INDEPENDENT FISHERIES LIMITED v MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY [2014] NZHC 2810

INDEPENDENT FISHERIES LIMITED v MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY [2014] NZHC 2810 [12 November 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2014-409-000105[2014] NZHC 2810BETWEEN INDEPENDENT FISHERIES LIMITEDApplicantAND THE MINISTER FOR CANTERBURYEARTHQUAKE RECOVERYFirst RespondentCANTERBURY REGIONAL COUNCILAND OTHERSSecond RespondentsCHRISTCHURCH INTERNATIONALAIRPORT LIMITEDIntervenerHearing: 15 September 2014Appearances: F M Cooke QC and P A Steven QC for the ApplicantK Stephen and A Jacobs for the First RespondentJ V Ormsby, M A Mehlhopt and G Carter for the SecondRespondentJ M Appleyard and B G Williams for the IntervenerJudgment: 12 November 2014Reissued: 20 November 2014JUDGMENT OF GENDALL JNOTE: This judgment is recalled under R 11.10 (the slip rule) and re-issuedwith the spelling mistake in line 5 of [64] corrected to "greater".Introduction[1] Judicial review is a fundamental component of New Zealand's constitutional framework. As is implicit in the name, it is a supervisory review by superior courtsof the manner in which decisions are made. The focus is ostensibly on process, not outcome. Relevant to this proceeding are the observations of Laws LJ in the English Court of Appeal:1The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law, and at common law the High Court is the arbiter of all claimed justifications.[2] The present application before this Court is one brought by Independent Fisheries Limited (Independent Fisheries) for judicial review of a decision of the Honourable Gerry Brownlee, Minister for Canterbury Earthquake Recovery (the Minister). That decision was to introduce a Land Use Recovery Plan (LURP), which included the introduction of a noise contour around the Christchurch International Airport, restricting certain development within that area, pursuant to his powers under the Canterbury Earthquake Recovery Act 2011 (CER Act).[3] Independent Fisheries brings this application as registered proprietor of 21.9 hectares of rural land located at the corner of Gardiners Road and Styx Mill Road, Christchurch. This land was purchased at a price of $11,050,000 in November 2007, no doubt with the commercial incentive that it would be zoned in the future for residential development.[4] However, due to the zoning at the time, and finally now through the proposed introduction of the LURP particularly including the airport noise contour restricting residential development in certain noise corridors (affecting a major part ofIndependent Fisheries' land), this development has effectively been precluded.[5] Independent Fisheries has challenged the zoning decisions, which prevent its land being utilised for residential development, at every juncture, in a number of ways. First, it did this through Environment Court processes, secondly, by earlier judicial review proceedings, and thirdly, in the present proceeding through judicial review of the LURP.[6] Independent Fisheries' position in this case is that the use by the Minister of the extraordinary powers contained in the CER Act to implement or confirm the1 R (Beeson) v Dorset County Council [2002] EWCA Civ 1812, [2003] UKHRR 353 at [17].airport noise contour in the LURP is not justified, and that the controls on the exercise of those powers have either been ignored or not properly applied.History of the application[7] The narrative giving rise to this application has its genesis in events occurring over a decade ago. To fully appreciate this application, it is necessary to set out that history in some detail, which I do below. In addition, I have annexed to this judgment as Annexure A, a chronology helpfully provided by counsel, which does so in more detail.General background[8] In July 2003 the Canterbury Regional Council, Christchurch City Council, Waimakariri District Council, the Selwyn District Council, New Zealand Transport Agency and Te Runanga o Ngai Tahi (together called the UDS Partners) commenced a collaborative venture to develop the Greater Christchurch Urban Development Strategy (UDS). The UDS was eventually publicly notified on 28 July 2007 as a plan change to the then extant Regional Policy Statement for the area (PC1). This process was intended to alter the Regional Policy Statement, which had been operative since 26 June 1998. PC1 generally sought to control urban development in the greater Christchurch sub–region for the next 35 years. By the time public submissions had closed in March 2008, around 700 submissions had been lodged.[9] Independent Fisheries and other property developers were then engaged with Resource Management Act 1991 (RMA) processes and legal challenges concerning PC1 and its variations. This included the commencement of the earlier judicial review proceedings at the time against the Canterbury Regional Council.2 Those proceedings were settled by the Council agreeing to appoint independent commissioners to conduct the hearing into submissions on PC1.[10] On this, although Independent Fisheries obtained a measure of success before the Regional Council by securing designation of its land as a special treatment area, in large part the 50 dBA noise contour around Christchurch International Airport was2 National Investments Ltd v Canterbury Regional Council HC Christchurch CIV-2008-409-1280.confirmed. Some 50 appeals were lodged against this decision. These includedIndependent Fisheries' appeal, which raised the issue of whether the nationally accepted 55 dBA contour should be adopted in place of the 50 dBA contour.[11] Then the devastating sequence of earthquakes including the February 2011 earthquake hit the Canterbury region. The enactment of the CER Act followed, this coming into force on 19 April 2011. This sequence of events delayed the appeals. Further delays were also occasioned by the UDS Partners making application to adjourn the proceedings.[12] After those earthquakes in 2010 and 2011, the Minister maintains that he was faced with:(a) An urgent and pressing need for land to be freed up for urban residential purposes in and around Christchurch, especially in Kaiapoi where it is said 25 per cent of houses were on unsuitable land;(b) A planning framework in which the then current status of PC1 to the Canterbury Regional Plan was said to be causing uncertainty for developers and local authorities and so impeding residential land development; and(c) There being no prospect within about three years of the Environment Court resolving the earlier appeals to PC1, including those advanced by Independent Fisheries.[13] The Canterbury earthquakes without question were a national disaster and, as they had a devastating effect on greater Christchurch, Parliament passed the CER Act directed at providing a prompt and efficient recovery. This was to be achieved primarily by delegating significant powers to the Minister, amongst other things to cut through what might be seen as obstacles to recovery.[14] On these aspects the Minister says that post-earthquakes he considered that the uncertainty about land use management in greater Christchurch deriving from theunsettled state of the PC1 appeal process constituted a significant obstacle to proper recovery from the earthquakes and this needed to be stabilised on an urgent basis. It was for this reason the Minister says that in October 2011 he used his powers under s 27 of the CER Act to insert the essence of PC1 as Chapters 12A and 22 into the Regional Policy Statement and to revoke PC1 itself.[15] The Minister maintains that the purpose of the exercise of his powers was to set a new baseline framework for land use management and planning. He says he considered that further changes were likely to be required as planning for the earthquake recovery proceeded, but his immediate concern was to provide certainty and to urgently stabilise the default position, that is to create a "new normal" againstwhich further changes could be considered.[16] Property developers including Independent Fisheries, who had resisted PC1 through the previous planning process, endeavoured to challenge the use by the Minister of this power by way of judicial review and, as I note later in this judgment, they were initially successful in the High Court.3[17] In addition, Independent Fisheries now adds the claim that, from as early as 29 July 2011, the UDS Partners and CERA themselves prompted discussions as to the nature of interventions that might be possible under the CER Act. In October 2011 these discussions it is said came to fruition when, as I have noted, the Minister utilised his s 27 powers to revoke PC1 and to introduce new chapters to the Regional Policy Statement, implementing what it is contended is the version of PC1 preferred by UDS Partners as the responsible authorities. This process seemed to involve three separate steps:(a) First, on 8 October 2011, the Minister utilised his powers under the CER Act to insert Chapter 22 into the Regional Policy Statement, which took effect from the date of insertion. The public notice also included the remodelled 50 dBA contour into the Waimakariri DistrictPlan and made other changes to include the 'avoidance' policy. The3 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1810 [High Court Review Decision].policy changes to this plan resulting from this notice stated that 'noisesensitive activities' were to be avoided within the 50 dBA contour.(b) On 17 October 2011, new Chapter 12A to the Regional Policy Statement was publicly notified and took effect from this date. As aconsequence of the Minister's decision, the PC1 appeals came to an end.(c) On 1 November 2011, a further public notice was given of theMinister's exercise of his powers under s 27(1)(a) of the CER Act to change the Waimakariri District Plan. This was to provide for a rezoning of land at Kaiapoi within the 50 dBA contour, as an exception to the avoidance policy set out in Chapter 22.First High Court Decision[18] The first round of substantive challenge to the Minister's decision was heardby Chisholm J in this Court in early July 2012, with a judgment being delivered on 24 July 2012.4 Before considering the grounds of review, His Honour first examined the regime constituted by the CER Act.5 He then dealt with the five grounds of review.[19] The first ground of review was a claim that the Minister had used s 27 for unauthorised purposes.6 On this ground, Chisholm J remarked:[92] On my analysis of the evidence, particularly the Minister's affidavit,the purposes behind the decision to amend the RPS and revoke PC1 came down to:(a) freeing up land to enable residential development for those displaced by the earthquakes;(b) implementing agreements that had resulted in draft orders before the Environment Court;(c) providing certainty and predictability so that residential development could proceed without delay;4 High Court Review Decision, above n 3.5 At [45]–[62].6 At [64]–[104].(d) enabling council officers to focus on recovery planning;(e) bringing the PC1 appeals to an end;(f) providing a specific chapter within the RPS (chapter 12A) to deal with the development of greater Christchurch, including the extension of urban limits; and(g) protecting the airport from "reverse sensitivity" claims bysettling where the 50 dBA Ldn contour line is and its effects (chapter 22).These matters are not in any particular order. Obviously some of them are interlinked and overlap.[93] There can be little argument that the purposes in (a) — (d) are within the purposes of the Act. To the extent that it freed up council staff for earthquake recovery purposes, I also accept for the purposes of this ground of review that (e) comes within the statutory purposes. But it is difficult to see how, even on the most generous interpretation of the statutory purposes, (f) and (g) could come within those purposes, especially when s 27 is the vehicle.[100] When chapter 12A is read as a whole it is impossible to see how it serves any significant earthquake recovery purpose. To the extent that it addresses urban limits it is addressing issues that existed long before the earthquakes and it provides solutions that are likely to endure well beyond the expiry of the CER Act. It also has a geographic impact well beyond that attributable to earthquakes. In this respect I note that the statistics relied on by the applicants at [70] above have not been contradicted. Equally importantly, chapter 12A was not necessary to achieve or give effect to the zoning changes that were made by the Minister to provide housing for people displaced by the earthquakes. For reasons that I will give later, I am satisfied that the changes to the district plans were capable of standing on their own feet.[101] Similar considerations apply to chapter 22. Again the RPS is used as the vehicle to resolve an issue that existed long before the earthquakes. The noise contour had been considered by the Environment Court in Robinsons Bay Trust v Christchurch City Council and again in National Investment Trust v Christchurch City Council. Moreover, the long term solution implemented by the chapter is obviously intended to outlive the CER Act. The evidence does not suggest that the actual operation of the airport has significantly altered, or will significantly alter, as a result of the earthquakes, at least in a way that directly impacts upon the 50 dBA Ldn contour. The inescapable conclusion is that chapter 22 was not driven in any significant sense by earthquake recovery objectives.[102] I do not accept that chapter 22 can be justified on the basis that the rezoning of land at Kaiapoi within the 50 dBA Ldn corridor will open the floodgates to further incursions into the corridor. As I will explain in more detail later, the amendment to the Waimakariri District plan reflected asituation peculiar to Kaiapoi and rezoning through the district plan was effective as a discrete standalone measure without the backing of chapter 22.[103] All of this means that insertion of chapters 12A and 22 into the RPS was not in accordance with the purposes of the CER Act as required by s 10(1). Rather than serving earthquake recovery purposes, the underlying purpose of these two chapters was to resolve longstanding issues by setting long-term planning strategies. Given that the revocation of PC1 is inextricably linked to those chapters, that decision is also tainted by the same illegality.(citations omitted and emphasis added)[20] The second ground of review was a claim that, instead of using s 27 to amend the Regional Policy Statement, the Minister ought to have used the Recovery Strategy or a Recovery Plan, which would have permitted public participation.7[21] Chisholm J also found the application for review to be successful on this ground. The essence of that decision was captured in this statement:[126] On my analysis there are significant parallels between Poananga [v State Services Commission [1985] 2 NZLR 385 (CA)] and the instant case:(a) taken at face value the wording of the section that was used (s 37 of the State Services Act/s 27 of the CER Act) appeared to be wide enough to authorise the decisions under challenge;(b) however, once the real reason for the decisions was taken into account (misconduct of Ms Poananga/resolving longstanding disputes by setting long term planning strategies and terminating the appeals to the Environment Court) it became clear that Parliament intended the alternative process prescribed by the statute to be followed;(c) failure to follow the alternative process deprived the applicants of rights conferred by the statute.In Poananga the Court of Appeal effectively found that there was a reviewable error because statutory scheme had been circumvented (although it declined to grant relief). Leaving aside the issue of relief, I do not believe that there is any basis on which that decision can be distinguished and I am bound by it.[22] The third ground of review was that the exercise of the Minister's powerswere not necessary in terms of s 10(2) CER Act. Chisholm J found this ground made out in the following terms:7 At [106]–[126].[143] Assuming, however, that some added protection was needed in the RPS, a discrete amendment to that instrument could have achieved the desired result. For example, it could have been amended to make it clear that the intrusion into the corridor at Kaiapoi was an earthquake recovery measure reflecting the unique situation at Kaiapoi and that it should not be interpreted as a precedent, or something to that effect. Such an approach would have left the Environment Court to finally resolve the wider noise contour issue in due course. In my view chapter 22 went beyond what was reasonably necessary in terms of s 10(2).[144] Similar considerations apply to chapter 12A. If it was necessary for earthquake recovery purposes to rezone the lands involved in the settlements that had not been accepted by the Environment Court, the Minister could have amended the relevant district plan/s to achieve the required zoning. But he went much further by introducing comprehensive provisions for the location, timing and method of expanding greater Christchurch over the next 30 years. It is said that this step was necessary to avoid earthquake recovery being hindered by the uncertainty arising from PC1. This is based on the RMA requirement for local authorities/consent authorities to "have regard to" a proposed regional policy statement when considering applications for plan changes (s 74 (2)) or resource consents (s 104(1)).[145] That argument is not convincing. By themselves the Minister's amendments to the district plans were comprehensive and capable of standing on their own feet. To the extent that further rezoning was required for earthquake recovery purposes, that objective could also be achieved under s 27. If that was not enough to achieve the desired certainty and predictability, the RPS could have been amended along the lines that nothing in the RPS was to be applied or interpreted in a manner that impeded the urban development of lands designated for earthquake recovery. And if there were any residual issues in relation to particular developments, the Minister could resort to s 48.[146] It follows that chapter 12A also went too far. In terms of s 10(2) it was not reasonably necessary for earthquake recovery purposes.[147] Finally, there is the revocation of PC1. There appear to have been two interlinked objectives driving the revocation. The first was to remove the concern of the UDS partners that PC1 was giving rise to uncertainty and that this situation would remain until the appeals to the Environment Court were resolved. The second was to overcome the impact on Council officers of the Environment Court's refusal to adjourn the appeals.[148] As to the need to remove uncertainty, the short answer is that this could have been achieved by the discrete amendments to the RPS mentioned at [143] and [145] above. Turning to the refusal of the Environment Court to grant an adjournment, it is important to keep in mind that a judicial review application was already before this Court. If that application succeeded the staffing problem facing the Councils would probably have been resolved. If not, any further breathing space required for earthquake recovery purposes could have been achieved by a further suspension of PC1. No doubt it was for those reasons the briefing papers recommended that the Minister suspend PC1 "and see how the Court proceedings play out".[149] Instead of taking that path the Minister revoked PC1 and thereby permanently deprived the applicants of the ability to have their appeals determined by the Environment Court (as discussed under the next ground of review). I am satisfied that in all the circumstances this step was not reasonably necessary in terms of s 10(2).[23] The fourth ground of review was predicated on an argument that theMinister's decision was fundamentally flawed because it had the effect of denyingaccess to the Courts. This issue was addressed in two phases. First, the question whether Independent Fisheries had been denied access to the Court, and secondly, if the first question had been answered in the affirmative, whether the CER Act authorised such a course:[165] As to the first question, I am satisfied that the revocation of PC1 deprived the applicants of access to the Environment Court (and also the possibility of pursuing any appeals against that Court's decision). This conclusion reflects a number of matters.[166] First, in its supervisory role the High Court must diligently protect fundamental rights including the right of access to the Courts, especially where, as here, that right has been specifically conferred by Parliament (under the RMA). When considering whether the applicants have been deprived of that right the Court needs to look at the substance of what has happened. In this case the only tenable conclusion is that the revocation of PC1 had the direct consequence of removing the applicants' access to the Environment Court, which is hardly surprising given that that seems to have been the underlying purpose of the revocation.[167] Secondly, I do not accept that conclusion is called into question byCooper in which Baragwanath J stated:" the true purpose and effect of [Parliament's] amendinglegislation was not to deprive parties of access to the Court to secure enforcement of legal rights but rather to remove the rightsthemselves."In that case Baragwanath J was addressing a situation where an amendment to the fisheries quota management legislation had the effect of reversing a Court of Appeal decision (and some other decisions) that had previously allowed fishermen in the same situation as the applicants in Cooper to apply for quota. Having interpreted the amending Act, the Judge held that it had been effective in achieving its purpose, namely, to keep out further entrants into the scheme who were not permit holders. In other words, the situation before Baragwanath J was quite different to that now before the Court.[168] Thirdly, any distinction between depriving parties of access to the Courts and removing underlying rights is entirely academic in this case. This is because it is impossible to split the revocation of PC1 from its consequence, namely, depriving the applicants of access to the Environment Court so that they could complete the litigation that was already in progress.[169] Fourthly, I am satisfied that the revocation deprived the applicants of a private right. In a very real sense RMA processes are capable of, and do, determine the private rights of individuals arising from their occupation, ownership, or other interest in land, water or air. In this case it is beyond argument that the applicants' private use of land was in issue. Revocation of PC1 terminated their ability to have that issue determined by the Environment Court and, if necessary, to pursue further appeals.[170] Finally, it is unrealistic to suggest that the applicant's right of access to the Courts has survived by virtue of the judicial review now being pursued. Whereas the appeals to the Environment Court were directed at resolving substantive issues, this application for judicial review is confined to the processes that were followed (there is no suggestion of Wednesburyunreasonableness).[171] Having reached the conclusion that the applicants were deprived of their right of access to the Courts, I now turn to the second question: whether this was authorised by s 27 or, indeed, by any other provision in the CER Act.(citations omitted)[24] Having found affirmatively in respect of the first limb of the analysis, Chisholm J then turned to consider whether denial of access to the Courts was authorised by the CER Act. In finding no authorisation, Chisholm J said:[179] I agree with the applicants that there are strong parallels between this case and [R v Lord Chancellor:]Ex parte Witham [[1998] QB 575]. In that case the Lord Chancellor increased court fees in purported exercise of his statutory powers. Although that step was within the scope of the statutory powers it was held to have the effect of barring many persons from seeking justice before the Courts. Laws J concluded [(at 586)]:"Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically — in effect by express provision — permits the executive to turn people away from the court door. That has not beendone in this case."The other member of the Court, Rose LJ, agreed. He considered that there was nothing in the section or elsewhere to suggest that Parliament contemplated, still less conferred, a power for the Lord Chancellor to prescribe fees that totally precluded the poor from having access to the courts. Rose LJ considered that clear legislation would have been necessary to confer such a power.[180] Like the legislation in Ex parte Witham, when s 27 is taken at face value it appears to confer the power to revoke PC1. But once the consequences of exercising the power are taken into account it becomes apparent that the Minister has taken away the applicants' access to the Courts without the necessary authority of Parliament. It might also be added that whereas in Witham exclusion of access to the Courts appears to have been anunintended outcome, that was the intended outcome in this case.[181] Finally, I do not accept Mr Ormsby's submission that the cases relied on by the applicants are distinguishable because they involve subordinate legislation. In my view they provide strong support for this ground of review.[25] Chisholm J rounded off this ground by stating "[t]o the extent that theapplicants have been deprived of their right of access to the Courts, this is a seriouserror."8[26] Independent Fisheries also sought here to advance one further ground, namely a failure to take into account relevant considerations. However, on this His Honour commented:[183] Given that the applicants have succeeded on all the other grounds of review and that this ground traverses many of the matters that have already been traversed, I do not intend to address it.[27] In terms of outcome, His Honour set aside the Minister's decisions to insertchapters 12A and 22 into the Regional Policy Statement, along with the revocation of PC1.9 It is also interesting to note that Chisholm J shortly thereafter was faced with an application by the Canterbury Regional Council to stay the execution of the orders granted in the High Court Review Decision.10 He dismissed that applicationon the basis that Panckhurst J's decision in Willowford Family Trust v Christchurch City Council,11 was indistinguishable.12 In Willowford it was remarked:[22] However, I am not brought to the view that there is a jurisdiction to grant interim relief in the present circumstances, even on some partial basis. The absence of any previous cases in which pending appeal, a stay or interim relief has been granted in the context of a declaration of invalidity is, I think, confirmation of the fact that jurisdiction is absent. It is one thing to stay a proceeding which is extant, or to stay an order which is executor in nature, but the present declaration became operative when it was made. To contemplate the revival at this point of a bylaw which I have found to be invalid impresses me as conceptually wrong.[23] Once a Court has determined that a particular provision is invalid,it is antithetical to that determination to contemplate recognition of the provision as lawful, even in the short term.8 At [182].9 At [209].10 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1099, [2012] NZAR 785 [Stay Decision].11 Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791 (HC).12 Stay Decision, above n 10, at [14].Court of Appeal Decision[28] Chisholm J's decision was unsuccessfully appealed to the Court of Appeal.13However, the reasoning advanced by the Court of Appeal to reach this position deviated markedly from the reasoning in the High Court. In particular, the Court of Appeal found:(a) The insertion of Chapter 22 into the Regional Policy Statement, which it said was designed to strengthen the protection for Christchurch International Airport and to provide certainty for Christchurch residents by settling the location of the 50dBA air noise contour, accorded with the purposes of the CER Act.14(b) The insertion of Chapter 12A to the Regional Policy Statement accorded with the purposes of the CER Act.15(c) As a matter of necessary implication, the CER Act was sufficiently broad in scope to authorise denial of access to the Environment Court.16[29] Despite these findings, the Court of Appeal held that:[164] we have also concluded that the two decisions were invalid because, in exercising his power under s 27 of the Act, the Minister failed to consider whether it was necessary to proceed by way of s 27 rather than by way of the Recovery Strategy and/or Recovery Plans. We therefore agree with the result in the High Court, but not with the Judge's reasons forreaching that result.[165] We have accepted the submissions for the Minister and the Councils that decisions designed to achieve planning certainty for greater Christchurch may be in accordance with the purposes of the Act. Our decision, however, is based on the absence of evidence that the Minister reasonably considered the alternatives to proceeding in October 2011 by way of his discretionary power under s 27 rather than by way of the mandatory Recovery Strategy and Recovery Plans, which involved public participation and which were likely to overtake the s 27 decisions in any13 Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57 [Court of Appeal Decision].14 At [93]–[103].15 At [110]–[124].16 At[139]–[149].event. In these circumstances it has not been necessary to decide whether all the content of chapter 12A is in accordance with the purposes of the Act.[166] Whether the Minister wishes to reconsider his decisions in light of this judgment or proceed in a different manner, such as by way of the proposed Land Use Recovery Plan, is for the Minister to decide.(emphasis added)[30] Generally, the Court of Appeal found that recovery from the earthquakes was not limited merely to restoring greater Christchurch to its previous state, but also included enhancing or improving the region. Planning certainty with respect to future growth of the area for both residential properties and also infrastructure was seen as within the purposes of the CER Act and further, resolving long-standing issues could be seen as a positive step in assisting the overall recovery of greater Christchurch.[31] The Court of Appeal did not agree with the High Court that the ending of the appeals on PC1 before the Environment Court was unlawful. Rather, it took theview that this was simply a consequence of the legitimate exercise of the Minister'spowers under the CER Act. And on this, the Court of Appeal noted also that the responsible local authorities were facing considerable planning pressures following the earthquakes.Leave to appeal to Supreme Court refused[32] Independent Fisheries then sought leave to appeal the Court of Appeal decision to the Supreme Court, which was refused.17 It is however worth considering the reasons for the refusal:[3] The applicants, notwithstanding their win in the Court of Appeal, seek leave to appeal. They prefer Chisholm J's reasoning to the Court of Appeal's. In their application for leave, they set out the judgment they seek from this Court. They seek a "judgment overturning the Court of Appeal'sjudgment on their claims of improper purpose, and unlawful interference with court proceedings, and seek the restoration of the judgment given by the High Court on these grounds of judicial review". In truth, they do not seek the overturning of the Court of Appeal's judgment at all. The Court of Appeal's judgment was the dismissal of the respondents' appeals. What the applicants seek is the reversal of some of the Court of Appeal's reasons for17 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2013] NZSC 35, [2013] 2 NZLR 397 [Supreme Court Decision].judgment and the restoration of the reasons for judgment of the High Court. That is quite a different thing.[7] What the applicants are in effect seeking is an advisory opinion on the Minister's powers. We do not have jurisdiction to give such opinions. In any event, it would be inappropriate to do so. When in the future the Minister makes decisions under the Canterbury Earthquake Recovery Act 2011, it is much more appropriate that any challenge to such decisions should be made and considered in the normal way, in light of the facts and circumstances underlying such decisions.[8] For these reasons, we dismiss the application for leave to appeal.The Minister's direction pursuant to s 16(4) CER Act[33] According to the Minister and the UDS Partners, Chisholm J's decision in theHigh Court had resulted in a major degree of uncertainty in terms of land use in greater Christchurch. This was particularly so, given the fact his decision was the subject of an appeal on which the final outcome was still awaited, and in the meantime Chapters 12A and 22 had been set aside with no stay.[34] So, following that first round of judicial review proceedings before Chisholm J in the High Court, on 20 September 2012 the Canterbury Regional Council requested the Minister to issue directions under s 16(3) of the CER Act that it be required in collaboration with the other responsible agencies to develop a LURP. Subsequently, on 15 November 2012, such a direction was made by the Minister pursuant to s 16(4). In accordance with the requirements of s 16(2), that notice identified what was to be dealt with by the LURP in the following way:2.2 Matters to be Dealt With:(a) Identification of the location, type and mix of residential and business activities within specific geographic areas necessary for earthquake recovery, including:(i) the priority areas to support recovery and rebuilding in the next 10 to 15 years; and(ii) enabling and informing the sequencing and timescales for the delivery of infrastructure and transport networks and hubs to support the priority areas.(b) The Recovery Plan will make changes necessary for earthquake recovery to residential and business land use policy and planning provisions and related funding instruments, in order to provide for:(i) the matters in 2.2(a)(i) and (ii); and(ii) a diverse range of housing types, including social and affordable housing.(c) To the extent possible in the timeframe for the development of the Recovery Plan, the Recovery Plan will make changes or identify a programme of further work to be undertaken before changes are made, to residential and business land use policy and planning provisions and related funding instruments, necessary for earthquake recovery, in order to:(i) provide for intensification of use and comprehensive development on suitable brownfield areas; and(ii) support the recovery and rebuilding of the network of centres of activity such as the central city, suburban and satellite town centres.(d) In making these changes, consideration is to include avoiding or mitigating the changed or heightened risks of natural hazards.[35] Similarly, the notice identified the matters that would not be dealt with by the LURP:2.7 In developing the Recovery Plan, the Canterbury Regional Council will consider the relationship of the Plan with other recovery decision-making processes. The Recovery Plan will inform decision- making in relation to infrastructure provision and associated community services such as public transport, health services, educational facilities and recreational facilities and spaces. The Recovery Plan may not direct or implement changes to these matters.2.8 The following matters may be considered by the Canterbury Regional Council in the development of the Recovery Plan but will not be specifically addressed in the Recovery Plan:(a) Recovery of non-land use resources such as water, air, soil, minerals and energy and all forms of plants and animals(being all other "natural and physical resources" as definedin section 2 of the RMA except for land and structures;(b) future use of "red-zoned" land; and(c) long-term provisions for growth and development in greater Christchurch.[36] The Minister, pursuant to s 19 of the CER Act, also directed certain requirements as to public consultation. These directions resulted in the Canterbury Regional Council holding a series of workshops and information sessions between 13 November 2012 and 18 December 2012. Independent Fisheries complains that the invitees to a workshop held on 7 December 2012 were provided with a "context paper" which contained no reference to noise contours, though a later issues paper in December 2012 did suggest that noise contours might be considered.[37] Independent Fisheries claims that, other than the email invitation sent on 30 November 2012 to attend the 7 December 2012 meeting, no direct approach was made to it. Moreover, as these invitations occurred before the release of the Court of Appeal decision, it claims there was no initial reference to the airport noise contour. As a result, Independent Fisheries endeavours now to assert that:99 There was no targeted stakeholder consultation sessions to assess whether it was appropriate to introduce the airport noise contour through the LURP, or whether the adoption of the 50 contour was more appropriate than the 55 dBA Ldn contour.100 Independent was not involved in any of the open forum sessions held in March 2013, and nor was it invited to or informed of those sessions.The Minister and the UDS Partners however strongly reject any suggestion that Independent Fisheries did not have every reasonable opportunity to participate in this process. They maintain that, for whatever reason, tactical or otherwise, Independent Fisheries simply chose not to engage in this process in any real way.[38] Independent Fisheries also endeavours to argue here that, while the formal consultation process was being undertaken, simultaneously private and confidential discussions were taking place between representatives of Christchurch International Airport, the Chief Executives Advisory Group, CERA staff and the CEO of ECan regarding the introduction of the noise contours in the LURP. It says that they occurred without its knowledge.[39] On 21 March 2013 the preliminary LURP was opened for feedback. It effectively introduced PC1 as initially conceived by the UDS Partners. It contained provisions adopting the 50 dBA noise contour, which again confirmed that the effectwould be to prevent Independent Fisheries from developing its land for residential purposes. This course it seems was adopted following the release of the Court of Appeal decision on 20 December 2012.[40] Interestingly, on 22 April 2013 Independent Fisheries itself provided feedback to ECan on the preliminary LURP. This drew attention to its claim that theproposals exceeded the measures identified in the Minister's notice as gazetted. The feedback also included reference to NZS6805 which recommended the introduction of a 55dBA contour. Christchurch International Airport also provided feedback. Mr Stephen Timms, part of the planning team for the UDS Partners, in his affidavit filed in this proceeding states:98 The submissions from CIAL included a large amount of well researched information that supported the outcomes sought by CIAL. While we determined that the airport noise contour was necessary to be included in the Recovery Plan, a number of other points that CIAL raised were not brought into the draft LURP.99 The submission from IFL did not include compelling evidence supporting its position that the airport noise contour should not be included, particularly when considered against the evidence provided by CIAL. The submission received from IFL, consisting of three pages, was focused on legal argument and concern about the process requesting that the matter be referred back to the Environment Court, rather than land use recovery needs and evidence supporting its position.[41] Independent Fisheries then endeavoured to contest Mr Timms' assertion that it had been invited to a further round of workshops held concerning the LURP.[42] On 5 July 2013 the Canterbury Regional Council submitted a draft LURP to the Minister. This was duly notified on 6 July 2013 pursuant to s 20(2) of the CER Act. By submissions dated 2 August 2013, Independent Fisheries again drew theMinister's attention to its claim that the proposals exceeded the measures recorded in the gazetted notice, along with other concerns.[43] On 6 December 2013 the LURP was approved by the Minister under s 21 of the CER Act. No changes were made to the draft LURP, which included the noise contour provisions. It contained directions under s 24(1) of the CER Act to amend the following RMA instruments in relation to the airport noise contour:(a) The Canterbury Regional Policy Statement(b) The Christchurch City Plan(c) The Waimakariri District Plan(d) The Selwyn District Plan[44] On 7 December 2013 the Minister used his powers under s 27 of the CER Act to amend the Canterbury Regional Policy Statement. This was followed on 9 December 2013 by the Minister using his powers pursuant to s 27 of the CER Act to revoke PC1, effectively bringing the Environment Court appeals to an end. On the same day the Environment Court advised that the appeals before it were at an end.[45] The airport noise contour provisions of the LURP are such that it seems they are not amenable to amendment by any local authority. The practical effect of this is that the 50 dBA airport noise contour is likely to be entrenched and cannot be changed under the RMA, except at the behest of the Minister himself. Thus, noise sensitive activities are avoided within the contour unless they fall within an existing area zoned residentially, residential Greenfield area in Kaiapoi, or a residential Greenfield priority area. In submissions Independent Fisheries argues:136 Mr Garland's professional opinion is that the changes resulting from the LURP will lead to the result that Independent's land will nolonger be able to be developed for residential developments as contemplated by PC1 when it was first notified. Nor will it be able to have any dwellings constructed on it unless any such dwelling is occupied in conjunction with a rural activity carried out on the land. Even then, there will be room to debate whether that rural activity had to have been in existence as at 23 August 2008, before a right to erect a dwelling arose.137 In his professional opinion, the changes introduced through theLURP sterilised Independent's land within the contour, with little prospect that this will change in the foreseeable future.Some points of contention[46] While the above account generally reflects the events that occurred here, there are some areas of dispute raised in particular by the respondents along withcertain further background observations. First, counsel for the Minister here makes the point that the Minister was very much attuned to the likely challenge by Independent Fisheries of any decision he made. In his affidavit of 13 June 2014 the Minister states:13. I was very well aware of these issues, not least because I was the first respondent in the first judicial review proceedings in relation to the noise contour brought by the applicant. That proceeding, the process of responding to it, and the judgments of the High Court and the Court of Appeal also informed part of my decision to approve the LURP. I was particularly aware of the requirement in s 10 of the CER Act that my decision to approve the LURP needed to be in accordance with the purposes of the CER Act and that I needed to reasonably consider such approval necessary.[47] Secondly, the Minister objects to the assertion by Independent Fisheries that the airport noise contour was introduced by the LURP. Submissions advanced on behalf of the Minister state that this is factually incorrect because:19.1 a rural buffer zone of some sort at approximately the 50 dBA Ldn contour has existed between the airport and the residential zone since 1958;1819.2 the land was affected by the provisions included in PC1 which was publicly notified on 28 July 2007 and submissions were called for;19.3 the applicant (Independent Fisheries) was aware from this time that CIAL had sought to introduce the recently remodelled contour;19.4 notwithstanding this, the applicant purchased the land at the end of 2007;19.5 a case concerning the airport noise contour was before the Environment Court in late 2007, which resulted in the caucusing of experts to agree to the airport noise contour. The experts produced a report in January 2008 which is the basis for the current airport noise contour;19.6 Variation 4 to PC1 containing the current airport noise contour was then notified in August 2008.The present application[48] The application for review essentially consists of a three-pronged attack. First, it is claimed that the airport noise contour provisions in the LURP are outside18 This assertion draws on the affidavit of Rhys Boswell, General Manger of Strategy and Sustainability for Christchurch International Airport, dated 31 July 2014 at [14].the scope of the Gazette Notice that directs the development of a Recovery Plan. That is to the effect that these provisions are beyond the scope of the LURP, with the claimed result that the procedures in the CER Act have not been adhered to. This reflects Ground 1 of the amended statement of claim here. Secondly, the Minister'sdecision to introduce the LURP it is said failed to meet the requirements of s 10(2) CER Act in the sense that it is not "reasonably necessary" for earthquake recovery purposes, as set out by the Court of Appeal (Grounds 2, 3 and 4). Finally, it is claimed the airport noise contour measures were introduced into the LURP without adequate engagement and consultation with Independent Fisheries and the community (Ground 5).[49] Independent Fisheries in its amended statement of claim seeks also in effect to overturn two findings made by the Court of Appeal. These are that the airport noise corridor falls outside the proper purposes of the CER Act (Ground 6) and secondly, that the Minister and the UDS Partners have unlawfully removed theapplicant's "right of access to the (Environment) Court" (Ground 7). And, so far as a remedy is concerned, Independent Fisheries seeks that the parts of the LURP relating to the airport noise contour be severed from the document and struck out, as well as the consequential changes that have been made to the Regional Policy Statement and the relevant District Plans. Independent Fisheries does acknowledge now however that this Court has no jurisdiction to overturn the Court of Appeal findings it seeks to achieve.[50] Broadly speaking, the Minister's primary response is that his decision toinclude the airport noise contour into the LURP was made lawfully because this matter is within the scope of the Gazette Notice and the LURP. In addition, and in any event, the Minister maintains he was not limited to those matters described in his direction to prepare the draft LURP, and it was open to him to make changes as he thought fit. The Minister maintains he considered the inclusion of the airport noise contour to be reasonably necessary, he properly consulted Independent Fisheries and others, and in making his decision, he took all relevant considerations into account and did not consider those which were irrelevant.[51] I will shortly turn to address these arguments. However, I observe at this point that, in this application, no collateral attack to the findings of the Court of Appeal can be entertained.Legal framework[52] Before turning to address the arguments noted above, it is useful to set out thekey sections of the CER Act which provide the framework in which the Minister'sdecisions here are to be assessed. Relevantly these include:3 PurposesThe purposes of this Act are—(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:(b) to enable community participation in the planning of the recovery of affected communities without impeding a focused, timely, and expedited recovery:(c) to provide for the Minister and CERA to ensure that recovery:(d) to enable a focused, timely, and expedited recovery:(e) to enable information to be gathered about any land, structure, or infrastructure affected by the Canterbury earthquakes:(f) to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:(g) to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:(h) to provide adequate statutory power for the purposes stated in paragraphs (a) to (g):10 Powers to be exercised for purposes of this Act(1) The Minister and the chief executive must ensure that when they each exercise or claim their powers, rights, and privileges under this Act they do so in accordance with the purposes of the Act.(2) The Minister and the chief executive may each exercise or claim a power, right, or privilege under this Act where he or she reasonably considers it necessary.16 Recovery Plans generally(1) The Minister may direct 1 or more responsible entities to develop a Recovery Plan for all or part of greater Christchurch for his or her approval.(2) The direction must specify the matters to be dealt with by the Recovery Plan, which matters may include provision, on a site- specific or wider geographic basis within greater Christchurch, for—(a) any social, economic, cultural, or environmental matter:(b) any particular infrastructure, work, or activity.(3) A responsible entity may request that the Minister direct it to develop a Recovery Plan.(4) Where the Minister directs the development of a Recovery Plan, he or she must ensure that the direction is notified in the Gazette together with a list of all other Recovery Plans being developed or in force21 Approval of Recovery Plans(1) Following the development and consideration of a draft Recovery Plan, the Minister may—(a) make any changes, or no changes, to the draft Recovery Plan as he or she thinks fit; or(b) withdraw all or part of the draft Recovery Plan.(2) The Minister may approve a Recovery Plan having regard to the impact, effect, and funding implications of the Recovery Plan.(3) The Minister must give reasons for any action taken under subsection (1) or (2).(4) The Minister must, as soon as practicable after deciding to approve a Recovery Plan under subsection (2),—(a) give notice in the Gazette of the issuing of the Recovery Plan and where it can be inspected; and(b) publicly notify the Recovery Plan in whatever form he or she thinks appropriate; and(c) present a copy of the Recovery Plan to the House of Representatives.Beyond scope argumentIndependent Fisheries' submissions[53] This argument as noted at [48] above stems from the claim that the airport noise contour provisions in the LURP are not within the proper scope of the recovery plan set by the procedures in the CER Act. The argument as I see it is generally reducible to the following:(a) The scope of the recovery plan was determined by the Minister'sdecision under s 16 as notified in the Gazette. This decision was made after the High Court decision, but before the Court of Appeal decision. Thus, in light of Chisholm J's decision in the High Court, Independent Fisheries suggests that it is wrong to claim that the direction by the Minister could have been intended to compass the noise contour issue.(b) Consistent with the above proposition, Independent Fisheries maintains that neither affidavit filed by the Minister here suggests that his original s 16 direction specifically contemplated that the airport noise contour was within the determined scope.(c) Section 16(2) of the CER Act mandates that the "direction must specify the matters to be dealt with by the Recovery Plan".Independent Fisheries asserts that the "matters" to be specified wouldinclude "significant measures such as a proposal to implement anairport noise contour".(d) The scheme of the CER Act (ss 10(2), 16, 19(2), and 20) involves transparency at all stages. The implication from this is that, if the Minister were permitted to claim that an important and significant planning issue was within the scope of the direction by dint of what Independent Fisheries claims is a broad statement that is bothambiguous and ill-defined, this would be antithetical to such transparency.(e) While the Minister has power to make changes to a plan as he sees fit, it is argued that he is not able to make changes that go beyond the scope of the plan set by the original s 16 direction.(f) Paragraph 2.8 of the gazetted direction expressly states that "long-term provisions for growth and development in greater Christchurch"will not be specifically addressed in the Recovery Plan. Independent Fisheries contends that amongst others, reverse sensitivity issues resulting from airport noise fall within this particular concept.(g) This application is not about the refusal to include areas within the contour (such as the majority of Independent Fisheries' land) aspriority recovery areas, but rather the fact that the "real thrust of the airport noise contour measures is that they prevent development."Such priority areas are able to be identified in the absence of such a prohibition.[54] Independent Fisheries' concluding argument on this ground is usefully repeated here:165 The reality is that a decision was made to proceed with a Recovery Plan after the High Court decision, and before any decision of the Court of Appeal. Understandably the respondents did not simply repeat the decision on the scope of the measures they were implementing that had just been successfully challenged before the High Court. Rather, this issue was to be developed within the RMA procedures through the notified change to the CCC District Plan. But as a result of the Court of Appeal's decision, and its conclusionthat the airport noise contour could be within the scope of the Act, a decision has plainly been made at a later stage to include the airport noise contour in the LURP notwithstanding that it was not within the scope of the Plan as originally determined. The problem with this approach is that the procedures set out in the [CER] Act for the lawful establishment of a Recovery Plan (which overrides the normal regime established under the RMA) must be followed. The extraordinary powers have necessary protections, and the processes set out in the [CER] Act must be followed for the lawful use of those extraordinary powers. The Minister made the decision under s 16 on the scope of the Plan, and that needed to be adhered to no matterhow tempting it was for the respondents to take advantage of theopportunity the Court of Appeal's decision was thought to havepresented.(emphasis added)Respondents' submissions[55] In response, fundamentally, the Minister relies on paragraph 2.2(a) of his direction in support of his position that the airport noise contours are within scope. That reads:2.2 Matters to be dealt with(a) Identification of the location, type and mix of residential and business activities within specific geographic areas necessary for earthquake recovery[56] The Minister also relies on paragraph 2.7 which records, among other things, that:[t]he Recovery Plan will inform decision-making in relation to infrastructure provision and associated community services[57] These two points form the backbone of the Minister's argument that theairport noise contour was within scope.[58] However, as a second argument, the Minister claims that the CER Act does not support Independent Fisheries' contention that he is bound by the scope of his s 16 direction. The Minister says that s 20(2) requires public notification of the LURP, which the Minister did. Further, by s 21 the Minister has very broad powers to make changes to the LURP.[59] The UDS Partners' argument was really directed at whether the airport noise contours were within the scope of the s 16 direction. Briefly, they state that it is clear that this was within scope.Analysis – was the s 16 direction within scope?[60] In my view on one level this would appear to be a reasonably finely balanced matter. There are arguments for both sides. However, upon careful analysis I haveformed a clear view that the compass of the s 16 direction is sufficiently broad to capture the airport noise contour issue here.[61] It is useful however to again briefly set out what I consider to be IndependentFisheries' most compelling arguments on this aspect. I will then address what I see to be the conclusive rebuttal to these arguments. Independent Fisheries' mainpropositions supporting its contention that the airport noise contour is not within scope of the s 16 direction are:(a) The s 16 direction came in the immediate aftermath of Chisholm J'sdecision in the High Court, but before the Court of Appeal decision. In that context, the assertion that the airport noise contour was within scope must proceed from a somewhat tenuous position.(b) The introduction of the airport noise contour can be categorised as nothing other than a planning decision of significant implication for many people in the greater Christchurch region. In this context there is an argument that the s 16 direction only tangentially refers to"identification of the location, type and mix of residential andbusiness activities within specific geographic areas necessary forearthquake recovery".(c) Moreover, paragraph 2.8 of the direction records that "long-termprovisions for growth and development in greater Christchurch" willnot be specifically addressed in the Recovery Plan. Even proceeding from an interpretive position most beneficial to the Minister, it could be difficult for some to see how this is not a provision relating to the long-term growth and development of Christchurch.(d) The airport noise contour does not seem to be about identification of the location, type and mix of residential or business activities within a specific geographic area. Rather, it needs to be seen to be about the identification of certain areas, defined not by geography but by noise constraints, in which development cannot proceed.[62] There is in my view however a compelling rebuttal to this series of propositions which in reality is quite simple. Paragraph 2.2(a) is phrased in very broad terms. The noise contour issue as I see it is capable of fitting within that paragraph quite comfortably, as it is a tool which assists in identifying residential and business priority areas. Indeed in my judgment, it is critical for issues of planning certainty, and knowledge as to the immediate and longer term availability of land for residential development in the Christchurch region, that areas where this may occur, and also areas where this may not occur, are clearly identified. In this respect Mr Timms deposes:38. In my view, the inclusion of the airport noise contour was an integral consideration in determining the location, type, and mix of residential and business development and recovery purposes related to land use in greater Christchurch.39. Whilst not explicitly referred to in the direction, the airport noise contour is one of a number of significant factors that inform the location of priority areas for Greenfield residential and business development to support recovery and rebuilding in the next 10 to 15years The identification of the airport noise contour within the LURP was necessary as part of clearly identifying the many constraints to land use in greater Christchurch, to inform the location of priority areas for development and to ensure the health and well- being of those living in these areas.[63] Similarly, Mr Peter Skelton, Commissioner of the Canterbury Regional Council, has deposed in an affidavit before the Court:36. The difficulty with IFL's position is that it ignored the problems thatlocal authorities and earthquake recovery would face without the airport noise contour. The inclusion of the airport noise contour provided planning certainty. Planning certainty is necessary during this period in post-earthquake greater Christchurch, because it provides a clear direction for investment in development. If this had been left to the PC1 (appeal process) and/or no planning; a number of issues would arise including:a. the diversion of Council resources away from recovery programmes, for example, council planners would have been forced to deal with possibly expensive private plan change applications in respect of ad hoc developments;b. development would have occurred in an un-coordinated and un-integrated manner with infrastructure programmes and other wider recovery activity; andc. development would have occurred without appropriate consideration given to strategic infrastructure and the avoidance of key hazards and constraints.[64] Further, I repeat that the prescription of where residential and business activities cannot occur is the natural and logical corollary of prescribing where they can occur. The proscription of residential development within the airport noise contour plainly informs other decisions relating to infrastructure and community services. As counsel for the Minister in my view rightly identified here,[o]nce the applicant's land is identified as not to be developed for residential use it becomes unnecessary to plan for the provision of services for newly developed land. As a result planning for those services can be focused elsewhere, including on those Greenfield priority areas identified in the LURP.[65] In my view, including the airport noise contour and the attendant restrictions on residential development there, designed at least in part to avoid the adverse effects on those who might choose to live within the contour area, clearly supports the identification of residential and business land use priority areas.[66] Accordingly I am satisfied that the introduction of the noise contour was within the scope of the s 16 direction issued and gazetted by the Minister. Independent Fisheries therefore fails on this ground of review.Did the airport noise contour have to be within scope?[67] If I am wrong in the above conclusion, in my view the Minister's next argument that he is not confined by the s 16 direction can be dealt with quite shortly. While I acknowledge that the powers in s 21 CER Act confer a very broad discretion, the more fundamental objection regarding s 16 is that an argument exists here that the Minister is unable to deploy those powers to approve something that should have never been developed. Section 16 provides for a direction to be given to prepare a Recovery Plan. It may well be ultra vires for the Canterbury Regional Council to prepare, and logically also for the Minister to approve, something which by the s 16 direction ought never to have been in existence.[68] Stepping back and considering the matter from a broad community perspective, it would also be questionable in my view for a s 16 direction to be given, which forms part of the essential background on which people rely in framing their submissions, to be rendered irrelevant by virtue of the utilisation of the broad s 21 powers. It would also as I see it be antithetical to the requirements for public consultation and participation evident in the CER Act, and subversive to principles of transparency. The CER Act contains extraordinarily wide and intrusive powers, necessary to address what was seen as an emergency-type situation. The obligations incumbent on the Minister necessarily need to be viewed in that light.[69] To a point therefore, I disagree with the contention advanced for the Minister that:It would be an extremely perverse outcome if the Minister was entirely bound by the initial scope of the direction and precluded from making changes consistent with the purposes of the Act.[70] If the Minister's position was correct, I am unsure precisely what purpose a s 16 direction would serve. On this, I draw an analogy with a plan change under the Resource Management Act 1991. The local authority defines the scope of what will be changed, and submissions are made within that scope. Anything not within thatscope is not 'on' the plan change.19 Similarly here, any aspect of the Recovery Plan, or submissions on the Recovery Plan, outside the rubric of the s 16 direction, are not'on' the issues and are therefore arguably beyond scope.Jurisdictional argument – Minister's decision not "reasonably necessary" forearthquake recovery purposes in terms of s 10(2)Independent Fisheries' position[71] For the applicant Independent Fisheries, this ground of review ultimately distils to a contention that the Minister, in deciding whether to deploy his powers under s 21 of the CER Act to approve the LURP, should have had regard to the possibility that an alternative means was available to achieve the same end in accordance with his obligation to do so pursuant to s 10(2). Independent Fisheries19 See for example Palmerston North City Council v Motor Machinists Ltd [2013] NZHC 1290 at [46]–[83].asserts that in considering the issue of necessity, the Minister needed to have regard to the following three alternatives:171.3.1 the approach adopted by the Hearings Commissioners (being the formal decision version adopted by ECan) involving a noisecontour at 50dBA, but allowing Independent's land to be aSpecial Treatment Area;171.3.2 the approach advocated by Independent in its appeal, namely that the airport noise contour only needed to be at level 55 dBA to properly protect the position of the Airport, or alternatively that itbe set at 50 dBA but with Independent's land recognised as afurther limited exception to that rule; or171.3.3 the position advocated by the UDS Partners and the Airport that the contour be at 50 dBA, and without any Special Treatment Area.[72] Independent Fisheries asserts that it was important that the Minister turned his mind to these alternatives, as the ultimate outcome had the real potential to deprive it of access to the Court. The argument continues that because the direction by the Minister was a request that one side which was a party to the appeals in the Environment Court develop the plan, and effectively decide the appeals by executive order, then even further care was needed.[73] Moving to specific issues, Independent Fisheries states:(a) The Minister failed to understand, and therefore apply, the correct standard of necessity as approved by the Court of Appeal. That standard was necessity, not mere expedience or desirability. Examples are pointed to which Independent Fisheries states support its argument that a lesser threshold (appropriateness, help, unacceptability etc) was employed here. If this lower test is claimed to meet the threshold by the Minister, Independent Fisheries contends this is not a reasonable position. As to these linguistic discrepancies, Independent Fisheries states:The points made above cannot be dismissed as infelicitous use of language. There is an error on the face of the record.(b) What the Minister was actually doing in deploying his s 21 powers was deciding a live dispute before the Environment Court by executive power and thereby depriving Independent Fisheries of its access to the Courts. Accordingly, the Minister had an obligation to understand the dispute and determine it. This would include aconsideration of whether Independent Fisheries' land should be aspecial treatment area or excluded from the contour altogether. By not doing so, the Minister has failed to consider what provisions are necessary, which Independent Fisheries claims is a failure to properly grapple with the issues. This it is said is unreasonable. In essence, Independent Fisheries claims:the Minister needed to squarely address whether it was necessary to remove Independent's right of access to the Court. At no point is that even mentioned.(c) The effect of the LURP will be to give the airport noise contour a protected, or entrenched, status which will prevent its amendment via normal RMA processes in the future. This arises by joint operation of ss 23 and 24 of the CER Act, which have the effect that only the Minister can make subsequent changes to the LURP. However, this might be ameliorated by the limited life of the CER Act, due to expire five years following the date of commencement in accordance with s 93(1). This feature is not analysed in the decision-making documents. On this basis alone s 10(2) of the CER Act has not been complied with.Respondents' position[74] Counsel for the Minister contends that Independent Fisheries' focus on thelanguage used in the Minister's affidavit is:an attempt to obscure the real argument, namely: whether or not theMinister reasonably considered the approval of the LURP, which contained the airport noise contour, to be necessary for the purposes of the [CER] Act.[75] The Minister's position is that the CER Act contains reference to words such as "appropriate" and "facilitate", and Independent Fisheries' argument that utilisationof the word 'help' did not meet the relevant threshold "does not withstand any level of scrutiny".[76] Further, it is suggested that the 5 December 2013 report which contains theMinister's reasons for amending and approving the LURP, as required by s 21(3) ofthe CER Act, makes it clear that:the Minister understood the statutory requirements, took those fully into account, and reasonably considered it necessary to approve the LURP.[77] Counsel for the Minister, in his submissions, goes on to state that:All the evidence counters the suggestion that the Court of Appeal's test wassomehow misunderstood or misconstrued by the Minister or his officials.The Minister's first affidavit sets out that he was very conscious of therequirement in s 10 that his decision to approve the LURP needed to be in accordance with the purposes of the CER Act and he needed to reasonablyconsider such approval necessary. The Court of Appeal's test was clearly front of mind for everyone involved in the LURP[78] Reference is then made to various examples. The Minister suggests that the s 10 test has been satisfied because the airport noise contour was necessary to provide planning certainty, first, because of the importance of the Christchurch International Airport and secondly, to ensure recovery of communities in the greater Christchurch region. In terms of the alternative options espoused by Independent Fisheries, the Minister responds:(a) Independent Fisheries could have advanced technical arguments when it had the opportunity to comment on the draft LURP. It chose not to do so.(b) The Minister considered the placement of the airport noise contour would provide planning certainty with regard to land use planning. The process advocated for by Independent Fisheries would have led also to unacceptable delays given the circumstances prevailing post- earthquakes.[79] The Minister says he was aware of alternatives and considered them, but ultimately elected to pursue the course he did. Furthermore, the Minister had regardto the specific position of Independent Fisheries and was fully aware of its position throughout the process.[80] The arguments of the second respondents (the UDS Partners) on this ground can be dealt with briefly:(a) First, it is suggested that Independent Fisheries' characterisation of the statutory test is incorrect. The actual test is that the Minister reasonably considers it necessary to exercise his powers. The UDS Partners suggest this is an attempt by Independent Fisheries to have the Court substitute its own view of what is necessary. In this regard, the UDS Partners point to the following indicia supporting the assertion that the Minister acted lawfully:(i) The UDS Partners considered the LURP necessary after consideration of the public interest and the views of the community.(ii) CERA formed a similar view.(iii) The Canterbury District Health Board considered the matter important.(iv) The Christchurch International Airport considers it critical to protect the Airport as strategic infrastructure.(v) Independent Fisheries "apparently considers a noise contour potentially necessary but not at the 50 dBA Ldn level".(vi) The Court of Appeal thought it to be lawfully included as part of earthquake recovery in Chapter 22.(vii) Only one party, from the whole of the Christchurch region, has sought to challenge its inclusion.[81] As to the entrenchment argument, the UDS Partners respond by simply stating that this argument is flawed. This is due to the fact that the CER Act will expire in April 2016, along with the so-called entrenchment. After this point, the relevant provisions of the LURP will be subject to the normal review procedures in the RMA. As I understand it, the Minister too supports this reply to the entrenchment argument.Analysis[82] As I see it, this is a factual dispute. The ultimate question is whether the Minister turned his mind to the correct legal test. If he did, the process is fine. If he did not, then it could be said that he failed to take account of relevant considerations, or considered irrelevant considerations, with the end result that the decision made was ultra vires.[83] That said, this is a matter which requires assessment of substance over form. I am satisfied that in substance the Minister here applied the correct legal test. It is apparent that he had in mind not only the statutory requirements, but the interpretation of those requirements outlined by the Court of Appeal.[84] There is significant documentary evidence before me which, when reviewed in the round, makes it patently clear that the Minister considered the statutory test and applied it. I am therefore satisfied that the Minister reasonably considered that approval of the LURP was necessary. I am further satisfied that in making this consideration, the purposes of the CER Act were at the forefront throughout. In summary, I prefer the position advanced on behalf of the respondents here.[85] Independent Fisheries also fails on this ground of review.Failure to consult and engage argumentIndependent Fisheries' position[86] The final "unfair process" ground advanced by Independent Fisheries is that:the airport noise contour measures were introduced into the LURP without appropriate community engagement and consultation. There was no targeted consultation with Independent, or consultation with the Community Forum, the Cross-Party Forum or, (aside from CIAL) was there any consultation with any other affected party, in accordance with the Gazette Notice.[87] Reference is made to a lack of transparency and allegations are advanced that discussions took place between the UDS Partners and CIAL that "were confidential and shrouded in secrecy." Independent Fisheries then goes on to set out the requirements for consultation,20 followed by its suggestions as to what actually occurred in the present case.[88] One of the specific complaints raised by Independent Fisheries is that an email sent to it in November 2012 made no mention of any consideration being given to airport related constraints. This, it is claimed, is in sharp distinction to an email sent at the time to the New Zealand Planning Institute. Independent Fisheries further complains about the extent of consultation with it, given the earlier litigation concerning what it says were the very issues the LURP was seeking to deal with. It goes on to detail what it says were specific alleged failures.Respondents' position[89] The Minister and the UDS Partners respond by stating:(a) The position of Independent Fisheries is entirely incorrect on this point. The consultation and engagement with the community and individual groups was extensive and appropriate here.(b) All PC1 parties including Independent Fisheries were invited to targeted consultation sessions (about nine meetings took place) as the affidavits of Mr Timms and Mr Bayfield set out in some detail. Independent Fisheries, of its own volition, elected not to engage with the process in any meaningful way. Accordingly, the respondents cannot be responsible for this affirmative disengagement by Independent Fisheries.20 Citing Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).(c) The Minister both received and considered Independent Fisheries'submission on the draft LURP, dealing as it did with "the allegedinadequacy of the process of seeking the community's views on the recovery plan".Analysis[90] I am satisfied that this ground of appeal must also fail. Independent Fisheries raises potential issues with the process here. But, as I see the position, the extensive community engagement and consultation that the respondents planned and undertook here, as outlined in the affidavits of Mr Timms and Mr Bayfield, together with their genuine attempts at targeted consultation, in all the circumstances, must be seen as appropriate. And I have reached a clear view that the primary cause of any difficulty, caused by alleged consultation and communication deficiencies, is largely attributable to Independent Fisheries itself. It seems to me, from the material which is before the Court, that Independent Fisheries may have decided at an early point that it would show no real interest in taking part in the process and, from that point, it had resolved that it would be challenging the decision through the Courts. Indeed, in its submissions it advances matters beyond the jurisdiction of this Court (due to determinations reached in the previous Court of Appeal decision) with the apparently crystallised view that this is a matter to be escalated through the appellate structure, including to the Supreme Court if necessary.[91] The Minister and the UDS Partners in my view made admirable efforts to consult, engage and communicate widely. I am satisfied that this has met the requirements of the s 16 direction as Gazetted and the requirements of the CER Act more generally.[92] Independent Fisheries also fails on this ground of review.Result[93] This application has failed and it is dismissed. Independent Fisheries has been unable to make out any of its grounds for review.[94] It is hoped that the parties are able to come to an amicable solution as to costs between themselves. Should this aspiration prove fruitless, memoranda not exceeding five pages in length are to be filed and served sequentially by the applicant, the first respondent, the second respondent and intervener respectively, with five working days allowed between filing and service. These are to be referred to me and, in the absence of any party indicating they wish to be heard on the matter, I will decide the question of costs based on the material then before me.[95] On the question of costs, without in any way determining this matter, I simply observe at this point that, following the first review proceedings, Chisholm J considered the categorisation of the proceeding there was "category 3", though therewere some issues as to the appropriate daily recovery rate in terms of r 14.3 and sch 2.21 That may well provide some guide for the parties in this proceeding....................................................Gendall JSolicitors:Anthony Harper, ChristchurchCrown Law, WellingtonWynn Williams, ChristchurchChapman Tripp, Christchurch21 Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 2572.Annexure 1–chronology