Scope of Submissions in a Proposed District Plan Hearing
A council has notified a Proposed District Plan. Submission 47, from a landowner, seeks to rezone 12 ha of Rural land at the edge of town to Residential. The submission describes the site and asks for 'residential zoning to enable a retirement village and associated housing'. A further submission from a neighbouring farmer opposes. The council's s42A report recommends accepting Submission 47. However, the report also recommends a new policy that would allow retirement villages on any Rural land within 2 km of the town boundary, not just the 12 ha site. The hearings panel is concerned that the new policy goes beyond what was notified and could affect many other landowners who did not submit. The panel also has before it Submission 102, which asks for a different site to be rezoned, but that submission was withdrawn.
1. Explain whether the hearings panel can adopt the new policy recommended in the s42A report. Discuss the scope of submissions and natural justice.
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The panel's power is constrained by the scope of the notified proposal and the submissions received. A plan change cannot be amended to include relief that was not notified and that is not merely consequential. Submission 47 is site-specific: it asks for residential zoning of a particular 12 ha parcel to enable a retirement village. It does not ask for a district-wide policy applying to all Rural land within 2 km of the town boundary.
The recommended policy is not a consequential amendment. It would create a new development pathway for many other landowners, some of whom did not submit and may have no idea that their land could be affected. Adopting it at the hearing would deny those landowners the opportunity to make a submission and be heard. That offends natural justice and the Schedule 1 process, which is built on notification, submission, and further submission rights. The fact that the s42A report recommends the policy does not cure the problem; the report is an officer recommendation, not a jurisdictional authority.
The panel should therefore not adopt the policy as part of the decision on Submission 47. It can accept, reject, or modify the site-specific rezoning within the scope of the submission. It should record that the wider policy is beyond scope. The panel may still comment that a district-wide approach might be worth investigating, but it cannot grant it in this process. The withdrawn Submission 102 is irrelevant and cannot be revived by the panel.
2. What procedural options are available to the panel if it considers the policy has merit? Outline the steps and any risks.
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If the panel considers the policy has merit, it should not force it into the current decision. The lawful route is a separate planning process. The council could initiate a variation to the proposed plan under Schedule 1, or a separate plan change, depending on the stage of the proposed plan. A variation would need to be notified, with a new submission and further submission period, and would give affected landowners the opportunity to participate. The panel could recommend that the council investigate that option, but the panel itself cannot notify a variation.
The panel could also direct the council to report back on the issue, or recommend that the matter be considered in the next plan review. If the council chooses a variation, it must prepare a s32 evaluation of the costs and benefits, including the risks of enabling retirement villages in rural areas, such as servicing costs, reverse sensitivity, and loss of productive land.
There are risks in proceeding. If the panel adopts the policy without notification, an affected landowner could appeal to the Environment Court on scope grounds, or seek judicial review. The council could also face criticism for bypassing public participation. Conversely, refusing to consider the policy at all may miss a legitimate issue, but that is a policy choice for a separate process, not a reason to exceed jurisdiction.