BROOKBY QUARRIES LIMITED v AUCKLAND COUNCIL [2019] NZHC 2648

BROOKBY QUARRIES LIMITED v AUCKLAND COUNCIL [2019] NZHC 2648 [17 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-792[2019] NZHC 2648BETWEEN BROOKBY QUARRIES LIMITEDENV-2018-AKL-000150AppellantAND AUCKLAND COUNCILRespondentROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATED;ENVIRONMENTAL DEFENCE SOCIETYINCORPORATED; FULTON HOGANLIMITEDSection 274 PartiesHearing: On the papersCounsel: R E Bartlett QC and B J Matheson for Appellant and FultonHogan LimitedM Gribben and J Robertson for RespondentS Gepp for Royal Forest and Bird Protection Society of NZ Inc asagent of Environmental Defence Society IncJudgment: 17 October 2019JUDGMENT OF WHATA JThis judgment was delivered by me on 17 October 2019 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Russell McVeagh, AucklandBuddle Findlay, AucklandRoyal Forest and Bird Protection Society of New Zealand IncorporatedIntroduction[1] The parties to this appeal are the Royal Forest and Bird Protection Society ofNew Zealand Incorporated (Forest and Bird), the Environmental Defence SocietyIncorporated, and Brookby Quarries Limited and Fulton Hogan Limited - two largequarry operators in Auckland (together, Quarry Operators) - as well as AucklandCouncil. The case centres on which planning provisions should regulate the removalof vegetation in an area that is classified in the Auckland Unitary Plan (AUP) by asignificant ecological area (SEA) overlay, within a Special Purpose Quarry Zone(SPQZ). On 18 May 2018, I allowed an appeal from Forest and Bird amending theprovisions of the Proposed Auckland Unitary Plan (PAUP) in accordance with a draftconsent order. 1[2] Following that judgment, Brookby Quarries Limited lodged an appealchallenging the AUP objectives and policies, matters of discretion and assessmentcriteria relating to the vegetation removal.[3] Before the Environment Court hearing, an issue arose as to whether mydirections provided the Environment Court with jurisdiction to reconsider the AUP'sobjectives and policies. The Environment Court now refers several questions of lawto this Court for determination, pursuant to s 287 of the Resource Management Act1991 (RMA). These are set out below at [13].Background[4] The procedural background to the case is set out in the Environment Court'sstatement of the case largely as follows.[5] The PAUP contained several areas subject to a SEA overlay. The IndependentHearings Panel (IHP) recommended that Auckland Council delete the SEA overlaywhere it overlaid the SPQZ, because it believed there was a conflict between thepurpose of the zone as a quarry and the SEA protection, which would frustrate thepurpose of the SPQZ.1 Royal Forest and Bird Protection Society of New Zealand Inc v Auckland Council [2018] NZHC1069.[6] The IHP also recommended deletion of all the objectives, policies, rules,matters of discretion and assessment criteria that had been in the PAUP addressing theremoval of SEA vegetation within an SPQZ, and which had been the subject ofmediation by the parties. Forest and Bird appealed that decision to the High Court,arguing that the deletion of the SEA overlay, based on other planning imperatives,constituted an error of law.[7] The other parties to the appeal (which included all of the parties in this matter)agreed there had been an error of law and that the SEA overlay should be reinstated(or abided the Court's decision). Because the IHP and the Council had also deletedthe surrounding objective, policy and rule matrix, the parties agreed to criteria thatwould constitute an "alternative solution" for the purposes of ss 148 and 156 of theLocal Government (Auckland Transitional Provisions) Act 2010 (LGATPA).However, the parties could not agree on whether there was jurisdiction to includeparticular objectives or policies, so the alternative solution did not contain any specificobjectives or polices.[8] I endorsed the approach proposed by the parties and resolved the issue ofjurisdiction as follows:[35] ... ordinarily it would be a matter for this Court to determine whetherrelief was within scope. The facts here are, however, complicated by thePanel's decision to remove the SEAs from quarry lands and with it theplanning and policy matrix that applies to SEAs, which included restricteddiscretionary activity status benched marked against that policy matrix. Therelief then sought seeks to reinstate the SEAs, the associated policy matrix andthereby restricted discretionary status.[36] Problematically, this leaves the affected quarries in a worse positionthan that envisaged by the Panel, which may have, had it adopted the correctapproach, sought to identify given areas as SEAs but modify the activity statusof the activities in the applicable areas considering other planning imperatives.It seems to be therefore, that fairness dictates that there should be anopportunity afforded to affected persons to seek modification of the activitystatus even though the SEA designation applies to the relevant area. Given thatat least one submitter sought the removal altogether of SEAs from quarrylands, I am satisfied there is scope to resolve the substantive issue.[37] On that basis, the Environment Court need not be troubled with issuesof jurisdiction. Rather, it must assess whether the Council approved versionof the SEA policy matrix, including restricted activity status, should apply toquarry lands.[38] Save in this respect, I endorse the approach proposed by the parties[9] I then set out a draft consent order in an appendix to the judgment. Thisspecified that:6. Pursuant to the power vested in it under the Local Government(Auckland Transitional Provisions) Act 2010 the Court orders, byconsent, that the Auckland Unitary Plan be amended by:(a) Including within the AUP maps, the identification ofSignificant Ecological Areas on certain sites, as shown inAppendix A.(b) Including a new activity for Any vegetation alteration orremoval within a Quarry Zone, within an SEA, in ChapterE15, along with matters of discretion and assessment criteriarelated to this new activity, as shown in Appendix B.17. These amended provisions be treated as an alternative solution for thepurposes of sections 148 and 156 of the LGATPA, with this ordertriggering a right of appeal to the Environment Court under section156(1) limited to the matters set out in paragraph 6(a) and (b) of thisorder.8. There is no order as to costs.[10] As the Environment Court has noted, the consent order was only in draft form,and was not separately issued or sealed by the High Court.[11] In the week prior to the Environment Court hearing of 25 March 2019, counselbecame aware of a potential jurisdictional issue related to the manner in which theconsent order had been framed. The potential areas of uncertainty included:(a) Whether paragraphs [6](a) and (b) and [7] should be read literally,thereby excluding any ability to consider the broader objective/policyframework, or whether any objective and policy framework associatedwith those identified provisions was implicitly within scope.(b) Whether the consent order intended to limit the right of appeal under s156 of the LGATPA and, if not, whether the broader objective/policyframework was amenable to appeal under s 156.[12] At the commencement of the substantive hearing on 25 March 2019, the partiesagreed that there would be benefit in resolving the potential jurisdictional issue priorto the Environment Court hearing. This was particularly because all the expertevidence filed with the Environment Court addressed the policy framework, withpositions ranging from the view that the existing framework is adequate and that onlyminor amendments to the policies are warranted, through to support for a newobjective and policy specific to vegetation removal for mineral extraction in SPQZs.Statement of case[13] Given the concerns about jurisdiction, the Environment Court referred thefollowing questions to High Court:(a) Did the High Court in its decision resolving the High Court Appealintend to provide for a s 156(1) LGATPA appeal right in relation to AUPobjectives and policies relating to the Significant Ecological Areaoverlay as it applies to mineral extraction activities occurring on landzoned Special Purpose – Quarry Zone?(b) If so, does the consent order provide scope for a person to appeal theAUP objectives and policies relating to the Significant Ecological Areaoverlay as it applies to mineral extraction activities occurring on landzoned Special Purpose – Quarry Zone?(c) If the consent order does not provide scope, is there nonetheless scopefor the parties to appeal to the Environment Court any objectives andpolicies of the Significant Ecological Area overlay as they apply tomineral extraction activities on land zoned Special Purpose – QuarryZone under s 156(1) of the LGATPA?Position of the parties[14] The Council and the Quarry Operators submit that the answer to all questionsis yes. Royal Forest and Bird adopt a neutral position. As will become apparent, Iagree that the answer to questions (a) and (b) is yes, but that the draft consent ordershould be amended to make this clear.AssessmentQuestion (a)[15] The answer to question (a) is yes as per paragraph [37] of my earlier judgment(which includes an express direction to assess the policy matrix) and for the reasonsstated at [35] and [36].[16] To reiterate, the PAUP contained bespoke rules, objectives and policies relatingto the removal of vegetation within the SEA overlay. The Hearing Panel's decision todelete the SEA overlay from the SPQZ effectively removed not only all of the SEArules from applying to activities within that zone, but it also removed all associatedobjectives and policies, including those bespoke objectives and policies that appliedwithin the SPQZ. The full and fair ventilation of the substantive appeal before theEnvironment Court therefore demanded an opportunity be afforded to the affectedsubmitters to revisit not only the activity status per se, but also the objective and policyframework relating to the SEA overlay as it applies to mineral extraction activitiesoccurring on land zoned Special Purpose – Quarry Zone.Questions (b)and (c)[17] The question as to whether the consent order provides scope for a person toappeal the AUP objectives and policies relating to the SEA overlay, as it applies tomineral extraction activities occurring on land zoned SPQZ, is also answered in theaffirmative. As Auckland Council and Brookby submit, while the consent order setout in my earlier judgment does not expressly extend to the objectives and policies,that outcome logically follows from my decision, which forms part of the context inwhich the order is made. Furthermore, it must have been known to the parties that thatwas the intended scope of the order.[18] But I accept that the Environment Court is justified in taking a cautiousapproach to the exercise of what is a reasonably novel jurisdiction. Given this, the finalconsent order should make that clear.[19] Amendments have been proposed by the Council. The amended draft orderwould read as follows:6. Pursuant to the power vested in it under the Local Government(Auckland Transitional Provisions) Act 2010 the Court orders, byconsent, that the Auckland Unitary Plan be amended by:(a) Including within the AUP maps, the identification ofSignificant Ecological Areas on certain sites, as shown inAppendix A.(b) Including a new activity for Any vegetation alteration orremoval within a Quarry Zone, within an SEA, in ChapterE15, along with matters of discretion and assessment criteriarelated to this new activity, as shown in Appendix B.7. These amended provisions be treated as an "alternative solution" forthe purposes of sections 148 and 156 of the LGATPA, with this ordertriggering a right of appeal to the Environment Court under s 156(1)limited to the matters set out in paragraphs 6(a) and (b) of this orderand any associated objective and policy matrix in either the regionalor district plan, relating to the removal of vegetation within a "SpecialPurpose – Quarry Zone".8. There is no order as to costs.[20] I am content to make these amendments.[21] It is perhaps fortuitous that my judgment had not been sealed. It is thereforeopen to me to recall my judgment for the purpose of amending the consent order tocorrespond exactly to my judgment.2 Plainly bringing requisite clarity to an orderbearing on the jurisdiction of the Environment Court to hear and determine an appealis a special reason to exercise the recall jurisdiction per Horowhenua v Nash.3Accordingly I recall my judgment, in accordance with r 11.9 of the High Court Rules2016, for the purpose of amending the draft consent order. For avoidance of doubt,had it been necessary to do so I would have also made an order pursuant to the slip2 High Court Rules 2016, r 11.9.3 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.rule, r 11.10. I also do not consider it is necessary to alter the date of issue of the firstjudgment. Its effect remains unchanged.Result[22] My earlier decision provided for a s 156(1) LGATPA appeal right in relation toAUP objectives and policies relating to the SEA overlay as it relates to vegetationalteration or removal within the SPQZ. But for avoidance of doubt, I make theamendments sought by the Council to the consent order as set out at [19]. If the partieshave any residual concerns about the framing of the order, they should advise the Courtwithin 5 working days. If no concerns are raised the judgment is to be sealed.[23] There is no order as to costs.