Gertrude's Saddlery Ltd v Queenstown Lakes District Council
[2020] NZHC 3387
•17 December 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2019-425-000130
[2020] NZHC 3387
BETWEEN GERTRUDE’S SADDLERY LIMITED
Appellant
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Respondent
AND
ARTHURS POINT OUTSTANDING NATURAL LANDSCAPE SOCIETY INCORPORATED
First Interested Party
AND
LARCHMONT DEVELOPMENTS LIMITED
Second Interested Party
Hearing: 27 and 28 October 2020 Appearances:
M E Casey QC, M A Baker-Galloway, R M Giles for Appellant and Second Interested Party
K L Hockly for Respondent
P A Steven QC and E L Keeble for First Interested PartyJudgment:
17 December 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 17 December 2020 at 4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 17 December 2020
GERTRUDE’S SADDLERY LIMITED v QUEENSTOWN LAKES DISTRICT COUNCIL [2020] NZHC 3387
[17 December 2020]
Introduction
[1] In June 2018, the Upper Clutha Environmental Society Incorporated (Upper Clutha) lodged an appeal against the Queenstown Lakes District Council’s Proposed District Plan (PDP). The Arthurs Point Outstanding Natural Landscape Society Incorporated (the Society) subsequently joined the Upper Clutha appeal as a party pursuant to s 274 Resource Management Act 1991 (RMA). The question on this appeal is whether the issues of concern to the Society fall within the scope of the Upper Clutha appeal and allow the Society to pursue them in the Environment Court.
[2] In a procedural decision which issued on 6 November 2019, the Environment Court ruled that the Society could use its s 274 notice on the Upper Clutha appeal to pursue its concerns about changes made to the PDP following the hearing of submissions, affecting two properties at Arthur’s Point.1 The changes were to exclude the properties from the area identified as Outstanding Natural Landscape (ONL), and to rezone them from Rural to Lower Density Residential (LDR).
[3] The owners of the two affected properties, Gertrude’s Saddlery Ltd (Gertrude’s Saddlery) and Larchmont Developments Ltd (Larchmont), along with the Queenstown Lakes District Council (the Council), all say the Judge erred in law in coming to that conclusion and have appealed it on that basis.
[4] Gertrude’s Saddlery goes one step further. Mr Casey QC says the issue is now moot as the relevant part of the Upper Clutha appeal has been heard and determined against Upper Clutha. The Society cannot now pursue the issues it wishes to advance in reliance on its status as a s 274 party to that appeal.
[5] Ms Steven QC, for the Society, argues that the Judge did not err in law in the ways alleged and, looked at in a realistic and workable way, the Society’s s 274 notice is within the scope of the Upper Clutha appeal. Furthermore, the issues of concern to the Society were “carved out” in the Environment Court’s case management process for the PDP appeals, to be heard at a subsequent point in time, so even though all other
1 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council [2019] NZEnvC 176.
issues raised in the Upper Clutha appeal have been determined, the part of the appeal involving the Society is not moot and can still proceed.
Background
[6] The procedural issues outlined above arise in the context of the Council reviewing its Operative District Plan (the ODP) through a staged series of plan changes. The Council notified Stage 1 of the PDP in August 2015. The changes notified included an Urban Development Chapter which introduced Urban Growth Boundaries (UGB) around urban areas and a Landscape Chapter that set out how development affecting the district’s valued landscapes would be managed, including mapping lines that identify ONLs and Outstanding Natural Features (ONFs).
[7] The current appeal relates to the decisions made in respect of a triangle of land called Arthurs Point which sits within the Wakatipu Basin. Two of the three sides of the triangle are bordered by the Shotover River which is, itself, identified as an ONF in this area. Arthurs Point has an existing settlement on it. The properties owned by Gertrude’s Saddlery and Larchmont sit on Atley Road, along the south edge of the existing settlement, but north of the Shotover River. Adopting the terminology of the Environment Court, I will refer to these properties collectively as the Shotover Loop.
[8] Under the ODP, the entire area that Arthurs Point sits within is described as an ONL (Wakatipu Basin). The majority of the boundary to that ONL is indicated by a dotted line. The legend to the relevant map contained in Appendix 8A of the ODP says that a dotted line means:
[t]hese lines have not been through the Environment Court process to determine their exact location and … [are] … subject to analysis of specific physical circumstances of each site and the landscape descriptions provided in the … District Plan.
A part of the boundary to the ONL (Wakatipu Basin) is shown as a solid line, which is described in the legend as a “boundary between two different landscape categories or between a landscape category and an urban area … [which is] … fixed”.
[9] Under the ODP, the Shotover Loop was zoned Rural General, and both properties sat within the ONL (Wakatipu Basin), as did the existing settlement at Arthurs Point.
[10] The ODP’s distinction between fixed and provisional ONL boundary lines was not carried through into the PDP as notified (the PDP(N)). The lines were all shown as fixed. Planning map 39 of the PDP(N) showed the urban-zoned part of Arthurs Point delineated by an UGB, but still within the ONL. The UGB captured both the existing Arthurs Point residential area and an extension to that area proposed to be zoned LDR, but excluded all surrounding rural zoned land.
[11] Gertrude’s Saddlery and Larchmont both lodged submissions on the PDP(N). Gertrude’s Saddlery sought:
(a)that a defined part of its property still zoned rural should be zoned LDR;
(b)that the UGB around the Arthurs Point settlement be extended to include the part of the property which it sought to have zoned LDR.
(c)that the ONL classification over that part of the property be removed (albeit expressing this as occurring by “default”);
[12]Larchmont sought:
(a)that its property be zoned LDR instead of rural;
(b)that the UGB around the Arthurs Point settlement be extended to include the Larchmont property;
(c)that planning map 39 of the PDP(N) be amended to reflect the rezoning and the change to the UGB.
Larchmont did not identify that its property was in an ONL or seek removal of that classification but in its submission it opposed having a “rural landscape classification” that did not reflect the use proposed for the site.
[13] After hearing submissions, the Council made the following decisions in relation to Arthurs Point:
(a)it inserted a new boundary line to the ONL to exclude both the existing Arthurs Point settlement and the proposed extension to it, from the ONL purporting to use its powers under sch 1 cl 16.2 of the RMA;
(b)the new ONL boundary also excluded the Shotover Loop from the ONL classification as had been done for the existing settlement;
(c)the Shotover Loop was zoned as LDR, rather than rural; and
(d)the Arthurs Point UGB was extended to include the Shotover Loop.
[14]No party expressly appealed those decisions to the Environment Court.
[15] Upper Clutha lodged an appeal. The text of the appeal is discussed more fully below, but it included a challenge to the “landscape lines” shown in the planning maps in the decisions version of the PDP (the PDP(D)).
[16] The Society (which did not exist when the initial submissions were made on the PDP(N) and so did not submit on it) lodged a s 274 RMA notice to join the Upper Clutha appeal. It did so on the grounds that it was a party with “an interest in the proceedings that is greater than the interest that the general public has”.2 In particular, it noted that “the Society is made up of members who own residential properties in close proximity to the [Shotover Loop] in Arthurs Point which it is proposed to rezone”. There is no dispute that it has such an interest.
[17] In the course of pre-hearing conferences in the Environment Court, the Council advised the Society that the Upper Clutha appeal did not seek site-specific relief in relation to the Arthurs Point ONL and there was, therefore, no scope for the Society to rely on the appeal to seek either a change to the Arthurs Point ONL boundary line, nor that the Shotover Loop be rezoned back to rural. The competing views of the Council
2 Resource Management Act 1991, s 274(1)(d).
(supported by Gertrude’s Saddlery and Larchmont) and of the Society on the issue of scope were subsequently heard by the Environment Court pursuant to s 279(1)(a) and
(e) of the RMA. It is not necessary to traverse the procedural history of that matter, except to say that it culminated in the Environment Court’s decision which is the subject of this appeal.
Legal principles on appeal
[18] Section 299 of the RMA allows an appeal to the High Court against a decision of the Environment Court on a question of law only. An error of law will have occurred where the Environment Court has:3
(a)applied the wrong legal test;
(b)reached a conclusion that on the evidence it could not reasonably have come to;
(c)failed to take into consideration relevant matters; and
(d)taken into account irrelevant matters.
[19] That said, the High Court will always acknowledge the deference to be shown to the Environment Court as an expert Court. As was said in Guardians of Paku Bay Assoc Inc v Waikato Regional Council:4
[n]o 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.
(footnotes omitted)
[20] In addition, the error of law must be material to the decision of the Environment Court for this Court to find in favour of the appeal.5
3 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
4 Guardians of Paku Bay Assoc Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [33].
5 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 3, at 153.
The issues
[21] The parties agree that two key issues arise out of the Environment Court’s decision. The first is whether the Judge erred in law when he determined that the issues raised in the Society’s s 274 notice came within the scope of the Upper Clutha appeal. The second is whether the Environment Court erred in law when it found that the rezoning of the Shotover Loop back to rural and removal of the UGB around it, was consequential relief that followed if the ONL lines were revised to include those properties.
The law governing the role of a s 274 party
[22] The Society’s rights to pursue an appeal are constrained by the fact it is participating as a s 274 party. Section 274 of the RMA permits various parties (including parties who were not involved in the first instance hearing) to be parties to proceedings before the Environment Court, including an appeal, but only to support or oppose the proceeding.6 As a s 274 party, they can “appear and call evidence …” but only if “it is on matters within the scope of the appeal”.
[23] The leading decision on a s 274 party’s capacity to seek relief in proceedings it has joined, is the High Court’s decision in Transit New Zealand v Pearson.7 That case involved an appeal of certain conditions to be included in a designation. However, the s 274 party who joined the appeal sought to argue for cancellation of the designation. William Young J held that the scope of an appeal is the range between what was in the decision being appealed and the relief sought in the appeal.8 The s 274 party could not therefore go beyond the scope of the appeal and argue for the cancellation of the designation.
[24] In Calveley v Kaipara District Council, Judge Hassan observed that despite subsequent amendments to s 274:9
… Pearson remains authoritative on the essential point. That is that the scope of the appeal defines the limits of what a s 274 party to an appeal can pursue
6 Resource Management Act 1991, s 274(3).
7 Transit New Zealand v Pearson [2002] NZRMA 318 (HC).
8 At [48]-[50].
9 Calveley v Kaipara District Council [2015] NZEnvC 69 at [12].
by way of relief. The available limits to relief are between what was in the decision being appealed and the relief sought in the appeal.
(footnotes omitted)
[25] He went on to say, citing Meridian Energy Ltd v Wellington Regional Council:10
… that an incoming s 274 party is not free to define and argue for its own desired outcome but is confined to supporting or opposing only what is raised by the scope of the appeal documents. If the s 274 party wishes to seek an outcome other than one within that range the correct pathway is to lodge its own appeal.
[26] In the present case, the Society cannot lodge its own appeal. It was not a submitter on the PDP(N). Its ability to participate in the appeal process stands or falls on whether the amendments it is seeking come within the scope of the Upper Clutha appeal.
[27] There are logical reasons for these constraints. The RMA process for preparing, changing and reviewing plans, as set out in sch 1 to the RMA, is designed to:
(a)progressively refine the disputed issues as the proposed plan goes through the submission and appeal process; and
(b)promote the principles of procedural fairness and natural justice by ensuring potentially affected parties know what changes to the proposed plan are sought so they can choose to participate in decisions being made on that issue.
[28] It is for these reasons that an appellant in such proceedings cannot pursue an outcome on appeal that falls outside the scope of their original submission.11 It is also why s 274 parties are constrained to supporting or opposing the appeal (and giving reasons for that support or opposition), and confining their evidence to matters that are within the scope of the appeal. The intention is that the addition of the s 274 party
10 At [13], citing Meridian Energy Ltd v Wellington Regional Council [2012] NZEnvC 148 at [6]-[7].
11 Avon Hotel Ltd v Christchurch City Council [2007] NZRMA 373 (EnvC).
will not result in changes to the plan that could not have been anticipated from the appeal itself. If a submitter on a plan reviews the appeals which are lodged and is satisfied that none of them seek relief which concerns the submitter, the submitter need not concern themselves with the s 274 notices as those parties cannot seek relief beyond the scope of the appeal.
[29] With those principles in mind, I summarise both the Upper Clutha submission on the PDP(N) and its notice of appeal, as the scope of those documents and the relief sought in them are central to the issues which are addressed in the decision and raised in this appeal.
The Upper Clutha submission on the PDP(N)
[30] The starting point when determining the scope of Upper Clutha’s appeal is to consider its original submission on the PDP(N), as the appeal can not raise issues which are outside the scope of that submission, and “the jurisdiction of the Environment Court is then limited by the scope of the relief sought on the appeal”.12
[31] In respect of the PDP(N)’s proposal to include “definitive Landscape Lines” in the planning maps, the Society’s submission read as follows:
The Society agrees that the existing landscape provisions in the Operative District Plan are functioning well. It is accepted that some uncertainty [is] created by the case by case approach to landscape categorization in the Operative District Plan but in our submission there is no other practical approach available. The imposition of dubious and contentious Landscape Lines as proposed in the Proposed District Plan is not a credible course of action.
[32] The submission promoted the ongoing “case-by-case” approach whereby the Environment Court identified Landscape Lines in contentious part of the districts through the court process. The Society felt it was “inefficient” to determine the lines in the plan change process itself as “these may become the subject of numerous appeals by landowners thus delaying the District Plan coming into force”.
[33]The relief sought by Upper Clutha was as follows:
12 Hauraki Maori Trust Board v Waikato Regional Council CIV-2003-485-999 HC Auckland, 4 March 2004, at [76].
[Upper Clutha] seeks that the Landscape Lines determined in the Proposed District Plan process are excluded from the Plan altogether because they are not credible.
Failing this [Upper Clutha] seek that the Landscape Lines are included on District Plan maps as dotted lines and that the Landscape Lines are described as guidelines that are purely indicative.
[34] As the Environment Court Judge observed, Upper Clutha’s submission was “broad and wide-ranging” but it did not refer specifically to the Arthurs Point area at all. Rather, it challenged all new or amended ONL lines in the PDP(N).13
[35] However, Ms Steven QC points out that the Upper Clutha submission covered more than simply the “Landscape Lines” issue. It addressed numerous interrelated provisions in its 62 pages, including:
(a)wanting residential subdivision and development to be non-complying rather than discretionary within ONLs or ONFs; and
(b)expressing concern that the rural zone objectives, policies and assessment matters did not sufficiently protect against development in inappropriate locations that could degrade landscape values.
Importantly, it sought that “all of the provisions in the Operative District Plan that apply or in any way relate to Outstanding Natural Landscape (Wakatipu Basin) … are retained in the District Plan in the exact same form as in the Operative District Plan”.
[36] As Ms Steven submits, the Upper Clutha submission opposes the PDP(N) provisions in relation to ONL/ONF land insofar as they depart from those in the ODP. The submission is therefore broad enough to oppose new ONL boundary lines being incorporated for the purpose of excluding land from an existing ONL, as was done in the PDP(D) for the settlement at Arthurs Point and the Shotover Loop.
13 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council, above n 1, at [17].
The Upper Clutha appeal
[37] Having discussed the broad issues raised in the Upper Clutha submission, it is now necessary to turn to the Upper Clutha appeal, which is more focused than its original submission.
[38] Under the heading “Specific Provisions [Upper Clutha] is appealing”, the following text appears:
[Upper Clutha] is appealing the parts of the PDP Stage 1 that contain objectives, policies, assessment matters, rules and maps and any other provisions that relate in any way to subdivision and/or development in the Rural Zone.
[Upper Clutha] is also appealing the parts of the PDP Stage 1 decision where it makes decisions and/or recommendations on the PDP Stage 2 where this in any way relates to Rural Zone subdivision and/or development.
[39] The appeal document goes on to set out the reasons for the appeal. These include:
2. …
· The PDP does not adequately recognise and provide for matters in Section 6 of the Resource Management Act and in particular
s.6 (a) and (b). The PDP does not adequately protect for future generations the Outstanding Natural Landscape (ONL) and Outstanding Natural Feature (ONF) landscapes of the district from inappropriate subdivision and/or development.
…
3.The decision errs in failing to recognise that Operative District Plan (ODP) provisions rolled-over into PDP Stage 1 in the manner shown in Appendices A-D (or very similar) better achieve the purpose of the Act than the provisions in the PDP Stage 1 decision. …
4.The decision errs in failing to give sufficient weight to the Council decisions, public submissions, appeals and Environment Court decisions that wrote the rural objectives, policies, assessment matters, rules and other rural provisions in the ODP. The decision errs in failing to fully recognise that these essentially addressed the same rural issues under the same Act as those addressed in the PDP Stage 1 decision.
…
10.The decision errs in deciding that the Landscape Lines delineating ONL, ONF’s and Rural Character Landscape in the maps and the PDP Stage 1 decision are credible. The decision errs in failing to recognise that the process behind identifying these Landscape Lines is flawed. The decision errs in deciding that there is “an adequate evidential foundation for identifying ONL and ONF lines”. The decision errs in deciding that, as delineated, these Landscape Lines will be efficient and effective in categorising landscapes and in implementing the objectives, policies, assessment matters and rules attached to such categorisation.
[40]The relief sought by Upper Clutha included:
…
3.That amendments to the PDP Stage 1’s text and maps consistent with the issues listed below are incorporated in the PDP where they are additional to those detailed in Appendices A-D and paragraphs 1 and 2 above.
…
5.That the PDP reflects in its provisions that there is sufficient land zoned in the Queenstown Lakes District for residential purposes to satisfy population growth until at least 2048 without the need to grant consent for any additional residential capacity in the Rural Zone.
…
7.That the Landscape Lines shown on the ODP maps are rolled-over in their exact current form. That the Landscape Lines additional to those contained on the ODP maps, shown on the PDP Stage 1 maps, are included in the PDP as dotted lines (with the exception of the two locations at Dublin Bay/Mount Brown, Waterfall Hills/Waterfall Creek described below) with the following attendant text shown on all maps where these dotted lines appear:
Boundary between two different landscape categories. The solid lines represent landscape categories determined by the Court and are not subject to change. The dotted lines have been determined under a broad-brush analysis as part of the District Plan process but have not yet been through a detailed analysis of specific physical circumstances of each site in the Environment Court to determine their exact location and so are not definitive. The dotted lines are purely indicative until their exact location has been determined through the Environment Court process.
8.That in the two areas where the Society will give landscape evidence in the Court (Dublin Bay/Mount Brown, Waterfall Hill/Waterfall Creek), the Court holds where the Landscape Lines should be situated, and that these lines then appear as solid lines in the PDP.
[41] The notice of appeal made no express reference to Arthurs Point or the decisions made in respect of the Shotover Loop. After filing the appeal, and through the case management process, Upper Clutha subsequently gave further particulars of the relief sought. As the Environment Court Judge noted, those particulars “appear to eschew any claim to relief in respect of the Arthurs Point area”.14
[42] The Judge considered those further particulars of relief were irrelevant to the Society’s reliance on the original appeal because they “post-date the Society’s joining the appeal”.15
The Environment Court Judge’s decision
[43] After setting out the arguments of the respective parties, the Judge said he considered those opposing the Society were “selective in their reading of [Upper Clutha’s] submission and notice of appeal”.16
[44] He responded to the argument that there was no submission by Upper Clutha about an ONL boundary line being drawn around the Arthurs Point settlement to exclude it, by saying that was because it was not in the PDP(N). Rather, it was incorporated as a consequence of the Commissioners’ decision on Arthurs Point. However, he held that the Upper Clutha submission did direct itself to that by “disagreeing with any future new ONL [boundary line] before knowing where the boundary was to be drawn”.17 The Judge concluded that this brought the submission squarely within sch 1 cl 14(1)(b) of RMA.
[45] In addition, he pointed out that the notice of appeal sought that any new lines be drawn as “dotted lines” (and therefore provisional) until resolved by the Environment Court. He concluded that what Upper Clutha appeared to be seeking was that “the new line is regarded as provisional and that a definitive line would be determined by the Environment Court” when an issue about development arises (and presumably an appeal is lodged).18 He went on to say that:
14 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council, above n 1, at [20].
15 At [20].
16 At [38].
17 At [42].
18 At [44].
[45] If the relevant landowners [Gertrude’s Saddlery] and Larchmont have already, by their submissions, sought resolution of the issue, it is fair and reasonable that [Upper Clutha] (and consequently the Society in its shoes) should be allowed to put forward a substantive case as to the appropriate definitive location of the ONL(B).
[46] He rejected the submission that such a wide reading of Upper Clutha’s submission and appeal would “open the floodgates” by making the status of every landscape boundary in the PDP subject to potential litigation, saying that is precisely what Upper Clutha sought in its original submission.
[47] For these reasons, he held that the notice of appeal by Upper Clutha raised the issue of the proper location of the ONL boundary in the vicinity of Arthurs Point generally, and the Society could use its s 274 notice to seek a different ONL boundary in order to include the Shotover Loop within it.
[48] Having found that there was scope in the Upper Clutha appeal for the Society to argue that the ONL line excluding the Shotover Loop should be removed, the Judge turned to whether the Society could then seek, as consequential relief, the rezoning of the Shotover Loop back to rural.
[49] The Judge rejected the submission that the Upper Clutha appeal did not seek any consequential relief. He considered the statement that Upper Clutha was appealing the parts of the decision that “relate in any way to subdivision and/or development in the Rural Zone” was broad enough to enable the Court to consider whether the Shotover Loop should be excluded from the UGB, and its LDR zoning changed back to rural.19 While he acknowledged that the appeal did not identify this under the heading “relief sought”, he considered that made no difference, as the notice of appeal must be read as a whole.
[50] In his view, the reference in the notice of appeal to the rural zone must be to the rural zone as shown in the PDP(N), which included the Shotover Loop. In any event, even if he was wrong, he considered the Environment Court would have jurisdiction to reverse the zoning, saying:20
19 At [48].
20 At [52].
[I]t would appear to be an automatic consequence of any finding ... that the Shotover Loop is part of the ONL that the UGB should move and the Rural zoning be removed, even though there is no appeal directly seeking to overturn the Council’s decision in respect of the [Gertrude’s Saddlery] and Larchmont submissions.
[51]For these reasons, he was satisfied that the Upper Clutha appeal:
(a)raised the issue of the proper location of the ONL in the vicinity of Arthurs Point; and
(b)sought “both directly and consequentially” the reversal of the rezoning of rural land as residential by the Commissioners issuing the PDP(D);
and so the Society could use its s 274 notices to seek a different ONL boundary and classification for the Shotover Loop.
Is the Society’s s 274 notice within the scope of the Upper Clutha appeal?
Gertrude’s Sadlery submissions
[52] Gertrude’s Saddlery submits that the Judge erred in law in determining that the Upper Clutha appeal addressed the new ONL boundary line drawn around the Arthurs Point settlement and the Shotover Loop to exclude them. It argues that the only available interpretation of the Upper Clutha appeal is that the Landscape Lines in the PDP(D) are not credible and so:
(a)existing ONL boundaries as shown on Appendix 8A of the ODP should be “rolled over” in their exact current form (i.e. solid or dotted) onto the PDP planning maps; and
(b)new (additional) ONL boundaries should be shown on the PDP planning maps as dotted lines, accompanied by the explanatory text proposed to the effect the lines are provisional only.
[53] Importantly, Gertrude’s Saddlery says the appeal does not seek that any new ONL boundaries be deleted, but simply that they are shown as provisional. While
Upper Clutha’s submission showed that it was concerned with the “credibility” of the ONL boundary lines inserted through the PDP process, by the time of its appeal, the relief it sought had narrowed to seeking new boundary lines be shown as provisional only. Gertrude’s Saddlery says if the intent of the Upper Clutha appeal was that all ONL boundaries revert to the ODP position and all new ONL boundaries determined through the PDP process be deleted, then the appeal would have made this plain. However, there was no general challenge in the appeal to the location of the new ONL boundaries, just to their status as confirmed rather than provisional.
[54] The only specific challenge to the location of ONL boundaries was in relation to two discrete locations near Wanaka township identified at para 7 of the relief sought, being Dublin Bay/Mount Brown and Waterfall Hill/Waterfall Creek (the Wanaka sites). In respect of those ONL boundaries, Upper Clutha sought to present evidence and have their correct location determined through the appeal process rather than be made provisional as was requested for the others. The fact it did not do so for any other ONL boundary reinforces the fact it was not seeking their alteration or removal.
[55] Accordingly, the Judge erred by relying on the Upper Clutha submission to support his conclusion there was scope in the appeal to remove the ONL boundary line inserted around the Shotover Loop when that was not sought in the appeal itself.
[56] In addition to incorrectly applying the legal test for scope, Mr Casey submitted that the Environment Court wrongly conflated the determination of the scope of the Upper Clutha appeal with a consideration of the merits of the appropriate location of an ONL boundary at Arthurs Point, and the Court’s view on the appropriate sequence in which decisions on the location of an ONL should be made.
[57]The Judge stated:
[21] There are a number of contextual matters that need to be borne in mind when assessing the jurisdiction of the court in relation to the landscape setting of Arthurs Point.
The Judge then went on to discuss the structure of the PDP, with overarching strategic chapters sitting above district wide and zone specific chapters, noting there was a difficulty in determining any subsequent step in the PDP process until the strategic
issues have first been resolved, particularly in respect of identifying the boundaries of ONLs. Mr Casey submits that those considerations were not relevant to the question before the Environment Court, but they appear to have influenced the Judge’s decision on scope.
[58] Similarly, the Judge appeared to have had regard to considerations of “fairness” to the parties when that, too, was not relevant to the question of scope. The legal test for scope is whether a matter was “fairly and reasonably” raised in the submission on which the appeal is based, not whether it is “fair and reasonable” to allow a potentially interested party to seek their desired relief.
The Council’s submissions
[59] The Council endorsed Gertrude Saddlery’s submissions on error of law. Ms Hockley pointed out that the significance of this issue to the Council is that it should not be required, through the appeal process, to respond to matters that have not been explicitly raised in a notice of appeal. The Council is concerned to have the appeal process conducted as efficiently and expediently as possible, and for the scope of an appeal to be determined in accordance with established authority and not coloured by the additional matters which were raised in the judgment.
[60] Of particular importance to the Council was the concern that the Judge focused on the original Upper Clutha submission rather than the notice of appeal to determine the issue of scope. Ms Hockley points out that at [46], the Environment Court defends its view on scope by having reference to the broad terms of the Upper Clutha submission, saying, “a submission on a plan change can be wide or narrow provided it is still “on” the plan change …”.21 She points out that whether the Upper Clutha submission was on the plan change was not at issue; what was at issue was whether the Upper Clutha appeal raised the location of the ONL boundary relative to the Shotover Loop. She submits that the Environment Court erred because its finding relied on the breadth of the Upper Clutha submission which sought that all Landscape Lines determined in the PDP process were excluded, when that was not the relief
21 At [46].
pursued in the Upper Clutha appeal. As a consequence, the finding at [46] was made in reliance on the wrong document.
[61] Similarly, the Environment Court’s reliance on “contextual matters”22 and fairness,23 introduced irrelevant considerations to the question of scope. For all these reasons, the Council agrees the Judge erred in law.
Submissions for the Society
[62] Ms Steven argues that there was no error by the Environment Court in interpreting and applying the test for scope. The Society submits that:
(a)It is incorrect to say that Upper Clutha’s submission and appeal were only ever about lines on the planning maps, and that approach fails to recognise the relationship of all provisions challenged by Upper Clutha and the extent to which they are interrelated.
(b)Upper Clutha had clearly challenged both the adequacy of the identification of areas of land which had ONL values and the adequacy of the PDP provisions to protect ONL values and, to the extent that the PDP(N) and PDP(D) departed from the ODP provisions, its appeal encompassed that.
(c)A reinstatement of the rural zoning over the Shotover Loop was fairly and reasonably raised in the Upper Clutha appeal and, in any event, is a consequential alteration that arises from both the Upper Clutha original submission and its appeal.
[63] Ms Steven emphasises the broad scope of the Environment Court’s powers on appeal, which, under s 290(2) RMA, may confirm, amend, or cancel a decision to which an appeal relates. She goes on to discuss how the question of scope should be approached, relying on decisions as to the scope of submissions made on proposed plans. In Countdown Properties (Northlands) v Dunedin City Council the High Court
22 At [21].
23 See, at [45].
emphasised that the test for whether an amendment to a plan was within scope and therefore permissible, turned on whether it was one which was fairly “raised by and within the ambit of submissions”.24 In approaching that issue, one should not be “bound by formality” but should approach it “in a realistic workable fashion rather than from the perspective of legal nicety”.25 This approach is intended to enable public participation in the RMA process.
[64] Ms Steven then refers to sch 1 cl 14 of the RMA, which is the relevant starting point in determining the scope of an appeal. It states that a person may appeal a provision or matter in a plan but only if they “referred to the provision or the matter in the person’s submission”.26 Relying on the decision in Option 5 Inc v Marlborough District Council, she says the words “referred to the matter or provision” used in cl 14 must also be given a liberal interpretation; a narrow technical interpretation is to be avoided.27
[65] In Option 5 Inc, a submitter, Mr Bezar, made a submission seeking to protect residential land adjoining the central business district (CBD) from pressure for out of zone commercial development. However, another submitter, Mr and Mrs McKendry, succeeded in having some of this residentially-zoned land adjoining the CBD rezoned for commercial activity. Mr Bezar lodged an appeal against the Council decision, and an incorporated society sought to join Mr Bezar’s appeal under s 274 of the RMA.
[66] A challenge was raised by the developer as to whether, as a s 274 party to Mr Bezar’s appeal, the incorporated society could oppose the changes, when Mr Bezar had not filed a submission expressly opposing the McKendry’s original submission. However, the High Court concluded that Mr Bezar’s original submission clearly referred to the relevant provision or matter that the incorporated society wished to address as a s 274 party to his appeal, so as to found a valid appeal which the s 274 party could support. Ms Steven argues that the Society is in the same position in the present case.
24 Countdown Properties (Northlands) v Dunedin City Council, above n 3, at 166.
25 Royal Forest and Bird Protection Society Inc v Southland District Council [1997] NZRMA 408 (HC) at 10.
26 Resource Management Act 1991, sch 1, cl 14(2).
27 Option 5 Inc v Marlborough District Council (2009) 16 ELRNZ 1 (HC).
[67] In response to the allegation that the Environment Court applied the wrong legal test in determining that the Upper Clutha appeal raises the issues of the location of the ONL at Arthurs Point, she responds by saying the original Upper Clutha submission was cast in very broad terms (district-wide) and addressed numerous interrelated PDP(N) provisions. Of particular relevance, the submissions supported the recognition of ONL land and the level of protection afforded to it in the ODP through the rural zone provisions. Upper Clutha wanted those provisions carried through into the PDP and implicitly opposed any reduction in that level of recognition and/or protection. The submission was therefore broad enough to raise this issue.
[68] Ms Steven then submits that the notice of appeal is not as narrow as alleged by the Council. If read as a whole, it also unequivocally opposes the PDP(D) provisions in relation to ONL/ONF land, insofar as they depart from those in the ODP. In the PDP(D), the Commissioners included a line around the Arthurs Point settlement and the Shotover Loop, excluding it from the ONL landscape unit within which it had otherwise been depicted. The Society seeks removal of these new lines, and that removal reinstates the recognition and protection of the ONL values in relation to the Shotover Loop, which was an outcome explicitly supported by Upper Clutha in its submission and, by implication, in its appeal.
[69] She rejects the submission that the Environment Court erred by conflating merits-based issues with the determination of scope, and points out that the Environment Court expressly disavowed consideration of the merits of the appeal, saying:28
... Nothing in this decision is any comment on the substantive issue of where an ONL(B) … line should be drawn in the vicinity of Arthurs Point.
[70] In respect of the submission that the Environment Court took into account irrelevant considerations, including the context of the plan change process, and the sequence in which the Court considered decisions on the location and zoning of ONL land should be made, Ms Steven submitted these were relevant considerations, including to the question of the consequential amendments that could flow from the removal of the ONL boundary around the Shotover Loop. It was unrealistic, and
28 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council, above n 1, at [55].
wrong in law, to expect that the Environment Court could consider the scope of permissible changes to a plan without understanding the content and architecture of the plan sought to be amended.
[71] In terms of the allegation that the Court took into account the irrelevant consideration of fairness to the parties, she argues this is not an irrelevant consideration. The principles developed in case law on the determination of scope are founded on considerations of fairness.
[72] In response to the suggestion that the Court ignored relevant matters, being the further particulars provided by Upper Clutha which disavowed any interest in the Shotover Loop, Ms Steven says that the further memoranda filed by the parties did not purport to amend the appeal and therefore were irrelevant to the issue of scope. The fact that Upper Clutha only sought to bring evidence in relation to the ONL boundary at the Wanaka sites was a decision based on resources and nothing else. In Ms Steven’s submission it would be unfair and irregular if the Council could request further particulars from an appellant in order to subsequently limit the scope of the s 274 notice which has been validly filed in relation to an appeal. As a s 274 party has the ability to continue on with its s 274 notice, even if the appeal it relates to is withdrawn, similar logic should apply to the s 274 party to continue with its notice even if the scope of the appeal is narrowed (albeit the Society does not accept that it was).
[73] In respect of the submission that the Environment Court took into account irrelevant matters, including:
(a)its finding in a prior decision that “the relief sought by [Gertrude’s Saddlery] and Larchmont ... in respect of the “ONL” status of the Shotover Loop was both indirect and misleading”;29 and
(b)its reservations about the Commissioners’ use of powers under cl 16(2) of the RMA, to insert an ONL around Arthurs Point,
29 At [8].
she submits neither observation was taken into account in deciding on scope, and so there was no error.
Analysis
[74] I accept the Society’s submission that the question of whether an amendment to a plan is reasonably and fairly raised in the course of submissions, should be approached in a realistic, workable fashion.30 I accept, too, that Upper Clutha’s original submission was sufficiently wide-ranging to cover the subject matter of concern to the Society. Upper Clutha submitted on the issue of “rural subdivision and/or development within outstanding Natural Landscape and Outstanding Natural Features”. It wanted this activity to be non-complying. The submission had the overall theme that the ODP was stronger in terms of protecting landscape values than the PDP and it sought retention of what was in the ODP, including in terms of the lines that defined ONLs. There can be little doubt, read in a realistic and workable fashion, that there was scope within the Upper Clutha submission to object to the removal of an area from an ONL that appeared in the ODP.
[75] The critical issue, however, is whether the Upper Clutha appeal retains that scope. While, superficially, the issues of interest to the Society are captured by the breadth of Upper Clutha’s original submission, it is clear the relief sought on appeal is more focused. That is appropriate, as the original submission must anticipate what issues might arise that the submitter is interested in, whereas by the time the appeal is lodged, the submitter has a decision to respond to, and can be expected to identify the specific parts of it the submitter takes issue with and the relief that is sought.
[76]The key relief sought in the Upper Clutha appeal was that:
(a)the objectives, policies, assessment matters, rules and maps and any other provisions that relate in any way to subdivision and/or development in the rural zone should adequately protect, for future generations, the ONL and ONF landscapes of the district from inappropriate subdivision and/or development; and
30 Royal Forest and Bird Protection Society v Southland District Council, above n [23], at 10.
(b)all landscape lines from the ODP are rolled over “in their exact current form”, but additional landscape lines are shown as dotted lines and therefore are indicative only.
[77] Nowhere in the notice of appeal does Upper Clutha expressly challenge the new ONL line which excluded the Shotover Loop from the ONL nor the rezoning that occurred during the Council decision making process. The only way the Judge can suggest it does is by reading the references to the rural zone in the document as the rural zone as identified in the PDP(N), not the PDP(D), and tying this in with the relief sought in the submissions, not the appeal, that the PDP(N) ONL boundaries should revert to those in the ODP.
[78] Looking at the detailed description of the relief Upper Clutha sought in its appeal, which is reflected in its marked up copies of parts of the PDP(D) attached to that document, there is no suggestion that Upper Clutha sought anything more in relation to the Shotover Loop properties than that the line excluding it from an ONL be shown as provisional only.
[79] To read the appeal as encompassing the relief sought by the Society is to rewrite the appeal. If an objection is to be raised to issues as major as the zoning of identified land and the position of a UGB, that should be obvious from the relief sought in the appeal, not, as the Judge did, deduced from the original submissions combined with generic statements in the introduction to the appeal.
[80] That conclusion is enough to determine the appeal. Essentially, I have found that the Judge wrongly relied on the breadth of the Upper Clutha submission to conclude that the relief sought by the Society was within scope of the Upper Clutha appeal, without having proper regard to the limited range of relief expressly sought in the appeal document. Alternatively, he came to a decision that no reasonable decision-maker could come to having regard to the legal test for scope, and applying it to the Upper Clutha appeal.
[81] However, if there were to be any doubt about that, I consider the further memoranda filed by Upper Clutha during the case management process put the issue
beyond doubt. In a memorandum dated 12 August 2018, Upper Clutha specified that it was “not challenging the location of any landscape lines in the Wakatipu (simply whether they are dotted or solid)”, and suggested a changed wording in the appeal relief point 7 to make that clear. It concluded that “[i]t can be seen from the revised wording above, that [Upper Clutha] accepts that the dotted landscape lines can be used in all Council hearings until verified or changed by the Court”. In a further memorandum filed on 31 August 2018, this stance was reiterated.
[82] The Judge ignored the content of these memoranda when determining whether the Society’s s 274 notice fell within the scope of the appeal. I consider he was wrong in law to do so. The Society expressly stated that it was accepting the lines in the PDP(D) version so long as they were shown as dotted lines. While the Judge considered that the timing of this clarification meant it was irrelevant, I do not agree. Even if the relief sought by the Society was within the scope of the Upper Clutha appeal as lodged, (which I have found is not the case), where the appellant expressly limits the scope of its appeal, that must affect the position of the s 274 party.
[83] Under s 274, a person who becomes a party to proceedings before the Environment Court cannot prevent an appellant from withdrawing all or part of its appeal, except in very limited circumstances.31 If the relevant part of the appeal is withdrawn (however that is indicated), that can affect the ability of the s 274 party to pursue those issues.
[84] As is explained in Prestons Road Ltd v Canterbury Regional Council, where an appellant gives notice of withdrawal of part or all or their appeal, but a s 274 wants to keep the appeal alive so their notice has something to work on:32
(a)the s 274 party may “oppose the withdrawal” provided (as is the case here) the original appellant was also submitter on the same proposed plan;
(b)the Court has a discretion to allow the withdrawal or part withdrawal;
31 Parkbrook Holdings Ltd v Auckland City Council [1999] NZRMA 10 (HC).
32 Prestons Road Ltd v Canterbury Regional Council [2011] NZEnvC 167 at [18].
(c)if it refuses the withdrawal, then the s 274 party may call evidence on the (now) pro forma notice of appeal provided that the evidence is:
(i)within the scope of the appeal; and
(ii)on matters arising out of the s 274 party’s submission to the local authority or on any matter on which the s 274 party could have appealed.
[85] In the present case, if the memoranda to the Court are treated as “withdrawing” part of the Upper Clutha appeal (by making it clear Upper Clutha was not opposing the location of any ONL boundary in the PDP(D) just its status), then the Society could have challenged that. However, if it was unsuccessful it would have had no right to call evidence on the existence of the ONL boundary line excluding the Shotover Loop from the ONL, because it was not a submitter on that issue originally, and that was relevant to the Judge’s decision on whether it could pursue those issues.
[86] However, in my view, the memoranda should most appropriately be seen as confirming the scope of the appeal, rather than amending it, and should not have been ignored in the Environment Court’s decision. If the relief sought by the Society was not expressly sought in the Upper Clutha appeal and Upper Clutha confirmed that it was not seeking that relief, it is not for the Court to imply that relief in to the appeal, because it thinks it desirable to do so.
[87] Given my conclusions above, strictly speaking, I do not need to consider whether the Court had regard to irrelevant matters as claimed, or whether the decision was one that no reasonable decision-maker could have come to. However, I make the following brief comments.
[88] I consider the Judge did have regard to an irrelevant matter in reaching his decision that the Society’s s 274 notice was within the scope of the appeal. He clearly relied, at least to some extent, on his view that because Gertrude’s Sadlery and Larchmont had sought resolution of the issue of where the ONL lines should be Arthurs Point in the submission process, it was “fair and reasonable” that the Society
be allowed to present a case and challenge that decision. However, that consideration cannot influence whether the issues in a s 274 notice can be pursued if there is not otherwise scope to do so in the appeal it relates to. It was irrelevant to that decision. To the extent that it was taken into account, the Court erred in law.
[89] I am not satisfied, however, that any of the other matters raised by counsel as irrelevant considerations were in fact taken into account in the decision and those aspects of the appeal are not sustained.
Was rezoning the Shotover Loop to Rural available as consequential relief?
Submissions of Gertrude’s Saddlery
[90] Even if there is scope within the Upper Clutha appeal for the Society to argue against the exclusion of the Shotover Loop from the ONL, both Gertrude’s Sadlery and the Council argue the Court was wrong to interpret the Upper Clutha appeal as encompassing removal of the UGB around the Shotover Loop and reversion to rural zoning as consequential relief. Gertrude’s Sadlery submits that this is not relief which meets the test of being “foreseen as a direct or otherwise logical consequence” of the Upper Clutha submission.33 Rather, it could only have followed from taking into account irrelevant matters, including the policy direction in the PDP regarding the relationship between ONL, UGB and zoning, and legal authorities on the planning hierarchy for identifying appropriate ONL, UGB and zoning.
Submissions of the Council
[91] The Council supports Gertrude’s Saddlery, saying that consequential relief must derive from other relief sought by an appeal. If that relief is not available because it is not within scope, there is no potential for that consequential relief to be granted. As was said in Queenstown Airport Corporation Ltd v Queenstown Lakes District Council:34
… “alternative” or “consequential” relief must relate to the grounds of appeal and cannot be relied on to extend the nature and extent of relief sought beyond the scope of an appeal.
33 Albany North Landowners v Auckland Council [2017] NZHC 138 at [108].
34 Queenstown Airport Corp Ltd v Queenstown Lakes District Council [2013] NZEnvC 14 at [95].
[92] The Council also says the finding that the Upper Clutha appeal both “directly and consequentially” sought the rezoning of the Shotover Loop, is irrational. An appeal can either seek relief directly, or it can seek it consequentially, but it cannot have both characteristics. Here, the Upper Clutha appeal did not raise rezoning and chose not to challenge any zoning decisions or decisions on the UGB. It therefore did not seek rezoning directly.
[93] It also can not be said to have sought it consequentially. When the notice of appeal refers broadly, to “subdivision and development in the Rural Zone”, it is implicit that the references to the rural zone was to the zone as identified in the PDP(D) because it sought no changes to the zoning decisions in the PDP(D). Instead, the Upper Clutha appeal was seeking a stricter planning regime for that rural zone and for ONF/ONL land, rather than a zoning change. Accordingly, no aspect of the appeal can be interpreted as being directly applicable to the zoning of the Shotover Loop. As a result, there is no prospect of satisfying the “reasonably foreseeable logical consequence” test for the relief that the Environment Court held would be consequential.
[94] Furthermore, the Council concurs with Gertrude’s Sadlery that the Court erred by finding that if an ONL boundary is changed “it would appear to be an automatic consequence” that the zoning and UGB of the area would also need to be changed.35 These issues are not inextricably linked as the Court suggests. The Council notes that there are a number of different zones located within the ONLs shown in the PDP(D), and it cannot be assumed that only a rural zoning is appropriate.
Submissions for the Society
[95] In response to the alleged errors in relation to what “consequential relief” was available to the Society, Ms Steven argues that the Court correctly took a broad approach to the reading of the appeal and did not confine itself to the amendments expressly sought under the heading “relief sought”. She submits this is the correct way to approach the interpretation issue, relying on the approach taken in Countdown Properties (Northlands) Ltd referred to in [63] above. Given the notice of appeal
35 Upper Clutha Environmental Society Inc v Queenstown Lakes District Council, above n 1, at [52].
stated that Upper Clutha was appealing the parts of the decision “that relate in any way to subdivision and/or development in a Rural Zone”, the Court correctly concluded that this amounted to a request for consequential amendments that prevented subdivision in what had been a rural zone.
[96] In any event, Ms Steven submits that it will be for the Environment Court hearing the substantive appeal to decide whether the change to the zoning (and location of the UGB) is a consequential alteration that is justified on the facts and is within the sch 1 cl 10(2) RMA powers, or whether such amendment should be pursued under the extended s 293 jurisdiction, if it finds that the ONL classification should be reinstated.
Analysis
[97] The Judge identified that unless there was power to reverse the zoning of the Shotover Loop as determined in the PDP(D), then the Council be faced with the situation where the ONL was amended by the Environment Court to include the Shotover Loop, but “anomalously” the land would continue to have an LDR zoning, which was the real issue of concern to the Society. To conclude there was scope to make such a change, the Judge relied on the statement in the Upper Clutha appeal that it was appealing the PDP(D) insofar as it relates “in any way to subdivision and/or development in the Rural Zone”. However, I accept that the only logical way to interpret the notice of appeal is that it related to the rural zone as identified in the PDP(D) as it did not take issue with the zoning decisions in the PDP(D).
[98] In addition, the Judge concluded it would be an “automatic consequence of any finding … that the Shotover Loop is part of the ONL that the UGB should move and the Rural zoning be [reinstated]36 even though there is no appeal directly seeking to overturn the Council’s decision in respect of the [Shotover Loop]”.37
[99] I do not agree. In Albany North Landowners v Auckland Council, the High Court determined that the test for scope to make consequential amendments is that the amendments are “necessary and desirable” and “foreseen as a direct or
36 The Judge used the word “removed” but this is clearly an error.
37 At [52].
otherwise logical consequence of a submission”.38 I consider the same test must apply if the reference to a submission is a reference to an appeal. “Consequential amendments” generally include uncontested matters, such as amending planning maps to reflect the substantive change that is sought. It is an amendment which flows naturally and inevitably from the change that is sought. Again, this reflects the natural justice considerations that underpin the principle of scope.39 Changes should not be made to the plan through the appeal process that could not have been anticipated from reading the notice of appeal.
[100] In this case, I agree with the appellant that neither the Upper Clutha submission, nor the appeal, fairly and reasonably raised the issue of non-rural land being within an ONL, or the issue of a mismatch between an ONL boundary and a UGB. Ironically, the ODP, which the Upper Clutha submission and appeal expressly endorsed, showed the existing residentially-zoned Arthurs Point settlement within the ONL. It therefore can not be assumed that land within an ONL inevitably requires a rural zoning.
[101] In conclusion, no aspect of the Upper Clutha appeal can be interpreted as being directly applicable to the zoning of the Shotover Loop and there was therefore no prospect of satisfying the “reasonably foreseeable logical consequence” test for a challenge to the zoning of this area under the PDP(D), or its inclusion within the UGB. The decision thus erred in law in concluding that such relief met this test.
Is the appeal now moot?
[102] Had I not found that the Judge erred in law when coming to his decision that the relief sought by the Society’s s 274 notice was within the scope of the Upper Clutha appeal, Mr Casey argued an alternate ground which was that the Society could no longer pursue the s 274 notice as the Upper Clutha appeal had been heard and determined.
38 Albany North Landowners v Auckland Council, above n 30, at [108].
39 At [107].
[103] The Environment Court heard the Upper Clutha appeal, along with other appeals in an extended hearing commencing on 8 April 2019. In a decision which issued on 20 September 2019, the Court declined the relief sought by Upper Clutha saying:40
The request for the Landscape Lines shown on the ODP maps to be rolled-over in their exact current form (with associated text) is declined.
It deferred however, the determination of other topics, including in respect of the Wanaka sites, for a subsequent hearing. Given the Society’s participation was dependent on this aspect of the Upper Clutha appeal, Mr Casey argued the Society had lost its opportunity to run its case as part of the Upper Clutha appeal.
[104] The Society had not appreciated, prior to hearing, that that point would be raised, and Ms Steven filed subsequent submissions to address that argument. She explained that the Society was not present at the hearing of the Upper Clutha appeal, which was heard in mid-2019, because the issues it wished to pursue in relation to the ONL line around the Shotover Loop were, during the case management process, “carved out” of the hearing on the first tranche of sub topics commencing on 8 April 2019.
[105] Furthermore, the Society’s ability to participate in that hearing was complicated by the need to resolve the jurisdictional issues which were raised in relation to the Society’s s 274 notice.
[106] In any event, Ms Steven says the topic addressed in Hawthenden Ltd v Queenstown Lakes District Council that related to Upper Clutha’s desire to have the landscape lines retained in their exact current form, was a topic in which the Society had no particular interest.
[107] Having considered the Society’s submissions, I accept that it reasonably understood that the issues of concern it had with the Shotover Loop, and its exclusion from the ONL, were deferred for a subsequent tranche of hearings, just as Upper Clutha’s issues in relation to the Wanaka sites were. While it would be most
40 Hawthenden Ltd v Queenstown Lakes District Council [2019] NZEnvC 160 at A(i).
unusual (and in my view undesirable) for a s 274 party to have its submissions and evidence heard separately from the appeal it had joined, that appears to have been agreed in this case, and it could not, on its own, prevent the Society from being heard on appeal.
[108] However, what that does emphasise is the lack of connection between the topics raised in the Upper Clutha appeal and those which were proposed to be pursued by the Society. This supports my earlier finding that the Judge erred in law when finding there was scope for the Society to pursue its concerns under the Upper Clutha appeal. The reality is that the Society wished to pursue a point which was distinct from that pursued by Upper Clutha, and the fact it could be heard independently of the Upper Clutha appeal simply reinforces that.
Result
[109] I am satisfied that the Court erred in law when reaching its decision that the Society could use its s 274 notice of the Upper Clutha appeal to seek a different ONL and classification on the Shotover Loop, and those errors were material to the decision.
[110]The errors were:
(a)it relied on the breadth of the Upper Clutha submission, rather than the notice of appeal to find scope to seek removal of a new ONL boundary line;
(b)it relied on the irrelevant consideration of perceived fairness to the parties to reach this decision; and
(c)it incorrectly applied the test for whether the consequential relief sought by the Society was available should the new ONL around the Shotover Loop be deleted.
[111]Accordingly, the appeal is allowed.
Relief
[112] While Gertrude’s Saddlery sought that the Court substitute its own decision for that of the Environment Court, that is an unusual step. The usual course is to send the matter back to the Environment Court for reconsideration.41 However, the High Court has been prepared to substitute its own decision where the outcome is inevitable and there is no need to make further factual determinations in the specialist Court.42
[113] In the present case, what is at issue is a straightforward question of interpretation in the context of a procedural decision. It inevitably flows from my findings on the scope of the notice of appeal that the only decision which could flow is a reversal of the Environment Court’s decision. This distinguishes this appeal from appeals on substantive issues, such as a decision to grant resource consent, or a decision on the content of a proposed plan, where a wider assessment is required of the evidence, in light of the error of law identified on appeal.
[114] Accordingly, the decision of the Environment Court dated 6 November 2019 is set aside and I make the following rulings:
(a)The notice of appeal by the Upper Clutha Environmental Society Incorporated does not raise the issue of the proper location of the Outstanding Natural Landscape boundary in the vicinity of Arthurs Point generally;
(b)The Upper Clutha Environmental Society Incorporated appeal does not seek, either directly or consequentially, that the rezoning by decisions of the hearing committee of the land zoned rural in the Proposed District Plan (Notified) be reversed and the zoning returned to rural; and, accordingly
(c)The Arthurs Point Outstanding Natural Landscape Society Incorporated may not use its s 274 notice on the Upper Clutha Environmental Society Incorporated’s appeal to seek a different
41 Meridian Energy Ltd v Central Otago District Council [2011] 1 NZLR 482 (HC).
42 Landrovers Owners Club (Otago) Inc v Dunedin City Council (1998) 4 ELRNZ 252 (HC).
outstanding natural landscape boundary and classification on the properties at 111 and 163 Atley Road.
Costs
[115] Costs are reserved but I see no reason why they should not follow the event on the agreed 2B basis. If counsel are unable to agree, submissions should be filed as follows:
(a)memoranda by the Council, Gertrude’s Saddlery and Larchmont (preferably a joint memorandum) on or before 20 working days43 from the date of this judgment;
(b)memorandum by the Society on or before a further 10 working days; and
(c)any memorandum in reply on or before a further five working days.
Solicitors:
Anderson Lloyd, Queenstown Parker | Cowan, Queenstown
Copy To: Queenstown Lakes District Council P A Steven QC, Christchurch
43 Working days excludes the Court holiday period pursuant to r 3.2(1)(b) High Court Rules.
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