In this edition:
First High Court hearing on the Unitary Plan
A preliminary hearing was held in the High Court last week on a series of “test cases” concerning the scope conferred by submissions made on the proposed Auckland Unitary Plan. The Court’s objective in determining the test cases (a mix of judicial review and appeals) is to provide a principled framework for resolving the other individual challenges regarding the scope of primary submissions.
The Local Government (Auckland Transitional Provisions) Act 2010 gave the Independent Hearings Panel the power to make recommendations to the Auckland Council regarding changes to the proposed Unitary Plan that were beyond the scope of the primary submissions received. However, this power was limited by a requirement for the IHP to specifically identify where a recommendation was beyond scope. A decision by the Council to accept a beyond scope recommendation is appealable “on the merits” to the Environment Court, whereas only points of law appeals are available otherwise.
The test cases hearing considered a range of challenges to whether the recommendations of the Panel were within the scope of submissions. This included the proceedings brought by the Character Coalition and Auckland 2040, which concerned whether the Panel’s recommendations to up-zone 29,000 residential properties were within the scope of submissions, in circumstances where the Panel had not specifically identified which submissions it was relying on in recommending the upzoning of these properties.
Following the hearing, Whata J directed the Panel (under section 303(1)(c) of the Resource Management Act 1991) to prepare a report specifically identifying the submission(s) that the IHP considered conferred scope for the recommendations at issue. The Panel’s report is expected before Christmas.
Whata J indicated that the Court’s decision on the test cases will not be issued until early February 2017. This is to allow for submissions from the Council, and other parties, on the Panel’s report to be filed in January 2017.
Allison Arthur-Young and Lauren Eaton
Emergency Earthquake Legislation
The Hurunui/Kaikōura earthquake on 14 November 2016 caused significant damage to land, coastal areas, buildings and infrastructure. Given the emergency situation, the Government introduced three Bills to assist recovery:
- The Civil Defence Emergency Management Amendment Act 2016 Amendment Bill.
- The Hurunui/Kaikōura Earthquakes Emergency Relief Bill.
- The Hurunui/Kaikōura Earthquakes Recovery Bill.
The Civil Defence Emergency Management Amendment Act 2016 Amendment Act came into effect on 29 November 2016 after being introduced and given Royal Assent that day. The primary purpose of the Amendment Act is to bring forward the commencement date of most of the civil defence provisions of the earlier Amendment Act to allow them to be used to support recovery from the Hurunui/Kaikōura earthquake.
The Hurunui/Kaikōura Earthquakes Emergency Relief Bill was introduced on 29 November 2016, passed its third reading on 1 December 2016 and was given Royal Assent on 5 December 2016. The Act is retrospective and is deemed to have come into force on 14 November 2016. The Act extends the timeframes available under the Resource Management Act 1991 for emergency works, makes it a permitted activity to undertake emergency farming works, and facilitates the restoration of the Kaikōura Harbour by deeming certain activities to be controlled activities.
The Hurunui/Kaikōura Earthquakes Recovery Bill was introduced on 1 December 2016. The Local Government and Environment Select Committee considered the Bill on 5 December. It is expected that the Select Committee will report back to the House and that Parliament will pass the Bill in the next few days. The Bill provides for an Order in Council mechanism, as was used following the Canterbury earthquakes under the Canterbury Earthquake Recovery Act 2011. The legislation will allow the Governor-General to make Orders in Council (following the recommendation of the relevant Minister) to exempt, modify or extend provisions of certain legislation in order to assist economic recovery, planning processes, and the rebuilding and recovery of earthquake-affected land and infrastructure.
Bron Carruthers and Jess Riddell
NPS on Urban Development Capacity takes effect
The National Policy Statement on Urban Development Capacity came into force on 1 December 2016 and can be found here.
The NPS contains a suite of objectives and policies designed to ensure sufficient housing and business land development capacity for the short, medium, and long terms.
Local authorities with either a “medium growth” or “high-growth” urban area within their district or region are required to prepare joint housing and business development capacity assessments; monitor of a range of market indicators (including prices and rents); and consider all practicable options (including changes to relevant planning documents) to provide sufficient development capacity within their region or district.
Authorities with “high-growth urban areas” within their district or region (currently Auckland, Tauranga, Hamilton, Queenstown and Christchurch) must also set minimum targets in regional policy statements and plans that will ensure sufficient development capacity for housing over the medium and long term. These authorities are also required to produce future development strategies demonstrating how the minimum targets will be met.
Our key observations on the NPS are:
- Greater consultation (relative to the proposed NPS released for submissions earlier this year) is now required. Local authorities must “seek and use the input of” a number of specified parties including infrastructure providers, requiring authorities, the property development sector, and significant landowners when carrying out the assessments required under the NPS.
- Reverse sensitivity effects must be taken into account. The assessments required under the NPS must consider the impacts of housing and business activities on each other.
- The process in Schedule 1 of the RMA is not required to incorporate minimum targets into regional policy statements and relevant plans. However, importantly the Schedule 1 process must still be used when promulgating plan changes to give effect to those minimum targets.
- The NPS provides no indication of how the infrastructure will be financed to support the growth in housing and business development envisioned in the NPS. Environment Minister Smith has stated that the main costs of infrastructure would still rest with developers, although the Government has also proposed a new contestable $1 billion Housing Infrastructure Fund that may be utilised by territorial authorities.
- Residential development is given greater weight in the NPS over business development. The minimum targets required in high-growth urban areas only relate to development capacity for housing.
- A local authority’s decision can be appealed on the grounds of non-compliance with the NPS. Longer term, parties will be able to challenge whether a council has provided sufficient and feasible development capacity under the NPS, particularly once the assessments are completed and minimum targets set.
Daniel Minhinnick and David Alley
RMA reform delayed again
The progress of the Resource Legislation Amendment Bill has been slowed yet again. A motion was passed in November to re-refer the Bill back to the Local Government and Environment Select Committee.
The move comes following an agreement between the Government and the Māori Party, which will give Māori greater involvement in the consenting process in return for the Māori Party’s support for the Bill.
The Select Committee is now tasked with refining the Bill, and working through the departmental reports (see volume 1 and volume 2).
Some matters that are likely to be contained in the Bill once reported back by the Select Committee include:
- National planning standards (previously referred to as the National Planning Template) containing common formatting, standard definitions and common description of zones that councils will select from and then apply in their relevant district or region;
- Stronger provision for iwi participation agreements, including an 18-month (rather than 6-month) timeframe for concluding the development of the agreements;
- Limited appeal rights, but not to the extent proposed in the current Bill;
- Collaborative and streamlined plan-making tracks;
- Discretion for councils to exempt certain activities from consent requirements and a 10-day processing timeframe for consent applications for “minor” activities;
- Limited notification of consent applications, other than for certain specified exceptions, will revert back to the “affected person” test under the existing section 95E of the RMA; and
- Additional Ministerial regulation-making powers, but not to the extent proposed in the current Bill.
At the recent Property Council Residential Development Summit, Environment Minister Nick Smith stated that the amended Bill is unlikely to be passed into law until at least February 2017.
Allison Arthur-Young and David Alley
Minister Smith’s further reform initiatives
In July this year, the Government announced a new $1 billion Housing Infrastructure Fund to accelerate the supply of new roads and other infrastructure necessary to facilitate new housing development in Auckland and other identified high-growth areas. Environment Minister Smith said at the recent Property Council Residential Development Summit that the criteria that must be met to access this contestable fund and details regarding the bidding process will be released by the Government prior to Christmas.
The Government will also shortly be releasing a discussion paper on proposed Urban Development Authorities, to help further speed up the supply of new housing. Many see the Hobsonville Land Company as an example of how the new Urban Development Authorities may be expected to operate. We expect the discussion paper to be released early in the New Year as the Government looks to maintain the momentum on housing supply reform.
A flexible approach to relief on judicial review of non-notification decisions – Clova Bay Residents
Clova Bay Residents Association Incorporated sought judicial review of the decision of the Marlborough District Council to grant, on a non-notified basis, a 20-year consent to the Marine Farming Association Incorporated for a spat (juvenile mussel) catching farm in Clova Bay. The consent enabled the spat catching farm to operate from 15 January to 31 July every year.
The farm was originally authorised under a consent granted in 1995 for a period of 20 years. During the life of that consent, the Marlborough Sounds Resource Management Plan become operative, under which the farm became a prohibited activity. However, a grand-fathering provision in the Plan allowed existing marine farming consents to be renewed as controlled activities, provided there was no change from the existing farming system.
The Clova Bay Residents Association challenged whether the Marine Farming Association was entitled to rely on the grand-fathering provision. Simon France J dismissed this on the basis that it was open for the Council to consider the new application as it was for an activity that was not materially different from the existing farm.
The Residents Association also challenged the Council’s decision not to give limited notification of the application to affected persons, being the property owners and residents in the Clova Bay area represented by the Association in these proceedings.
The Council’s processing officer considered that the consent renewal for the marine farm would have “minor” effects on a number of persons, including effects within the matters of control reserved by the Plan. As a result, the High Court found that the application should have been notified to those affected persons under section 95E of the Resource Management Act 1991 (while noting that the scope for input by affected persons would be limited to the conditions that might be imposed on the matters within the Council's control). This case serves as an important reminder of the need for care in assessing and reporting on the level of effects arising from proposals, given the different tests for public notification and limited notification.
Initially the Court deferred its decision on relief to allow the parties time to agree a resolution to the Residents Associations’ concerns. No agreement was ultimately able to be reached.
The Court therefore issued a final decision in which it held it appropriate to quash the consent and require the process to be undertaken again, this time with limited notification of affected persons. However, the Court was concerned that this should not occur at the expense of a spat catching season, as this would cause real prejudice to the Marine Farming Association.
The Court directed the Council to determine whether a fresh controlled-activity consent application could be processed, with limited notification, and then granted prior to the beginning of the next spat catching season on 15 January 2017. If that was possible, then the quashing of the consent would take effect immediately. However, if the Council considered it was not possible for a fresh consent to be granted within that timeframe, the Court directed that the quashing of the consent was not to take effect until 1 August 2017, which would be after the end of the 2017 spat catching season.
In our view, in taking a flexible approach to its discretion to grant relief, the Court demonstrated a helpful awareness of the practical limits of a successful judicial review of a decision to grant consent for a controlled activity on a non-notified basis.
Simon Pilkinton and Rachel Robilliard
Daniel Minhinnick joins the Partnership
As of 1 December 2016, Daniel Minhinnick has joined the Russell McVeagh partnership. Daniel will join Bron Carruthers and Allison Arthur-Young in leading the firm’s high-performing National Environment, Planning and Natural Resources team.
Daniel has been with the firm for more than 11 years, starting as a summer clerk in 2003/04. His recent work includes securing resource consents for SkyPath, a pedestrian and cycleway across the Auckland Harbour Bridge. Daniel has been advising Stevenson Group on its Drury South development, which involves a large industrial development along with a special housing area development enabling up to 1,000 new homes. Daniel has also been acting for Trustpower in relation to Canterbury regional plan appeals. He has also been kept busy over the last few years with the Auckland Unitary Plan process, where he has been involved with a wide range clients.
Daniel’s success has been proven through developing strong, enduring relationships with clients, colleagues and consultants.
This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.