The streamlined plan development process under the Local Government Auckland Transitional Provisions Act 2010 (LGATPA) made a number of changes to the usual Resource Management Act 1991 (RMA) plan review processes. These included the power for the Independent Hearing Panel (IHP) to make recommendations outside the scope of submissions made on the Auckland Unitary Plan (AUP), although such recommendations had to be identified as they affected appeal rights.
In Albany North Landowners v Auckland Council1, 20 proceedings, which were a mix of appeals and applications for judicial review were heard by the High Court. The proceedings challenged whether a number of recommendations made by the IHP were within the scope of submissions received. The challenges potentially affected about 29,000 properties originally zoned single house and mixed housing suburban zone in the notified AUP which the IHP recommended to be `upzoned' (i.e. zoned for greater intensification). Several site specific recommendations were also challenged.
The High Court was asked to address seven agreed questions of law. These included:
- Whether the IHP interpreted its statutory duties lawfully when deciding whether its recommendations were within the scope of submissions.
- Whether the IHP had a duty to identify when it was exercising its powers to make consequential alterations arising from submissions.
- To what extent were the principles regarding the question of scope which was established under the RMA relevant when addressing scope under the LGATPA.
The Court addressed the scope issue by focussing on residential zoning in a number of test cases.
Auckland Council (Council) contended a generous approach to `scope' was needed, given the scale of the planning exercise. The Council argued that the IHP had power to recommend changes that were not expressly sought in a submission, provided the changes reasonably and fairly arose from the submissions and achieved the purposes of the RMA. The Council's position was that the IHP had adopted a robust methodology in accordance with established principles and the express requirements of the Act.
The appellants and other parties arguing that recommendations were out of scope took the position that the approach to scope was more demanding under the LGATPA than under the RMA. They suggested relief had to be necessary and arising from submissions based on what a reasonable person would understand from the relief which had been sought. In addition, there was an increased requirement to ensure that the public had a reasonable opportunity to submit, so the IHP had to be satisfied an affected party was on notice of a potential change to the AUP.
High Court's findings
The accepted test for scope laid down by the High Court in Countdown Properties (Northland) Limited v Dunedin City Council2 is that a Council must consider whether any amendment made to a proposed plan or plan change as notified goes beyond what is `reasonably and fairly raised' in submissions on the proposed plan or plan change. The assessment of whether any amendment was reasonable and fairly raised should be approached in a realistic workable fashion rather than from the perspective of legal nicety.
The IHP took the approach that where a matter could reasonably have been foreseen as a `direct or otherwise logical consequence' of a submission point, it was found to be within scope. The High Court was satisfied that any differences between the IHP's approach and the Countdown test were largely semantic, rather than material.
The Court accepted that, in the context of a whole of plan review, the scope for a submission being `on' the AUP was very wide. As the AUP process encompassed the entire region and purported to affect the framework for resource management for the next 30 years, it effectively addressed every aspect of the status quo in planning terms. The Court was satisfied that the IHP's residential zoning recommendations were the reasonably foreseeable logical consequence of submissions on the Plan. This meant the recommendations were within scope.
The thresholds for oversight of specialist tribunals are well settled in the RMA jurisdiction. The High Court accepted it should be slow to interfere with decisions of the Environment Court within its specialist area and considered it appropriate that the same deference should be afforded to the IHP having regard to the scale, complexity and policy content of its task.
However, the High Court also accepted that natural justice considerations meant that close scrutiny was required to ensure both legality and substantive fairness to participants. The key question for the Court is whether an affected party had been deprived of the right to be heard.
The Court dismissed all but two cases, including those challenging the residential `upzoning'. The two proceedings which the Court upheld both involved zoning recommendations which reduced development potential. In both cases, the fairness of the process followed was in issue. The Court accepted that greater specificity is required for submissions which could adversely affect the development capacity of a site. It held that the submissions in question did not fairly put affected parties on notice about the potential effects on their properties.
The purpose of resolving the test cases was to provide affected appellants with guidance on the issue of scope. It will now be for each appellant to decide whether and to what extent they wish to pursue their appeals in light of the High Court decision.