Adcock v Marlborough District Council HC Blenheim CIV 2010-406-230

[2011] NZHC 513

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV 2010-406-230

UNDER  Section 299 of the Resource Management

Act 1991

BETWEEN  PAUL LESLIE ADCOCK AND NICOLA MAY DEVIR

Appellants

ANDMARLBOROUGH DISTRICT COUNCIL Respondent

Hearing:         18 April 2011

Counsel:         D J Clark for Appellants

P J Radich and M J Radich for Respondent

Judgment:      24 May 2011

JUDGMENT OF MILLER J

Introduction

[1]      This appeal is brought on a point of law from a decision of the Environment Court upholding the Marlborough District Council‘s decision to refuse Mr Adcock and Ms Devir permission to subdivide a rural property owned by Mr Adcock‘s parents.1

[2]      The  proposal  would  create  two  lots,  one  of  7451  m2    containing  the appellants‘ house, and the other of 7.2 ha, on which is situated the home of the Adcocks senior.  Mr Adcock and Ms Devir have already built their house with the Council‘s consent.  However, the subdivision was a non-complying activity, for the

land is situated in the Rural 3 zone, in which the minimum lot size is 8 ha.

1      Adcock v Marlborough District Council [2010] NZEnvC 305, 6 September 2010.

ADCOCK AND DEVIR v MARLBOROUGH DISTRICT COUNCIL HC BLE CIV 2010-406-230 24 May 2011

[3]      The first ground of appeal is that there appeared in the Environment Court decision, for the first time and with no prior notice, reference to the appellants having failed to secure the approval of affected neighbours.   A consent authority must ignore effects on persons who have approved.  Approvals had been obtained, but the Court of its own volition identified two other affected persons, one being a neighbour and the other the Adcocks senior.  It then relied on ‗incomplete‘ approvals to bring into account local effects, in the form of reverse sensitivity (arising from the introduction of a purely residential use into an agricultural setting) and loss of rural amenity and character.  It is common ground that the Court erred, for the appellants had in fact secured the consent of all whom the Council had identified as affected persons, including the neighbour identified by the Court, and no one doubted that the Adcocks senior were in substance parties to the application.  The Council says the error matters not, for the Court, like the Council before it, was motivated in substantial part by a desire to preserve the integrity of the Rural 3 zone, which protects productive rural land from subdivision for residential or other non- conforming uses.   Local effects upon nearby landowners played little part in the decision.

[4]      The second ground of appeal is that the Court attached significance to the loss of specific productive land, being the smaller lot of 7451 m2.  The appellants maintain that the smaller lot is unsuited to farming, saying it forms a ―narrow finger‖ in the middle of which sits their house, which was erected under a resource consent issued in 2006.   The Court, which customarily hears matters afresh and receives evidence, criticised the absence of expert farming evidence from the appellants. They say that they were denied the opportunity to call such evidence because they had no prior notice that the point was disputed.  In its own decision the Council had

made no reference to it; further, it was common ground before the Environment Court that the proposal would have at worst minor adverse effects on the environment. The Council accepts that the Environment Court placed greater weight on loss of productive land in this case than had the Council itself, but maintains that the appellants were on notice that the issue was live.

[5]      The third ground of appeal is that the Court misdirected itself in law.  It was common ground that the effects of the proposal were less than minor, so the proposal

could be considered on its merits under s 104 of the Resource Management Act.  The appellants say that the Court erred by considering whether the proposal might nonetheless not be in harmony with the objectives and policies of the District Plan and Part 2 of the Act.  They say that such approach would almost certainly ensure that a non-complying activity could never be approved.  The Council responds that the argument is plainly wrong, for plan and Part 2 provisions are mandatory considerations under s 104.

[6]      The fourth ground of appeal is that the Court mischaracterised the smaller lot as ―purely residential‖.   The appellants say it is rural residential for purposes of the District Plan, recognising that its size is such that a subsequent owner might use it for mixed rural and residential purposes.   The Council denies that the Court mischaracterised the smaller lot on the evidence before it, and says the finding was in any event purely factual.

[7]      It is not in dispute that an appeal may be allowed under s 299 of the Act for procedural error,2  or where the Environment Court overlooked a relevant matter or took into account a matter which it should not.3     This Court will not intervene, however, unless the error materially affected the result.4

[8]      Because I have reached the view that the appeal must be allowed on the first ground and the case remitted to the Environment Court for rehearing, I say no more than is necessary about the other grounds.

The land and its environs

[9]      The parent lot is located at 45 Godfrey Road, Renwick, about 1.4 km west of the Marlborough airport runway.   It is flat farm land, used to fatten calves for a

butchery which Mr Adcock has taken over from his parents.  It is the only remaining

2      Plain Sense (Taieri Plains Environmental Protection Society) Inc v Dunedin City Council HC Dunedin CIV 2006-412-903, 15 May 2007 at [15] and [18].

3      Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at

153.

4      Royal Forest and Bird Protection Society Inc v WA Habgood Ltd (1987) 12 NZTPA 76 (HC) at

81-82.

pastoral property in the area, in which the predominant agricultural use is grape- growing.  It is exactly 8 ha in area.

[10]     The parent lot is lot 2 DP 7307 on the plan below, which shows the proposed subdivision.  Lot 1 DP 2829 is the Gill house, which was subdivided some years ago. It would not receive consent now.  The proposed subdivision would create a new lot numbered 1, shown to the east of the Gill property.  It is what the appellants describe as a narrow finger of land in the middle of which sits their house and garage, which

are also depicted on the plan.

[11]     The properties to the east and south of the parent lot are, or were at the relevant times, owned by the Godfrey Road partnership.  Kathy Lynskey Wines Ltd is situated across Godfrey Road.  About 100 m to the north-east, not shown on the

plan, is a house associated with the Fromm winery.   A little further away is the

Fromm winery itself.

The zoning

[12]     The  purpose  of  the  Rural  3  zone  under  the  Proposed  Wairau/Awatere Resource Management Plan, was outlined by a Council planner, Mr Heather, in these terms:

... the majority of land within the Plan‘s area is rurally zoned.  The flat lands of the Wairau Plain are the most productive of those rural lands but comprise only about five percent of the rural zoned land, the balance being steep to very steep hill country and mountain land. ...  Flat, rural land on the Wairau Plain is recognised by the Plan as being particularly valuable and its Rural 3

Zoning is intended to differentiate the Wairau Plain resource from other rural land because of its particular characteristics which make it a valuable and

versatile land resource.  (Emphasis removed)

[13]     As Mr Heather went on to explain, subdivision and use of small lots for principally residential purposes can result in substantial areas of land being covered in  buildings  and  used  for  non-productive  purposes.    There  is  an  incentive  to subdivide in this way because short-term gains from subdivision exceed those to be made  from  agricultural  activities.     For  more  than  20  years  the  Council  has accordingly maintained a minimum lot size of 8 ha with the dual objectives of maintaining the life-supporting capacity of the Wairau Plains and protecting rural amenity values, in the form of privacy, outlook and spaciousness and, generally, quiet.  Although they are normally quiet, rural areas are also the setting for activities which  cause  occasionally  high  levels  of  noise,  dust,  smell  and  traffic.    These activities are tolerated by other farmers, but residential subdivision leads to complaints from residents about them.

[14]     The 8 ha limit is well settled not only through passage of time but also because in 2004 the Environment Court firmly endorsed the Council‘s desire to maintain the integrity of the zone.  Calapashi Holdings Ltd v Marlborough District Council concerned a not dissimilar application to subdivide off 6380 m2 for a house,

leaving a balance lot of 15.95 ha, in the Rural 3 zone.5    In the circumstances, the

appellants‘ application inevitably raised concerns about precedent.

The appellants’ house

[15]     The appellants‘ house was erected pursuant to a resource consent issued in

2006.    Mr Adcock  first  sought  approval  to  erect  a  second  dwelling,  but  after discussions with the Council he withdrew that application and instead sought permission to build a ―family flat‖,  which did not require a resource consent under the District Plan.   A family flat, however, is not more than 80 m2  in area, while

Mr Adcock planned a much larger dwelling.   (It is 320 m2  including the separate

garage.) A resource consent was needed after all.  For reasons which are obscure and which the Environment Court did not find it necessary to inquire much into, Council officers then advised the Council to grant a resource consent for a family flat.  The consent recorded, however, that family members of the occupants of the main dwelling were the only persons permitted to occupy the new house.

[16]     The  Environment  Court  rejected  a  submission  that  the  Council  was effectively required to authorize the subdivision because it had already authorized the house.  The Court also held that it must approach the application on the footing that the residential use was related to the existing parent lot and title.  There is no challenge to those  findings on  appeal.   The dwelling is  however relevant; it is because it exists that the Council accepted the environmental effects of the proposal were minimal and it is said to be the size and location of the dwelling and its garden that make the new lot unsuited for agricultural activities.  For the same reason, the appellants argue that their application has no adverse implications for the Rural 3

zone.

5      Calapashi Holdings Limited v Marlborough District Council NZEnvC Wellington W45/2004, 8

June 2004. This was upheld on appeal: Calapashi Holdings Limited v Marlborough District
Council HC Blenheim CIV 2004-485-1419, 22 March 2005.

Affected persons

Identifying affected persons

[17]     The application for a resource consent for the subdivision, a non-complying use, was lodged on 19 January 2008.  At the time, a consent authority must notify a resource consent application unless it was for a controlled activity or the authority was satisfied that the effects would be minor.6    If it was for a controlled activity, it was to be notified publicly and served on every person prescribed in regulations. The   Resource   Management   (Forms,   Fees   and   Procedure)   Regulations   2003

prescribed that the authority must serve notice on ―every person who, in the opinion

of the consent authority, may be adversely affected by the granting of the application

… .‖7  Where an affected person gave approval in writing, the consent authority was precluded from having regard to any effect on that person.8

[18]     In this case the Council identified four persons as affected: Kathy Lynskey Wines, D Dew (who was in the process of buying Kathy Lynskey Wines), RC Gill, and the Godfrey Road partnership (IC and MA Sutherland and JW, PJ, RF and SEW Cuddon).   It did not identify the Fromm winery or the Adcocks senior as affected persons.

The Council decision

[19]     All those persons whom the Council did identify gave their approval, and the Council recorded in its own decision that the approvals ―encompassed all of the surrounding properties immediately adjacent to the subject site‖.9     The Council‘s Hearing  Committee  assessed  the  application  on  the  basis  that  no  adjoining landowners were affected, although it also paid some attention to reverse sensitivity effects and concluded that the subdivision would create a cluster of rural/residential

properties   which   would   increase   possible   conflicts   between   residential   and

6      Section 93 (The sections cited here are as they were at the relevant time.)

7      Reg 10(2)(a).

8      Section 104(3)(b)

9      Marlborough District Council Decision on Application for Resource Consent No 65, 28 July

2008 at 4.

neighbouring  rural  activities.    The  application  was  refused  primarily  because  it would not maintain the character of the Rural 3 zone and was incompatible with the objectives  of  the  Proposed  Wairau/Awatere  Resource  Management  Plan.    The Hearing Committee observed that very few properties on Godfrey Road were less than 8 ha in area.

The Environment Court decision

[20]     Before the Environment Court both parties proceeded on the basis that all affected persons had consented.  But in its decision, and without any prior notice, the Court held that not all affected persons had consented.   It recorded that approvals had been given by Mr Gill, Kathy Lynskey Wines and the owner of Lot 3 DP 7307

(part of the Godfrey Road Partnership property), but found:10

... No such approval was obtained from the owners of the parent lot, or the property to the south of the parent lot, or (even closer to the appellants‘ dwelling) that lot immediately east of Lot 3 DP7307, namely Lot 4 DP7307. Nor was an approval obtained from the owners of the Fromm Winery, whose property is less than 100m from the parent lot at its closest point.  (Citations removed)

[21]     The Court observed in a footnote that the owners of the parent lot were not the present applicants but would own and be able to sell separately the balance of the parent lot after subdivision.  Even if they were not to be regarded as affected persons

―the potential sensitivity problems between the two proposed new lots is a real factor.‖11

[22]     The Court went on to find that:12

Thus there could well be reverse sensitivity issues as between the occupiers of  any  new  lot  containing  the  new  dwelling,  and rural  activities  in  the vicinity (including on the balance lot currently containing the Adcock Snr residence).   We do not accept that potential problems of noise, dust and odour would be limited to those from the three properties named by Mr Clark.

10 At [41].

11     At footnote 27.

12     At [42]-[43].

Furthermore, affected person approvals are not relevant to the issues of loss of productive soils, and the loss of rural amenity and landscape values would not affect only the three properties identified.

[23]     It then addressed Mr Clark‘s argument that affected person approvals could

be relevant to the issues of precedent and plan integrity, and held:13

We consider that affected person approvals are of little relevance in this case because they do not come from all potentially affected parties, and we give them little  weight  because  of  the  difficulty  in  knowing  whether  similar approvals would be forthcoming in any case for which this case might be a precedent, and therefore whether ―like cases‖ were being treated alike.   In short, we do not find the argument to be of help in deciding this case. (Citations removed)

[24]     As  I  have  noted,  the  Godfrey  Road  Partnership  had  consented  to  the application, so the Court was wrong to find that the owners of the adjoining property to the south and Lot 4 DP7307 to the east had not consented.  The Fromm winery had not consented because the Council had not identified it as an affected person.  It has since consented, as have (for the avoidance of doubt) the Adcocks senior.  There can be no doubt that had the Court let the parties know that it believed there were affected parties who had not approved, the necessary approvals would have been obtained.

[25]     The  Court  dealt  with  reverse  sensitivity  effects  at  several  points  in  its judgment.  It held that ownership of the land would likely cause reverse sensitivity to activities such as shooting (to scare birds), frost fans or field machinery operating at night.  People moving to a ―lifestyle block‖ would be more likely to complain about such activities than people who worked the land.

[26]     The Court also found that the proposal would result in a minor loss of rural and landscape amenity.  Although a house was already established, it did not follow that the new lot would be given over to non-agricultural activity if it remained part of the parent property.   It recorded with apparent approval Mr Heather‘s opinion that the  subdivision  would  produce  a  small  residential  allotment  with  no  rural

characteristics.

13 At [46].

[27]     In conclusion, the Court synthesized its s 104 analysis at [118] of its decision. I set out the entire paragraph because it usefully illustrates Ms Radich‘s argument that local effects played no material part in the Court‘s decision:

We can now briefly draw our conclusions under the framework of s 104, based on the many findings we have already made.   Central to these conclusions is the distinction we have already noted between the proposed smaller lot as a purely residential development within the Rural 3 zone, and that area of land, with the new dwelling, being an adjunct to a rural holding. We consider that:

There will be actual and potential effects on the environment from the proposed subdivision which, although minor, are nevertheless relevant.  These include a loss of rural and landscape amenity, and reverse sensitivity effects.   These are relevant under  s 104(1)(a) despite the Council‘s concession that the proposal passed the first gateway test of s 104D

The  proposal  is  ―contrary   to  several  important  objectives  and policies of the Plan (as detailed by Mr Heather) – both in the strong sense that would render it unable to meet the second gateway test, and in the softer sense of ―inconsistent with‖  or not ―in harmony with‖ those objectives and policies.  Most important among these are the retention of the productive capacity of a limited and very important resource, being the productive capacity of the soils of the Wairau Plain, and the strong discouragement of small-scale subdivision in the Rural 3 zone.

It is also not in harmony with relevant provisions of the Regional

Policy Statement.

The proposal would have unfortunate precedent effects and would undermine the integrity of the Plan.   The Council would be very hard pressed to decline similar applications while treating like cases alike.

We have regard to the Council‘s decision to decline consent, and endorse its concern to maintain the open character and rural amenity of the Rural 3 zone, and to reduce potential conflict between residential and rural activities. We also uphold the Council‘s attempt to protect the integrity of its plan, and in particular its objectives and policies concerning Rural 3 land and subdivision.

These conclusions are reached whether the new dwelling is regarded as having been consented to as a family flat or as a second dwelling on  the  parent  lot.    However  we  consider  the  dwelling  received resource consent as a family flat.  (Emphasis in original)

[28]     The Court added at [119] and [120]:

The underlying purpose of the Act is the sustainable development of natural and physical resources.  The relevant resource in this case is the productive

capacity of the Wairau Plain soils, whether used for agriculture, horticulture or (most importantly) viticulture.  Development is not sustainable if highly productive soils are lost to productive use, and/or where the intrusion of further residential activity is likely to conflict with legitimate rural activity.

The proposed subdivision fails to meet all three paragraphs of s 5(2):  it will reduce rather than sustain the ability to meet the needs of future generations, it undermines rather than safeguards the life-supporting capacity of soil, and will  increase  rather  than  mitigate  adverse  effects  on  the  environment. Overall it impedes the Council‘s endeavours to mange resources so as to provide for the well-being of people and communities.

[29]     In   conclusion,   the   Court   pungently   characterized   the   application   as

―opportunistic and without merit‖.14

Assessment

[30]   The question is whether effects on affected persons were a material consideration in the Court‘s decision.  It may be framed alternatively as a Full Court did in Meridian Energy Ltd v Central Otago District Council: whether this Court could responsibly conclude that the issue was an immaterial consideration.15

[31]     I accept Ms Radich‘s submission that precedent effects and the integrity of the Rural 3 zone were together the principal consideration in the Court‘s decision, as [118] to [120] usefully summarise.   However, I find it impossible to accept that affected person consents were immaterial, for three reasons.

[32]     First, the Court was particularly careful not to base its decision entirely on plan objectives or community-wide considerations.    It focused closely and appropriately on the subject property, not only when considering local effects but also when considering whether rural land would in fact be lost to production.

[33]     Second, the Court recognized that reverse sensitivity effects were local in nature, and it placed significant weight upon them, in my opinion.   I have quoted what the Court had to say on the subject at [42] of its decision.  It also featured as the first of the bullet points in [118], along with loss of rural amenity, which is a quality

affecting  neighbours  and  others  who  also  experience  such  amenity,  including

14 At [121].

15     Meridian Energy Ltd v Central Otago District Council [2010] NZRMA 477 at [48].

passers-by.  It is noteworthy that the Court went to some trouble to identify for itself affected parties who had not approved, to the extent of scaling off a plan to calculate the distance from the subject property to the Fromm property.

[34]     Third, the Court‘s view that there were affected parties who had not approved also appears to have encouraged it to discount Mr Clark‘s argument that affected party approvals can mitigate precedent effects.  (In saying that the Court discounted the argument, I am merely reflecting the importance that the Court itself attached to affected party approvals.   I do not mean to indicate that affected party approvals would necessarily mitigate precedent effects in this situation.   The weight to be attached  to  affected  party  approvals  is  ordinarily  a  matter  for  the  Environment

Court.16)

[35]     In the result, I am not able to say that the result would have been the same had the Court not erred in identifying affected persons and in failing to give the parties the opportunity to address the issue.   For that reason the appeal must be allowed.

[36]     Counsel did not address the question whether it was open to the Court to consider effects (including reverse sensitivity effects, in the form of complaints from lifestyle block owners) on future owners of properties the current owners of which consent to the proposal.  Accordingly, I confine myself to two observations.  First,

although the Act is concerned with effects on persons, rather than land,17  and does

not expressly exclude effects on future owners of land the present owners of which have consented, future owners as a class cannot ordinarily be taken to have a greater interest, at the point in time when a consenting authority must make its decision, than does the general public.18    To consider their positions may be to invite speculation about the future which an applicant cannot hope to dispel.19   Second, the Court‘s decision in this case to take into account reverse sensitivity effects on future

owners also has the effect of constraining the property rights of present owners in a

16     Rodney District Council v Gould [2006] NZRMA 217 (HC) at [90]-[91].

17     Guilty As Ltd v Queenstown Lakes District Council [2010] EnvC 191.

18     Of course a particular future owner who is in the course of acquiring land, as D Dew was in this case, may well have an interest greater than that of the general public.

19     Dye v Auckland Regional Council CA 86/01, 11 September 2001.

manner not obviously contemplated by the Act. That is highlighted by the position of the Adcocks senior; their consent to the subdivision of their own land might count for little if the Court could take into account reverse sensitivity effects on future owners of that land, as it did in the footnote referenced at [21] above.

Loss of the smaller lot to agricultural purposes

[37]     The appellants were taken by surprise to some extent by the Court‘s focus on whether the smaller lot would be lost to agricultural production if the subdivision proceeded.   The parties appear to have accepted that it already was.   It had been fenced and it was no longer being grazed.  The Council had not expressly relied on this consideration in its own decision, and it had accepted before the Environment Court that the effects of the subdivision, having regard to the house which had by then been built, were minor.

[38]     The Court, however, attributed loss of productive land to the subdivision, rather than the house and garage.   Mr Heather gave evidence, which the Court appears to have accepted, that there were properties in the area in which vines grew close to a house.   It criticised the appellants for failing to call expert evidence,

holding:20

We reject this proposition of ―unsuitability for farming‖ as mere assertion, unsupported by any expert evidence.   It was not claimed that a second dwelling was built because the land was unsuitable for farming, and the land‘s past history would have made such a claim untenable.  If that was to be seriously argued, an agricultural expert should have said so, as the logical inference based on past usage (and surrounding land use) is to the opposite effect. (Emphasis in original)

[39]     Mr Clark suggested that had the appellants appreciated that the Court would focus on this issue when the Council had not, they could readily have called expert evidence to show, for example, that there would be little room for vines once turning room for machinery was provided for.

[40]     Ms Radich noted that the Council had spoken of maintaining the character of the  rural  area,  and  suggested  that  loss  of  productive  land  was  implicit  in  that

conclusion.   The Environment Court adopted that argument in a subsequent costs decision.21     I incline to Mr Clark‘s view that preservation of rural character and avoiding loss of productive land are not the same thing.  They are separate objectives in the District Plan.

[41]     There is nonetheless force in Ms Radich‘s submission that the appellants were on notice that they must prove the new lot was effectively useless for agricultural purposes.  The precedent effect of the proposal on rural land was very much in issue, and the appellants knew they had to show that their proposal had no such effect.  That required evidence that - because of the house and garage - the land was out of production already.   Their planning expert, Mr Williams, made that assertion explicitly and the issue was discussed by other witnesses in evidence.

[42]     If the appeal turned on this issue, I would find against the appellants.  They did not lead evidence that they might have done, understandably enough, but they were on notice of the issue and it was addressed to some extent at the hearing, unlike the affected party question.   However, the rehearing will give the appellants the opportunity to call the necessary evidence.

Misdirection in law

[43]     I address briefly Mr Clark‘s submission that, it being common ground that environmental effects were less than minor, the Court erred by considering whether the proposal might nonetheless not be in harmony with the objectives and policies of the District Plan and Part 2 of the Act.

[44]     Mr Clark developed the argument in this way.  As a non-complying activity, the proposal must first pass through one of the two gateways in s 104D, one being that the adverse effects on the environment would be not more than minor, and the other being that the activity that would not be contrary to the objectives and policies of the Plan.  It was common ground that the effects were not more than minor, such that it could be considered on its merits under s 104.  The Court relied in error upon McKenna v Hastings District Council for the proposition that an activity with no

more than minor effects that is also not ―contrary to‖ the Plan‘s objectives or Part 2 principles of the Act may nonetheless be refused consent on the grounds that it is not

―consistent  with‖  the objectives and policies or the Part 2 principles.22     In that

judgment Potter J was  merely reciting counsel‘s submissions, without  endorsing them.  There is no principle that a non-complying activity must be in harmony or compatible with objectives and policies of the Plan. As the Court of Appeal noted in Arrigato Investments Ltd v Auckland Regional Council, by its very nature a non- complying activity is unlikely to find direct support from any specific provision in a plan.23     If taken to its logical extreme, the Environment Court‘s approach would require a non-complying activity to pass both gateways in s 104D.

[45]     Section 104(1) provided at the time that:

104     Consideration of applications

(1)       When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–

(a)      any  actual  and  potential  effects  on  the  environment  of allowing the activity;  and

(b)      any relevant provisions of—

(i)       a national policy statement:

(ii)      a New Zealand coastal policy statement:

(iii)     a  regional  policy  statement  or  proposed  regional policy statement:

(iv)     a plan or proposed plan; and

(c)      any other matter the consent authority considers relevant and reasonably necessary to determine the application.

[46]     It will be seen that the legislation expressly required the consent authority, subject to Part 2, to have regard to any relevant provisions of a plan or proposed

plan.

22     McKenna v Hastings District Council (2009) 15 ELRNZ 41 (HC) at [47].

23     Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA) at [17].

[47]     In this case the Court held, in the second bullet point in [118] (quoted above), that the proposal was indeed contrary to several important policies and objectives of the Plan – contrary both in the strong sense that it would not pass through the second gateway and in the weak sense that it was inconsistent or not in harmony with those policies and objectives.

[48]    I accept Ms Radich‘s submission that in reaching those conclusions the Environment Court did not misread McKenna, which similarly concerned an attempt to subdivide rural land.  The Court in this case referred in particular to [60]-[65] of McKenna.  In [60] Potter J referred to Arrigato and held:

The approach of the Court of Appeal in Arrigato and Smith Chilcott is to require consideration of any relevant provisions of the District Plan under s 104(1)(b)(iv), through the lens of a determination that the proposal has no more than minor effects under s 104(1)(a) and s 104D(1)(a).  But to say that is the end of the matter, as the appellants submit, is to deny the overall broad discretion of the consent authority to consider those actual and potential effects, not more than minor as they may be, in the overall context of the Plan, and also under s 104(1)(c) to consider any other matter the consent authority considers relevant and reasonably necessary to determine the application.

[49]     She  added  at  [65]  that  the  fact  that  a  proposal  passed  through  the  first gateway in s 104D could not exclude consideration of the objectives, policies and other provisions of the plan, notably the objective of promoting the sustainable management of the land resource.

[50]     I respectfully agree with Potter J.  Accordingly, the Environment Court did not err by considering a proposal the effects of which were no more than minor against the objectives and policies of the Plan.  Specifically, it was open to the Court to consider the proposal against the objectives and policies for the Rural 3 zone as well as the Part 2 principles.

Decision

[51]     The appeal is allowed.  The decision of the Environment Court is set aside, and the appeal is remitted to that Court for reconsideration in accordance with this judgment.

[52]     The Court‘s costs decision is also set aside.  If any issue arises as to costs in

this Court counsel may file memoranda.

Miller J

Solicitors:

Wisheart Macnab & Partners, Blenheim for Appellants

Radich Law, Blenheim for Respondent