Gock v Auckland Council
[2019] NZHC 1603
•26 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-866
[2019] NZHC 1603
IN THE MATTER of the Local Government (Auckland Transitional Provisions) Act 2010 and the Resource Management Act 1991 BETWEEN
JOE GOCK AND FAY GOCK
Appellants
AND
AUCKLAND COUNCIL
Respondent
AND.................... continued over page
Hearing: 13 September 2019 Appearances:
A Webb for the Appellants
T R Fischer for the Respondent
R Enright for Auckland Volcanic Cones Society Inc (Interested Party)
Judgment:
26 September 2019
FINAL JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 26 September 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:………………………….
Counsel:
A Webb, Barrister, Auckland R Enright, Barrister, Auckland
Solicitors:
Wilson McKay, Remuera Simpson Grierson, Auckland Haigh Lyon, Auckland
GOCK v AUCKLAND COUNCIL [2019] NZHC 1603 [26 September 2019]
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-923
IN THE MATTER of Local Government (Auckland
Transitional Provisions) Act 2010 and the Resource Management Act 1991
BETWEEN JOHN SELF, ADRIANA SELF AND
ROGER CLARK as Trustees of SELF FAMILY TRUST
Appellants
AND AUCKLAND COUNCIL
Respondent
Introduction
[1] In my interim judgment dated 27 February 20191 I allowed the appellants’ appeals in respect of one of six points and dismissed them in relation to the balance.2
[2] As to relief, I adjourned the proceedings for further submission after the parties had had an opportunity to consider the implications of my judgment.
[3]I have now heard the parties in relation to relief.
[4] In respect of the appellant the Self Family Trust, no specific relief is sought. This reflects the fact that the appeal point, which I found to be sustained, had limited application to the lands in the Trust’s ownership. By contrast, the implications for the land in the ownership of the appellants Joe and Fay Gock (the Gocks) were significant.
[5] The Gocks seek, by way of final relief, a relocation of the Rural Urban Boundary (RUB) to include the Pūkaki Peninsula within the urban boundary and imposition of a Future Urban Zone (FUZ) over the land. Mr Webb provides a draft plan showing the proposed new location, although acknowledging it is “crude” and that if the Court grants the relief sought a technical description will be required.
[6] The respondent (the Council) opposes such relief. It says that the correct course is for the case to be remitted to the Environment Court to determine the proper location of the RUB on the Pūkaki Peninsula, having regard to my interim decision. The Auckland Volcanic Cones Society Incorporated does not seek to be heard in relation to relief on the Gocks’ appeal.
[7] This judgment is to be read in combination with my interim decision. I do not intend to repeat, other than to the extent necessary, any of the findings in it.
1 Gock v Auckland Council [2019] NZHC 276. No appeals have been lodged from this decision.
2 In respect of one of the balance issues I identified error in the Environment Court’s approach, but did not consider it had erred in a material way.
Powers of the Court on appeal
[8] These are provided for in r 20.19 of the High Court Rules. This, insofar as material provides:
20.19 Powers of court on appeal
(1)After hearing an appeal, the court may do any 1 or more of the following:
(a)make any decision it thinks should have been made:
(b)direct the decision-maker—
(i)to rehear the proceedings concerned; or
(ii)to consider or determine (whether for the first time or again) any matters the court directs; or
(iii)to enter judgment for any party to the proceedings the court directs:
(c)make any order the court thinks just, including any order as to costs.
(2)The court must state its reasons for giving a direction under subclause (1)(b).
(3)The court may give the decision-maker any direction it thinks fit relating to—
(a)rehearing any proceedings directed to be reheard; or
(b)considering or determining any matter directed to be considered or determined.
(4)The court may act under subclause (1) in respect of a whole decision, even if the appeal is against only part of it.
[9] The remedy sought by the Gocks is pursuant to r 20.19(1)(a), and that by the Council and Society, pursuant to r 20.19(1)(b)(ii).
Principles for determining relief under Rule 20.19
[10] The starting point is to consider the respective roles of the Environment Court and the High Court. The Environment Court is a specialist body established under the Resource Management Act 1991 (RMA) with, among other things, jurisdiction to hear appeals on the contents of District Plans promulgated under the Act. In contrast, the
High Court is accorded general jurisdiction and its role for present purposes is confined to hearing and determining appeals on points of law under s 299 of the RMA.
[11] As a result of these two different roles, the Superior Courts have consistently recognised that if the implications of a successful appeal require further specialist judgment, then it is not for the High Court to substitute its own decision and the appropriate remedy will be remission. In Waitakere City Council v Estate Homes Limited, for example, the Supreme Court declined counsel’s invitation to act under the equivalent of r 20.19(1)(a) noting:3
[70] In order to decide that it was appropriate to decide outstanding issues in this Court, we would need to be satisfied that they would not turn on questions of specialist judgement concerning facts which the legislature contemplated would be determined on appeal from a local authority by an expert tribunal. That is not the case here. Specifically, we are not satisfied that the question of whether a collector road or a local road was the appropriate basis for assessing the extra costs associated with an arterial road turns solely on Council documents concerning the thresholds set for individual types of road. In our view the ultimate questions may well turn on planning judgement. Accordingly, we propose to refer the question of what compensation would make the Council’s requirement to construct an arterial road reasonable at common law to the Environment Court for determination.
[12] For the Council, Mr Fischer submits that the Supreme Court therefore proceeded on the basis of a presumption against substituting its own decision which needed to be displaced by a finding that the “outstanding issues would not turn on questions of specialist judgment”. In my view it is unnecessary to talk in terms of a presumption and nor is that what the Supreme Court intended. Nevertheless, this Court needs to be satisfied, before substituting its own decision, that it is not trespassing on the proper jurisdiction of the Environment Court.
[13] Other cases have emphasised that the evaluative judgment which the Environment Court is required to make is often complex, involving an assessment of multiple statutory considerations. The courts have, therefore, been wary about concluding that success on an appellate point is determinative of the ultimate judgment required. In Meridian Energy Limited v Central Otago District Council, for example, the High Court held that the Environment Court had erred by requiring consideration
3 Waitakere City Council v Estate Homes Limited [2006] 13 ELRNZ 33; [2007] 2 NZLR 149; [2007] NZRMA 137.
of alternative locations and an explicit and comprehensive cost benefit analysis in the context of a resource consent application.4 The appellant asked the High Court to substitute its own decision by granting the resource consents which the Environment Court had declined. It argued that the Environment Court’s findings were sufficient to conclude that the benefits outweighed the costs. The High Court did not accept that submission, stating:
[145] … In our view it is too simplistic to say that because the benefits of the project outweigh its costs, the project must therefore be worthy of consent. While that might be a very significant step towards gaining consent, a wider assessment is required. On its wider assessment of the Meridian application the Environment Court concluded that the project did not achieve sustainable management in terms of s 5 of the Act. Under those circumstances the proper course is for the Court to reconsider that conclusion in light of the errors of law that we have identified.
My interim judgment so far as relevant
[14]In my interim judgment I found that the Environment Court had erred in:
(a)the proper construction of the Regional Policy Statement (RPS),
Chapter B2.2.2(2)(j) relating to elite and prime soils; and
(b)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.
I also stated those errors to be material.
[15] The identified error of construction was in respect of the phrase “significant for their ability to sustain food production” in RPS Chapter B2.2.2(2)(j). The Environment Court said that this qualified the reference to prime soils only with the result that, subject to a de minimis exception, the location of the RUB was required to avoid elite soils without reference to their significance in sustaining such production. I did not support that conclusion.
4 Meridian Energy Limited v Central Otago District Council [2011] 1 NZLR 482, [2010] NZRMA 477.
[16] I also held that the Environment Court had erred in finding (effectively as a backstop to its primary position) that the principal of “incremental loss” was relevant to the location of the RUB when the question related to lands already surrounded by urban development.
[17] Thirty-seven per cent of the Pūkaki Peninsula comprises elite soil. On the premises I have identified, and with which I disagreed, the Environment Court considered this decisive against RUB relocation. It said that the presence of elite soils on the peninsula was the “one characteristic … which by itself outweighs the positive characteristics of the counterfactual”.5
[18] I accept therefore that the Environment Court’s approach to the prime and elite soils issue was, in terms of its own judgment, the most significant consideration in its decision not to relocate the RUB on the Pūkaki Peninsula. The Court did not, however, go so far as to say that its findings in this respect were essential to its decision to decline relocation.
[19] Indeed, it identified other potential impediments to that outcome including what it described as “the need to protect Te Ākitai’s values” and “coastal environment factors”.6 It was also critical of what it described as inadequate evidence demonstrating compliance with the structure plan guidelines in appendix one to the RPS. Its conclusion was one expressed as having been arrived at after “[s]tanding back and looking at all relevant considerations, properly weighed”.7
Why the Gocks argue for a substituted decision
[20] Mr Webb’s principal submission could perhaps best be summarised in Sir Winston Churchill’s 1942 observation that:
Now is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.
5 Environment Court’s decision at [533]. In so doing it invoked the framework of s 32 of the RMA.
6 Environment Court’s decision at [534].
7 Environment Court’s decision at [538].
[21] He says that were I to decide to bring the land within the RUB and impose a FUZ, all I would be doing was recognising that the land was “potentially” available for urbanisation. He says that before any active zoning could be sought and the status quo in any way changed, a comprehensive structure plan would need to be developed which would necessarily have to address any outstanding issues including Te Ākitai’s opposition.
[22] He reminds me that the effect of a FUZ notation would be that the underlying rural zoning would remain in place, with the only practical consequence being that the Gocks could not do anything on their land which would impede later urbanisation. He says that it would then be for the Gocks either to make a private plan change application in which they sought an active zoning or to wait for the next scheduled plan change review. If they did decide to seek a private plan change then, submitted Mr Webb, this would need to be supported by a detailed structure plan addressing, inter alia:
(a)Outcomes for the land on the peninsula identified as affected by the outstanding natural features (ONF) overlay.
(b)Te Ākitai’s objections.
(c)All of the roading, recreational and other facilities appropriate to the area’s urbanisation.
[23] He says that there are strong inbuilt incentives to ensure that any structure plan advanced by the Gocks met Te Ākitai concerns because, in the absence of its support, the Council would be unlikely to endorse the private plan change. He emphasised the flexibility of potential options, including possible transfer of land to Te Ākitai (whose current interests are confined to a special purpose area towards the southern end of the peninsula).
[24] Mr Webb emphasises the evidence of Council’s witness Ms Trenouth, who acknowledged that, apart from the position that the Council adopted (and the Environment Court accepted) in respect of RPS Policy B2.2.2(2)(j), at least the
majority of the other issues relating to the Pūkaki Peninsula could be addressed by a FUZ and appropriate structure planning. In paragraph [94] of my interim judgment I noted that this “(in my view appropriate) concession” was reflected in the Environment Court’s “one characteristic” observation. The only apparent exception to that was Ms Trenouth’s evidence in respect of the RPS Policy B2.2.2(2)(g), which relates to the protection of ONF. Ms Trenouth identified that some of the land on the Pūkaki Peninsula and in respect of which RUB relocation was sought was affected by the ONF overlay.8 Although she noted that the Council’s landscape expert considered that future structure planning would be able to address the visual integrity of the ONF, she also noted that the Council’s archaeological expert regarded there as being “a considerable uncertainty about whether it would likewise protect the ONF by applying an open space zone”.
[25] In that respect Mr Webb emphasises that if, after structure planning, the Council considered adequate protection was not afforded to the ONF, that version of the structure plan could be rejected by Council and it would then be for the Gocks to amend their proposals. He submits that because the ONF issue has been clearly telegraphed at this point, the appellants would be “foolhardy” to produce a structure plan that did not provide for open space zoning in that respect.9 Significantly also, he says, this was not a reason identified by the Environment Court for declining to include the land in the RUB.
[26] Mr Webb therefore submits that nothing further would be achieved by referring the matter back to the Environment Court. Absent what he describes as the “blockage” of the elite/prime soils finding, he says there is more than enough evidence and, importantly, sufficient safeguards that this Court could now safely redraw the RUB so as to include the Pūkaki Peninsula.
8 The Pūkaki crater itself is already zoned open space, but there is an area to the south of the crater owned by Savannah Holdings Ltd (which was not a party to the appeal) and which is both subject to the ONF overlay and within the area of land the Gocks sought to be brought within the RUB.
9 A submission which is in my view necessarily qualified by the fact that part of the land subject to the overlay is not in the Gocks’ ownership or control.
Discussion
[27] Under s 156(4) of the Local Government (Auckland Transitional Provisions) Act 2010, the Environment Court was required to treat the appeal as if it were a hearing under cl 15 of Schedule 1 to the RMA and, except as otherwise provided, cls 14(5) and 15 of Schedule 1 and Parts 11 and 11A of the RMA applied to the appeal.
[28] The matters in dispute before the Environment Court – the location of the RUB, zonings and precinct provisions for Crater Hill and the Pūkaki Peninsula – were all so- called “District Plan methods”. The statutory tests for a District Plan therefore applied.
[29] The statutory considerations when considering the contents of the District Plan are set out in the relevant version of the RMA10 at ss 31, 32, and 72-77D. In summary, those requirements include whether the District Plan provisions:
(a)Are designed to accord with and assist the Council to carry out its functions, so as to achieve the purposes of the RMA.11
(b)Are in accordance with any regulations, including national and environmental standards.12
(c)Give effect to the national policy statement or the New Zealand Coastal Policy Statement (NZCPS).13
(d)Give effect to the RPS.14
10 The RMA incorporating the 2013 amendments is the version which applies to Auckland Unitary Plan appeals (see Resource Management Amendment Act 2013, s 2(a)). The Resource Legislation Amendment Act 2017 received Royal assent on 18 April 2017. The transitional provisions under Schedule 2, cl 13 of that Act provided that where a proposed plan has been publicly notified but has not proceeded to the stage at which no further appeal is possible prior to the Act commencing, the proposed plan must be determined as if the Act had not been enacted.
11 RMA ss 31, 72 and 74.1.
12 Resource Management Act 1991, s 74(1).
13 Resource Management Act 1991, s 75(3).
14 Resource Management Act 1991, s 75(3)(c).
(e)Are not inconsistent with an operative regional plan for any matter specified in s 30(1)15 and have regard to any proposed regional plan on any matter of regional significance.16
(f)Have regard to any relevant management plans and strategies under other Acts and to any relevant entry in the New Zealand Heritage list to the extent their content has a bearing on the resource management issues of the region.
[30]Under s 32 of the RMA the question is whether:
(a)the objectives are the most appropriate way to achieve the purpose of the RMA; and
(b)the policies and other provisions that implement or give effect to the objectives are the most appropriate way to achieve the objectives, including assessing their efficiency and effectiveness by:
(i)identifying and assessing, and if practical, quantifying the benefits and costs of the environmental, economic, social and cultural effects that are anticipated; and
(ii)assessing the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the provisions.
[31] I accept that, in combination, these provisions created a complex statutory framework within which the appeal to the Environment Court was required to be evaluated. This, in turn, required the exercise of planning judgment after hearing and considering all the evidence.
15 Resource Management Act 1991, s 75(4).
16 Resource Management Act 1991, s 74(2)(a)(ii).
[32] For the Pūkaki Peninsula, the key statutory considerations which the Environment Court took into account were the requirements to:
(a)undertake an evaluation in accordance with s 32;
(b)give effect to the NZCPS under s 75(3); and
(c)give effect to the RPS under s 75(3)(c).
[33] In that context I consider Mr Webb’s focus (on RPS policy B2.2.2(2), and on the means by which structure planning could address outstanding considerations under B2.2.2(2)(f), (g), (i) and (m)) is too narrow. A broader evaluation is required with each of the statutory considerations having a potential bearing on the ultimate outcome. Such assessment is the proper province of the Environment Court.
[34] In my view Mr Fischer puts it fairly when he says that although the Environment Court’s findings in relation to prime and elite soils were clearly very significant to its decision and although, with such findings overturned, the scales now swing back towards relocation of the RUB, we do not yet know where the Environment Court, with its necessary focus on multiple “moving parts”, would ultimately see the scales resting. I agree with him that that is a matter of specialist judgment requiring specialist evaluation. I also agree with him that the fact that policy B2.2.2(2)(f), (g), (i) and (m) criteria “could” be addressed within a structure planning process is not decisive in this respect.
[35] It follows that I am not persuaded to grant the relief sought by the Gocks and consider remission the appropriate remedy.
[36] In so doing I note the Environment Court’s criticism of the adequacy of the Gocks’ evidence in terms of compliance with RPS Policy B2.2.2(2)(f) (requirement to follow structure plan guidelines). Nothing in this decision is intended to restrict the Environment Court’s power pursuant to s 269(1) of the RMA to admit further evidence in this respect. In saying that I rely on my power under r 20.19 to give such directions
as this Court sees fit in relation to an order under s 20.19(1)(b)(ii).17 As I indicated in my interim judgment,18 the position in respect of RPS Policy B2.2.2(2)(f) is not entirely satisfactory which may explain the deficiencies in respect of this aspect of the Gocks’ case. Receipt of further evidence is a matter in the discretion of the Environment Court which it may consider appropriately exercised in these circumstances.
Result
[37] I remit the proceedings to the Environment Court to determine the proper location of the RUB on the Pūkaki Peninsula having regard to my interim judgment decision of 27 February 2019. In so doing I direct that the Environment Court is, in exercise of its powers under s 269(1) of the RMA and in its discretion, entitled to consider further evidence in relation to satisfaction of RPS criterion B2.2.2(2)(f). Save for any additional evidence the Environment Court chooses to admit in this respect, it is to reconsider the RUB location based on the evidence already heard by it.
[38] I note that the terms of this remission are by the consent of the parties (assuming I was unpersuaded to make orders relocating the RUB).
[39]I make no order for relief in respect of the Self Family Trust appeal.
Costs
[40] I have not been addressed in respect of costs on the appeal. If they are sought and quantum cannot be resolved, memoranda may be filed. Any claim would, in my provisional view, need to be abated in respect of the number of appeal points which
17 In Auckland Regional Council v Roman Catholic Diocese of Auckland [2008] NZRMA 409 at
[58] – [64]. Andrews J held that on a reference back the Environment Court was not required to admit further evidence. My direction envisages that the Environment Court should have the power to do so in its discretion.
18 Gock v Auckland Council [2019] NZHC 276 at [145].
were not sustained, although recognising the importance of the issue in respect of which the appellants were successful.
Muir J