appeal was dismissed. The appellants had argued that the 2020 Environment Court decision misinterpreted Policy B2.2.2(2)(j) by failing to adopt the High Court’s interpretation of that policy. The Court rejected this argument, finding the 2020 Environment Court decision correctly interpreted Policy B2.2.2(2)(j). The appellants further argued that the 2020 Environment Court decision erred in concluding the subject elite and prime soils were significant for their ability to sustain food production. The Court rejected this argument also, finding that the Environment Court’s approach to the issue of significance was open to it and reasonable. The Court also found that no breach of natural justice occurred in relation to the Environment Court’s decision on mana whenua issues, that the Environment Court did not err in its approach to applying the Structure Plan Guidelines and that it properly gave effect to the Regional Policy Statement.

Orders