Man O'War Farm Limited v Auckland Council

[2017] NZHC 1349

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2331 [2017] NZHC 1349

BETWEEN

MAN OʼWAR FARM LIMITED

Appellant

AND

AUCKLAND COUNCIL Respondent

FEDERATED FARMERS OF NEW ZEALAND INCORPORATED Section 301 party

Hearing:	16 June 2017
Counsel:	C Casey QC and M Williams for Appellant M Dickey and A M B Green for Respondent R Gardner for Federated Farmers of New Zealand Incorporated
Judgment:	16 June 2017

ORAL JUDGMENT OF WHATA J

Solicitors:           Clendons, Auckland

Brookfields, Auckland

MAN OʼWAR FARM LIMITED v AUCKLAND COUNCIL [2017] NZHC 1349 [16 June 2017]

[1]      Man O’War has filed an appeal against various decisions of the Council in relation to the proposed Auckland Unitary Plan (PAUP).  This appeal concerns one of the matters raised by Man O’War, namely, the legality of the underlined words in the following definition:

Land which may be subject to coastal hazards

Any land  which may be subject to erosion over at least a 100 year time frame:

(a)       within a horizontal distance of 20m landward from the top of any coastal cliff with a slope angle steeper than 1 in 3 (18 degrees); or

(b)      at an elevation less than 7m above mean high water springs if the activity is within:

(i)       Inner Harbours and Inner Hauraki Gulf: 40m of mean high water springs; or

(ii)      Opern west, outer and Mid Hauraki Gulf: 50m of mean high water springs.

Any land identified as being subject to one per cent annual exceedance probability (AEP) coastal storm inundation (CSI).

[2]      The  parties  to  the  appeal  have  reached  agreement  that  this  definition  is uncertain and therefore unlawful.  They seek a number of amendments to bring the requisite clarity. Attached to this judgment is an appendix showing the relief sought.

Background

[3]      The following background was provided by the parties, which I adopt.

[4]      The appellant and its associated companies own Man O’War Station located on Waiheke and Ponui Islands.   Man O’War Station covers some 1,785 hectares, much of which is located within the coastal environment.

[5]      The appellant made a submission on the notified Unitary Plan which, relevant to this appeal, addressed various provisions relating to coastal hazards.1

1      Albany North Landowners v Auckland Council [2017] NZHC 138, [279]-[290] and [302]-[303].

[6]      During   the   hearing   of   submissions   on   the  Unitary  Plan   before   the Independent Hearings Panel (IHP), the Council proposed several changes to the provisions for coastal hazards.   This included removal of the definition of ‘land which may be subject to natural hazards’ and insertion of new definitions for ‘land which may be subject to coastal hazards’ and ‘land which may be subject to land instability’.

[7]      The appellant presented legal submissions regarding the Council’s proposed coastal hazards definition.   Of particular relevance to Part C of the appeal, the appellant identified the uncertainty created by including the words “any land potentially  subject  to  erosion  over  at  least  a  100  year  timeframe”  within  the definition of “land which may be subject to coastal hazards”.   It was noted that landowners would not know whether resource consent is required to establish or extend new buildings on land in areas which are near the coastline.

[8]      The IHP recommended  the adoption of the definition changes largely as proposed by the Council.

[9]      The recommended changes were adopted by the Council in the Decisions

Version of the Unitary Plan (dated 19 August 2016).2

[10]     The IHP’s recommendation, as noted above, was adopted by the Council.

Alleged errors

[11]     A number  of  alleged  errors  were  raised  in  the  Man  O’War  appeal.    Of

particular remaining relevance is the following ground:

(d)       A reader of the Unitary Plan will not be able to determine, including with reference to the Unitary Plan maps, where the land and coastal areas falls within that definition, and as such the definition in the provisions of the Unitary Plan triggered by the definition are void by uncertainty and ultra vires.

2      Apart from rejecting part of the definition of coastal storm inundation one per cent AEP plus 1m sea level rise.

Assessment

[12]     As  I  have  said  elsewhere,  a  regulatory  provision  may  be  voided  for uncertainty.3

[13]    I agree with the parties that the highlighted portion of the definition is ambiguous as to its scope and application.  For example, the phrase “may be subject to erosion” provides no guidance as to the requisite probability required.  Secondly, the second part of the phrase, “over at least a 100 year time frame” envisages a broad evaluative assessment capable of engendering considerable scientific debate.

[14]     Accordingly, I agree with the parties that this aspect of the definition creates a degree of uncertainty and could make it difficult for the Plan reader to identify whether they need a resource consent for development or subdivision near the coast.

[15]     The appeal is therefore allowed.  However, the substantive matter of concern is the extensive nature of the relief sought.  While I am amenable to facilitating the expeditious conclusion of these matters, in reality the amendments sought are substantive and require substantive review.   Given the breadth of the potentially affected persons by the amendments, I am not prepared to grant the relief on a final basis.   I note that the joint memorandum confirms that there were numerous submitters to the relevant provisions and even though only Federated Farmers took the opportunity to participate in the appeal, this Court should be slow to engage in an evaluative exercise of the nature proposed,  without the confidence that relevant affected parties have had an opportunity to contribute to the amendments sought.

[16]     I therefore propose to proceed on the following basis, given the consensus of all parties, including the Council:

(a)       I grant the appeal and make the amendments sought by the parties.  I

note, in this regard, that whatever prejudice this may cause to affected

3      University  of  Auckland  v  Auckland  Council  [2017]  NZHC  1150  at  [14],  citing  Transport Ministry v Alexander [1978] 1 NZLR 306 (CA) at 311 per Cooke J; McEldowney v Forde [1971] AC 632; Official Assignee v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722 (CA) at [82] per Thomas J. See also Power v Whakatane District Council HC Tauranga, CIV-

2008-470-456, 30 October 2009, at [45].

person in the interim, they have had the opportunity to participate in this appeal and did not take it.

(b)However, in terms of finalisation of the Plan, I see no other option but to refer the matter back to the Council and for the Council to serve a copy of my decision on the submitters on this part of the Plan and to afford  them  an  opportunity  to  appeal  to  the  Environment  Court, should they consider it necessary to do so, in respect of the amendments made.

Addendum

[17]     Ms  Dickey  helpfully  indicated  that  some  clarity  as  to  the  effect  of  my judgment, in the event that there is no appeal, would be helpful.  I simply record that, in the event that there is no appeal, the Council’s decision is final and therefore that part of the Plan is settled.