ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v AUCKLAND COUNCIL [2018] NZHC 1069

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED vAUCKLAND COUNCIL [2018] NZHC 1069 [18 May 2018]IN THE HIGH COURT OF NEW ZEALANDvAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-2343[2018] NZHC 1069BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDAppellantAND AUCKLAND COUNCILRespondentContinued next pageHearing: On the papersCounsel: S Gepp and P Anderson for AppellantJ Caldwell and M Gribben for RespondentC Kirman and A Devine for Housing NZ Corporation IncR Gardner for Federated Farmers of New Zealand IncD Minhinnick and L J Eaton for Stevenson Group LtdB Matheson for Fulton Hogan Ltd, Brookby Quarries Ltd andWinstone Aggregates LtdC Sheard for New Zealand Transport AgencyT Howell for Te Arai GroupJ Gardner-Hopkins and L Hinchey for Transport NZ LtdR Enright and M Wright for Environmental Defence Society IncM Williams for Man O'War Farm LtdJudgment: 18 May 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 18 May 2018 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .HOUSING NEW ZEALAND CORPORATION INCFEDERATED FARMERS OF NEW ZEALAND INCSTEVENSON GROUP LIMITEDFULTON HOGAN LIMITEDBROOKBY QUARRIES LIMITEDNEW ZEALAND TRANSPORT AGENCYWINSTONE AGGREGATES LIMITEDTE ARAI GROUPTRANSPOWER NEW ZEALAND LIMITEDENVIRONMENTAL DEFENCE SOCIETY INCMANO'WAR FARM LIMITEDCOUNTIES MANUKAU DISTRICT HEALTHBOARDSection 301 PartiesIntroduction[1] This judgment considers the final aspect of Royal Forest and Bird ProtectionSociety of New Zealand Inc's ("Royal Forest and Bird") appeal against variousdecisions of the Auckland Council on the Proposed Auckland Unitary Plan ("PAUP").The parties1 interested in this final aspect filed a joint memorandum recordingsettlement on 21 December 2017 and seek consent orders which will resolve theappeal.2[2] The frame for the resolution of appeals by consent was set out in AnconaProperties Ltd,3 which I adopt. As with all Unitary Plan appeals which have beenresolved by way of consent orders, I am guided in my assessment by the fact the partiesconcerned have reached an agreed position.Background[3] Helpfully, in the joint memorandum the parties have agreed on the key factsand issues. The background that follows reflects those agreed matters.[4] Royal Forest and Bird is an incorporated society which seeks to preserve andprotect indigenous flora and fauna, and the natural features of this country's landscape.To that end, it made a number of submissions on various aspects of the PAUP.[5] The PAUP contained various areas subject to a Significant Ecological Area("SEA") overlay. The SEA overlay applied to those areas that the Council consideredmet the criteria for significance, as set out in the PAUP. A different planningframework, and activity status for vegetation alteration, applied to areas not covered1 The parties being Royal Forest and Bird (the appellant), Auckland Council (the respondent), andthe following interested parties: Housing New Zealand Corporation, Federated Farmers of NewZealand Inc, Stevenson Group Ltd, Fulton Hogan Ltd, Brookby Quarries Ltd, New ZealandTransport Agency, Winstone Aggregates (a division of Fletcher Concrete and Infrastructure Ltd),Te Arai Group, Transpower New Zealand Ltd, Environmental Defence Society Inc, Man O'WarFarm Ltd, and Counties Manukau District Health Board.2 The other aspects of Royal Forest and Bird's appeal were resolved in Royal Forest and BirdProtection Society of New Zealand Inc v Auckland Council [2017] NZHC 980 [Third ErrorDecision], and Royal Forest and Bird Protection Society of New Zealand Inc v Auckland Council[2017] NZHC 1606 [Second Error Decision].3 Ancona Properties Ltd v Auckland Council [2017] NZHC 594.by the overlay. A number of zones fell within the ambit of the SEA overlay, includinga number of Special Purpose Zones such as the Quarry Zone.[6] The application of the SEA overlay to various areas of land was challengedthroughout the submission and hearing process, as was expert Council evidence fromecologists. In some cases, the Council's ecologists agreed with submitters that someor all of an area did not meet the SEA criteria and should be amended or removed.After hearing these submissions, the Auckland Unitary Plan Independent HearingsPanel ("Panel") released its recommendations on 22 July 2016.[7] The alleged error of law underpinning the present settlement relates to arecommendation by the Panel to delete previously identified SEAs where it consideredthat "other planning imperatives" having economic or strategic importance to theregion outweighed the identification of SEAs. The Panel stated:4The Panel generally accepts the Council's position that areas that satisfy thesignificant ecological factors (set out in the regional policy statement) shouldbe mapped as such. However, where there are competing values, a judgmentcall, based on evidence, needs to be made as to what provisions better promotesustainable management of natural and physical resource as required bysection 5 of the Resource Management Act 1991.Significant ecological areas have been deleted from the Special Purpose –Quarry Zone areas. This is due to the economic and strategic importance ofthe mineral resource. These areas are identified as areas to be quarried, whichmeans ground cover has to be removed to access the resource, giving rise to adirect conflict between the purpose of the zone as a quarry and this form ofprotection. [8] It went on:5Where there was evidence that the identification of the significant ecologicalarea would frustrate the purpose of the zone or location, and that purpose haseconomic or strategic importance to the region and could not readily beachieved in any other way or area, the Panel recommends removal of theidentification of the significant ecological area. Examples include theirremoval from all Special Purpose – Quarry Zones 4 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing topic023 Significant ecological areas and vegetation management (22 July 2016) at 6.5 At 14.[9] This recommendation, to remove these SEAs, meant the Panel did not make arecommendation on any amendment to the boundaries of SEAs that had been agreedbetween the Council's ecologists and various submitters.[10] The Council adopted the relevant Panel recommendation in its decisionsversion of the Auckland Unitary Plan.Bespoke approach to SEAs identified in Quarry Zone sites[11] In respect of SEAs within the Quarry Zone:(a) Vegetation removal within an SEA on a Quarry Zone had beenclassified in the PAUP as a restricted discretionary activity, which hadbeen supported by some of the Quarry Operators6 in their primarysubmissions.(b) Brookby Quarries Ltd, however, sought in its submission that the SEAoverlay be deleted from all Quarry Zones, with the effect that althougha resource consent would still be required for general vegetationremoval, there would be no need for specific consideration of the SEAmatters and values.(c) The PAUP also included specific matters of restricted discretion andspecific assessment criteria for the activity of vegetation alteration orremoval in SEAs in the Quarry Zone.(d) The Regional Policy Statement (RPS) component of the PAUPcontained policies (within the section on Minerals) requiring that newmineral extraction activities were undertaken outside SEAs and otherareas of natural resources, except where no practicable alternative tolocating within the SEA existed, in which case the policies provided forconsideration of the scale of effects on SEAs and the extent to which6 For ease, Fulton Hogan Ltd, Winstone Aggregates, Brookby Quarries Ltd, and Stevenson GroupLtd are collectively referred to as Quarry Operators.adverse effects could be mitigated or offset (Associated Quarry NaturalResources Policies).(e) The Associated Quarry Natural Resources Policies were supported bythe Council and the Quarry Operators (with some minor amendments).No new SEA-related regional or district plan objectives or policieswere included within the Quarry Zone part of the PAUP, or proposedby any of the Quarry Operators during the hearing process.(f) The proposed RPS also contained a section on Biodiversity, whichincluded specific objectives and policies for protection of SEAs. Therewere also specific regional and district plan objectives and policies forprotection of SEAs.(g) The Council's "closing version" of the SEA provisions proposed toamend the specific assessment criteria for the activity of vegetationalteration or removal in SEAs in the Quarry Zone, by specifying thatnone of the general objectives and policies would apply to theassessment of any such (restricted discretionary) application. Incontrast, Royal Forest and Bird in its "closing version" sought tospecify that consideration of the biodiversity objectives and policieswould be required as part of the assessment of all restricteddiscretionary activities.(h) Winstone Aggregates (in respect of the Hunua Quarry) and StevensonGroup Ltd (in respect of the Drury Quarry) had reached agreement withthe Council that the vegetation on small portions of the Quarry Zonedid not meet the criteria for SEA and that these areas of the SEA overlayshould be removed ("agreed SEA removal").7(i) Fulton Hogan Ltd (in respect of the Clevedon Quarry) requested aportion of the SEA be removed on the basis that its expert evidenceconcluded it did not meet the PAUP's criteria for a SEA. This7 The areas of the agreed SEA removal are shown in Appendices C and D.amendment was not agreed by the relevant Council ecologist and sowas unresolved ("unresolved SEA status").[12] As noted, the Panel recommended the removal of the SEA overlay from,among other zones, the Quarry Zone. As a result, the Panel:(a) recommended relocating the Associated Quarry Natural ResourcesPolicies from the RPS to the Auckland-wide rules Chapter E38 MineralExtraction from land;8(b) recommended deleting the Quarry Zone-specific matters of restricteddiscretion and assessment criteria;(c) did not need to make, and did not make, any recommendations on theagreed SEA removal as it applied to the Drury and Hunua quarries; and(d) did not need to make, and did not make, any recommendation on theunresolved SEA status as that applied to portions of the ClevedonQuarry.[13] The Panel's report did not specifically address the above matters, but its"recommendations version" of the Unitary Plan included amendments to that effect.However, the Panel did state in its report, subsequent to recommending deletion of therelevant SEAs, that "vegetation removal provisions have been retained over quarryzones, notwithstanding that the significant ecological areas have been removed fromthe Special Purpose – Quarry Zone".9 The effect of this was under the Panel'srecommendations, and the Auckland Unitary Plan Operative in part, any vegetationalteration or clearance within the Quarry Zone over small-scale permitted thresholdsis a restricted discretionary activity.10 That recommendation and subsequent decisionto accept it has not been challenged.8 This recommended relocation and the final form of these policies was on the basis that the SEAoverlay no longer applied over the Quarry Zone, and accordingly all references to SEAs withinthese policies had been deleted.9 Auckland Unitary Plan Independent Hearings Panel, above n 4, at 4.10 Pursuant to E15.4.1 Activity table, r (A10).The original grounds of appeal[14] In its appeal, Royal Forest and Bird alleges:(a) if an area of indigenous vegetation or habitat of indigenous fauna meetsthe factors for a SEA, then it should be identified as such;(b) it was unlawful for the Panel to spatially modify or delete certain areasof the SEA overlay on the basis that some other planning imperativesoutweighed their identification;(c) in accepting the Panel's recommendation in this regard, the Councilerred because it:(i) applied the wrong legal test in recognising and providing forsuch areas under s 6(c) of the Resource Management Act 1991(RMA);(ii) took into account an irrelevant consideration, namely, the otherplanning imperatives; and(iii) failed to implement the RPS provisions of the Unitary Plan.What the parties have agreed onThe agreed error[15] The parties' positions have coalesced around sub-para (b). As I will set outbelow, all the parties to the appeal, except Federated Farmers (which has agreed towithdraw from the appeal if the draft consent order is granted), agree that themodification or deletion of the SEAs for "other planning imperatives" constituted anerror of law. Specifically, they agree that if an area of indigenous vegetation or habitatof indigenous fauna meets the objective criteria for SEA, then it should be identifiedas such in the district or regional plan, irrespective of any planning outcomes thatmight follow.[16] Royal Forest and Bird says the deletion of the SEA overlay for "planningimperatives" was an error of law because existing jurisprudence on s 6(c) of the RMAconfirms that whether a site is "significant" is an ecological assessment which shouldnot be conflated with consideration of management or planning imperatives.Alongside a series of decisions in the Environment Court,11 Royal Forest and Birdcites the Court of Appeal's decision relating to s 6(b) in Man O'War Station Ltd vAuckland Council,12 applied by Wylie J in relation to s 6(c) in Royal Forest & BirdProtection Society of New Zealand Inc v Auckland Council.13 I will refer to thisdecision as RF&B No.2 for ease of reference.[17] In Man O'War Station Ltd the Court of Appeal emphasised the classificationof an area as having particular values meeting s 6 should be made on an "essentiallyfactual assessment based upon the inherent quality of the landscape itself",independent of consideration of the consequences of being classified as such.14Wylie J, in considering the second error of law in Royal Forest and Bird's appeal,found:15[18] A related provision — s 6(b), dealing with the protection ofoutstanding natural features and landscapes from inappropriate subdivision,use, and development — was considered by the Court of Appeal in Man O'WarStation Ltd v Auckland Council. One of the questions posed for the Court'sconsideration was whether or not the identification of an outstanding naturallandscape for the purposes of s 6(b) should be informed by, or dependent upon,the protection afforded to the landscape under the Act, and/or the relevantplanning instrument. The Court held that the issue of whether land hasattributes sufficient to make it an outstanding landscape within the ambit ofs 6(b) requires an essentially factual assessment based upon the inherentquality of the landscape itself.[19] The structure of s 6(b) and (c) is the same. I agree with the Societyand the Council that the same principle must apply to the identification of anarea as a significant ecological area qualifying for protection under s 6(c). Theexclusion indicators, dealing as they do with modified areas, have the potentialto cut across s 6(c) and the findings made by the Court of Appeal in Man11 Royal Forest & Bird Protection Society of New Zealand Inc v Central Otago District CouncilEnvC Auckland A128/2004, 23 September 2004, EnvC Auckland A154/2004; Royal Forest &Bird Protection Society of New Zealand Inc v New Plymouth District Council [2015] NZEnvC219, (2015) 19 ELRNZ 122; Friends of Shearer Swamp Inc v West Coast Regional Council [2010]NZEnvC 345, upheld on appeal in West Coast Regional Council v Friends of Shearer Swamp Inc[2012] NZRMA 45 (HC).12 Man O'War Station Ltd v Auckland Council [2017] NZCA 24, [2017] NZRMA 121.13 Second Error Decision, above n 2.14 Man O'War Station Ltd v Auckland Council, above n 12, at [61]-[62].15 Second Error Decision, above n 2 (footnotes omitted).O'War Station. An area may still qualify for protection under s 6(c)notwithstanding modification.[18] Royal Forest and Bird argues that, in the present context, the decision toremove the SEA overlay because of "other planning imperatives" diverged from thecorrect approach to SEA identification and that this Court should order thereinstatement of the deleted and modified SEAs.[19] The Council accepts this error for the reasons provided above and agreesresolution requires reinstatement of removed or amended SEAs. The QuarryOperators also accept deletion of the SEA overlay was an error of law. Forcompleteness, the Council and Quarry Operators agree with one another that it has notbeen alleged there was an error of law in providing a tailored approach to the resourcemanagement issue of mineral extraction within SEAs, which was different to the issueof how other activities in an SEA are managed. As for the other parties:(a) the Environmental Defence Society supports Royal Forest and Bird'sposition;(b) the Counties Manukau District Health Board, Transpower New ZealandLtd and Housing New Zealand Corporation accept there was an errorof law;(c) Te Arai Group specifically agree with the assessment undertaken thatthe amendments to SEA 5548a were made for ecological reasons andnot as a result of other planning imperatives;16(d) Man O'War Farm Ltd will withdraw its interest in the appeal, if it hasnot done so already; and(e) Federated Farmers of New Zealand Inc does not wish to express a viewon whether there is an error of law, but has agreed to withdraw from theappeal if the draft consent order is granted.16 As shown in Appendix B, this is not subject to the present appeal.Areas affected by the agreed error[20] The parties have also reached an agreed position on reasons for deletion ormodification of SEAs. Having investigated the Panel's recommendations in somedepth, the parties have agreed some SEAs were modified or deleted for reasons thatdid not relate to "other planning imperatives". Those areas are not intended to besubject to Royal Forest and Bird's appeal, and the parties have agreed further changesto those SEAs are not necessary.[21] Appendix A to this decision sets out:(a) The SEAs that the parties have agreed were modified or deletedbecause of "other planning imperatives" and are subject to the appeal.(b) The SEAs that were modified or deleted because of "other planningimperatives" but which the parties agree should be reduced in sizebecause a portion of the SEA does not have ecological value sufficientto support SEA status. This includes the agreed SEA removal inAppendices C and D. These are marked in Appendix A with an asterisk.[22] Appendix B then sets out a table of areas the parties agree were modified ordeleted for reasons other than "other planning imperatives" and which are not subjectto the appeal.Unresolved matters: consequential amendments[23] The parties have, however, been unable to reach consensus on whatconsequential amendments should follow the reinstatement of the SEA overlay,especially in relation to the management of activities within a SEA and a Quarry Zone.[24] The Quarry Operators contend consequential amendments on the followingmatters need to be considered:(a) the activity status for vegetation removal within an SEA in zones fromwhich the SEA overlay had been removed (which they submit shouldbe restricted discretionary or controlled);(b) what other consequential changes flow from a change in the activitystatus for vegetation removal within a SEA in the Quarry Zone; and(c) what decision should be made in respect of those submitters who soughtthe removal of the SEA overlay over part of their site, but whose reliefwas effectively superseded by the Panel's recommendation to removethe SEA on a much broad basis (i.e. how the agreed SEA removal andunresolved SEA status should be resolved).[25] Royal Forest and Bird accepts the "default" discretionary activity status forSEA vegetation alteration or removal should not apply to vegetation alteration orremoval within SEAs in the Quarry Zone, as the notified status was restricteddiscretionary, and no party sought a more restrictive status. It would support an orderamending the activity status to restricted discretionary. It also accepts consequentialrecommendations relating to (a) deletion of the SEA/Quarry Zone-specific assessmentcriteria and (b) the agreed SEA removal and unresolved SEA removal may benecessary.[26] But it does not accept that such reconsideration extends to the activity statusfor vegetation alteration or removal within SEAs in the Quarry Zone, because no partychallenged the Panel's recommendation that the vegetation removal provisions fornon-SEAs should continue to apply to the Quarry Zone, such that removal or alterationis a restricted discretionary activity. In its view, there is no scope for the QuarryOperators to seek controlled activity status as part of consideration of this issue.[27] As for the other parties, the Counties Manukau District Health Board wishesto be involved in the consideration of any consequential amendments to the UnitaryPlan that might be required in relation to its site and removal of vegetation within theSpecial Purpose: Healthcare Zone.The proposed solution[28] The parties submit that, if the appeal is allowed, the Court is required to makeorders amending the provisions of the Plan. For that purpose, the parties propose:17(a) The SEA overlay be reinstated, except where shown in Appendices Aand B, and those parts of Hunua and Drury quarries shown inAppendices D and E.(b) The activity status for removal of vegetation within the Quarry Zonewill be restricted discretionary and in other zones will be discretionary(reflecting the notified version of the Unitary Plan).(c) The applicable assessment criteria for vegetation alternation or removalwithin a SEA in a Quarry Zone are to be the same as the notified versionof the PAUP.[29] It is further submitted that s 156(2), limits the matters on appeal before theEnvironment Court to:(a) what form the matters to which discretion is reserved (and associatedassessment criteria) should take; and(b) whether the portion of vegetation classified as SEA should be removedfrom the Clevedon quarry (i.e. the unresolved SEA status question).[30] Given, however, the position of the Quarry parties, the appeal to theEnvironment Court will also require determination of:(a) whether there is jurisdiction to consider the appropriate activity statusfor the removal of vegetation within a SEA in the Quarry Zones;18 and17 The proposed changes are set out in Appendices E and F.18 As stated above, the Quarry Operators consider the question of activity status is within scope, andthat the activity status for vegetation removal could validly be either controlled or restricteddiscretionary. Royal Forest and Bird considers the activity status is not within scope, because noparty has challenged the Panel's recommendation that the vegetation removal provisions for areas(b) whether there is jurisdiction to amend the Associated Quarry NaturalResources Policies;19 and(c) any alternative solution in relation to the activity status and controlsrelated to vegetation within the Special Purpose: Healthcare Zone.20Assessment[31] The central issue on appeal is whether the Panel was correct in law to deletethe SEA overlay as it related to certain areas because of other "planning imperatives".The parties (except Federated Farmers) agree that the panel so erred, relying on thedicta in Man O'War Station Ltd and Wylie J's decision in RF&B No.2. I agree that onthe specific facts of this case, the dicta in both those cases applies and the Panel erredby incorporating the rule making assessment into the SEA identification process.[32] However, as foreshadowed to the parties in a draft version of this assessmentsection, I want to be clear about the effect of this judgment. I invited submissions onthis issue. There is a broad (though not unqualified) consensus about the following.Whether and to what extent the principles stated in Man O'War Station Ltd and appliedin RF&B No.2 apply in any given case will depend on the object of the provisionsunder scrutiny. If, as here, the clear object is to identify SEA areas that qualify forprotection under s 6(c), then the assessment is a factual one as stated in Man O'WarStation Ltd and other planning imperatives have no direct role to play. However, ifthe object of the provisions is to provide a planning outcome considering the fullcontext, including other planning imperatives that achieve the sustainablemanagement purpose of the Act, then the dicta may have limited, if any, application.that are not SEA should continue to apply to the quarry zone, so that vegetation alteration orremoval is and only can be a restricted discretionary activity.19 See [10](d) above, and E28.3 in the Auckland Unitary Plan Operative in part. The QuarryOperators consider it likely that any party to the Environment Court appeal would seek cross-reference in the criteria for removal of vegetation within an SEA to associated policies. While thePanel recommended a form of wording for the Associated Quarries Natural Resources Policies,that was on the basis the SEA overlay did not apply. It is unclear what form those policies mighthave taken, had the Panel at first instance recommended that the SEA overlay apply. The QuarryOperators consider there is a need to re-examine those policies as a direct consequential changeof this appeal. Royal Forest and Bird disagrees.20 The Counties Manukau District Health Board has indicated it may wish to apply any alternativesolution. Royal Forest and Bird does not agree that there is scope to reconsider these activitystatuses and controls.[33] Royal Forest and Bird however submitted that further guidance from the Courtas to the dividing line would likely assist the parties involved in planning to understandhow identification decisions are properly made. While a laudable goal, that would infact do what I specifically wish to avoid. I agree with the general thrust of the otherparties that in an area as complex, intuitive and evaluative as environmental law, somecare must be taken before laying down a fixed binary approach to resourcemanagement.21 In this regard, the following reminder from the Court of Appeal, hassome currency:22As Professor A L Goodhart explained in his description of ratio decidendi, theprinciple of a case is found by taking account of (a) the facts treated by theJudge as material and (b) the Judge's decision as based on them.[34] In the present case, the scheme of the notified and final decisions version ofthe PAUP as it relates to significant ecological areas, clearly envisages theidentification of the location and spacial extent of those areas by way of factualassessment against specified criteria, leaving for separate consideration themanagement of those areas in accordance with relevant objectives and policies of thePAUP. The reasoning therefore in Man O'War Station Ltd, while not binding, issufficiently apposite to provide principled guidance in this case.[35] Turning to the issues of jurisdiction or scope in relation to quarry lands,ordinarily it would be a matter for this Court to determine whether relief was withinscope. The facts here are, however, complicated by the Panel's decision to remove theSEAs from quarry lands and with it the planning and policy matrix that applies toSEAs, which included restricted discretionary activity status benched marked againstthat policy matrix. The relief then sought seeks to reinstate the SEAs, the associatedpolicy matrix and thereby restricted discretionary status.[36] Problematically, this leaves the affected quarries in a worse position than thatenvisaged by the Panel, which may have, had it adopted the correct approach, soughtto identify given areas as SEAs but modify the activity status of the activities in the21 I wish to acknowledge the careful submissions made by Royal Forest and Bird on this issue andwhat I say here should not be taken as a criticism of the position advocated by them.22 Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR 316at [33].applicable areas considering other planning imperatives. It seems to me therefore, thatfairness dictates there should be an opportunity afforded to affected persons to seekmodification of the activity status even though the SEA designation applies to therelevant area. Given that at least one submitter sought the removal altogether of SEAsfrom quarry lands, I am satisfied there is scope to resolve the substantive issue.[37] On that basis, the Environment Court need not be troubled with issues ofjurisdiction. Rather, it must assess whether the Council approved version of the SEApolicy matrix, including restricted activity status, should apply to quarry lands.[38] Save in this respect, I endorse the approach proposed by the parties. A similarform of relief was granted in University of Auckland v Auckland Council.23Final orders[39] The Panel erred by deleting the SEA overlay (including from all Quarry Zones)on the basis of other planning imperatives. Accordingly, there shall be a consent orderin the terms specified in Appendix F.Costs[40] There are no issues as to costs.23 University of Auckland v Auckland Council [2017] NZHC 1150.