Rangit�kei District Council
[2023] NZHC 2608
•19 September 2023
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2023-454-045
[2023] NZHC 2608
IN THE MATTER OF: An appeal under section 299 of the Resource Management Act 1991 from a decision of the Environment Court BY
RANGITĪKEI DISTRICT COUNCIL
Appellant
AND
Interested Residents of Marton andRangitīkei Incorporated
Hearing: 28 August 2023 Appearances:
N Jessen and O E Sinnema for Appellant
M A Baker-Galloway and S T Schulte for IRO-MAR
Judgment:
19 September 2023
JUDGMENT OF GRICE J
[1] This is an appeal against a decision (the Decision) of the Environment Court dealing with an appeal from the Rangitīkei District Council (the Council).1 The appellant seeks that this Court quash the relevant parts of the decision and remit the matter back to the Environment Court for reconsideration.
1 Fraser Auret Racing v Rangitīkei District Council [2023] NZEnvC 71 [Environment Court decision].
RE RANGITĪKEI DISTRICT COUNCIL AND ORS [2023] NZHC 2608 [19 SEPTEMBER 2023]
[2] The appeal relates to the approval in the decision by the Environment Court of:2
(a)two rules for non-complying activities, proposed as “DEV-R5” and “DEV-R6”; and
(b)a rule requiring mandatory public notification for any resource consent application sought under Rules DEV-R3 to DEV-R6.
[3] The Interested Residents of Marton and Rangitīkei Inc (IRO-MAR) appeared as an “interested person” in the Environment Court process under s 274 of the Resource Management Act 1991 (RMA). It has indicated that it does not oppose a finding that there was an error of law. However, it does not agree with all the reasons or grounds of appeal set out by the appellant in the notice of appeal.
Background
[4] Counsel for the appellant outlined the reasonably lengthy background to this matter. Ms Baker-Galloway for IRO-MAR in general terms agreed with the appellant’s summary. However, she emphasised that her clients had throughout been of the view that the community had been side-lined in relation to the proposed plan change. She said the nature, scale and scope had continued to change and public engagement had been “confusing and ineffective”.
[5] The Environment Court recorded the concerns of IRO-MAR about the process as well as the concerns expressed by IRO-MAR over the funding of the infrastructure required for the proposal. The Environment Court nevertheless noted that even if there had been shortcomings in the communication with the community, these would likely have “little if any bearing in assisting us with reaching our decision on the merits of the case”.3
[6] The proposed rezoning of farmland on the outskirts of Marton is to provide for an industrial development of a scale which the Council considered could not be
2 At [224] and [225].
3 At [46].
accommodated within existing vacant industrial zoned land in Marton.4 The land is situated close to State Highway 1 (SH1) and the main trunk railway line, which the Council considered made it a particularly appropriate site for industrial activities.
[7] The plan change known as Marton Industrial Development Area (MIDA) was prepared and notified in accordance with sch 1 of the RMA in 2019. The original proposal was the rezoning of approximately 217 ha of land on the southern boundary of Marton from Rural to Industrial. This plan change proposal was publicly notified by the appellant on 22 August 2019.
[8] Following a hearing by an Independent Hearing Commissioner, the plan change was approved with modifications. The Commissioner, in his decision of 19 August 2020 (the Commissioner’s Decision), reduced the area proposed for rezoning from 217 ha to 40 ha, and several other amendments were made to the proposed District Plan provisions to control the effects of any development within that area.5
[9] Fraser Auret Racing (FAR) appealed the Commissioner’s Decision to the Environment Court on 1 October 2020. Several parties joined the proceedings as interested parties pursuant to s 274 of the RMA, including IRO-MAR.
[10] In response to FAR’s appeal, the appellant sought additional time from the Environment Court so that it could carry out further investigation work in respect of the plan change. This work including the development is what is known in planning terminology as a comprehensive development plan (CDP), to address spatial planning concerns. The completed CDP included a revised proposal for the District Plan change which was adopted by the Council, referred to as “DPP1”. DPP1 included the re-orientation of the development area, as an orientation further to the south was identified as being better suited for the rezoning. This alignment addressed concerns raised by FAR in its appeal.
4 At [43] and [3].
5 Decision Report: Proposed Change to the Rangītikei District Plan 1165, 1151 and 1091 State Highway 1, Marton: Rezoning to Industrial (19 August 2020) at [1.4] and Appendix 2.
[11] The remaining interested parties’ issues were unresolved, including concerns as to whether the re-orientation of the plan change area was within “scope”. On this issue, the Environment Court indicated its view that the revised proposal was outside the scope of FAR’s appeal.
[12] The appellant asked the Environment Court to consider the revised plan change proposal pursuant to s 293 of the RMA, which empowers the Environment Court to order changes to proposed plans in some circumstances.
[13] Under s 293, the Environment Court required further notification in respect of the revised plan change proposal. As a result of notification on specified parties, additional interested parties joined the proceedings under s 274 of the RMA.
[14] Expert conferencing followed in July and August 2022. Of relevance to this appeal is that the planning expert conferencing that occurred on 22 July 2022 was attended by expert planning witnesses for four parties, including the appellant’s expert planning witness, Ms Brenda O’Shaughnessy. As IRO-MAR did not engage an expert planning witness, it did not participate in expert witness conferencing on the “planning” topic.
[15] A “Record of Expert Witness Conferencing – Planning” dated 22 July 2022 was subsequently filed with the Environment Court. Appended to this was a further revision of the proposed District Plan Provisions (DPP2) which were agreed by all the planners in attendance at the conferencing. These were further supplemented by agreement between certain parties following the mediation that took place on 15 August 2022, resulting in a further version of the provisions (DPP3).
[16] In accordance with the Environment Court’s evidence exchange timetable, Ms O’Shaughnessy then prepared expert planning evidence dated 23 August 2022. This included a statement of her expert opinion opposing a non-complying activity status for activities within the plan change area, except for specified activities. Accompanying her evidence, Ms O’Shaughnessy advanced DPP4, which incorporated further adjustments to the provisions in the preceding versions.
[17] FAR then advised the Environment Court on 2 September 2022 that its interests had been addressed by the provisions sought by the appellant in DPP4 and that it no longer wished to participate in the proceedings. This left IRO-MAR as the only remaining s 274 party actively opposing the appellant’s revised plan change proposal leading into the hearing.
[18] IRO-MAR filed evidence in respect of its position on the plan change. It also filed two statements from members of IRO-MAR, as well as expert witness evidence in relation to economic, landscape, and traffic matters. While these statements generally focussed on criticisms of the plan change information supplied by the Council and the plan change process from its inception, IRO-MAR’s witness’ statements of evidence did not contain specific evidence or opinions as to the activity status or notification requirements for activities in the proposed plan change provisions. However, the appellant does note that Mr Shields, IRO-MAR’s traffic expert, had made suggestions about activities not complying with activity standards relating to traffic having a non-complying activity status.
[19] IRO-MAR filed its legal submissions on 8 September 2022, together with an annexure of proposed District Plan provisions. IRO-MAR’s proposed provisions included Rules DEV-R5 and DEV-R6, both with non-complying status. IRO-MAR’s tabled District Plan provisions did not include a provision mandating public notification of resource consent applications.
[20] The Environment Court hearing on the revised Plan Change took place between 12–14 September 2022. During the hearing, Ms O’Shaughnessy provided further evidence as to her opinions regarding the proposed District Plan provisions, including during cross-examination regarding non-complying activity status.
[21] No specific issue was raised at the hearing regarding the appropriateness of any provision concerning notification for any activity under the District Plan.
[22] At the adjournment of this hearing, the Environment Court directed in its minute dated 15 September 2022 that limited post-hearing steps be taken. Specifically:
(a)the appellant was to prepare a final set of District Plan provisions (DPP5) to reflect the issues addressed during the hearing; and
(b)the expert traffic witnesses for the parties were to reconvene for further expert witness conferencing in relation to traffic safety issues.
[23] Expert witness conferencing on the outstanding traffic issues took place in October 2022, with a Joint Witness Statement dated 12 October 2022 subsequently filed with the Environment Court as directed.
[24] Following the completion of this additional expert witness conferencing, the Environment Court did not direct additional hearing time. In a minute dated 14 October 2022, the Environment Court directed the appellant to file and circulate to all other parties proposed District Plan provisions that gave effect to the agreements, or majority positions reached by the traffic witnesses. All other parties (including IRO-MAR) were directed to file any comments within five working days of receipt.
[25] In accordance with the Environment Court’s directions, the appellant filed DPP5 on 26 October 2022. DPP5 did not include Rules DEV-R5 and DEV-R6 with non-complying activity status. Nor was any provision mandating public notification of resource consent applications included.
[26] IRO-MAR filed a memorandum in response on 2 November 2022 enclosing its comments on DPP5. These were categorised as follows:
(a)“Changes tabled by IRO-MAR”, in reference to the provisions that IRO-MAR had tabled as part of its legal submissions, including IRO-MAR’s proposed DEV-R5 and DEV-R6;
(b)comments on the appellant’s changes to the traffic provisions resulting from the expert witness conferencing, and accompanying joint witness statement; and
(c)“Other suggested changes”, which series of changes had not previously been tabled in the Environment Court proceeding, being new to the Court and the Council.
[27] Further, under the heading “Preliminary Points”, IRO-MAR introduced for the first time a submission seeking a specific “public notification” requirement, expressing concerns about the magnitude of the proposed plan change and further:
... The section 293 notification package was limited notified (sic) and contained no visual representation of the potential scale of the introduced built form on the open rural site adjacent to State Highway 1 and one of primary routes into Marton. This matter cannot be adequately mitigated by the plan provisions. However, to the extent it might assist, IRO-MAR has proposed an addition to the plan provisions requiring public notification.
[28] The appellant provided a memorandum in response on 3 November 2022, in which it expressed a position that it did “not agree with any of IROMAR’s proposed changes to DPP5” but said it considered there was no need to reconvene the hearing or to file closing submissions.
[29] Following this exchange of memoranda, there were no further directions from the Environment Court in respect of the proceeding, or DPP5. By minute dated 8 November 2022, the Court said that it had read the comments from IRO-MAR and the Council on revised DPP5 and did not require closing submissions. It said it would issue a decision in due course.
[30] The Decision was subsequently delivered, with the Environment Court dismissing FAR’s appeal of the Plan Change.6
[31] The Environment Court directed that the appellant prepare and submit a clean copy of District Plan provisions to reflect the Environment Court’s findings on the individual provisions referred to in the Decision. This included the approval of Rules DEV-R5 and DEV-R6 and the mandatory public notification of Rules DEV-R3 to DEV-R6. The reasons given in the judgment for doing so were as follows:7
…
6 Environment Court decision, above n 1.
7 At [223].
Rules
DEV-R5 and DEV-R6: IROMAR seeks two new provisions with non- complying status: DEV-R5 for any activity not provided for in DEV-R3 and Appendix 1; and DEV-R6 for any activity that breaches B1.5, DEV-S2, DEV-S3, DEV-S5, and DEV-S13.
[224] On the basis that these proposed Rules DEV-R5 and DEV-R6 have not been opposed by the Council, they are approved.
Notification
[225] IROMAR seeks that consent applications pursuant to Rules DEV-R2 to R6 be publicly notified. While this has not been opposed by the Council, we approve the public notification of Rules DEV-R3, DEV-R4, DEV-R5 and DEV-R6 (but not DEV-R2) on the basis that, in the specific context of this plan change, these Rules have either Discretionary or Non-complying status.
Approach to appeal
[32] There is no disagreement between the parties on the applicable principles on appeal. The appeal is brought pursuant to s 299 of the RMA. Appeals to this Court against a decision of the Environment Court are only available on a question of law.8 The Supreme Court clarified the parameters of questions of law in Bryson v Three Foot Six Ltd,9 which has since been applied in an RMA context.10 This has helpfully been summarised in subsequent cases.11 A Court will have erred in law where it has:
(a)applied a wrong legal test — misinterpretation of a statutory provision will obviously constitute an error of law;
(b)taken into account matters which it should not have taken into account;
(c)failed to take into account matters which it should have taken into account; or
(d)come to a conclusion without evidence or to one which, on the evidence, it could not reasonably have come.
8 Resource Management Act 1991, s 299(1).
9 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27].
10 Estate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198].
11 See Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, [2021] NZRMA 492 at [60]; and Redmond Retail Ltd v Ashburton District Council [2021] NZHC 2887 at [38]–[39].
[33] Any error of law must materially affect the result of the Court’s decision before it would be appropriate for the appellate court to grant relief.12 Materiality is a matter of judgment for the appeal court rather than a question of proof to a particular standard.13
[34] It is well recognised that a failure to observe natural justice principles may constitute an error of law. Those rules are flexible in practice and depend on the particular situation as well as the circumstances of the case, the nature of the enquiry and the rules under which the tribunal was acting, and the subject matter that is being dealt with.14 In relation to an error of law based on an allegation that the Court has come to a conclusion without evidence upon which it could reasonably have reached that decision, the Supreme Court has observed that this error will only be committed in circumstances in which the true and only reasonable conclusion contradicts the determination, or the:15
ultimate conclusion of a fact-finding body [is] so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer …
Alleged errors of law
[35] The appellant says the Environment Court erred in law in its Decision at [224] when it approved Rules DEV-R5 and DEV-R6, for the following reasons:
(a)the Decision took into account an irrelevant matter, specifically, that the appellant had not opposed Rules DEV-R5 and DEV-R6;
(b)the Decision failed to take into account matters that it should have taken into account, specifically, the appellant’s evidence which opposed the inclusion of Rules DEV-R5 and DEV-R6;
12 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153; and Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]–[54].
13 Manos v Waitakere City Council [1996] NZRMA 145 (CA) at 148, as cited in Auckland Council v Cabra Rural Developments Ltd [2019] NZHC 1892, (2019) 21 ELRNZ 185 at [75].
14 Kawerau Jet Services Holdings Ltd v Queenstown-Lakes District Council [2015] NZHC 2343 at [45].
15 Bryson v Three Foot Six Ltd, above n 9, at [26].
(c)the decision to approve Rules DEV-R5 and DEV-R6 was a conclusion that could not reasonably have been reached on the basis of the evidence before the Environment Court; and
(d)the Decision was reached by erroneously failing to take into account whether Rules DEV-R5 and DEV-R6 were the most appropriate way to achieve the objectives of the plan change.
[36] The appellant says the Court erred in law in approving the mandatory public notification rule for the following reasons:
(a)there was no evidence to support the conclusion reached by the Environment Court;
(b)the Decision was reached by taking into account an irrelevant factor, specifically, that the appellant had not opposed it;
(c)its Decision was reached by erroneously failing to take into account whether the mandatory public notification rule was the most appropriate way to achieve the objectives of the plan change; and
(d)the Decision was reached in violation of the principles of natural justice. In particular, the issue of a mandatory notification rule was not tabled in such a way that provided the appellant with a fair opportunity to respond with argument or evidence in opposition to it. This issue should not have been considered at all given that the Court’s directions did not allow for “other matters” to be raised that were not already before the Court.
[37] In view of those errors the appellant says the questions of law to be resolved in relation to the error at [224] and [225] were, as modified at the hearing, as follows:
Question 1: Did the Environment Court err by taking into account an irrelevant matter when it approved Rules DEV-R5 and DEV-R6 on the basis of the appellant’s perceived absence of opposition?
Question 2: Did the Environment Court err by failing to take into account relevant evidence from various sources in deciding to approve Rules DEV-R5 and DEV-R6?
Question 3: Was the decision to include Rules DEV-R5 and DEV-R6 a conclusion that could not reasonably have been reached on the evidence before the Court?
Question 4: Did the Environment Court err by failing to take into account whether Rules DEV-R5 and DEV-R6 were the most appropriate way to achieve the objectives of the Plan Change?
Question 5: Was the decision to include a mandatory public notification rule unsupported by evidence?
Question 6: Did the Environment Court err by taking into account an irrelevant matter when it approved the mandatory public notification rule on the basis of the appellant’s perceived absence of opposition?
Question 7: Did the Environment Court err by failing to take into account whether the mandatory public notification rule was the most appropriate way to achieve the objectives of the Plan Change?
Question 8: Were the principles of natural justice violated by the circumstances in which the mandatory public notification rule was tabled and considered?
Statutory framework
[38] Section 293 of the RMA, insofar as relevant here, provides that after the hearing of an appeal against the provisions of any proposed plan the Court may direct the local authority to undertake various actions as follows:
293 Environment Court may order change to proposed policy statements and plans
(1)After hearing an appeal against, or an inquiry into, the provisions of any proposed policy statement or plan that is before the Environment Court, the court may direct the local authority to—
(a)prepare changes to the proposed policy statement or plan to address any matters identified by the court:
(b)consult the parties and other persons that the court directs about the changes:
(c)submit the changes to the court for confirmation.
…
[39] Section 293 must be exercised in accordance with the overall regime created by the RMA.16
[40] Schedule 1 of the RMA sets out the procedural requirements for undertaking any plan change. Sections 72–76 provide the substantive framework for what a district plan must contain and what must be considered when any changes are prepared.
[41] Section 74 sets out matters which must be considered by a territorial authority when preparing and changing its district plan. These include a requirement that such changes must be in accordance with its functions under s 31 and the provisions of pt 2 and, insofar as is relevant here, have particular regard to the evaluation report prepared in accordance with s 32.
[42] A s 32 evaluation report prepared by the territorial authority examines the extent to which the objectives of the proposed plan change are the most appropriate way to achieve the purpose of the RMA. Additionally, it examines whether the plan change provisions are the most appropriate method to achieve its objectives. To determine this, the territorial authority is to identify other reasonably practicable options for achieving objectives and assess the efficiency and effectiveness of the provisions in achieving the objectives. This efficiency and effectiveness investigation must identify and assess the benefits and costs of the environment, economic, social, and cultural effects anticipated from the implementation of the provisions.
[43] Also relevant to this appeal is the importance of the specific activity status assigned in the plan. It was not in dispute that categorising activities by activity status are at the foundation of the RMA’s resource consent framework under pt 6. Under s 87A, activities may be permitted, controlled, restricted discretionary, discretionary, non-complying, or prohibited. The status of the activity determines whether a resource consent is required, and if so, what type of assessment must be undertaken in respect of the proposed activity.
16 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council [2014] NZHC 2616 at [145].
[44] An activity that is assigned a non-complying status requires a resource consent. That can only be granted if the consent authority is satisfied that one of the requirements of s 104D is met. The provisions of that section are referred to as a “gateway assessment”. It must be demonstrated that either the adverse effects of the activity on the environment will be minor, or the activity will not be contrary to the objectives and policies of the relevant plan, before the consent authority can consider granting consent in accordance with the criteria in s 104. In view of the need to satisfy either of those requirements, a non-complying activity status is generally regarded as the most restrictive pathway for any class of resource consent application.
[45] It was not in dispute that the activity status can materially influence decisions and so will materially influence choices made by prospective landowners and developers who may be looking to undertake development, and therefore investment, in areas such as the proposed Marton industrial development plan change area.
[46]The provision of a new non-complying status referred to in the decision at
[224] as Rules DEV-R5 and DEV-R6 for any activity not provided for in various rules activities and standards would result in even very minor deviations from the specified rules, standards and design principles to become non-complying activities as opposed to discretionary activities, which had been the Council’s proposal. Under the discretionary activity assignment, if there was an issue or standards were breached, the effects would be assessed appropriately.
The interested residents — IRO-MAR
[47] IRO-MAR does not oppose a finding that there were errors of law, on the below grounds (the agreed errors):
(a)the Decision took into account an irrelevant matter, specifically, that the appellant had not opposed Rules DEV-R5 and DEV-R6;
(b)the Decision failed to take into account matters that it should have taken into account, specifically, the appellant’s evidence which opposed the inclusion of Rules DEV-R5 and DEV-R6; and
(c)in relation to the approval of the mandatory public notification rule, the Decision was reached by taking into account an irrelevant factor, specifically, that the appellant had not opposed it.
[48] IRO-MAR submits the errors that it agrees were made by the Environment Court provide a sufficient basis to allow the appeal, quash the parts of the decision on appeal and remit the Decision back to the Environment Court for reconsideration of its conclusions at [224] and [225].
[49] IRO-MAR does not agree that the Environment Court was otherwise in error. With regard to Rules DEV-R5 and DEV-R6, IRO-MAR does not agree that:
(a)the decision to approve Rules DEV-R5 and DEV-R6 was a conclusion that could not reasonably have been reached on the basis of the evidence before the Environment Court; and
(b)the decision was reached by erroneously failing to take into account whether Rules DEV-R5 and DEV-R6 were the most appropriate way to achieve the objectives of the plan change.
[50] IRO-MAR says that in relation to the decision on the mandatory public notification rule it does not agree that:
(a)there was no evidence to support the conclusion reached by the Environment Court;
(b)its decision was reached by erroneously failing to take into account whether the mandatory public notification rule was the most appropriate way to achieve the objectives of the plan change;
(c)the decision was reached in violation of the principles of natural justice, in particular, whether the issue of a mandatory notification rule was live in such a way that provided the appellant with a fair opportunity to respond with argument or evidence in opposition to it; and
(d)this issue should not have been considered at all given that the Court’s directions did not allow for “other matters” to be raised that were not already before the Court.
Agreed approach
[51] IRO-MAR agreed with the appellant that the agreed errors were material errors as the Environment Court had incorrectly recorded the appellant’s position as a basis for its decision. It submits that the Court need not determine the other grounds of appeal regarding reasonableness of the decision, whether the correct statutory tests were applied and whether approval of the mandatory public notification rule offended against natural justice principles.
[52] Both parties agreed that the Court might limit its determination to the agreed errors as they were sufficiently material errors of law to allow the appeal. While both parties argued their position on the additional errors, they took the view that in the interests of an efficient and timely resolution of the appeal, if the Court considered the grounds of appeal were made out on the basis of the agreed errors, it need not consider the other errors on appeal.
[53] In those circumstances, I first consider the issues on appeal where is agreed that the Environment Court made errors. In oral submissions Mr Jessen confirmed that if the Court considered the appeal should succeed and the matter should be referred back to the Environment Court on issues where the parties agreed the Court had made an error, the appellant did not pursue the balance of the grounds of appeal and they should be dismissed.
Analysis
[54] Mr Jessen, for the appellant, noted that the process following the Environment Court decision was “untidy” and developed in an iterative way. The Council had taken the view that its position, and the evidence it had adduced at the hearing, was apparent as being clearly opposed to the provision of non-complying activities in the proposed plan. It took the view that it was not necessary to take any steps to ensure that the
Court was aware of its position. Therefore it did not file further submissions or evidence setting out its opposition to a non-complying activity status.
[55] In particular, it did not see any necessity to respond to the relevant portion of the memorandum of IRO-MAR dated 2 November 2020. The relevant paragraph in the memorandum referred to the green highlighting in appendix A (the redline version of DPP5) and referred to the comments and suggested changes so highlighted were “included for completeness” or comments on changes to traffic provisions resulting from the expert conferencing and joint witness statement or “other changes”. This was the copy of DPP5 that the Environment Court had before it.17 The insertion of DEV-R5 and DEV-R6 as non-complying activities in the terms set out in [243] of the judgment were included in the green highlighting in appendix A.
[56] The evidence from the council’s planner, Ms O’Shaughnessy at the hearing, was that she did not support any non-complying status for activities in the proposed plan:18
[67] I do not support non-complying status for any other activities as, in my opinion, it is not necessary or appropriate for this Plan Change. Apart from the non-complying rule discussed above, I consider that the activity descriptions and statuses as agreed by the planners in conferencing are appropriate and justified.
[57]Ms O’Shaughnessy went on to say:19
… defaulting all activities that are not in accordance with MIDA [the overarching plan for the Plan Change area] or any standard to a non-complying activity status would not give effect to the purpose of this Plan Change nor the objectives and policies promoted to achieve the purpose of the Plan Change.
17 Environment Court decision, above n 1, at [214].
18 Statement of Evidence of Ms Brenda O’Shaughnessy (23 August 2022). The non-complying status which she had proposed were limited to applications made before the steps envisaged pre- development. These were designed to deal with activities commenced before Stage 1 of the development and one item in Stage 2 of the development had been completed. Stage 1 included the establishment of the monitoring framework, consultative groups including representation from the community and the preparation of an ecological and landscape management plan. Stage 2 item 1 related to the completion of a suitably designed upgrade of the State Highway 1 intersection and safety improvements.
19 At [72].
[58] Ms O’Shaughnessy was cross-examined on the IRO-MAR suggested changes to add the non-complying activity status and she was consistent in her view that the proposed non-complying activity status was inappropriate and emphasised that it had been rejected by all the planners in conferencing. In cross-examination she said:
So possibly the – no, I don’t agree. There’s the – in terms of the heavy vehicle, the heavy traffic volumes, those are – those numbers are based on the modelled scenarios. They’re not actually based on if you exceed this number of heavy vehicles you will trigger a need to take traffic safety measures and Ms Harrison has noted in her evidence that there is a high degree of tolerance for activities that might generate some more heavy traffic volumes and that will be tested in the consenting process and a discretionary status provides a well-rounded opportunity to do that for an activity that is anticipated. The non-complying status for an industrial activity suggests that it’s not, yeah, that it gives an indication that’s not appropriate. The planners in conferencing agreed on these standards and the matter of non-complying status was discussed in detail at mediation on the 15th of August and the appellant’s planner was present as was I and we rejected that proposition then as I do now.
[59] The Environment Court Judge intervened during that cross-examination of Ms O’Shaughnessy by Ms Baker-Galloway, commenting:
I have got reservations about the non-complying aspect. I mean, if there is an issue in the standards breached, the effects will be assessed under discretionary activity. I am not sure why we are having a great argument about it. Surely that’s what we are concerned with, isn’t it? It’s the effects of the non-compliance?
[60] Mr Jessen said since the only planning evidence from the Council and the consensus of the four planners who conferenced had reached the conclusion that a non-complying activity was inappropriate for this proposal, the Council did not see that it was a live issue. On that basis it formed the view that no response was required to the IRO-MAR memorandum which was apparently setting out the initial IRO-MAR proposal which had been rejected and was unsupported by any evidence. The Council viewed the green highlighting of the non-complying activity as merely setting out the original proposal “for completeness”.
[61] When the Council received the Environment Court decision and saw it stated that the IRO-MAR-proposed Rules DEV-R5 and DEV-R6 had not been opposed by the Council and so were approved, it concluded that the Environment Court had overlooked the Council’s opposition.
[62] Mr Jessen also noted that the Environment Court could not be satisfied that the required evaluation under ss 32 and 74 had been carried out. Section 32(1)(b) requires the evaluation report to examine the proposal at some level of detail, as follows:
32 Requirements for preparing and publishing evaluation reports
(1)An evaluation report required under this Act must—
(a)examine the extent to which the objectives of the proposal being evaluated are the most appropriate way to achieve the purpose of this Act; and
(b)examine whether the provisions in the proposal are the most appropriate way to achieve the objectives by—
(i)identifying other reasonably practicable options for achieving the objectives; and
(ii)assessing the efficiency and effectiveness of the provisions in achieving the objectives; and
(iii)summarising the reasons for deciding on the provisions; and
(c)contain a level of detail that corresponds to the scale and significance of the environmental, economic, social, and cultural effects that are anticipated from the implementation of the proposal.
[63] This evaluation report would be based on the planning and other relevant expert evidence in this case. The Council had done this evaluation and there was no evidence from a planner or other suitably qualified expert which was contrary to the evidence of the Council planner Ms O’Shaughnessy. No planning evidence contradicted that of Ms O’Shaughnessy and three other planners.20 Ms O’Shaughnessy explained the importance of the discretionary rather than the non-complying activity status for this particular zone when questioned at the hearing as follows:
Q. Can you just explain the reasons why you are recommending “discretionary” in that circumstance rather than a default “non- complying”?
A.So it’s my experience in establishing and developing industrial zones that unlike other activities like residential or commercial, industrial
20 IRO-MAR did not provide evidence from a planner. The planners who provided evidence and were involved in the expert conference were instructed by other parties involved at the Environment Court stage.
activities really don’t have other options for where they can establish. So it is important that an industrial zone enables industry to establish. So, you will commonly find that industrial activities in an industrial zone will be permitted and indeed that’s the case in the operative Rangitikei District Plan. And ordinarily in this zone, this proposed industrial zone, that would be the start point, permitted activities for industrial, because this is an industrial zone. However, we are in a situation, an appeal situation, where there has been some comfort and clarity required for the parties and the planners have agreed, the appellant’s planners and the other planners involved, have agreed that a restricted discretionary status would be appropriate for the modelled activities in this case that are industrial, and so if activities other than those seek to establish it seems reasonable that a full discretionary where the default would normally be restricted discretionary, the next most rigorous status seems appropriate.
Q.Now, this area that we’ve mapped and all the lollipop areas within it, I understand that these are modelled on activities likely to arise but is it the case that the way this plan is structured, it does allow other activities to establish within there?
A.Absolutely. The purpose of modelling was not to define exactly the activities, it was in the first instance to address the appellant’s concern that could industrial activities actually establish in this zone area and have minor or less than minor effects, that it was going to be too late if the zone was approved and discovering that that was not achievable. So that was the purpose of modelling activities so we selected or worked with the most credible real options and it’s not the purpose of this plan change to limit that zone to just those activities. It’s about the strategic advantage of the location, the proximity of the Main Trunk Line and State Highway 1.
Q. And that’s how it circles back to your operational need definition?
A. Exactly.
Q.So is it the case that you don’t wish to discourage activities that are not those specific ones, provided that they meet the operational need policy?
A. Yes, that is correct.
[64] Ms Baker-Galloway noted that evidence had been given on behalf of IRO-MAR in relation to the general lack of information and clarity provided on the proposal. At the same time, she confirmed that IRO-MAR’s evidence did not address the specific issues concerning the introduction of a non-complying activity status. Nor was there any planning evidence contradicting that of Ms O’Shaughnessy.21
21 For instance, the statement of evidence of Mr Simon Louden dated 1 September 2022, referring to the consultation process being short and the plan change report containing misleading information as well as the very short timeframe for making submissions.
[65] Ms Baker-Galloway agreed that the Environment Court was in error when it stated at [224] of the decision that the proposed rules “have not been opposed by the Council” and therefore they were approved. She agreed that this error was relatively significant in the circumstances.
[66] There was no planning evidence to support the adoption of a non-complying activity status. The adoption by the Court of the non-complying activity status without reference to the evidence was particularly striking given that only a few paragraphs earlier, the Court had referred to the planning evidence as follows:22
Discussion and Finding on Planning
[208] Ms O’Shaughnessy’s evidence is that the proposed plan change is essential to enable the realisation of industrial development growth opportunities based on the strategic transport advantages presented by the site of the MIDA.
[209] She has completed a comprehensive evaluation of the proposed plan change against each of the relevant documents in the planning hierarchy either as detailed in her evidence or in the supporting Marton Rail Hub- Comprehensive Development Plan Part A-Plan Change Appeal Supporting Information and S32AA Evaluation.
[210] She is satisfied that the proposed plan change has been prepared in accordance with the Council’s functions to give effect to the MIDA under s 31 and the provisions of Part 2 of the RMA.
[211] She is also satisfied that an appropriate evaluation has been undertaken under s 32 as well as the re-evaluation undertaken under s 32AA.
[212] Finally, she considers that the proposed plan change is the most appropriate way to achieve the purpose of the RMA with the plan change provisions in DPP (eventually Version 5) being the most appropriate way of achieving the proposed plan change objectives.
[213] Her evidence on these matters was not contested in any substantive way by any other party and from our assessment we accept her evidence.
Plan Change Provisions
[214] In a number of places in this decision we have referred to Version DPP5 of the proposed plan change provisions. Having done so we note that over the course of the hearing the Council had produced a number of earlier versions of these provisions all identified by the same title DPP – Proposed Provisions. The final track changed version we have been given has been identified as DPP5-IROMAR comments 2 November 2022.
22 Environment Court decision, above n 1.
[67] The Environment Court then evaluated the wording of the provisions in DPP5 and said:
[220] We now evaluate the alternative wording still in contention and set out our findings on which is to prevail. Where there is no reference to a particular provision, the uncontested wording in Version DPP5 for that provision is approved.
[68] Following that comment the Court then listed a number of objectives and policies, noting whether it adopted alternative wording proposed by IRO-MAR or not. It then dealt with the provisions subject to appeal as follows:23
Rules
DEV-R5 and DEV-R6: IROMAR seeks two new provisions with non-complying status: DEV-R5 for any activity not provided for in DEV- R3 and Appendix 1; and DEV-R6 for any activity that breaches B1.5, DEV- S2, DEV-S3, DEV-S4, DEV-S5, and DEV-S13.
[224] On the basis that these proposed Rules DEV-R5 and DEV-R6 have not been opposed by the Council, they are approved.
[69] A few further paragraphs later, the Environment Court confirmed that it had accepted the proposals of the Council and in particular had accepted Ms O’Shaughnessy’s planning evidence that the proposed provisions on DPP5 were the “most appropriate way to achieve the purpose of the RMA and the plan change objectives”.24 The Court went on to dismiss the appeal.25
[70] I am satisfied that the decision to adopt the relevant rules providing for a non-complying activity status was a material error. In particular, the Council did specifically oppose those proposed rules. The only planning evidence given appears to have been accepted by the Court and that was that the activity status proposals should be discretionary rather than non-complying. The strong evidence of the Council’s planning expert, upon which the mandatory evaluation report of the proposal in accordance with ss 74 and 32 was based, also supported the discretionary activity status. This was supported by three other planners.
23 At [223] and [225].
24 At [234].
25 At [233]–[238].
[71] Turning to questions 1 and 2 for the appeal relating to that part of the Decision at [224] concerning approval of Rules DEV-R5 and DEV-R6, I set these out below again for convenience:
Question 1: Did the Environment Court err by taking into account an irrelevant matter when it approved Rules DEV-R5 and DEV-R6 on the basis of the appellant’s perceived absence of opposition?
Question 2: Did the Environment Court err by failing to take into account relevant evidence from various sources in deciding to approve Rules DEV-R5 and DEV-R6?
[72]Both questions may be answered in the affirmative.
[73] The second part of the Decision appealed against relates to the decision at [225] to adopt the IRO-MAR proposal that there be mandatory public notification of applications for consent. The Environment Court said:
[225] IROMAR seeks that consent applications pursuant to Rules DEV-R2 to R6 be publicly notified. While this has not been opposed by the Council, we approve the public notification of Rules DEV-R3, DEV-R4, DEV-R5 and DEV-R6 (but not DEV-R2) on the basis that, in the specific context of this plan change, these Rules have either Discretionary or Non-complying status.
[74] In the case of public notification, there had been no specific planning evidence on the need or otherwise for public notification of all consents. Mr Jessen noted that the proposal from IRO-MAR that consent applications be publicly notified was made in a memorandum of counsel filed by IRO-MAR on 2 November 2022 after the evidence was before the Court and the hearing had concluded. That memorandum attached the version of DPP5 which included the green highlighted proposals referred to above.
[75] The Council submits that it did not realise the issue of public notification remained a live issue and therefore had not responded directly to the proposal in the memorandum of November 2022. It was of the view that the planning evidence was before the Court, no other substantive evidence had been provided on that point and therefore it was clear that a proposal such as general public notification for any consent application was not contemplated and would be opposed by the Council.
[76] Ms Baker-Galloway accepts that the specific issue of a public notification of the consent application was not before the Court until the memorandum of 2 November 2022, filed after the hearing. She says the issue of public notification, however, was squarely before the Environment Court in general terms. She points to the evidence of representatives of IRO-MAR, Mr Simon Loudon and Ms Felicity Wallace, who both expressed their concerns about the lack of communication notification or clear messaging concerning the proposed plan change. Neither Mr Loudon nor Ms Wallace were planners or experts but were representatives of the residents’ group. Earlier memoranda to the court before the hearing also emphasised the need for general public notification of the plan change itself.26
[77] Nevertheless, Ms Baker-Galloway responsibly confirms that the adoption of the proposal for notification is material, and in view of the Environment Court’s comments about the planning evidence and the lack of evidence on the specific point of public notification, the decision was, at the least, unexpected.
[78] In my view, the Decision at [225] suffers from the same error as that concerning the adoption of the non-complying activity status. There was no planning evidence to support it, there was no evaluation by the Council, as is required under the legislation, that would have indicated public notification was a viable option, and the only reason given by the Environment Court was the lack of opposition to that provision by the Council.
[79] It is well-established that it is not necessary for a decision-maker to record every finding on every piece of evidence, notwithstanding the fact that the conclusions reached may involve “unarticulated rejections of contentions of witnesses or submissions for parties”.27 That is particularly so for an expert tribunal such as the Environment Court.28 However in the circumstances of this case, given the absence of planning evidence specifically dealing with a proposal for public notification, the lack of any evaluation on the issue and the fact that the proposal was against the tenor
26 For instance, memorandum on behalf of IRO-MAR dated 22 December 2021. The joint memorandum of counsel dated 19 August 2022 also noted at [5(f)] that a dispute remained on the “community awareness of the proposal and the impact it will have on Marton.”
27 Contact Energy Ltd v Waikato Regional Council (2007) 14 ELRNZ 128 (HC) at [65]–[67].
28 At [66].
of the planning evidence, it appears that the Environment Court’s relied solely on the lack of Council opposition. This was an error.
[80] I conclude this was a material error in the circumstances. This amounted to the Environment Court taking into account an irrelevant matter. Therefore the answer to question 6, set out below, is also in the affirmative:
Question 6: Did the Environment Court err by taking into account an irrelevant matter when it approved the mandatory public notification rule on the basis of the appellant’s perceived absence of opposition?
Sufficiency of Environment Court reasons
[81] Counsel filed further written submissions by way of a joint memorandum concerning the question of the extent of reasons that might be appropriate to be given by the Environment Court. Counsel cited the relevant case law, on the point.29 I agree with their conclusion that in general terms reasons are not technically required for every element of every decision but are practically required for reasons of transparency and open justice.
[82] The Court of Appeal in Lewis v Wilson & Horton Ltd recognised that on occasion, reasons may be abbreviated and/or will be evident without express reference.30 However, in this case, to the extent that the Environment Court’s reasons are not recorded, the appellant’s position is that they are not “self-evident” in the way envisaged in that case.
[83] Environment Court hearings often deal with many matters of detail and reasons relating to all the issues raised are not necessary. However, the significant issues must be dealt with by reasons which are sufficiently clear to be intelligible such that the appellate court can be confident that they conform with the law.31 In this case, I am satisfied that the reasons given were sufficient and clear. Although as I have found in relation to the two provisions under appeal were based on material errors.
29 In particular Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75].
30 Lewis v Wilson & Horton Ltd, above n 29, at [81].
31 Murphy v Rodney District Council [2004] 3 NZLR 421 (HC) at [26]–[27].
Relief
[84] I allow the appeal on the basis that the Environment Court made material errors. I resolve the issues on appeal in the following way:
(a)The answers to questions 1 and 2 (in relation to [224] of the Decision) as follows are yes:
Question 1: Did the Environment Court err by taking into account an irrelevant matter when it approved Rules DEV-R5 and DEV-R6 on the basis of the appellant’s perceived absence of opposition?
Question 2: Did the Environment Court err by failing to take into account relevant evidence from various sources in deciding to approve Rules DEV-R5 and DEV-R6?
(b)The answer to question 6 (in relation to [225] of the Decision) is yes:
Question 6: Did the Environment Court err by taking into account an irrelevant matter when it approved the mandatory public notification rule on the basis of the appellant’s perceived absence of opposition?
[85] Having reached these conclusions, it is not necessary to consider the other grounds of appeal, and both the appellant and respondent indicated that in those circumstances determinations on the balance of the grounds of appeal were not sought. Accordingly I dismiss those grounds.
[86] The appellant seeks that the relevant parts of the Decision to be remitted to the Environment Court for reconsideration. It says that the Environment Court is best placed to assess the issues with input of the parties as to the nature and extent of the reconsideration necessary to address the errors. Both the appellant and the interested party will wish to be heard by the Environment Court in respect of that reconsideration. Ms Baker-Galloway supports disposition of the appeal by remitting the matter back to the Environment Court.
[87] I agree that the appropriate relief is to quash the relevant determinations of the Environment Court Decision set out in [224] and [225] more particularly described above and remit those matters for reconsideration to the Environment Court in light of the findings in this judgment.
[88] Leave is reserved for either party to apply for any further directions that may be necessary to implement this decision and directions.
Costs
[89] The parties agree that costs should lie where they fall. Accordingly, no order is made as to costs.
Grice J
Solicitors:
Cooper Rapley, Palmerston North Anderson Lloyd, Queenstown Anderson Lloyd, Christchurch
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