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High Court affirms Auckland unitary plan's independent panel assessments

Monday 13th February 2017

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The independent hearings panel that provided the foundation of Auckland's unitary plan did not operate outside its remit, the High Court has found in a decision that gives guidance for further appeals to the Environment Court. 

In the High Court in Auckland, Justice Christian Whata today ruled against a group of appeals that claimed the panel misinterpreted its statutory duties when it included capacity for more than 400,000 new residential homes to meet the region’s projected population growth over the next 30 years in the new Auckland unitary plan.

"In accordance with relevant statutory obligations, the IHP (independent hearings panel) correctly adopted a multi-layered approach to assessing scope, having regard to numerous considerations, including context and scale (a 30 year plan review for the entire Auckland region), preceding statutory instruments (including the Auckland Plan), the Section 32 (of the Resource Management Act) reportage, the PAUP (proposed Auckland unitary plan), the full gamut of submissions, the participatory scheme of the RMA and Part 4, the statutory requirement to achieve integrated management and case law as it relates to scope," Justice Whata said.

The plan attracted 106 appeals after it was passed and notified by the council last August, of which 39 were filed to the High Court. Justice Whata resolved to hold a test case or cases to help resolve the scope and jurisdiction of the hearings panel and to provide a framework for sorting out individual claims. 

Justice Whata ruled on 10 test cases, of which he found two where the independent hearings panel didn't apply the legal framework correctly. He said he considered appeals concerning residential upzoning out of scope. 

Of the two cases where he thought the appeals should be upheld, one needed "greater specificity" to provide fair and sufficient notice and the other was "misled into assuming" its site was never at risk of rezoning. Justice Whata said both cases should be referred to the Environment Court. 

"The purpose of resolving the test cases was to provide affected appellants with guidance on the issue of scope," the judge said. "It will be for them to decide whether and to what extent they wish to pursue their appeals in light of my decision."

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