Environmental / Resource Management

Changes to proposed plans beyond the scope of appeals

In the course of resolving appeals on the provisions of a proposed plan, it is sometimes necessary to seek the Court's approval of changes to the plan that are beyond the scope of appeals – for instance, to facilitate the 'in scope' aspects of settlements reached with the parties.

Section 293 of the Resource Management Act 1991 provides a discretionary power to the Environment Court – to be exercised cautiously and sparingly – to direct that such changes be made, where there is a live plan appeal on a proposed plan.  A recent decision, Kahuranaki Station Ltd and Greenwood v Hastings District Council, provides a good illustration of the Court applying section 293 in a pragmatic way.

The facts

The appellants had appealed a decision on the proposed Hastings District Plan, asking for the Rural Character Landscape Area (RCLA) notation to be removed from their property.  Agreement was reached on the deletion of the RCLA from the appellants' property.  A consequence of doing so was that other land owned by the Fergusons would be left "orphaned" from the remainder of the RCLA.

The issue

A jurisdictional issue arose, as the appeal had not sought the removal of the RCLA from the Fergusons' land – only from the appellants' land.  The Council applied to the Court to remove the notation from the Fergusons' property under section 293.

What the Court decided

The Court decided that the Council did not need to consult with any other parties, since:

  • a submission had sought the removal of the RCLA from the Fergusons' land, and no other person had made a further submission on that submission
  • the Fergusons supported the application
  • there was therefore unlikely to be any person affected by or interested in the proposal.

It also accepted the Council's reasoning for deleting the RCLA from the Fergusons' land, namely:

  • the land would be left unconnected / orphaned from the balance of the RCLA land
  • leaving the notation on the land would not achieve the purpose of the RCLA provisions of recognising the values of "broad areas".

Comment

As noted, the decision provides a good example of the Environment Court considering proposed changes under section 293 in a pragmatic way, where a practical issue arose requiring amendments to the proposed plan that were outside the scope of an appeal.  It dealt with the request by the Council for changes 'on the papers' (i.e. without the need for a formal hearing) and without the need for public notification. 

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