The Court’s jurisdiction under section 293
Federated Farmers of New Zealand (Inc) Mackenzie Branch (“Federated Farmers“) appealed three interim decisions of the Environment Court decisions in respect of Plan Change 13 (“PC13“) to the Mackenzie District Plan (“Plan“).
PC13 sought to control the subdivision, use and development of land within the Mackenzie Basin. Its primary focus was the scale of lifestyle development, particularly the growth of retirement and holiday homes. However, and significantly, the Issue statement in PC13 described a concern with additional irrigation “greening” the Basin and changing land use patterns.
The Commissioners appointed by the Council to hear submissions decided that PC13 did not address land use (other than subdivision and building) so that, while greening of the Basin may be undesirable in landscape terms, the concern expressed in the Issue statement should be deleted.
In its First Interim decision, the Environment Court expressed real concern that, as an outstanding natural landscape, the Basin was not adequately protected from inappropriate uses. The Court noted that, as the subject of PC13 was the landscape of the McKenzie Basin, all landscape matters relate to or are on the plan change. The Court indicated it would use its powers under section 293.
The Sixth Interim decision concerns the Court’s jurisdiction to make the orders it proposed in the First Interim decision. In the Sixth Interim decision the Environment Court:
- Held that the Commissioners’ decision to amend the Issues statement was ultra vires, as once an issue has been notified it cannot be added to or deleted from a plan change.
- Cancelled that decision and reinstated the greening statement.
The Seventh Interim decision considered the jurisdiction and the merits of the proposed orders under section 293. The Court found that the provisions were within the scope of the appeals before it, and that there was a sufficient nexus between those appeals and PC13 as notified.
In the Eight Interim decision, the Environment Court substituted its provisions for those originally notified in PC13.
High Court Appeal
Federated Farmers appealed the Sixth, Seventh and Eighth Interim decisions, advancing 10 alleged errors of law.
Justice Gendall identified four discrete interpretative issues:
- Can an issue, once notified, be deleted from a plan change?
- To what extent is the Environment Court required to have regard to the decision of the Council / the Commissioners pursuant to section 290A?
- What is the Environment Court’s jurisdiction pursuant to section 293 and what is the scope of its statutory power under section 293?
- Can the Environment Court, in reliance on section 290, cancel a decision of the Council / the Commissioners in advance of following the process contemplated by section 293?
The crux of the appeal involved determining the jurisdiction of the Environment Court under section 293, and this is the subject of the discussion below.
Scope of the Court’s power under s293
The question of the Environment Court’s jurisdiction pursuant to section 293 was the central issue in this appeal.
Gendall J started with the fundamental purpose of s 293, that being to give the Environment Court power to direct changes to a proposed plan (or plan change), which are not otherwise within the Court’s jurisdiction due to the scope of the appeal before it. But the power, it was noted, is not unlimited and the Courts have consistently held that section 293 is to be exercised cautiously and sparingly with the discretion exercised in a manner consistent with the Environment Court’s role as a judicial body with appellate jurisdiction given to it by statute.
Gendall J accepted the starting point to statutory interpretation is always the plain words, cross-checked against the purpose of the Act.
Subsections 293(1) and (2) appear to confer upon the Environment Court a power to assume a quite significant planning role, which is qualified only by the fact that the matters directed must be “identified by the Court”. The question for Gendall J was whether that broad prima facie jurisdiction is curtailed by either or both of (a) the subject of the appeals to the Environment Court; or (b) the subject of the Plan Change.
Gendall J mused:
As a matter of logic, if a district plan is not achieving the purpose of its existence, then it would be absurd to let that plan (or plan change) stand undisturbed by the limited planning role explicitly conferred upon the Environment Court. However, I also accept that the plan change regime created by the RMA is such that it was originally envisaged that substantive decisions relation to planning documents are to be subject to the regimented processes constituted by the RMA, not amenable to alteration at the whim of the Environment Court for the present time sitting.
It is trite law that the Environment Court’s role is a judicial one, and does not ordinarily intrude into the realm of planning, a domain generally the sole occupation of the local authority. This is important as it highlights the benefit of having matters of wide ranging import subject to the regimented and rigorous processes constituted by the RMA, being attended to by the ‘at source’ authority, rather than a Court divorced from the minutiae of public sentiment and consciousness….
However, as I have noted above, there is a clear tension between these judicially enunciated principles concerning the dichotomy between appellate judicial functions and planning functions, and the plain fact that Parliament has vested in the Environment Court, as an appellate body, what appears at first blush to be broad planning powers. What therefore falls for determination is how these two concepts come together to ensure the interpretation afforded to s293 is congruent with clear judicial comment and an equally clear statutory provision enacted by Parliament.
In response to a submission that, as with a submitter who is unable to lodge a submission that is not “on” a plan change, the Court cannot invoke s293 to address an issue that is not “live”, Gendall J noted:
However, that does ignore the prima facie position that the raison d’etre of s293 is, to some extent, to alter the initial reference by directing that changes be made. Implicit in this concept is the possibility that an issue that was once not ‘live’, could so become as a result of the jurisdiction.
I would be willing to accept as a proposition of general, but not universal, application that the s293 jurisdiction should ordinarily be invoked only to address live issues, and not to create them.
Gendall J then put that issue to one side, accepting that the issue of greening (and thereby pastoral intensification) was “on” PC13.
Because there was no dispute between the parties as to the correct approach to be taken to section 293, Gendall J was able to record the key principles succinctly. This summary concludes that while the nature and extent of relief is expanded beyond the scope of the appeal, it must still be:
- referable to, arise from, or a foreseeable consequence of the original appeal.
- within the scope of the plan change,
Gendall J held it was open to the Environment Court to use section 293 in the way that it did. However, he did not agree with the test used by the Environment Court, and substituted his own, confirming that matters sought to be addressed with section 293 must, ordinarily:
- be ‘on’ the plan change;
- be within the scope of the submissions to the local authority (and therefore form part of its decision);
- be within the scope of the appeals and the relief sought (Briggs v Christchurch City Council EnvC Christchurch C045/08, 24 April 2008 at ). In determining this, the Court will take a broad and pragmatic approach, “unbridled by legal nicety.” However, any ‘matter’ identified must be within the general tenor of the appeal.
He considered that in some circumstances there may be narrow exceptions to this general approach, such as:
- an inadequate s 32 report;
- a failure to comply with section 74 (including preparation in accordance with the provisions of Part 2); or
- a more than minor deviation from one of the matters referred to in section 293(3), whether or not raised in the appeal.
The rationale was that any exception would normally be a condition precedent to validity of a plan change. It would be inappropriate to hold that the Environment Court does not have jurisdiction to redress a failure at planning level to comply with a mandatory obligation.
Gendall J concluded that this case falls within one of these exceptions for the following reasons:
- there has been a positive and unchallenged final decision (in the Environment Court) that the Mackenzie Basin is an outstanding natural landscape;
- the purpose of PC13 was to protect the zone from inappropriate subdivision, use and development. Broad protection of the landscape was squarely at the fore in PC13 ;
- the Council had failed to specifically implement the broad aim of PC13. The specific policies and objectives crafted to meet the purpose of protecting the Mackenzie Basin were inadequate as they sought to deal principally with housing and other related development;
- once the landscape had been recognised as an ONL, the Environment Court was required by the mandatory direction in s 6 RMA to recognise and provide for its protection;
- the notices of appeal were sufficiently broad to confer upon the Environment Court jurisdiction to consider matters in the round, including the deleted Issue statement.
While His Honour agreed it was appropriate to use section 293, Gendall J was concerned with the way in which it had been deployed and held the Environment Court stepped beyond its role by actually drafting the proposed changes. As such, Gendall J referred the matter back to the Environment Court with various directions including:
- the Environment Court should recommend to the Council to consider specific policies and objectives for addressing the broad prohibition on inappropriate subdivision, use and development contained in both PC13 and s 6(b) RMA; and
- a new s 32 report is necessary to enable full consideration of when the “most appropriate” threshold will be met – this is particularly so in light of the finding that the Mackenzie Basin is an outstanding natural landscape.
Gendall J clearly records the fundamental purpose of s293 as conferring a power that is not otherwise within the Court’s jurisdiction due to the scope of the appeal before it, and later notes its raison d’etre is to alter the appeal by directing that other changes (eg those beyond scope) be made. Unfortunately, he then concluded that:
I have found that the orthodox test is that the matter sought to be addressed must be ‘on’ the plan change, within the scope of submissions to the Council, and within the scope of the appeals to the Environment Court and the relief there sought. However, this orthodox position is not without exception. (emphasis added).
There is no need for the Court to rely on section 293 when matters are within the scope of appeals. In those circumstances the Court simply allows the appeals (either in whole or part) and the provisions are amended with no further formality. In light of this, Gendall J’s reference to “within the scope of the appeals” likely means that while the relief itself is not within the scope of the appeals the matter at issue must be referable to, arising from, or a foreseeable consequence of those appeals.