COASTAL RATEPAYERS UNITED INCORPORATED v THE KĀPITI COAST DISTRICT COUNCIL [2017] NZHC 2933

COASTAL RATEPAYERS UNITED INCORPORATED v THE KĀPITI COAST DISTRICT COUNCIL [2017]NZHC 2933 [29 November 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-000627[2017] NZHC 2933IN THE MATTER OF The Resource Management Act 1991 (theAct)IN THE MATTER OF An appeal against Environment Courtdecisions [2017] NZEnvC 31 (interimdecision) and [2017] NZEnvC 100 (finaldecision) under section 229 of the ActBETWEEN COASTAL RATEPAYERS UNITEDINCORPORATEDAppellantAND THE KĀPITI COAST DISTRICTCOUNCILRespondentHearing: 13 November 2017Counsel: P C Mitchell for AppellantP T Beverley and V C Brunton for RespondentJudgment: 29 November 2017JUDGMENT OF COLLINS JIntroduction[1] Coastal Ratepayers United Inc (CRU) appeals two decisions of theEnvironment Court, alleging errors of law were made by that Court when it:(1) declined to issue a declaration sought by CRU (first declarationdecision);1 and(2) issued a modified form of declaration in respect of a second declarationsought by CRU (second declaration decision).2[2] Both declarations concern the lawfulness of decisions made by the KāpitiCoast District Council (the Council) after it gave notice of the Kāpiti Coast ProposedDistrict Plan (Proposed District Plan) pursuant to s 79(6) and cl 5(1)(b) of pt 1 of sch1 of the Resource Management Act 1991 (the Act). At issue was the Council's decisionto withdraw from the Proposed District Plan provisions relating to coastal hazardmanagement.3[3] In relation to the first declaration it sought, CRU maintains the EnvironmentCourt erred in law when it held that the consequence of the Council withdrawing thecoastal hazard management provisions from the Proposed District Plan was that thecorresponding provisions of the Operative District Plan remain in force. CRU alsocontends that the Environment Court erred when it held that it was not necessary forthe Council to undertake the variation procedures prescribed in the Act.[4] In relation to the second declaration decision, CRU submits the EnvironmentCourt erred in law when it issued a limited form of declaration.[5] This judgment explains why I am dismissing both appeals.Background[6] Section 79(1) of the Act requires those local authorities that have District Plansto review those plans every 10 years. In November 2012, the Council, after reviewingits 1999 Operative District Plan, gave notice of a Proposed District Plan. In its publicnotice the Council explained:1 Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZEnvC 31.2 Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZEnvC 100.3 The provisions related to coastal hazard lines, coastal hazard areas and the rules relevant to them.For convenience, I will refer to these as the "coastal hazard management provisions" throughoutthis judgment.The Proposed District Plan is the result of a District Plan review whichcommenced in 2009 under s 79 of [the Act]. It amends, and when madeoperative will replace, the objectives, policies, rules and standards, maps andappendices of the operative 1999 District Plan.[7] The Proposed District Plan contained new proposals for coastal hazardmanagement. This was an important issue for CRU and other residents of theKāpiti Coast, as some parts of the Kāpiti shoreline are eroding while other parts areaccreting.[8] As part of its efforts to manage the hazards of its coastline, the Council hadearlier in 2012 issued a report that included projections of where the shoreline wouldbe in 50 and 100 years' time. Those projections were used to demarcate "erosionhazard zones" that affected approximately 1,000 properties within the 50-year erosionhazard zone and 1,800 properties within the 100-year erosion hazard zone.[9] The Proposed District Plan contained restrictions on building and subdivisionwithin the 50-year erosion hazard zone. The coastal hazard management provisionsproved to be controversial and attracted submissions from about half of the 777persons and entities that made submissions in relation to the Proposed District Plan.The Council's actions also spawned litigation after the Council placed erosion riskwarnings on Land Information Memoranda (LIM's) relating to properties within the"erosion hazard zones".4[10] The Council responded to the expressions of concern by appointing a "CoastalPanel" of experts to review the science and assessments that underpinned the coastalhazard management provisions of the Proposed District Plan. The Coastal Panel'sreport was completed in mid-2014. The Coastal Panel concluded that the coastalerosion assessment undertaken in 2012 was "not sufficiently robust for incorporationinto the Proposed District Plan". Subsequently, the Parliamentary Commissioner forthe Environment concluded that the Council had been too "hasty" in its processesconcerning its proposals for coastal hazard management.54 Weir v Kāpiti Coast District Council [2013] NZHC 3522. In an interim judgment, the High Courtfound that while placing the erosion risk warnings on LIM's was required by law, the way in whichit was done was inadequate. In December 2013, the Council decided the "erosion hazard zones"would no longer appear on LIM's.5 Parliamentary Commissioner for the Environment Preparing New Zealand for Rising Seas:[11] The Council also appointed Ms Allan, an experienced planning practitioner andMr Fowler QC, a lawyer with wide experience, including in resource management, toreview the Proposed District Plan. The Council sought guidance from Ms Allan andMr Fowler on whether it should continue to progress the Proposed District Plan orwhether some other process should be followed.[12] The report from Ms Allan and Mr Fowler was received by the Council soonafter the Coastal Panel had submitted its report to the Council. In their report,Ms Allan and Mr Fowler set out a number of conclusions and recommendations,including that:6(1) " despite some problems with processes of plan preparation resultingin considerable community concern, the [Proposed District Plan was]not so poorly formulated and inadequate that it need[ed] to becompletely withdrawn".(2) "The Council proceed with the [Proposed District Plan] on the basis ofa modified process of hearing ".(3) "The Council resolve to withdraw from the [Proposed District Plan] thecoastal hazard management areas on the plan maps along with theassociated policy sections and rules, and clarify the parts of theOperative District Plan which provide stop-gap coverage relating tocoastal hazards".(4) "The Council develop an implementation plan to progress work on thecoastal erosion hazard assessment, and other aspects of coastal hazardmanagement. The implementation should build on the work alreadydone and incorporate adequate and appropriate communications andconsultations provisions, including a role for an advisory group ".Certainty and Uncertainty (November 2015) at 65.6 Sylvia Allan and Richard Fowler QC Independent Review of the Kāpiti Coast Proposed DistrictPlan (June 2014) at 53 and 54.(5) "At an appropriate time (or times) the Council proceeds with avariation (or variations) to include suitable and relevant policy,methods and rules in the [Proposed District Plan] to address thedistrict's coastal hazards in accordance with the [New Zealand CoastalPolicy statement], the [Regional Policy Statement] and best practice".[13] At a meeting on 24 July 2014, the Council resolved to adopt the reports andrecommendations from the Coastal Panel and from Ms Allan and Mr Fowler, and inparticular the recommendations I have set out in (2) to (5), as set out above.[14] Ms Allan and Mr Fowler had recommended the Council engage in a processthat would lead to variations to those parts of the Proposed District Plan that concerncoastal hazard management and the Council resolved to follow thoserecommendations.[15] On 30 October 2014, the Council gave notice under cl 8D of pt 1 of sch 1 ofthe Act (cl 8D) that it was withdrawing those parts of the Proposed District Plan thatrelated to coastal hazard management, and other provisions not relevant to thisjudgment.[16] It was the Council's decision to withdraw, rather than vary, the coastal hazardmanagement provisions from the Proposed District Plan that is the genesis of thecurrent litigation.[17] A body called the North Ōtaki Beach Residents Group and CRU commencedproceedings in the Environment Court seeking two declarations concerning thelawfulness of the approach taken by the Council when it withdrew those parts of theProposed District Plan relating to coastal hazard management. The Council reachedan agreement with the North Ōtaki Beach Residents Group, but it was unable toachieve a settlement.[18] The principal concerns of CRU can be distilled to four points:(1) The legal consequences of the Council withdrawing rather than settingout to vary the relevant provisions of the Proposed District Plan meanthat it, and other interested persons, have not been given, and will nothave, an opportunity to make submissions and engage with thedevelopment of new coastal hazard management provisions in theDistrict Plan. For convenience, I will refer to this as the "consultation"issue.(2) Delays have already occurred and will continue to occur in developingan acceptable coastal hazard management plan. I will refer to this asthe "delay" issue.(3) Both the Council and the Environment Court have concluded that thewithdrawal of the coastal hazard management provisions from theProposed District Plan leaves in place, by default, the coastal hazardmanagement provisions of the Operative District Plan and that this inturn creates confusion and uncertainty about what provisions are inforce. I will refer to this as to the "uncertainty" issue.(4) The Council was not entitled to withdraw the coastal hazardmanagement provisions because, in doing so, other provisions in theProposed District Plan were altered. This issue underpins the seconddeclaration sought in the Environment Court.[19] The two declarations sought in the Environment Court by CRU were:Declaration 1"The Council, having notified a full review of the District Plan, cannot changethe ambit of that review under s 79 without first notifying the provisions whichare no longer subject to the review, and/or notifying the existing provisionswhich it intends to remain 'operative' after the proposed plan is completed".Declaration 2"In withdrawing the coastal hazard and other provisions under cl 8D of sch 1of the [Act], the Council changed the meaning of the remainder of the[Proposed District Plan]."Parties' positions[20] Mr Mitchell's submissions on behalf of CRU in relation to the first declarationdecision can be summarised in the following way:(1) Having undertaken a full review of the Operative District Plan andnotified a Proposed District Plan, the Council could only make changesto the Proposed District Plan by way of the variation procedure in pt 1of sch 1 of the Act.(2) It was not open to the Council to withdraw parts of the ProposedDistrict Plan and rely on the corresponding provisions of the OperativeDistrict Plan without first notifying what provisions of the OperativeDistrict Plan would continue to have effect after the Council approvedthe Proposed District Plan.(3) In addition to being unlawful, the process followed by the Councildeprived CRU and others from making submissions on the "surviving"provisions of the Operative District Plan concerning coastal hazardmanagement. It is also maintained that the Council's actions havecaused unnecessary delay and led to uncertainty.[21] Mr Mitchell summarised the basis upon which CRU sought the seconddeclaration. He explained:7Declaration 2 concerns the ambit of the power of withdrawal in Schedule 1 cl8D(1) [of the Act].7 Appellant's submissions, 29 September 2017 at [19].[22] This issue engaged the scope of the High Court's judgment in West CoastRegional Council v Royal Forest & Bird Protection Society of New Zealand,8 (the WestCoast decision) in which this Court concluded the power to withdraw a proposal mustinclude a power to withdraw parts of a proposal, provided that any withdrawal is notalso an "alteration". Mr Mitchell argued that in this case, the Council went beyondthe scope of what the High Court said was permissible in the West Coast decision andthat the Environment Court erred in law when it issued a limited form of declarationin its second declaration decision.[23] CRU filed evidence from three witnesses in the Environment Court. Theirevidence is also, to varying degrees, relied upon in support of the appeal. The first ofthe witnesses was Ms Allin, who has been a senior law lecturer and practitioner. Shehas also been a Judge of the Environment Court and the Principal Environment CourtJudge. Ms Allin's credentials include having been a member of a panel whose workled to the Resource Management Bill being introduced into Parliament. Ms Allin is aresident of the Kāpiti Coast and has been very concerned for a number of years aboutthe way the Council had prepared and progressed the Proposed District Plan. Sheprophetically warned in November 2012 that the Council seemed to be headingtowards unproductive litigation because of the way it was advancing the ProposedDistrict Plan. Ms Allin set out in considerable detail the history of the events that haveled to the current impasse. Ms Moody, a senior tutor in the planning programme atMassey University, provided both factual and expert evidence from a planningperspective on the issues before the Environment Court. The third witness for CRUwas Mr Poole, a resident of the Kāpiti Coast and founding member of CRU. Hetraversed the history of the current dispute and set out his concerns about the stancetaken by the Council.[24] The Council also relied on three witnesses. The first was Ms Stevenson, anexperienced planner who at relevant times was employed by the Council as itsmanager of Research Policy and Planning. Ms Stevenson explained the steps takenby the Council and the reasons for the approach the Council has taken to date. Herevidence was supported by Ms Thomson, a senior policy planner at the Council who8 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand [2007]NZRMA 32.was involved in deciding which parts of the Proposed District Plan were to bewithdrawn in October 2014. She also addressed issues raised by Ms Moody andMs Allin about the consequences of the approach taken by the Council.Ms Thompson's evidence was peer reviewed by Mr Julyan, a planner and director ofBeca Ltd. Mr Julyan endorsed the analysis put forward by Ms Thomson.The Environment Court decisions[25] In its first declaration decision, the Environment Court declined to issue thefirst declaration sought by CRU.9 In doing so, the Environment Court endorsed whatit said was the "common understanding of those who practice in the RMA area"concerning the meaning and effect of the relevant provisions of the Act, and that theapproach taken by the Council produced a "logical outcome".10 In particular, theEnvironment Court was satisfied that the provisions withdrawn from the ProposedDistrict Plan concerning coastal hazard management would result in further "planchanges" and "alterations". The Court held:11Until such time as they are changed, the existing coastal hazards provisionsare part of the [Operative District Plan]. They remain in force, not becausethe Council has determined that they should not be altered (it has in factdetermined that they should be altered), but by operation of law until they arein turn changed by, some future change or variation as is the Council'sannounced intention ...[26] In its second declaration decision, the Environment Court granted a modifiedversion of the second declaration sought by CRU.12 The Environment Court declaredthat in withdrawing the coastal hazard provisions of the Proposed District Plan undercl 8D of the Act, the Council changed the meaning of six specified provisions in theProposed District Plan.The appeals[27] CRU's appeals to this Court are brought pursuant to s 299 of the Act and aretherefore limited to questions of law. For this reason, while I have found the evidence9 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1.10 At [31].11 At [30].12 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 2.relied upon by both parties in the Environment Court to be of assistance inunderstanding the background to the appeal, ultimately, the appeal hinges upon themeaning of key provisions in the Act.[28] For completeness, I record that the Council has continued to hear submissionson the Proposed District Plan and that it is anticipated the Council's decision in relationto the Proposed District Plan will soon be publicly notified.Key legislative provisions[29] I will at this stage set out only four key statutory provisions. The first is s 79of the Act which provides:79 Review of policy statements and plans(1) A local authority must commence a review of a provision of any ofthe following documents it has, if the provision has not been a subjectof a proposed policy statement or plan, a review, or a change by thelocal authority during the previous 10 years:(c) a district plan.(2) If, after reviewing the provision, the local authority considers that itrequires alteration, the local authority must, in the manner set out inParts 1, of Schedule 1 and this Part, propose to alter the provision.(3) If, after reviewing the provision, the local authority considers that itdoes not require alteration, the local authority must still publiclynotify the provision—(a) as if it were a change; and(b) in the manner set out in Parts 1 of Schedule 1 and this Part.(4) Without limiting subsection (1), a local authority may, at any time,commence a full review of any of the following documents it has:(c) a district plan.(5) In carrying out a review under subsection (4), the local authority mustreview all the sections of, and all the changes to, the policy statementor plan regardless of when the sections or changes became operative.(6) If, after reviewing the statement or plan under subsection (4), the localauthority considers that it requires alteration, the local authority mustalter the statement or plan in the manner set out in Parts 1 ofSchedule 1 and this Part.(7) If, after reviewing the statement or plan under subsection (4), the localauthority considers that it does not require alteration, the localauthority must still publicly notify the statement or plan—(a) as if it were a proposed policy statement or plan; and(b) in the manner set out in Parts 1 of Schedule 1 and this Part.(8) A provision of a policy statement or plan, or the policy statement orplan, as the case may be, does not cease to be operative because theprovision, statement, or plan is due for review or is being reviewedunder this section.[30] The second statutory provision is cl 8D, which provides:8D Withdrawal of proposed policy statements and plans(1) Where a local authority has initiated the preparation of a policystatement or plan, the local authority may withdraw its proposal toprepare, change, or vary the policy statement or plan at any time—(a) if an appeal has not been made to the Environment Courtunder clause 14, or the appeal has been withdrawn, before thepolicy statement or plan is approved by the local authority; or(b) if an appeal has been made to the Environment Court, beforethe Environment Court hearing commences.(2) The local authority shall give public notice of any withdrawal undersubclause (1), including the reasons for the withdrawal.[31] The case for CRU relies on the variation provisions in cls 16A and 16B of pt 1of sch 1 of the Act. Those clauses state:16A Variation of proposed policy statement or plan(1) A local authority may initiate variations to a proposed policystatement or plan, or to a change, at any time before the approval ofthe policy statement or plan.(2) The provisions of this schedule, with all necessary modifications,shall apply to every variation as if it were a change.16B Merger with proposed policy statement or plan(1) Every variation initiated under clause 16A shall be merged in andbecome part of the proposed policy statement or plan as soon as thevariation and the proposed policy statement or plan are both at thesame procedural stage; but where the variation includes a provision tobe substituted for a provision in the proposed policy statement or planagainst which a submission or an appeal has been lodged, thatsubmission or appeal shall be deemed to be a submission or appealagainst the variation.(2) From the date of notification of a variation, the proposed policystatement or proposed plan shall have effect as if it had been so varied.Public consultation requirements[32] The processes set out in pt 1 of sch 1 of the Act involve a number of mandatoryconsultation steps. The consultation steps reflect what Arnold J (with whom Elias CJ,McGrath and Glazebrook JJ agreed) has described as being "important values" in theAct.13[33] It is not necessary to set out in full all of the consultation provisions in pt 1 ofsch 1 of the Act. Suffice for present purposes to note:(1) During the preparation of a Proposed District Plan a local authority isrequired to consult with, amongst others, the Minister for theEnvironment, tangata whenua who may be affected and other localauthorities that may be affected.14(2) The local authority is required to publicly notify its Proposed DistrictPlan.15(3) Following public notification, an opportunity must be given for publicsubmissions in relation to the Proposed District Plan.1613 Environment Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1NZLR 593 at [15].14 Resource Management Act 1991, sch 1, pt 1, cl 3.15 Clause 5(1)(b).16 Clause 6.(4) Except in limited circumstances not relevant to this case, the localauthority is required to hold a hearing into submissions in relation toits Proposed District Plan.17(5) The local authority must make a decision on matters raised insubmissions.18(6) The local authority must approve its Proposed District Plan including,amongst other matters, variations made under cl 16A.19 A localauthority may, however, approve part of a Proposed District Plan "if allsubmissions or appeals relating to that Part have been disposed of".20[34] Public consultation is therefore integral to the processes that a local authoritymust follow before approving a Proposed District Plan. The consultation requirementsin pt 1 of sch 1 of the Act reflect the consequences that flow from the adoption of aDistrict Plan, which include a prohibition on use of land in a way that contravenes theprovisions of a District Plan unless expressly allowed by resource consent or statutoryexception.21 When Parliament passed the Act it wished to ensure that landowners whoare subject to a District Plan would have plenty of opportunity to express theirconcerns and be heard about the contents of a Proposed District Plan before changeswere made to the way they could use their land.AnalysisFirst declaration decision[35] It is helpful to address the lawfulness of the Environment Court's firstdeclaration decision by referring to the first three primary concerns raised by CRUabout the processes followed by the Council, outlined at [18].17 Resource Management Act 1991, cl 8B.18 Clause 10.19 Clause 17(1).20 Clause 17(2).21 Section 9(3).Consultation[36] It is accepted that the Council undertook from 2008, pursuant to s 79(4) of theAct, a full review of the 1999 Operative District Plan and that review led the Councilto conclude the Operative District Plan required alteration.22 Section 79(6) of the Actwas therefore engaged, meaning the Council had to alter the Operative District Plan"in the manner set out in pt 1 of sch 1 " of the Act.[37] At issue is the consequence of the Council withdrawing those parts of theProposed District Plan relating to coastal hazard management.23 Mr Mitchell arguesthat where the Proposed District Plan is intended to be a full replacement of theOperative District Plan, then the withdrawal of parts of the Proposed District Plan doesnot lead to the retention of the corresponding parts of the Operative District Plan.Mr Mitchell maintained that, if the Council withdraws parts of the Proposed DistrictPlan under cl 8D with the intention of retaining the corresponding parts of theOperative District Plan, then the Council can only achieve this objective by followingthe variation procedure set out in cl 16A.[38] Mr Mitchell submits that even if the effect of a withdrawal is to maintain anexisting Operative District Plan provision, then that decision is subject to s 79(3) anda variation would still be required. Of particular concern to Mr Mitchell and his clientis their fear that by withdrawing the coastal hazard management provisions of theProposed District Plan and retaining the corresponding parts of the Operative DistrictPlan, the Council has effectively by-passed the public consultation process set out inpt 1 of sch 1 of the Act.[39] There would be merit to the arguments advanced by Mr Mitchell if the Councilwithdrew the provisions of the Proposed District Plan concerning coastal hazardmanagement and retained the corresponding parts of the Operative District Plan22 The evidence referred to the review commencing in September 2008 (affidavit of Ms Stevenson,21 October 2016 at [6]) despite the Council's November 2012 public notice referring to 2009.23 The Council also withdrew other provisions of the Proposed District Plan. This judgment,however, is concerned solely with the withdrawal of the coastal hazard management provisions ofthe Proposed District Plan.without intending to address the deficiencies in the coastal hazard managementprovisions of the Operative District Plan.24 That is not the case.[40] The Environment Court has found as a matter of fact that the Council has everyintention of changing the coastal hazard management provisions of the OperativeDistrict Plan. That finding was based upon the evidence that was before theEnvironment Court. Ms Stevenson said, for example:25The Council's intention, communicated consistently and clearly since July2014, is to undertake further coastal hazard work and, at the appropriate time,introduce a plan change to deal with those matters.[41] This factual finding was reflected in the Environment Court's analysis of thesteps taken by the Council. The Environment Court reasoned:26Until such time as they are changed, the existing coastal hazards provisionsare part of the [Operative District Plan]. They remain in force, not becausethe Council has determined they should not be altered (it has in factdetermined that they should be altered) but by operation of law until they arein turn changed by some future change or variation as is the Council'sannounced intention as a result of its review. (emphasis added)[42] It is against the background of the Environment Court's factual finding that theCouncil intends to address the deficiencies in the coastal hazard management parts ofthe Operative District Plan that I am required to determine whether, as a matter of law,the Environment Court was correct when it concluded that those parts of the OperativeDistrict Plan concerning coastal hazard management remained in force once theCouncil withdrew the coastal hazard management provisions of the Proposed DistrictPlan.[43] The Council argues that the approach it has followed is implicitly permittedbecause:27It cannot have been Parliament's intention that, all provisions in the[Operative District Plan] would be rendered inoperative on the coming intoforce of what would only be a partial new plan. In other words, it cannot havebeen the intention to create a regulatory gap, merely because the processcommenced with a full review and a full replacement plan. That approach24 Resource Management Act 1991, s 79(6).25 Affidavit of SJ Stevenson, 25 October 2016 at [15].26 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [30].27 Counsel's closing submissions to the Environment Court at [24].would not give recognition to the statutory power to withdraw part of aproposed plan.[44] Mr Mitchell submits it is contrary to the statutory purpose of a full review thatwithdrawal automatically causes antecedent provisions to remain in force. He submitsa variation was required, thereby engaging a process of public consultation.[45] In my assessment, the proper analysis is as follows:(1) The Council commenced a full review of the Operative District Plan.It did so pursuant to s 79(4) of the Act.(2) The Council concluded the Operative District Plan and in particular,for present purposes, the coastal hazard management provisions of theOperative District Plan require alteration. That decision was madepursuant to s 79(6) of the Act. The Council therefore commenced theconsultative and other processes required by pt 1 of sch 1 of the Act.At that stage, it was intended that the Proposed District Plan wouldfully replace the Operative District Plan.(3) In mid-2014, while the processes prescribed in pt 1 of sch 1 of the Actwere still underway, the Council appreciated that the provisions of theProposed District Plan concerning coastal hazard management (andother provisions) were not suitable.(4) When the Council resolved to withdraw those parts of the ProposedDistrict Plan relating to coastal hazard management, the ProposedDistrict Plan ceased to be an intended replacement of the entireOperative District Plan. At that stage, the Proposed District Plan wasonly intended to replace those parts of the Operative District Plan thatwere not the subject of the withdrawal notice made under cl 8D.(5) Thus, when the Council approves the remaining provisions of theProposed District Plan it will not give any consideration to those partsof the Proposed District Plan that have been withdrawn.(6) Those parts of the Operative District Plan that are not the subject ofchanges brought about by the abbreviated Proposed District Plantherefore remain intact.[46] The approach set out above at (6) is consistent with both the text and purposeof s 79 and the relevant clauses in pt 1 of sch 1 of the Act.[47] From a textual perspective, cl 8D clearly permits the Council to withdraw aProposed District Plan as well as part of a Proposed District Plan.28 Section 79(6) setsout the process the Council must follow when it is satisfied that its Operative DistrictPlan, or part of that plan requires alteration. That process will be followed in this caseonce the Council is able to put forward its proposed new provisions for the DistrictPlan concerning coastal hazard management. There is nothing in s 79(1) of the Actthat requires the Council to follow the process set out in pt 1 of sch 1 of the Act inrelation to provisions the Council had no intention of retaining, but where it is not yetin a position to put forward proposed changes. In effect, what the Council is doing inthis case is approving part of the Proposed District Plan, while retaining the OperativeDistrict Plan provisions relating to coastal hazard management in the meantime, toensure that the finalised District Plan is satisfactory.[48] From a purposive perspective, Parliament could not have intended to create theregulatory gap that would arise in this case if the provisions of the Operative DistrictPlan concerning coastal hazard management ceased to have any effect once theCouncil approved the remaining provisions of the Proposed District Plan.[49] The fear that the process followed by the Council will deprive CRU and othersthe opportunity to be consulted and heard about the coastal hazard managementprovisions of the District Plan is illusory. All persons with a right to make submissionswill have the opportunity to do so, and to be heard once the Council is in a position toput forward its proposed new provisions for coastal hazard management.28 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, aboven 8.[50] This is not therefore a case in which CRU or others will be deprived of theopportunity to make submissions and be heard on the Council's proposals to changethe provisions of the District Plan concerning coastal hazard management.Delay[51] In the Environment Court it was said that it may take the Council up to fouryears to notify its proposed changes to the District Plan concerning coastal hazardmanagement. While obviously concerned about such a delay, the Environment Courtwas satisfied that " it is more important that the Council gets it right than gets itquick".29 In this Court, Mr Beverley for the Council said that now the Council is inthe final stages of adopting the abbreviated Proposed District Plan, it anticipates beingable to put forward proposed changes to the District Plan concerning coastal hazardmanagement within approximately 18 to 24 months.[52] The reasons for the Council's delays in preparing new coastal hazardmanagement provisions were explained by Ms Stevenson in her affidavit filed in theEnvironment Court. In summary, Ms Stevenson drew attention to multiple regionaland national processes that were underway, which were likely to influence how theCouncil proposed to deal with coastal hazard management. Those processes includeda natural resources plan and a regional hazard strategy that were being developed bythe Wellington Regional Council, the November 2015 Report from the ParliamentaryCommissioner for the Environment,30 the revision by the Ministry for the Environmentof Coastal Hazards and Climate Change Guidelines and the development of a nationalpolicy statement on natural hazards, including coastal hazards by the Ministry for theEnvironment.[53] There is nothing in s 79 that required the Council to commence sch 1 processeswithin any specified time of completing its review. The Council accepts, however,that it must notify new coastal hazard management provisions for the District Plan "aspromptly as is reasonable in the circumstances". That acknowledgement mirrors therequirements of s 21 of the Act which states:29 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [38].30 Parliamentary Commissioner for the Environment, above n 5.21 Avoiding unreasonable delayEvery person who exercises or carries out functions, powers, or duties, or isrequired to do anything, under this Act for which no time limits are prescribedshall do so as promptly as is reasonable in the circumstances.[54] The Environment Court was satisfied that a delay of four years would not, inthe circumstances, breach the spirit of s 21 of the Act. The Environment Court notedthe Council will need to carefully consider and develop appropriate provisions forcoastal hazard management having regard to a variety of considerations, includingmatters that impact upon the sustainable management of natural and physicalresources,31 matters of national importance32 and the factors listed in s 7 of the Act,which include the effects of climate change.33[55] While the Environment Court acknowledged the Council's forthcoming delaywas reasonable, it did not discuss in any great detail the delay that occurred prior tothe hearing. The Council began its review of the Operative District Plan as far backas September 2008 and the coastal hazard management provisions, despite theirineffectiveness, are still operative. Another six years passed before the Council issuedresolutions in mid-2014. There are then concerns expressed by Ms Allin as to whetherthose resolutions were properly put into effect.[56] Despite these concerns, CRU have not sought a declaration on the delay issue.In the circumstances of this case, it was entirely appropriate for the Environment CourtJudge to determine that any "definitive finding" on the delay issue would require "agood deal more information" and would not, in any event, result in a "practicablealternative".34 As matters currently stand, the Council's task is challenging. It mustbe done thoroughly in order to avoid the problems that were caused by it engaging inthe "hasty" processes that led it to making unsuitable proposals for coastal hazardmanagement when it notified the Proposed District Plan in 2012.[57] While CRU is understandably concerned about the delays that have occurredto date, and will continue for approximately 18 to 24 months while the Council31 Resource Management Act 1991, s 5.32 Section 6.33 Section 7(i).34 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [38] and [39].develops its new proposals for coastal hazard management, there was no error of lawin the approach taken by the Environment Court when it expressed its support for theposition adopted by the Council.Uncertainty[58] CRU is concerned that the process followed by the Council will causeconfusion about which parts of the Operative District Plan will remain in force afterthe abbreviated Proposed District Plan is approved.[59] There is a basis for the concern expressed by CRU. The evidence fromMs Moody explains how difficult it is to be certain about which provisions of theOperative District Plan will remain in force.[60] In an effort to address these concerns the Council issued a notice on 26 October2016 identifying the provisions of the Operative District Plan that it considers willremain in force following withdrawal of the coastal hazard management provisions ofthe Proposed District Plan. This notice was not a notice required under pt 1 of sch 1of the Act. In her affidavit, Ms Moody has, however, identified further issues aboutthe accuracy of that particular notice.[61] It is a basic tenet of our legal system that members of the public should be ableto understand the laws that bind them.35 It is also axiomatic that constraints on the useof land, which may have profound effects on land owners, should not be shrouded inuncertainty.[62] It is unfortunate that there remains room for uncertainty about exactly whichprovisions of the Operative District Plan will remain in force following the approvalof the modified Proposed District Plan. Notwithstanding this room for uncertainty,there was no error of law in the approach taken by the Environment Court when itconcluded that the coastal hazard management provisions of the Operative District35 Resource Management Act 1991, s 76(2) provides that the rules in a district plan "shall have theforce and effect of a regulation in force under [the Act] but, to the extent that any such rule isinconsistent with any such regulation, the regulation shall prevail".Plan will remain in force until changed or varied at some future point in time. Themost that can be done at this juncture is for me to urge the Council to take everyreasonable step available to ensure the public is informed of which provisions of theOperative District Plan will remain in force.Summary[63] There was no error of law in the Environment Court's decision when it declinedto issue the first declaration sought by CRU. In the absence of any error of law, theappeal concerning the first declaration decision must be dismissed.Second Declaration decision[64] In its first declaration decision, the Environment Court sought furthersubmissions on the scope of the second declaration sought by CRU. The EnvironmentCourt required CRU to identify those remaining provisions of the Proposed DistrictPlan that CRU maintained were altered as a result of the Council withdrawing thecoastal hazard management provisions from the Proposed District Plan.[65] The Environment Court sought this information in order to bring specificityand focus to the issues associated with the second declaration. That was an appropriatecourse for the Environment Court to take. Both the Environment Court and theCouncil were entitled to know precisely how it was alleged that the Council hadbreached the scope of the West Coast decision when it withdrew the coastal hazardmanagement provisions from the Proposed District Plan.[66] In its first declaration decision, the Environment Court noted that the issuesraised by CRU in relation to the second declaration " revolved around theobservation made in (the West Coast decision) and that although part of a proposedplan may be withdrawn, such a withdrawal may not operate as 'variation by thebackdoor'".3636 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [42] citing WestCoast Regional Council v Royal Forest & Bird Protection Society of New Zealand, above n 8, at[25].[67] The gravamen of the case for CRU in relation to the second declarationdecision was that a number of provisions of the Proposed District Plan had been"altered" by the withdrawal of the coastal hazard management provisions of theProposed District Plan and that, as a consequence, the Council's actions offended theWest Coast decision.[68] In particular, CRU focused upon the following paragraph of the West Coastdecision in which Chisholm and Fogarty JJ said:37Assuming that there is power to withdraw part of a proposed plan it seems tous that it is implicit that the balance must be left as it was. For cl 8D onlyconfers power to withdraw a plan. Anything new has to be notified and testedby a process in which the public can participate. If there is a power towithdraw part, that power cannot include a power to make a change to themeaning of the remainder of the policy statement or plan. Provided it is awithdrawal and not a variation by the back door, it does not matter whetherthe withdrawal is of a complete part, some few provisions, or a mix. But itmust only be a withdrawal and not a variation.[69] In the Environment Court, Mr Mitchell identified nine specific provisions inthe remaining parts of the Proposed District Plan, which CRU said were alterations tothe provisions of the Proposed District Plan brought about by the withdrawal of thecoastal hazard management provisions. It is not necessary to set out those provisions.Suffice for present purposes to record that the Environment Court agreed with MrMitchell's submissions in relation to six of the nine provisions he had identified. TheEnvironment Court was satisfied that those six provisions constituted the introductionof new provisions into the Proposed District Plan, that those alterations could affectthe rights of some members of the public and that, accordingly, the public should beable to test those alterations. The Environment Court also said that a "[r]eturn to theprevious provisions of the [Operative District Plan] does not constitute a 'newprovision'".38[70] Applying the test it had foreshadowed in its first declaration decision, theEnvironment Court declared in its second declaration decision that:37 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, aboven 8, at [25].38 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [55].In withdrawing the coastal hazard provisions under Clause 8D of Schedule 1of the RMA, the Council changed the meaning of [six specified provisions ofthe Proposed District Plan].[71] The Council has not challenged the second declaration decision of theEnvironment Court, choosing instead to follow a pragmatic response by making thechanges required by the modified declaration issued by the Environment Court andwithdrawing the six offending provisions from the Proposed District Plan.[72] CRU now takes issue with the Environment Court confining itself to the nineprovisions in the Proposed District Plan that it identified. Mr Mitchell submitted thatthe nine provisions identified before the Environment Court were only examples andthat neither the Environment Court or his client should have been bound to the nineprovisions identified for the benefit of the Environment Court.[73] The record of the proceedings in the Environment Court shows that on16 September 2016 the Council sought an assurance from the Environment Court thatthe scope of the second declaration was limited to the nine provisions of the ProposedDistrict Plan identified by CRU. The Council also sought time to obtain expertplanning evidence to address the nine provisions in question. The Environment Courtconfirmed in a minute dated 22 September 2016 that the Council was given time toprepare expert evidence to address the nine provisions identified by CRU.[74] The Environment Court record confirms that by 29 September 2016 the casefor CRU in relation to the second declaration had been narrowed to the nine provisionsit had identified. The scope of the issues were reflected in the expert evidence calledby the Council, which focused only on the nine provisions identified by CRU.[75] It was for CRU to identify within the timeframe specified by the EnvironmentCourt exactly which remaining provisions of the Proposed District Plan were, in itsview, altered by the Council's decision to withdraw the coastal hazard managementprovisions from the Proposed District Plan. Having identified nine specificprovisions, it is now difficult to understand on what basis CRU can legitimatelychallenge the Environment Court's decision when it focused on the nine provisionswhich it identified.[76] The Environment Court did not err in law when, in the second declarationdecision, it focused only upon the nine provisions of the Proposed District Plan thathad been identified by CRU to support its application for the second declaration.[77] The three provisions identified by CRU that the Environment Court said werenot "alterations" within the meaning of the West Coast decision involved reversion tothe provisions of the Operative District Plan.[78] In the West Coast decision, the High Court held that the withdrawal ofprovisions of a proposed plan had the consequence of reverting back to the status quonamely, default provisions in ss 9, 13 and 14 of the Act. In the present case, the threeprovisions in question remain in force through the Operative District Plan.Notwithstanding Mr Mitchell's efforts to try and distinguish the West Coast decision,the reasoning applied in that decision is apposite to this case.[79] The Environment Court applied the law as it has been interpreted by a FullBench of the High Court. Nothing has been put before me to cause me to doubt in anyway the lawfulness of the approach taken by the Environment Court when it appliedthe High Court's reasoning to the circumstances with which it was faced.[80] There is, therefore, no basis upon which the appeal against the seconddeclaration decision can succeed.Conclusion[81] The appeals are dismissed.[82] Costs are reserved. If counsel are unable to reach agreement on costs theyshould file memoranda setting out their respective positions by 22 December 2017.__________________D B Collins JSolicitors:Mitchell Law, Waikanae for AppellantBuddle Findlay, Wellington for Respondent