Case Law Update

By Penny Anson

The High Court has kicked off the New Year with two significant resource management decisions. 

Of significance to Auckland, Justice Whata has confirmed the Auckland Unitary Plan Independent Hearing Panel’s recommendations on upzoning, and Council’s subsequent acceptance of those, in a decision released on 13 February ([2016] NZHC 138).

Of significance to all resource consent applications, R J Davidson Family Trust v Marlborough District Council ([2017] NZHC 52) challenges the application of Part 2 and the ‘overall broad judgement’ to proposals that do not comply with relevant planning provisions.

We provide a brief overview of the facts and significance of both these cases below.

Albany North Landowners and Others v Auckland Council

This decision by the High Court addresses the Auckland Unitary Plan Independent Hearing Panel’s recommendations, and Auckland Council’s acceptance of those recommendations, to upzone large portions of Auckland to urban zones enabling greater residential density than previously anticipated.

Essentially, the decision confirms that the Panel (and therefore the Council) acted lawfully in upzoning over 29,000 properties and therefore the appellants’ concerns on scope of submissions were not upheld. This includes the vocal Character Coalition, who previously raised concerns that the amenity values of established, “leafy” suburbs would be adversely affected by greater densities enabled by the Unitary Plan’s residential zones.

Justice Whata acknowledged two test cases proved to be the exception to the determination of lawful scope – one in Parnell (relating to the application of the Dilworth View Protection Plane) and one in Takanini (relating to an out of scope change from Light Industry to Residential – Mixed Housing Suburban). The decision essentially gives leave for those affected parties to pursue substantive appeals, however these will be limited to specific properties rather than the broader scope of other appeals.

The decision all but settles 51 appeals and judicial review applications out of a total of 106 Unitary Plan appeals that were filed late last year. It also “unlocks” the density of the residential areas in question and contributes significantly to delivery of greater development and housing supply enabled by the Unitary Plan.

R J Davidson Family Trust v Marlborough District Council

This case concerned a proposal to establish the latest of 38 mussel farms in Beatrix Bay, Marlborough Sounds. The non-complying activity consent application was declined by the Council and then again on appeal to the Environment Court.

The crux of the case in the High Court centred on whether the Environment Court had erred in failing to consider the relevant statutory instruments in the context of Part 2 of the Resource Management Act (“RMA”), being the Purpose and Principles of the Act, which is directly referenced in section 104D pertaining to consideration of non-complying activities.

Until this case, it was accepted practice for non-complying activity consent applications to be considered using an overall broad judgement approach that assessed the relevant objectives and policies of the plans in the context of the over-arching purpose and principles of the RMA. 

It can be difficult for non-complying activities, by virtue of their activity status, to demonstrate consistency with the objectives and policies of the relevant plans, but the purpose and principles of the RMA provide an additional framework for assessment, which is often more enabling.

This decision extends the application of the King Salmon case – which held that there is no need to refer back to Part 2 of the RMA in determining plan changes – such that this approach is now adopted in respect of resource consent applications too.

The reasoning in both cases is that the hierarchy of plans in the RMA framework is expected to have already “given substance to the principles in Part 2”. Therefore, overriding specific objectives and policies in relevant plans in favour of “general recourse to Part 2” would render those plan provisions ineffective.

What this means for planners and other practitioners in the resource management field is that the specific wording of objectives and policies in plans will be of great importance – as now the opportunities to refer back to Part 2 in an overall broad judgement approach are limited to where the plan provisions are incomplete or give rise to uncertainty in respect of interpretation. The latter will be an exercise in interpretation itself!

We can see this decision adding yet another layer of debate to the generally contentious nature of assessing non-complying activity consent applications. Watch this space!