Gock v Auckland Council
[2022] NZHC 3126
•28 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-000094
[2022] NZHC 3126
IN THE MATTER of the Local Government (Auckland Transitional Provisions) Act 2010 and Resource Management Act 1991 BETWEEN
JOE GOCK and FAY GOCK
Appellants
AND
AUCKLAND COUNCIL
Respondent
Hearing: 21 June 2021 4 August 2021 supplementary submissions Appearances:
A G Webb for Appellants
T R Fischer & E M Moon for Respondents
Judgment:
28 November 2022
JUDGMENT OF DUFFY J
This judgment was delivered by me on 28 November 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Simpson Grierson, Auckland Wilson McKay, Remuera
GOCK v AUCKLAND COUNCIL [2022] NZHC 3126 [28 November 2022]
TABLE OF CONTENTS
Background [2]
Parties’ submissions [19]
Legal principles governing appeals from the Environment Court [22] The grounds of appeal [26]
The elite and prime soils issue [33]
Did the 2020 EnvC decision misinterpret Policy B2.2.2(2)(j)? [35]
Was the Environment Court correct to conclude the subject soilswere significant for their ability to sustain food production? [42]
Analysis [80]
Mana whenua issues [106]
Guideline 1.4.1(5) [139]
Guidelines 1.4.2(1) and (2) [143]
Guideline 1.4.3 – natural and built heritage [144]
Guideline 1.4.4 – use and activity [147]
Analysis [157]
The Structure Plan Guidelines issue [173]
Guideline 1.4.1(1) – urban growth [184]
Analysis [188]
Guideline 1.4.2(3) – integration of green networks [191]
Analysis [194]
Guideline 1.4.5 – urban development [195]
Analysis [198]
Giving effect to the RPS/other issues [200]
Chapter B2 – Urban Growth and Form [205]
Analysis [208]
Chapter B9 – Rural Environment [209]
Analysis [212]
Conclusion [217]
Result [226]
[1] The appellants, Mr and Mrs Gock, own 58 hectares of land at Pūkaki Peninsula, South Auckland. This land is currently in a rural production zone that lies beyond the Rural Urban Boundary (RUB) of the Auckland Unitary Plan (AUP). When the RUB was first drawn the Independent Hearing Panel (the Panel) recommended this land should be on the urban side of the RUB. However, the Auckland Council (the Council) excluded the Pūkaki Peninsula from the urban side of the RUB. The appellants have brought various challenges against this decision; the present appeal being their latest.1 The Council opposes the appeal.
Background
[2] The Pūkaki Peninsula is situated along Pūkaki Road with the Auckland International Airport to the west and Ngā Kapua Kohoura (Crater Hill) to the east. The peninsula is bounded by the Pūkaki Creek and the Waokauri Creek and the Pūkaki volcano and public reserve is along the north eastern boundary. The Pūkaki and Waokauri Creeks are inlets of the inner Manukau Harbour.
[3] The appellants’ land is a total of approximately 58 hectares held in 13 separate titles. Theirs is not the only land on the Pūkaki Peninsula that is affected by this appeal. There are other landowners of smaller parcels of land; they did not take an active role in this appeal.2 Part of the affected land, including land owned by the appellants, has elite and prime soils. The presence of these soils was a key feature in both the 2018 EnvC decision and the 2020 EnvC decision.
[4] The appeal is the latest in a series of steps which began with the Panel that was appointed to formulate the provisions of the AUP. One of the Panel’s tasks was to determine where the RUB should be drawn.
[5] The Pūkaki Peninsula and Crater Hill (Ngā Kapua Kohuora) are a sub-precinct of a larger area known as the Puhinui Peninsula. As outlined above, the panel’s recommendation to the Council was that the RUB should follow the coastal margin of the Puhinui Peninsula. This would have seen the Pūkaki Peninsula and Ngā Kapua
1 The right of appeal to this Court is governed by the Local Government (Auckland Transitional Provisions) Act 2010, s 158.
2 The other parcels of land are 6.7 ha; 2.02 ha and a marae and papakāinga zoned land.
Kohuora located on the urban side of the RUB. The Council rejected this recommendation, which left the Pūkaki Peninsula and Ngā Kapua Kohuora located on the rural side of the RUB.
[6] The Council’s decision in relation to Ngā Kapua Kohuora and the Pūkaki Peninsula was subsequently upheld on appeal to the Environment Court (the 2018 EnvC decision).3 That left the Pūkaki Peninsula zoned as rural production zone and the Pūkaki crater lagoon zoned open space informal recreational zone.
[7] This location of the RUB was set aside by the judgments of Muir J. Muir J delivered an interim4 and a final judgment.5 The appeal judgments of Muir J in relation to the Pūkaki Peninsula resulted in one of seven grounds of appeal against the 2018 EnvC decision being upheld. The Environment Court’s decision in relation to Ngā Kapua Kohuora was upheld but Muir J allowed the appeal in part in relation to the Pūkaki Peninsula.6 The proceeding was sent back to the Environment Court for re- consideration in accordance with the findings of Muir J.7 The appellants’ status in that appeal was as a s 274 party.8
[8] The relevant effect of Muir J’s findings on the successful ground of appeal are summarised in his final judgment:9
[14] In my interim judgment I found that the Environment Court had erred in:
(a)the proper construction of the Regional Policy Statement (RPS), Chapter B2.2.2(2)(j) relating to elite and prime soils; and
(b)its assessment of whether the relevant areas on the Pūkaki Peninsula containing elite and prime soils were significant for their ability to sustain food production.
3 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 [2018 EnvC decision].
4 Gock v Auckland Council [2019] NZHC 276 [Interim judgment].
5 Gock v Auckland Council [2019] NZHC 1603 [Final judgment].
6 Interim judgment, above n 4.
7 Final judgment, above n n 5.
8 The Resource Management Act 1991, s 274 permits persons with specific interests recognised in that provision to participate as parties in an appeal before the Environment Court. This includes appeals to the Environment Court under s 56 of the Local Government (Auckland Transitional Provisions) Act 2010.
9 Final judgment, above n 5, at [14]–[16].
I also stated those errors to be material.
[15] The identified error of construction was in respect of the phrase “significant for their ability to sustain food production” in RPS Chapter B2.2.2(2)(j). The Environment Court said that this qualified the reference to prime soils only with the result that, subject to a de minimis exception, the location of the RUB was required to avoid elite soils without reference to their significance in sustaining such production. I did not support that conclusion.
[16] I also held that the Environment Court had erred in finding (effectively as a backstop to its primary position) that the principle of “incremental loss” was relevant to the location of the RUB when the question related to lands already surrounded by urban development.
[9]In the final judgment Muir J directed the Environment Court:
[37]… to determine the proper location of the RUB on the Pūkaki Peninsula having regard to my interim judgment decision of 27 February 2019. In so doing I direct that the Environment Court is, in exercise of its powers under s 269(1) of the [Resource Management Act 1991] and in its discretion, entitled to consider further evidence in relation to satisfaction of RPS [Regional Policy Statement] criterion B2.2.2(2)(f). Save for any additional evidence the Environment Court chooses to admit in this respect, it is to reconsider the RUB location based on the evidence already heard by it.
[10] It is helpful to outline how the above references to Policies B2.2.2(2)(f) and (j) relate to the AUP. This is explained at [80] to [82] of the 2018 EnvC decision.10 The AUP combines the Regional Policy Statement (RPS), the proposed regional coastal plan, the regional plan, and the district plan into one unitary plan. The AUP is divided into 14 chapters. Of those chapter B sets out the RPS, which is further divided into sections B1 to B11. Policies and objectives on urban growth and form are set out under B2. The B2.2.2 policies, which include B2.2.2(2)(a) to (m), relate to specifically to the location of the RUB.
[11]Policy B2.2.2(2) provides:
(2) Ensure the location or any relocation of the Rural Urban Boundary identifies land suitable for urbanisation in locations that:
(a) promote the achievement of a quality compact urban form
(b) enable the efficient supply of land for residential, commercial and industrial activities and social facilities;
10 2018 EnvC decision, above n 3, at [80]–[82].
(c) integrate land use and transport supporting a range of transport modes;
(d) support the efficient provision of infrastructure;
(e) provide choices that meet the needs of people and communities for a range of housing types and working environments; and
(f) follow the structure plan guidelines as set out in Appendix 1;
while:
(g) protecting natural and physical resources that have been scheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources, coastal environment, historic heritage and special character;
(h) …
(i) ensuring that significant adverse effects from urban development on receiving waters in relation to natural resource and Mana Whenua values are avoided, remedied or mitigated;
(j) avoiding elite soils and avoiding where practicable prime soils which are significant for their ability to sustain food production;
(k) avoiding mineral resources that are commercially viable;
(l) avoiding areas with significant natural hazard risks and where practicable avoiding areas prone to natural hazards including coastal hazards and flooding; and
(m) aligning the Rural Urban Boundary with:
(i) strong natural boundaries such as the coastal edge, rivers, natural catchments or watersheds, and prominent ridgelines; or
(ii) where strong natural boundaries are not present, then other natural elements such as streams, wetlands, identified outstanding natural landscapes or features or significant ecological areas, or human elements such as property boundaries, open space, road or rail boundaries, electricity transmission corridors or airport flight paths.
[12] The reference in Muir J’s final judgment to allowing the Environment Court in the exercise of its discretion to receive more evidence in relation to Policy B2.2.2(2)(f) was made because in the 2018 EnvC decision that Court was critical of the adequacy of the appellants’ evidence in terms of compliance with Policy B2.2.2(2)(f) – the requirement to follow the Structure Plan Guidelines. Muir J’s direction gave the
appellants an opportunity to improve their evidence in relation to compliance with the Structure Plan Guidelines.
[13] Accordingly, the Environment Court that re-heard and delivered the 2020 decision was required to determine the proper location of the RUB on the Pūkaki Peninsula in accordance with: (a) the determinations of Muir J in the interim and final judgments; and (b) the determinations in the 2018 EnvC decision that were untouched by the interim and final judgments of Muir J.
[14] At the second hearing the Environment Court upheld the Council’s decision (the 2020 EnvC decision).11 The appellants had at this point amended the relief they sought for the location of the RUB. Now they want the RUB located on the northern side of Pūkaki Road between the existing urban boundary at the north western entrance to the peninsula and the southernmost corner of the land held by Savanah Holdings Ltd before turning in a north easterly direction along Savanah Holdings Ltd land as far as the tributary of the Waokauri creek that flows out of the Pūkaki Crater Lagoon.12 This leaves the land owned by Savanah Holdings Ltd zoned as rural production zone and the remainder of the Pūkaki Peninsula zones as Future Urban Zone (FUZ).
[15] Therefore the rehearing before the Environment Court involved a reduced area of land to be included in the RUB urban area.13 The affected land now comprises some 83.43 ha; if it is located within the urban side of the RUB this would see 78.96 ha subject to a FUZ and 4.47 ha subject to a Special Purpose-Māori Purpose Zone.14
[16]The present appeal then followed.
[17] The procedural history of this proceeding has affected the second round of hearings in both the Environment Court and this Court on appeal. Because there was no appeal against the judgments of Muir J I must respect and follow them where relevant to this appeal. However, where the 2020 EnvC decision contains
11 Gock v Auckland Council [2020] NZEnvC 214 [2020 EnvC decision].
12 See 2020 EnvC decision, above n 11, at [255] and the attached “Pūkaki Spatial Plan” therein.
13 The reduced area excluded the Outstanding Natural feature area (the Pūkaki Crater/Lagoon), the urupā, the area fronting the Pūkaki Crater/Lagoon and the land owned by Savannah Holdings Limited; see 2020 NZEnvC decision, above n 11, at [20].
14 2020 NZEnvC decision, above n 11, at [18]–[22].
determinations based on that Court’s assessment of any new evidence or new legal submissions that were not previously determined by Muir J, I am free to reach my own conclusions thereon.
[18] There is no dispute that the Environment Court’s reconsideration could take account of any new evidence that was not before that Court at the first hearing. Thus there is common acceptance that updating evidence was permissible.
Parties’ submissions
[19] Put shortly, the appellants submit that the elite soils issue is a standalone matter. In this regard, they argue that the 2020 EnvC decision applied the wrong test to interpreting Policy B2.2.2(2)(j). They argue that the 2020 EnvC decision does not apply the interpretation of Policy B2.2.2(2)(j) as found by Muir J; instead finding that all elite soils are significant for their ability to sustain food production. Second, the appellants submit that once the elite soils issue is dispensed with, the remaining issues (including mana whenua issues) that were determined in the 2020 EnvC decision should not be decisive of the location of the RUB.
[20] The respondent submits that the appellants’ submissions fail to raise points of law. Instead they make unsustainable allegations in both law and fact; they improperly seek to involve this Court in assessing the merits of judgments made by the Environment Court in its specialist capacity; and their submissions focus narrowly on isolated policies (concerning soil or mana whenua issues), and contest the weight given to particular evidence, contrary to the wider statutory context of the AUP, including the RPS and the principles and purposes of the New Zealand Coastal Policy Statement (NZCPS).
[21] The respondent further submits that even if this Court finds the alleged errors concerning weight and considerations were made, these are immaterial to the validity of the decision.
Legal principles governing appeals from the Environment Court
[22] Appeals to the High Court from the Environment Court are governed by the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA)15 and the Resource Management Act 1991 (RMA)16 and are confined to questions of law. Section 299(1) of the RMA provides:
A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
[23] Here the appeal is brought under s 158(4) of the LGATPA. The onus of establishing any errors of law rests on the appellant.17
[24] An error of law will only justify interference with a decision of the Environment Court where the Environment Court has:18
(a)applied a wrong legal test; or
(b)come to a conclusion without evidence, or to one which, on the available evidence, it could not reasonably have come; or
(c)taken into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[25] The weight to be afforded to relevant considerations is a question for the Environment Court and not a matter available for reconsideration by this Court as a question of law.19 On appeal this Court will not engage in a re-examination of the merits of the case under the guise of reviewing a question of law.20 Where an error of
15 Local Government (Auckland Transitional Provisions) Act 2010, s 158(4).
16 Resource Management Act 1991, s 299.
17 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC).
18 Countdown Properties (Northland) Ltd v Dunedin City Council (1994) 1B ELRNA 150, [1994] NZRMA 145.
19 Moriaty v North Shore City Council [1994] NZRMA 433 (HC).
20 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363; and Murphy v Takapuna City Council HC Auckland M456/88, 7 August 1989. In Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 Wylie J held that the same principles apply to appeals under the Local Government (Auckland Transitional Provisions) Act 2010.
law is found, relief will only be granted where the error materially affected the result of the Environment Court decision.21
The grounds of appeal
[26]The notice of appeal identifies five broadly framed questions of law:
(a)Did the Environment Court apply a wrong legal test?
(b)Did that Court fail to take account of relevant considerations?
(c)Did that Court take account of irrelevant considerations?
(d)Did that Court reach conclusions that no reasonable Court could have reached?
(e)As a result of the foregoing was there a breach of natural justice?
[27] However, the notice of appeal also provides detailed particulars of various alleged errors of law that are said to give rise to the above questions of law. They are:
(a)The Environment Court applied the wrong legal test to its interpretation and approach to Policy B2.2.2 (2)(j) (concerning elite soils); namely by:
(i)failing or refusing to adopt the High Court’s interpretation of Policy B2.2.2(2)(j);
(ii)incorrectly applying the test for information requirements to follow the Structure Plan Guidelines under Policy B2.2.2(f).
(b)The Environment Court failed to take account of relevant matters when discharging its obligations under the RMA and relevant planning documents namely by:
21 Royal Forest and Bird Protection Society Inc v W A Habgood Ltd (1987) 12 NZTPA 76 (HC) at [81]–[82]; and BP Oil NZ Ltd v Waitakere City Council [1996] NZRMA 67 (HC).
(i)failing to articulate and apply the correct test for quantity and quality of evidence required for the structure plan;
(ii)failing to consider/adequately weigh the appellants’ evidence as to why consultation with mana whenua was not possible;
(iii)failing to consider the weight to be given to evidence from mana whenua that “any” development of land would cause adverse effects on cultural issues when mana whenua refused to consult with appellants or provide specific information about why the appellants’ proposals were unsuitable.
(iv)failing to consider the appropriate weight to give to Council’s social impact report written in consultation with mana whenua about potential effects of urbanisation without input from all four of the appellants’ experts; and
(v)failing to properly consider or apply:
a.the Objectives and Policies under B2.2.1 and B2.2.2;
b.the overarching purpose of RPS within the hierarchy of regional and district level provisions;
c.the provisions in Chapters A and B1.
(c)The Court took account of irrelevant matters in determining how to apply the B2.2.2 Policies, namely by:
(i)erroneously holding that the location of the RUB must avoid elite soils, failing to recognise that requirement to avoid elite soils was not absolute, and should be considered in context of soil’s significance to sustain food production; and
(ii)erroneously holding that Chapter B9 was relevant to the interpretation of B2.2.2(f) regarding elite soils.
(d)A breach of natural justice occurred as a result of the foregoing errors and because the Court:
(i)failed to properly consider the appellants’ evidence about difficulties consulting with mana whenua and placed considerable weight on their failure to properly address issues about sites of significant and land gifting;
(ii)placed significant weight on blanket objection to urbanisation of land by mana whenua and failed to require mana whenua to consult with appellants to address/resolve concerns, despite the fact that the land is private land and the owners/appellants have the ability to control what happens on the land;
(iii)failed to make an interim decision including appropriate directions for proper consultation and provision of information;
(iv)deprived the appellants of the opportunity to address the failure of consultation issue before the final judgment, and criticised them for matters beyond their control.
(e)The Court’s decision – that the most effective appropriate, efficient and effective way of achieving the purpose of the RMA was to exclude the subject land from the RUB – was so unreasonable that no reasonable Court could have made that decision.
[28] The relief the appellants seek is that the 2020 EnvC decision be set aside as unlawful.
[29] The subject matter of the pleaded errors of law is spread across the five questions rather than being discretely ordered under any one of the specific questions. Thus, there is a large degree of subject matter overlap between each question.
[30] I consider it is best if the various subjects are teased out and separately addressed with every question of law that is relevant to a specific subject being addressed under that subject heading. This is how the Environment Court approached the matter before it and I agree with its approach. I propose to do much the same albeit
with due recognition for the more limited type of appeal that an appeal on questions of law permits.
[31]I have adopted the following subject headings:
(a)The elite and prime soils issue;
(b)Mana whenua issues;
(c)The Structure Plan Guidelines issue; and
(d)Giving effect to the RPS/other issues.
[32] The 2020 EnvC decision hinges predominantly on the findings on the elite soil issue and then on findings on the mana whenua issues. The findings on the other issues were also influential, however, the outcome of this appeal is likely to turn on the conclusions I reach on the first two findings.
The elite and prime soils issue
[33] There are definitions of elite and prime soils in the AUP.22 Land containing elite soil is classified as land use capability class 1 (LUC1). This land is defined as being the most highly versatile and productive land in Auckland, with the following features. It is well drained, friable and has well-structured soils; it is flat or gently undulating; and it is capable of continuous cultivation. It may be recorded as such by the New Zealand Land Resource Inventory (NZLRI), identified by site mapping, or be specified in Chapter J1. Land containing prime soils is identified as land use capability classes two and three (LUC2 and LUC3) with slight to moderate physical limitations for arable use. Factors contributing to this classification are: readily available water; favourable climate; favourite topography; good drainage and versatile soils easily adapted to a wide range of agricultural uses.
22 See Auckland Unitary Plan, Chapter J1 (Definitions).
[34] Tellingly there is no definition in the AUP of what it means for elite or prime soils to be “significant for their ability to sustain food production.”
Did the 2020 EnvC decision misinterpret Policy B2.2.2(2)(j)?
[35] The appellants accept the issue between them and the Council is whether the subject elite and prime soils are significant for their ability to sustained food production.
[36] The appellants argue that the 2020 EnvC decision either failed or refused to apply Muir J’s interpretation of Policy B2.2.2(2)(j). Further they argue that the 2020 EnvC decision essentially found that all elite soils were significant for their ability to sustain food production. I reject these arguments.
[37] First, it is clear to me that the 2020 EnvC decision does not include the mistake that led the 2018 EnvC decision astray. The 2018 EnvC decision found that the reference to avoiding elite soils in Policy B2.2.2(2)(j) was not qualified by the subsequently specified requirement that those soils be “significant for their ability to sustain food production”. On the other hand, the 2020 EnvC decision recognises that Policy B2.2.2(2)(j) expressly directs the avoidance of those elite soils that are significant for their ability to sustain food production. This finding accords with the interpretation of Muir J.
[38] Second, I consider the appellants misstate the 2020 EnvC decision’s interpretation of Policy B2.2.2(2)(j). They argue the 2020 EnvC decision interprets the reference to elite soils in Policy B2.2.2(2)(j) as meaning that all elite soils are significant for their ability to sustain food production. I acknowledge that had the 2020 EnvC decision adopted this interpretation of “elite soils” in Policy B2.2.2(2)(j) this would essentially have the same practical effect as the interpretation that was adopted in the 2018 EnvC decision.
[39] There is no doubt the Environment Court was mindful that it must “apply the test the High Court has determined we must apply to the evidence.”23 It did this first
23 2020 EnvC decision, above n 11, at [47].
by reference to the subject soils, noting there was no dispute the areas of elite and prime soils on the Pūkaki Peninsula comprise 39.2 ha and 32.3 ha respectively, which together came to 71 ha or 68.8 per cent of the Pūkaki Peninsula. Nor was there any dispute that the soils were prima facie capable of growing crops. It identified the question in issue as being whether those soils had the requisite qualification imposed by Policy B2.2.2(2)(j), which was to be determined (as found by Muir J) in the context of the total area of elite and prime soils in the Auckland region.24
[40] I consider the 2020 EnvC decision spent considerable time addressing this question of whether the subject elite and prime soils have the necessary quality of being significant for their ability to sustain food production.
[41] Accordingly, I am satisfied the finding on elite soils in the 2020 EnvC decision is not based on a failure or a refusal to adopt Muir J’s interpretation of Policy B2.2.2(2)(j). The remaining question is whether the 2020 EnvC decision has correctly applied this interpretation.
Was the Environment Court correct to conclude the subject soils were significant for their ability to sustain food production?
[42] The next enquiry is whether the 2020 EnvC decision was correct to conclude that the subject soils were significant to sustain food production.
[43] The appellants rely on Muir J’s decision at [90]–[92]. They submit that Muir J found that the fact incremental loss of elite soils was occurring in the Auckland region was not relevant to the assessment of the significance of the subject soils for food production. Put another way, the significance had to be established first before incremental loss could be considered. Accordingly they say that the Environment Court in 2020 erred by using an incremental loss approach and therefore came to the wrong decisions concerning the soils’ significance for food production.
[44] The Environment Court approached the question by identifying: (a) the erroneous approach taken in the EnvC 2018 decision;25 (b) the criticisms that Muir J
24 At [49].
25 At [39].
made of the 2018 EnvC decision, including those matters which the 2018 EnvC decision had failed to address26 and those it should not have addressed.27 Regarding the latter the Court reiterated that Muir J found the principle of incremental loss of elite and prime soils was an irrelevant consideration at the policy level associated with the location of the RUB. This in part was because, as the appellants state, until such soils were also identified as significant for their ability to sustain food production the relevance of their loss could not be ascertained.
[45] The Environment Court then addressed the submissions it had received from the parties. The appellants had submitted that avoiding elite soils was only necessary if it was first established those soils were also “significant for their ability to sustain food production”. Such significance was to be tested against all the Auckland region’s elite soils. They contended that the avoidance of elite soils was not an absolute, but rather something to be seen in the overall context of the soil’s significance for its ability to sustain food production across the values for which elite soils are protected.
[46] In its submissions Auckland Council acknowledged the Environment Court must take into account the insignificant area concerned in the context of the total area of elite and prime soils in the Auckland region and, must not take into account the principle of incremental loss in the context of RUB location or relocation that involved lands already surrounded by urban development. However, Auckland Council further submitted that the assessment of significance should take into consideration what has happened already and what is expected to happen in the future. This was a matter about which the appellants objected both before the Environment Court and on appeal, where they argued the submission was no more than an attempt to introduce incremental loss as a consideration.
[47] The appellants and Auckland Council had also filed additional evidence on this topic for the reconvened hearing.
[48] The Environment Court’s response to the submissions it heard was to find the “context” of change was not something that could easily or satisfactorily be addressed
26 At [41]–[42].
27 At [43]–[45].
by adopting a simple ratio of areas as a single determinative criterion of significance.28 The Environment Court went on to express its view on what it described as a quantitative approach to assessing the regional significance of elite and prime soils, as advanced by the appellants’ expert Mr Putt.29 It considered a quantitative approach to assessing regional significance first required a decision on what was the most appropriate quantitative base on which to make the assessment. This involved determining what regional comparator was most relevant to assessing whether or not the area of elite and prime soils on the Pūkaki Peninsula should be included within the RUB for future urbanisation or should remain outside it. It found that only one comparator had been advanced in the context of producing a regional percentage figure: this was the total area of land across the region containing elite and prime soils as identified when the soils classification criteria were last applied.30
[49] The Environment Court expressed concerns about the shortcomings of using a regional percentage figure calculated on that basis.31 This was because that baseline took no account of the level of actual use of those soils for the critical purpose of sustainable food production and simply assumed that all such soils were equally substitutable. However there was evidence from experts that was not so, particularly when climatic differences were taken into account.
[50] The Environment Court also found such a baseline allowed for no consideration of the time dimension, and in that respect it was found to be arbitrary and simply reflected the total area of such soils remaining in the region at a certain point in time.32 This was in the Environment Court’s view a distinct limitation given the irreversibility of soil loss under urbanisation. Further, the Environment Court found the method of estimating quantitative significance to be manifestly incremental in nature. It was concerned by this because the Muir J had found an incremental approach was not appropriate in the policy context of plan development in coherent decisions on RUB location.33
28 At [56].
29 At [57]–[65].
30 At [58].
31 At [59].
32 At [59].
33 At [59].
[51] Having identified the shortcomings of the above quantitative approach based on regional significance, the Environment Court then queried what other regional comparators might be appropriate. It identified two possibilities. First, to compare the affected parcel of elite and prime soils on Pūkaki Peninsula with the total area of elite and prime soils across the Auckland region that are presently becoming urbanised under the AUP. Second, and in the alternative, to compare this parcel of land on the Pūkaki Peninsula with the quantum of similar parcels of land with elite and prime soils in the region that will be consumed by urban development on average each year for the next 35 years.34
[52] The Environment Court described the purpose of identifying these alternative regional comparators as being to draw attention to the fact that different notions of “regional context” are possible and each would give rise to different quantitative estimates of regional significance. It considered neither of the alternatives it had outlined were measures of simple incremental change since they sought to compare the subject land on the Pūkaki Peninsula with the subset of other parcels of land that were similarly categorised as occupied.35
[53] In the Environment Court’s view a quantitative approach to assessing regional significance did not remove the element of judgment on the appropriate basis for the assessment.36 The Environment Court considered that any of the approaches it had identified for determining quantitative significance, including the approach advanced by the appellants’ expert, Mr Putt, required a clear articulation of a related quantitative threshold of significance in the AUP process. It considered that before it could apply a quantitative approach it would first need to have an agreed basis for measuring the quantitative significance of the subject soils.37 However, in the case it faced there was no agreed threshold of quantitative significance and in the Environment Court’s view,
34 At [60]. This time frame reflects the directive for the AUP to identify a quantum of land to be zoned for future urban development to meet 35 years’ estimated demand.
35 At [61].
36 At [62].
37 At [63]. I do not accept that the basis for measuring the quantitative significance of the subject soils needed to be agreed. Often experts do not agree on the basis for their opinions. When this happens each expert must outline the basis for his or her opinion and the court then decides whether it will rely on this evidence. However, for reasons which I set out at [84]–[86] I do not consider a quantitative approach is available. Accordingly, albeit for different reasons, I agree with the Environment Court’s rejection of Mr Putt’s quantitative approach.
simple numbers taken without due regard to context were meaningless. Because the two alternative bases it had mentioned above were not put to relevant witnesses or the parties’ counsel during the hearing, the Environment Court did not pursue those hypothetical alternatives. It referred to them simply to highlight how problematic it was to adopt a quantitative approach to the assessment of regional significance without establishing an agreed basis for comparison.
[54] The Environment Court then turned to what it described as the appellants’ essential thesis, as outlined by their expert Mr Putt. This was:38
The [Panel] had access to Dr Curran-Cournane’s (Council’s soil scientist) information on the extent of elite soils in the Auckland region which totalled 4,397 ha; which means the Gock elite soils are 0.6% of that total. In my opinion the conclusion of the Panel represents a balanced view, taking into account the Regional Policy Statement on land containing elite soils found in policy B2.2.2(2)(j).
…
Accordingly, it is clear that when considering whether the removal from food production of the 100 ha of elite and prime soils on Pūkaki Peninsula is an issue in terms of resource protection, the 63,000ha of those soils across the Auckland region is a backdrop to that decision. It is statistically an extremely small part of the elite and prime soil portfolio in the region.
[55] The Environment Court referred to Muir J’s finding that the 2018 EnvC decision did not engage with Mr Putt’s essential thesis at all.
[56]The Environment Court then found:39
We now set out clearly our view that we do not accept that Mr Putt’s quantitative assessment is relevant because it reflects explicitly an incremental perspective to evaluating significance. …
[57] Before the Environment Court Mr Putt had amended his original estimate of the regional percentage for the Pūkaki Peninsula land under appeal. Initially he had said this was 0.6 per cent but at the hearing he revised that figure to 0.07 per cent in light of Dr Curran-Cournane’s updated soils classification data stating the difference was significant and helpful to the appellants’ case.40 In Mr Putt’s view the subject
38 At [66].
39 At [67].
40 At [68].
soils were so insignificant as to fall into the planning realm of de minimis. However, the Environment Court found Mr Putt’s original evidence as compared with his supplementary evidence for the rehearing provided an example of how quantitative indicators of significance could vary by an order of magnitude depending on the selection of input data and assumptions.41 The conclusion was that his revised estimate was no more persuasive than the original.42 In the Environment Court’s view the question of whether or not elite and prime soils of the Pūkaki Peninsula were significant for their ability to sustain food production was a matter of judgment and not something to be determined by a quantitative assessment.43
[58] Before turning to what it described as more qualitative aspects of the expert evidence on the subject soils, the Environment Court identified three other quantitative aspects that it considered worthy of address. These were: (a) whether or not a de minimis exception argument was relevant in the context of the Pūkaki Peninsula and the amended appeal; (b) the relevance of the cumulative loss of elite and prime soils over time; and (c) the implications of using the more accurate FARMLUC soils classification data when considering the decision of the Panel.44
[59] The Environment Court was satisfied the subject soils should not be considered de minimis in their extent. Thus it rejected this aspect of Mr Putt’s evidence. It acknowledged the elite soils on Ngā Kapua Kohuora/Crater Hill were found to be de minimis, but the Environment Court considered that those soils were different from the soils on the Pūkaki Peninsula. First, because the soils on Ngā Kapua Kohuora contained 6.3 ha of elite soils and 44.4 ha of prime soils, comprising in total 45 per cent of that land, whereas, for the Pūkaki Peninsula there was 39.2 ha of elite soils and
32.3 ha of prime soils, which comprised a total of 69 per cent of that land.45 Further,
the prime soils on the Pūkaki Peninsula were almost entirely class 2 soils with several small peripheral areas of class 3 soils, while on Ngā Kapua Kohuora/Crater Hill the prime soils exhibited similar shares of class 2 and class 3 soils.46 Secondly, on the
41 At [69].
42 At [69].
43 At [70].
44 At [71].
45 At [73].
46 At [74].
Pūkaki Peninsula the class 1 and class 2 soils were largely contiguous across the entire peninsula creating a single area of productive land whereas on Ngā Kapua Kohuora/Crater Hill the areas of both class 1 soils and class 2 soils were fragmented and separated by class 3 and even lower class soils.47
[60] Further, the Environment Court noted that while the amended relief now excluded land owned by Savannah Holdings Ltd, which was some 13.4 ha of class 1 and class 2 soils, nevertheless any move to urbanise the remaining 58.1 ha of land under the amended appeal would render the Savannah Holdings Ltd land vulnerable to increasing reverse sensitivity pressures. Hence the long term outcome from the amended 2020 relief was, in the Environment Court’s judgment, likely to be little different from that associated with the original relief sought in the 2018 EnvC decision. Further, with less than half the Savannah Holdings Ltd land having elite soils if the land with the subject soils were to be placed on the urban side of the RUB the Savannah Holdings Ltd elite and prime soils would then likely fall into the same de minimis category as the corresponding elite soils on Ngā Kapua Kohuora/Crater Hill.48
[61] The Environment Court then turned to consider the relevance of the regionally cumulative loss of soils over time, noting the parties adopted diametrically opposed positions on that question.49
[62] In its submissions Auckland Council focused on the broader regional context, not just at present but over time, and the effect of losing elite soils at Pūkaki Peninsula in combination with other areas of elite soils that have been lost across the region; stating this was relevant to the Court’s decision. Whereas the appellants submitted that since the High Court did not accept the relevance of cumulative erosion on Auckland’s elite and prime soils to urbanisation over time, that should be the end of the matter in respect of elite soils and any evidence on that issue should simply be put to one side.
47 At [74].
48 At [75].
49 At [77]–[87].
[63] The Environment Court resolved this dispute first, by reference to what the High Court had said at [80] of its decision:50
If, as urban Auckland expands, the areas of elite and prime soil were, on the premise of incremental loss, invariably excluded from the RUB, then the integrity and coherence of that boundary would inevitably be compromised, and spot zoning result. … The essential question in terms of B2.2.2(2)(j) was whether this land now fully surrounded by urban development, with the exception of its coastline, is significant in terms of its ability to sustain food production. That was not an inquiry in my view adequately answered by reference to incremental loss. Such would too significantly threaten the policy requirement for coherent RUB location.
[64] The Environment Court saw itself as bound by a categorical finding that it would be inappropriate for the Environment Court to inform any decision about the location of the RUB on the basis of the associated incremental loss of elite and prime soils that might occur as a result.51 The Environment Court interpreted this directive as meaning it should focus attention on the broader context of regional effects over time and not limit its consideration to the significance of a single increment on its own.52
[65] The Environment Court then referred to a data set provided by Dr Curran-Cournane (which was the only data set available to the Court). This data set tabulated data on annual rates of loss of land with elite and prime soil over the period 1915 to 2010. It found that when that data was read in conjunction with the evidence about the quantities of such land that was being urbanised over the next 35 years (averaging 893 ha/year) the scale of cumulative loss of elite and prime soils became apparent.53 It appeared that during the period of 1915 to 2010 a total of 7,172 ha of land containing elite and prime soils was lost irreversibly to urbanisation. The AUP currently provides for 31,270 ha of such land to be consumed during the next 35 years being more than a four-fold increase in one-third of the time recorded in the data. The Environment Court considered the change between past and present was even more pronounced for land containing elite soils only.54 During the period of 1915–2010 a total of 343 ha of land containing elite soils was consumed by urbanisation whilst the
50 Interim judgment, above n 4, at [91] (emphasis added by Environment Court).
51 2020 EnvC decision, above n 11, at [81].
52 At [82].
53 At [83] and [84].
54 At [84].
AUP currently provides for 6,632 ha of such land to be consumed during the next 35 years, being an almost 20-fold increase in one-third of the time.55
[66] Thus, it was evident to the Environment Court that the rate of occupation and consumption of elite and prime soils was accelerating.56 However, it found that as with the use of regional percentage figures for determining regional significance, no identified thresholds were identified let alone agreed for addressing this irreversible cumulative loss of productive land resources.57 This led the Environment Court to find it remained an exercise of judgment.
[67] The Environment Court next turned to consider the implications of using the FARMLUC soils classification data when considering decisions of the Panel. The appellants had argued that the analysis the Panel had undertaken supported its recommendations, provided a very important interpretive/assessment tool, and gave the best insight into how the recommendations were made in the first place and why they might have been rejected. For the Council, Dr Curran-Cournane’s evidence provided data that was analysed using both the FARMLUC and the NZLRI LUC systems. She regarded comparisons against the FARMLUC classification as being the more accurate. Nonetheless she had included comparisons against the NZLRI. These were available at the time the Panel made its recommendations. Seemingly the FARMLUC classification was not available to the Panel.
[68] Dr Curran-Cournane identified what the Environment Court considered to be important differences between the evidence considered by the Panel and the evidence available to the Environment Court. Those differences were most pronounced for elite soils.58 The Environment Court identified the “important differences” as follows. First, the FARMLUC data revealed there was more land containing elite soils across the region (19,459 ha) than the Panel was told (4,113 ha). This was almost a five-fold increase.
55 At [85].
56 At [86].
57 At [86].
58 At [90] and [91].
[69] Second, the FARMLUC data revealed an even greater increase in the proportion of elite soils that were urbanised because of the Panel’s zoning decisions: this was 6,632 ha compared with the earlier estimate of 869 ha that the Panel was aware of. Dr Curran-Courane said this a proportional increase from 21 per cent to 34 per cent; and it was almost an eight-fold increase in absolute terms.59 The Panel had understood there were 869 ha of elite soils zoned as “occupied” land (meaning for future urban use), which was equivalent to just 1.5 per cent of all the rural land it knew to be zoned as “occupied”. The updated evidence from Dr Curran-Courane showed 6,632 ha of elite soils were now zoned as “occupied”, which was equivalent to 11.7 per cent of all the rural land in the region that was now known to be zoned as “occupied”.60 Thus the area of land containing elite soils that would be “occupied” under the AUP (6,632 ha) was more than one and a half times the area of all rural “occupied” land that the Panel had understood to exist across the region.61
[70] Third, the Panel expected its zoning for new countryside living to have avoided any areas of land containing elite soils in line with its recommended Policy B9.3.2(1). However, the FARMLUC data revealed that new countrywide living zones covered 362 ha of land containing elite soils; this was because of the Panel’s decisions.
[71] The Environment Court said the foregoing information was unchallenged. It considered present information about the areas of land containing elite soils was fundamentally different from that which had informed the Panel’s recommendation some years earlier. This led the Environment Court to conclude that the context for decision-making on the future use of land containing elite and prime soils had changed to an extent that now made the Panel’s recommendation for the Pūkaki Peninsula land questionable.62 There was now more current and more accurate data than was available to the Panel, and so the Court should make its decision based on the new data.
59 At [91].
60 At [91].
61 The Panel seemingly understood the total area of this land across the Auckland region to be 4.113 ha.
62 At [94].
[72] The Environment Court then identified what it described as other contextual considerations in light of its finding that a simple “single” quantitative measure of regional significance such as a regional percentage figure was not considered an appropriate criterion by itself.63 Here, it took into account three sub-topics: (a) what the soils classification system told it; (b) the comments of the soil experts from both parties regarding the attributes of elite soils generally and for the Pūkaki Peninsula in particular; and (c) the experts’ comments about the future commercial viability of rural production activities particularly horticulture on the Pūkaki Peninsula. The Environment Court referred to the joint witness statement produced by the expert conferencing for soils and agricultural economics for the Pūkaki Peninsula on 19 April 2017. The conferencing had involved two experts for the appellants and two experts for Auckland Council.
[73] Importantly for the Environment Court, Dr Singleton, the soils expert for the appellants had agreed with the report and maps of the Pūkaki Peninsula soils produced by Dr Hicks, the soil expert for Auckland Council.64
[74] Considering the soil classification system, the Environment Court referred to Dr Hick’s description of soils:65
From a soil scientist’s perspective, the land in the appeal area would be assessed as highly versatile (generally corresponding to ‘elite’) soil, or versatile (generally corresponding to ‘prime’) soil.
[75] Dr Hicks then discussed the specific criteria that soil scientists use to differentiate classes of soil and concluded:66
A highly versatile soil meets all the criteria. A versatile soil meets most, but falls short on one or more. The limitation – greater slope, shallow rooting depth, etc – necessitates an adjustment to how the soil is managed. Where field examination of its soil (and other site characteristics) indicates all physical limitations are absent or negligible a site is classed as LUC1, defined as the most versatile multiple use land with minimal physical limitations for arable use … Where field examination indicates a limitation is present but slight, the site is classified as LUC2, defined as very good land with slight physical limitations to arable use readily overcome by management and soil conservation practices.
63 At [95].
64 At [96].
65 At [97].
66 At [98].
[76] The Environment Court identified two factors which it considered relevant to assessing the significance of the subject soils for Policy B.2.2.2(2)(j). These were the character of the soils and their commercial viability. Regarding the character of the soils, the Environment Court accepted Dr Hicks’ evidence that on the Pūkaki Peninsula, there was a predominance of LUC1 and LUC2 soils as well as the absence of fragmentation by lower class soils. It found this evidence was confirmed by Dr Singleton’s agreement. It concluded that the soils on the Pūkaki Peninsula belonged in the category of the most versatile soils in the country.67 The experts for both parties were agreed that these types of soil allowed cultivation of a wide range of crops. If there were soil management issues these could be rectified.
[77] Regarding commercial viability, there was some agreement among the relevant experts. The experts here were Ms Hawes, a horticultural consultant who gave evidence for the appellants, and Mr Ford, an agricultural economist who was a witness for the Council. Ms Hawes took account of the subject land being held in nine titles. She thought that on a stand-alone basis it was unlikely that each of the titles would be commercially viable for horticulture. So, if each title were to be sold to separate owners it would be very unlikely that each would find horticultural development on their individual title financially worthwhile. Mr Ford took a different perspective, noting that the effect of the nine titles and how they might constrain land use was unclear because all titles are held by the same owner and the land is farmed by a single operator. These experts agreed that the land could be leased at a higher rate than its present rent, which yields an extremely poor return on capital; and secondly, that an alternative was to realise the capital value by selling the land. In this regard the Environment Court observed that the viability of a farm should be assessed objectively rather than on a land-owner subjective view.
[78] The Environment Court found the two experts were ultimately agreed about the land’s likely commercial viability stating:68
In general, the soils are suitable and likely to be commercially successful for shallow rooting (example, salad greens; annual vegetables – plant once or more frequently per year; strawberries) and root vegetable crops (with appropriate soil management.
67 At [100].
68 At [108]–[109].
[79] In conclusion, the Environment Court found there was no reliable evidence to quantify “significance”. It expressed concern over the accelerating regional rates of “urbanising” of the most productive soil types, but noted there was no identifiable quantitative threshold in this context. It found it would be inappropriate to view the contiguous area of elite and prime soils on the Pūkaki Peninsula as a de minimis remnant. Whilst there was urbanisation extending south of the Pūkaki Peninsula the immediate environs of the Pūkaki Peninsula were not urban in character. The more accurate and recently available FARMLUC data supported the Court’s findings. Accordingly, the elite and prime soils on the Pūkaki Peninsula were found to be not suitable for urbanisation. Further, the elite soils issue was found to be only one of the matters relevant to the overall question of whether the Pūkaki Peninsula should be identified as greenfield land suitable for urbanisation.
Analysis
[80] Whether there are elite and prime soils in the Pūkaki Peninsula that are significant for their ability to sustain food production is a mixed question of law and fact. It is a question of law insofar as the legal meaning of the phrase “elite and prime soils…which are significant for their ability to sustain food production” in Policy B.2.2.2(2)(j) needs to be ascertained and a test identified that will allow such soils to be recognised by a decision-maker. It is a question of fact as to whether soils in any given case have the necessary characteristics and therefore meet the tests for when soils can be recognised as being “elite and prime soils…which are significant for their ability to sustain food production”.
[81] Neither in Policy B2.2.2(2)(j) nor elsewhere in the RPS is the meaning of the phrase “elite soils…and prime soils which are significant for their ability to sustain food production” stated. Nor are there any expressly stated considerations that could guide those responsible for ascertaining when such features are present or not. Instead the RPS leaves it to the decision maker to identify whether elite or prime soils meet the requisite qualification in Policy B2.2.2(2)(j). However, that is not to say a decision-maker is free to adopt whatever meaning he or she thinks appropriate. Ultimately it is for a Court to determine what the meaning of this phrase in Policy
B2.2.2(2)(j) is and it is the role of appellate Courts to determine whether that meaning is correct or not.
[82] Here the Environment Court considered Mr Putt’s quantitative analysis and was not persuaded that it could offer a means of identifying when elite or prime soils can be said to be significant for their ability to sustain food production. The reasoning of the Environment Court on this topic is set out at [42]–[79] herein.
[83] The weight the Environment Court chose to place on Mr Putt’s evidence was a matter for that Court to determine. The weight a decision-maker attributes to evidence can only lead to error if that weight is such that no reasonable decision-maker in the circumstances could have reached that view, but not otherwise.69 I do not consider the rejection of Mr Putt’s evidence can be characterised as something no reasonable Environment Court would have done. Indeed I consider there are sound reasons for rejecting a quantitative approach for identifying elite and prime soils that have the requisite significance.
[84] First, as the Environment Court correctly recognised a quantitative approach to assessing significance requires a comparator to be identified. Here there was none. Nor can I see how such a comparator could be identified. The data on soils that Mr Putt relied on was data recording land with elite and prime soils simpliciter located in the Auckland area.70 He had no way of knowing how much of that land had soils with the additional characteristic of being significant for their ability to sustain food production. This additional qualification is not part of soil classification data, rather it derives from Policy B2.2.2(2)(j).
[85] Policy B2.2.2(2)(j) requires only those elite and prime soils that are significant for their ability to sustain food production be avoided when deciding the location or relocation of the RUB. For this qualification to make sense and have meaning, rather than being a tautology, it must be understood to imply the existence of a group of elite and prime soils that are not significant for their ability to sustain food production. In
69 Issac v Minister of Consumer Affairs [1990] 2 NZLR 606 at 635, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299.
70 See [48]–[50] herein.
other words, only some elite soils are significant for their ability to sustain food production and some others are not. Policy B2.2.2(2)(j) therefore requires the identification of one group from the other.
[86] By taking the quantity of elite soils in the Auckland region as known from soil science data and comparing this number to the quantity of elite soils in the Pūkaki Peninsula Mr Putt was comparing the latter soils against a mix of elite soils that likely included elite soils which are significant to sustain food production in the Auckland region and elite soils which lack this characteristic. The same applies in the case of prime soils. Accordingly, Mr Putt’s quantitative analysis was flawed from the outset.
[87] Second, soil science classification defines LUC 1 soils as those that are the most highly versatile and productive land in Auckland, having the features of being well drained, friable and well-structured soils, being flat or gently undulating and being capable of continuous cultivation. It is difficult to see what more such a soil could have to qualify as being significant in its ability to sustain food production. It is also difficult to see how some elite soils can meet the definition in LUC 1 but still be said to lack the requisite significance for food production. Both groups will meet the LUC 1 criteria, but one group has something else that sets it apart from the other in relation to its significance for sustaining food production. The question is to identify what it is that sets one group apart from the other.
[205] The Environment Court noted that in closing for the appellants, their counsel did not mention quality compact urban form as a relevant issue. The Council had submitted that maintaining the Pūkaki Peninsula outside the RUB would give effect to the relevant higher order planning instruments and in particular would achieve a quality compact urban form. The Environment Court identified the location of the RUB as recommended by the Panel, the placement of the RUB as per the 2018 EnvC decision and subsequently the amended relief as sought by the appellants’ appeal in 2020 (which placed the RUB in a different position from that recommended by the Panel as the amended relief excluded the parcel of land owned by Savannah Holdings Ltd and left it in a rural production zone).
[206] The Environment Court noted that the amended relief still failed to achieve a compact urban form. Because of the coastal environment considerations on the southwestern coast of Pūkaki Peninsula, the potential area for light industrial development was restricted. This was no different under the amended relief than the original. However, the amended relief also reduced the amount of land available for light industrial development even further because of the exclusion of the Savannah Holdings Ltd land and a proposed dual central carriageway along the Pūkaki Peninsula. The Environment Court considered these new outcomes only reinforced the concerns expressed in the 2018 EnvC decision as to the suitability of the appeal area on Pūkaki Peninsula for urbanisation.
Analysis
[207] I consider the Environment Court’s findings on Chapter B2 are factual determinations on the impact of the amended relief that were open to it to make on the evidence before it. They do not raise questions that can be pursued in this appeal.
Chapter B9 – Rural Environment
[208] The Environment Court described the objectives and policies of Chapter B9 as being particularly relevant because of their focus on the outward expansion of urban
areas into productive rural land.103 Chapter B9 identifies twin issues of protecting the finite resource of elite quality soils from urban expansion and managing subdivision to prevent undue fragmentation of large sites in ways that restrict rural production.104
[209] The Environment Court interpreted Muir J’s judgments as only considering Chapter B9 in the context of understanding Policy B2.2.2(2)(j) and what it meant when it referred to elite and prime soils “which are significant for their ability to sustain food production”.105 The Environment Court also considered that Muir J had not made findings on whether Chapter B9 objectives and policies were relevant considerations for the decision on where to locate a RUB.106 It therefore saw itself free to decide whether Chapter B9 was relevant to this decision.
[210] In the submissions at the rehearing the appellants did not address Chapter B9. On the other hand, the Council’s stance was that Chapter B9 must be considered. The Environment Court accepted the Council’s submission. The Environment Court concluded that the proposal did not meet Policy B9.3.2(2), based on its earlier findings that (a) the elite and prime soils on Pūkaki Peninsula did not constitute a de minimis remnant of highly productive land and (b) the development capacity estimated for both the light industrial and residential areas proposed in the spatial plan was not needed to achieve an appropriate capacity to meet sub-regional growth projections in the Auckland Plan.107
Analysis
[211]Muir J’s finding is set out below in context at [77(c)]:
[77] I am unable to accept the Environment Court’s construction of this provision [Policy B2.2.2(2)(j)]. My reasons are as follows:
(a) The approach too readily dismisses the Panel’s interpretation of a provision for which it was itself responsible and in respect of which there was, unusually therefore, direct evidence of the drafter’s intention.
103 2020 EnvC decision, above n 11, at [356].
104 At [356].
105 At [362].
106 At [363].
107 At [370]–[372].
(b) I consider it reads too much into repetition of the word “avoiding” when, in other respects, the RPS is not a model of spare drafting (reflecting, realistically, the considerable pressure under which it was prepared).
(c) There is in my view limited support which can appropriately be drawn from Chapter B9.3.1(1) and (2). These provisions relate to land that is outside the RUB. To then use them to support the logically antecedent inquiry about where the RUB should be located appears to me inappropriate. In any event, on the interpretation advanced by the Panel and by the appellants there remains a significant distinction between the level of protection afforded to elite and prime soils. That is because prime soils must only be avoided “where practicable”, whereas areas containing elite soils must simply be avoided. In that sense the protection/management dichotomy in B9.3.1(1) and (2) has a parallel within B2.2.2(2)(j), even on the appellant’s construction.
(d) Importantly, the purpose of avoiding elite soils in RUB location or relocation cannot simply be in the service of pedology. The very basis for their protection (where they are “significant”) is to sustain food production. That is confirmed by the definition of “land containing elite soil” which emphasises that it is “the most highly versatile and productive land” and is “capable of continuous cultivation”. And if that is the case, then the qualification at the conclusion of 2.2.2(2)(j) is as logically relevant to elite as it is to prime soils.
(e) The Environment Court’s near absolute protection is capable of producing perverse consequences, for example by preserving rural “islands” fully surrounded by urban development, or precluding land containing elite soils from inclusion within the RUB even though, for example, a reverse sensitivity analysis made it unsuitable for food production.
(f) Although the punctuation suggested as necessary by the Council would eliminate any ambiguity from the provision, it is not in my view necessary to be able to maintain the appellants’ interpretation which, overall, better accords with the purposive approach which the RPS requires.
[212] Muir J’s finding, as is evident from the above, was in the context of the construction of Policy B2.2.2(2)(j). That was the issue he was addressing, and the surrounding factors relate also to construction (such as wording, grammar, punctuation and purpose). The appellants’ position could be inferred from Muir J’s reasoning, namely that applying provisions relating to rural zoned land is jumping the gun because the question is what the appropriate zoning is. Muir J’s observation that it “appears” to be inappropriate to use section B9.3 to inform the interpretation of Policy B2.2.2(2)(j) does not overturn or displace the 2018 Environment Court’s finding that Objectives B9.3.1(1) and (2) were relevant to determining the location of the RUB (although it is admittedly in tension). Accordingly the decision of the Environment Court in 2018 and adopted in the 2020 decision stands.
[213] In any event I consider the Environment Court’s approach was correct. The RPS is clear that it must be “read as a whole”:108
If an issue relates to more than one section, then the relevant objectives and policies in each section must be read together. For example, issues concerning urban growth in the coastal environment will involve consideration of sections B2 Urban Growth and B8 Coastal environment.
[214] Here, the issue relates to both the location of the RUB (engaging section B2) and the consequent (re)zoning of rural production land (engaging section B9). The decision affects land that is currently zoned rural and accordingly has associated policies and objectives. Policy B2.2.2(2) requires the relocation of the RUB to identify land “suitable for urbanisation”; if the land is currently achieving policies and objectives for rural land and would not do so under the proposed relocation this would be a factor that suggests it is not suitable for urbanisation. Conversely if the proposal would not undermine the policies and objectives of rural land this would suggest the land could be appropriately located inside the RUB. Not all policies and objectives will be directly applicable (for example, as the appellants highlight, those referring to activities) but to ignore those that are would be to ignore the directive to read all relevant parts of the RPS together.
[215] Further, even if the Environment Court was wrong to consider Chapter B9, this was not material to its decision as it had already determined that the appellants’ proposal did not meet Policy B2.2.2(j) and was not needed to achieve growth capacity. Its findings in relation to Policy B9.3.2(2) were simply the conclusions it had earlier drawn under those two considerations accepted to be relevant.
Conclusion
[216] I now summarise the findings of this appeal. I find that the Environment Court correctly interpreted Muir J’s findings on the construction of Policy B2.2.2(2)(j). It acknowledged that it needed to determine whether both the elite and prime soils present in the appellants’ land were significant for food production in the Auckland region. It did not assume that all elite soils were significant for food production.
108 Auckland Unitary Plan, Regional Policy Statement at B1.5 (Objectives and Policies).
[217] I also find that the Environment Court correctly applied the law to the facts on this issue. It appropriately held that taking a purely percentage or ratio based approach, as put forward by the appellants, would be flawed because the data was variable and the basis for determining the numerical threshold for “significance” was not clear. This approach was open to it and reasonable.
[218] It accepted Muir J’s findings that a simple argument of incremental loss, without first determining whether or not the land was significant for food production, was not an appropriate basis for determining the location of the RUB. Instead, the Court had regard to, but not exclusively, the context of an increasing rate of urbanisation of elite and prime soils across the Auckland region and the future projected rates.
[219] The Environment Court then took into account the character of the soils, being a contiguous area of high-quality soil, and the commercial viability, which experts assessed as viable. Accordingly the Environment Court correctly applied the assessment of whether the elite (and prime) soils were significant for food production, going beyond the mere qualities of elite soil itself and not resorting to mere incrementalism. In that assessment it was entitled to place weight on the available evidence as it saw fit and did so in a reasonable manner.
[220] Second, I find that no breach of natural justice occurred in relation to the Court’s decision on mana whenua issues, including under Chapter B6 and the Structure Plan Guidelines. The present case is distinguished from Ngati Rangi v Genesis Power Ltd on the facts and because Te Ākitai presented sufficient evidence for the Environment Court to conclude the proposal did not meet mana whenua values under the various provisions. The Court was not under an obligation to ensure Te Ākitai engaged with the appellants beyond what had occurred.
[221] I also find that the Environment Court had discretion to give weight to evidence relating to this topic as it saw fit, especially in light of the fact that Muir J rejected the appellants’ challenge to the findings of the Environment Court in its 2018 decision. Accordingly I find no errors of law occurred.
[222] Third, I find that the Environment Court did not err in its approach to applying the Structure Plan Guidelines. Again, its assessment of the evidence is not something this Court will disturb unless it is unreasonable. The Environment Court was not required to outline the evidence required from the appellants that would allow their proposal to succeed.
[223] Fourth, I find that the Environment Court properly gave effect to the RPS. It properly considered and applied Chapter B2 in light of the earlier findings of the 2018 EnvC decision. The Court’s finding that the amended relief would not materially change matters from the 2018 EnvC decision was a factual finding available to it, including in relation to Chapter B2. Additionally, I find that the Court did not erroneously hold that Chapter B9 was relevant to the interpretation of B2.2.2(j) regarding elite soils. It correctly considered Chapter B9 to be relevant to its overall assessment under the RPS because the RPS is to be read as a whole.
[224] As a corollary of the above, it is evident that the appellants’ final claim – that the Environment Court’s decision was so unreasonable that no reasonable Court could have made that decision – must fail.
Result
[225]The appeal is dismissed.
[226]The parties have leave to file memoranda on costs.
Duffy J
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