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Environment Court Decisions January to June 2004

1 Introduction

2 Analysis of Decisions

3 Analysis of Substantive Decisions - Appeals on Resource Consents, Designations and Plans/Policy Statements

4 Conclusions

3 Analysis of Substantive Decisions - Appeals on Resource Consents, Designations and Plans/Policy Statements

The following analysis is of those 48 cases that dealt with substantive issues (as defined in section 2.1.2) and relate to resource consent applications (31 cases), policy statements and plans (13 cases), and designations and requirements (four cases). All these cases were considered by a panel of a judge and one or more commissioners. Excluded from the analysis are cases that dealt with non-substantive issues together with all cases on declarations, enforcement actions and actions under the Historic Places Act.

In particular, the analysis looks at whether the councils' original appealed decisions were upheld or overturned.

3.1 Resource consent decisions

3.1.1 Coastal occupation consents

Three decisions related to coastal occupation consents.

Two of these concerned marine farms. In one decision (C077/04), a council refusal of consent was overturned, although for a much reduced proposal. In the second marine farming decision (W039/04), the outcome was a reduction in the scale of the development as approved by council. The third case (A054/04) involved a territorial authority unsuccessfully appealing a regional consent.

Table 2: Summary of substantive decisions: resource consents for coastal occupation

With the exception of C077/04 (where the consent authority was asked to consider a much larger scale proposal than was put to the court) the original consent authority decisions were upheld wholly or partly.

3.1.2 Discharges

In the two cases analysed, discharge consents (including a discharge to the coastal marine area) were upheld and appeals dismissed.

Table 3: Summary of substantive decisions: resource consents for discharges

3.1.3 Land use consents

Sixteen of the cases analysed dealt with land use consents (refer to Table 4). In three of these cases, the council declined consent and this decision was upheld (A031/04, A061/04 and C037/04).

Table 4: Summary of substantive decisions: resource consents for land use consent

In a further nine of these cases (A020/04, A049/04, A071/04, C008/04, C023/04, C029/04, C039/04, C040/04 and C050/04), the council gave consent and that consent was appealed unsuccessfully. In some cases consent conditions may vary from the original decision, and in the Transwaste case (C029/04) the appeal outcome included significantly more stringent conditions.

In two cases, the council declined consent and the court overturned that decision (C006/04 and C043/04).

In one case, consent was granted by the council and that consent was overturned on appeal (C004/04).

The Retro Holdings case (A038/04) is one of a long-running series where the appellants have sought to reduce reserve contribution on a residential development, where matters of fact and law have been canvassed. While still only an interim decision, it gives a strong indication that the quantum of contribution should be significantly less than assessed by the council.

Of the 16 cases, 11 (69%) largely uphold the original council decision and one (6%) partially upholds the decision.

3.1.4 Subdivision consents

Table 5: Summary of substantive decisions: resource consents for subdivision consent

It is in the area of subdivision that council decisions (particularly decisions to decline consent to subdivide) are most at risk of being overturned. Of the seven cases, four were appeals against council decisions to decline subdivision where the council decision was overturned (C009/04, A028/04, C083/04 and W056/04). Two of these cases were for the same territorial authority - Queenstown Lakes District Council. Another case, with the same local authority (C047/04) was a final decision which overturned an interim decision (which confirmed a council decision to approve a subdivision). The final decision was based on an inability to comply with terms of the interim decision. In two of the cases were the councils' decision (to decline the subdivisions) upheld (A079/04 and W045/04).

3.1.5 Water allocation

Table 6: Summary of substantive decisions: resource consents for water allocation

Two of these three cases (A067/04 and C001/04) involved renewal of water consents relating to hydroelectric generation. While in both cases the original decision (granting consent) were upheld; in the Genesis case, the term of the consent was reduced from 35 to 10 years. The third case, W023/04, upheld a council refusal to allocate more water to a rural user.

3.1.6 Analysis

Overall, 18 of the 31 resource consent appeals (58%) confirmed the council decision, three (9%) partially upheld the council decision and 10 (32%) overturned the council decision.

Councils were most successful with discharge consents (the two appeals analysed confirmed the council decisions) and with land use consents where 12 of the 16 decisions analysed (75%) went the way of the original decision.

Councils were least successful in subdivision applications, in particular where their decision to decline consent was overturned at appeal. Five of the seven appealed subdivision decisions (71%) were overturned. Subdivisions made up 23% of all resource consent cases but 50% of all the decisions that were overturned on appeal.

Figure 5 illustrates the outcomes of resource consent appeals by type of consent.

Figure 5: Resource consents: outcomes of appeals

View figure at full size including text description

3.2 Plan and policy statement decisions

Table 7 summarises the 13 substantive decisions relating to appeals in respect of plans and policy statements, brought under Clause 14 of the First Schedule to the RMA.

Table 7: Summary of substantive decisions: plans and policy statements

Of these 13 decisions, four (31%) were decided largely in favour of the appellants (overturning council decisions). These included two giving quite specific directions to remove restrictions from properties (A059/04 and A060/04) and two giving directions for the modification of proposed plans to provide for particular outcomes (C045/04 and W055/04).

The remaining nine (69%) were largely decided in favour of the councils, with one strikeout (A057/04), and others ranging from property-specific to those dealing with the vires of particular methods of marine farming (W010/04) and the best form of business/residential interface control (W040/04).

3.3 Cases where Maori values were significant issues

Table 8: Summary of substantive decisions: Maori values

These four cases specifically raised Maori cultural and Treaty of Waitangi issues. In three of the four cases iwi were the appellant. Of the cases only one (A067/04) was decided partially in the appellant's favour. A renewal of consent for water use in electricity generation, on the Whanganui River, that the appellants opposed was upheld. The term of consent of reduced from 35 years to 10 years. Case A063/04 concerned a discharge to the coastal marine area for a community wastewater plant, which was opposed on cultural grounds. The appeal was disallowed. In A043/04 the appellant argued that her iwi had a particular relationship with (and sovereignty over) in the land to be designated for a prison. The appellant sought to introduce a prohibition on genetic engineering in the proposed district plan in case A057/04; arguing on spiritual and Treaty grounds. The court struck out the appeal on the grounds that the appeal did not include a section 32 analysis.

3.4 Decisions concerning designations

Table 9: Summary of substantive decisions: designations and requirements

In the case of designations, the requiring authority (rather than the council) is generally the respondent. The first case (A006/04) relates to an application for an order requiring the requiring authority to buy the whole of a site, part of which was designated for a motorway. The applicant succeeded and the order was issued. The remaining three cases are challenges to requirements. In the first two cases the requiring authorities' decisions (to proceed with the requirement) were upheld but in the third (C035/04), the decision was overturned and the requirement withdrawn.