PACIFIC INVESTMENT TRUST V CHRISTCHURCH CITY COUNCIL HC CHCH CIV 2008-409-2743

PACIFIC INVESTMENT TRUST V CHRISTCHURCH CITY COUNCIL HC CHCH CIV 2008-409-2743 2 October 2009IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2008-409-2743IN THE MATTER OF of section 299 of the Resource Management Act 1991 AND IN THE MATTER OF of appeals under Variation 2 to the Banks Peninsula Proposed District Plan under Clause 14 of the First Schedule to the Act BETWEEN PACIFIC INVESTMENT TRUST Appellant AND CHRISTCHURCH CITY COUNCIL Respondent Hearing: 14 September 2009 Appearances: MRG Christensen and G J Cleary for Appellant No appearance for Respondent (Leave to withdraw) Judgment: 2 October 2009JUDGMENT OF CHISHOLM J[1] This appeal from interim and final decisions of the Environment Court is confined to a narrow issue. The appellant contends that the Environment Court had no jurisdiction to increase the minimum lot size for discretionary activities within the Rural Amenity Landscape Zone of the Banks Peninsula Proposed District Plan from four to 10 hectares. [2] Although it is debatable whether the appeal was lodged out of time, on 19 February 2009 and out of an abundance of caution Fogarty J made an order extending time. Earlier he had granted the Regional Council (who had given notice that it wished to be a party) leave to withdraw. On 19 May 2009 Panckhurst J granted the respondent, Christchurch City Council, leave to withdraw because it wasnot able to support the decisions under appeal. Given the narrow compass of the appeal Panckhurst J decided not to appoint an amicus.Background[3] Amongst other things the Proposed Plan, which was notified in 1997, identified landscape and coastal areas of high and moderate sensitivity throughout the District. These areas contained stringent restrictions on development. [4] Following widespread community concern, especially from landowners, the Council established a task force to examine the matter. Acting on its advice, the Council notified Variation 2 to the Proposed Plan in 2002. The Variation significantly modified the original proposal. [5] After the Council released its decision on Variation 2 in 2005, a number of appeals were lodged with the Environment Court. With the consent of the Court the parties agreed that the Council needed to undertake a full landscape study of the Peninsula. This was finalised in 2007. In simple terms it recommended delineation of outstanding natural landscapes with the remainder of the rural land being contained in the Rural Amenity Landscape Zone (RAL Zone). [6] Mediation resolved some of the appeals. The unresolved appeals were heard by the Environment Court in January/February 2008. On 24 April 2008 the Court delivered an interim decision which was finalised in a further decision delivered on 11 September 2008. Those decisions have given rise to this appeal.Environment Court Decisions[7] Although the first decision is extremely lengthy (261 paragraphs), the component relevant to this appeal is very limited. As already mentioned, it revolves around whether the Environment Court had jurisdiction to adopt greater controls on sub-division and the erection of dwellings in the RAL Zone. The Court concluded that it had jurisdiction. [8] Its reasoning is contained in the following paragraphs:"[193] We have concluded that the relief sought in Ms Briggs' appeal and evidence, including that adopted for Mr Collins, would provide jurisdiction for additional controls. Item (iii) of the relief seeks: A wide series of new rural zones which reflect the most efficient and effective management of natural and physical resources and provide for the appropriate subdivision of the rural areas. [194] Although that discusses rural zones, it also appears to include the question of the contents of the Rural Zone rules. We did not understand the Regional Council or any other party to contend that there was not such jurisdiction, given the imposition of the RAL which clearly encapsulated the type of rural zone envisaged. We do not consider that, given the broad interpretation of the word zone, this could not apply to the RAL nor that those words including appropriate subdivision would not include the control over dwelling density within the area. [195] Such an outcome was put to a number of farming witnesses who acknowledged that their desire was to be able to provide extra dwellings from time to time, or occasionally subdivision as required. They acknowledged, however, that it was not their intention to provide for wide-scale subdivisional development and that the type of provision the Court was suggesting could be a realistic option. [196] We conclude this approach would also provide an incentive for parties to seek controlled activity status by being able to covenant the balance to 40 hectares in preference to a discretionary activity with a smaller covenanted area provided. In that sense we see some benefit from a ten hectare minimum lot (or one plus nine covenanted) in terms of achieving the general objective for the Rural Zone, particularly as they relate to the high values of landscape and the threats of over- intensification. It will provide some real protection against multiple subdivision, which appears to be at the heart of many of the concerns of the witnesses and will limit the number of properties which are able to subdivide. [197] On the other hand, the amended provisions we propose would continue to provide flexibility for the farming community. We do not suggest final wording at this stage and leave it to the parties to see if that wording can be agreed. It seems that similar wording to that for controlled activities but with a provision for at least 10 hectares average per lot on subdivision and for a minimum covenanted area of nine hectares plus a minimum of one hectare for a dwelling would achieve the overall outcome sought."Thus the Court considered that the minimum lot size for a discretionary activity in the RAL Zone should be 10 ha instead of four ha. This had the effect of lifting the upper threshold of non-complying activities from below four ha to below 10 ha. [9] This amendment, together with consequential amendments to the Proposed Plan, was confirmed in the final decision.This Appeal[10] It is alleged by the appellant that the Environment Court erred in law by finding that it had jurisdiction to increase the minimum lot size for discretionary activities within the RAL Zone from four ha to 10 ha. The appellant contends: (a) the Environment Court was patently wrong when it observed that no party had contended that jurisdiction did not exist; and (b) the amendment implemented by the Court had not been fairly and reasonably raised in the submissions and appeal of Mrs Brigg. Under those circumstances the appellant contends that the application of well established principles supports its contention that the Court acted without jurisdiction. [11] The appellant also contends that the amendments made by the Environment Court are likely to result in material and significant prejudice to parties not before the Court. It alleges that the ability of rural land owners within the RAL Zone to develop their land has been substantially curtailed without the landowners having had proper opportunity to be heard on the issue.Discussion[12] A copy of the written submissions presented to the Environment Court are included in the agreed bundle. They included the following submissions by counsel for Christchurch City Council (the respondent):"7.4 Ms Rykers explains that the Council had wanted non-complying activity status for dwelling on sites less than 40ha and above 160m. However, there is no scope in the appeals to lift the non-complying activity threshold from the current 1:4ha to 1:40ha, whether below or above 160m. 7.5 It is trite law that the Court has no ability to grant relief that goes beyond the scope of the appeals before it. The High Court in Hauraki Mäori Trust Board v Waikato Regional Council (CIV 3003-485-999)[High Court, Auckland Registry, 31 August 2004, Randerson J] held: where amendments seek to broaden the scope of the relief sought on the reference, there is a risk of prejudice to people who have decided not to take part in the reference, having regard to the relief sought at the time of service. The court should therefore be alert to ensure there is no risk of material prejudice arising should an amendment be granted which goes beyond the scope of the relief sought in the original reference.7.6 Unfortunately, counsel have been unable to find any appeal which seeks to amend the non-complying dwelling density standard (Rule 9.3) to allow an increase to 40ha."Mr Christensen indicated from the Bar that the appellant had orally supported those submissions during the Environment Court hearing. [13] Thus the Environment Court was mistaken when it commented that jurisdiction to increase the minimum lot size for discretionary activities in the RAL Zone had not been challenged by any of the parties. However, this does not resolve the appeal and it is necessary to revisit the issue of jurisdiction. [14] It is well settled that (subject to the powers conferred by s293 which are not relevant in this case) the Court has no jurisdiction to grant relief beyond the scope of the References before it. A full Bench formulated the following test in Countdown Properties (Northlands) Limited v Dunedin City Council [1994] NZRMA 145 at 166:" The local authority or Tribunal must consider whether any amendment made to the plan change as notified goes beyond what is reasonably and fairly raised in submissions on the plan change It will usually be a question of degree to be judged by the terms of the proposed change and of the content of the submissions.This is equally applicable to References to the Environment Court. In Royal Forest and Bird Protection Society Inc v Southland District Council [1997] NZRMA 408 Panckhurst J commented at 413 that the issue should be approached in a "realistic workable fashion rather than from the perspective of legal nicety".[15] The Reference relied on by the Environment Court to found jurisdiction was lodged by Liz Briggs, a planning consultant. It arose from one of her Submissions to the Council opposing changes to the 1997 version of the Plan. Mrs Briggs sought to have Variation 2 withdrawn and the provisions notified in 1997 reinstated subject,however, to the incorporation of a series of "new Rural Zones which reflect the most efficient and effective management of the natural and physical resources and provide for the appropriate sub-division of the rural areas". The Submission said that this would require a separate landscape planning assessment. [16] As a result of the Council decisions Mrs Briggs was, of course, entitled to refer to the Environment Court any provision or matter included in the Proposed Plan that she had referred to in her Submission: clause 14(1) and (2) of the First Schedule to the Act. She did so, seeking, inter alia, the following relief:"(iii) A series of new Rural Zones which reflect the most efficient and effective management of the natural and physical resources, and provide for theappropriate subdivision of the Rural Areas. This would require a separate landscape planning assessment to be undertaken, which would define potential "zones" or "landscape character units" based on:• Natural science characteristics.• Topography and microclimate.• Cultural values – both European and Tangata Whenua.• Community values and aspirations.• The location and accessibility to infrastructure and other services.• Existing settlement patterns and potential for controlled infill or expansion.• "Sustainable development" principles."The Environment Court relied on this to found jurisdiction on the basis that both the word "zone" and the words "including appropriate subdivision" justified a broad interpretation. [17] Mr Christensen contended that the relief sought by Mrs Briggs could not reasonably and fairly have alerted potentially interested parties to the possibility that there would be an across the board increase in the minimum allotment size fordiscretionary activities within the RAL Zone from four ha to 10 ha. To the contrary, he submitted, the public could have reasonably understood that Mrs Briggs was seeking a flexible response towards development within the RAL Zone rather than the rigid "one size fits all" RAL Zone that was ultimately adopted by the Court. [18] Public participation is, of course, fundamental to the resource management process. As Randerson J commented in Hauraki Mäori Trust Board v Waikato Regional Council (see [12] above), the Court needs to ensure that amendments to Plans do not go beyond the scope of the Reference because people are likely to make decisions about whether to participate in an appeal on the strength of the relief sought in the References. For that reason clause 14(4) of the first schedule to the Act requires appeals to be in the prescribed form and the relevant form (Form 7) requires the appellant to "give precise details" of the relief sought. [19] I accept that the relief sought in Mrs Briggs' Reference would not have fairly and reasonably alerted interested parties to the possibility that the four ha minimum in the RAL Zone would be lifted to 10 ha. Rather than alerting interested parties to the possibility that the minimum area for discretionary activities in the RAL Zone would be lifted, the Reference could have been reasonably interpreted as proposing a series of new Rural Zones and, importantly, that this would only happen after a further process involving the public. [20] Although the Environment Court made reference to the evidence given by Mrs Briggs and Mr Collins, it is beyond argument that evidence cannot confer jurisdiction if none was conferred by the Reference. Nevertheless for completeness I will make brief reference to the evidence given by Mrs Briggs and Mr Collins. [21] It is significant that in her evidence Mrs Briggs proposed a way forward with reference to the Rural Zone in the following terms:"9.6 ii] A "Rural Zone" below the ONL with the following provisions, as recommended in the Variation 2 decision:• A "permitted" subdivision standard of 40ha• "Restricted discretionary" for 20-40ha• "Discretionary" for 4ha. Also, that the "Guidelines for Buildings in the Rural, Rural-residential and Akaroa Hill Slope Zones", as notified in the 1997 Plan [Appendix VIII] be re-instated and applied to all consents for dwellings."Thus rather than supporting an across the board increase in the minimum threshold for discretionary activities in the RAL Zone from four ha to 10 ha, Mrs Briggs appears to be accepting the four ha minimum. [22] Mr Collins' evidence was to the effect that the provisions for the rural areas of Banks Peninsula did not adequately protect the Peninsula's outstanding natural landscapes or the natural character of the coastal environment. However, he deleted paragraph 67 of his evidence which specifically related to the possibility (floated and rejected by the City Council on the basis that there was no jurisdiction) that houses would be permitted on lots of between four and 40 ha as a discretionary activity.Outcome[23] By increasing the minimum lot size for discretionary activities within the RAL Zone the Environment Court acted beyond its jurisdiction. The error was material and the appeal is allowed. [24] In the notice of appeal the relief sought was expressed in these terms:"That the decision to set the minimum lot size for discretionary subdivisions at 10 hectares be set aside and a 4 hectare minimum be reinstated in accordance with Variation 2 as notified."Notwithstanding the reference to subdivisions, it is clear that Chapter 19, which relates to land use controls, will have to be in harmony with Chapter 31, which relates to subdivisions. Leave is granted pursuant to Rule 20.9(4) of the High Court Rules (which are incorporated by s299(2) of the Act) to amend the notice of appeal so that it refers to both subdivision and land use. [25] The decision of the Environment Court adopting a 10 ha threshold for discretionary activities in the RAL Zone is set aside and the 4 ha threshold isreinstated. The rules in Chapters 19 and 31 referred to in paragraph 85 of the submissions of counsel for the appellant are to be amended in accordance with those submissions. Leave is reserved to the appellant or respondent to apply further if there are any problems in implementing this order. [26] Costs are sought by the appellant against the respondent. Given that the respondent has not endeavoured to support the decision it would be unfair for there to be an order for costs against it. Costs on the appeal are to lie where they fall.Solicitors: Anderson Lloyd, Christchurch for Appellant