Auckland Council v High Quality Limited
[2024] NZHC 2238
•9 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1234
[2024] NZHC 2238
UNDER the Resource Management Act 1991 (RMA) IN THE MATTER
of an appeal against a decision of the Environment Court under section 299 of the RMA
BETWEEN
AUCKLAND COUNCIL
Appellant
AND
HIGH QUALITY LIMITED
Respondent
Hearing: 2 and 3 May 2023 Appearances:
A F Buchanan and F Y Cho for Appellant P Fuller and A K Devine for Respondent
Judgment:
9 August 2024
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 9 August 2024 at 1 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: DLA Piper, Auckland
Harry Feng Lawyer, Auckland Ellis Gould, Auckland
Counsel: P Fuller, Auckland
AUCKLAND COUNCIL v HIGH QUALITY LTD [2024] NZHC 2238 [9 August 2024]
Introduction
[1] This judgment determines an appeal by Auckland Council (“Council”) against a decision of the Environment Court of 30 June 2022.1
[2] By its decision, the Environment Court allowed an appeal by the respondent, High Quality Ltd (“High Quality”), against a decision of independent hearing commissioners appointed by the Council.
[3] The Commissioners had declined High Quality’s application for resource consent to establish a light industrial manufacturing activity on a site in Drury, South Auckland (“site”), the activity proposed being the assembly of small portable or mobile cabins. High Quality required resource consent to conduct the activity and to construct a building required, essentially a shed, to accommodate that activity.2 High Quality’s application fell to be considered as one to undertake a discretionary activity under s 104 of the Resource Management Act 1991 (“RMA”).
[4] If the Council succeeds in this appeal, it proposes that I set aside the Environment Court’s decision and refer the case back to the Court for reconsideration in light of the findings of this Court.
Appeal to the High Court
[5]The appeal is brought pursuant to s 299(1) of the RMA which provides:
299 Appeal to High Court on question of law
(1)A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
[6] Given s 299(1), it is for the Council to establish an error of law, that is that the Environment Court applied a wrong legal test; came to a conclusion without evidence or one not reasonably open on the evidence; took into account irrelevant matters; or
1 High Quality Ltd v Auckland Council [2022] NZEnvC 117.
2 In his oral submissions, counsel for High Quality advised that High Quality considered the building could be built “as of right” but the proposed activity meant consent for construction was required.
failed to take relevant matters into account. Any error identified must also be one materially affecting the Environment Court’s decision.3
[7] I note also the comments of Wylie J in Guardians of Paku Bay Association Inc v Waikato Regional Council as follows:4
[31] ... The Environment Court is the sole decision maker responsible for the balancing process required under the Act, and that process is an integral part of the consideration of resource management consents under s 104. The weight to be given to the assessment of relevant considerations is for the Environment Court and is not for reconsideration by this Court as a point of law.
...
[33] The High Court has been ready to acknowledge the expertise of the Environment Court. It has accepted that the Environment Court’s decisions will often depend on planning, logic and experience, and not necessarily evidence. As a result this Court will be slow to determine what are really planning questions, involving the application of planning principles to the factual circumstances of the case. No question of law arises from the expression by the Environment Court of its view on a matter of opinion within its specialist expertise, and the weight to be attached to a particular planning policy will generally be for the Environment Court.
[8] The Council alleges five errors of law. The first two concern errors made concerning what the Council contends are the “precedent/plan integrity” effects raised by High Quality’s proposal; two go to whether High Quality’s proposal is consistent with the applicable policy framework of the Auckland Unitary Plan Operative in Part (“AUP”); and the final one is said to be an error on the part of the Environment Court in its discussion of the Supreme Court decision of Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd.5
[9] For reasons set out below, I do not consider the Environment Court made any of the first four errors alleged or, if it did, that they materially affected the Court’s decision. Given the view I have reached, it is unnecessary for me to consider the fifth alleged error of law because, even if the Council were to establish that error, it would not affect the Environment Court’s decision on High Quality’s application.
3 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC), at 153; and Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271.
4 Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 3.
5 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 [King Salmon].
Background
Site
[10] The site comprises 1.1877 hectares. It is located in the Drury area, to the west of Great South Road and State Highway 1. In his submissions, Mr Fuller, counsel for High Quality, described the surrounding area as characterised by a range of rural, rural-residential, and commercial uses, with some industrial activities occurring on the eastern side of Great South Road, which Mr Fuller said were in close proximity to the site. This description is consistent with the Environment Court’s own, rather more lengthy, description of the locality, following a site visit.
[11] The activity proposed is modest. It requires the construction of the building to which I have referred, and some earthworks to create a parking area. However, and importantly, it does not require subdivision or an upgrading of local infrastructure.
Zoning
[12] The site is located in a “Future Urban Zone” of the AUP. Land so zoned is on the periphery of Auckland’s rural-urban boundary and is land which has been identified for future urban use. “Structure planning”, a process to manage development, followed by a change(s) to the current zoning will be required before the land becomes subject to an urban zoning. The light industrial activity High Quality proposes would generally be considered an urban activity.
[13] The Council has undertaken structure planning in the Drury area, in the Drury-Opāheke Structure Plan 2019. Under this, the site has an indicative future zoning of “Business-Light Industry”. Accordingly, to the extent it is material, High Quality’s proposed activity is consistent with the presently anticipated use of the site.
[14] Some private plan changes have occurred in the Drury area to date, although none directly affect the site. In addition, the Council has also granted resource consent to some applicants to carry out activities in the zone such as the establishment of a self-storage facility; on a temporary basis, a business assembling pre-fabricated
homes; and the construction and operation of a purpose-built warehouse and distribution centre. Mr Fuller referred me to pages of the transcript of his cross-examination of the Council’s planning witness, Mr Powell, in which Judge Smith, the presiding Judge, expressed his concern at learning of these consents so late in the piece.
[15] Ms Buchanan, for the Council, submits that the consents granted for these other applications may be distinguished from High Quality’s on the basis of site and location. That may be so. However, as Mr Fuller submits, the other consents do tend to undermine the Council’s submissions as to precedent/plan integrity effects which are discussed below.
Auckland Unitary Plan
[16] The AUP combines the regional policy statement (“RPS”), regional coastal plan, regional plans and district plans into one plan.
[17]Chapters B2 and H18 of the AUP are central to the Council’s appeal.
Chapter B2
[18] Chapter B2 is part of the Council’s RPS, and is concerned with urban growth and form. I address this chapter below, in connection with the Council’s submissions as to what it contends was an error of law by the Environment Court as to the construction and application of policy B2.2.2(8).
Chapter H18
[19] Chapter H18 concerns the Future Urban Zone. The description of the zone in H18.1 states the zoning applies to “greenfield land” identified as suitable for “urbanisation”, and that the zone is “transitional”. Neither “urbanisation” nor “transitional” is defined but no doubt the transition will be from rural to urban in due course. The description states that land in the zone may be used for a range of general rural activities but not for urban activities pending rezoning.
[20] Parts H18.2 and H18.3 set out, respectively, the objectives for the Future Urban Zone and the policies to implement those objectives.6 H18.4 includes a table specifying the status of land use activities in the zone (“activity table”), from permitted to non-complying. Non-complying activities are those in respect of which the consent authority has the greatest power to withhold consent.7
[21] The light industrial activity proposed by High Quality is not classified in the activity table. As a result, the AUP default status of “discretionary” applies, meaning the application was to be considered under s 104 of the RMA.8
Commissioners’ decision
[22] High Quality’s application for consent was opposed by the Council and owners of several nearby properties. The Commissioners declined consent in part because of adverse effects on the existing rural character and amenity of the immediate locality, and because they considered the proposal “contrary to” several of the objectives and policies of the relevant planning documents. The words “contrary to” appear to derive from s 104D of the RMA, as to which see [28] below. Those words carry a special significance in the context of non-complying activities, as opposed to discretionary activities. Mr Fuller advised me at the hearing that the Commissioners, whilst highly qualified in their fields, did not include a lawyer and so the significance of the distinction referred to below may not have been apparent to them.
Environment Court
[23] The (de novo) hearing before the Environment Court took place over four days, during which the Court heard evidence from, amongst others, surveyors, landscapers, and planners. It is fair to say that some of the Court’s reasons on the issues under scrutiny on appeal are expressed briefly. That is not a criticism. The brevity may reflect that other issues were to the fore at the hearing.
6 Resource Management Act 1991, s 75(1).
7 King Salmon, above n 5, at [16].
8 Auckland Council Auckland Unitary Plan Operative in Part (last updated 12 July 2024) at A1.7.4.
[24] In any event, by the time of the hearing before the Environment Court many of the effects of High Quality’s proposal which had concerned the Commissioners, such as transport issues, stormwater management, and noise, had been resolved. The Environment Court put the two remaining points of difference between the parties as follows:
[22] In the end, we understood this case to turn on two principal points of difference between the planning and landscape experts:
(a)the first was a planning matter as to whether or not development, even within the terms of the proposed activity planning for the area, i.e., in this case industrial, is always contrary to the objectives and policies of the plan. If so, consent should not be granted until a plan change takes place; and
(b)the second issue is whether or not the rural amenity and character in this area would change and if so, what degree of change was permissible in terms of the plan.
[25] As to the first issue, the Court determined that the proposal was not precluded by the relevant objectives and policies. That finding is in dispute.
[26] As to the second issue, the Court determined that the impact of High Quality’s proposal on the rural character and amenity of the locality would be nil to minimal.9 There is no dispute as to that finding.
Sections 104 and 104D RMA
[27] Lastly, it is apparent from the Environment Court’s judgment that it considered many of the Council’s submissions inconsistent with an application to undertake a discretionary activity.
[28] To expand on this, an application for discretionary activity by definition is one that may be granted.10 It is always a possibility that such an application may merit consent when considered against the relevant statutory criteria.11 An application to undertake a discretionary activity falls to be assessed under s 104. An application for
9 High Quality Ltd v Auckland Council, above n 1, at [114].
10 Brial v Queenstown Lakes District Council [2022] NZCA 206, (2022) 23 ELRNZ 817 at [24]; and
Stirling v Christchurch City Council (2011) 16 ELRNZ 798 (HC) at [50].
11 Brial v Queenstown Lakes District Council, above n 10, at [32].
a non-complying activity is also assessed under s 104, but it must first pass one of the threshold tests in s 104D. Either the activity’s effects on the environment must be no more than minor or it must not be contrary to the objectives and policies of the planning documents. Accordingly, the activity status of High Quality’s application was significant.
[29]Turning to s 104(1), it provides:
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 and section 77M, have regard to–
(a)any actual and potential effects on the environment of allowing the activity; and
(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and
(b)any relevant provisions of—
...
(v)a regional policy statement or proposed regional policy statement:
(vi)a plan or proposed plan; and
(c)any other matter the consent authority considers relevant and reasonably necessary to determine the application.
[30] There is no hierarchy of factors or order of analysis. The significance of each factor, and the weight given to each, is for the decision-maker, and it is not for this Court on appeal to interfere.12
Errors of law
[31]I turn now to the errors of law alleged by the Council.
12 Foodstuffs (South Island) Ltd v Christchurch City Council [1999] NZRMA 481 (HC); and
Auckland Regional Council v Roman Catholic Diocese of Auckland [2008] NZRMA 409 (HC).
1. The Environment Court erred in law in finding at [25], [54]-[56] and [104]-
[106] of the decision that precedent/plan integrity effects could not arise in respect of a discretionary activity as opposed to a non-complying activity
[32] The Council submits that the issue of “precedent/plan integrity” effects was squarely before the Court and that those effects were a relevant consideration for the Court under s 104(1)(c), that is a matter “relevant and reasonably necessary” to consider in determining the application.
[33] By precedent effect, the Council does not mean a precedent that is binding in the legal sense but rather:13
[15] ... an earlier decision may be relevant to the determination of a later application. Consistency of treatment, in the absence of a reason justifying inconsistency, is generally regarded as an important aspect of good public administration. In that sense “precedent effect” may be relevant.
[16] This Court held in Manos v Waitakere City Council [1996] NZRMA 145 that precedent effect was a legitimate consideration ... in respect of what was treated as a discretionary activity ...
[34] It is on this basis that the Council submits that the granting of resource consent may create a precedent in an area, undermining the integrity of the plan provisions for that area.
[35] The Council submits that it is open to a consent authority to decline consent for the sole reason that consent will create a precedent and thereby undermine the plan, and it referred me to cases in which this was said to have occurred.
[36] There is no dispute that the granting of consent to one activity, discretionary or otherwise, may have precedent/plan integrity effects, and that this may be a relevant consideration under s 104(1)(c). That said, it is not mandatory to consider such effects and this Court has held that it will be rare for the manner in which the effects are or are not considered to constitute an error of law for the purposes of s 299.14
13 Norwood Lodge v Upper Hutt City Council CA37/06, 4 July 2006.
14 Rodney District Council v Gould [2006] NZRMA 217 (HC) at [99]; and Auckland Regional Council v Roman Catholic Diocese of Auckland, above n 12, at [69].
Discussion
[37] Ms Buchanan referred me to paragraphs of the Environment Court’s judgment in which she submits this first alleged error of law is apparent.
[38]First, in [54] to [56] the Court said:
The AUP approach
[54]The Auckland Council’s opening submissions noted:
The relevant objectives and policies of the AUP regional policy statement (RPS) and FUZ have a clear policy direction that enables land to be used for a range of rural activities but not urban activities until the site is rezoned for urban purposes. The relevant policy framework in the FUZ seeks to ensure that future urban development is not compromised by premature use or development and to maintain rural character and amenity. The Proposal seeks to pre-empt the required plan change process and is inconsistent with those objectives and policies.
As the Proposal could easily be replicated in other FUZ locations, including on adjacent sites, and has no truly unique or distinguishing features it could set a precedent about the appropriateness of light industrial manufacturing activities establishing in the FUZ in advance of FUZ areas being rezoned for urban purposes. It could undermine public confidence in the administration of the AUP FUZ.
[55] We quote from the Council opening proposition because of its relevance to the issues that were advanced in evidence for the Council. With respect, it appears that this statement is inconsistent with the activity status of this area being discretionary and restricted discretionary (discretionary overall). The submission that a discretionary activity needs to have truly unique or distinguishing features appears to be a citation from decisions of the Court in relation to non-complying activities.
[56] Issues of consistency or otherwise with the objectives and policies are clearly relevant in the exercise of the discretion for an application for discretionary activity but cannot be determinative. They are not a threshold to consideration of granting of consent but rather a factor to be weighed with others under s 104 of the Act in considering the application for consent.
[39] With respect to Ms Buchanan, [55] and [56] do not bear out her submission. As Mr Fuller submits, the Court was saying (in [56]) that consistency with plan objectives and policies is relevant in the exercise of discretion under s 104. To the extent the Court said that such issues “cannot” be determinative, the Court was referring to the distinction between non-complying activities where they may well be
determinative under s 104D, and discretionary activities which requires the consent authority to have regard to all the mandatory requirements of s 104.
[40] Ms Buchanan also referred me to paragraphs [25], and [104] to [106] of the Environment Court’s judgment. Paragraph [25] is a summary of the Court’s opinion on the important matters for its decision and [104] and [106] follow its detailed review of the planning documents under s 104(1)(b):
By principle or discretion
[25] Fundamentally, this case occupied so much time because of an argument turning on matters of principle rather than matters of discretion. With respect, we conclude this case raises NO matters of high principle but rather an assessment of the proposal against the Unitary Plan and in addition and in particular, an assessment of rural character in the context of any area undergoing significant change. We now explain our reasoning.
...
Precedent and plan integrity
[104] As we noted earlier, we do not consider this case to be one of high principle. The activity is discretionary. The weight of the relevant objectives and policies and the zoning provisions are considered along with the evidence of actual effects. As it can be seen, most of the effects have been addressed.
[105] No subdivision of land is involved. We are satisfied that there is no compromise to any future urban zoning of this land. The activity will have minimal or no effects on matters including stormwater and other infrastructure installation. We acknowledge that the plan does not encourage, and seeks to actively discourage, changes of use within the FUZ zone prior to its rezoning for urban use.
[106] Nevertheless, the activity is provided for as a discretionary activity. We need to consider all the relevant provisions in reaching a conclusion. This particularly convoluted method gets us to the core issue in this case: is the rural character and amenity of this locality maintained?
[41] Again, these paragraphs do not reveal an error of law. The first two sentences of [25] and [104] repeat one another. They indicate that the Court did not consider the issue of precedent and plan integrity determinative, or even particularly significant, in the context of this application. It was open to the Court to take that view of the matter.
[42]The balance of [104] is a correct statement of the legal position. Paragraph
[105] relates back to matters the Court had discussed relating to policies B2.2.2(8) and H18.3(6). As to [106], Ms Buchanan submits that the issue of precedent effect was
another “core issue” but one the Court failed to address. Again, it was open to the Court to take the view that was not a core issue on the application.
[43]There are two other points to note.
[44] The first is the other consents referred to in [14] above. Ms Buchanan submits these were not a significant factor for the Environment Court, or at least they were not identified in the judgment as such. Even if that is so, and Mr Fuller suggested otherwise, the fact of these other consents would need to be taken into account if I considered the Court had made the alleged error. The other consents would be relevant to whether any purpose would be served by remitting the case back to the Environment Court.
[45] The second point is that the transcript of the proceedings before the Court records a discussion between Judge Smith and Ms Hartley, who appeared for the Council at the hearing, regarding Albert Road Investments Ltd v Auckland Council.15 This was an earlier decision of the Court in respect of an application for resource consent to subdivide land in a Future Urban Zone. Whether the granting of consent would create an adverse precedent was a significant issue in that case. The discussion indicates that both the Judge and Ms Hartley were very familiar with the point. The proposal to subdivide was non-complying but there is no suggestion in the discussion that the Judge saw that as a distinction with High Quality’s case. It is fair to think that it would have become apparent very quickly in that discussion if the Judge was under the impression that precedent and plan integrity effects were irrelevant or could not arise in the context of an application to undertake a discretionary activity.
[46] To conclude on this ground, the Court did not find that precedent and plan integrity effects could not arise in respect of a discretionary activity. Rather it found they were not determinative of High Quality’s application, and that determination was open to the Court.
15 Albert Road Investments Ltd v Auckland Council [2018] NZEnvC 102.
2 The Environment Court erred in law in failing to provide any or adequate reasons in the decision for its finding that precedent/plan integrity effects could not arise in respect of a discretionary activity
[47]The Court did not make the finding to which this alleged error refers.
3. The Environment Court erred in its interpretation and application of AUP Regional Policy Statement Policy B2.2.2(8) in Chapter B2 Urban Growth and Form of the AUP
[48] The Council submits that the Court erred in its construction and application of policy B2.2.2(8), this policy being in Chapter B2 of the AUP. Policy B2.2.2(8) is one of a few in B2.2 which refer expressly to land that is zoned Future Urban, although other policies in B2 are of general application.
[49]B2.2.2(8) provides:
B2.2.2. Policies
...
(8) Enable the use of land zoned future urban within the Rural Urban Boundary or other land zoned future urban for rural activities until urban zonings are applied, provided that the subdivision, use and development does not hinder or prevent the future urban use of the land.
Chapter B2
[50] Part B2.1 of Chapter B2 identifies the issues to be addressed when making provision to accommodate demand for housing, employment, business, infrastructure, and so on created by Auckland’s increasing population. Part B2.1 is followed by seven additional parts, each with its own objectives and policies, covering the matters to which I have just referred. Pursuant to s 67 of the RMA, a regional plan must state the objectives for the region and the policies intended to implement the objectives.16
[51] Aside from urban growth and form, the additional parts of B2 address matters such as a “quality built environment”; provision for commercial and industrial growth (B2.5); and rural and coastal towns and villages.
16 Likewise for a district plan under s 75 of the Resource Management Act 1991.
[52] The Court addressed the issues in B2.1 and then turned to the objectives and policies in B2 that the planning experts had referred to in their evidence. High Quality’s expert, Mr Shuker, had emphasised those which required that there be sufficient development capacity and land to accommodate industrial growth. Mr Powell, the Council’s expert, had emphasised the issues listed in B2.1, B2.2.2(3) (discussed below), and then B2.2.2(8). The Court’s discussion of B2.2.2(8) follows, with Ms Buchanan focusing on what is said in [74] and [75]:
[72] B2.2.2(8) enables the use of land zoned future urban within the Rural Urban Boundary or other land zoned future urban for rural activities until urban zonings are applied, provided that the subdivision, use and development does not hinder or prevent the future urban use of the land.
[73] It is clear that the plan prefers that development occur following a structure planning and plan change process. In this case, the structure planning has occurred, but no plan change for this particular part of the Future Urban Zone has been adopted. The meaning of “plan change processes” is interesting and envisages some form of continuous or stepped change from one zone to another. This may mean that not only structure plans but applications for and grants of plan changes in respect of land within the same future urban zoning area (Drury) may be relevant to the consideration of an individual application.
[74] Notwithstanding this, it is clear from B2.2.2(8) that land use other than simple rural activities might be contemplated. It discusses in particular “subdivision, use and development [which] does not hinder or prevent future urban use of the land”. Given that the status of this activity is discretionary it cannot be said that it was not envisaged that such an application could be made in the zone or even granted.
[75] The proposition that the proposal is inconsistent with B2.2.2(8) because they seek to establish an industrial activity on FUZ land does not appear to follow directly from B2.2.2(8). It is clearly not a rural industry or a rural activity but that does not explain why the activity is provided for as a discretionary activity. We have concluded that this application does not achieve B.2.2.2(8). However, the meaning of that provision needs to be considered in light of the balance of the provision which does appear to provide for some development in the area provided it does not hinder or prevent “the future urban use of the land”.
[53] No issue arises as to [72] or [73], but Ms Buchanan submits that the Court erred when it said in [74] that it was “clear from B2.2.2(8) that land use other than simple rural activities might be contemplated”, and in [75], when it said the meaning of the policy needed to be considered in light of the proviso, that is that any subdivision, use and development was not to hinder or prevent the future urban use of the land.
[54] Ms Buchanan submits that the Court misconstrued B2.2.2(8), and that the reference to subdivision, use and development is only in respect of the “rural activities” referred to earlier in the provision. Ms Buchanan submits that the provision recognises that some subdivision, use and development may occur prior to rezoning, but only for rural activities and subject to it not hindering or preventing future urban use of the land.
[55] Ms Buchanan also submits that other objectives and policies in B2.2 support the Council’s interpretation, and likewise if regard is had to other provisions of the AUP, in H18.1.17
[56] Mr Fuller supports the Court’s construction. He submits the Council’s submission, that B2.2.2(8) permits only of rural activities on land within the Future Urban Zone pending rezoning, is incorrect, as it fails to account for the immediate context of related objectives and policies. In his oral submissions, Mr Fuller also emphasised the use of the word “enable”, submitting that whilst B2.2.2(8) enables the continued use of the land for rural activities, it does not prohibit or preclude its use of the land for non-rural activities. Mr Fuller also referred me to other provisions in the AUP which he submits support his analysis of B2.2.2(8).18
[57] Given the decision I have reached, it is unnecessary for me to discuss the other provisions counsel referred me to, or indeed the Environment Court’s comments on Albert Road to which Mr Fuller also referred me as supportive of his submission.19
Construction
[58] Counsel agree that the principles to be applied in the construction of provisions in planning documents are set out in Powell v Dunedin City Council.20 It is necessary to seek the plain meaning of a rule from the words of the rule themselves, but inappropriate to undertake the exercise in a vacuum. Regard must be had to the
17 Auckland Unitary Plan Operative in Part, above n 8, at B2.2.1(3) and (5), B2.2.2(3) and (7), B2.9, H18.1, and H18.2(1), (2) and (4).
18 At H18.2(3) and (4), H18.3(3), and H18.3(6).
19 Albert Road Investments Ltd v Auckland Council, above n 15.
20 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA).
immediate context and, if any obscurity or ambiguity arises, it may be necessary to refer to other sections of the plan and the objectives and policies of the plan itself.21
Discussion
[59] Focusing on the words in B2.2.2(8) exclusively, there is force in Ms Buchanan’s submission that the subdivision, use and development provided for is subdivision, use and development for rural activities. That is the natural reading of B2.2.2(8).
[60] However, that is not to say there was an error of law because the Environment Court also read the provision that way. That is why it said in [75], “We have concluded that this application does not achieve B2.2.2(8)”. It did not achieve it because it was not an application to undertake a rural activity.
[61] Leaving aside the activity for the moment, the proviso to B2.2.2(8) does contemplate that there may be subdivision, use and development in the Future Urban Zone provided that it does not hinder or prevent the future urban use of the land.
[62] It is not entirely clear to me what the Court meant by the first sentence in [74], but the balance of that paragraph and [75] reflect the discretionary status of the High Quality activity. Once it is accepted that activity might be granted consent, then it also must be accepted that the consent authority might grant consent to subdivide, use or develop land in the zone for that activity, provided always that doing so did not interfere with the future urban use of the land. This possibility could only be reduced by giving light industrial activities a non-complying status in the zone, as Mr Fuller advises is the position in several other zones, or by prohibiting the activity in the zone altogether.
[63] Lastly, as Mr Fuller submits, the use of the word “enable” in B2.2.2(8) is significant. As the Supreme Court said in King Salmon, such words in planning documents are chosen deliberately.22 The Court itself focused on the word “enabled” in [76] (not quoted above) in which it referred to another objective of the RPS,
21 At [35].
22 King Salmon, above n 5, at [127].
B2.5.1(3), which provides that industrial growth and activities are to be enabled. As the Court said, to enable one activity is not to prohibit all others.
[64] I do not accept that B2.2.2(8) prohibits subdivision, use or development of land in the Future Urban Zone unless for the purpose of rural activities, and so I do not accept that the Environment Court erred in law on this point.
4. The Environment Court erred in law in failing to have regard to relevant considerations
[65] The Council submits that the Court erred in law in failing to have regard to two relevant considerations.
[66] The first is whether High Quality’s proposal amounted to “urbanisation” in light of objectives H18.2(1) and (4) in Chapter H18 of the AUP.
[67] The second is the Commissioners’ decision, the Court being required to have regard to this pursuant to s 290A of the RMA. In particular, Ms Buchanan submits the Court did not have regard or sufficient regard to the second reason the Commissioners gave for declining consent:
II. The proposal will result in urbanisation of land zoned ‘Future Urban’ before it has been rezoned for urban purposes and may compromise aspects of such future urbanisation. It is contrary to Objectives H18.2.(1), (3), and (4) and Policy 18.3.(6).
[68] There is no dispute that “must have regard” means “to give genuine attention and thought”.23
Urbanisation
[69] Counsels’ principal submissions on this ground are addressed in the following discussion of this ground. I mean no disrespect to them if I have not addressed every one of them, and in particular their submissions on what does and does not constitute
23 Unison Networks Ltd v Hastings District Council HC Wellington CIV-2007-485-896, 11 December 2007 at [62].
urbanisation. It is unnecessary to go beyond the matters required to address this alleged and confined fourth error.
[70] Ms Buchanan submits, and Mr Fuller agrees, that the Court was required to consider whether High Quality’s proposal was consistent with objectives H18.2(1) and
(4) of the Future Urban Zone and, in particular, whether it amounted to “urbanisation” in advance of rezoning. It is also common ground that all the objectives in H18.2 are intended to implement the policy approach to the Future Urban Zone that is apparent in Chapter B2, and particularly policy B2.2.2(3) which provides:
(3) Enable rezoning of future urban zoned land for urbanisation following structure planning and plan change processes in accordance with Appendix 1 Structure plan guidelines.
[71] This reflects the ultimate rezoning of land in the zone. However, it is important to bear in mind this was simply an application for resource consent to undertake an activity on a single site.
[72]The four objectives for the zone listed in Part H18.2 are:
H18.2. Objectives
(1)Land is used and developed to achieve the objectives of the Rural – Rural Production Zone until it has been rezoned for urban purposes.
(2)Rural activities and services are provided for to support the rural community until the land is rezoned for urban purposes.
(3)Future urban development is not compromised by premature subdivision, use or development.
(4)Urbanisation on sites zoned Future Urban Zone is avoided until the sites have been rezoned for urban purposes.
[73] It is then necessary to consider the policies implementing the objectives. I note Ms Buchanan’s submission that not every objective may have an implementing policy or policies. That may be so but I am not persuaded that this is such a case, given the evidence of Mr Shuker referred to in [78] below.
[74]The policies in H18.3 are:
H18.3 Policies
(1)Provide for use and development which supports the policies of the Rural – Rural Production Zone unless that use and development is inconsistent with policies H18.3(2) to (6).
(2)Enable activities that are reliant on the quality of the soil or require a rural location to operate or which provide for the day to day needs of the local rural community.
(3)Require subdivision, use and development to maintain and complement rural character and amenity.
(4)Avoid subdivision that will result in the fragmentation of land and compromise future urban development.
(5)Prevent the establishment of more than one dwelling on a site except for the provision for minor dwellings and workers’ accommodation.
(6)Avoid subdivision, use and development of land that may result in one or more of the following:
(a)structures and buildings of a scale and form that will hinder or prevent future urban development;
(b)compromise the efficient and effective operation of the local and wider transport network;
(c)require significant upgrades, provisions or extension to the wastewater, water supply, or stormwater networks or other infrastructure;
(d)inhibit the efficient provision of infrastructure;
(e)give rise to reverse sensitivity effects when urban development occurs;
(f)give rise to reverse sensitivity effects in relation to existing rural activities or infrastructure; or
(g)undermine the form or nature of future urban development.
Submissions
[75] Ms Buchanan submits that, although the Court referred to the Council’s submission that the general policy direction of the zone is to “hold the line” pending rezoning and, importantly, avoid urbanisation pending rezoning, the Court did not bring H18.2(1) and (4) to bear on its consideration of High Quality’s application.24
24 RJ Davidson v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 at [73].
Ms Buchanan does not submit the Environment Court would necessarily have declined High Quality’s application but for this error, but rather that it might have done so.
[76]I do not accept that the Court erred as Ms Buchanan submits.
[77] Starting with objective H18.2(1), as Mr Fuller submits, that provision does not prohibit a grant of consent to undertake a non-rural activity. Clearly it encourages use and development to achieve the objectives of the Rural – Rural Production Zone, but it does not prohibit a grant of consent to undertake a non-rural activity. Also, as the Court said, policy H18.3(3) “hint[s] at a broader range of activities than those which are encouraged”.25 That is correct. It would be unnecessary for “subdivision, use and development” to maintain and complement rural character and amenity if only rural activities were contemplated.
[78] The Court then turned its attention to policy H18.3(6). It is implicit in its doing so that it was addressing H18.2(4) and whether what High Quality proposed constituted urbanisation. There would be no other reason to address H18.3(6). Moreover, the evidence to the Court from Mr Shuker was that it was policy H18.3(6) that implemented objective H18.2(4). (Mr Powell disagreed but that is not a matter for this Court.)
[79] The Court went on to address the individual requirements of H18.3(6) in detail, setting out the reasons why High Quality’s proposal is consistent with each of them. The proposal does not, for instance, require an upgrading of significant infrastructure, compromise the transport network, or create reverse sensitivity effects.
[80] In summary, the Court considered that H18.3(6) implemented H18.2(4). It assessed the proposal against the listed criteria and it found consistent. It is implicit in this that the Court was satisfied High Quality’s proposal was not urbanisation in the sense of H18.2(4).
[81] Accordingly, whilst I accept that the Environment Court’s reasoning process could have been more clearly stated than it was, I do not accept that the Environment
25 High Quality Ltd v Auckland Council, above n 1, at [94].
Court failed to have regard, or sufficient regard, to whether High Quality’s proposal amounted to urbanisation.
Commissioners’ decision
[82] Turning to the Commissioners’ decision, their discussion of whether High Quality’s proposal would result in premature urbanisation was brief. The Commissioners recounted the evidence they heard and reached the conclusion referred to in [67] above, but without any analysis. The Environment Court made no error in not discussing that particular aspect of the Commissioners’ decision in detail.
5. The Court erred in its interpretation of relevant authorities in assessing those as being to the effect that plan provisions cannot determine whether consent should be granted to a discretionary activity
[83]At [100] of its decision, the Court said:
[100] Putting aside rural character and amenity, the question is whether or not a discretionary activity can effectively be prohibited by the wording within policies or rules. Certainly that is not our understanding of the decision of Environmental Defence Society Inc v New Zealand King Salmon Company Ltd although this was quoted to us by the Council. Albert Road Investments v Auckland Council is quoted by the applicant relating to a two-lot subdivision containing one house within the Future Urban Zone at Warkworth.
(Footnotes omitted)
[84] The Council submits that the Court erred in this paragraph. The Council submits that the gist of [100] is that the wording of plan provisions cannot determine whether consent should be granted to a discretionary activity, and this is incorrect. Ms Buchanan submits that the statement is inconsistent with the Court of Appeal’s statement in RJ Davidson Family Trust v Marlborough District Council that “It may be ... that a fair appraisal of the policies [in a plan] means the appropriate response to an application is obvious, it effectively presents itself”.26
[85] Ms Buchanan submits that this statement from RJ Davidson is itself consistent with the Supreme Court’s statement in King Salmon “it may be that a policy is stated in such directive terms that the decision-maker has no option but to implement it”.27
26 RJ Davidson v Marlborough District Council, above n 24, at [74].
27 King Salmon, above n 5, at [129].
[86] Underlying this fifth alleged error of law is the Council’s contention that H18.2(4) made the appropriate response to High Quality’s application “obvious” and “effectively present[ing] itself”.
[87] That may have been, and may continue to be, the Council’s view of H18.2(4). However, the Environment Court did not share that view, and I am not persuaded that it was wrong, particularly given Mr Shuker’s evidence.
[88] Given that, no purpose is served by my addressing this issue and I decline to do so.
Result
[89]I dismiss this appeal.
[90] The parties may file brief submissions on costs if they wish and in the absence of agreement.
[91]I also reserve leave to apply.
Peters J
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