IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2016-404-002330

[2017] NZHC 281

IN THE MATTER

of the Local Government (Auckland Transitional Provisions) Act 2010 and the Resource Management Act 1991

[…]

Introduction

[1] The appellant, Transpower New Zealand Ltd (“Transpower”), appeals various provisions contained in the respondent’s – Auckland Council’s (the “Council’s”) – proposed Auckland Unitary Plan. The challenged provisions relate to the management of subdivision, and the use and development, of land within an area known as the national grid yard, which comprises a corridor of land 24 metres wide – being 12 metres either side of the centreline of national grid lines, and 12 metres from the outer edge of any national grid support structure.

[2] The impugned provisions were incorporated into the proposed Unitary Plan by the Council on 19 August 2016 when it accepted a number of recommendations made to it by the Auckland Unitary Plan Independent Hearings Panel (the “IHP”), and released a “decisions version” of its proposed Unitary Plan.

[3] The appeal by Transpower is brought pursuant to s 158 of the Local Government (Auckland Transitional Provisions) Act 2010.

[4] Section 158(5) of the Act provides that, except as otherwise provided in the section, ss 299(2) and 300 – 307 of the Resource Management Act 1991 apply, with all necessary modifications, to appeals brought under s 158. Inter alia, s 301 of the Resource Management Act applies. It extends a right to appear and be heard on an appeal to any party to the proceedings, or to any person who appeared before the IHP when it heard submissions on the proposed Unitary Plan. Housing New Zealand Corporation, Federated Farmers of NZ Inc, Greater East Tamaki Business Association Inc, Mahunga Drive Business Association Inc, Manukau Harbour Restoration Society, Onehunga Business Association Inc, Rosebank Business Association Inc, Hugh Green Ltd, CDL Land NZ Ltd and Vector Ltd, all appeared before the IHP and all gave notice under s 301 that they wished to appear and be heard on the appeal.

[5] Mr Minhinnick, for Vector Ltd, sought, and was granted, leave to withdraw. He did not however withdraw Vector Ltd’s appearance. Rather he advised that Vector Ltd had nothing to add to the submissions made by other parties opposing the appeal. Similarly, Ms Davidson, for Hugh Green Ltd, advised that her client company supported and adopted the Council’s submissions and the submissions

which had been filed by CDL Land NZ Ltd and Housing New Zealand Corporation. She also sought, and was granted, leave to withdraw. Again she did not withdraw her client’s appearance.

[6] All other s 301 parties appeared and were heard. The various incorporated associations and societies were not legally represented. Mr Hewison appeared on their behalf. All parties consented to Mr Hewison entering an appearance on behalf of those entities and I heard from him.

[…]

Result

[109] For the reasons I have set out, the appeal is allowed.

Relief

[110] As I have already noted, s 158 provides that ss 299(2) and 300-307 of the Resource Management Act apply, with all necessary modifications, to an appeal under s 158. Section 299(2) imports the High Court Rules, except to the extent that they are inconsistent with ss 300-307.

[…]

[113] I do not, at this point, have sufficient information to enable me to make the decision I think should have been made. The Court is not a planning authority and it does not have the materials available to it or the expertise to undertake that task. It is my preliminary view that the impugned provisions should be remitted back to the Council for reconsideration. The Council will be able to consider the extent to which substitute polices/rules are appropriate and what those substitute policies or rules should be. If Transpower’s appeal to the Environment Court succeeds, and the national grid corridor is widened, this could have some bearing on the provisions ultimately adopted.

[114] Nevertheless, all parties considered that it may be that they can themselves agree on an appropriate way forward. I accept that this is a possibility, and I am prepared to give the parties a short period so that they can endeavour to address the consequences of this interim judgment.

[115] I direct that the parties are to file a joint memorandum within 20 working days of the date of the release of this interim judgment, advising whether or not they can resolve their differences, and, if they can, suggesting appropriate alternative provisions. If they cannot do so, then I will remit the matter back to the Council for further consideration.

Costs

[116] Transpower is entitled to costs consequent on this interim judgment. I direct that the parties are to address the issue of costs in their joint memorandum. Transpower is to advise whether or not it seeks costs, and if it does, whether the parties have been able to agree on the same. If there is no agreement, I will make directions for the filing of memoranda in my final judgment.

Full judgment: Transpower New Zealand Ltd v Auckland Council

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