What weight should Council give a rule in the PDP?
What weight should Council give a rule in the PDP?
Thursday 23 April, 2020
The High Court in Knowles v Queenstown Lakes District Council recently considered the extent to which councils should take a Proposed District Plan into account when granting resource consent applications.[1]
Background
The applicants owned several residential properties on Queenstown Hill and had also purchased a vacant property in front of them in order to preserve their views over Queenstown township. The respondent owned properties which sat below the applicants’ houses. All properties are zoned High-Density Residential “HDR” under the Queenstown Lakes District Council Operative District Plan “ODP”.
In 2015, QLDC notified its Proposed District Plan “PDP” (stage 1). The properties remained HDR zone under the PDP. Various parties lodged submissions seeking that the area be zoned Low-Density Suburban Residential zoning “LDSR”. No submissions were lodged within the required period seeking to retain HDR zoning for those properties. In May 2018, Commissioners appointed by QLDC recommended that area be rezoned from HDR to LDSR. QLDC gave effect to that recommendation in a decisions version of the PDP which was publicly notified. CSF lodged a notice of appeal to the Environment Court against the rezoning decision, but the appeal had the potential to be struck out because CSF had not submitted on the original rezoning decision in the PDP.
In 2017, prior to the decision, CSF applied for a land use consent to construct 24 residential units to establish visitor accommodation. CFS required a resource consent for its proposed development under the ODP. In October 2018, QLDC processed the application on a non-notified basis and the consent was granted subject to conditions. The applicants challenged QLDC’s decision not to notify the resource consent application on the basis that it was fundamentally unjust to deny them the benefits they had obtained through the rezoning decision from HDR to LDSR. They argued that CSF’s appeal was invalid and the rules in the PDP should have been treated as operative as they were beyond challenge.
QLDC submitted that all appeals had to be resolved before a rule in a proposed plan could be treated as operative, and minimal weight should be attached to the PDP while there was a re-zoning appeal active.
The Court held that an appeal was valid until the Environment Court struck it out. However, QLDC should have undertaken a weighting exercise between the provisions of the ODP and the PDP.
Proper weight to be placed on a plan when there is an ODP and the PDP
The Court held that the weight a council should attach to the PDP was a factual enquiry and depended on the extent to which it had proceeded through the objection and appeal process. On these facts, the Court considered that QLDC was required to give considerable weight to the PDP as there had already been a full hearing on the re-zoning submissions.
Although QLDC could not itself determine that CSF’s appeal was invalid, the Court held it could have made an assessment as to the low likelihood of CSF succeeding in its appeal. Accordingly, the High Court held that QLDC’s decision to grant the consent on a non-notified basis was invalid and remitted it back to QLDC for reconsideration.
Conclusion
When Council is in a plan change phase, it must consider the extent to which the PDP has proceeded through the objection and appeal process and consider whether there are any valid appeals. Council may assess the likelihood of an appeal being struck out for invalidity and the likelihood of a PDP becoming operative.
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