Horticulture New Zealand Incorporated v Waikato Regional Council [2017] NZHC 378

Horticulture New Zealand Incorporated v Waikato Regional Council [2017] NZHC 378 [7 March 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2016-419-431[2017] NZHC 378UNDER an application for judicial review underthe Judicature Amendment Act 1972IN THE MATTER of a decision made pursuant to clause 8Dof Schedule 1 of the ResourceManagement Act 1991 to withdraw part ofa publicly notified proposed planBETWEEN HORTICULTURE NEW ZEALANDINCORPORATEDNEW ZEALAND DEER FARMERSASSOCIATION INCORPORATEDBEEF + LAMB NEW ZEALANDLIMITEDApplicants/continuedAND WAIKATO REGIONAL COUNCILRespondentHearing(at Auckland):7 March 2017Counsel: HA Atkins and R Ashton for applicantsJ Milne and S Plant for respondentAppearance by interested party excusedJudgment: 7 March 2017Reasons: 8 March 2017REASONS FOR JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 7 March 2017 at 4 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar DateApplicants continuedBEEF + LAMB NEW ZEALAND LIMITEDFEDERATED FARMERS OF NEW ZEALAND INCORPORATED, FEDERATED FARMERS OF NEW ZEALAND (AUCKLAND PROVINCE) INCORPORATED, FEDERATED FARMERS OF NEW ZEALAND - ROTORUA TAUPÖ PROVINCE INCORPORATED, FEDERATED FARMERS (WAIKATO REGION) 1999 INCORPORATED (TOGETHERREFERRED TO AS "FEDERATED FARMERS")PUKEKOHE VEGETABLE GROWERS ASSOCIATION INCORPORATEDPRIMARY LAND USERS GROUP INCORPORATEDIntroduction[1] Yesterday I heard the applicants' application for interim orders pursuant to s 8of the Judicature Amendment Act 1972 ("JAA"). The application sought an order directing the respondent ("Council") not to close submissions on a proposed planchange to the Waikato Regional Plan until after determination of the applicants'substantive application for judicial review.[2] The application for judicial review is set down for hearing on 15 and 16 June 2017. The application for interim orders accordingly sought a deferral of the closing date for public submissions on the proposed plan change to some point after 16 June 2017.[3] The current closing date for public submissions on the proposed plan change is Wednesday, 8 March 2017. The application was accordingly heard one working day prior to the existing submission closing date.[4] At the conclusion of yesterday's hearing, I gave a results judgment, decliningto grant the interim orders sought. What follows are my reasons for judgment.Parties and the impugned decision[5] The applicants are:(a) Horticulture New Zealand Incorporated;(b) New Zealand Deer Farmers Association Incorporated;(c) Beef + Lamb New Zealand Limited;(d) Federated Farmers;(e) Pukekohe Vegetable Growers Association Incorporated; and(f) Primary Land Users Group Incorporated.[6] The applicants represent primary-production-sector interest groups whose members have significant interests and activities in the catchments covered by theproposed plan change at issue in these proceedings ("Proposed PC1").[7] The respondent is, as noted, the Council.1 The Council has certain powersand duties under the Resource Management Act 1991 ("RMA"), including in relationto plans and plan changes. In their underlying application for judicial review, the applicants challenge the lawfulness of the Council's decision to withdraw a part of Proposed PC1 (the "Partial Withdraw Decision").[8] The Partial Withdraw Decision was made to enable Council to complete consultation with Iwi in relation to an area to which Proposed PC1 had originally applied (referred to in these reasons as the "North Eastern Area"). The North EastArea represents approximately 11 per cent of the total area to which Proposed PC1 had originally applied.[9] The Partial Withdraw Decision was made against the backdrop of relevant Iwi having commenced judicial review proceedings in respect of Proposed PC1, alleging a failure to consult. The relief sought in those proceedings was an order quashing the decision to publically notify Proposed PC1 and consequent orders that no further steps be taken in relation to it. The Partial Withdraw Decision resolved the proceedings. As Proposed PC1 takes effect as soon as it is publically notified, settlement of the proceedings enabled Proposed PC1 to continue to take immediate effect and removed any risk of its withdrawal.[10] Proposed PC1 accordingly continues to take effect in relation to approximately 89 per cent of its original area.1 By order dated 2 March 2017, Waikato River Authority was joined (by consent) as an interested party to these proceedings. The Authority did not seek to be heard on the application for interim orders and appearances for the Authority were accordingly excused.The parties' respective positions[11] The applicants are opposed to Proposed PC1 continuing along the statutory path which will ultimately result in final decisions being taken on it by Council.2The applicants consider that the process should be paused to allow for any proposedplan change in respect of the North Eastern Area to "catch up", so both areas can bedealt with together. To this end, the substantive relief sought by the applicants is a declaration that the Partial Withdraw Decision was unlawful, and a direction that Proposed PC1 is withdrawn altogether. This would then enable a proposed plan change for the entire catchment area to progress along the statutory path.[12] The proposed mechanism for pausing the statutory path is the deferral of the closing date for submissions on Proposed PC1 (currently 8 March 2017). In the context of the application for interim orders, the applicants submit that this deferral is necessary to preserve their position pending the determination of the substantive judicial review application.[13] The Council submits that, while it makes sense to bring the area covered by Proposed PC1 and the North Eastern Area together again in due course, given the overall statutory time constraints involved in reaching final decisions on Proposed PC1, as well as the practical (adverse) consequences of pausing the statutory process, it is inappropriate to pause the process at this time. The Council further submits that the applicants have simply failed to reach the threshold required for interim orders to be granted in any event.[14] The applicants and the Council's overall positions are, to a large extent, aligned. The applicants are broadly supportive of Proposed PC1. All parties agree that it makes sense for the area that remains subject to Proposed PC1 and the NorthEastern Area to be "re-coupled" in due course and dealt with as one. As counsel for the Council submitted, common sense dictates such an outcome.2 See [23] below for the various steps involved.Statutory backgroundIntroduction[15] The statutory background to the present application and the underlying application for judicial review is largely agreed.[16] The Council has promulgated three instruments under the RMA:(a) First, the operative Waikato Regional Policy Statement. This applies to the whole of the Waikato Region.(b) Second, the operative Waikato Regional Coastal Plan. This instrument is not relevant to the current application.(c) Third, the operative Waikato Regional Plan (which came into effect in 2007). Proposed PC1 is a proposed change to this plan.[17] The Council also has functions, powers and duties under a number of other statutes, and in particular, what are referred to collectively as "the River Iwi Acts".3These Acts are specific to the Council and apply to defined parts of the Waikato Region. Te Ture Whaimana o Te Awa o Waikato - the Vision and Strategy for theWaikato River ("Vision and Strategy"), is a schedule to each of these Acts. Collectively, the Acts required the Council to directly insert the Vision and Strategy into the Waikato Regional Policy Statement, without using the process for changes to regional policy statements mandated by Schedule 1 of the RMA.[18] The operative Waikato Regional Plan must also give effect to the Vision and Strategy. Further, if there is any inconsistent provision in an RMA planning document, the Vision and Strategy prevails.[19] Also relevant to the applicants' application is the National Policy Statementfor Freshwater Management 2014 ("NPSFM"). National policy statements are3 Being the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010; the Ngaati Tuwharetoa, Raukawa and Te Arawa River Iwi Waikato River Act 2010; and the Nga Wai o Maniapoto (Waipa River) Act 2012.developed by central Government in order to provide direction and guidance to local government about matters of national significance.4 Again, however, the Vision and Strategy prevails over any national policy statement, and where inconsistencies are identified, the more stringent water quality conditions contained in the Vision and Strategy prevail.[20] Evidence filed on behalf of the Council states that Proposed PC1 is a proposed change to the operative Waikato Regional Plan in order to give effect to, inter alia, the Vision and Strategy and the NPSFM.Promulgating plans and plan changes[21] Sections 63 to 71 of the RMA guide substantive decision making in relation to plans and plan changes.[22] In terms of the plan-making process, s 65(2) of the RMA provides that a regional plan must be prepared in accordance with Schedule 1 to the RMA("Schedule 1").[23] In terms of proposed plan changes:(a) Section 65(5) provides that a regional plan may be changed by a regional council in the manner set out in Schedule 1.(b) Pursuant to cl 5(1) of Schedule 1, a local authority that has prepared a proposed plan change must:(i) prepare an evaluation report for the proposed plan change in accordance with s 32 (and have particular regard to that report when deciding whether to proceed); and(ii) publicly notify the proposed plan change if the local authority decides to proceed with the change.4 Section 45(1) of the RMA.(c) Subsequent to public notification, any person may make a submission on the proposed plan change (cl 6).(d) The public notice of the proposed plan change must state the closing date for submissions (cl 5(2)(d)).(e) The closing date for submissions on a proposed plan change must be at least 20 working days after public notification (cl 5(3)(b)).(f) Having received submissions on the proposed plan change, the local authority then prepares a summary of the submissions received, and gives public notice of that summary. There is no specific time period for preparing the summary or giving of such notice (cl 7).(g) No later than 10 working days after the date on which public notice of the summary is given, certain persons may make further submissions on the proposed plan change (cl 7).5(h) The local authority may then invite submitters to meet with it for the purposes of clarifying or facilitating the resolution of any matter arising on the submissions (cl 8AA(1)).(i) Unless no submitter has asked to be heard, the local authority must then hold a hearing into submissions (cl 8B).(j) Prior to the hearing, the local authority may require preparation of a report pursuant to s 42A of the RMA, which includes an evaluation of and recommendation on the submissions received.6(k) Once the hearing has taken place, a final decision must be reached (and publically notified) on the matters raised in the submissions, such5 There are limits on the scope of any further submissions; see cl 8(2) of Schedule 1.6 While the preparation of such a report is not mandatory under s 42A, evidence filed on behalf of the Council confirms that it is intended that such a report will be prepared in this case.decision and notification to be made and given within two years of public notification of the proposed plan change (cl 10(4)(b)).7[24] Pursuant to cl 8D of Schedule 1, a local authority may also withdraw proposed plans and plan changes. Although cl 8D does not expressly refer to withdrawing a proposed plan or plan change in part, it is not in dispute that cl 8D includes such a power.8Factual background[25] Proposed PC1 was developed over the period 2014 to October 2016. Unlike traditional plan change processes (where the proposed plan change is drafted by council officials and then distributed for comment), Proposed PC1 was drafted through a collaborative process of engagement with various stakeholders. Mr Christopher Keenan, the Special Adviser, Natural Resources to Horticulture New Zealand, deposes to this collaborative process, as a result of his role as a representative for the horticulture sector in what is referred to as the Collaborative Stakeholder Group ("CSG").9 The CSG was consulted extensively prior to the notification of Proposed PC1 and was a channel for broader stakeholder engagement. Mr Keenan further deposes that the draft Proposed PC1 was put together on "a whole of catchment" approach to help, over time, reduce sediment, bacteria and nutrients (nitrogen and phosphorous) entering water bodies (including ground water) in the Waikato and Waipa catchments.[26] Proposed PC1 was publicly notified on 22 October 2016. As noted earlier, Proposed PC1 takes effect from that date. The public notification also confirmed that the closing date for submissions was 8 March 2017. That was some 80 working days after the date of public notification and therefore well in excess of the statutory minimum of 20 working days.7 This time limit cannot be extended, unless the requirements of s 37 are met, which include alocal authority's duty under s 21 to avoid unreasonable delay.8 See West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand[2007] NZRMA 32 (HC) at [41].9 Ms Tracey-Lee May, the director of the Science and Strategy Directorate for the Council, gave evidence for the Council on the consultation process.[27] As noted earlier, at around the time Proposed PC1 was publically notified, Pare Hauraki Iwi filed proceedings in the High Court, alleging that the Council had failed to fulfil its duty under Schedule 1 of the RMA to consult with them during the preparation of Proposed PC1. The relief sought in the proceedings was an injunction to prevent any further steps being taken in relation to Proposed PC1.[28] In order to resolve those proceedings, the Healthy Rivers Wai Ora Committee10 recommended to the Council that the North Eastern Area be withdrawn from the scope of Proposed PC1. The North Eastern Area corresponds broadly with the Rohe of Pare Hauraki Iwi.[29] On 22 November 2016, the full Council passed a resolution to withdraw the North Eastern Area from Proposed PC1 (i.e. the Partial Withdraw Decision). The Decision was publically notified on 3 December 2016.[30] Ms May confirms in her affidavit that consultation with Pare Hauraki Iwi is continuing and progressing well. Ms May deposes that, as matters presently stand,the Council's intention is that on completion of consultation, a proposed plan changein relation to the North Eastern Area will be publicly notified. Ms May states that Council is hopeful that this will be in or around late July 2017. Having been notified, the proposed plan change for the North Eastern Area and Proposed PC1 willthen be "re-coupled", potentially at the summary of submissions stage. If thisoccurs, then any further submissions pursuant to cl 8 of Schedule 1 will be able to address both proposed plan changes as one.[31] The applicants challenge the lawfulness of the Partial Withdraw Decision. Subsequent to public notification on 3 December 2016, the applicants proposed that the close of submissions date for Proposed PC1 be deferred to an (unknown) date in the future, so as to align with the date for submissions on the proposed plan change in relation to the North Eastern Area.10 This Committee is a co-governance committee with representatives from five River Iwi governors, one from each of the five River Iwi and five elected representatives from Council. These co-governance arrangements are required pursuant to the River Iwi Acts.[32] The applicants' request to defer the submission date was put before theCouncil at its meeting on 23 February 2017. Council officers recommended to Council that the request be declined. The Council resolved to refer the request to the Healthy Rivers Wai Ora Committee for a recommendation. The Healthy Rivers Wai Ora Committee met on 3 March 2017 and recommended that the request be declined. The Council again considered the request at its meeting on 6 March 2017 and resolved to decline the request. As such, the closing date for submissions on Proposed PC1 remains Wednesday, 8 March 2017.[33] Evidence filed and submissions made on behalf of both parties were directed, in part, to explaining the delay in filing the application for interim orders. As I made clear to counsel at the outset of the hearing of the application, allocating"responsibility" for any such delay is not helpful in determining the application. What is relevant, however, is the fact that the application was being heard only one day prior to the submission closing date.Jurisdiction to grant interim orders[34] The Judicial Review Procedure Act 2016 came into force on 1 March 2017. However, there is no dispute that, pursuant to the transitional provisions set out in s 23 of that Act, these proceedings are to be continued and completed under the JAA as if that Act had not been repealed.[35] The jurisdiction to make interim orders is found in s 8(1) of the JAA:8 Interim orders(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force[36] Consideration of an application for interim orders involves a threshold issue, namely whether the interim orders are necessary for the purposes of preserving theapplicant's position. Once that threshold is met, there remains a residual discretionon the part of the Court whether to grant interim orders. Factors relevant to the exercise of the residual discretion include the strength or weakness of the underlying claim for review; the statutory framework; the public interest; and the private and public repercussions of granting relief.11[37] Mr Milne raised a preliminary jurisdictional issue as to why interim orders should not be granted in this case. By reference to ss 8(1)(a) to (c) of the JAA, Mr Milne submitted, correctly in my view, that the only relevant purpose in this caseis "prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power"(emphasis added). The statutory power at issue in this case is the Partial Withdraw Decision. Mr Milne submitted that the closing date for submissions on ProposedPC1 is not "consequential on the exercise of" the Partial Withdraw Decision, but isconsequent on the earlier resolution of 15 September 2016 to publicly notify Proposed PC1.[38] Ms Atkins referred me to the Court of Appeal's decision in Taylor v Chief Executive of the Department of Corrections,12 where the Court emphasised the broad and flexible approach to be taken in respect of applications under s 8 of the JAA.13Mr Milne accepted that proposition. However, the Court in Taylor was primarily concerned with the broad approach to be taken to the threshold issue of whether theinterim orders are necessary to preserve the applicant's position. It did not directly address the jurisdictional "constraint" that interim orders may only be made for oneor more of the three purposes set out in ss 8(1)(a) to (c) of the JAA.11 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 431.12 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112.13 Taylor v Chief Executive of the Department of Corrections, above n 12, at [22] to [27].[39] Nevertheless, Ms Atkins submitted that the Partial Withdraw Decision may well have involved consideration by the Council of whether to defer the existing close of submissions date for Proposed PC1. As the Decision was made in a closed session not open to the public, the content of the decision-making process is not yet known to the applicants (or the Court).[40] I accordingly would not have declined to grant the interim orders on this point alone, had I been satisfied that the applicants otherwise met the requirements of s 8 of the JAA. Nor would I have declined to grant the interim orders on the basis that the orders are, in my view, mandatory in nature, had the applicants otherwise met the requirements of s 8. As Mr Milne noted, there is no further action to be taken by Council to close submissions on Proposed PC1, the date of 8 March 2017 having been set as a result of public notification of Proposed PC1 on 22 October 2016. As such, a direction to Council to defer the submission close date would involve some positive action on the part of Council. However, the Court of Appeal in Taylor confirmed that while mandatory interim orders are likely to be relatively rare, there is no jurisdictional bar to making them.14The threshold issue: are interim orders necessary to preserve applicants'position?[41] The threshold issue involves two inquiries:(a) First, when looking at what is sought by way of substantive relief,whether there is "a position" which should be preserved.15 If there is no arguable or justiciable issue raised, there is no position to be preserved.16(b) Second, if there is "a position" to preserve, whether the interim ordersare necessary to preserve that position. This involves consideration of whether the interim orders are reasonably necessary,17 rather than14 Taylor v Chief Executive of the Department of Corrections, above n 12, at [27].15 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC) at 8.16 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55 (HC) at 63.17 Carlton & United Breweries Ltd v Minister of Customs, above n 10, at 430.whether it is simply desirable to preserve the position.18 Further, theremedy is directed at preserving an applicant's position rather thanimproving it.19The applicants' claim for judicial review[42] Against the above statutory and factual background, the applicants rely on four matters in the (amended) statement of claim in support of the substantive relief sought:(a) First, the discretionary power in cl 8D of Schedule 1, to withdraw a proposed plan change in part, is subject to an implied limit that it be exercised to promote the policy and objects of the RMA.20(b) Second, in making the Partial Withdraw Decision, the Council hasfailed to achieve its function of achieving "integrated management"under s 30(1) of the RMA, and has failed to give effect to objective C1 of the NPSFM (namely to improve integrated management offreshwater and use and development of land "in whole catchments").21(c) Third, in making the Partial Withdraw Decision, the Council has prepared an evaluation report under s 32 of the RMA, but that report fails to address how the withdrawal of the North Eastern Area from Proposed PC1 is the most appropriate way of achieving the purpose of the RMA.22(d) Fourth, the withdrawal of the North Eastern Area from Proposed PC1 not only cuts across the catchments covered by the proposed plan change, but in some cases, cuts through primary production activities. As a result, for some such activities, on one side of the line, Proposed18 Bishop v Central Regional Health Authority HC Palmerston North M47/97, 11 July 1997 at 21.19 Forster v New Zealand Chiropractic Education Trust Board of Chiropractic [2010] NZAR 361 at [41].20 Paragraph 14 of the first amended statement of claim.21 Paragraph 15 of the first amended statement of claim.22 Paragraph 16 of the first amended statement of claim.PC1 applies and on the other side of the line, the Operative Regional Plan applies.23Cl 8D decision must meet purposes of RMA[43] The applicants rely on the Supreme Court's observations in Unison Networks Ltd v Commerce Commission that the exercise of a discretionary power will be invalid if the decision-maker "so uses his discretion as to thwart or run counter to the policy and objects of the Act". 24[44] Mr Milne sought to distinguish Unison Networks Ltd v Commerce Commission on the basis that the power at issue in that case was a substantive decision-making power, rather than "an ancillary procedural power".[45] Mr Milne further submitted that, while the Partial Withdraw Decision was made in order to bring to an end the Pare Hauraki Iwi judicial review proceedings, settlement of those proceedings removed the risk that Proposed PC1 would be withdrawn in its entirety. This meant that Proposed PC1 could continue to apply to 89 per cent of the defined catchment area. It was submitted that this is in accordance with the purpose of the RMA, not contrary to it.[46] Mr Milne went on to submit that:there is no doubt that a proposed plan change in its contents must achieve thepurpose of the [RMA] however it does not make sense to say that aprocedural decision must achieve the purpose of the Act.[47] In my view, it is arguable that a decision pursuant to cl 8D of Schedule 1 is the exercise of a substantive decision-making power rather than merely a "procedure decision", as characterised by Mr Milne. In making a decision to proceed with and notify a proposed plan change, the Council will have engaged in a detailed evaluation process, including the preparation of an evaluation report pursuant to s 32 of the RMA. Having carried out that evaluation and decided to proceed with theplan or plan change, a decision to, effectively, "undo" that plan or a part of it23 Paragraph 17 of the first amended statement of claim.24 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53].(particularly if it is already in force), will no doubt also involve a substantive evaluation by Council (albeit not likely to be to the same degree of intensity when considering whether to proceed with the plan in the first place).[48] Accordingly, I consider it is arguable that the exercise of the discretionary power in cl 8D of Schedule 1 must be exercised in accordance with the purposes of the RMA.[49] This does not, however, materially advance the applicants' substantive case. The question remains, did the Partial Withdraw Decision "thwart or run counter tothe policy and objects of the Act"?Integrated management/whole catchments[50] The applicants submit that the Partial Withdraw Decision is "antithetical to achieving integrated management" for the purposes of s 30(1)(a) of the RMA. Mr Milne notes that s 30(1)(a) is not amongst the sections of the statute specified in s 65(1), being the functions for which a regional council may prepare a regional plan. In addition, rules may not be included in a regional plan for the purpose of carrying out functions under s 30(1)(a) (see s 68(1)(a) of the RMA).[51] It is not possible on the basis of the limited materials before the Court, and in the very limited time available, to comment in any substantive way on the merits of this argument. However, given a regional council has the discretionary power to partially withdraw a proposed plan change, a partial withdraw cannot, in and of itself, run counter to the purposes of the RMA. Further, while the inclusion of the entire Waikato River Catchment within proposed PC1 would (presumably) best provide for integrated management, there was no detailed evidence or submissions before me on this point.25 Further, there is no doubt that the Proposed PC1 applies to the remaining 89 per cent of the defined Catchment area and to that extent, provides for integrated management.25 Not that such detailed submission and evidence would be expected on an application for interim orders. This would obviously be a matter for the substantive hearing.[52] In relation to the issue of whole catchments, it is not in dispute that a regional plan must seek to give effect to any national policy statement, and that the NPSFMcontains an objective to "improve integrated management of fresh water and the useand development of land in whole catchments..." (emphasis added).[53] The applicants submit that the Partial Withdraw Decision by definition fails to give effect to improving integrated management of fresh water and the use and development of land in whole catchments. The Council submits that the NPSFMobjective is "to improve" integrated management in whole catchments, and that theremoval of 11 per cent of the catchment does not mean that, in and of itself,Proposed PC1 fails to "improve" integrated management in the whole catchment.Again, in the very limited time in which the Court has to consider this issue, it is difficult to comment substantively, other than to note that the submission made on behalf of the Council would appear to have merit.Obligation to prepare s 32 report[54] Section 32 of the RMA does not itself impose an obligation to prepare an evaluation report. That obligation is found in cl 5(1)(a) of Schedule 1.[55] A s 32 evaluation report was prepared by Council prior to Council determining to proceed with Proposed PC1. There is nothing express within Schedule 1 to suggest that a "fresh" evaluation report is required in the context of adecision to withdraw a proposed plan or plan change in part. Mr Milne submitted that at best, it might be argued that there is an implied obligation within cl 5 of Schedule 1 (though maintained that no such implied obligation exists). Further, even if such an obligation exists, Mr Milne submitted that the evaluation report must bedirected to the content of the relevant instrument (in this case, the "remainder" ofProposed PC1), rather than to the separate Partial Withdraw Decision. While the Council did (voluntarily) prepare an updated s 32 evaluation report, Mr Milne submitted that that report was properly directed to the content of (the remainder of) Proposed PC1, which is consistent with any requirements of cl 5 of Schedule 1 and s 32.[56] Again, I consider there to be some merit in the Council's position. Theobligation to prepare a fresh evaluation report would appear to be triggered when a partial withdraw of a proposed plan change in substance results in a "new" proposedplan change (i.e. rather than simply the withdrawal of a part of a proposed planchange, with the balance left as it was). This is consistent with the Court'sobservations in West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, that:26[Clause] 8D only confers power to withdraw a plan. Anything new has to be notified and tested by a process in which the public can participate. If there is a power to withdraw part, that power cannot include a power to make a change to the meaning of the remainder of the policy statement or plan. (Emphasis added)[57] In her oral submissions, Ms Atkins developed the submission that what remains of Proposed PC1 is not in fact the same as its original form, and may wellamount to a change. She accepts, however, that this is not how the applicants' claim is presently pleaded or has been developed. As it presently stands, the applicants'argument is that any withdrawal in part triggers the requirement to prepare a fresh s 32 report which specifically addresses the decision to withdraw.Boundary issues[58] Finally, Council does not dispute that the withdrawal of the North Eastern Area from Proposed PC1 results in the north eastern boundary of Proposed PC1 cutting through some primary production activities. While the Council sought to delineate the western boundary of the North Eastern Area by lot (so that no single lot sits astride Proposed PC1 and the operative Regional Plan), it accepts that some primary activities are carried out across a number of lots, so that one activity as a whole may sit astride Proposed PC1 and the Operative Regional Plan.[59] Evidence filed on behalf of Council states that activities crossing boundaries of RMA instruments is not uncommon, and is ultimately an incident of the nature of land tenure and land use versus jurisdictional and statutory boundaries. Ms Atkins accepted this in her reply submissions.26 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, above n 8, at [25].[60] The applicants did not develop how this issue renders the Partial Withdraw Decision unlawful. Ms Atkins also responsibly accepted that other boundaries of Proposed PC1 (i.e. not only that boundary with the North Eastern Area) also encounter this issue.Conclusion on strength of underlying claim[61] Taking all of these matters into account, while there are aspects of theapplicants' case that are arguable, on the limited materials available to me, theunderlying case does not strike me as one that is obviously very strong. I should firmly emphasise, however, that this is an initial and necessarily "impressionistic"observation only, given the timeframe within which this application has had to be argued and determined. My observations do not, of course, bind any subsequent Court hearing the substantive application, which, on further and detailed consideration and with full evidence and argument, may reach very different conclusions.Are the interim orders necessary to preserve the applicants' position?[62] On the basis that there is an arguable position to protect, are the interim orders necessary to protect that position?[63] In her written submissions, Ms Atkins submitted that interim orders are necessary to preserve the position of the applicants given:innocent third parties will begin taking substantive steps on the basis ofthe reminder of proposed PC1 proceeding through the hearing process. The further the remainder of proposed PC1 proceeds down the statutory path the more difficult, and practical, and prejudicial to innocent third parties, it will become to withdraw the proposed PC1. In short, the availability of the relief sought in substantive proceeding will be eroded by the passage of time. (Emphasis added)[64] The highlighted text from the above extract of Ms Atkins' written submissions is drawn from Mr Keenan's affidavit. However, his evidence is that:The further the remainder of PC1 proceeds down this statutory process, the more difficult, impractical and potentially prejudicial it will become to 're-couple' the withdrawn parts of PC1. (Emphasis added)[65] As will be appreciated, difficulty in granting the relief sought in the underlying application for judicial review (namely the withdrawal of Proposed PC1) is quite different to difficulty in a proposed plan change in respect of the North Eastern Area and Proposed PC1 being "re-coupled" at a later date.[66] In the course of her oral submissions, Ms Atkins properly accepted that theavailability of the relief sought in the underlying application for judicial review is unaffected by whether the closing date for submissions on Proposed PC1 remains at 8 March or is extended to some (presently unspecified) date in the future. However, Ms Atkins submitted that, while it would still be open to the Court hearing the substantive application to find that the Partial Withdraw Decision was unlawful, the continuation of the statutory process outlined at [23] above means that it is more likely that the Court would nevertheless exercise its residual discretion to decline to grant relief.[67] I do not accept that the existence of any such risk means that the granting ofthe interim orders is "necessary" to preserve the applicants' position.[68] First, Ms Atkins quite properly accepted that where a Court has found a statutory decision to be unlawful, there must be extremely strong reasons to decline to grant relief.27 Mr Milne for the Council also accepted that, if the Court hearing the substantive application concludes that the Partial Withdraw Decision was unlawful, it would be an extreme outcome for relief not to be granted. Further, while in Unison Networks Ltd v Commerce Commission, the Court of Appeal had refused to grant relief, despite finding that the Commerce Commission had acted unlawfully (on the basis that overturning the decision would occasion significant disruption to the electricity industry), the majority of the Court nevertheless took note of "strong cautions against exercising the discretion not to set aside an unlawful decision".28[69] Second, Ms Atkins accepted that this risk is inherent in any application for judicial review that is not heard immediately, and the risk increases the more time27 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60].28 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [81]. This point was not addressed on appeal to the Supreme Court, as that Court found that the Commission had acted lawfully; see Unison Networks Ltd v Commerce Commission (SC), above n 24, at [79].passes before it is heard. The applicants' judicial review proceedings were filed on12 December 2016. No application for an urgent fixture was made, despite the applicants being aware as of 3 December 2016 that the Partial Withdraw Decision had been made, yet the closing date for submissions on Proposed PC1 remained 8 March 2017. Moreover, by the time the substantive application is determined (which is likely to by or around early July 2017), the statutory process outlined at [23] above will by no means be complete. While the Council might have completed the summary of submissions phase, there is no suggestion that the process will be anywhere near the hearings stage. Hearings are presently not envisaged to take place until late in 2017 at the earliest, and possibly sometime in early 2018.[70] Third, Mr Milne properly accepted on behalf of the Council that it would be difficult for the Council to maintain a submission at the substantive hearing that, despite the Partial Withdraw Decision being found to be unlawful, the Court should nevertheless decline to grant relief, including on the basis of actions taken and costs incurred by the Council in the intervening period. As Mr Milne accepted, the Council is proceeding with the statutory process, and incurring the resulting costs,with its "eyes wide open" to the fact that the Partial Withdraw Decision remainssubject to challenge.[71] Fourth, in terms of potential prejudice to third parties, Ms Akins responsiblyaccepted that the "horse has largely bolted" in this regard, given the point in time atwhich the application for interim orders is being determined. As at 3 March 2017, approximately 243 submissions on Proposed PC1 had already been received. Given the significant public interest in Proposed PC1, Council expects to receive at least 1000 submissions. Not surprisingly, Ms May for the Council expects that most submissions will be lodged on 7 and 8 March 2017. Accordingly, even if I had been minded to grant the interim relief sought (on the afternoon of 7 March), it is unlikely that the deferral of the close of submissions date could have been publically notified prior to close of Wednesday 8 March (or at least so widely notified that no, or few, further submissions were lodged). Accordingly, any costs that might be wasted by third parties submitting on Proposed PC1, if Proposed PC1 is later directed by the Court to be withdrawn, have largely been wasted already, irrespective of the outcome of this application.[72] Fifth, other than the potential inconvenience and associated cost of submitting separately on a proposed plan change in respect of the North Eastern Area and Proposed PC1, the applicants are not themselves prejudiced by the submission date remaining at 8 March 2017. They have sensibly taken steps (presumably since 3 December 2016) to prepare their submissions by 8 March 2017.[73] For all these reasons, I accordingly reject the applicants' submission that,absent the interim orders being made, the availability of the substantive relief sought will have largely eroded by the time the judicial review application is heard.Other discretionary matters[74] The key factors that I consider relevant to the exercise of the residual discretion to grant interim orders have already been taken into account in determining the threshold issue above. There are nevertheless some additional factors which, in my view, further reinforce that interim relief ought not to be granted in this case:(a) First, the Council has already spent some $67,000 on publically notifying Proposed PC1. If additional public notice of a deferral of the submission close date were required, similar additional costs would be incurred (though not as substantial if an individual mail out were not adopted). The Council also has seven full-time staff and between four and six contractors committed to the entry, analysis and summary of submissions on Proposed PC1, at an estimated cost of $184,322 per month. While I consider it unlikely that all these costs would be wasted if the submission date were extended, there is no doubt that it would cause some disruption and wasted cost, including the need to"gear up" again at the extended submission close date. It is therefore not a case of simply "putting down the pen" and picking it up at a later point.(b) Second, the very late stage at which any interim orders would have been granted (and therefore able to be publically notified) might haveresulted in real confusion on the part of many submitters, as to the process and the status of their existing and lodged submissions.(c) Third, the Council is subject to the two-year time limit for the whole statutory process, as noted at [23] above. A deferral of the closing date for submissions would truncate that statutory time period. Evidence filed on behalf of Council expresses real concern at any such delay, and in particular, to the time available to summarise the submissions received (which is a significant and time consuming exercise).(d) Finally, there is also uncertainty as to what date the closing of submissions ought to be deferred. No specific date is proposed by the applicants, other than to a date after determination of the substantive judicial review application. In notifying potential submitters of the deferral, a specific date would need to be notified, to enable submitters to take steps to prepare a submission that meets the new date. The risk of setting a date too soon after the (likely) determination of the judicial review application risks the closing date needing to be pushed out further, for example, in circumstances where consultation with Iwi on the North Eastern Area takes longer than expected to conclude. And adopting a date sufficiently far out to guard against that risk further truncates the time period for completing the statutory process.Costs of the application for interim orders[75] I indicated to counsel at the conclusion of yesterday's hearing that my initialview was that costs ought to follow the event in the ordinary way. My preliminary view is that costs of the interim orders application ought to be assessed on a 2Bbasis, with certification for second counsel at yesterday's hearing. I make directionsbelow for costs memoranda in the event costs are unable to be agreed.Leave to file the amended statement of claim[76] The applicants' application also sought leave to file the first amendedstatement of claim dated 3 March 2017. The nature of the amendments is set out atfootnote 14 of Ms Atkins' written submissions.[77] This matter was not addressed in the Council's written submissions. In oralsubmissions, Mr Milne noted that, as the applicants have not filed their evidence in accordance with the existing timetable (being due on 3 March 2017), his present instructions are to apply to strike out the underlying application.[78] The amendments made in the first amended statement of claim are minor and generally not of a substantive nature. Indeed, the most substantive amendment is to delete the pleading that cl 8D of Schedule 1 does not permit a proposed plan change to be withdrawn in part, which amendment is favourable to the Council. I do not consider any of the amendments will adversely affect the current timetable.[79] I am accordingly prepared to grant leave to the applicants to file the amended statement of claim dated 3 March 2017. For the avoidance of doubt, this does notinclude any potential further amendments as signalled by Ms Atkins at yesterday'shearing (such as any new pleading that, as a result of the Partial Withdraw Decision, Proposed PC1 is in fact a changed, or new, proposed plan change). Any amendments to that effect are more substantive and would need to be considered in the context ofthe existing timetable. It is obviously in all parties' (including interested third parties') interests that the existing hearing date of 15 and 16 June 2017 is maintained.[80] Upon the filing and service of the amended statement of claim, the Council would have five working days to file a statement of defence to the amended claim.29While filing a statement of defence to an amended pleading which does not introduce a fresh cause of action is not mandatory, I consider it appropriate that such a defence is filed, so the pleadings are complete. Again, given the minor nature of29 High Court Rules 2016, r 7.7(7).the amendments, filing a statement of defence in this timeframe will not impact the current timetable.[81] Costs on this aspect of the application are to lie where they fall.Result[82] I accordingly make the following orders and directions:(a) The application for interim orders dated 2 March 2017 is declined.(b) In the event costs of the application cannot be agreed, the Council is to file a memorandum on or before 5 pm, 21 March 2017, setting out its position on costs.(c) The applicants are to file any costs memorandum in response on or before 5 pm, 28 March 2017.(d) The memoranda referred to at (b) and (c) above are to be no longer than five pages in length. Subject to any request to be heard on the question of costs, I will then determine costs on the papers.(e) The applicants are granted leave to file the amended statement of claim dated 3 March 2017. The amended statement of claim is to be filed and served on or before 5 pm, 10 March 2017. For the avoidance of doubt, the granting of leave is subject to the proviso set out at [79] above.(f) The Council is to file and serve a statement of defence to the amended statement of claim on or before 5 pm, 17 March 2017.(g) Leave is reserved to apply for further directions or orders, should the need arise.____________________Fitzgerald JSolicitors: Atkins Holm Majurey, AucklandWaikato Regional Council, Hamilton (S Plant)Buddle Findlay, AucklandTo: J Milne, Te Rapa