IN THE MATTER BETWEEN

Transcription

1 BEFORETHEEN~RONMENTCOURT Decision No. [2017] NZEnvC 05 q IN THE MATTER BETWEEN of an application for interim enforcement orders under section 320 of the Resource Management Act 1991 (RMA) SAVE ERSKINE COLLEGE TRUST (ENV WLG ) Applicant AND ERSKINE DEVELOPMENTS LIMITED (FORMERLY KNOWN AS A GOOD DAY OUT CHARTERS LIMITED) SOUTHWARDS TRUST COMPANY LIMITED THE WELLINGTON COMPANY LIMITED Respondents Court: Hearing: Appearances: Principal Environment Judge Newhook sitting alone under s 279 of the Act at Wellington on 20 December 2016; further submissions about undertakings received 20,21 and 22 December 2016 P Milne and N Dunning for Applicant J Gardner-Hopkins and C Gubb for Respondents Date of Decision: -2.4: April 2017 Date of Issue: -2.., <6 April 2017 FINAL DECISION OF THE ENVIRONMENT COURT RELATING TO APPLICATION TO CANCEL INTERIM ENFORCEMENT ORDER Save Erskine College Trust v Erskine Developments Limited (formerly known as AGood Day Out Charters Limited) & others

2 2 Introduction [1] On 22 December 2016 I issued a preliminary decision 1 and a summary of reasons concerning an application to cancel an interim enforcement order made by Environment Judge CJ Thompson; and concerning an undertaking proffered in place of any continuing interim enforcement order. The decision was issued in that summary form on account of urgency. I held that the legal argument heard in open Court was deserving of the Court issuing more detailed reasons concerning legal interpretation of complex statutory provisions. This further decision records the more detailed reasons. [2] My determination followed, and cancelled, the interim enforcement order which had been made by Judge Thompson on 12 December ex parte and on the papers. [3] Further detailed background and essential facts are recorded in my 22 December dec!sion just referred to. Detailed affidavits had been filed on both sides prior to the urgent hearing I conducted just before Christmas. Each party lodged focussed legal submissions about the quite complex interface between HASHAA and the RMA on these matters, and addressed them in the hearing. [4] The dispute was as to whether the relevant provisions of HASHAA effected an implied repeal pro tanto of the provisions of s 193 (and s 195) RMA. The cases mounted [5] The parties' submissions identified the key statutory provisions as follows: Resource Management Act Effect of Heritage Order Where a heritage order is included in a district plan then, regardless of the provisions of any plan or resource consent, no person may, without the prior written consent of the relevant heritage protection authority named in the plan in respect of the order, do anything including- (a) undertaking any use of land; and (b) subdividing any land; and (c) changing the character, intensity, or scale of the use of any land- [2016jNZEnvC 255.

3 3 that would wholly or partly nullify the effect of the heritage order. Housing Accords and Special Housing Areas Act Effect of grant of resource consent under this Act (1) Except as provided otherwise in this Act, - (a) (b) a resource consent granted under this Act has full force and effect for its duration and according to its terms and conditions as if it were granted under the Resource Management Act 1991; and any provision of an enactment that refers to a resource consent granted under the Resource Management Act 1991 (including that Act) must be read, with all necessary modifications, as including a resource consent granted under this Act. (2) In particular, and without limiting subsection (1), subpart 5 of Part 8 of the Local Government Act 2002 applies, with all necessary modifications, in relation to a resource consent granted under this Act. [6] The Applicant Trust acknowledged the relatively uncontroversial proposition (for present purposes) that if a consent is granted under HASHAA for a proposed development it will have effect as if the consent had been granted under the RMA. [7] In face of submissions for the Respondents, the Applicant submitted that the two pieces of legislation are not inconsistent with each other let alone repugnant to each other and that they are perfectly capable of standing together, and accordingly there is no need to determine which must prevail. In my preliminary decision I held that I agreed with the Applicant's submission. [8] I also agreed with the Applicant's submission that there is no indication that the HASHAA legislation was intended to be a "one stop shop" providing all necessary approvals under the RMA, for instance overriding the need for holders of consents also to apply for approvals from [designating] authorities for instance under s193 RMA and s176 RMA. The HASHAA provisions are all about swift resource consents and plan changes; they do not encompass matters of the kind embraced by ss 176 and 193 RMA. [9] I accordingly held that HASHAA and the RMA are complimentary regimes, do not overlap one another, and are not inconsistent with each other. [10] I turn now to an analysis of the respective cases and the detailed reasons for my findings.

4 Principles for identifying whether there has been implied repeal pro tanto 4 [11] As submitted by the Respondents, the higher Courts have twice in recent decades provided guidance on this issue in the context of "planning" laws. The first was the decision of the Court of Appeal in Stewart v Grey County Council where it held that the Town and Country Planning Act 1953 was of general application, and the provisions of the Mining Act 1971 a special code applicable to mining, examination of which provisions produced the result that the latter offered a special code exclusively applicable to mining, with mining consequently thereby excluded from the general provisions of the Town and Country Planning Act. [12] The second was in the context of the RMA and was a decision of the High Court Director of Civil Aviation v Planning Tribuna', (often referred to as "Glacier Helicopters") citing Stewart. [13] In Stewart, the Court of Appeal held: The starting point, of course, is that there be an inconsistency. If it is reasonably possible to construe the provisions so as to give effect to both, that must be done. It is only if one is so inconsistent with, or repugnant to the other, that the two are incapable of standing together, that it is necessary to determine which is to prevail. [14] In Director of Civil Aviation the High Court held: 4 Where two statutes deal with the same matter, the proper approach to interpretation is to try and give each its effect without creating conflict. If conflict cannot be avoided, then the special statute will usually prevail over the general: [citing Stewarl]. [15] In a careful analysis of these principles, with guidelines, the Environment Court subsequently held in Minister of Conservation v Federated Farmers New Zealand (Southland Province) Inc 5 : [71] One is the extent of overlap of issues. (Compare Stewart, where the use of land was common to both enactments, with Glacier Helicopters, where setting minimum safety standards was the function of the Director, and deciding whether the heliport would promote sustainable management of [1978] NZLR 57. [1997]3 NZLR 335. At P 430. Decision number A039/01.

5 5 resources was the function of the Council and Tribunal, issues that were not identical). [72] Another indication that may be influential is the scope for inconsistent controls. In Stewart, the possibility that a licence to use land for mining might be negated by territorial authority acting under town planning legislation was an indication of inconsistency. But in Glacier Helicopters, the possibility that a functionary under the Resource Management Act might require safety standards higher than the minima set by the Director did not mean that the two enactments were inconsistent with each other. [73] An indication may also be found where an enactment expressly deals with the relationship between it and other legislation. So, in Stewart the Court of Appeal noted that in the Mining Act Parliament had directed its attention to the application of other legislation and made provision in that respect. In Glacier Helicopters the question did not arise. [74] A further consideration is where one of the enactments is so comprehensive as to be a special code excluding other legislation, as the Mining Act was found to be in Stewart. [16] The Applicant in the present case largely agreed with the Respondents' analysis of the jurisprudence for what it is, but differed in the analysis at each of the stages formulated by the Environment Court in the Minister of Conservation case. HASHAA purpose and scheme [17] The parties analysed relevant provisions of HASHAA, from which Counsel for the Respondents felt able to submit that they amounted to a code. [18] The purpose of HASHAA in its section 4 is: To enhance housing affordability by facilitating an increase in land and housing supply in certain regions or districts, listed in Schedule 1, identified as housing supply and affordability issues. 6 [19] Sections 10, 14, 16, and 20 establish processes for housing accords within 6 Wellington City Council is listed in that Schedule.

6 6 relevant territorial authorities (including Wellington), scheduling housing areas, providing for consents for qualifying developments, and appointing authorised agencies being in the main, the relevant territorial authority. [20] HASHAA ordains swift consenting through several provisions, including sections 18,29,30,31,41, and 51. In addition, appeal rights are significantly limited. HASHAA interface with the RMA [21] It appears that Parliament, with particular input from the Select Committee, was quite deliberate in speaking to the interface of the RMA and HASHAA, to the point possibly of engaging the Latin maxim expressio unius est exclusio alterius in those circumstances. Two tables of statutory provisions advanced by Mr Gardner-Hopkins for the Respondents provide an overall analysis to similar effect, because they focus on resource consents and plan changes. He very properly conceded that there appeared to have been no submissions to the Select Committee about ss 176 and 193 RMA, but that this could "cut both ways". In my view that analysis falls in favour of the Applicant. [22] Mr Gardner-Hopkins argued that HASHAA is very deliberate about what it imports from the RMA and what it excludes, referring particularly to s 22: 22 Application of Resource Management Act 1991 and regulations made under that Act to applications, requests, decisions, etc, under this Part (1) The Resource Management Act 1991 does not apply to an application, request, decision, or any other matter under this Part, except to the extent that- (a) terms used in this Part, unless otherwise defined, must be given the same meaning as in the Resource Management Act 1991 (see section 6(3»; and (b) provisions in this Part expressly apply provisions of the Resource Management Act 1991 (as to which, see section 6(2»; and (c) transitional provisions in this Act, or regulations made under this Act, apply provisions of the Resource Management Act (2) Where provisions in this Part expressly apply provisions of the Resource Management Act 1991 that refer to regulations made under that Act, the regulations referred to also apply, except to the extent provided in regulations made under section 91 of this Act. (3) This Part also affects the application of provisions of the Local Government (Auckland Transitional Provisions) Act 2010 (see section 60). [23] This produced the submission that s 22 was very clear that the RMA would not

7 7 apply to any decision under HASHAA unless HASHAA "pulls in" the provision from the RMA. In this regard, Counsel referred to s 6(2) and (3). 6 Interpretation (2) Every reference in this Act to the Resource Management Act 1991 or to regulations made under that Act must be read as a reference to that Act or the regulations made under that Act as in force on 4 September 2013, unless otherwise provided in regulations made under section 91. (3) Unless the context requires another meaning, terms and expressions used and not defined in this Act, but defined in the Resource Management Act 1991, have the same meaning as in that Act (including, without limitation, consent authority, designation, infrastructure, local authority, plan, public notice, requiring authority, resource consent, subdivision consent, and survey plan). [24] In furtherance of his submission that HASHAA is a code, Counsel for the Respondents referred to s 91 of HASHAA about the making of regulations, although he conceded that no regulations had been passed to date. [25] He cited s 76 of HASHAA, about other provisions of the RMA that apply: 76 Other provisions of Resource Management Act 1991 applying (1) The provisions of the Resource Management Act 1991 listed in subsection (2) apply, with the modifications stated, in respect of an authorised agency's performance and exercise of its functions and powers under this Part,- (a) as if every reference to a local authority in those provisions (unless stated) were a reference to an authorised agency; and (b) as if every reference to the Resource Management Act 1991 were a reference to this Act; and (c) with all other necessary modifications. (2) The provisions are- (a) section 21 (avoiding unreasonable delay): (b) section 27 (Minister may require local authorities to supply information), however, the Minister responsible for the administration of this Act may also exercise the power in that section as if that Minister were the Minister for the Environment: (c) section 34 (delegation of functions, etc, by local authorities), but only if the authorised agency is a local authority (including where the local authority is acting under delegation from the chief executive under section 86): (d) section 34A (delegation of powers and functions to employees and other persons), except that section 34A(1 )(a) must be read as referring to any

8 functions or powers under subpart 3 (except as provided in section 90(3)): 8 (e) section 36A (no duty under this Act to consult about resource consent applications and notices of requirement): (f) sections 37 (power of waiver and extension of time limits) and 37 A (requirements for waivers and extensions): (g) sections 39 to 41A, 418(1) to (4), 41C, 42, and 42A (concerning powers and duties in relation to hearings and reports to a local authority): (h) section 352 (service of documents): (i) any other provisions of the Resource Management Act 1991 prescribed for the purposes of this section. [26] That led him to submit that "significantly, neither ss 176 or 193 of the RMA are included in this list of provisions in s 76 HASHAA". He conceded that while s 76 does. not provide an exhaustive list, given that other sections also import aspects of the RMA, "if ss 176 and 193 were intended to be included they could have easily been listed". doubt that advances his argument greatly. [27] Mr Gardner-Hopkins next submitted that HASHM could be seen to be a code in respect of the grant, implementation and exercise of HASHM consents, from provisions specifically applying after the grant of a HASHM consent, such as ss 52-55, s 56, s 57, ss 78-84, and ss These deal with such things (amongst others) as to change, cancellation and review of consent conditions, surrender, rights of objection and appeal, and subdivisions. [28] He submitted that if s 49 of HASHM had not been enacted, "the position would have been more straightforward", that is the provisions of the RMA that would apply would only be ones referred to in HASHM. However, he noted that s 49 had been enacted, and offered the emphasis in that provision as placed by him, following: 49 Effect of grant of resource consent under this Act (1) Except as provided otherwise in this Act,- (a) a resource consent granted under this Act has full force and effect for its duration and according to its terms and conditions as if it were granted under the Resource Management Act 1991; and (b) any provision of an enactment that refers to a resource consent granted under the Resource Management Act 1991 (including that Act) must be read, with all necessary modifications, as including a resource consent granted under this Act. (2) In particular, and without limiting subsection (1), subpart 5 of Part 8 of the

9 9 Local Government Act 2002 applies, with all necessary modifications, in relation to a resource consent granted under this Act. [29] He examined the legislative history of s 49 as he submitted was authorised, even encouraged, by high authority, for instance New Zealand Airline Pilots' Association Industrial Union of Workers Inc v Air New Zealand Limited. 7 He noted that s 49 did not appear in the bill as first promulgated at all, but in the bill reported back from the Select Committee. He submitted that s 49(1)(a) is subject to s 22(1)(b) of HASHAA. Referring to the Social Services Select Committee Report Back, he demonstrated, I think accurately and without controversy, that s 49 was introduced as a response to specific submissions about the ability of Councils to charge development contributions on HASHAA consents. He went on to submit that s 49 was not introduced for the purpose of requiring a HASHAA consent also to be subject to ss 176 or 193 RMA. He acknowledged however that there were no submissions to the Select Committee addressing those provisions of the RMA, before making his submission noted above, that this could "cut both ways". [30] Counsel for the Respondents submitted that as originally introduced, the bill allowed only the NZ Transport Agency to be notified, but that in report-back this was widened out to requiring authorities in respect of their designations. Heritage Protection Authorities were not included. I consider that the provision as enacted deals only with the situation surrounding notification of HASHAA applications, and does not assist with clarifying whether application must be made to designating authorities or Heritage authorities. There are other pointers in this direction, which I shall come to. [31] The thrust of submissions by Mr Milne on behalf of the Applicant was that the purpose of HASHAA (quoted above) is to enhance housing affordability by facilitating an increase in land and housing supply in certain regions or districts..., and that the many provisions of HASHAA cited on behalf of the Respondent demonstrate how, employing dictionary definitions, HASHAA eases the way for housing developers; but not on the basis of ensuring that land is made available irrespective of the effects on the environment, natural hazards, or other matters, as can be seen from s 34 HASHAA. Equally, he submitted that the granting of consent would not avoid the need for separate approvals under the RMA or other legislation unless a resource consent granted under the RMA would have had that effect. 7 [2008]2 NZLR 1 (NZSC).

10 10 [32] Once again, Mr Milne's submissions demonstrated significant initial common ground between the parties, for instance to the effect that HASHAA makes the interface with the RMA clear. Contrary however to submissions on behalf of the Respondents, Mr Milne submitted that s 22(1) reinforced the view that HASHAA is complementary legislation rather than evidence of a separate comprehensive code. I agree that the outcome of HASHAA decisions (granting consents) produces the result that there is a deemed consent under the RMA, and that the words "any other matter under this Part': effectively makes no change to that position. [33] I agree with him also that s 76, with its list in subsection 2 of the specified provisions which relate to the processing of consent applications, point to facilitating of consenting in the sense of easing the consent process, but without going so far as to indicate that other processes are avoided. Section 76 is concerned with procedural provisions of the RMA related to processing and approving an application under HASHAA. The words in the introduction to s 76(1) HASHAA "in respect of authorised agency's performance and exercise of its functions and powers under this Part" [emphasis supplied], are telling to the effect that an authorised agency (council) has no function under HASHAA to determine applications made under ss 176 or 193 of the RMA. [34] The tables of comparative provisions placed before me by Mr Gardner-Hopkins go only so far as to demonstrate that HASHAA provides a code in relation to the grant and effect of consents under that Act, but does not impinge upon whether or not there is need for approval for the purposes of either s 176 or s 193 RMA. That is, the code only goes so far. [35] As to the interrelationship between ss 22 and 49 of HASHAA, it is important to note that s 22 excludes the RMA in relation to "an application, request, decision, or any other matter under this Part" [emphasis supplied]. I consider that those words refer to other matters similar to applications, requests for plan changes and decisions under the HASHAA Act, which is quite different from suggesting that the outcome of such applications, decisions or requests is itself "another matter'. Section 49 deals with the effect of a consent, and s 22 deals with the relationship with the processing of an application under the RMA, reinforced by the wording of s 76 as noted.

11 11 Conclusion: Section 193 RMA (and s176) not inconsistent with or repugnant to HASHAA [36] Mr Gardner-Hopkins was concerned that if ss 176 and 193 RMA continued to hold sway, a HASHAA consent could effectively be frustrated, and that resolution of issues under those provisions, including any appeals, could well take longer than the one year lapse period provided for under HASHAA. That however is to ignore the provisions of s 51 HASHAA which import the provisions of s 125 RMA, in particular s125(1)(a)(b) about extensions being potentially available in certain circumstances. [37] He submitted that this case had more in common with the Stewarl decision than the Director of Civil Aviation decision, and that I should find in favour of an interpretation that favours the more recent, specific, HASHAA legislation as opposed to the older, more general provisions of the RMA. Picking up on the factors identified by the Environment Court in the Minister of Conservation decision, he submitted: (a) There is an overlap of issues, with heritage being considered in both the HASHAA consent process, as well as in any s 193 approval. (b) There is real risk of the s 193 process will impose inconsistent controls to those under the HASHAA consent, perhaps even completely negating the HASHAA consent. (c) HASHAA expressly deals with its relationship with the RMA, and in s 22 it is clear that the RMA will only apply where expressly provided for; that s 49(1) is subject to s 22 and was introduced for a purpose other than to import ss 176 and 193 RMA jurisdiction. (d) HASHAA is so comprehensive in how it deals with the consents, and what provisions the RMA are to apply, that it constitutes a code. [38] I have effectively found against each of those submissions in my analysis and findings on the respective submissions on behalf of the two parties. There is overlap, but only "so far". The place of ss193 and 176 remains recognised in the overall scheme of the legislation and they retain their purpose, indeed importance. To employ the language of Stewarl quoted in paragraph [13] of this decision, it is reasonably possible to construe all provisions so as to give effect to both. The apparent clear code in HAASHA stops short of interfering with in any way, let alone negating, the operation of s193 (and s176). I therefore do not find that there would be inconsistency or repugnancy.

12 12 [39] Further, the wording of the purpose of HASHAA about facilitating an increase in land and housing supply, cannot be read so as to extend irrespective of effects on the environment, natural hazards, and other matters. To hold otherwise would be to read more into the purpose of HASHAA than is justified, and could have consequences which I do not accept that Parliament has intended. [40] By way of further example, s 29(3) HASHAA gives discretion to a Council as to notification an application to certain persons. Let us suppose that a council decides to limited notify in respect of a designation on the subject or adjacent land, to that requiring authority. Rights of appeal on the part of that requiring authority are extremely limited, and in many circumstances no appeal would be available, which could be to undermine the proposed designated works, with consequences well beyond the site and fiscally. [41] It cannot have been the intention of Parliament that the designating authority should first be subject to the discretion of the Council as to whether it be notified, and secondly potentially devoid of rights of appeal, and that its designated works could be so imperilled. By analogy, it cannot be that Parliament intended that a Heritage authority could be even more greatly disadvantaged without some strong pointer as to why. To interpret "facilitating" an increase in land and housing supply in certain regions or districts as entailing such drastic consequences, cannot be discerned as the will of Parliament on any sensible interpretation. SIGNED at Auckland this J3f' day of ~/) LJ Newhook