I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE CIV [2017] NZHC 2933

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE CIV [2017] NZHC 2933 IN THE MATTER OF IN THE MATTER OF BETWEEN AND The Resource Management Act 1991 (the Act) An appeal against Environment Court decisions [2017] NZEnvC 31 (interim decision) and [2017] NZEnvC 100 (final decision) under section 229 of the Act COASTAL RATEPAYERS UNITED INCORPORATED Appellant THE KĀPITI COAST DISTRICT COUNCIL Respondent Hearing: 13 November 2017 Counsel: P C Mitchell for Appellant P T Beverley and V C Brunton for Respondent Judgment: 29 November 2017 JUDGMENT OF COLLINS J Introduction [1] Coastal Ratepayers United Inc (CRU) appeals two decisions of the Environment Court, alleging errors of law were made by that Court when it: COASTAL RATEPAYERS UNITED INCORPORATED v THE KĀPITI COAST DISTRICT COUNCIL [2017] NZHC 2933 [29 November 2017]

2 (1) declined to issue a declaration sought by CRU (first declaration decision); 1 and (2) issued a modified form of declaration in respect of a second declaration sought by CRU (second declaration decision). 2 [2] Both declarations concern the lawfulness of decisions made by the Kāpiti Coast District Council (the Council) after it gave notice of the Kāpiti Coast Proposed District Plan (Proposed District Plan) pursuant to s 79(6) and cl 5(1)(b) of pt 1 of sch 1 of the Resource Management Act 1991 (the Act). At issue was the Council s decision to withdraw from the Proposed District Plan provisions relating to coastal hazard management. 3 [3] In relation to the first declaration it sought, CRU maintains the Environment Court erred in law when it held that the consequence of the Council withdrawing the coastal hazard management provisions from the Proposed District Plan was that the corresponding provisions of the Operative District Plan remain in force. CRU also contends that the Environment Court erred when it held that it was not necessary for the Council to undertake the variation procedures prescribed in the Act. [4] In relation to the second declaration decision, CRU submits the Environment Court erred in law when it issued a limited form of declaration. [5] This judgment explains why I am dismissing both appeals. Background [6] Section 79(1) of the Act requires those local authorities that have District Plans to review those plans every 10 years. In November 2012, the Council, after reviewing its 1999 Operative District Plan, gave notice of a Proposed District Plan. In its public notice the Council explained: 1 Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZEnvC Coastal Ratepayers United Inc v Kāpiti Coast District Council [2017] NZEnvC The provisions related to coastal hazard lines, coastal hazard areas and the rules relevant to them. For convenience, I will refer to these as the coastal hazard management provisions throughout this judgment.

3 The Proposed District Plan is the result of a District Plan review which commenced in 2009 under s 79 of [the Act]. It amends, and when made operative will replace, the objectives, policies, rules and standards, maps and appendices of the operative 1999 District Plan. [7] The Proposed District Plan contained new proposals for coastal hazard management. This was an important issue for CRU and other residents of the Kāpiti Coast, as some parts of the Kāpiti shoreline are eroding while other parts are accreting. [8] As part of its efforts to manage the hazards of its coastline, the Council had earlier in 2012 issued a report that included projections of where the shoreline would be in 50 and 100 years time. Those projections were used to demarcate erosion hazard zones that affected approximately 1,000 properties within the 50-year erosion hazard zone and 1,800 properties within the 100-year erosion hazard zone. [9] The Proposed District Plan contained restrictions on building and subdivision within the 50-year erosion hazard zone. The coastal hazard management provisions proved to be controversial and attracted submissions from about half of the 777 persons and entities that made submissions in relation to the Proposed District Plan. The Council s actions also spawned litigation after the Council placed erosion risk warnings on Land Information Memoranda (LIM s) relating to properties within the erosion hazard zones. 4 [10] The Council responded to the expressions of concern by appointing a Coastal Panel of experts to review the science and assessments that underpinned the coastal hazard management provisions of the Proposed District Plan. The Coastal Panel s report was completed in mid The Coastal Panel concluded that the coastal erosion assessment undertaken in 2012 was not sufficiently robust for incorporation into the Proposed District Plan. Subsequently, the Parliamentary Commissioner for the Environment concluded that the Council had been too hasty in its processes concerning its proposals for coastal hazard management. 5 4 Weir v Kāpiti Coast District Council [2013] NZHC In an interim judgment, the High Court found that while placing the erosion risk warnings on LIM s was required by law, the way in which it was done was inadequate. In December 2013, the Council decided the erosion hazard zones would no longer appear on LIM s. 5 Parliamentary Commissioner for the Environment Preparing New Zealand for Rising Seas:

4 [11] The Council also appointed Ms Allan, an experienced planning practitioner and Mr Fowler QC, a lawyer with wide experience, including in resource management, to review the Proposed District Plan. The Council sought guidance from Ms Allan and Mr Fowler on whether it should continue to progress the Proposed District Plan or whether some other process should be followed. [12] The report from Ms Allan and Mr Fowler was received by the Council soon after the Coastal Panel had submitted its report to the Council. In their report, Ms Allan and Mr Fowler set out a number of conclusions and recommendations, including that: 6 (1) despite some problems with processes of plan preparation resulting in considerable community concern, the [Proposed District Plan was] not so poorly formulated and inadequate that it need[ed] to be completely withdrawn. (2) The Council proceed with the [Proposed District Plan] on the basis of a modified process of hearing. (3) The Council resolve to withdraw from the [Proposed District Plan] the coastal hazard management areas on the plan maps along with the associated policy sections and rules, and clarify the parts of the Operative District Plan which provide stop-gap coverage relating to coastal hazards. (4) The Council develop an implementation plan to progress work on the coastal erosion hazard assessment, and other aspects of coastal hazard management. The implementation should build on the work already done and incorporate adequate and appropriate communications and consultations provisions, including a role for an advisory group. Certainty and Uncertainty (November 2015) at Sylvia Allan and Richard Fowler QC Independent Review of the Kāpiti Coast Proposed District Plan (June 2014) at 53 and 54.

5 (5) At an appropriate time (or times) the Council proceeds with a variation (or variations) to include suitable and relevant policy, methods and rules in the [Proposed District Plan] to address the district s coastal hazards in accordance with the [New Zealand Coastal Policy statement], the [Regional Policy Statement] and best practice. [13] At a meeting on 24 July 2014, the Council resolved to adopt the reports and recommendations from the Coastal Panel and from Ms Allan and Mr Fowler, and in particular the recommendations I have set out in (2) to (5), as set out above. [14] Ms Allan and Mr Fowler had recommended the Council engage in a process that would lead to variations to those parts of the Proposed District Plan that concern coastal hazard management and the Council resolved to follow those recommendations. [15] On 30 October 2014, the Council gave notice under cl 8D of pt 1 of sch 1 of the Act (cl 8D) that it was withdrawing those parts of the Proposed District Plan that related to coastal hazard management, and other provisions not relevant to this judgment. [16] It was the Council s decision to withdraw, rather than vary, the coastal hazard management provisions from the Proposed District Plan that is the genesis of the current litigation. [17] A body called the North Ōtaki Beach Residents Group and CRU commenced proceedings in the Environment Court seeking two declarations concerning the lawfulness of the approach taken by the Council when it withdrew those parts of the Proposed District Plan relating to coastal hazard management. The Council reached an agreement with the North Ōtaki Beach Residents Group, but it was unable to achieve a settlement. [18] The principal concerns of CRU can be distilled to four points:

6 (1) The legal consequences of the Council withdrawing rather than setting out to vary the relevant provisions of the Proposed District Plan mean that it, and other interested persons, have not been given, and will not have, an opportunity to make submissions and engage with the development of new coastal hazard management provisions in the District Plan. For convenience, I will refer to this as the consultation issue. (2) Delays have already occurred and will continue to occur in developing an acceptable coastal hazard management plan. I will refer to this as the delay issue. (3) Both the Council and the Environment Court have concluded that the withdrawal of the coastal hazard management provisions from the Proposed District Plan leaves in place, by default, the coastal hazard management provisions of the Operative District Plan and that this in turn creates confusion and uncertainty about what provisions are in force. I will refer to this as to the uncertainty issue. (4) The Council was not entitled to withdraw the coastal hazard management provisions because, in doing so, other provisions in the Proposed District Plan were altered. This issue underpins the second declaration sought in the Environment Court. [19] The two declarations sought in the Environment Court by CRU were: Declaration 1 The Council, having notified a full review of the District Plan, cannot change the ambit of that review under s 79 without first notifying the provisions which are no longer subject to the review, and/or notifying the existing provisions which it intends to remain operative after the proposed plan is completed.

7 Declaration 2 In withdrawing the coastal hazard and other provisions under cl 8D of sch 1 of the [Act], the Council changed the meaning of the remainder of the [Proposed District Plan]. Parties positions [20] Mr Mitchell s submissions on behalf of CRU in relation to the first declaration decision can be summarised in the following way: (1) Having undertaken a full review of the Operative District Plan and notified a Proposed District Plan, the Council could only make changes to the Proposed District Plan by way of the variation procedure in pt 1 of sch 1 of the Act. (2) It was not open to the Council to withdraw parts of the Proposed District Plan and rely on the corresponding provisions of the Operative District Plan without first notifying what provisions of the Operative District Plan would continue to have effect after the Council approved the Proposed District Plan. (3) In addition to being unlawful, the process followed by the Council deprived CRU and others from making submissions on the surviving provisions of the Operative District Plan concerning coastal hazard management. It is also maintained that the Council s actions have caused unnecessary delay and led to uncertainty. [21] Mr Mitchell summarised the basis upon which CRU sought the second declaration. He explained: 7 Declaration 2 concerns the ambit of the power of withdrawal in Schedule 1 cl 8D(1) [of the Act]. 7 Appellant s submissions, 29 September 2017 at [19].

8 [22] This issue engaged the scope of the High Court s judgment in West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, 8 (the West Coast decision) in which this Court concluded the power to withdraw a proposal must include a power to withdraw parts of a proposal, provided that any withdrawal is not also an alteration. Mr Mitchell argued that in this case, the Council went beyond the scope of what the High Court said was permissible in the West Coast decision and that the Environment Court erred in law when it issued a limited form of declaration in its second declaration decision. [23] CRU filed evidence from three witnesses in the Environment Court. Their evidence is also, to varying degrees, relied upon in support of the appeal. The first of the witnesses was Ms Allin, who has been a senior law lecturer and practitioner. She has also been a Judge of the Environment Court and the Principal Environment Court Judge. Ms Allin s credentials include having been a member of a panel whose work led to the Resource Management Bill being introduced into Parliament. Ms Allin is a resident of the Kāpiti Coast and has been very concerned for a number of years about the way the Council had prepared and progressed the Proposed District Plan. She prophetically warned in November 2012 that the Council seemed to be heading towards unproductive litigation because of the way it was advancing the Proposed District Plan. Ms Allin set out in considerable detail the history of the events that have led to the current impasse. Ms Moody, a senior tutor in the planning programme at Massey University, provided both factual and expert evidence from a planning perspective on the issues before the Environment Court. The third witness for CRU was Mr Poole, a resident of the Kāpiti Coast and founding member of CRU. He traversed the history of the current dispute and set out his concerns about the stance taken by the Council. [24] The Council also relied on three witnesses. The first was Ms Stevenson, an experienced planner who at relevant times was employed by the Council as its manager of Research Policy and Planning. Ms Stevenson explained the steps taken by the Council and the reasons for the approach the Council has taken to date. Her evidence was supported by Ms Thomson, a senior policy planner at the Council who 8 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand [2007] NZRMA 32.

9 was involved in deciding which parts of the Proposed District Plan were to be withdrawn in October She also addressed issues raised by Ms Moody and Ms Allin about the consequences of the approach taken by the Council. Ms Thompson s evidence was peer reviewed by Mr Julyan, a planner and director of Beca Ltd. Mr Julyan endorsed the analysis put forward by Ms Thomson. The Environment Court decisions [25] In its first declaration decision, the Environment Court declined to issue the first declaration sought by CRU. 9 In doing so, the Environment Court endorsed what it said was the common understanding of those who practice in the RMA area concerning the meaning and effect of the relevant provisions of the Act, and that the approach taken by the Council produced a logical outcome. 10 In particular, the Environment Court was satisfied that the provisions withdrawn from the Proposed District Plan concerning coastal hazard management would result in further plan changes and alterations. The Court held: 11 Until such time as they are changed, the existing coastal hazards provisions are part of the [Operative District Plan]. They remain in force, not because the Council has determined that they should not be altered (it has in fact determined that they should be altered), but by operation of law until they are in turn changed by, some future change or variation as is the Council s announced intention... [26] In its second declaration decision, the Environment Court granted a modified version of the second declaration sought by CRU. 12 The Environment Court declared that in withdrawing the coastal hazard provisions of the Proposed District Plan under cl 8D of the Act, the Council changed the meaning of six specified provisions in the Proposed District Plan. The appeals [27] CRU s appeals to this Court are brought pursuant to s 299 of the Act and are therefore limited to questions of law. For this reason, while I have found the evidence 9 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n At [31]. 11 At [30]. 12 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 2.

10 relied upon by both parties in the Environment Court to be of assistance in understanding the background to the appeal, ultimately, the appeal hinges upon the meaning of key provisions in the Act. [28] For completeness, I record that the Council has continued to hear submissions on the Proposed District Plan and that it is anticipated the Council s decision in relation to the Proposed District Plan will soon be publicly notified. Key legislative provisions [29] I will at this stage set out only four key statutory provisions. The first is s 79 of the Act which provides: 79 Review of policy statements and plans (1) A local authority must commence a review of a provision of any of the following documents it has, if the provision has not been a subject of a proposed policy statement or plan, a review, or a change by the local authority during the previous 10 years: (c) a district plan. (2) If, after reviewing the provision, the local authority considers that it requires alteration, the local authority must, in the manner set out in Parts 1, of Schedule 1 and this Part, propose to alter the provision. (3) If, after reviewing the provision, the local authority considers that it does not require alteration, the local authority must still publicly notify the provision (a) (b) as if it were a change; and in the manner set out in Parts 1 of Schedule 1 and this Part. (4) Without limiting subsection (1), a local authority may, at any time, commence a full review of any of the following documents it has: (c) a district plan. (5) In carrying out a review under subsection (4), the local authority must review all the sections of, and all the changes to, the policy statement or plan regardless of when the sections or changes became operative. (6) If, after reviewing the statement or plan under subsection (4), the local authority considers that it requires alteration, the local authority must

11 alter the statement or plan in the manner set out in Parts 1 of Schedule 1 and this Part. (7) If, after reviewing the statement or plan under subsection (4), the local authority considers that it does not require alteration, the local authority must still publicly notify the statement or plan (a) (b) as if it were a proposed policy statement or plan; and in the manner set out in Parts 1 of Schedule 1 and this Part. (8) A provision of a policy statement or plan, or the policy statement or plan, as the case may be, does not cease to be operative because the provision, statement, or plan is due for review or is being reviewed under this section. [30] The second statutory provision is cl 8D, which provides: 8D Withdrawal of proposed policy statements and plans (1) Where a local authority has initiated the preparation of a policy statement or plan, the local authority may withdraw its proposal to prepare, change, or vary the policy statement or plan at any time (a) (b) if an appeal has not been made to the Environment Court under clause 14, or the appeal has been withdrawn, before the policy statement or plan is approved by the local authority; or if an appeal has been made to the Environment Court, before the Environment Court hearing commences. (2) The local authority shall give public notice of any withdrawal under subclause (1), including the reasons for the withdrawal. [31] The case for CRU relies on the variation provisions in cls 16A and 16B of pt 1 of sch 1 of the Act. Those clauses state: 16A Variation of proposed policy statement or plan (1) A local authority may initiate variations to a proposed policy statement or plan, or to a change, at any time before the approval of the policy statement or plan. (2) The provisions of this schedule, with all necessary modifications, shall apply to every variation as if it were a change. 16B Merger with proposed policy statement or plan (1) Every variation initiated under clause 16A shall be merged in and become part of the proposed policy statement or plan as soon as the variation and the proposed policy statement or plan are both at the

12 same procedural stage; but where the variation includes a provision to be substituted for a provision in the proposed policy statement or plan against which a submission or an appeal has been lodged, that submission or appeal shall be deemed to be a submission or appeal against the variation. (2) From the date of notification of a variation, the proposed policy statement or proposed plan shall have effect as if it had been so varied. Public consultation requirements [32] The processes set out in pt 1 of sch 1 of the Act involve a number of mandatory consultation steps. The consultation steps reflect what Arnold J (with whom Elias CJ, McGrath and Glazebrook JJ agreed) has described as being important values in the Act. 13 [33] It is not necessary to set out in full all of the consultation provisions in pt 1 of sch 1 of the Act. Suffice for present purposes to note: (1) During the preparation of a Proposed District Plan a local authority is required to consult with, amongst others, the Minister for the Environment, tangata whenua who may be affected and other local authorities that may be affected. 14 (2) The local authority is required to publicly notify its Proposed District Plan. 15 (3) Following public notification, an opportunity must be given for public submissions in relation to the Proposed District Plan Environment Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [15]. 14 Resource Management Act 1991, sch 1, pt 1, cl Clause 5(1)(b). 16 Clause 6.

13 (4) Except in limited circumstances not relevant to this case, the local authority is required to hold a hearing into submissions in relation to its Proposed District Plan. 17 (5) The local authority must make a decision on matters raised in submissions. 18 (6) The local authority must approve its Proposed District Plan including, amongst other matters, variations made under cl 16A. 19 A local authority may, however, approve part of a Proposed District Plan if all submissions or appeals relating to that Part have been disposed of. 20 [34] Public consultation is therefore integral to the processes that a local authority must follow before approving a Proposed District Plan. The consultation requirements in pt 1 of sch 1 of the Act reflect the consequences that flow from the adoption of a District Plan, which include a prohibition on use of land in a way that contravenes the provisions of a District Plan unless expressly allowed by resource consent or statutory exception. 21 When Parliament passed the Act it wished to ensure that landowners who are subject to a District Plan would have plenty of opportunity to express their concerns and be heard about the contents of a Proposed District Plan before changes were made to the way they could use their land. Analysis First declaration decision [35] It is helpful to address the lawfulness of the Environment Court s first declaration decision by referring to the first three primary concerns raised by CRU about the processes followed by the Council, outlined at [18]. 17 Resource Management Act 1991, cl 8B. 18 Clause Clause 17(1). 20 Clause 17(2). 21 Section 9(3).

14 Consultation [36] It is accepted that the Council undertook from 2008, pursuant to s 79(4) of the Act, a full review of the 1999 Operative District Plan and that review led the Council to conclude the Operative District Plan required alteration. 22 Section 79(6) of the Act was therefore engaged, meaning the Council had to alter the Operative District Plan in the manner set out in pt 1 of sch 1 of the Act. [37] At issue is the consequence of the Council withdrawing those parts of the Proposed District Plan relating to coastal hazard management. 23 Mr Mitchell argues that where the Proposed District Plan is intended to be a full replacement of the Operative District Plan, then the withdrawal of parts of the Proposed District Plan does not lead to the retention of the corresponding parts of the Operative District Plan. Mr Mitchell maintained that, if the Council withdraws parts of the Proposed District Plan under cl 8D with the intention of retaining the corresponding parts of the Operative District Plan, then the Council can only achieve this objective by following the variation procedure set out in cl 16A. [38] Mr Mitchell submits that even if the effect of a withdrawal is to maintain an existing Operative District Plan provision, then that decision is subject to s 79(3) and a variation would still be required. Of particular concern to Mr Mitchell and his client is their fear that by withdrawing the coastal hazard management provisions of the Proposed District Plan and retaining the corresponding parts of the Operative District Plan, the Council has effectively by-passed the public consultation process set out in pt 1 of sch 1 of the Act. [39] There would be merit to the arguments advanced by Mr Mitchell if the Council withdrew the provisions of the Proposed District Plan concerning coastal hazard management and retained the corresponding parts of the Operative District Plan 22 The evidence referred to the review commencing in September 2008 (affidavit of Ms Stevenson, 21 October 2016 at [6]) despite the Council s November 2012 public notice referring to The Council also withdrew other provisions of the Proposed District Plan. This judgment, however, is concerned solely with the withdrawal of the coastal hazard management provisions of the Proposed District Plan.

15 without intending to address the deficiencies in the coastal hazard management provisions of the Operative District Plan. 24 That is not the case. [40] The Environment Court has found as a matter of fact that the Council has every intention of changing the coastal hazard management provisions of the Operative District Plan. That finding was based upon the evidence that was before the Environment Court. Ms Stevenson said, for example: 25 The Council s intention, communicated consistently and clearly since July 2014, is to undertake further coastal hazard work and, at the appropriate time, introduce a plan change to deal with those matters. [41] This factual finding was reflected in the Environment Court s analysis of the steps taken by the Council. The Environment Court reasoned: 26 Until such time as they are changed, the existing coastal hazards provisions are part of the [Operative District Plan]. They remain in force, not because the Council has determined they should not be altered (it has in fact determined that they should be altered) but by operation of law until they are in turn changed by some future change or variation as is the Council s announced intention as a result of its review. (emphasis added) [42] It is against the background of the Environment Court s factual finding that the Council intends to address the deficiencies in the coastal hazard management parts of the Operative District Plan that I am required to determine whether, as a matter of law, the Environment Court was correct when it concluded that those parts of the Operative District Plan concerning coastal hazard management remained in force once the Council withdrew the coastal hazard management provisions of the Proposed District Plan. [43] The Council argues that the approach it has followed is implicitly permitted because: 27 It cannot have been Parliament s intention that, all provisions in the [Operative District Plan] would be rendered inoperative on the coming into force of what would only be a partial new plan. In other words, it cannot have been the intention to create a regulatory gap, merely because the process commenced with a full review and a full replacement plan. That approach 24 Resource Management Act 1991, s 79(6). 25 Affidavit of SJ Stevenson, 25 October 2016 at [15]. 26 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [30]. 27 Counsel s closing submissions to the Environment Court at [24].

16 would not give recognition to the statutory power to withdraw part of a proposed plan. [44] Mr Mitchell submits it is contrary to the statutory purpose of a full review that withdrawal automatically causes antecedent provisions to remain in force. He submits a variation was required, thereby engaging a process of public consultation. [45] In my assessment, the proper analysis is as follows: (1) The Council commenced a full review of the Operative District Plan. It did so pursuant to s 79(4) of the Act. (2) The Council concluded the Operative District Plan and in particular, for present purposes, the coastal hazard management provisions of the Operative District Plan require alteration. That decision was made pursuant to s 79(6) of the Act. The Council therefore commenced the consultative and other processes required by pt 1 of sch 1 of the Act. At that stage, it was intended that the Proposed District Plan would fully replace the Operative District Plan. (3) In mid-2014, while the processes prescribed in pt 1 of sch 1 of the Act were still underway, the Council appreciated that the provisions of the Proposed District Plan concerning coastal hazard management (and other provisions) were not suitable. (4) When the Council resolved to withdraw those parts of the Proposed District Plan relating to coastal hazard management, the Proposed District Plan ceased to be an intended replacement of the entire Operative District Plan. At that stage, the Proposed District Plan was only intended to replace those parts of the Operative District Plan that were not the subject of the withdrawal notice made under cl 8D. (5) Thus, when the Council approves the remaining provisions of the Proposed District Plan it will not give any consideration to those parts of the Proposed District Plan that have been withdrawn.

17 (6) Those parts of the Operative District Plan that are not the subject of changes brought about by the abbreviated Proposed District Plan therefore remain intact. [46] The approach set out above at (6) is consistent with both the text and purpose of s 79 and the relevant clauses in pt 1 of sch 1 of the Act. [47] From a textual perspective, cl 8D clearly permits the Council to withdraw a Proposed District Plan as well as part of a Proposed District Plan. 28 Section 79(6) sets out the process the Council must follow when it is satisfied that its Operative District Plan, or part of that plan requires alteration. That process will be followed in this case once the Council is able to put forward its proposed new provisions for the District Plan concerning coastal hazard management. There is nothing in s 79(1) of the Act that requires the Council to follow the process set out in pt 1 of sch 1 of the Act in relation to provisions the Council had no intention of retaining, but where it is not yet in a position to put forward proposed changes. In effect, what the Council is doing in this case is approving part of the Proposed District Plan, while retaining the Operative District Plan provisions relating to coastal hazard management in the meantime, to ensure that the finalised District Plan is satisfactory. [48] From a purposive perspective, Parliament could not have intended to create the regulatory gap that would arise in this case if the provisions of the Operative District Plan concerning coastal hazard management ceased to have any effect once the Council approved the remaining provisions of the Proposed District Plan. [49] The fear that the process followed by the Council will deprive CRU and others the opportunity to be consulted and heard about the coastal hazard management provisions of the District Plan is illusory. All persons with a right to make submissions will have the opportunity to do so, and to be heard once the Council is in a position to put forward its proposed new provisions for coastal hazard management. 28 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, above n 8.

18 [50] This is not therefore a case in which CRU or others will be deprived of the opportunity to make submissions and be heard on the Council s proposals to change the provisions of the District Plan concerning coastal hazard management. Delay [51] In the Environment Court it was said that it may take the Council up to four years to notify its proposed changes to the District Plan concerning coastal hazard management. While obviously concerned about such a delay, the Environment Court was satisfied that it is more important that the Council gets it right than gets it quick. 29 In this Court, Mr Beverley for the Council said that now the Council is in the final stages of adopting the abbreviated Proposed District Plan, it anticipates being able to put forward proposed changes to the District Plan concerning coastal hazard management within approximately 18 to 24 months. [52] The reasons for the Council s delays in preparing new coastal hazard management provisions were explained by Ms Stevenson in her affidavit filed in the Environment Court. In summary, Ms Stevenson drew attention to multiple regional and national processes that were underway, which were likely to influence how the Council proposed to deal with coastal hazard management. Those processes included a natural resources plan and a regional hazard strategy that were being developed by the Wellington Regional Council, the November 2015 Report from the Parliamentary Commissioner for the Environment, 30 the revision by the Ministry for the Environment of Coastal Hazards and Climate Change Guidelines and the development of a national policy statement on natural hazards, including coastal hazards by the Ministry for the Environment. [53] There is nothing in s 79 that required the Council to commence sch 1 processes within any specified time of completing its review. The Council accepts, however, that it must notify new coastal hazard management provisions for the District Plan as promptly as is reasonable in the circumstances. That acknowledgement mirrors the requirements of s 21 of the Act which states: 29 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [38]. 30 Parliamentary Commissioner for the Environment, above n 5.

19 21 Avoiding unreasonable delay Every person who exercises or carries out functions, powers, or duties, or is required to do anything, under this Act for which no time limits are prescribed shall do so as promptly as is reasonable in the circumstances. [54] The Environment Court was satisfied that a delay of four years would not, in the circumstances, breach the spirit of s 21 of the Act. The Environment Court noted the Council will need to carefully consider and develop appropriate provisions for coastal hazard management having regard to a variety of considerations, including matters that impact upon the sustainable management of natural and physical resources, 31 matters of national importance 32 and the factors listed in s 7 of the Act, which include the effects of climate change. 33 [55] While the Environment Court acknowledged the Council s forthcoming delay was reasonable, it did not discuss in any great detail the delay that occurred prior to the hearing. The Council began its review of the Operative District Plan as far back as September 2008 and the coastal hazard management provisions, despite their ineffectiveness, are still operative. Another six years passed before the Council issued resolutions in mid There are then concerns expressed by Ms Allin as to whether those resolutions were properly put into effect. [56] Despite these concerns, CRU have not sought a declaration on the delay issue. In the circumstances of this case, it was entirely appropriate for the Environment Court Judge to determine that any definitive finding on the delay issue would require a good deal more information and would not, in any event, result in a practicable alternative. 34 As matters currently stand, the Council s task is challenging. It must be done thoroughly in order to avoid the problems that were caused by it engaging in the hasty processes that led it to making unsuitable proposals for coastal hazard management when it notified the Proposed District Plan in [57] While CRU is understandably concerned about the delays that have occurred to date, and will continue for approximately 18 to 24 months while the Council 31 Resource Management Act 1991, s Section Section 7(i). 34 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [38] and [39].

20 develops its new proposals for coastal hazard management, there was no error of law in the approach taken by the Environment Court when it expressed its support for the position adopted by the Council. Uncertainty [58] CRU is concerned that the process followed by the Council will cause confusion about which parts of the Operative District Plan will remain in force after the abbreviated Proposed District Plan is approved. [59] There is a basis for the concern expressed by CRU. The evidence from Ms Moody explains how difficult it is to be certain about which provisions of the Operative District Plan will remain in force. [60] In an effort to address these concerns the Council issued a notice on 26 October 2016 identifying the provisions of the Operative District Plan that it considers will remain in force following withdrawal of the coastal hazard management provisions of the Proposed District Plan. This notice was not a notice required under pt 1 of sch 1 of the Act. In her affidavit, Ms Moody has, however, identified further issues about the accuracy of that particular notice. [61] It is a basic tenet of our legal system that members of the public should be able to understand the laws that bind them. 35 It is also axiomatic that constraints on the use of land, which may have profound effects on land owners, should not be shrouded in uncertainty. [62] It is unfortunate that there remains room for uncertainty about exactly which provisions of the Operative District Plan will remain in force following the approval of the modified Proposed District Plan. Notwithstanding this room for uncertainty, there was no error of law in the approach taken by the Environment Court when it concluded that the coastal hazard management provisions of the Operative District 35 Resource Management Act 1991, s 76(2) provides that the rules in a district plan shall have the force and effect of a regulation in force under [the Act] but, to the extent that any such rule is inconsistent with any such regulation, the regulation shall prevail.

21 Plan will remain in force until changed or varied at some future point in time. The most that can be done at this juncture is for me to urge the Council to take every reasonable step available to ensure the public is informed of which provisions of the Operative District Plan will remain in force. Summary [63] There was no error of law in the Environment Court s decision when it declined to issue the first declaration sought by CRU. In the absence of any error of law, the appeal concerning the first declaration decision must be dismissed. Second Declaration decision [64] In its first declaration decision, the Environment Court sought further submissions on the scope of the second declaration sought by CRU. The Environment Court required CRU to identify those remaining provisions of the Proposed District Plan that CRU maintained were altered as a result of the Council withdrawing the coastal hazard management provisions from the Proposed District Plan. [65] The Environment Court sought this information in order to bring specificity and focus to the issues associated with the second declaration. That was an appropriate course for the Environment Court to take. Both the Environment Court and the Council were entitled to know precisely how it was alleged that the Council had breached the scope of the West Coast decision when it withdrew the coastal hazard management provisions from the Proposed District Plan. [66] In its first declaration decision, the Environment Court noted that the issues raised by CRU in relation to the second declaration revolved around the observation made in (the West Coast decision) and that although part of a proposed plan may be withdrawn, such a withdrawal may not operate as variation by the backdoor Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [42] citing West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, above n 8, at [25].

22 [67] The gravamen of the case for CRU in relation to the second declaration decision was that a number of provisions of the Proposed District Plan had been altered by the withdrawal of the coastal hazard management provisions of the Proposed District Plan and that, as a consequence, the Council s actions offended the West Coast decision. [68] In particular, CRU focused upon the following paragraph of the West Coast decision in which Chisholm and Fogarty JJ said: 37 Assuming that there is power to withdraw part of a proposed plan it seems to us that it is implicit that the balance must be left as it was. For cl 8D only confers power to withdraw a plan. Anything new has to be notified and tested by a process in which the public can participate. If there is a power to withdraw part, that power cannot include a power to make a change to the meaning of the remainder of the policy statement or plan. Provided it is a withdrawal and not a variation by the back door, it does not matter whether the withdrawal is of a complete part, some few provisions, or a mix. But it must only be a withdrawal and not a variation. [69] In the Environment Court, Mr Mitchell identified nine specific provisions in the remaining parts of the Proposed District Plan, which CRU said were alterations to the provisions of the Proposed District Plan brought about by the withdrawal of the coastal hazard management provisions. It is not necessary to set out those provisions. Suffice for present purposes to record that the Environment Court agreed with Mr Mitchell s submissions in relation to six of the nine provisions he had identified. The Environment Court was satisfied that those six provisions constituted the introduction of new provisions into the Proposed District Plan, that those alterations could affect the rights of some members of the public and that, accordingly, the public should be able to test those alterations. The Environment Court also said that a [r]eturn to the previous provisions of the [Operative District Plan] does not constitute a new provision. 38 [70] Applying the test it had foreshadowed in its first declaration decision, the Environment Court declared in its second declaration decision that: 37 West Coast Regional Council v Royal Forest & Bird Protection Society of New Zealand, above n 8, at [25]. 38 Coastal Ratepayers United Inc v Kāpiti Coast District Council, above n 1, at [55].

23 In withdrawing the coastal hazard provisions under Clause 8D of Schedule 1 of the RMA, the Council changed the meaning of [six specified provisions of the Proposed District Plan]. [71] The Council has not challenged the second declaration decision of the Environment Court, choosing instead to follow a pragmatic response by making the changes required by the modified declaration issued by the Environment Court and withdrawing the six offending provisions from the Proposed District Plan. [72] CRU now takes issue with the Environment Court confining itself to the nine provisions in the Proposed District Plan that it identified. Mr Mitchell submitted that the nine provisions identified before the Environment Court were only examples and that neither the Environment Court or his client should have been bound to the nine provisions identified for the benefit of the Environment Court. [73] The record of the proceedings in the Environment Court shows that on 16 September 2016 the Council sought an assurance from the Environment Court that the scope of the second declaration was limited to the nine provisions of the Proposed District Plan identified by CRU. The Council also sought time to obtain expert planning evidence to address the nine provisions in question. The Environment Court confirmed in a minute dated 22 September 2016 that the Council was given time to prepare expert evidence to address the nine provisions identified by CRU. [74] The Environment Court record confirms that by 29 September 2016 the case for CRU in relation to the second declaration had been narrowed to the nine provisions it had identified. The scope of the issues were reflected in the expert evidence called by the Council, which focused only on the nine provisions identified by CRU. [75] It was for CRU to identify within the timeframe specified by the Environment Court exactly which remaining provisions of the Proposed District Plan were, in its view, altered by the Council s decision to withdraw the coastal hazard management provisions from the Proposed District Plan. Having identified nine specific provisions, it is now difficult to understand on what basis CRU can legitimately challenge the Environment Court s decision when it focused on the nine provisions which it identified.

24 [76] The Environment Court did not err in law when, in the second declaration decision, it focused only upon the nine provisions of the Proposed District Plan that had been identified by CRU to support its application for the second declaration. [77] The three provisions identified by CRU that the Environment Court said were not alterations within the meaning of the West Coast decision involved reversion to the provisions of the Operative District Plan. [78] In the West Coast decision, the High Court held that the withdrawal of provisions of a proposed plan had the consequence of reverting back to the status quo namely, default provisions in ss 9, 13 and 14 of the Act. In the present case, the three provisions in question remain in force through the Operative District Plan. Notwithstanding Mr Mitchell s efforts to try and distinguish the West Coast decision, the reasoning applied in that decision is apposite to this case. [79] The Environment Court applied the law as it has been interpreted by a Full Bench of the High Court. Nothing has been put before me to cause me to doubt in any way the lawfulness of the approach taken by the Environment Court when it applied the High Court s reasoning to the circumstances with which it was faced. [80] There is, therefore, no basis upon which the appeal against the second declaration decision can succeed. Conclusion [81] The appeals are dismissed. [82] Costs are reserved. If counsel are unable to reach agreement on costs they should file memoranda setting out their respective positions by 22 December 2017.

25 Solicitors: Mitchell Law, Waikanae for Appellant Buddle Findlay, Wellington for Respondent D B Collins J