IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2016-404-2336 [2016] NZHC 138 BETWEEN ALBANY NORTH LANDOWNERS Plaintiff AND AUCKLAND COUNCIL Defendant [Continued over page] Hearing: 28 November - 2 December 2016 Counsel: M Baker-Galloway for Albany North Landowers T Mullins for Auckland Memorial Park Ltd S Ryan for Franco Belgiorno-Nettis R Brabant and R Enright for Character Coalition Inc & Anor M Savage for Howick Ratepayers and Residents Assoc Inc & Anor R Enright for The Straits Protection Society Inc and South Epsom Planning Group Inc & Anor A A Arthur-Young and S H Pilkington for Strand Holdings Ltd R E Bartlett QC for Summerset Group Holdings Ltd A A Arthur-Young and D J Minhinnick for Valerie Close Residents Group H Atkins for Village New Zealand Ltd R Brabant for Wallace Group Ltd M Casey QC and M Williams for Man OʼWar Farm Ltd R J Somerville QC, K Anderson and W G Wakefield for Auckland Council C Kirman and A Devine for Housing Corporation New Zealand and Minister for the Enironment S F Quinn and A F Buchanan for Ting Holdings Ltd S J Simons and R M Steller for Property Council of New Zealand R M Devine for Ngati Whatua Orakei Whai Rawa Ltd Judgment: 13 February 2017 JUDGMENT OF WHATA J ALBANY NORTH LANDOWNERS v AUCKLAND COUNCIL [2016] NZHC 138 [13 February 2017] This judgment was delivered by me on 13 February 2017 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar Date: ………………………… CIV-2016-404-2298 BETWEEN AUCKLAND MEMORIAL PARK LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2323 BETWEEN AUCKLAND UNIVERSITY OF TECHNOLOGY Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2333 BETWEEN FRANCO BELGIORNO-NETTIS Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2335 BETWEEN FRANCO BELGIORNO-NETTIS Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2351 BETWEEN BUNNINGS LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2326 BETWEEN CHARACTER COALITION INC LTD & ANOR Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2327 BETWEEN CHARACTER COALITION INC LTD & ANOR Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2322 BETWEEN STEPHEN HOLLANDER Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2321 BETWEEN HOWICK RATEPAYERS AND RESIDENTS ASSOCIATION INCORPORATED & ANOR Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2320 BETWEEN JPR ENTERPRISES & ORS Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2324 BETWEEN NORTH EASTERN INVESTMENTS LIMITED & ANOR Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2325 BETWEEN NORTH EASTERN INVESTMENTS LIMITED & ANOR Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2349 BETWEEN THE STRAITS PROTECTION SOCIETY INCORPORATED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2350 BETWEEN STRAND HOLDINGS LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2344 BETWEEN SUMMERSET GROUP HOLDINGS LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2305 BETWEEN VALERIE CLOSE RESIDENTS GROUP Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2341 BETWEEN VILLAGE NEW ZEALAND LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2316 BETWEEN WALLACE GROUP LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2331 BETWEEN MAN O’WAR FARM LIMITED Plaintiff AND AUCKLAND COUNCIL Defendant CIV-2016-404-2302 BETWEEN SOUTH EPSOM PLANNING GROUP INCORPORATED & ANOR Plaintiff AND AUCKLAND COUNCIL Defendant TABLE OF CONTENTS Introduction [1] A guide [3] PART A: THE PARTIES [5] Acknowledgment [9] PART B: BACKGROUND AND FRAME Establishment of Auckland Council, adoption of Auckland Plan [10] New legislation for development of the AUP [13] Notification of the draft PAUP [15] Section 32 Report [16] Notification of the PAUP [28] The IHP: Role, Function [31] The issue of scope emerges [34] The hearings on zoning and precincts [47] IHP Recommendations [52] Topic 013 – Urban Growth [59] Topic 016, 017 Rural Urban Boundary, 080 Rezoning and Precincts (General) and 081 Rezoning and Precincts (Geographic Areas) [65] Topic 059-063 – Residential Zones [73] Appeal and review rights [84] Thresholds for appeal and review [90] PART C: THE PRELIMINARY QUESTIONS Did the IHP interpret its statutory duties contained in Part 4 of the [92] Local Government (Auckland Transitional Provisions) Act 2010 (the Act) Lawfully, when deciding whether its recommendations to the Council Were within the scope of submissions made in respect of the first Auckland Combined Plan? The legislative frame [93] The IHP approach to scope [96] Argument (in brief) [99] Assessment [101] The statutory criteria [104] Policy of public participation [110] The scheme of Part 4 and the RMA [113] Orthodoxy [115] The Clearwater two step test [119] Summary [135] Did the IHP have a duty to: [137] (a) Identify specific submissions seeking relief on an area by area basis with specific reference to suburbs, neighbourhoods or streets (b) Identify when it was exercising its powers to make consequential alterations arising from submissions? Assessment [139] Was it lawful for the IHP to: [145] (a) Determine the scope of submissions by reference to another submission? (b) Determine the proper scope of a submission by reference to the recommended Regional Policy Statement? Assessment [148] To what extent are principles (regarding the question of scope) established Under the Resource Management Act 1991 case law relevant, when addressing scope under the Act [154] Did the IHP correctly apply the legal framework in the test cases? The test cases [155] Identification of relevant submissions [159] The Maps [161] Overview of test cases on residential zoning [162] The submissions on residential intensification [164] A helicopter view [165] Accessibility of Council website [171] The Council’s change of position [177] Mt Albert [180] Argument [187] Assessment [189] Glendowie [191] Argument [201] Assessment [203] Blockhouse Bay [210] Assessment [214] Judges Bay [217] Assessment [221] Wallingford St, Grey Lynn [224] Assessment [228] Howick [231] Assessment [233] The Viewshaft on the Strand [241] SHL’s claim [246] Argument [250] Assessment [252] 55 Takanini School Rd [257] Submissions identified by IHP [264] Preliminary issue [265] Assessment [268] The Albany North Landowners’ Group site [270] Argument [274] Assessment [276] Man O’War Farm [279] Argument [286] Assessment [288] Are the appellants/applicants’ allegations against the Council concerning the IHP’s determination on issues of scope appealable pursuant to the Act and/or reviewable? [291] Assessment [294] What relief can the High Court grant the appellants/applicants if the IHP and/or the Council acted unlawfully in respect of the IHP’s determination on an issue of scope under the Act? [300] Outcome [302] Effect of Judgment/Relief [303] Costs [305] APPENDIX A APPENDIX B APPENDIX C Introduction [1] The Auckland Unitary Plan (AUP) is a combined 30 year plan, incorporating for the first time a regional policy statement, a regional plan and a district plan for Auckland in one document. It represents the culmination of a mammoth undertaking by the Auckland Council (the Council) and an Independent Hearings Panel (IHP) over the span of several years. The scale of this task reflects the significance of the AUP to the people and communities of Auckland and beyond. [2] This Court’s relatively discrete involvement has been triggered by 51 appeals and judicial review applications. A central issue for 20 of those proceedings is whether the recommendations made by the IHP on the proposed Auckland Unitary Plan (the PAUP) were within scope of the submissions. If they were not in scope, then affected persons have the right to appeal on the merits of the decisions of the Council based on those recommendations to the Environment Court. A guide [3] This judgment answers the following preliminary questions agreed by the parties: (a) Did the IHP interpret its statutory duties contained in Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act) lawfully, when deciding whether its recommendations to the Council were within the scope of submissions made in respect of the first Auckland Combined Plan? (b) Did the IHP have a duty to: (i) Identify specific submissions seeking relief on an area by area basis with specific reference to suburbs, neighbourhoods or streets? (ii) Identify when it was exercising its powers to make consequential alterations arising from submissions? (c) Was it lawful for the IHP to: (i) Determine the scope of submissions by reference to another submission? (ii) Determine the proper scope of a submission by reference to the recommended Regional Policy Statement? (d) To what extent are principles (regarding the question of scope) established under the Resource Management Act 1991 (the RMA) case law relevant, when addressing scope under the Act? (e) Did the IHP correctly apply the legal framework in the specified test cases? (f) Are the appellants’/applicants’ allegations against the Council concerning the IHP’s determination on issues of scope appealable pursuant to the Act and/or reviewable? (g) What relief can the High Court grant the appellants/applicants if the IHP and/or the Council acted unlawfully in respect of the IHP’s determination on an issue of scope under the Act? (The Preliminary Questions) [4] In order to properly understand the decisions made by the IHP and the Council, it is necessary to consider the full context within which they were made. Consequently, the judgment is divided into three key parts. It commences by describing the various parties to the proceeding and the characteristics of each of their particular claims – [5]- [9]. Part B provides the background to the current proceeding, tracing through both the legislative and factual context to the development of the AUP– [10]-[91]. With that background in mind, in Part C I address the Preliminary Questions in the order they are given above – [92]-[302]. PART A: THE PARTIES [5] The appellant/applicant parties actively involved in the preliminary question proceeding on scope are: (a) Albany North Landowners Group (ANLG).