Auckland Regional Council v Living Earth Limited HC Auckland Civ-2006-404-6659
[2007] NZHC 1917
•26 June 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2006-404-006659
IN THE MATTER OF the Resource Management Act 1991
AND
IN THE MATTER OF an appeal pursuant to s 299 of the Act against Decision No A126/206 of the Environment Court
BETWEEN AUCKLAND REGIONAL COUNCIL Appellant
ANDLIVING EARTH LIMITED Respondent
Hearing: 19 February 2007
Appearances: R B Enright and L S Fraser for the Appellant
D A Kirkpatrick and T Daya-Winterbottom for the Respondent
Judgment: 26 June 2007 at 3.00 pm
JUDGMENT OF FRATER J
This judgment was delivered by Justice Frater on 26 June 2007 at 3.00 pm, pursuant to
r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: D A Kirkpatrick P O Box 5844 Wellesley Street Auckland and
T Daya-Winterbottom P O Box 75945 Manurewa for the Respondent
Solicitors: Kensington Swan Private Bag 92101 Auckland for the Appellant
Martelli McKegg Wells and Cormack P O Box 5745 Auckland for the
Respondent
ARC V LIVING EARTH LTD HC AK CIV-2006-404-006659 26 June 2007
Introduction
[1] This is an appeal by the Auckland Regional Council against the decision of the Environment Court, delivered on 4 October 2006, granting Living Earth Limited resource consents to establish a green-waste composting operation on Puketutu Island in the Manukau Harbour.
[2] The principal issues on appeal concern the manner in which the Court dealt with the strategic direction provisions of the Auckland Regional Policy Statement (ARPS) and its application of the permitted baseline.
Background
[3] Living Earth is in the business of composting. Its Auckland operation is currently located at Pikes Point in Onehunga, where it processes around 50,000 tonnes of green-waste into compost per annum.
[4] In July 2004, in anticipation that its lease of this site would expire this year, Living Earth applied to the Auckland Regional Council and the Manukau City Council for resource consents to relocate its business to the Puketutu Island site. Both Councils declined the applications and they, along with tangata whenua, the local Residents and Ratepayers’ Association and two neighbouring businesses: Watercare Services Ltd and Villa Maria Estate, opposed Living Earth’s appeal to the Environment Court. Only the Regional Council has pursued its objections on appeal to this Court.
[5] It is proposed that the new composting operation will process up to 75,000 tonnes of green-waste per year over a maximum of 10 years. Living Earth has undertaken to close down the activity if, within that period, another, more appropriate, site becomes available.
[6] The process will involve receiving green-waste from transfer stations around
Auckland, decontaminating and shredding it, placing the shredded waste in open
windrows, turning it frequently for about 12 weeks while it decomposes, screening out larger remaining material and bagging and distributing the final product.
[7] The proposed site covers 12 hectares on the southern corner of Puketutu Island. It is separated from the Manukau Harbour by a road and foreshore. Like most of the island it is owned by the Sir Henry Kelliher Charitable Trust. The Trust has agreed to lease it to Living Earth for up to 20 years.
[8] Puketutu Island has an area of about 193 hectares. It was created by volcanic activity and is linked to the mainland by a causeway. Since 1954 it has been extensively quarried and this activity continues on the western side of the island. To the north there are a function centre and restaurant, and some farm cottages and associated buildings. Outside the quarry areas the land is predominantly in pasture.
[9] The planning instruments having a bearing on the applications are the New Zealand Coastal Policy Statement; the ARPS, including proposed Change 6; the Auckland Regional Plan: Coastal and Sediment Control; the Proposed Auckland Regional Plan: Air, Land and Water, and the Manukau City District Plan.
[10] Puketutu Island is located within an area designated on the District Plan as the Mangere-Puhinui Heritage Zone. Under the ARPS that area has been placed outside the metropolitan urban limits (MUL).
[11] Five resource consents were applied for: four from the Regional Council – to discharge contaminants from the composting operation into the air, to divert and discharge stormwater, for an industrial or trade process to carry out green-waste composting and for land use consent for sediment control; and from the City Council, for land use consent to establish the green-waste composting activity, with associated works and facilities on the island.
[12] For assessment purposes the proposal was treated as a non-complying activity: the most restrictive status of the various consents sought.
Approach on appeal
[13] This appeal is brought under s 299 of the Resource Management Act 1991 (RMA). It is limited to questions of law. The approach to be taken on such appeals is well settled. In Countdown Properties (Northlands) Limited v Dunedin City Council [1994] NZRMA 145 at 153, a full Court of the High Court explained the position thus:
… this Court will interfere with decisions of the Tribunal only if it considers that the Tribunal:
• applied a wrong legal test; or
• came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
• took into account matters which it should not have taken into account; or
• failed to take into account matters which it should have taken into account.
…
Moreover, the Tribunal should be given some latitude in reaching findings of fact within its areas of expertise; …
… Any error of law must materially affect the result of the Tribunal’s decision before this Court should grant relief …
[14] See also, to the same effect, the comments of Blanchard J in Stark v Auckland Regional Council [1994] 3 NZLR 614 at 617 and Potter J in Nicholls v Papakura District Council [1998] NZRMA 233 at 235.
Relevant statutory provisions
[15] The Environment Court held that Living Earth’s resource consent application was to be determined in accordance with the provisions of the RMA as amended in
2003, and that the amendments made by the 2005 Amendment Act did not apply. Counsel accept that position.
[16] The provisions of the RMA in issue on this appeal are ss 104 and 104D
which provide, in material part 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.
(2)When forming an opinion for the purposes of subsection (1)(a), a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect.
...
104D Particular restrictions for non-complying activities
(1)Despite any decision made for the purpose of section 93 in relation to minor effects, a consent authority may grant a resource consent for a non-complying activity only if it is satisfied that either—
(a)the adverse effects of the activity on the environment (other than any effect to which section 104(3)(b) applies) will be minor; or
(b) the application is for an activity that will not be contrary to the objectives and policies of—
(i)the relevant plan, if there is a plan but no proposed plan in respect of the activity; or
(ii) the relevant proposed plan, if there is a proposed plan but no relevant plan in respect of the activity; or
(iii) both the relevant plan and the relevant proposed plan, if there is both a plan and a proposed plan in respect of the activity.
(2)To avoid doubt, section 104(2) applies to the determination of an application for a non-complying activity.
The decision under appeal
[17] The hearing before the Environment Court extended over 19 days. The subsequent decision is lengthy (137 pages).
[18] The format of the decision follows that endorsed by the Environment Court in Baker Boys Limited v Christchurch City Council (1998) 4 ELRNZ 297; [1998] NZRMA 433 (Env C).
[19] After outlining the proposal, the Court identified the applicable planning instruments and discussed what it saw as the relevant provisions of each. Having regard to them it classified the proposed activity as:
• industrial with rural elements; and
• for the purposes of the ARPS, urban, not rural; but
• not a regionally significant infrastructure.
[20] In the course of addressing these issues it also considered the steps taken by
Living Earth to find suitable a suitable alternative site.
[21] Next the Court turned its attention to the requirements of s 104 of the RMA. In terms of s 104(1)(a) it found that:
• the receiving environment of Puketutu Island would include continuation of quarrying, clean filling and earthworks activities until 2010; public recreational and cultural use of the Watercare walkway and associated harbour; revival of the restaurant; ongoing farming activities, including livestock grazing; continued filling of Watercare’s bio-solid ponds until
2010; and increased public use of the Ambury Regional Park to
Otuataua Stonefields walkway and associated facilities;
• the proposed green-waste processing and the production of compost, mulch and other soil conditioning mixtures can and does have a positive beneficial effect on the environment, both by reducing the quantity of garden waste otherwise sent to landfills and by producing valuable materials for soil conditioning;
• conversely, it would have no more than minor adverse effects on the environment in terms of geology, archaeological and cultural heritage values, the Mäori dimension, European cultural heritage, visual and landscape effects, noise, traffic, erosion and sediment control, stormwater management and treatment and insects.
[22] The next topic was s 104D and the statutory baseline, which the Court decided to apply by disregarding any potential adverse effects from noise, odour and earthworks.
[23] Then, under the headings “precedent effect”; “plan integrity, coherence and public confidence”; and “cumulative effects”: the Court found that:
• Although granting approval to Living Earth’s proposal “would have some potential precedent effect”, granting consent would not undermine the integrity or coherence of the District Plan or the public’s confidence in it;
• Nor would it result in cumulative adverse effects on the environment.
[24] Bearing all these findings in mind, the Court moved on to consider the proposal against the relevant provisions of the regional and district planning instruments. But in order to do so “in a reasonably concise way”, without “making a point by point examination in respect of each provision”, the Court did this by reference to the important themes of the instruments, namely:
(a) The Island’s natural character
(b)Protection and maintenance of the environment, including the coastal environment
(c) Inappropriate use and development
(d) Efficient use of resources
(e) Significant heritage values, including geological values
(f) Features of significance to iwi
(g) Air, land and water quality
(h) Adverse effects of waste management
(i) Activities which could occur on the composting site as of right.
[25] And, having done so, the Court said:
[485] In summary we find the proposal would be generally consistent with the relevant themes of the planning instruments except that, being an urban, industrial activity, locating it beyond metropolitan urban limits would not serve the strategic direction and urban growth provisions of the ARPS. Even so, on our findings about environmental effects, the composting plant would not have any of the classes of adverse effect identified as threats posed by urban development beyond the metropolitan urban limits. Nor, being a temporary activity, would it prematurely foreclose or compromise options for future growth or development of urban areas.
[26] The Court then considered the terms and conditions of consent, and, in particular, whether the term should expire on 31 December 2010, when the classification of mineral extraction activities and clean filling on Puketutu Island were changed from discretionary to non-complying activities. On the assumption that these activities would not continue thereafter, the Court said:
[498] … If it were not for the baseline, the effects of the composting could then have significance, particularly if management of the activity is ineffective in maintaining satisfactory performance. The exercise of the consents should not continue after cessation of quarrying for longer than would be reasonable for the consent-holder’s investment in developing the site to yield value. There is no evidence for making a judgement of that. But Living Earth’s undertaking to cease exercise of the consents, and surrender them, if an alternative site is consented, is an indication of its expectation that its investment in developing the site could yield value within the 10-year term sought by it.
[27] As it found that both statutory conditions under s 104D were met, the Court considered that it had power to grant resource consent for the proposal as a non- complying activity.
[28] Finally, in its evaluative judgment the Court concluded:
[600] The proposed composting is to reduce the quantities of green-waste from Auckland that is disposed of in unsatisfactory ways (particularly adding to landfills), and to re-use it by creating compost suitable as a soil conditioner. The endorsement of this kind of process by the regional and district planning instruments reflects its contribution to sustainable management of natural and physical resources. Living Earth’s particular proposal to do so is acceptable as such because it incorporates measures avoiding, remedying and mitigating effects on the environment.
[601] Some effects in conflict with that remain after our consideration and making findings on the evidence. In particular, there are the important strategic direction and management of growth of the ARPS; the risk (a low probability) of annoying or even offensive odours from the composting process affecting users of the coastal walkway and adjacent foreshore; potential adverse effects (though minor) on archaeological evidence and other heritage values, and on visual and landscape values. There would also be some potential of a precedent effect.
[602] We do not belittle any of those conflicting considerations.
[603] However the specific proposal, particularly because of the limited building and works involved, the limited duration, and the ultimate rehabilitation of the site, would not pose the threats that urban development outside the metropolitan urban limits generally would. None of the potential adverse effects would be more than minor.
[29] The Court therefore allowed the appeal and granted the applications, on conditions, developing for a limited term of 10 years.
Questions of law
[30] The Regional Council asserts that, in reaching this decision the Environment Court made errors of law of sufficient materiality to warrant remitting the matter back to that Court for further consideration.
[31] Five questions of law are posed. The first three overlap. They each raise different issues concerning the application of the ARPS. Those questions, after concessions made at the hearing, are:
i)Whether the Environment Court erred in its evaluation of the precedent and planning integrity effects of granting approval to the proposal;
ii)Whether the Environment Court … misinterpreted relevant provisions of the ARPS that relate to strategic growth management, particularly through the avoidance of adverse regional precedent effects or impacts upon the integrity of the ARPS, … that require urban development to locate within metropolitan urban limits;
iii)Whether the Environment Court wrongly failed to consider plan change 6 to the ARPS.
[32] The remaining questions are:
iv)Whether the Environment Court erred in its application of the statutory baseline under s 104(2) of the Act; and
v)Whether, in assessing the overall merits of the proposal, the Environment Court had regard to an irrelevant consideration as to the alleged “personal antagonism” of the consent authorities towards the applicant or alleged favouritism towards competitors.
Precedent and integrity effects
[33] Mr Enright acknowledged that issues as to precedent and plan integrity, while relevant, are not mandatory considerations on applications for consent to non- complying activities. Cooper J made this clear in his judgment in Rodney District Council v Gould [2006] NZRMA 217 (HC) at 238 where he said, in relation to the predecessors of ss 104 and 104D:
[99] The Resource Management Act itself makes no reference to the integrity of planning instruments. Neither does it refer to coherence, public confidence in the administration of the district plan or precedent. These are all concepts which have been supplied by Court decisions endeavouring to articulate a principled approach to the consideration of district plan objectives and policies whether under s 104(1)(d) or s 105(2A)(b) and their predecessors. No doubt the concepts are useful for that purpose but their absence from the statute strongly suggests that their application in any given case is not mandatory.
[34] The Court in this case started its consideration of the precedent issue by citing from the judgment of the Court of Appeal in Dye v Auckland Regional Council [2002] 1 NZLR 337 where Tipping J said, at 347:
[32] The granting of resource consent has no precedent effect in the strict sense. It is obviously necessary to have consistency in the application of legal principles, because all resource consent applications must be decided in accordance with the correct understanding of those principles. But a consent authority is not formally bound by a previous decision of the same or another authority. Indeed in factual terms no two applications are ever likely to be the same; albeit one may be similar to another. The most that can be said is that the granting of one consent may well have an influence on how another application should be dealt with. The extent of that influence will obviously depend on the extent of the similarities …
[35] It also noted comments by Baragwanath J in Murphy v Rodney District Council [2004] NZRMA 393; 10 ELRNZ 353 (HC) about public concerns that like cases be treated alike, but countered them with a quote from Cooper J in Gould at [102] that:
… if a case is truly exceptional, and can properly be said to be not contrary to the objectives and policies of the district plan, such concerns may be mitigated, may not even exist.
[36] Applying these principles to the proposal before them the Court said:
[419] So in assessing whether consenting to the composting activity would be likely to have a precedent effect, we consider whether another resource- consent application would be more likely to be granted, out of consistency with the composting decision.
[420] In this case, the similarity of the proposal would not need to be close to have a precedent effect. The likelihood could arise with a proposal for any activity that might be perceived as regional infrastructure, and which the planning instruments indicate should be located within metropolitan urban limits, absent evident dependence on being in the location proposed.
[37] In reliance upon the evidence of the Regional Council’s planner, Mr Lawrence, with which two other experts generally concurred, the Court concluded, at [422], that approval of the proposed operation would have “some potential of a precedent effect”.
[38] The Court then considered submissions that granting consent would undermine the integrity or coherence of the planning instruments and/or public confidence in them, and rejected them insofar as the District Plan was concerned.
[39] After citing from the decision of the Planning Tribunal in Batchelor v
Tauranga District Council (1992) 1 NZRMA 266 that:
In many classes of case where a non complying activity would pass the constraints of section 105(2)(b) [now s104D], the grant of consent would not affect that confidence. That is because the circumstances of the particular case can be seen as having some unusual quality, such that the consent authority’s action in granting consent cannot be perceived as inconsistent with its continuing to require general observance of the plan.
However, other cases for non-complying activities may lack such an evident unusual quality. If a consent authority were to consent to those activities, public confidence in its consistent application of the rules may be impaired. Also, the district plan may lose coherence if compliance with some rules is excused by the consent authority in cases where that conflicts with the policy which the rules are intended to implement.
the Court said:
[432] The scheme of the Act includes the power of a consent authority to consent to a non-complying activity if one of the conditions in section 104D is fulfilled. So an opponent to a proposal for a non-complying activity will not necessarily prevail by referring to investment made in reliance on the zoning rules being complied with by others. In a case in which one of the conditions is fulfilled, the granting of consent to a non-complying activity does not necessarily affect the coherence or integrity of a plan, nor justify a lack of public confidence in its principled administration.
[433] In this case the proposal is a non-complying activity not because the district plan specifically classifies composting activity on the site as a non- complying activity. Rather, the activity is a non-complying activity because it is so unusual and exceptional that it is not specifically provided for at all.
[434] If, in the event, the Court allows Living Earth’s appeal and grants the resource consents required for its proposal, that will be because, following a fully contested public hearing, it has come to the judgement that the purpose of the Act would be better served by doing so than by refusing consent, and has published its reasons for coming to that judgement.
[435] So although we do not accept Mr Serjeant’s opinion that the proposal would not offend the district plan, we do accept his opinion that granting consent would not justify public confidence in the principled administration of the plan being shaken. If the Court grants the consents, an interested member of the public would be able to discover and understand the reasons why, despite being a non-complying activity, consent was granted.
[436] For those reasons we do not accept the submissions that granting consent would undermine the integrity or coherence of the district plan or the public confidence in it. …
[40] Mr Enright submitted that in reaching those decisions the Court erred in that it:
• did not assess whether the circumstances of the particular case had evident unusual qualities such that the integrity of the relevant planning instruments would not be adversely affected; in fact, he said, by holding that the proposal would result in a potential precedent effect it found the reverse;
• took into account the irrelevant points that the proposal was not “specifically” classified as a non-complying activity by an express provision of the District Plan, and that it had been granted approval “following a fully contested public hearing”;
• limited its consideration to the integrity of the District Plan and failed to evaluate whether granting approval to the proposal would adversely affect the integrity of the regional planning instruments, and in particular, the ARPS.
[41] The first point I would make in response is that a finding that granting consent to a non-complying activity will have a precedent effect does not inevitably lead to a conclusion that the integrity of the relevant plan will be undermined or that public confidence in it will be lost: see, for example, Olive Branch Investments Ltd v Central Otago District C45/2005 7 April 2005 (Env C) at [65].
[42] Obviously if the proposed activity is so unusual or exceptional that it will not set a precedent for future applications that will serve to allay any concerns the public may have about the effect of it on the planning system as a whole, or as Cooper J said in Gould at [102], public confidence issues may not arise at all. But that is not the case here. The Court held both that the proposed activity was unusual and that
granting consent could set a precedent. But it recognised that “precedent”, “plan integrity” and “public confidence” were separate issues, and treated them as such.
[43] In my view there is no logical inconsistency between finding, on the one hand, that the proposal would have some potential precedent effect, and that it was unusual. And Mr Lawrence, the ARC’s planner, conceded as much in cross- examination.
[44] The Court’s comment that the proposed activity is unusual and exceptional because the District Plan does not specifically provide for it needs to be seen in the context of the earlier discussion about its status. The proposal is not unusual simply because it is a non-complying activity. It is unusual because of the type of activity involved. Living Earth carries on one of only two large-scale composting operations within the Auckland region. Green waste composting does not fit easily within any of the existing consent categories. The Court deemed it an urban activity because it fell within the broad definition of industry in the District Plan. Significantly, other industries such as farming are permitted activities on the site. I accept that, in the circumstances, the fact that it is not specifically mentioned in the plan does underscore its difference; its unusualness.
[45] The Court made clear, however, that the potential precedent effect of any decision it might make to grant consent was not dependent on the unusualness of the activity. It specifically said, at [420], that it would not be linked to similarities; rather it would arise because of the status and permitted location of the activity in terms of the regional planning instruments.
[46] Accordingly, I do not accept Mr Enright’s submission that the fact that the hearing was held in public and that detailed reasons for the decision were published were irrelevant considerations for the Court to take into account. A person who sat through the hearing and/or read the decision would know of the distinctions I have discussed, and appreciate that because of the unusual features of the proposal, consenting to it was unlikely to threaten the integrity of the relevant planning instruments.
[47] I therefore reject Mr Enright’s first two points in relation to the first ground of appeal.
[48] His final point, that the Court erred in referring to, but not evaluating, the effect that granting approval would have on the integrity of the regional planning instruments, has more apparent substance.
[49] Although the Court recorded, at [425] that:
The Regional Council submitted that the importance of the integrity of planning instruments is not limited to that of district plans, and contended that the integrity of the relevant regional planning instruments (including the ARPS) – particularly the regional planning framework – would also be challenged by granting consent to Living Earth’s application
in fact, as noted at [38] and [39] above, it confined its decision in this regard to the District Plan and made no mention of the effect of granting consent on the regional planning instruments.
[50] To date consideration of the integrity issue has focused on the effect that granting a particular application would have on the integrity of a District Plan: see for example Batchelor v Tauranga District Council (No 2) [1993] 2 NZLR 84, Hopper Nominees Ltd v Rodney District Council [1996] NZRMA 179 (HC) and Gould. Where, as here, consent has been sought for a non-complying activity, that discussion has generally taken place in the context of the equivalent of s 104D. However, it is clear that the integrity issue can also arise under s 104(1)(b) and (c): see Gould and Murphy. Indeed, because s 104D(1)(b) only refers to a “Plan or proposed plan”, the issue can only arise in relation to the ARPS under s 104(1)(b)(iii) or (1)(c). And there is no dispute about that.
[51] Mr Enright submitted that, given the hierarchy of planning instruments under the Act, there was little logic in limiting the assessment of the integrity to the District Plan, which is at the bottom of the hierarchy, particularly when, under the RMA’s 2003 wording, that plan must not be inconsistent with the ARPS: see s 75(2).
[52] But that need for consistency, it seems to me, is the very reason why the Court did not err in focusing its attention on the District Plan, rather than the ARPS. It was not suggested that the District Plan breached s 75(2). Rule 17.3.1 of the District Plan records that its provisions in relation to the Mangere-Puhinui area are specifically drafted to give effect to the MUL. Accordingly, I agree with Mr Kirkpatrick that it is difficult to see how the Court, having concluded, at [436], that granting consent would not undermine the integrity or coherence of the specific provisions of the District Plan or public confidence in it, would or could come to a different decision in respect of the more general provisions of the ARPS.
[53] The provisions of the ARPS are not determinative: Runciman Rural Protection Society v Franklin DC [2006] NZRMA 278 at [40]-[41]. The ARPS can impose rules in the ordinary sense of the term but these are not directly binding on ordinary individuals: Auckland Regional Council v North Shore City Council [1995]
3 NZLR 18. Section 104(1)(b)(iii) required the consent authority – in this case, the Environment Court – to “have regard” to the ARPS. Provided it is apparent from the decision, as a whole, that it has done so, in the sense that it has specifically considered the ARPS in reaching its ultimate decision, that decision, or the process in reaching it, can not be called in question.
[54] There can be no doubt that the Court was very conscious of the impact that its decision would have upon the integrity of the ARPS. It accepted that locating the composting operation beyond the MUL would not serve the strategic directions and urban growth provisions of the ARPS: see [540], [485] and [601]. But ultimately, that was not sufficient, either alone, or in conjunction with other potential adverse effects, to outweigh the positive or beneficial effects of the proposal: see [605].
[55] Given the consistency between the ARPS and the provisions of the District Plan in issue in this case, I do not regard the Court’s failure to make a specific finding in relation to the impact of the proposal on the integrity of the ARPS to constitute an error – or certainly not one that is material.
Misinterpretation of ARPS
[56] The ARC’s argument on the misinterpretation point is a narrow one. It is that the Court erred in interpreting the ARPS as being solely concerned with environmental effects and urban development when in fact it is also concerned with precedent and integrity impacts.
[57] The fact that the ARPS is concerned with all these effects is not in dispute;
whether the Court limited itself in the way claimed is.
[58] Chapter 2 of the ARPS sets out the strategic approach to growth management in the Auckland region. Mr Enright highlighted numerous provisions in it which, he said, refer to the precedent and integrity effects arising from urban development outside MUL. A few examples will suffice for present purposes. Foremost is the ARP’s definition of “cumulative effect”, which Mr Enright submitted, is not limited by the definition of “effect” in Dye (at [38]). It includes:
…
(d) effects which would arise over time as a result of implementing a particular policy, as well as the effects which may stem over a period of time from a particular decision.
[59] Also relevant are:
• the reference in Issue 2.3.2, to:
… the cumulative effect of development over the long term;
• Issue 2.3.3. which states:
The effects on the environment that result from activities in rural areas are often separated from those activities by time and space and the cumulative effects must be considered. The consistent administration of policy statements and plans is of key importance for the management of cumulative effects, and in order to achieve the objectives of policy statements and plans.
• And Policy 2.5.2.3:
Urban development is to be contained, within the metropolitan urban limits … so that … (ii) environmental values protected by the metropolitan urban limits and/or the limits of rural or coastal settlements are not adversely affected, and that the integrity of those limits is maintained.
[60] Mr Enright submitted that by electing to analyse the ARPS and other planning instruments in terms of themes rather than the wording of individual provisions, the Court exposed itself to potential error. As a result, he said, it is unclear what meaning it ascribed to particular words used in the issues, objectives, policies and methods of the ARPS.
[61] His second submission was that the list of themes addressed by the Court does not address the ARPS provisions relating to the non-environmental effects of urban development. He claimed that it is apparent from a consideration of [485] of the decision, in conjunction with [40] and [41], that in fact, the Court was solely concerned with the environmental effects of urban development outside the metropolitan urban limits.
[62] Mr Enright submitted that if the correct approach had been followed, the Court’s finding of a precedent effect should have led it to conclude that the proposal would also be inconsistent with the requirement in the ARPS that urban development outside metropolitan limits be avoided due to its adverse precedent impact.
[63] I do not accept these submissions.
[64] In relation to Mr Enright’s criticism of the Court’s use of “themes” to address the issues arising under the various planning instruments the following comments of Cooper J in Gould at [32] are apposite:
… the Environment Court is not obliged to refer in its decision to every objective or policy of a district plan which might be of marginal relevance to its decision. Such is the complexity and some would say prolixity of such plans that to impose so strict a requirement would be unworkable, and would serve no useful purpose. It is enough if the main reasons which have led the Environment Court to reach a particular conclusion are set out …
[65] I agree with Mr Kirkpatrick that the theme of “inappropriate use and development” adopted by the Court is wide enough to encompass the issue of
precedent and planning integrity. Furthermore, the fact that the Court concluded its consideration of this theme by acknowledging, at [477] of the decision, that the proposed activity is:
… a use and development of the site outside the metropolitan urban limits that is not appropriate in the general terms of the strategic direction of the ARPS.
coupled with its express reference in [40]. [41] and [485] to the strategic direction and urban growth provisions of the ARPS, and its discussion of precedent effect at [407]-[422] and plan integrity, coherence and public confidence at [423]-[436] shows that it did not limit its consideration of the impact of the proposal upon the ARPS provisions simply to environmental effects.
[66] The strategic direction provisions of the ARPS are matters of policy rather than an immutable requirement. The Act expressly provides that adverse effects, including precedent effects, may be remedied or mitigated where they can not or need not be avoided. And that is exactly what happened in this case. The Court heard and evaluated all the evidence and, having done so, reached a decision bearing in mind the statutory imperatives. In doing so it recognised the adverse effect of the proposal on the ARPS in relation to strategic direction but concluded, as it was entitled to do, that those effects could be mitigated. In particular, the Court specifically found that, because of the limited buildings and works involved, the limited duration and the ultimate rehabilitation of the site, the proposal would not pose the threats that urban development outside the metropolitan urban limits generally would.
[67] In all the circumstances I am not persuaded that the Court erred in either its interpretation of the relevant provisions in the ARPS or in its application of those provisions to the facts of this case.
Proposed Plan change 6
[68] The Regional Council’s third ground of appeal concerns Proposed Plan change 6 to the ARPS notified on 31 March 2005. Of particular relevance for present purposes are the proposed changes to the section on strategic direction.
These included changes in the strategic objectives and policies with regard to urban containment. For example, 2.6.2 provided that:
1.Urban activities are to be contained within the metropolitan urban limits (MUL) …
(a)There is no provision for new, or expansion of existing urban activities outside the metropolitan urban limits as defined and shown in the RPS except as provided for in (2) below;
…
2. Limited expansion may be made to the metropolitan urban limits …
from time to time, but only where:
(i)The strategic direction of containment and intensification is not compromised …
…
[69] Section 104(1)(b)(iii) requires consent authorities considering a resource consent application to have regard to proposed, as well as operative regional policy statements.
[70] The Court clearly did that in this case. In its overview of the provisions of the ARPS relating to strategic direction the Court specifically referred to Proposed Policy 2.6.2.1 above. Then, at [49] it said:
Planning witnesses referred to plan changes 6 and 8 to the ARPS for completeness, but because of their content and the stage they have reached, no party contended that either of them are significant for the decision of this appeal.
[71] Mr Enright submitted that the Court had misread the appellant’s legal submissions and planning evidence in this regard.
[72] In his submissions to the Environment Court he said:
Plan change 6 (“PC 6”) is at a relatively early stage in the statutory process, with submissions received but not yet heard by the Council. The weight attaching to a plan change is not solely reliant upon the stage in the submissions/hearings process that has been reached, and that weight may be increased where a plan change reflects relevant statutory policy. It is submitted that PC 6 was introduced to implement statutory directives
contained in the Local Government Amendment Act 2004 [sic] and hence merits greater weight.
Putting to one side the issue of weight, if the Court finds that the proposal is contrary to Chapter 2 of the ARPS, then it will also be contrary to Plan change 6.
[73] While acknowledging that the weight to be attached to a planning instrument was entirely a matter for the specialist Court, Mr Enright submitted, citing Keystone Ridge Limited v Auckland City Council HC AK AP24/01 4 April 2001 per O’Regan J, that in this case the Court should have assessed the meaning and relevance of plan change 6 and specifically, the impact of the Local Government (Auckland) Amendment Act, and that its failure to do so constituted an error of law.
[74] Given counsel’s acceptance of a clear link between the existing chapter 2 of the ARPS and Proposed Change 6, and the evidence of the Regional Council’s planning witness, Mr Lawrence, noted at [542] of the decision, that the proposed changes mirrored those in the ARPS, it was not necessary for the Court to make any further comment about the proposed plan, and I do not believe they erred in failing to do so. The critical issue was the way they addressed the ARPS itself.
[75] Accordingly, the third ground of appeal has not been made out.
Statutory baseline
[76] The Regional Council’s fourth ground of appeal is that the Court erred in its application of the statutory baseline under s 104(2).
[77] The Court’s consideration of this issue is set out in [362]-[390] of the decision. The pertinent passages are at [380]-[390], as follows:
[380] … the district plan permits these activities on the site: farming, farm- stay accommodation, greenhouses, pig-keeping, home enterprises, development of open space, buildings accessory to any permitted activity, household units on approved subdivisions, temporary household units, and clean fill involving deposit of less than 200 cubic metres of material.
What adverse effects would those activities have?
[381] Relevantly, farming may have effects of tilling the soil, including the noise of machinery working; and effects of odour from the making of silage,
or from the treatment of dairy-shed wastes. Pig-keeping may also have effects of odour from pig excrement. Farming, greenhouses and pig-keeping may have visual effects of ancillary buildings. Development of open space and deposit of clean fill may also have the noise effects of heavy trucks, and of machinery working the soil.
[382] We are not persuaded that pig-keeping on the site should be discarded from the permitted activities on the basis of being unlikely, or a little fanciful. Mr Serjeant’s opinion in that respect seemed to depend on the remoteness of the site from the existing dwellings on the island, yet household units on approved subdivisions and temporary household units are also permitted activities, as are buildings accessory to any permitted activity.
Would the subject activity have those effects?
[383] The proposed green-waste composting activity would have effects of earthworks to create a working surface, and the noise of machinery working to shred the green waste, to work the composting waste in windrows, and to load or bag the product for dispatch. It would have odour effects, and the noise effects of heavy trucks bringing green waste, and taking finished product to the market.
How should the discretionary power be exercised in the circumstances?
[384] The Regional Council submitted that we should exercise the discretion not to disregard those effects, because of the sensitivity of the receiving environment and its location in the coastal environment.
[385] It is our understanding that the purpose of the power to disregard the effects of permitted activities is that those effects are contemplated as contributing to the character of environment. As the environment is treated as potentially including those effects, allowing the activity in question would not adversely impact on the environment.
[386] We accept the Regional Council’s contention that the site is in a sensitive environment, and is part of the coastal environment to which the New Zealand Coastal Policy Statement and the ARP:C apply. Even so, section 104(2) is directed to the effects of activities that the plan (in this case the Manukau City district plan) permits on the site.
[387] There would, of course, be differences of intensity, frequency, duration and character between the noise, odour and earthworks effects of the permitted activities and the noise, odour, and earthworks effects of the green-waste composting activity. But that would be true in at least most cases to which section 104(2) would apply. The differences cannot be an adequate reason for not exercising the power to disregard the effects of the proposal, particularly as the duration of its effects would be limited in duration to the proposed term of 10 years.
[388] Nor do we consider that odour effects from pig-keeping should be discarded from the permitted baseline on account of Mr Serjeant’s opinion that this activity is unlikely, and a little fanciful. The point is that the district plan has, by specifying permitted activities, defined the effects that are to be expected, even though the site is in a sensitive part of the coastal environment. The effects so defined include those of farming (not excluding
the depasturing of livestock) and pig-keeping (to the limited extent prescribed).
[389] So it is our judgment that exercising the power to disregard the noise, odour and earthworks effects would serve the purpose for which the power to do so is conferred; and to have regard to those effects even though they are also effects of activities that the district plan permits on the site would not serve the purpose of section 104(2).
[390] In short, it is our judgement that in the circumstances we should exercise the power to disregard the effects of the activity in question that would be effects of activities on the site that the plan permits. We will do so.
[78] Mr Enright identified two respects in which, he said, the Court misapplied the baseline:
• It had regard to permitted activities for the site without evaluating any differences of intensity, frequency, duration and character between the proposals and permitted activities under the District Plan;
• It had regard to fanciful permitted activities.
[79] In the course of the hearing Mr Enright advanced a third point, not included in the notice of appeal, namely that:
• The Court failed to assess whether the permitted activities creating odour, earthworks and noise would infringe the waahi tapu law, rendering them outside the permitted activities envelope.
[80] Mr Enright submitted that the approach adopted by the Court of disregarding odour effects in their entirety, without having first established a baseline by quantifying the level of odour that pig-keeping would generate, or its effects, confused considerations relevant to the discretion to exercise the baseline with its application.
[81] He argued that on the literal and plain meaning of the words “that effect” in s 104(2), the permitted baseline can only be applied if the proposed activity is directly comparable to that of a permitted activity – i.e. the adverse effect of the
proposed activity can be disregarded if it has the effect of the permitted activity. He submitted that this necessarily involves a comparative assessment of the degrees of effect arising from the permitted activity on the one hand, and the proposed activity on the other. It was not enough that the effects are of similar character. The consent authority needs to know the intensity and scale of the effects of the permitted activity so that these can be deducted and it can then appraise the “remainder” effects of the proposed activity on the environment under s 104(1)(a). The authority needs to have a firm measure against which to assess the effect: Tairua Marine Limited v Waikato Regional Council HC AK CIV-2005-485-1490 29 June 2006 per Asher J at [52].
[82] Mr Enright further submitted that where a direct comparison of effects is impossible, for example with effects such as odour and noise (which he termed “soft edge”) requiring some degree of subjective analysis, it might be best not to apply the baseline to them at all. Alternatively, he suggested, the Court itself should call for evidence as to character, intensity and scale of hypothetical permitted activities, especially in cases such as the present where it applied the baseline of its own volition.
[83] In my view Mr Enright is endeavouring to read into s 104(2) complexities which neither the plain meaning of the words themselves, nor their context, will bear.
[84] Section 3 of the RMA defines “effect” by what it includes, rather than what it is. It states that:
3. In this Act, unless the context otherwise requires, the term “effect”
… includes –
(a) Any positive or adverse effect; and
(b) Any temporary or permanent effect; and
(c) Any past, present, or future effect; and
(d)Any cumulative effect which arises over time or in combination with other effects –
regardless of the scale, intensity, duration, or frequency of the effect, and also includes –
(e) Any potential effect of high probability; and
(f) Any potential effect of low probability which has a high potential impact.
[85] Applying this definition to s 104(2) it seems to me that any type of effect, apart from a positive effect which is necessarily excluded by the reference in that section to adverse effects, can be considered. It does not matter whether they are a so-called “hard” or a “soft” effect. Scale, intensity, duration and frequency are irrelevant. If a consent authority is satisfied that a permitted activity and proposed activity each produce an adverse effect of the same type – be it noise, odour, visual effect or whatever, the threshold for applying the baseline is established. So the first question is, “Can the baseline apply?” The Authority then has to decide whether, in its discretion, the baseline should apply. In doing so, it will necessarily undertake a comparative exercise. In some cases the District Plan will provide a measure against which to make comparisons: see Kapiti Environmental Action v Kapiti Coast District Council [2002] NZRMA 289 at [127]. In others, the similarities or dissimilarities of effect will be obvious, especially to decision-makers experienced in this field. As long as the consent authority has indicated a basis for comparison that is not unreasonable, its decision can not be called into question.
[86] The Court at [380]-[382] clearly identified the activities and effects making up the baseline in this case. While Mr Enright focused on the odour effects of pig- keeping, this was not the only permitted activity identified as providing odour effects. Also included in this group were silage making and dairy shed wastes. Nor is it correct to say that it did not evaluate the differences between the permitted and proposed activities. At [387] it specifically acknowledged that there were differences of degree, but did not spell out what these were. I do not consider it had to. It conducted a detailed assessment of the adverse environmental effects of the proposed activity, including odour effects, and determined that they would be minor. In the circumstances any differences between the adverse effects of the permitted and proposed activities would not have been significant.
[87] Mr Enright’s assertion that the Court had regard to fanciful permitted activities seems to be based on its statement of the law at [364] where, citing Rodney
District Council v Eyres Eco-Park [2007] NZRMA 1 per Allan J, it says in relation to the assessment of the permitted baseline that:
… no distinction is made between fanciful and non-fanciful permitted activities.
[88] It is apparent from the transcript of evidence that the presiding judge raised this point with some expert witnesses during the hearing. Whether counsel made submissions on it is unclear.
[89] I accept that if this is an accurate statement of the law following the enactment of the statutory baseline, it involves a change from the position at common law. In Arrigato Investments Ltd v Auckland Regional Council [2001] NZRMA 481 the Court of Appeal at [29] defined the permitted baseline as:
… the existing environment overlaid with such relevant activity (not being a fanciful activity) as is permitted by the plan.
[90] In Eyres Eco-Park Allan J suggested at [38] that there may have been a change. He said:
Section 104(2) does not distinguish between fanciful and non-fanciful permitted activities but that distinction will no doubt have a bearing on the ultimate exercise of the discretion in a given case.
[91] In the event, it is not necessary for me to make a definitive finding on the issue as it is clear that the Court did not accept Mr Serjeant’s opinion that pig- keeping was an unlikely or fanciful activity on the site: see [382].
[92] The Court also considered, but rejected, the view that the District Plan does not permit any activity on the site because it could have an adverse effect on a scheduled waahi tapu: see [377]-[380]. As this issue was not heralded in the grounds of appeal I do not propose to address it further.
[93] I therefore reject the ARC’s arguments on the fourth ground also.
[94] Mr Enright did not argue the fifth ground of appeal with the same vigour that he did the other four.
[95] The statements about which complaint is made arose in the context of the Court’s assessment of whether there were any other available sites within the MUL which are suitable for Living Earth’s purposes. One of the issues in that regard was the attempts which Living Earth had made to find another site and whether they had given “bona fide consideration to other alternatives” before choosing the Puketutu site. The Court rejected the Regional Council’s criticisms of the search process adopted by Living Earth, saying that, on the totality of the evidence, it could:
[138] … find no basis for holding that there is no viable site for the green- waste composting activity to serve the Auckland market that would avoid conflict with the matters identified as being of national importance; but were not able to identify from the evidence any particular viable alternative site.
[96] I am satisfied that, notwithstanding its rejection of the Regional Council’s arguments in this regard and its criticism of the adversarial approach adopted on their behalf on appeal, the Court did not go further and find that members of the Council were personally antagonistic to Living Earth or favoured its business competitors. I have not seen any evidence to support such a finding. I am satisfied that the Court’s statement that:
[137] … if they do not have personal antagonism to Living Earth or favoured competitors for its business, it may not even now be too late for them to provide constructive assistance in finding a viable alternative site for Living Earth’s activity;
was simply a suggestion by the Court of a way by which the Regional Council could achieve its wider objectives of ensuring that all urban/industrial activity was contained within the MUL.
[97] Accordingly this ground must also fail.
[98] For the foregoing reasons, all the questions of law posed by the
Regional Council must be answered in the negative and the appeal dismissed.
Costs
[99] In the circumstances, Living Earth is entitled to an award of costs. Leave is reserved for counsel to file memoranda on the issue within 14 days of the date of release of this judgment, in the event that they are unable to resolve this issue between themselves.
M A Frater J
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