This was an appeal by Auckland Council on questions of law against a decision of the Environment Court in relation to incentive rural subdivision provisions to be included in the Auckland Unitary Plan. DLA Piper acted for the Council in this case.

The Court found that the Environment Court had focussed on policy 11, and that it did not consider policies 13 and 15, which given their directive nature, meant that there was an absolute obligation to avoid adverse effects of in-situ subdivision on the values and characteristics of outstanding natural landscapes and features and areas of outstanding natural character. The Court found that the Environment Court had taken an ‘overall judgment’ approach, an approach rejected in King Salmon (EDS v New Zealand King Salmon Co Ltd [2014] NZSC 38)

The Court also considered that the Environment Court had failed to give effect to the provisions of the RPS in its assessment of lower order district plan and regional plan provisions. The Court considered that the Supreme Court’s observations in King Salmon are equally applicable to documents lower in the planning hierarchy, which seek to implement higher order documents. It found that the focus of the Environment Court’s decision was on the regional policy statement provisions relating to the protection of indigenous biodiversity, and there was no express reference in the analysis to the interrelationship between those provisions, or a resolution of the tensions between them. The Court considered this was a material error given the existence of regional policy statement objectives and policies that pulled in the direction of limiting subdivision in the rural environment.

The Court did not accept that the Environment Court had erred in its interpretation and application of the Policy 11 of the NZCPS by equating enhancement with protection; or that it failed to have sufficient regard to Part 2. The Court held that the Environment Court considered Part 2 when it focused its consideration on section 6(c) (the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna) rather than sections 5(2)(b), 6(a) and 6(b). Although the Environment Court had a focus on section 6(c), it was clear that it had in mind whether there might be breaches of other equally important provisions. The issue was one of weight given to the relevant considerations, a matter for the Environment Court, and which did not give rise to a question of law.

The Court also found that the Environment Court had failed to give sufficient reasons for its conclusions that the Panel’s provisions better met the statutory tests. The Court noted that while reasons of the Court may be abbreviated, and in some cases, reasons will be evident without express reference, the obligation to give reasons is no less required in decisions of the Environment Court than other courts. The decision was set aside and remitted to the Environment Court for reconsideration.