Appealing Wanaka Inc v Queenstown Lakes District Council  NZEnvC 139
The application of King Salmon in the context of a district plan change
This recent Environment Court decision addresses a range of matters; however, this case note focuses on the application of King Salmon in the context of a district plan change.
The Court was considering whether it was appropriate to confirm Plan Change 45 to the Queenstown Lakes District Plan (“PC45“), a private plan change proposing to rezone a 219.26 hectare area between Wanaka and the Clutha River for both residential development and protection of special areas of landscape and ecological value.
The objectives and policies in the Queenstown Lakes District Plan relating to residential development are “so many, various and complex” compounded by the fact that practitioners are still “working through” the ramifications of the Supreme Court’s decision in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd  NZSC 38 (“King Salmon“). This case note discusses those ramifications, for plan changes to a district plan.
A focus of the Court was on the matters to be considered when preparing plan changes to district plans. The Court identified that the requirements of sections 74 and 75 impose formal requirements about what a plan must and may contain, as well as three positive obligations on territorial authorities: ensuring the plan or plan change accords with the authority’s functions under section 32; to give proper consideration to Part 2 of the Act and the statutory documents listed in sections 74 and 75; and to evaluate the plan or plan change under section 32 of the Act.
Focusing on the obligation to give proper consideration to Part 2 of the Act and the relevant statutory documents, the Court stated that, on their face, the obligations in section 74 and 75 appear to direct territorial authorities to undertake an onerous task – traversing all of the higher order objectives and policies in the hierarchy of superior documents.
However, the Court found that the King Salmon decision establishes an amended, and simpler, approach to assessing plan changes. The principle in King Salmon is that if higher order documents in the statutory hierarchy existed when the plan was prepared, then each of those statutory documents can be assumed to have been particularised in the lower order document. That, in effect, a rebuttable presumption is created that each higher order document has been given effect to or had regard to (depending on what the Act requires). Accordingly, there is no need to refer back to higher order documents when determining a plan change that is sufficiently certain and neither incomplete nor invalid (that is, where none of the three “caveats” espoused in King Salmon exist). On this point Judge Jackson referred to the recent High Court decision in Thumb Point Station Ltd v Auckland Council  NZHC 1035, where Andrews J took a similar approach.
Judge Jackson rejected an argument that a distinction could be drawn between King Salmon, which related to a plan change to a regional coastal plan, and PC45 on the basis that a district plan change is not bound to “give effect to” the operative plan provisions in the way a regional coastal plan change is bound to “give effect to” the NZCPS, but merely “have regard to” them. The Court held that King Salmon applied regardless of the degree of the obligation, as it could be assumed that the obligation had been carried out by or particularised in the lower order plan provisions. It was said to be illogical that documents given effect to do not need to be looked at, but documents that must be had regard to do have to be reconsidered.
The Court concluded that, subject to certain caveats, only the principles, objectives and policies of the district plan being amended need to be considered when determining the outcome of a plan change. It is only when there is uncertainty, incompleteness or illegality in those objectives and policies that the next higher document needs to be considered (and so on up the chain if necessary). However, if, since the district plan became operative, a new higher order document has come into force, that must also be considered under the applicable test. As the Court noted:
While the simplicity of that process may sometimes be more theoretical than real, since in practice plans may be uncertain, incomplete or even partly invalid, it is easier than the exhaustive and repetitive process [set in Eldamos and Long Bay].
While straight-forward plan changes, such as a simple rezoning, may fall within the more streamlined process, there will often be circumstances where the historic, fulsome approach will still be required.
Plan changes are commonly used to enable significant and complicated projects or developments. In such cases it is likely that the operative plan provisions will be incomplete in the sense that they will not “cover the field” for the range of provisions that will be significantly amended or added.
For future plan changes, it will be important to carefully consider all of the relevant objectives and policies of the operative plan rather than to simply introduce a spot zone. If the expression of the operative objectives and policies will weigh against the spot zone, but the superior documents or Part 2 might not, then consideration should be given to also amending the higher order operative provisions or providing an alternative in the plan change in order to allow recourse to other documents.