ECan not playing fair, says judge

19:01, Oct 10 2012

An Environment Court judge is critical of the way Environment Canterbury is acting in a case over urban land boundaries.

Judge Jon Jackson says he is "very troubled" by ECan's actions in a case before him related to "proposed change 1" and urban land boundaries.

His concerns include ECan treating appellants unfairly and angling toward an alternative process that would tip the scales in its favour.

He is scheduled to hear appeals in the Environment Court over the plan change from scores of appellants and the Urban Design Strategy partners which are ECan, Christchurch city, Selwyn district and Waimakariri district councils, the NZ Transport Agency and Ngai Tahu.

Late last year, Earthquake Recovery Minister Gerry Brownlee used emergency powers to revoke the plan change and replace it with new plans that were essentially what the UDS partners wanted.

In July the High Court ruled Brownlee should not have used his powers that way and that he had made a "serious error" by preventing people from going to court to appeal boundary changes.


The saga of urban boundary limits for greater Christchurch has been in the Environment Court since before the quakes.

At a pre-Environment Court hearing conference held late last month, ECan announced it had changed its mind on which version of land boundaries it would adopt for the hearing.

ECan also told the court it had asked Brownlee to tell it to develop a "recovery plan" under the Cera Act.

That could potentially make the plan change obsolete, allowing ECan to withdraw it from the court.

In a written decision following that hearing, Judge Jackson adjourned the case until December 12 because he felt the court had little choice after ECan's latest moves.

The judge said appellants who had not reached out-of- court deals with ECan were frustrated by a lack of progress and absence of transparency for why they have been excluded from housing boundaries.

He was "surprised" that some appellants, including Independent Fisheries, did not want the plan change thrown out of court because they would rather have the decision on the extension of the airport's noise boundary - which restricts development - made by the court.

He accepted the recovery plan process would include consultation and hearings, but said the hearings were likely to be too short to be effective and "less truly independent".

The Environment Court hearings could have started by December if ECan had continued with the Environment Court process, rather than seeking delays, he said.

"Instead, [ECan] has chosen to promote a course of action with hearings either before its commissioners, or commissioners of its own choosing. No doubt the appellants still seeking relief wish they had the same choices."

Another "apparent unfairness" was ECan wanting to keep the plan change on ice while a related Court of Appeal challenge to the High Court's quashing of Brownlee's last attempt to change the urban development limits through emergency quake powers is resolved.

In the meantime, ECan awaits Brownlee's decision on using his quake powers to intervene a second time.

"It is unfair to other parties to have to fight two sets of proceedings on the same subject matter. Yet that is now the potential situation of many of the appellants here except that they have potentially three sets of proceedings to deal with.

"I remain very troubled that [ECan], apparently supported by the UDS partners, is continuing to act unfairly towards a number of the appellants with no obvious offsetting gain in the public interest."

The Press