Case Law

Section 293 can go beyond the scope of an appeal, but not the scope of the proposed plan or change

Limits of the Environment Court's jurisdiction under section 293 of the RMA

Author: Bronwyn Carruthers and Kate Kempthorne, Russell McVeagh
Number: NZHC 3042 [2013]
Court: High Court
Party: Auckland Council v Byerley Park Ltd

Background

The plan change at issue was Plan Change 30 (“PC30“), a variation to Plan Change 14 to the Franklin District Plan.  PC30 purported to make “horse training centres” a permitted activity.  However, as a result of Plan Change 14 horse training centres were already a permitted activity as a consequence of their inclusion within the definition of “farming”.  PC30 therefore made no change to the activity status of horse training centres. 

This factual situation was not known, at least not to Byerley Park Limited (“Byerley“) or the Environment Court, at the time the Environment Court considered the matter.  The appeal, before the Environment Court, related to whether the definition of “horse training centres” should be “clarified” to explicitly refer to on-site staff accommodation.  The Environment Court held that it should.  The Council appealed. 

It was not until the matter came before the High Court that Byerley learnt that PC30 did not change the already permitted activity status of horse training centres.  It was accepted, on the day of the High Court hearing, that PC30 affected neither the definition of horse training centres nor that activity’s status.  Byerley then attempted to defend the Environment Court’s decision on the basis that the Court was entitled to make the amendment pursuant to s293 and that, while the decision did not refer to s293, the Court undertook the necessary analysis and effectively made an order under s293.

Issue

There were two issues:

  • Was the submission, and subsequent appeal, “on” the plan change?
  • Does s293 give the Court the power to grant relief beyond the scope of the plan change?

Submission was not on PC30

At the Council hearing, the planner’s report noted that PC30 did not actually seek to amend the definition, but simply classified horse training centres (as already defined) as permitted activities within the Rural zone.  The Hearing Commissioners agreed with the Council Planner and concluded that “the definitions of these activities are not amended by PC30; therefore it is considered outside the scope of the Plan Change to amend these as sought by the submitter”.[1]   

The Environment Court proceeded on the (mistaken) basis that PC30 made horse training centres a permitted activity.  In determining to amend the definition to provide for staff accommodation, the Environment Court held that Byerley’s submission was “on” PC30 as it related to the extent to which the permitted activity could occur on the site.[2]    

On appeal, the Council submitted that the Environment Court had no jurisdiction to hear Byerley’s appeal because it was not “on” PC30.  The High Court agreed with the Council’s submission and held that Byerley’s submission was not on PC30 because the definition of horse training centre was not a provision that was included, or was proposed to be included, by PC30.  For these reasons, the High Court considered that Byerley’s submission did not meet the necessary requirements under clause 14 of Schedule 1 to the RMA to bring an appeal and that the Environment Court erred in determining that it had jurisdiction to hear the appeal.   

Environment Court’s jurisdiction under section 293 of the RMA

The Council submitted that s293 did not give the Environment Court the power to grant relief that was beyond the scope of PC30 or to direct a change to the operative District Plan.

In response, Byerley argued that s293 conferred jurisdiction even if the appeal before the Court did not relate to a submission “on” a plan change.  Byerley also argued that provided that the amendment or clarification sought is relevant to the subject matter before the Court, the Court could direct a local authority under s293 to make changes to operative provisions that were not the subject of the plan change or variation. 

·        The High Court agreed with the Council’s submissions.  While s293 provides the Environment Court with a statutory power to direct a local authority to prepare changes to a proposed policy statement or plan to address any matters identified by the Court – it is not an unfettered power.   

Brewer J took the view that the overall scheme of the RMA does not envisage the Environment Court being able to make changes to district plans which are outside the scope of publicly notified plan changes as that would undermine the right of the public to be heard.  In addition, case law[3] had established that while s293 could be used by the Court to expand the nature and extent of relief beyond the scope of the appeal, there must be a nexus between the appeal and the relief granted.  Brewer J concluded that s293 did not give the Environment Court the ability to change part of an operative plan which is not the subject of a plan change, or affected by a plan change.  

Brewer J also rejected Byerley’s contention that s293 applied to both proposed plans and operative plans.  The High Court considered that this interpretation skewed the plain reading of the provision which referred to “proposed policy statements and plans” and would be at odds with s292 and other uses of the phrase within the RMA. 

Conclusion

Consequently, the High Court allowed the Council’s appeal and quashed the Environment Court’s decision.  The High Court also determined that the case would not be remitted back to the Environment Court for reconsideration.  

 

 


[1]    Quoted at [2013] NZHC 3042 at [4].

[2]   [2013] NZEnvC 90 at [25].  The Environment Court did not consider that any of the evidence established that Byerley’s operations fell under the definition of ‘equestrian centre’ so it declined to make amendments to that definition.

[3]     Hamilton City Council v Historic Places Trust [2005] NZRMA 145.