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Court overthrows Brownlee on Chch airport noise zone

BUSINESSDESK: A High Court judge has clipped Earthquake Recovery Minister Gerry Brownlee's emergency powers by setting aside a decision by Mr Brownlee to prevent residential development on private land around Christchurch International Airport and deny the owners any further right of appeal.

Using powers granted under the Canterbury Earthquake Recovery Act, the minister backed local governments and the airport in rejecting land for housing, involving a group of private developers who had been battling over the detail of a Christchurch airport quiet zone for years before the quakes.

The decision is a political blow for Mr Brownlee, but he says it doesn't affect other swathes of land urgently opened up for residential land to replace red-zoned suburbs in Christchurch and Kaiapoi.

Justice Lester Chisholm said Brownlee "stepped outside the legal limits" of his CERA Act powers and made a "serious error" in denying the developers appeal rights.

‘‘To the extent that it addresses urban limits, it is addressing issues that existed long before the earthquakes and it provides solutions that are likely to endure well beyond the expiry of the CER Act,’’ the judge said.

A "corridor" allowing the airport to operate without hindrance near residential areas had been a key part of Canterbury's Regional Policy Statement, a strategic document agreed between the local government entities of the region, which was effectively torn up by the requirements of quake recovery.

Christchurch airport had earlier been instrumental in opposing proposed residential development by several private investors, the largest investor being Independent Fisheries, a major South Island fish processor.

They objected when their development opportunity was wiped out while Brownlee cleared other land near Kaiapoi, also within the strategic air corridor, for new housing.

The so-called Proposed Change-1 appeals had been causing uncertainty and were taking time council officials did not have when responding to the quakes, said Mr Brownlee last night.

"Questions over the status of the 50-decibel noise contour line around Christchurch airport were at the heart of much uncertainty."

The government saw it as "very important for the country's economy" to keep New Zealand's second international gateway airport operating and to ensure its future operations were not impeded as Christchurch still expected strong growth in the future.

"Crucial to my decision was freeing up land in Kaiapoi, where about quarter of the town had been significantly affected by the earthquakes."

The airport had "reluctantly" agreed to allow housing around heavily hit Kaiapoi.

The developers argued Mr Brownlee had granted the land designations to assist fast creation of the regional plan endorsed by the Canterbury Regional, Christchurch City, Waimakariri and Selwyn District Councils, and the New Zealand Transport Agency.

Mr Brownlee said the decision "won't hinder recovery because important elements of the Crown’s decision still stand".

"Amendments to the CCC and Waimakariri District Plans remain unaffected, meaning the developments in Kaiapoi, Prestons Road and Halswell West are able to continue under the district plan provisions."

Mr Brownlee said his "motivations for the changes were sound and the actions necessary in the situation" but gave no hint of an intention to appeal the decision.

RAW DATA: Read the full judgment (PDF)

More by Pattrick Smellie

Comments and questions
7

It's a pretty damming decision. The minister (or whoever put him up to it) appears to have used the earthquake as an excuse to implement a deal with one set of developers and the airport, circumventing the proper process at the expense of another set of developers and residents.

On the hand a decision in this matter was always going to be at the expense of one grouping.
Decisions can be hard to come by in resource management. At least he took one.

Whangamata Marina anyone?

The developers were hoping to use the Christchurch earthquake induced housing shortage; to ram through consents which they had been unable to justify for several years, using the compassionate developer approach. Rather dishonest.
These are the same groups of people who built on the unsatisfactory Marshlands area, after convinving councils that there was a need for housing.
The Judge would have done well to look at the 'emergency situation' which exists in Christchurch, rather than the whinging of some developers; and he may have realised that Christchurch is an extra-ordinary case, requiring extra-ordinary decisions. Lessons which the judiciary need to learn.

I agree. I understand that the landowners who purchased this land did so knowing full well that the noise contour prohibited any housing developments.

Of concern is that the argument could be made that that Court itself is prejudiced in this matter as it is deciding indirectly on the limit of its own powers.
We should all make a concerted effort to get along in the course of the rebuild of Christchurch. Its an issue big enough to make a huge difference to our future as a nation.
If we dont demonstrate a collective common sense we will be penalised by international stakeholders.

The full decision by Justice Chisholm (and Brownlees reasoning ) make interesting reading and while your reading look up the Environment Courts PC1 case history, CCC has acted in a very underhand manner & when they saw that their behind the scenes deals with some developers such as Prestons were being scrutinized they persuaded the Minister to use his powers to push through their preferred version of PC1 BEFORE already made judgements and WHILE this was still before the courts. This affected land miles from the airport and Marshlands, land that CCC had tried to obtain and then placed the Urban boundary on when they failed. Sound fair ??? NOT