Gock v Auckland Council - [2019] NZHC 276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-866

[2019] NZHC 276

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:
7, 8, 9 and 19 November 2018

Further submissions 26 November and 3 December 2018

Appearances:

A Webb for the Appellants

H J Ash and T R Fischer for the Respondent

R Enright for Auckland Volcanic Cones Society Inc (Interested Party)

Judgment:

27 February 2019

INTERIM JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 27 February 2019 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel:
A Webb, Barrister, Auckland
R Enright, Barrister, Auckland (for Auckland Volcanic Cones Society

Solicitors:
Wilson McKay, Remuera Simpson Grierson, Auckland Haigh Lyon, Auckland

GOCK v AUCKLAND COUNCIL [2019] NZHC 276 [27 February 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

TABLE OF CONTENTS

Introduction [1]

Background and procedural history [5]

General background  [5]
Development of the Auckland Unitary Plan  [9]
How the case came before this Court  [12]

Legal framework [18]

Statutory provisions  [18]
Part 2 of the Resource Management Act and King Salmon  [23]
The requirement to give effect to the Regional Policy Statement  [26]

Appeals to this Court [28]

Grounds of appeal [31]

Section 148 of the LGATPA—Scope [34]

Discussion [40]

Elite and prime soils [66]

Background [66]
Discussion [77]

Outstanding natural features [96]

Background  [96]
Discussion  [106]
(1)Entire volcano or volcanic features  [106]
(2)A blanket ban?  [108]
(3)Did the Environment Court erroneously invoke Policy B8?                   [114]

Structure plan guidelines [128]

Background [128]
Discussion [138]

The Special Purpose—Quarry zoned lands [154]

Mana whenua issues [172]

Result [202]

Introduction

[1]These are appeals against a decision of the Environment Court.1

[2] The substantive dispute relates to the location of the Rural Urban Boundary (RUB) at Puhinui, west of State Highway 20 on the edge of the Pūkaki-Waokauri Creek. The decision covers two separate but related areas: Crater Hill, most of which is owned by the Self Family Trust (the SFT); and Pūkaki Peninsula, which is owned, in part, by Mr Joe and Ms Fay Gock (the Gocks). The land is surrounded by housing/State Highway 1 on one side, and bordered by the Manukau Harbour on the other.

[3] The Independent Hearings Panel (the Panel) recommended that the RUB follow the coastal margin, with the result that both Crater Hill and the Pūkaki Peninsula would be on the urban side of the RUB and therefore be identified as suitable for urbanisation. The Auckland Council (the Council) did not accept the…

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: [2019] NZHC 276
Decision Date: 27 February 2019

CaseChat Overview and Summary

This case involves appeals against a decision of the Environment Court regarding the location of the Rural Urban Boundary (RUB) at Puhinui, west of State Highway 20 on the edge of the Pūkaki-Waokauri Creek. The land in question is owned by the Self Family Trust and the Gocks, and is surrounded by housing and the Manukau Harbour. The Independent Hearings Panel recommended that the RUB follow the coastal margin, which would have resulted in both Crater Hill and the Pūkaki Peninsula being on the urban side of the RUB and therefore identified as suitable for urbanisation. However, the Auckland Council did not accept the Panel's recommendation and excluded both areas. The appellants appealed to the Environment Court, which upheld the Council's decision. The appellants then appealed to the High Court on questions of law.

The High Court considered various legal issues, including the scope of submissions under the Local Government (Auckland Transitional Provisions) Act 2010, the interpretation of Regional Policy Statement provisions relating to elite and prime soils and outstanding natural features, the need for structure planning when considering the location of the RUB, and the proper consideration of Mana Whenua issues.

The Court found that the Environment Court did not err in determining it had jurisdiction to reinstate the RUB as defined in the Proposed Auckland Unitary Plan (PAUP). However, the Court found that the Environment Court erred in its construction of Regional Policy Statement Chapter B2.2.2(2)(j) relating to elite and prime soils, and in its assessment of whether the relevant areas containing premium soils were significant for their ability to sustain food production. These errors were considered material. The Court also found that the Environment Court erred in some respects in its interpretation of provisions relating to outstanding natural features, but these errors were not considered material. The Court found that there was no error of law in the Environment Court's consideration of structure planning guidelines, the Special Purpose Quarry Zoned lands, or Mana Whenua issues.

The Court allowed the appeals in the respects indicated and dismissed them where appropriate. The Court set the matter down for a telephone conference to discuss the implications of the judgment and potential relief.

Orders