The High Court upheld a consenting panel’s decision to decline resource consent for a large-scale housing development, based on special character zoning rules.
In 2021, Parliament amended the Resource Management Act 1991 (“RMA”). The amendments required certain local councils to include medium density residential standards (“MDRS”) and urban intensification objectives and policies in their district plans. While the MDRS changes initially had bipartisan support, the Coalition Government that took office in 2023 promised to reverse the changes on the basis that they were an interference with local democratic decision-making.
The MDRS and intensification objectives were implemented through district plans, but were (largely) mandatory statutory requirements. Councils were only excused from implementing them if they could establish that one or more ‘qualifying matters’ (defined in the RMA) applied in a particular area.
The Auckland Council notified a plan change (“PC78”) implementing the MDRS and intensification objectives on 18 August 2022.
Around the same time, Box Property Investments Ltd (“BPIL”) applied for an RMA resource consent under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) for a large scale residential development to be constructed in East Auckland. The development site fell within the single-residential housing zone (“SHZ”) under the operative district plan. SHZ objectives and policies were strongly focused on preserving neighbourhood character and limiting intensive residential development.
During BPIL’s application, PC78 was not in effect at the development site, which remained governed by the SHZ. However, because PC78 was a proposed plan, the consent authority was required to have regard to it (as well as to the SHZ) under the FTCA.
When the Panel determined BPIL’s application, the key issue for determination was whether to give preference to operative SHZ rules or to the proposed PC78 – or, in other words, whether to give weight to special character protections or urban intensification imperatives. The Panel ultimately chose the former. It determined that BPIL’s intensive development would be fundamentally out of step with SHZ character preservation policies, and declined the consent.
BPIL appealed the Panel’s decision to the High Court, alleging seven errors of law.
First ground – Irrelevant considerations
When assessing the weight to be given to PC78, the Panel had regard to policy announcements made by the Government, including proposed law reforms that would have made the MDRS optional. BPIL contended that these proposed law reforms were irrelevant, and that the Panel had erred in law in considering them.
The court agreed, emphasising the importance of the principle that Parliament can only speak to the courts through legislation. While the executive branch of government (represented by Cabinet) may have ultimate control over the legislative programme, it could not provide any assurance about future legislation that the courts could act on. The clear effect of the famous Fitzgerald v Muldoon decision was that no person or body was recognised by law as having the right to set aside the legislation of Parliament other than Parliament itself. Citizens must always have access to the courts to have their rights and interests determined according to the law applicable at the time.
However, because the Panel’s erroneous consideration of announced law reforms had not materially influenced their assessment of the status of PC78, the court dismissed this ground of appeal.
Ground 2 – Natural justice
During the hearing, the Panel commissioned an independent consultancy to peer review reports provided to it by BPIL. The Panel refused BPIL an opportunity to respond to the consultants’ report. BPIL alleged the refusal was a breach of its natural justice rights.
The court disagreed. The FTCA’s express purpose was to streamline RMA consent applications, and to this end the Panel had been given wide powers to regulate its own procedure. It was these powers that it had relied on to commission the report. If the court required the Panel to allow applicants to respond to every adverse factual finding, it would derail the streamlined procedure and undermine the purpose of the FTCA.
Grounds 3 – 5 – Status of PC78
BPIL’s third, fourth, and fifth grounds rested on the assertion that the Panel had not correctly recognised the status of PC78 relative to the SHZ rules in the operative plan. Because adoption of the MDRS was largely mandatory, BPIL argued, it was not enough for the Panel to consider PC78 – it should have been a dominant consideration for the Panel. The Panel had erred in law by giving undue weight to the SHZ.
The court held that each of these grounds were effectively attempts to challenge the merits of the Panel’s decision framed as legal errors. The Panel had clearly considered PC78, as they were legally required to. Beyond this, it was for the Panel to determine the respective weight given to the SHZ and PC78. This was a matter that could not be disturbed on an error of law appeal.
Ground 6 – Misinterpretation of SHZ
In its sixth ground, BPIL argued that the Panel had misinterpreted the SHZ. It based this argument on the Panel’s conclusion that the development was inconsistent with the SHZ. The court found that this was effectively another challenge to the merits of the decision, and dismissed the appeal on this ground.
Ground 7 – Part 2 of the RMA
BPIL’s final ground of appeal alleged that the Panel had erroneously concluded that the SHZ was consistent with Part 2 of the RMA. The court held that it was not for the Panel to determine whether SHZ was consistent with Part 2 – rather, its role was to determine the consent application in accordance with the RMA and the FTCA. It had done so, and accordingly this ground of appeal failed.
Result
The court dismissed the appeal on all grounds, effectively halting BPIL’s proposed development.
The court’s decision provides a welcome affirmation of the principle of Parliamentary sovereignty, confirming that law-makers must apply the law as it stands at the time, rather than what Crown Ministers or others say it is likely to be following in future law reforms.
Shortly before the court’s decision, the Resource Management (Consenting and Other System Changes) Amendment Bill reported back from Select Committee. The Bill, which received the Royal assent on 19 August 2025, allows Auckland Council to withdraw PC78, but requires the Council to provide for levels of urban development comparable to those in PC78 if they choose to do so.
On 24 September 2025, the Council’s Policy and Planning Committee voted to reject PC78, and to endorse PC120, a plan change allowing for a similar level of intensive development. The Committee meeting saw passionate and emotive appeals from councillors in favour of preserving the special character of inner city suburbs. However, the final vote did not reflect this, with PC120 being carried by 18 votes for to 5 against.
Submissions on PC120 are open until 19 December 2025.
For further information on this or similar cases please contact Director Brigitte Morten
