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Operative plans and proposed plans: what to do when there is a significant policy shift?

Operative plans and proposed plans: what to do when there is a significant policy shift?

Operative plans and proposed plans: what to do when there is a significant policy shift?

Wednesday 30 March, 2022

Considering both operative and proposed planning provisions when making a decision on a resource consent application is rarely a straight-forward exercise. This can be more difficult when there has been a significant policy shift following the notification of the proposed plan, which in turn requires weighing the different provisions. This is especially complex when the application invokes the non-complying activity status gateway test under s104D. However, consent authorities should take note that “having regard” to proposed plans does not necessarily equate to “giving effect” to those proposed instruments, even when there is an inherent conflict with a proposed policy.

The High Court considered this very issue in a recent appeal involving a two-lot subdivision and cancellation of a consent notice for a property in the foothills of Slope Hill, Queenstown. Here, the appellants (and neighbours) appealed an interim decision of the Environment Court, which considered the community scale issues of the overall proposal and held the requirements of the Resource Management Act were satisfied. Rather than await the final hearing and determination of the Environment Court with regards to the effects of the proposal specifically on them, the neighbours appealed on three grounds of law. These grounds were that the Environment Court erred by:

  1. failing to recognise a policy of the proposed plan as an absolute or “bottom line”;
  2. failing to give adequate consideration to numerous other objectives and policies under both the operative ad proposed plans, and
  3. failing to apply the relevant law when considering the proposed cancellation of the consent notice.

There had been a significant policy shift in the proposed zoning of the site from its general rural status to a special precinct with stringent restrictions on minimum lot sizes. The underlying objective of the proposed policy was to maintain or enhance landscape character and visual amenity values. As the lot size in the proposed subdivision was already much smaller than the proposed minimum lot size rule, the proposal would inherently conflict with the proposed policy. As a breach of the proposed minimum lot size rule was a non-complying activity under the proposed plan, the Environment Court assessed the proposal under the respective gateway tests of s104D(1)(a) (regarding minor effects), or alternatively s104D(1)(b) (regarding relevant operative and proposed planning provisions).

The gateway test is not conjunctive; a proposal can be assessed against both tests and if one is met, then the consent authority or Court can proceed to the substantive s104 assessment. Despite the proposal appearing highly contrary to one proposed policy, its effects were minor and its remaining elements either did not conflict with the other relevant policies (proposed and operative); in fact, the proposal went so far to even assist achieving many of them. There was no error.

The appellants failed to make out their remaining two grounds of appeal. It was clear the Environment Court did not overlook any of the operative or proposed provisions which the experts identified as significant and relevant. Also, the Environment Court had confined the interim decision to community scale issues, then appropriately considered and had regard to those provisions relative to community scale effects. It had not had opportunity to consider the neighbour-specific effects yet. Finally, the Environment Court had also deferred the determination of the application to cancel the consent notice until the final hearing stage. Like the High Court’s finding on the second ground, the Environment Court still needed to hear, consider and determine this application alongside the neighbour-specific issues.

The appeal was dismissed and the appellants were ordered to pay both the consent authority’s and the applicant’s respective costs.


How should a consent authority apply relevant planning provisions after a significant policy shift?

The answer to this question will of course depend on the facts of the proposal and the operative and proposed provisions which apply to its effects. If the proposal’s effects trigger the non-complying activity threshold tests under s104D and it satisfies one of those tests, a consent authority can then proceed to the s104 substantive assessment. It must then appropriately give significant weight to the relevant provisions, which means closely scrutinizing the proposal’s effects against these. This will involve delving into all relevant provisions, addressing the significant policy shift then ultimately determining the weight to be awarded to each in light of the underlying objectives.


Talk to us if you have any questions about this article and how proposed changes in policy should be assessed in resource consent applications.

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