Outline Development Plan Provisions Found to be Ultra Vires
Plan Change 19 (“PC19“) provides for the comprehensive re-zoning of approximately 69 hectares of rural land located within Queenstown’s urban growth boundary known as the Frankton Flats.
It was notified by the Queenstown Lakes District Council (“Council“) in 2007, with 11 appeals lodged with the Environment Court in late 2009. The appeal hearings were split into two stages: higher order matters (objectives, policies, and the structure plan) and lower order matters (rules). The higher order matters have been heard in stages with four interim decisions issued to date.
The Court raised an issue as to whether a land use consent may be granted for an ODP prepared in accordance with PC19, and appointed Mr R Bartlett as Amicus Curiae to assist with the issue.
The merits of the ODP process were not in issue, but the vires of the provisions were questioned by the Court.
To understand the decision, it is important to understand how ODPs are used in PC19. In brief:
- The District Plan defines ODP as a plan which delineates the performance standards and/or activities on the area of land.
- It is a process designed to ensure high quality and comprehensive development where a wide range of activities are accommodated, without causing reverse sensitivity issues.
- It is a prohibited activity to undertake any activity in advance of an ODP being approved.
- Once granted, a number of activities become permitted activities. However, an ODP does not constitute an approval for any controlled, limited discretionary, discretionary or non-complying activities (all of which require separate resource consent).
- It is a non-complying activity to undertake any activity that is not in accordance with the approved ODP.
Outline development plans
The proposed rules at issue in this part of the PC19 proceedings proposed to classify activities as permitted, controlled, limited discretionary, discretionary, non-complying or prohibited, depending on whether:
- there had been a prior grant of consent for another activity (being an ODP land use consent); and
- the activity for which consent is sought is in compliance with the conditions of resource consent for another activity (being an ODP land use consent).
ODP ultra vires
The Court considered the following two issues in reaching the view that the ODP rules as drafted are ultra vires.
Is a land use consent granting an ODP a “consent” within the meaning of ss 9 and 87 of the Act?
An application for consent for an ODP is a limited discretionary activity under the relevant rule. The Court held that the term ODP means a consent granted for a bundle of activities. However, the rule does not actually identify the activities for which resource consent is required and the reader is left to deduce from the matters to which discretion is limited under the rule, and also from the relevant policies, the activities that are the subject of the ODP application. The Court held in paragraph 168 that: “In the absence of a rule specifying activities that are expressly allowed subject to a grant of consent” to the ODP, the relevant rule was ultra vires. The rule would need to list the activities that would be expressly allowed by the grant of consent to the ODP in order to be valid.
Can the status of a permitted activity, or indeed any activity, be determined by a prior grant of consent?
Section 9(1)(a) states that no person may use land in a manner that contravenes a rule in a plan unless the activity is expressly allowed by a resource consent. The Court was interested in what rule would be contravened if land was used in advance of an ODP consent being granted. The Court asked: “… if a resource consent is required for the bundle of activities covered in an ODP, what rule would be contravened if land was used without consent being granted?” (paragraph 173). Using land in advance of an ODP contravenes the prohibited activity rule, while using land in a way that conflicts with the ODP consent contravenes the non-complying activity rule.
A number of uses are permitted, controlled, limited discretionary or discretionary subject to “compliance with… any approved ODP.” The Court then noted: If the words “…compliance with… any approved ODP” in the permitted activity rules are given their natural and ordinary meaning, the rule requires compliance with a grant of resource consent for ODP activities; including all conditions of a consent. When these words are considered within the wider policy context, the purpose of the rule is to require all activities to comply with a prior grant of resource consent. Arising out of the exercise of a discretionary power, a consent (including all of its conditions) is not a standard that is specified in the plan change.
The Court considered in paragraph 178 that:
A second related difficulty with the permitted activity rule is that the classification of the activity proceeds from the exercise of the consent authority’s discretion whether to grant a limited discretionary application for ODP activities. Thus the plan change does not convey in clear and unambiguous terms the use to which the land may be put.
The Court concluded that the status of an activity derives from the RMA and its subsidiary planning instruments, and not from a resource consent. It held that rules which require an activity to comply with a resource consent (which in itself is not a standard, term or condition in the plan) in order to have a permitted, controlled, limited discretionary, or discretionary activity status are ultra vires.
The Court understood that the intention of the ODP rules was to create a deferred zoning where land may not be used for urban development until a specified event occurs, and that “the event that would cause the lifting of the deferment is the obtaining of consent for a bundle of ODP activities.” (paragraph 188). With that intention in mind, the Court offered some thoughts on potential amendments that could achieve this outcome without offending section 77B (now s87A). These included: making it non-complying (rather than prohibited) to develop in advance of an ODP; having a bundle of activities that are clearly authorised by the ODP consent; deleting the link between activity status and compliance with an ODP; and adding assessment criteria ascertaining compliance with any applicable ODP. The merits and vires of these amendments will be the subject of further submissions in due course.
The Court has reiterated that an activity’s status must be clear from the plan, and held that it cannot be linked to compliance with another resource consent. It can, however, be linked to the existence of another resource consent (as the Court was comfortable with non-complying activity status in advance of an ODP being approved). Future applications can also be assessed for compliance with any approved ODP, it is just that the status of the activity cannot be related to compliance. It is also important that any ODP consent authorises a bundle of activities and is not simply a master plan.
The Court made it clear that the vires of the ODP provisions was a matter of statutory interpretation. While section 77B of the pre-2009 RMA was central to the Court’s findings, the current equivalent is section 87A. The Court’s reasoning would apply equally to the wording of section 87A.
As ODPs are a planning tool used throughout the country, this decision potentially has significant implications for a number of plans. Existing planning provisions will need to be reviewed to assess the vires of their approach, and proposed plans or changes may need to be varied to ensure that the approach taken is lawful. The Proposed Auckland Unitary Plan, in particular, is likely to require significant amendment given its liberal use of framework plans (with the added complexity process-wise from the statutory bar on variations).