Guthrie v Queenstown Lakes District Council
[2022] NZHC 532
•22 March 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2021-425-000065
[2022] NZHC 532
BETWEEN ERNEST JOHN LESLIE GUTHRIE, RICHARD MORRIS NEWMAN, BANCO TRUSTEES LIMITED, and
MCCULLOCH TRUSTEES 2004 LIMITED
AppellantsAND
QUEENSTOWN LAKES DISTRICT COUNCIL
Respondent
Hearing: 17 November 2021 Appearances:
G M Todd and B B Gresson for the Appellants
M J Doesburg and K T Dickson for the Respondent
Judgment:
22 March 2022
JUDGMENT OF NATION J
Introduction
[1] The appellants sought resource consent to develop 12 residential building platforms on an area of land near Arrowtown. Commissioners for the Queenstown Lakes District Council (the Council) declined that consent. The appellants appealed to the Environment Court. The appeal was opposed by the Council, a significant number of residents from Arrowtown, and a family who own a home and property adjoining the proposed development site. The appellants were again unsuccessful. They appeal the Environment Court’s decision,1 claiming the Environment Court made certain errors of law.
1 Guthrie v Queenstown Lakes District Council [2021] NZEnvC 079.
GUTHRIE v QUEENSTOWN LAKES DISTRICT COUNCIL [2022] NZHC 532 [22 March 2022]
Background
[2] The landscape character of the Wakatipu Basin, adjacent to Arrowtown, is attractive to many. From it, there are views of Coronet Peak and the Remarkables. Attached as Annexure A to this judgment is a photograph of one view of the basin to the southwest of Arrowtown. The area of the proposed development is outlined on it. There is tension between some who wish to tap into the potential value of parts of the basin for residential development and those who wish to see the character of the Wakatipu Basin remain as it is.
[3] On 30 April 2018, the appellants applied to the Council for resource consent for a 14 lot subdivision and identification of 12 residential building platforms on a
6.55 ha property at 112 McDonnell Road, Arrowtown (the site).
[4] The proposal required consent under the Council’s operative district plan (operative plan) in which the site is zoned rural general. In the 21 March 2019 decisions version of the district plan (proposed plan), it would be within the Wakatipu Basin Rural Amenity zone and, following a decision of the Council, the subzone Wakatipu Basin Lifestyle Precinct (Lifestyle Precinct).
[5] The commissioners issued their decision refusing consent on 1 April 2019. The Environment Court issued their decision declining the appeal on 10 June 2021.
[6]The Environment Court said:
[7] The primary issue between the parties required us to assess the extent of any adverse effects of the proposal on landscape character and visual amenity in the Wakatipu Basin. We also needed to determine the extent to which the Proposed Plan and Schedule 24.8 should inform that assessment.
[7]In their decision, the Environment Court found:
(a) the proposal would have adverse effects in terms of landscape, character and visual amenity;
(b) the proposal would be contrary to the operative plan and proposed plan in relation to landscape character and visual amenity values;
(c) the proposal would adversely impact the integrity of the proposed plan; and
(d) the proposal would not accord with part 2 of the Resource Management Act 1991 (RMA).
[8]The appellants submit the Environment Court made three errors of law.
The law applying to appeals under s 299 of the RMA
[9] The appeal under s 299 of the RMA is limited to questions of law. I accept that, on an appeal under s 299, the appellants need to establish that the Environment Court:2
(a) applied a wrong legal test (by misinterpreting the law or incorrectly applying the law); or
(b) came to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come to; or
(c) took into account matters which is should not have taken into account; or
(d) failed to take into account matters which it should have taken into account.
[10]In approving the above, the High Court in Hutt City Council v Mico Wakefield
added:3
(e) Moreover, the Tribunal should be given some latitude in reaching findings of fact within its areas of expertise.
(f) Any error of law must materially affect the result of the Tribunal’s decision before this Court shall grant relief.
[11] Consideration of whether an error of law materially affected the decision, requires the High Court to consider whether the Environment Court would have
2Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at [153]; and Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58.
3Hutt City Council v Mico Wakefield [1995] NZRMA 169 (HC) citing Countdown Properties (Northlands) v Dunedin City Council, above n 2, at [153].
reached the same conclusion if the error had not occurred.4 If, on appeal, this Court identifies there has been an incorrect factual finding, for the appeal to succeed, this Court must conclude “the error was of such material effect that it led the Environment Court to make a determination that was not otherwise available to it”.5
Submissions
[12] The appellants’ grounds of appeal were elaborated in detailed submissions from their counsel. Counsel for the Council presented detailed submissions in response.
[13] Mr David Hanan also made a submission in support of the Environment Court’s decision. His submissions were presented on behalf of his family who own a property near the site and people from Arrowtown who had been parties to/heard in the Environment Court, pursuant to ss 274 and 301 of the RMA. It was apparent from his submissions that the group he represented sought to retain a defendable urban boundary to Arrowtown and to limit what they see as “urban-like” development beyond that boundary. Mr Hanan’s submissions were consistent with those made for the Council.
[14] Mr Ken Swain presented a brief submission on behalf of a further 28 residents of Arrowtown. In his submissions, he was concerned to preserve the particular character of Arrowtown, the views residents have of the environment beyond Arrowtown, and the value of McDonnell Road as a boundary to Arrowtown. He supported the Environment Court’s decision as to the argued errors of law. His submissions were also consistent with those for the Council.
[15] I have been mindful of the submissions made for all parties. I refer to them further in the discussion that follows.
4 Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd CA79/00, 17 July 2001, at [7].
5Kilmarnock Farm Ltd v Canterbury Regional Council [2019] NZHC 2467, (2019) 21 ELRNZ 299, at [15].
Discussion
[16] The proposed plan was publicly notified in August 2015 in submissions. The site was in an area notified as being zoned rural. The Council then initiated and notified a variation to the proposed plan in November 2017. The proposal then was for the relevant area to be designated Wakatipu Basin Rural Amenity Zone. Following this hearing of submissions, the Council, in its decision issued in March 2019, zoned the area, including the site, as Lifestyle Precinct.
[17] Chapter 24 of the proposed plan applies to the Wakatipu Basin Rural Amenity Zone and its sub-zone the Lifestyle Precinct. Schedule 24.8 to chapter 24 divides the Wakatipu Basin into 24 landscape character units.
[18]In a statement as to the purpose of those zones, it is said:
The Landscape Character Units are a tool to assist identification of the particular landscape character and amenity values sought to be maintained and enhanced. Controls on the location, nature and visual effects of buildings are used to provide a flexible and design led response to those values.
[19] The purpose of the zone is to maintain and enhance the character and amenity of the Wakatipu Basin.
[20] Through sch 24.8, the Wakatipu Basin is divided into 24 landscape character units. There is a description of the landscape characteristics of each landscape character unit. At the end of each description is a rating of the unit’s capability to absorb development. These range from “very low” to “high”. The site is in landscape character unit 24, described variously as South Arrowtown and Arrowtown South in sch 24.8. I refer to landscape unit 24 as South Arrowtown.
[21]The description as to the landscape characteristics for South Arrowtown in sch
24.8 is under a number of headings. These include landform patterns, vegetation patterns, land use, settlement patterns, visibility/prominence, views, enclosure/openness, potential landscape issues and constraints associated with additional development, potential landscape opportunities and benefits associated with additional development, environmental characteristics and visual amenity values to be
maintained and enhanced. The description concluded with the heading “Capability to absorb additional development”. The capacity was described as “High”.
First error: failure to have regard to provisions of the proposed plan
[22] Section 104(1)(b)(vi) of the RMA required the Council, and thus the Environment Court, to have regard to the provisions of a plan or proposed plan. It was not contested that the Court was thus required to have regard to the provisions of chapter 24 and sch 24.8, including in the description of South Arrowtown, that it has a high capability of absorbing additional development.
[23]The appellants submitted:
(a) the Environment Court did not consider the fact South Arrowtown had been deemed to have a high capability of absorbing development;
(b) the Environment Court did not address or consider a number of matters within the South Arrowtown description that explained and accounted for the high absorption capability; and
(c) the Environment Court did not give reasons as to why the stated absorption capability or other provisions relating to South Arrowtown were irrelevant for the purpose of assessing subdivision constraints or opportunities.
[24] Schedule 24.8 originated from the Wakatipu Basin Land Use and Planning Study 2017 (the Study). This was commissioned and prepared by the Council in order to identify areas of the Wakatipu Basin that have the ability to absorb further development, among other states purposes.
[25] The Environment Court said the Study was a document to which they might have regard under s 104(1)(c) of the RMA as “any other matter the consent authority considers relevant and reasonably necessary to determine the application”. They said they did not apply a weighting to it because it had not been incorporated into the plan under part 3 of sch 1 to the RMA and therefore it had no status as a tool to aid an assessment. The Environment Court said it was not appropriate to elevate it to an assessment tool but referred to it as “useful background analysis and information”.
[26] The appellants contended that, on reading the descriptions for South Arrowtown, it was clear the rationale for the high absorption capability rate in the Study was carried into the proposed plan. The appellants contended the Environment Court “misunderstood the provision as to the absorption capability and the provisions that provide the basis and explanation for it”.
[27] The Wakatipua Basin Lifestyle Precinct zoning enabled subdivisions to lots of 6,000 sqm with an average lot size of 1 hectare. The appellants submitted the Environment Court erred in looking past the wording as to the landscape’s absorption capability in considering that the density provisions of the proposed plan, which would have allowed subdivision into areas no less than 6,000 sqm/ha, reflected a very limited capability of the landscape to absorb development.
[28] The import of the appellants submissions was that the Environment Court should have treated that part of the description for South Arrowtown as having a high absorption capability for future development as an overriding consideration and the Court had erred in law in not doing so.
[29] I am satisfied the Environment Court did have regard to sch 24.8 and the particular reference to the land in South Arrowtown as having a high development absorption capability to such an extent that it cannot be said the Court ignored it as a relevant consideration.
[30] As the appellants acknowledge, the Environment Court expressly stated it had considered all of the provisions of sch 24.8 as being relevant. Attached to its decision was a summary of the proposed plan, issues, objectives, policies and assessment matters, set out in chapter 24 for the Wakatipu Basin. Also attached to their decision was the whole of sch 24.8, as it related to South Arrowtown.
[31] The Environment Court specifically considered the absorptive development capability of the particular landscape affected by the proposed subdivision and concluded that it has limited capacity to absorb a further development. It considered and weighed matters relevant to this including the nearby urban development of the Arrowtown Lifestyle Retirement Village. It concluded that, while the environment
contained the retirement village and other rural residential developments, it generally displayed a pastoral character and openness in stark contrast to urban Arrowtown on the other side of McDonnell Road. The Court also considered the reference to high development absorption capacity in discussing the earlier Study and how it had approached the absorption capability of each unit and qualified that.
[32]The Environment Court said:6
[64] While all of the descriptions in Schedule 24.8 – LCU 24 are relevant, the following assist with establishing context, and determining subdivision/development constraints and opportunities.
Settlement patterns The [area] anticipates a reasonably spacious patterning of rural residential development, together with extensive riparian and escarpment restoration, pastoral areas and a landscape framework throughout the south western edges of Arrowtown to create an attractive edge to the settlement in conjunction with the adjacent golf courses and roads. The Arrowtown Lifestyle Retirement Village SHA anticipates an urban patterning of buildings…
Typical lot sizes
· Predominantly 4-10ha
· Some larger lots 10-20ha.
…
Naturalness
The unit displays a low level of naturalness as a consequence of the level of existing and anticipated built development together with the golf course patterning. The relatively wild and unkempt character of the escarpment counters this to a limited degree.
Sense of Place
Generally, the unit reads as part of the swathe of golf courses and rural residential development that frame the western and southern edges of Arrowtown and effectively functions as a ‘greenbelt’ to the village. However this ‘greenbelt’ effect, together with the legibility of the escarpment as a robust defensible edge to Arrowtown has been significantly compromised by the Arrowtown Lifestyle Retirement Village SHA, which confers a distinctly urban character
in a prominent and sizable part of the unit.
6 Guthrie v Queenstown Lakes District Council, above n 1.
Potential landscape issues and constraints associated
with additional development
Extent to which the unit can continue to operate as a ‘greenbelt’ to Arrowtown.
Role of the escarpment as an edge to the village. Ensuring urban residential development is constrained within defensible boundaries and does not sprawl westwards and southwards in an uncontrolled manner into the existing, ‘more rural’ areas.
Public golf course facility.
…
Environment characteristics and visual amenity values to be maintained and enhanced
Views from McDonnell Road and Centennial Avenue to the surround mountain/river context. Reinforcing/re-establishing a robust and
defensible edge to Arrowtown.
[33] Neither the RMA nor the proposed plan required the Court to treat the reference to South Arrowtown having a high development absorption capability as an overriding consideration.
[34] In the statement as to the zone purpose for the Wakatipu Basin in chapter 24 of the proposed plan, it was stated:
The purpose of the Zone is to maintain and enhance the character and amenity of the Wakatipu Basin. Schedule 24.8 divides the Wakatipu Basin into 23 Landscape Character Units. The Landscape Character Units are a tool to assist identification of the particular landscape character and amenity values sought to be maintained and enhanced. Controls on the location, nature and visual effects of buildings are used to provide a flexible and design led response to those values.
[35]An objective for the Wakatipu Basin relevant to the site includes:
24.2.1.3 Ensure that subdivision and development maintains or enhances the landscape character and visual amenity values identified in Schedule
24.8 – Landscape Character Units.
…
[36] Another objective is “[r]ural living opportunities in the precinct are enabled, provided landscape character and visual amenity values are maintained or enhanced”. Polices as to that included:
24.2.5.1 Provide for rural living, subdivision, development use of land where it maintains or enhances the landscape character and visual amenity values identified in Schedule 24.8 – Landscape Character Units.
…
24.2.5.4 Implement minimum and average lot size standards in conjunction with standards controlling building size, location and external appearance, so that the landscape character and visual amenity values of the Precinct, as identified in Scheduled 24.8 – Landscape Character Units, are not compromised by cumulative adverse effects of development.
[37] The Environment Court identified those planning provisions as being of most assistance to them. It was clear from their decision that, as to the issues they were considering, they considered those provisions were of greater weight than the reference in the schedule to the whole of South Arrowtown having a high absorption capability for development.
[38] The Environment Court was not required to give effect to just one part of the description of South Arrowtown. It was for the Court to decide what weight to give to all relevant parts of the proposed plan, including different parts of the descriptions in sch 24.8. It also had to decide what weight to give to all the evidence that was before them in relation to the proposed activity for which consent was sought and the environment that would be affected by the development. There was also the fact, as the Environment Court noted and the Council submitted, that the description of South Arrowtown could still change as a result of appeals.
[39] As was submitted for the Council, the description of the landscape character units sets out a broad scale with the Wakatipu Basin divided into just 24 units. While a particular unit might have been identified as having a high capability to absorb future development, the potential for individual sites within the particular unit to be developed, while maintaining or enhancing the relevant landscape character and visual amenity values, could vary. An assessment specific to the site was required.
[40] Section 104(1)(a) of the RMA requires assessment of the actual and potential effects on the environment of “allowing the activity” for which consent is sought. That activity was the proposed development of the site. Chapter 24 of the proposed plan thus required assessment of whether the appellants particular proposal maintained or
enhanced the landscape character and visual amenity values of the environment. This required assessment of the particular site and the proposal rather than of South Arrowtown as a whole. This was how matters were addressed in evidence before the Court and how matters were addressed by the Environment Court.
[41] In paras 176 to 187, the Court discussed in detail evidence as to the extent to which the landscape could absorb development. In that regard, the Court expressly referred to the evidence of the landscape expert who gave evidence for the appellants, Mr Skelton. In particular, his reference to the proposed plan, the Study and the recognition there “that LCU 24 has a high capacity to absorb additional development”. They referred to the evidence of the landscaping expert who gave evidence for the Council, Ms Mellsop, and her view that the proposal would exceed the absorption capacity of the landscape.7 The Court said:
[182] The Proposed Plan, in enabling a level of rural living in the Precinct, recognises that that part of the landscape does have capacity to absorb additional rural living without the loss of the characteristics that are valued by the community. As against that, in the Amenity Zone (of which the Precinct is a sub-zone) no additional subdivision of lots under 80ha is permitted.
[42]The Court concluded its discussion on the issue:
[185] The appellants urged us, in assessing the proposal, to pay close attention to LCU 24. They said that its substance is beyond challenge by appeal, and that it, in effect, provides the best and latest statement of character and visual amenity values in Arrowtown South; further, that it states that the capability of the unit to absorb development is high. The Council disagreed, and argued that LCU 24 may still change as a result of appeals and should be considered in that light.
[186] We determine that LCU 24 is relevant to our assessment, but note that our assessment is not limited to only the character and values identified but should extend to character and visual amenity values associated with the Amenity Zone more generally. The objectives, policies and assessment criteria to which we have already made reference make that clear. Finally, while the provisions of LCU 24 state that the capability of the unit to absorb development is high, we observe that the provisions of Chapters 24 and 27 are the response to that statement; they set minimum density and subdivision controls for the Precinct.
[187] We find that the landscape has a very limited capacity to absorb further development. The Proposed Plan articulates the extent of that capacity in terms of its minimum and average lot size requirements – it is for note that resource consent is required even if the minimum requirements are met. In
7 Guthrie v Queenstown Lakes District Council, above n 1, at [178].
any event, we prefer Ms Mellsop’s opinion that the proposed development would take the landscape beyond the tipping point where its value as a rural edge to Arrowtown is significantly undermined.
[43]Clearly, the Environment Court did have due regard to the statement in sch
24.8 that the capability to absorb additional development in the Wakatipu Basin was high. On its consideration of all the evidence before it, the Court did not give that statement the weight the appellants wanted. The weighting it gave that matter cannot be impeached as an error of law.8
[44] In submissions as to this suggested first error of law, the appellants contended the Environment Court erred in saying the Study had not been incorporated into the proposed plan and was thus not a planning document which it was required to have regard to pursuant to s 104(1)(b)(vi) of the RMA.
[45] The Environment Court said they did not apply a weighting to the Study because it was not a statutory planning document prepared in accordance with sch 1 to the RMA. It had not been incorporated into the plan under pt 3 of sch 1 to the RMA and therefore had no status as a tool to aid assessment. They noted the proposed plan made no particular reference to it in the objectives, policy and rules for the Wakatipu Basin. They found it was not appropriate to elevate it to an assessment tool but considered it was useful background analysis and information only.9
[46] Legally, the Environment Court was correct. The Study, as such, was not part of the proposed plan. In any event, there would have been no material error if it had to be considered as part of the plan.
[47] The part of the Study which the appellants relied on most heavily was the Study’s identification of 24 landscape character units in the basin and particularly the Study’s identification of the “absorption capability” of each unit. The Study’s conclusions in this regard were replicated in sch 24.8 of the proposed plan. As already discussed, that schedule and whether or not the landscape in which the development
8 Guardians of Park and Bay Assn Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at
[31] citing Moriarty v North Shore City Council [1994] NZRMA 443 (HC) at 437; Hunt v Auckland City Council [1996] NZRMA 49 (HC) at 54; Skinner v Tauranga District Council HC Auckland AP98/02, 9 March 2003 at [13].
9 Guthrie v Queenstown Lakes District Council, above n 1, at [85].
site was located had a high absorption capacity was carefully considered by the Environment Court.
Second error – failure to have regard to the proposed plan zone
[48] The development site for which resource consent was sought was zoned Wakatipu Basin Lifestyle Precinct, though the Environment Court noted this zoning was subject to change on appeal. In the proposed plan, the Lifestyle Precinct contains minimum and average lot size standards of 6,000 m2 and one hectare, and density standards of one residential unit per one hectare.
[49] The appellants submitted that, while resource consent was still required for subdivision and development that complied with these standards, the Council did not have a discretion as to the size of the lots or density of development. They said its discretion is restricted to matters such as building platform location and lot design or layout. It was submitted there is an expectation subdivision complying with the standards is enabled, subject to those matters to which the Council in the proposed plan has reserved its discretion.
[50] The appellants said the Environment Court had found, in assessing the absorption capability of the landscape, that the lot size and density standards for the lifestyle precinct provide guidance on what might be considered the acceptable absorption capacity of the landscape. The appellants submitted the Environment Court erred in saying the minimum and average lot size requirements indicated the landscape had a very limited capacity to absorb further development. The appellants argue this could not be correct because it would mean land identified by the proposed plan as having the ability to absorb development would conversely have a very limited absorption capability because of the density standards that applied to it.
[51] The Environment Court found the landscape had a very limited capacity to absorb further development but referred to the proposed plans as recognising the extent of that capacity in its minimum and average lot size requirements. Subject to the requirement for a resource consent, even if minimum standards were met, those standards would have permitted only approximately six lots to be accommodated on the site in compliance with the density standards of the zone.
[52] The Environment Court’s finding was based on its consideration of all the evidence before it, including the description of South Arrowtown in sch 24.8. They said the extent of that capacity was recognised in the plan through the minimum and average lot size requirements referred to in the plan. The density standards for the zone were, however, only one matter the Environment Court took into account in making its assessment as to the capacity of the landscape to absorb further development.
[53]The Environment Court noted:
[230] The proposal is a non-complying activity under the Proposed Plan because it does not meet the minimum and average lot sizes. It is important to note that the Precinct seeks to avoid adverse effects by implementing minimum and average lot size standards along with other controls. We refer particularly to Policy 24.2.5.4, which provides that minimum and average lot size standards will be implemented “so that the landscape character and visual amenity values of the Precinct, as identified in Schedule 24.8 – Landscape Character Units, are not compromised by cumulative adverse effects of the development”.
…
[236] Having said that, we note that the site, given its Precinct zone, is presently considered as being suitable for rural living opportunities. Two issues arise in that regard. The first is that the Precinct zoning of the site is under challenge by way of appeal, and the second is that the proposal does not comply with the Precinct’s minimum and average lot sizes for subdivision and development. The proposal does not meet those requirements by quite some margin.
(footnotes omitted)
[54] The appellants contend that the Environment Court’s comments, as to the way zoning and density standards articulated the extent of the capacity of the landscape to absorb further development, failed to have regard to the way the proposed plan sought to enable rural living development in the lifestyle precinct. The Enviromment Court accepted that purpose was clear.
[55] The issue is whether, with the way it referred to the density requirements, the Environment Court understood and had the required regard to the standards in the proposed plan.
[56] The Environment Court referred to the density standards only as indicating that the capacity for development within the Lifestyle Precinct was limited. In this instance, the appellants’ proposal was for a non-complying activity, as it sought a consent for a development significantly more intensive than that permitted in both the operative plan and the standards in the proposed plan.
[57] There was no error in the way the Environment Court referred to and had regard to the general density requirements of the lifestyle precinct zone in the proposed plan.
Third error – conclusions reached without evidence and which, on the evidence, could not reasonably have been reached
[58] It was submitted for the appellants that the Court had found the landscape “has not “crossed the threshold” from being predominantly rural in character” and “the landscape has a very limited capacity to absorb development without tipping it from rural to a more rural-residential landscape”.
[59] The appellants submitted there was no evidence on which the Council could have found the landscape was rural.
[60] The appellants referred to the landscape assessment in the Study and repeated in the description of South Arrowtown in sch 24.8. They referred to the area around the site as being “part of the swathe of golf courses and rural residential development that frame the western and southern edges of Arrowtown that effectively functions as a ‘greenbelt’ to the village”, also the reference to a “distinctly urban character” associated with the Arrowtown Lifestyle Retirement Village. They referred to the evidence of three landscape experts who they said had agreed with the description as to that land having a rural-residential character, and their agreement, that there was a “strong presence of rural living development” in the landscape. They noted that the landscape witness for the Council considered there to be a “predominance of rural living and recreational use” in the landscape.
[61] I do not consider that the Court’s characterisation of the landscape was in conflict with the evidence of the planning experts just referred to. The Court had not
held that the landscape was rural. The Court’s judgment has to be read as a whole. It can be seen, by reference to the passages which the appellants referred to, that the Court’s assessment was that the landscape was “predominantly rural in character” (emphasis added). The Environment Court also acknowledged the evidence of the experts that the landscape has a strong presence of rural living development.
[62] The Environment Court found the current landscape has both a pastoral character (in both a functional and aesthetic sense).10 Landscaping witnesses for both the appellants and the Council referred to the site currently having an open parkland/rural character.
[63] The Environment Court’s reference to tipping from rural to a “more” rural residential landscape also recognised that there was already some level of rural- residential development in the current landscape.
[64] The Court had to assess the nature of the current landscape in order to determine whether it had the capacity to absorb further development. That was because objectives for the sites were to maintain or enhance the landscape character and visual amenity values of the zone.
[65] The Environment Court referred to the evidence of the three landscape experts under the heading “effects on landscape character”. In doing so, they referred to the evidence of the landscape witness for the Council that, with the notable exception of the retirement village, “the landscape is perceived as being relatively coherent in its patterns of golf course, rural pastoral land, exotic vegetation and rural dwellings surrounded by trees”. They referred to the evidence of the Arrowtown residents’ planner, Mr Forsyth. He had said the majority of the southern entry on McDonnell Road contained landscape areas on its borders that reflect rural activity.
[66] In evidence were numerous photographs of the general area, relevant to an issue as to how views of the landscape would be affected by the proposed development. With those photographs, there was evidence of the current nature of the environment which the Court had to consider. Importantly too, the Court had been
10 Guthrie v Queenstown Lakes District Council, above n 1, at [114].
able to assess the character of the current landscape for itself through viewing the area for themselves. In the judgment, the Court referred to a criticism that had been made of some of the Council planners photographs and said “we conducted our own inspection of the area and did not rely only on the photographs provided with the written evidence”.11
[67] After referring to the evidence of the landscaping expert witnesses, the Environment Court said:12
On this issue we prefer the evidence of Ms Mellsop, and predict that the proposal will have moderate adverse effects on the character and values of the landscape. Notwithstanding the Retirement Village and the denser housing within Millbrook, we find that there remains a clear edge between the urban development on the eastern side of McDonnell Road and the open space and rural character of the [west of Arrowtown].
[68] It was for the Environment Court to make a factual finding as to the current character of the landscape. There was evidence before it from the landscape witnesses which provided a reasonable basis for the findings which the Court made in this regard. This is not a case where there was no evidence to support the Court’s determination.
[69] On this issue, it is appropriate for the Court to recognise the Environment Court, as a specialist tribunal, was entitled to take the factual evidence on which those opinions were based, review it, and come to its own conclusions. It was well placed to do this having viewed the relevant area for itself.
[70] The appellants have not established that the Environment Court reached conclusions as to the current character of the landscape without evidence or that they reached conclusions which were not reasonably available on the evidence they had to consider, including their own viewing of the landscape.
11Guthrie v Queenstown Lakes District Council, above n 1, at [105]: “SR Skelton Rebuttal at 3-6. We record also Mr Todd’s submissions that some of Ms Mellsop’s photographs were not as widely framed as they could have been, and Ms Mellsop’s response that they were an aid to her assessment. We conducted our own inspection of the area and did not rely only on the photographs provided with the written evidence.”
12 Guthrie v Queenstown Lakes District Council, above n 1, at [197].
Conclusion
[71] The appellants have not established that there was any error of law in the Environment Court’s decision on any of the grounds they relied on. That being the case, it is not necessary for this Court to consider whether the claimed errors were material to the decision they made or whether this should affect the relief they might have been entitled to had they been successful in establishing the grounds of their appeal.
[72]The appeal is dismissed.
Solicitors:
Todd & Walker, Queenstown Wynn Williams, Christchurch.
Annexure A
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