i BUDDLE FIND LAY i ) ; Bill Bayfield Chief Executive Officer Environment Canterbury PO Box 345 Christchurch 8015

Transcription

1 i ) ; i ' I I _.;. BUDDLE FIND LAY i N E.\11/ ZEAi. MW 1. A\/V YERS Bill Bayfield Chief Executive Officer Environment Canterbury PO Box 345 Christchurch 8015 CHRISTCHURCH I/ 83 Vlctori ~-PO A~X 322. Chri~tr.oorch s, 40, New Ze l nd. J;XWX1113!,j/ P fi //

2 B U DD L E FINDLAY NEW i'fai/\nd LAWY. RS 21 October 2016 To Bill Bayfield Chief Executive Officer Environment Canterbury PO Box 345 Christchurch 8015 From Alanya Limmer Cyrus Campbell By Delivery Dear Sir Canterbury Aggregate Producers Group v Canterbury Regional Council We enclose by way of service our notice of appeal in relation to the above matter Please contact us if you have any queries. Yours faithfully Alanya Limmer Partner Direct: Mobile: alanya.limmer@buddlefindlay.com AUCKLAND// PwC Tower. 188 Q11ay Street, PO Box Auckland 1140, New Zealand. DX CP24024 II P SS II F ~ 205.~ WELLINGTON //State Insurance Tower., Willisstre<?t, PO Box 2694, Wellington 6140, Newze:tland, DX SP20201 // P II F CHRISTCHURCH// 83 Victoria Street. PO 80)( 3:22. Christchurch 8140, New Zealand, DX wx,1135 /IP If F [,9 BF\ ',1 I Page 1 "~ w.buddlefindlay.t'om

3 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV Under the In the matter Between Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 ("the Act") and the Resource Management Act 1991 of an appeal under section 66 of the Act and section 300 of the Resource Management Act 1991 CANTERBURY AGGREGATE PRODUCERS GROUP a group of aggregate production and quarry operators from within the Canterbury Region Appellant And CANTERBURY REGIONAL COUNCIL a local authority constituted under the Local Authority Government Act 2002 having its principal office at 200 Tuam Street, Christchurch Respondent ,-... NOTICE OF APPEAL BY CANTERBURY AGGREGATE PRODUCERS GROUP UNDER SECTION 66 OF THE ENVIRONMENT CANTERBURY (TEMPORARY COMMISSIONERS AND IMPROVED WATER MANAGEMENT) ACT 2010 AND SECTION 300 OF THE RESOURCE MANAGEMENT ACT 1991 Dated 21 October " BUDDLE FINDLAY Barristers and Solicitors Christchurch Solicitor Acting: Alanya Limmer alanya.limmer@buddlefindlay.com Tel Fax PO Box 322 DX WX11135 Christchurch 8140

4 NOTICE OF APPEAL BY CANTERBURY AGGREGATE PRODUCERS GROUP UNDER SECTION 66 OF THE ENVIRONMENT CANTERBURY (TEMPORARY COMMISSIONERS AND IMPROVED WATER MANAGEMENT) ACT 2010 AND SECTION 300 OF THE RESOURCE MANAGEMENT ACT 1991 TO: AND TO: AND TO: The Registrar of the High Court, Christchurch The Canterbury Regional Council Those parties who filed submissions and further submissions on the matter (to be advised) THIS DOCUMENT NOTIFIES YOU that the Appellant, Canterbury Aggregate Producers Group, hereby appeals to the High Court against the following decisions of the Canterbury Regional Council ("the Respondent"} contained in the Report and Recommendations of the Hearing Commissioners on the Proposed Canterbury Air Regional Plan which were publically notified on 1 October 2016 ("Decision") UPON THE GROUNDS that the Respondent made errors of law in parts of the Decision. 1. Parts of the Decision Appealed 1.1 The Appellant appeals against parts of the Decision in relation to the Proposed Canterbury Air Regional Plan {"Plan"). In particular, the following parts of the Decision are appealed: The definition of "sensitive activity"; Rules 7.36, 7.37 and 7.49 insofar as their conditions require certain separation distances from a "sensitive activity". 2. Standing to appeal 2.1 The Appellant did not submit on the definition of "sensitive activity" but did submit on Rules 7.37, 7.38 and 7.55 ("Rules") of the Plan as notified. These Rules are now numbered 7.36, 7.37 and 7.49 respectively as a consequence of the Decision. Each of the Rules has conditions relating to the distance of a discharging activity from a "sensitive activity". Failure to meet any one of the conditions impacts upon the activity status of the proposed activity. 2.2 The definition directly affects application of the Rules. The Appellant was concerned with the application of the Rules as notified. Amendment of the Sf\S63Sa912\4 Page 1

5 definition and, consequently, the effect of the Rules is therefore a matter raised in the submission of the Appellant. 3. Errors of Law 3.1 The Appellant alleges the Respondent made the following errors of law in deciding the definition of "sensitive activity" and imposing conditions dependent on the definition of "sensitive activity" in the Rules: It made a decision which lacked jurisdiction because it was outside the scope of submissions on the Plan and therefore the decisions which the Respondent had jurisdiction to make. As a result there was a breach of natural justice in that the Appellant was deprived of an opportunity to be heard on the decided definition. It made a decision in relation to which there was no evidence or which, on the evidence, it could not reasonably have made. It decided upon a definition of "sensitive activity" which renders the Rules (along with others in the Plan) void for uncertainty. 4. Questions of Law 4.1 The Appellant alleges that the above errors of law give rise to the following questions of law: {a) Did the Respondent have jurisdiction to change the definition of "sensitive activity" in the way it has? In the alternative, did the Respondent, in deciding on the definition of "sensitive activity", make a decision that was not open to it on the evidence? In the alternative, does the definition of "sensitive activity" and associated rules meet the legal test of being certain, or are they void for uncertainty? 5. Grounds of Appeal 5.1 The Plan as notified provided a definition of "sensitive activity" as follows: "Sensitive Activity means an activity undertaken in: the area within the notional boundary of an occupied dwelling; or BF\563S8912\4 Page 2

6 (b} (d) a residential area or zone; or a public amenity area, including those parts of any building and associated outdoor areas normally available for use by the general public, excluding any areas used for services or access areas; or a place of public assembly for recreation, education, worship, culture or deliberation purposes." 5.2 The Decision changed the definition of "sensitive activity" to: "Sensitive activity means an activity undertaken at a place or in an area where a person or persons are present and have a reasonable expectation that their enjoyment of the amenity values of that place or area will not be materially impaired by the effects of a discharge of odour, dust or smoke; and may include places where people gather for recreation, education, worship, culture or similar purposes, or where they reside, including outdoor living areas." 5.3 Only eight original submissions were filed seeking amendments to the definition. No submissions on the Plan expressly sought the definition of "sensitive activity" included in the Decision. Consequently, the Appellant did not oppose any of the submissions seeking amendment to the definition. 5.4 Further, the degree and extent of change was not reasonably and fairly raised in any submissions filed on the Plan. From reviewing the Summary of Decisions Requested and the Submissions filed the Appellant could not have reasonably apprehended such a definition to emerge from the Decision. 5.5 As a result. the Appellant says that: The Respondent lacked jurisdiction to change the definition of "sensitive activity" as set out the Decision; and There was a breach of natural justice in that the Appellant was deprived of the opportunity to file submissions and present argument as to the merits of the amended definition and Rules. 5.6 Furthermore, no submitters produced evidence to support the definition as decided. The Oil Companies 1 (which submission was purportedly relied upon 1 Z Energy, BP Oil and Mobil Oil. BF\563SS912\4 Pa!!e3

7 by the Decision 2 ) called expert planning evidence 3 supporting the following approach: "Sensitive Activities: Activities sensitive to air discharges: Includes: Dwellings Accommodation facilities Facilities for education, community, worship, entertainment and healthcare and other care purposes Marae Complex Non target crops Sensitive Area: means: the area within the notional boundary of an occupied dwelling; or a residential area or zone as defined in a district plan; or a public amenity area, including those parts of any building and associated outdoor areas normally available for use by the general public, excluding any areas used for services or access areas." 5. 7 The above approach was evaluated in the evidence 4 but there was no consideration of the merits, appropriateness or costs and benefits of the alternate wording included in the Decision. The decided definition is markedly different from that supported by evidence. 5.8 Finally, the Appellant says the Decision errs in law by approving a definition and, consequently, rules that fail to meet the legal test of being certain. 5.9 In particular: The definition of "sensitive activity" is not clear or precise. As a result, those who administer the Plan or are affected by it are unable to identify with certainty whether a given place or area is covered by the definition or not. The phrase "sensitive activity" is included in numerous rules in the Plan, including those subject of the Appellant's original submission. For example, Rule 7.36 (was 7.37) states: 2 Report and Recommendations of the Hearings Commissioners. Appendix B (Proposed Canterbury Air Regional Plan Inclusive of Recommended Amendments) at footnote 25. a Statement of Evidence of David Le Marquand for the Oil Companies (18 September 2015). ~ Statement of Evidence of David Le Marquand for the Oil Companies (18 September 2015) at paragraphs 5.11 to SF\ Page4

8 "The discharge of contaminants into air from the handling of bulk solid materials is a permitted activity provided the following conditions are met: 1A 6 The discharge does not occur within 200m of a sensitive activity, wahi tapu, wahi taonga or site place of significance to Ngai Tahu that is identified in an lwi Management Plan; and 7 Notwithstanding condition 6, where the discharge is from production blasting at a quarry site the discharge does not occur within 500m of a sensitive activity wahi tapu, wahi taonga or a place of significance to Ngai Tahu that is identified in an lwi Management Plan." Other rules in the Plan referring to the definition of "sensitive activity" are Rules 7.14, 7.27, 7.37, 7.40, 7.42, 7.43, 7.49, 7.50, 7.52, 7.55, 7.56, 7.66, 7.67, 7.68, 7.69, 7.70, 7.71, 7. 72, 7.74, 7.75 and ( d) As the above rules refer to the definition of "sensitive activity" the rules themselves are not clear or precise either. With respect to Rule 7.36 {for example) this means those who administer the Plan or are affected by it are unable to identify with certainty whether a particular activity can proceed without resource consent or not. 6. Relief sought 6.1 The Appellant seeks: (d} (e) That the appeal be allowed; That the definition of "sensitive activity" be amended to be more certain similar to the final recommendation of the Canterbury Regional Council reporting officer; Alternatively, that the Rules be made more certain by deleting all conditions which refer to distance from a "sensitive activity"; If neither relief or is granted, that the matter be referred back to the Respondent for reconsideration in light of the findings of this Honourable Court; Such further or other relief as may be appropriate to address the Appellant's concerns; BF\ \4 Page5

9 (f) The costs of and incidental to these proceedings. 7. Attachments 7.1 The Appellant attaches a copy of the Decision appealed. Dated 21 October 2016 AC Limmer Solicitor for Canterbury Aggregate Producers Group This notice is filed by ALANYA CHERYL LIMMER, solicitor for the appellant, of the firm Buddle Findlay. The address for service of the appellant is at the offices of Buddle Findlay, Level 4, 83 Victoria Street, Christchurch. Documents for service on the abovenamed may be left at that address or may be: 1. Posted to the solicitor at PO Box 322, Christchurch; or 2. Left for the solicitor at a document exchange for direction DX WX11135, Christchurch; or 3. Transmitted to the solicitor by facsimile to ; or 4. ed to the solicitor at alanya.limmer@buddlefindlay.com. BF\ \4 Page 6