Auckland Council v Byerley Park Ltd [2013] NZHC 3402 (17 December 2013)

Last Updated: 20 December 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2949 [2013] NZHC 3402

IN THE MATTER of the Resource Management Act 1991

AND

IN THE MATTER of an appeal pursuant to s 299 of the Act

BETWEEN AUCKLAND COUNCIL Appellant

AND BYERLEY PARK LTD Respondent

Hearing: 5 September 2013

Counsel: HJ Ash and BC Parkinson for Appellant

PT Cavanagh QC and N Taefi for Respondent

Judgment: 17 December 2013

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 17 December 2013 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Simpson Grierson (Auckland) for Appellant

Daniel Nakhle, Nakhle Group (Auckland) for Respondent

AUCKLAND COUNCIL v BYERLEY PARK LTD [2013] NZHC 3402 [17 December 2013]

Introduction

[1] The Auckland Council appeals a decision of the Environment Court delivered on 7 May 2013.¹

[2] The respondent owns a horse training centre. In 2010 a proposed change to the Operative District Plan (“PC30”) gave it the opportunity to submit to the appellant that definitions of “equestrian centre” and “horse training centre” should be amended to allow for accommodation for staff and their families.

[3] The Consultant Planner pointed out in his report to the Commissioner Hearing Panel that the amendments introduced by PC30 did not change the definitions of “equestrian centre” and “horse training centre”. He said that all PC30 proposed was to make them permitted activities. He considered, therefore, that the changes to the definitions sought by the respondent were outside the scope of the

Plan Change.² In fact, horse training centres were already a permitted activity under

“Farming” in the Rural Zone and so PC30 did not propose any changes at all which

would affect horse training centres.

[4] The Hearing Commissioners delivered their determination on 11 July 2012.³

On this issue, their decision conformed with the advice of the Consultant Planner:⁴

The amendments introduced by PC30 have the effect of making ‘equestrian

centres and horse training centres’ a permitted activity where previously

‘equestrian centres’ were included within the definition of ‘active recreation’ and required consent as a discretionary activity. The definitions of these activities are not amended by PC30, therefore it is considered outside the scope of the Plan Change to amend these as sought by the submitter (refer section 5 of this report).

[5] The respondent appealed to the Environment Court. The Court allowed the appeal. It amended the definition of “horse training centre” to include provision for

_{housing and accommodation for staff.}

¹ _{Byerley Park Ltd v Auckland Council [2013] NZEnvC 90.}

² Hearing Report on submissions to Plan Change 30 and consequential Variation 6 to Proposed

Plan Change 14 to the Auckland Council District Plan (Franklin section), Waikato District Plan

_{(Franklin section) and Hauraki District Plan (Franklin section), at 8.7.}

³ Decisions Report on submissions to Plan Change 30 and consequential Variation 6 to Proposed Plan Change 14 to the Auckland Council District Plan (Franklin section), Waikato District Plan (Franklin section) and Hauraki District Plan (Franklin section).

⁴ Ibid, at 8.7.4.

[6] The Environment Court also proceeded on the basis that:⁵

The issue in this case turns upon the definition of ‘equestrian centre’ and

‘horse training centres’ used in Plan Change 30 (PC30). This made such activities permitted within the Rural Zone.

[7] The Environment Court concluded as a fact that the respondent’s business operation is not an equestrian centre. Accordingly, it considered only the definition of “horse training centres”.

[8] The appellant’s notice of appeal of the Environment Court’s decision was filed in this Court on 28 May 2013. It alleges that the Environment Court made errors of law. In its particulars, the appellant identified many alleged errors and raised many questions of law. Among the alleged errors was a failure by the Environment Court to appreciate that PC30 did not change the activity status of horse training centres. They were already a permitted activity under “Farming” activity in the Rural Zone.

[9] The appeal was scheduled for hearing in this Court on 5 September 2013. The respondent’s submissions were filed on 6 August 2013. They defended the Environment Court’s judgment on the basis that the Environment Court had considered a Plan Change which introduced “equestrian centre” and “horse training centre” as permitted activities in the Rural Zone.

[10] However, on the day of the hearing, the respondent filed supplementary submissions:⁶

1. It has recently come to the Respondent’s attention that Plan Change

30 (“PC30”) did not introduce “Horse Training Centres” as

permitted activities in the rural zone.

(a) PC30 was promoted as a variation to Plan Change 14 (“PC14”) to address matters that had been overlooked or not dealt with effectively through PC14.

(b) Farming is a permitted activity under PC14. Appendix 1 to PC14 states that “FARMING means a land based activity that relies on the productive capacity of natural resources and includes HORTICULTURE, HORSE TRAINING CENTRES ...”

⁵ _{Byerley Park Ltd v Auckland Council, above n 1, at [9].}

⁶ Supplementary synopsis of submissions on behalf of respondent, dated 5 September 2013.

2. The Environment Court, the parties and their respective experts, and the Hearing Commissioner at first instance proceeded on the assumption that the amendments introduced by PC30 had the effect of making “Horse Training Centres” a permitted activity under the Plan. However, it transpires this assumption was incorrect.

[11] This rather altered the position for the respondent. It now submitted:⁷

6. The Respondent’s position is that the Environment Court was entitled to make the amendment pursuant to s 293 of the Resource Management Act 1991 (“Act”).

7. While the Environment Court’s decision does not specifically refer to s 293, the Court undertook the necessary analysis and effectively made orders under s 293.

[12] The respondent submitted that in these circumstances I should remit the case to the Environment Court for reconsideration.

[13] To its credit, the appellant did not seek an adjournment. I heard argument and gave leave for further written submissions to be filed. Both parties took advantage of that opportunity.

Issue

[14] The issue for me to determine is whether I should remit the case to the Environment Court for reconsideration or whether I should allow the appeal on the ground that at law the Environment Court does not have the jurisdiction to grant the respondent’s application to amend the definition of “horse training centre”.

Discussion

[15] The Court’s jurisdiction on an appeal from a decision of the Environment

Court is conferred by s 299 of the Resource Management Act 1991 (“the RMA”):

299 Appeal to High Court on question of law

(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.

⁷ Ibid.

(2) The appeal must be made in accordance with the High Court Rules, except to any extent that those rules are inconsistent with sections 300 to

307.

[16] There is no doubt that the Environment Court’s jurisdiction on the case

before it is a question of law.

[17] Section 293 of the RMA provides (relevantly):

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.

(2) The Court—

(a) must state its reasons for giving a direction under subsection

(1); and

(b) may give directions under subsection 1 relating to a matter that it directs to be addressed.

[18] The appellant submits that the Environment Court had no jurisdiction to hear the respondent’s appeal. That is because what was sought was relief outside the scope of a variation to a Plan Change. Further, even if it had the jurisdiction to hear the respondent’s appeal, the Environment Court could not direct the appellant to propose changes to the Operative Plan. Section 293 does not give such a power.

[19] On the first point, the appellant submits that because the respondent’s appeal was not “on” the Plan Change the Environment Court could not grant it.

[20] On the second point, the appellant submits that in any event s 293 gives a power limited to directing changes to a “proposed policy statement or plan”. It does not extend to a power to direct a local authority to make changes to operative provisions in a District Plan that are not the subject of the Plan Change or variation.

[21] So, what does s 293 empower the Environment Court to do? First, I accept the appellant’s submission that s 293 does not confer a general discretion. It must be read within the overall scheme of the RMA for Plan Changes and appeals. It does not give the Environment Court a power to make planning decisions if the Court disagrees with decisions made by a local authority.

[22] Second, I accept that s 293 should be read with the powers granted by ss 290 and 292. These read, relevantly:

290 Powers of Environment Court in regard to appeals and inquiries

(1) The Environment Court has the same power, duty, and discretion in respect of a decision appealed against, or to which an inquiry relates, as the person against whose decision the appeal or inquiry is brought.

(2) The Environment Court may confirm, amend, or cancel a decision to which an appeal relates.

...

292 Remedying defects in plans

(1) The Environment Court may, in any proceedings before it, direct a local authority to amend a regional plan or district plan to which the proceedings relate for the purpose of—

(a) Remedying any mistake, defect, or uncertainty; or

(b) Giving full effect to the plan.

(2) The local authority to whom a direction is made under subsection (1)

shall comply with the direction without using the process in Schedule 1.

[23] It is clear that s 292 is limited in its application. It does not confer on the Environment Court a power to step into the shoes of a local authority and make planning decisions. As the Environment Court has commented, there is a “clear and strong statutory background of formal processes for amending planning documents”.⁸

[24] The appellant submits that s 293 does not give the Environment Court the power to grant relief beyond the scope of the Plan Change or to direct a change to an

_{Operative Plan.}

⁸ Re Thames-Coromandel District Council Environment Court, Wellington W034/09, 15 May

2009, at [17].

[25] The respondent submits that s 293 does confer jurisdiction on the Environment Court even if the appeal before it does not relate to a submission “on” a Plan Change. I am referred to the discussion of the s 293 jurisdiction by the Environment Court in High Country Rosehip Orchards Ltd & Ors v Mackenzie District Council.⁹ In that case the Environment Court had to consider issues which were not unforeseen but expressly identified in the operative District Plan or in the proposed Plan Change which was under appeal. It considered that s 293 gave it jurisdiction to consider issues raised but not dealt with by the proposed Plan Change.¹⁰

[26] The respondent argues further that if the respondent’s submission to the Environment Court had been “on the Plan Change” then the s 293 jurisdiction would be redundant. So, that cannot be a factor prerequisite to the exercise of the jurisdiction:¹¹

In light of the above, the Respondent submits that provided the amendment/clarification sought is relevant to the subject matter of the proceedings before the Court, there is nothing preventing the Court from directing a local authority to make changes to operative provisions in a district plan that are not the subject of the plan change or variation.

[27] The respondent submits that if the Environment Court does have jurisdiction under s 293 to make the direction it did, then it should have the opportunity to consider exercising it. Accordingly, this is an appropriate case for remitting back.

Decision

[28] The Environment Court has been created by statute and its jurisdiction is defined by statute. I bear in mind that the functions of territorial authorities are also set out in the RMA, particularly in s 31:

31 Functions of territorial authorities under this Act

(1) Every territorial authority shall have the following functions for the purpose of giving effect to this Act in its district:

⁹ _{High Country Rosehip Orchards Ltd & Ors v Mackenzie District Council [2011] NZEnvC 387.}

¹⁰ _{Ibid, at [471].}

¹¹ Submissions in reply dated 19 September 2013, at para 11.

(a) The establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district:

(b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of—

(i) the avoidance or mitigation of natural hazards; and

(ii) the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances; and

(iia) the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land:

(iii) the maintenance of indigenous biological diversity: (c) Repealed.

(d) The control of the emission of noise and the mitigation of the effects of noise:

(e) The control of any actual or potential effects of activities in relation to the surface of water in rivers and lakes:

(f) Any other functions specified in this Act.

(2) The methods used to carry out any functions under subsection (1)

may include the control of subdivision.

[29] Territorial authorities are required to have District Plans to assist them to carry out their statutory functions so as to achieve the purpose of the RMA.¹²

[30] The RMA has a detailed regime to which territorial authorities must adhere in preparing or changing their District Plans. Schedule 1 to the RMA pertains. Importantly, clause 5 of Schedule 1 requires public notification of proposed plan changes, and members of the public (with some constraints) have the right to be heard on proposed plan changes.

[31] In approaching the interpretation of s 293, I take the view that the overall scheme of the RMA does not envisage changes being made to District Plans which

are outside the scope of publicly notified proposed changes. That would undermine the right of the public to be heard on proposed plan changes.

[32] I also take the view, in line with my previous remarks, that the functions of local authorities are theirs, and not the Environment Court’s.

[33] In this case, there has been public notification of PC30. PC30 proposes nothing about horse training centres. All it proposes is to make equestrian centres a permitted activity within the Rural Zone.

[34] A change to the definition of “horse training centre” can be done by the Environment Court only if its statute-conferred jurisdiction gives it that power. I say now that I do not consider the Environment Court’s changes to be “clarifications” of the definition. Creating additional rights to house people in a Rural Zone goes beyond clarification of a definition which has never included reference to housing and accommodation. I agree with the Hearing Commissioners in this regard:¹³

The definitions of these activities do not include references to accommodation and “dwelling houses” are separately defined in the District Plan and managed through the rules in 23A.1.1 (clauses 5, 6 and 7) of PC14.

[35] Clause 14 of Schedule 1 to the RMA provides, relevantly:

(1) A person who made a submission on a proposed policy statement or plan may appeal to the Environment Court in respect of—

(a) a provision included in the proposed policy statement or plan; or

(b) a provision that the decision on submissions proposes to include in the policy statement or plan; or

(c) a matter excluded from the proposed policy statement or plan; or

(d) a provision that the decision on submissions proposes to exclude from the policy statement or plan.

(2) However, a person may appeal under subclause (1) only if—

(a) the person referred to the provision or the matter in the person's submission on the proposed policy statement or plan; and

(b) the appeal does not seek the withdrawal of the proposed policy statement or plan as a whole.

[36] Was the respondent entitled to appeal?

(a) The definition of “horse training centre” was not a provision included

in PC30.¹⁴

(b) The definition of “horse training centre” was not a provision that the

Hearing Commissioners propose to include in PC30.

(c) The definition of “horse training centre” was not a matter excluded

from PC30. It was never included.

(d) The definition of “horse training centre” is not a provision that the

Hearing Commissioners propose to exclude from PC30.

I conclude that the threshold to appeal was not crossed. The respondent chose to address the Hearing Commissioners on a part of the Operative District Plan that was not a subject of PC30, nor affected by PC30. The Hearing Commissioners rightly decided that it was outside the scope of their hearing. The Environment Court should have decided that it had no jurisdiction to hear the appeal.

[37] If I am wrong in this, I nevertheless reach the same conclusion on an examination of the appeal jurisdiction conferred by ss 290, 292 and 293.

[38] Section 290 is empowering. In this case it puts the Environment Court into the shoes of the Hearing Commissioners. It does not enable the Environment Court to make decisions beyond the scope of the jurisdiction of the Hearing

_{Commissioners.}

¹⁴ I consider that “proposed policy statement or plan” means “proposed policy statement or proposed plan”. Pursuant to s 43AAC of the RMA, “proposed plan” includes “a change to a plan proposed by a local authority that has been notified under clause 5 of Schedule 1 but has not become operative in terms of clause 20 of Schedule 1”.

[39] Section 292, I find, relates to an operative plan. It is a power of correction, not a power of amendment or substitution.

[40] Section 293 applies (inter alia) to proposed plan changes. I do not accept the respondent’s submission that it relates to proposed policy statements and operative plans. That not only is against a plain reading of the section but would be at odds with s 292 and with other uses of the phrase in the RMA (including clause 20 of Schedule 1).

[41] Section 293 confers a general discretion. But, like all general discretions, it is not unfettered. It can only be exercised in the context of the appeal before it. I respectfully adopt Harrison J’s dicta in Hamilton City Council v Historic Places Trust:¹⁵

The primary purpose of s 293 must be to provide the Court during the hearing of an appeal with a mechanism for expanding the nature and extent of the relief sought beyond the scope of the reference where appropriate (Apple Fields, para 36) but always, of course, related back to and arising out of the reference itself. The reference defines the scope of the appeal or inquiry and the appropriate relief. Consequently there must be a nexus between the reference itself and the changed relief sought. Chisholm J noted the rationale in Apple Fields as being that (para 37):

Despite the best efforts of everyone involved in the process of preparing or changing a plan, the reality is that unforeseen issues or proposals beyond the scope of the reference can arise and that in some cases it will be more appropriate for the matter to be resolved at the Environment Court level than by referring it back so that the territorial authority can initiate a variation.

[Emphasis added]

[42] Accordingly, I find that s 293 does not give the Environment Court the ability to change part of an operative plan which is not the subject of a proposed plan change, or affected by a proposed plan change. The present case is different to High Country Rosehip Orchards Ltd.¹⁶ In that case, issues were raised but not dealt with by the proposed Plan Change, and all related to the proposed Plan Change. In this case, to allow the respondent’s appeal, the Environment Court would have to make changes to the Operative District Plan not contemplated by PC30 and therefore not

_{the subject of public notification.}

¹⁵ _{Hamilton City Council v Historic Places Trust [2005] NZRMA 145 (HC) at [25].}

¹⁶ High Country Rosehip Orchards Ltd & Ors v Mackenzie District Council, above n 9.

[43] The appeal is allowed. The decision of the Environment Court is quashed. I

decline to remit the case back to the Environment Court for reconsideration.

[44] The appellant is entitled to costs on a 2B basis. These may be fixed by the

_Registrar.

Brewer J