Brownlee changes unlawful - Court of Appeal

Last updated 12:16 20/12/2012

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The Court of Appeal has upheld the decision of the High Court that the Earthquake Recovery Minister Gerry Brownlee’s changes to residential land boundaries last year using his emergency powers was unlawful.

The appeal court’s decision was released today.

The appeals were taken by local councils, including Environment Canterbury, Christchurch City Council, the Waimakariri District Council, and the Selwyn District Council.

Brownlee made two changes in October last year that were successfully challenged in the High Court by several property developers led by Independent Fisheries.

Brownlee revoked a change to the Regional Policy Statement and inserted new provisions which set urban development limits for greater Christchurch over the next 35-40 years, including space for just over 47,000 residential properties.

He also made another change to the Regional Policy Statement putting in place a noise contour boundary around Christchurch Airport.

The affect of those was to stop pending appeals by parties with land affected from arguing their cases in the Environment Court.

The Appeal Court said in its judgment that to the extent the two changes made by the Minister gave certainty to urban planning they were within the purposes of the Canterbury Earthquake Recovery Act.

However the appeal court decided they were invalid because Brownlee failed to consider if it was necessary to to use those powers and whether he could achieve the same outcome via Cera’s Recovery Strategy and/or Recovery Plans.

‘‘We therefore agree with the result in the High Court but not with all the judges reasons for reaching that result.’’

‘‘Whether the Minister wishes to reconsider his decisions in the light of this judgment or proceed in a different manner, such as by way of the proposed Land Use Recovery Plan, is for the Minister to decide,’’ the court said.

The court said a key question was whether the exercise of the powers under the Cera Act was necessary.

‘It is not at all clear from the evidence why a short-term ‘‘neat solution’’ which precluded public participation, was necessary, rather than merely expedient or desirable, for a long-term problem which would be addressed in the Recovery Strategy, the draft of which had already been publicly notified.’’

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