Haines House Haulage Northland Limited v Whangarei District Council
[2020] NZHC 525
•17 March 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2019-488-69
[2020] NZHC 525
IN THE MATTER of the Local Government Act 2002 and the Resource Management Act 1991 BETWEEN
HAINES HOUSE HAULAGE NORTHLAND LIMITED
Appellant
AND
WHANGAREI DISTRICT COUNCIL
Respondent
Hearing: 27 February 2020 Appearances:
AGW Webb for the Appellant G Mathias for the Respondent
J Baguley for A Waldron (s 274 party)
Judgment:
17 March 2020
JUDGMENT OF GORDON J
This judgment was delivered by me
on 17 March 2020 at 11.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: WRMK Lawyers, Whangarei
Thomson Wilson, Whangarei Atlas Legal Ltd, Kerikeri
Counsel: A Webb, Auckland
HAINES HOUSE HAULAGE NORTHLAND LTD v WHANGAREI DISTRICT COUNCIL [2020] NZHC 525
[17 March 2020]
Introduction
[1] The appellant, Haines House Haulage Northland Limited (HHH) applied to the respondent, the Whangarei District Council (the Council) for a land use consent to store relocatable houses on a site north of Whangarei between Piano Hill Road and State Highway 1. The site was intended to operate as an overflow yard for houses that could not be accommodated at HHH’s main yard, approximately one kilometre away on State Highway 1.
[2] The Council’s reporting officer recommended a grant of consent. The Council appointed a Commissioner to hear the application. Consent was refused for reasons essentially related to visual impacts and visual amenity values.
[3] HHH appealed to the Environment Court. For the purposes of the appeal HHH commissioned a further landscaping report and a vegetation management plan. In its Interim Decision, dated 22 March 2019 (Interim Decision) the Court concluded that the appeal might be allowed and consent granted if the Court “can be satisfied as to the activities allowed and [sic] suitable conditions to achieve rural character and amenity and avoid derogating from urban consolidation”.1
[4] The Court issued its Final Decision on 25 July 2019 (Final Decision) dismissing the appeal and refusing the resource consent.2
[5] HHH now appeals on questions of law. The appeal is expressed to be against the Final Decision, but the appeal grounds necessarily encompass alleged errors of law in the Interim Decision.
The land area and ownership
[6] The registered proprietor of Lot 1 DP 483749 and the adjacent Lot 2 DP 356529 is Titoki Farms Ltd (Titoki). I will refer to these two lots as Lot 1 and Lot 2 respectively. While Lot 1 and Lot 2 are on the same certificate of title, they are
1 Haines House Haulage Northland Ltd v Whangarei District Council [2019] NZEnvC 49 at [105].
2 Haines House Haulage Northland Ltd v Whangarei District Council [2019] NZEnvC 124.
separate parcels of land. (This is relevant to one of the key issues in the appeal). The application for resource consent was only in respect of Lot 2, not Lot 1.
[7]Mr Haines is the sole director of both Titoki and HHH.
[8] The registered proprietor of Lot 2 DP 483749 (the Waldron Land) is Aimee Waldron, the s 274 party. There is a dwelling house on the Waldron land. The locations of Lot 1, Lot 2 and the Waldron Land are shown on annexure B to the Interim Decision. A copy of that document is also annexed to this judgment. At some stage prior to HHH applying for resource consent, Lot 1 had been subdivided from the Waldron land (hence the common DP number as between Lot 1 and the Waldron land).
[9] A resource consent had previously been granted to Halls Brown Contracting Ltd on 11 April 2014 to store contracting equipment, metal and rock, screening of topsoil and storage and delivery of firewood on Lot 2. That consent was current at the time HHH made its application for resource consent and had not been surrendered at the time of the hearing in the Environment Court.3
[10] There is an office/staff amenities building located on Lot 2 near the frontage to Piano Hill Road and a shed is located in the centre of the lot. Much of the remainder of Lot 2 has bare or gravel surfaces where the various other activities were undertaken under the previous resource consent. As part of its proposal, HHH said it intended to make minor internal conversions to the existing buildings on the application site to provide a small office/workshop area together with small-scale improvements to the existing gravel surfaced area to cater for storage, vehicle manoeuvring and vehicle parking.
The District Plan
[11] At the time the application for resource consent was filed through to the commencement of the hearing in the Environment Court the “old” Whangarei District Plan was operative. Under that plan, Lot 2 was in the Countryside Environment Zone and the activity proposed was a restricted discretionary activity.
3 At [29].
[12] In a process that was running in parallel with the progress of the application and appeal in this case, the Council was conducting Plan Change 85, A-D. The plan change process was well advanced by the time the appeal was filed in the Environment Court, but the final form of the rural provisions of the new Whangarei District Plan (the Plan) had still not been settled. However, on the second day of the hearing in the Environment Court, a Judge of that Court signed a consent order making those rural provisions in the Plan operative. This meant (and there was no dispute on this issue) that the “old” plan had no effect as from that date and the application for resource consent and appeal would now be determined under the Plan. The Environment Court proceeded in that way.
[13] The activity for which consent was sought on Lot 2 is a discretionary activity under the Plan. A dwelling house on Lot 1 is a permitted activity. This is relevant for reasons that will become apparent shortly.
The decisions and related events
[14] The appeal hearing before the Environment Court was held in Whangarei in December 2018. The Council’s planning witness supported the proposal, subject to some conditions. The appeal was opposed by Ms Waldron, who presented expert planning and landscape architecture evidence. On 11 January 2019, the Court issued a minute seeking clarification as to the ownership of Lot 1 and whether Lot 1 and Lot 2 were in a common certificate of title. The minute also included the following questions:
C.There is no evidence, on the file, showing that the application related to Lot 1 DP 483749. This is supported by reference to the previous consent issued to Paul (sic) Brown Contracting Limited 2014 that only related to Lot 2 DP 356529.
D.There is no evidence that the applications filed included works on the houses stored on the property or any activities at all in relation to Lot 1 DP 483749. The red line delineating the application site appears to relate only to Lot 2 DP 356529.
[15] This information was provided by way of memorandum from Mr Webb counsel for HHH on 18 January 2019. The information regarding ownership and titles was as recorded in [6], [7] and the first part of [8] above. In answer to question C in
the Court’s minute, the memorandum made it clear that the application did not relate to Lot 1, and that the application had always only been in respect of Lot 2. Reference was made to various documents which were consistent with that position. The memorandum continued:
12.In other words, consent is only sought for activities which are not permitted on Lot 2 DP 356529. Only permitted activities are anticipated to occur on Lot 1 DP 483749.
[16]In answer to question D, counsel’s memorandum states:
13.As above, it is not anticipated to store houses on Lot 1 DP 483749 or to undertake works on the houses within that land area.
[17] The memorandum concluded by saying that the memorandum had been circulated to the other parties for comment and the parties agreed that it could be filed in that form.
[18] On 24 January 2019, in other words before the Interim Decision issued, HHH moved a dwelling house onto Lot 1 and began works to establish the placement of the house and foundations. The house had not been completely installed by the time of the Interim Decision.4
[19] The Court issued the Interim Decision on 22 March 2019. It concluded, as noted above, that the appeal might be allowed and consent granted if the Court could be satisfied as to the activities allowed and if there were suitable conditions to achieve rural character and amenity to avoid derogating from urban consolidation.
[20] A pertinent feature of the Interim Decision was the Court’s indication that there should be no structures on Lot 1 in order that it retain rural character and amenity. The Court said, in particular, there should be no sheds or any manager’s house on Lot
1.5 The Court considered that any such building would create an adverse effect on the
rural character of the environment if the application for the activity on Lot 2 were granted. In other words the resource consent could only be granted so long as no
4 Mr Webb, counsel for HHH, became aware of the house being moved onto the site after it had occurred.
5 At [78].
buildings were placed on Lot 1. I come back to this issue as it is a core part of the appeal.
[21] The house remained on Lot 1 after the Interim Decision issued and work continued to permanently establish it on Lot 1. A building consent was issued by the Council for the house on 9 May 2019.
[22] One of the directions in the Interim Decision required HHH to provide further draft consent wording (with particulars of activities) and conditions and landscaping plans incorporating the Interim Decision.6 In accordance with that direction, the parties negotiated and on 25 June 2019 counsel for HHH filed a memorandum annexing a revised set of conditions and an Amended Landscape Plan (ALP). The Council agreed with all of the proposed conditions. That agreement was recorded in the memorandum. There were issues in relation to the ALP and the Vegetation Plan from the perspective of Ms Waldron’s witness, Ms Woodhouse. Ms Waldron also disagreed with some of the proposed conditions. That disagreement was noted and commented on in the memorandum.
[23] The existence of the house now on Lot 1 was recorded in the memorandum. The Court was advised that HHH moved the house onto Lot 1 on 24 January 2019. The memorandum records that in the intervening period HHH had sought a building consent for the house, which had been granted and further that the house was not located directly in front of the Waldron’s house (which had been the case in a landscape plan before the Environment Court at the hearing) but was off to the side. As a consequence of the house on Lot 1, the draft conditions annexed to Mr Webb’s memorandum and which were agreed to by the Council, included the following conditions:
7.The registered proprietor of Lot 1 DP 483749 (Lot 1) shall register against the Title of Lot 1 a covenant in favour of the Whangarei District Council pursuant to s 108(2)(d) of the RMA prohibiting the use of Lot 1 in conjunction for any activities authorised by this consent. ….
6 At [106](a).
8.The land immediately adjacent to the south eastern boundary of the site [i.e. Lot 2] is described as Lot 1. No activities shall be permitted on Lot 1 except:
(a)Grazing of cattle, horses or sheep; and
(b)1 dwelling and associated landscape planting as permitted activities as shown on the Landscape Plan [which was annexed to the draft conditions].
[24] In other words, HHH indicated it would accept a condition that restricted otherwise permitted activities on Lot 1 to those permitted activities set out in 8(a) and
(b) above. The ALP annexed to the draft conditions showed mitigation planting around the house on Lot 1.
[25] As noted above, while all of the draft conditions were agreed as between HHH and the Council, the Waldrons disagreed with some of those conditions. Of relevance, the Waldrons objected to draft condition (b). Their position was that Lot 1 should be limited to the grazing of cattle, horses or sheep.
[26] Ms Baguley, for Ms Waldron, filed her own memorandum on 4 July 2019 responding to the draft conditions proposed by HHH. She referred to the presence of the house on Lot 1 and the works undertaken on the house after the Interim Decision issued. Ms Baguley submitted that the presence of a manager’s house and a sleepout on Lot 1 would mean that the activity would spill into Lot 1. The submission was made that the house was not a permitted activity if it were to be used as part of the house storage operations. Ms Baguley also submitted that the new position of the manager’s house and potential adverse effects arising from it had not been the subject of evidence and testing by the Court. She urged the Court to issue its decision on consent conditions prohibiting activity on Lot 1 as originally envisaged (meaning removal of the house and sleepout) or to exercise its discretion to decline consent.
[27] Ms Baguley also provided a response to the proposed draft conditions in her memorandum.
[28] There was then a further memorandum from Mr Webb on 10 July 2015. The memorandum stated that “The s 274 party has misconceived the position regard the
manager’s house”. It goes on to say that the manager’s house on Lot 1 was only ever mentioned in the context of being able to provide some further security for the s 274 party in response to Ms Waldron’s allegation that there were “squatters” at the current yard (denied by HHH). The memorandum reiterated that the application was only in respect of Lot 2; HHH was not seeking consent to undertake any activities on Lot 1 pursuant to the consent; and that placement of the house on Lot 1 was a permitted activity.
[29] The Environment Court issued the Final Decision on 25 July 2019 declining consent. In summary, the Court determined that due to the placement of the dwelling house on Lot 1 the Court was not satisfied this lot could be used to mitigate the effects of the activity on the amalgamated title of Lot 1 and Lot 2. The Court held that in such circumstances a condition of consent could not be imposed preventing the construction of a building or other structures on the site given this had already occurred. In its decision, the Court acknowledged and accepted that the dwelling house could be placed on Lot 1 but said:
[12] In these circumstances the Interim Decision requirements cannot be fulfilled given that the applicant has acted precipitously while the decision was pending and later notwithstanding the clear terms of the Interim Decision.
[30] The Court said it was not satisfied that the adverse effects of the activity in the rural zone could otherwise be avoided. It said it was also concerned about whether HHH would comply with conditions of consent given that it had installed a house on Lot 1 while the decision was pending and having regard to its work in relation to the house after the Interim Decision.
Grounds of appeal
[31]There are five alleged errors of law:
First alleged error
[32]The Court failed to take into account relevant matters:
(a)The Rural Area provisions in the Plan (in the Interim Decision);
(b)The Amended Landscape Plan (in the Final Decision).
Second alleged error
[33] The Court took into account irrelevant matters. HHH says these were both legal and factual errors:
(a)Factual: The Court relied on two mistaken facts in refusing the appeal: that Lot 1 was to be utilised as part of the storage area for buildings on Lot 2; and HHH did not give a specific time when the house was moved onto Lot 1.
(b)Legal: Lot 1 was outside the scope of the application and the Court had no jurisdiction to impose any conditions on Lot 1 without the consent of the owner. Even if the Court did have jurisdiction to impose a condition on Lot 1, any condition preventing permitted activities is so unreasonable that it would have been unlawful.
Third alleged error
[34] The Court came to a conclusion which, on the evidence, it could not reasonably have come to.
Fourth alleged error
[35] The Final Decision was so unreasonable that no reasonable Court would have made that decision.
Fifth alleged error
[36] The Final Decision declining consent for the activity was a breach of natural justice.
Position of other parties
[37] Mr Mathias, appearing for the Council, indicated that the Council adopted a neutral position: it neither supported nor opposed the appeal. Mr Mathias made submissions for the assistance of the Court.
[38]Ms Baguley appeared on behalf of Ms Waldron, who opposed the appeal.
Approach to appeals from the Environment Court
[39] Under s 299 of the Resource Management Act 1991 (RMA) an appeal from a decision of the Environment Court may only be brought on a question of law. Section 299(1) provides:
299 Appeal to High Court on question of law
(1)A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
[40] The nature of a question of law was considered by the Supreme Court in Bryson v Three Foot Six Ltd in the context of a similar provision in the Employment Relations Act 2000 as follows:7
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. …
7 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
[41] In the context of appeals under s 299 of the RMA, this Court has said that the Environment Court may have made an error of law if it:8
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come; or
(c)took 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.
[42] Further, as was said by Wylie J in Transpower New Zealand Ltd, v Auckland Council:9
[54] It is also trite law that this Court must resist attempts by litigants to use an appeal limited to a question of law as an occasion for revisiting the factual merits of the case under the guise of a question of law.
[43] Any error of law found must materially affect the result of the Environment Court’s decision before the High Court should grant relief.10
[44]I proceed on the basis of the principles set out above.
First alleged error – failure to take account of relevant matters
Rural area provisions
[45] The plan has a general Rural Area (RA) section which applies to all rural areas outside the identified urban areas. The Description and Expectations part of the RA section states that to address the diverse and varied issues and outcomes associated
8 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
9 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [54]. That appeal was under s 158 of the Local Government (Auckland Transitional Provisions) Act 2010. Wylie J held at [53] that the same principles apply to appeals under that Act.
10 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
with the RA, five different Environments apply. Lot 2 (and Lot 1) is in the Rural Production Environment (RPE).
[46] Mr Webb submits that the Court did not consider any of the RA provisions and thus erred by confining its considerations only to the provisions for the RPE.
[47]The Guidance Note at RA.1.4 states:
1.The following shall form the basis for resource consent applications in the RA:
(a)The objectives, policies and provisions for the Rural Area;
(b)The objectives, policies and provisions for Environments [i.e. this includes the RPE]
…
(emphasis added)
[48]Guidance Note 1.4 in the RPE has a similar provision as follows:
1.The following shall form the basis for resource consent application in the RPE:
(a)The objectives, policies and provisions for the Rural Production Environment;
(b)The objectives, policies and provisions for the Rural Area in the District Plan.
(emphasis added)
[49]Mr Mathias accepts that the Court did not consider the RA provisions.
[50] Mr Webb submits that this failure on the part of the Court to consider the RA provisions was material. His argument proceeds by reference to further key RA provisions.
[51] The Eligibility Rules in the Rural Area Land Use Performance Standards (RA.2.1) state:
2.Any activity not requiring consent as a discretionary or non- complying activity is a permitted activity.
[52]Then in the discretionary activities (RA.2.3) there is the following activity:
(d)Outdoor areas of storage or stockpiles that:
(i)Exceed the building height, setbacks and height in relation to boundary rules for the Environment they are located in (except within Quarrying Resource Areas).
[53] I make it clear at this point that Mr Webb did not submit that the activity in this case is a permitted activity,11 but rather, he submits, it is only the commercial element of the proposal that requires consent. The focus in the RA provision is on whether the activity meets the standards in the RA discretionary criteria. In other words, it is not the private or commercial nature in itself of the outdoor storage activity that matters; the focus is on the effects that are created if the standards are not met.
[54] By contrast, the RPE section does not mention areas of outdoor storage as an activity at all. Rather, it places controls on commercial or industrial activities. There is thus a tension, Mr Webb submits, between the RA and RPE provisions. The RPE limits commercial activities in the RPE that are otherwise permitted in all rural zones just because they are commercial – in other words without further consideration of effects.
[55] If the activity is a commercial or industrial activity, it changes from permitted to discretionary in the RPE. Policy RPE.1.3.2 then requires an assessment of effects and a separate consideration of linkages between commercial activities and rural resources and rural communities to determine consistency with the Plan.
[56] However, Mr Webb submits that given Policy RA.1.4 requires that the objectives, policies and provisions of the RA “shall form the basis for resource consent applications”, the starting point, or the “basis” for an assessment, is that the activity of outdoor storage is otherwise permitted in the RA. Secondly and even more importantly, if the activity is permitted then the effects from the activity must form part of the rural character of the RA.
11 In RPE.1.4.2 the rules of the chapter relating to the RPE “apply to any site or portion of the site mapped as in the RPE”. “Commercial and Industrial Activities” are a discretionary activity.
[57] Mr Webb submits that because the RA provisions were not considered at all, neither of those two factors was considered by the Court and the Court had the wrong starting point. In terms of the assessment of effects on rural character and amenity required by Policy RPE.1.3.2, and given the activity (outdoor storage) was otherwise permitted in the RA, the Court was only required to determine whether the fact the activity was “commercial” created any additional effects on rural character which would change the position. This assessment was not carried out by the Court.
Discussion (Rural Area provisions)
[58] Rather than determining whether the fact that the activity was “commercial” created any additional effects on rural character, the Court instead, operating under the RPE provisions, sought to determine whether the activity was a rural activity. It conducted a detailed analysis but ultimately found the provisions of RPE.1.3.2 confusing and difficult to reconcile. It had difficulty aligning the activity against Policy RPE.1.3.2 and could not completely resolve the conflict which it found within that policy.12
[59]Having carried out its analysis the Court concluded that:
[62] It is clear to us that the primary intent of the PC85 provisions overall in relation to the RPE is to avoid subdivision and fragmentation of rural land. Beyond that, it seeks to protect productive land, rural character and amenity, and encourage consolidation within the city (urban areas). However, it acknowledges that commercial and industrial activity should be provided in limited circumstances and on the recommendation of the Hearing Commissioners this is enabled as a discretionary as opposed to a non- complying activity. From the Court’s point of view, the difficulty is ascertaining from the meaning of the words set out what those circumstances area.
….
[69] … In any event our primary conclusion is that one must look at these provisions holistically.
[70] We conclude that the Plan sets its face firmly against fragmentation of land and subdivision, and the use of land for residential purposes. As to commercial and industrial use, we conclude that a broader consideration of all the criteria is required to reach a balanced view on the overall production of rural productive land, rural character and amenity, and the encouragement of consolidation.
12 At [61].
[60] In other words, it was the effects on rural character that were for determination. That in turn would enable a decision about consistency with the Plan. That then brings the analysis back to the RA provisions. I accept Mr Webb’s submission that a failure on the part of the Court to consider the RA provisions was material because, if it had done so, it would have provided a different starting point. I also accept Mr Webb’s submission as to that starting point, namely the Court was required to focus on whether anything about the commercial nature of the proposal (as an outdoor area for storage) meant that it was not appropriate in a rural zone. In other words, what was it about the commercial nature of the activity that would create different effects?
[61] If that had been recognised by the Court, it would have been open to the Court to consider the permitted baseline and so disregard any adverse effect of an outdoor storage activity on the environment (which does not arise from its commercial nature).
[62]Section 104(1) and (2) of the RMA relevantly provide:
104 Consideration of applications
(1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–
(a)any actual and potential effects on the environment of allowing the activity; and
(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and
…
(2)… may disregard an adverse effect of the activity on the environment if … the plan permits an activity with that effect.
[63]In Auckland Regional Council v Living Earth Ltd, the Court of Appeal said:13
[47] Section 104(2) involves a partial codification of the permitted baseline test that emerged from the decisions of this Court in Bayley v Manukau City Council [1999] 1 NZLR 568, Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 and Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 324. Under those judgments, consent authorities
13 Auckland Regional Council v Living Earth Ltd [2008] NZCA 349.
were required to apply the permitted baseline test, whereas under s 104(2), its application is expressed to be discretionary.
[64] In this case the Court had a statutory obligation to consider the RA provisions.14 There is a clear direction in both Guidance Notes that the objectives, policies and provisions for the RA must be considered in resource consent applications in the RPE. As can be seen from the Living Earth decision referred to above, the Court did not have an obligation to apply the permitted baseline test but, at least, it needed to consider it.
[65] In fairness to the Environment Court it should be noted that none of the parties referred the Court to the RA provisions. The focus in counsel’s submissions and in the expert evidence (which had mainly addressed the provisions in the “old” plan) was on the RPE provisions. Nevertheless, the RPE provisions, which were annexed to the Interim Decision, contain Guidance Note 1.4 referred to in [48] above, which states that the objectives, policies and provisions for the RA in the District Plan shall form the basis for resource consent applications in the RPE.
[66] I therefore conclude that the Court erred in failing to consider the RA provisions in the Plan and that, for the reasons set out in [60] to [64] above, the failure to do so was material.
Amended landscape plan
[67] The need to mitigate any adverse effects of the activity was clearly an important issue for the Court. The Interim Decision makes it clear that the effects on rural character were a critical issue,15 and HHH was directed to file “landscaping plans incorporating this decision”.16
[68] Prior to filing the ALP, which had been drafted with the intention of responding to the Court’s comments in the Interim Decision, Mr Webb forwarded the ALP to counsel for the respondent and to Ms Baguley. Mr Webb accepts that he received comments from Ms Woodhouse, the landscape expert engaged by Ms Waldron, but
14 Resource Management Act, s 76(2).
15 See for example at [65].
16 At [106](a).
was later unable to locate those comments. There was then a series of miscommunications between Mr Webb and Ms Baguley. The upshot was that the ALP was filed without the addition of the comments from Ms Woodhouse. However, in the memorandum filed on 10 July 2019 it was recorded on behalf of HHH in relation to landscaping:
14.As above, the changes to Mr Farrow’s [witness for HHH] plan incorporating the house on Lot 1 proposed by Ms Woodhouse are acceptable to the appellant.
15.The appellant maintains they are not necessary, nor do they derogate from the outcomes of the planting plan. Therefore, it is more convenient at this stage for the appellant to simply agree to them.
16.Those changes are now incorporated into the vegetation management plan. An updated copy is annexed marked “B”.
…
18. If the Court directs that Ms Woodhouse’s suggestion to the planting plan also be included, then a new planting plan would be prepared as well. Unfortunately, that has not been possible to do by now.
[69] The ALP and associated submissions was new material as requested by the Court. I accept Mr Webb’s submission that the evidence was therefore relevant. However, the Court did not assess the evidence when coming to its conclusion in the Final Decision that the effects of the activity for which consent was sought could not be appropriately mitigated.
[70] There are no reasons given by the Court on whether the ALP mitigated what the Court considered (in the Interim Decision) were the adverse effects on rural character from having a house on Lot 1. The ALP was not mentioned in the Final Decision. Further, the location of the house was in a different place on Lot 1 from the location discussed in the hearing.
[71] The Court based its Final Decision on the existence of the house on Lot 1. However, as a dwelling house is a permitted use on Lot 1 then its effects are part of the rural character. This is another reason why it was important for the Court to consider the ALP.
[72] I consider the Court was required to review the ALP (along with the conditions and other material provided after the Interim Decision). It did not do so. It would have been open to the Court to either accept or reject the ALP. But the failure to consider it amounted to a failure to take into account relevant considerations.
[73] I accept that the failure to consider the ALP is a material error. The ALP was directly relevant to a core issue: effects on rural character.
Second alleged error of law – taking into account irrelevant matters
Factual mistakes
[74] The notice of appeal alleges two factual errors. In his submissions Mr Webb submits that the Court made three factual mistakes in the Final Decision. First, the Court proceeded on the basis that Lot 1 was to be utilised as part of the storage area for buildings on Lot 2.
[75] In the Interim Decision, the Court stated that the application had expanded into Lot 1, and further said that the application could not be expanded in that way.17 The Court continued in the following paragraph:
[31] We are satisfied that the application related only to storage of buildings on the hard stand area marked on A together with the use of the two existing buildings marked A and B, and upgrading of the hard-standing area to provide for manoeuvrability and parking. What is quite clear is that it made no connection to Lot 1 DP 483749 and to do so now is beyond scope.
[76] In the Final Decision, the Court referred to the presence of the house on Lot 1 and said that this “… clearly established the Court’s concerns as to incrementalism in respect of the use of both properties jointly.”18 The Court continued by referring to a landscape plan which was produced as an exhibit at the hearing (and which was annexed to the Interim Decision as “C”) and says:19
… and that part of Lot 1 was to be utilised as part of the storage area for buildings on Lot 2.
17 At [30].
18 At [11].
19 At [11].
[77] Mr Webb submits first, that Exhibit C to the Interim Decision does not in fact show a storage area for buildings on Lot 1; and secondly, that it was made clear to the Court at the hearing that consent was only sought for activities on Lot 2.
[78] As Mr Webb’s first submission, I accept that, on its face, Exhibit C does not show a storage area for buildings on Lot 1.
[79]In terms of Mr Webb’s second submission, I note the following:
(a)The application for resource consent was for activities on Lot 2;
(b)In Mr Webb’s memorandum to the Court of 18 January 2019, in response to the Court’s minute referred to in [14] above it is stated:
12.In other words, consent is only sought for activities which are not permitted on Lot 2 DP 356529. Only permitted activities are anticipated to occur on Lot 1 DP 483749.
(c)In the hearing the Judge asked the planning witness for HHH about non-compliance and “creep”. The Court observed:
Well, one way in which the Court controls it [i.e. non- compliance and creep] is by requiring the consent notice to be put on the titles saying that Lot 1 wouldn’t be utilised.
(d)In the proposed conditions filed by HHH after the Interim Decision and as agreed to by all parties, there was condition 7 (which is referred to in [23] above but which is set out again for completeness):
7. The registered proprietor of Lot 1 DP 483749 (Lot 1) shall register against the title of Lot 1 a covenant in favour of the Whangarei District Council pursuant to s 108(2)(d) of the RMA prohibiting the use of Lot 1 in conjunction for any activities authorised by this consent.
[80] I therefore agree with Mr Webb that the Court made a factual error in stating that Lot 1 was to be utilised as part of the storage area for buildings on Lot 2. That error was material given the Court’s concern about the retention of open space.
[81] The second alleged factual error relates to whether there was any linkage between the house on Lot 1 with the activity on Lot 2 for which consent was sought.
[82] Ms Baguley submits that the dwelling on Lot 1 was part of the activity for which consent was sought and that the dwelling and outdoor storage activity on Lot 2 were “intrinsically linked”.
[83] Mr Webb takes issue with that, submitting first that the dwelling on Lot 1 was never part of the resource consent application. He says there was always a proposal to have a house on Lot 1 and that there was a suggestion at one stage that a manager could live there because of security concerns raised by the s 274 party. This concern ultimately dissolved and was not addressed in the final proposed conditions.
[84] He submits that even if there was a link to the activity on Lot 2 (in the sense that the house was for a manager), which by the time of the Final Decision there was not, it still would not have required consent. Its status as a permitted activity arose from the fact that it was a single dwelling on Lot 1. Mr Webb submits that the permitted activity status had nothing to do with whether it was a manager’s house or not.
[85] It is necessary to comment on HHH moving a house onto Lot 1 after the hearing but before the Interim Decision. The Court said in the Interim Decision:
[27] The placement of a manager’s residence, as clear from the evidence presented to us, has no particular purpose in mitigating visual effects for the Waldrons. In fact it places a building adjacent to the Waldron boundary in a highly visible position in low lying land for no discernible reason. We note that the landscape architect for the applicant acknowledged that the visual impacts of the proposed residence on the Waldron’s outlook were more significant than those from the activity yard.
[86] As can be seen from the above paragraph, the presence of a house on Lot 1 was an issue at the hearing. The issue of whether the application site was confined to Lot 2 or included Lot 1 was also an issue at the hearing.
[87] In my view, even though HHH adopted the position that the house was not part of the application and was thus a permitted use, and even though, when the house was
put on the site, it was located in a different position from that shown in the plans before the Court, HHH was unwise to move the house onto Lot 1, given the various issues that were live before the Court.
[88] After the Interim Decision, HHH then continued to work on the house so that it was permanently installed by the time of the Final Decision. Even though HHH clearly took the view that the house was a permitted use and also submits in this Court that the Court did not have the legal ability to impose a condition prohibiting a house on Lot 1, it was again unwise for HHH to continue to work on installing the house. On the other hand, through counsel, HHH liaised with both the Council and Ms Waldron regarding conditions and landscaping. The Council also granted a building consent.
[89] I turn then to the Final Decision. Essentially the Court’s reason for declining consent was because a house had been located on Lot 1. The Court said:
[12] In these circumstances the interim decision requirements cannot be fulfilled given that the applicant has acted precipitously while the decision was pending and later notwithstanding the clear terms of the interim decision.
[90]The Court continued:
[14] We acknowledge and accept that the building can be placed on this Lot 1. However, the activity requiring resource consent cannot be granted consent if that activity prevents the mitigation required. Our reasons include not only those of legal principle but the inability to provide conditions that could satisfy us that the effects of the activity itself could be sufficiently contained within the lots and that Lot 1 DP 483749 could be free of buildings and utilised as rural pastural land to effectively manage the effects of conducting the activity on the rest of the amalgamated site.
[91] Mr Webb submits that the meaning of the above paragraph is unclear. He submits it seems the Court is saying that “that activity” which prevents the mitigation is the house on Lot 1, because that has been the Court’s concern all along. Mr Webb continues, if that is right, then the Court is also saying that the house is part of the activity requiring consent. Mr Webb submits that is wrong. He continues that the consequence of this is that the Court seems to be saying that consent cannot be granted for the activity on Lot 2, because that activity also requires a house on Lot 1, but the Court will not allow that. Mr Webb concludes that if this is the case, then the Court
refused consent by taking into account an irrelevant matter which was material to its decision.
[92] I agree with Mr Webb that what the Court is saying is not entirely clear. A strictly grammatical reading of the second sentence would mean “that activity” preventing mitigation is the activity requiring resource consent. It must therefore be the case that two distinct activities are referred to in the second sentence. There is “the activity requiring resource consent” and “that activity”. The latter appears to refer to the placing of a house on Lot 1. Interpreted in this way, the Court seems to be saying that while a house can be built on Lot 1, because the effects of the activity requiring consent on Lot 2 will not be adequately mitigated, the activity requiring resource consent cannot be granted consent. On that interpretation, then, the Court is saying that the house on Lot 1 precludes effective mitigation even though it is a permitted activity and outside of the scope of the application for resource consent. It also implies that the Court would have been able to impose a condition that there be no house on Lot 1 because it was part of an amalgamated site.
[93] Whether the Court could in fact impose such a condition is the subject of a separate alleged error of law which I consider in the next part of this judgment. Based on my analysis of the paragraph in the Court’s judgment under discussion, I do not accept Mr Webb’s submission that the Court was saying the house on Lot 1 was in fact part of the activity for which consent was sought. There is no factual error as Mr Webb suggests.
[94] For completeness, I refer to the third alleged factual error: that the Court erred when it said that “… Mr Webb does not give a specific time when the building was placed on the site”.20 That statement is incorrect. The date was referred to in Mr Webb’s memorandum of 25 June 2019 annexing the proposed consent conditions. However, I do not consider that error was material.
20 At [7].
Legal mistake/error of law
[95] Mr Webb submits that the Court made an error of law in determining that it had jurisdiction to impose conditions on Lot 1 in relation to the activity, because Lot 1 was on the same certificate of title as Lot 2.21 In doing so, the Court took into account an irrelevant matter.
[96] Mr Webb submits that because Lot 1 is outside the scope of the application then the Court had no jurisdiction to impose a condition over the use of Lot 1, for activities on Lot 2. The only way such a condition could be imposed is if the owner of Lot 1 had given a clear and unequivocal undertaking to be bound by the condition.22 And that did not occur.
[97] Mr Mathias takes issue with this part of HHH’s appeal. He refers to the definition of “site” in the Plan and submits that, having regard to the definition, Lot 1 and Lot 2 are part of the one site. He submits the Court was therefore able to impose a condition on Lot 1 that there should be no structures on Lot 1 in order to retain rural character and amenity (as it indicated it intended to do).23
[98] Mr Mathias submits the only argument available to HHH is whether the condition that there be no structures on Lot 1 is reasonable in the Newbury24 sense. Mr Mathias is supported in his submissions in relation to the definition of “site” in the Plan by Ms Baguley. Mr Webb does not accept their interpretation.
[99] Ms Baguley also submits that as mitigation planting was proposed on Lot 1, this lot must therefore have been part of the application site.
[100] Mr Webb responds by submitting that the mitigation planting in the application was only located in Lot 2. The mitigation planting on Lot 1 was introduced at a later date to address Ms Waldron’s concerns. Further, as it was offered by HHH and related to land over which it had control,25 that planting could be secured by conditions of
21 Interim Decision at [31].
22 Section 108AA(1)/an Augier condition.
23 At [78].
24 Newbury District Council v Secretary of State for the Environment [1981] AC 578 (HL).
25 Although I note HHH was not in fact the registered proprietor.
consent on a s 108AA RMA/Augier basis. Mr Webb continues that the limited basis on which the landscape conditions in relation to Lot 1 might be imposed does not make that lot part of the application site for any other purpose. It does not permit the Court to treat Lot 1 as part of the site for all other purposes.
Discussion
[101] In the Interim Decision the Court expressed its view first that the application “… cannot be expanded to include HHH-owned Lot 1 DP483749”.26 The Court went on to say:27
[31] … What is quite clear is that it made no connection to Lot 1 DP 483749 and to do so now is beyond scope. This also means that the area shown on the maps, such as C, as “lay by” cannot be included because it is not within the application site. We later conclude the Court can impose conditions appropriate to Lot 1 DP 483749 if it is in the same Certificate of Title as the application site.
[102] As can be seen from the above paragraph, notwithstanding the Court’s view that the application could not be expanded into Lot 1 (which Mr Webb says was never sought), the Court nevertheless considered it could impose conditions appropriate to Lot 1 as it is in the same certificate of title.
[103]Without providing any further reasoning, the Court later said:
[78] … Further there should be no structures on Lot 1 in order that it retain rural character and amenity. In particular there should be no sheds or any manager’s house. In this way the intensity of the use on Lot 2 is balanced by the retention of the open potential nature of Lot 1 (and an area around Lot 2). This physically and visually contains the activity.
…
[83] However, we conclude that Lot 1 DP 483749 would need to be subject to a condition (as it is in the same title and ownership) that it be maintained for grazing only for the term of the consent, to maintain the rural openness sought in Policy 1.3.1A. This buffer is required to ameliorate the visual impact towards the Waldron house and shed from SH1. Although this would restrict some potential activities.
…
26 At [30].
27 At [31].
[88] We conclude that the visual effect in the period during which planting is being established can be appropriately mitigated by retaining an open space “belt” around the activity. … This would open space throughout Lot 1 and on the eastern side of Lot 2 beyond the storage area. With a condition preventing structures on Lot 1 483749 this open space belt should encapsulate the activity.
[104] Can it be said that Lot 1 and Lot 2 are part of the one “site”, thus giving the Court the jurisdiction to impose a condition that there be no structure, such as a house, on Lot 1 (in the absence of the consent of the owner of that lot)? The definition of “site” in the Plan is as follows:
Site means an area of land or volume of space, shown on a plan with defined boundaries, and includes:
(1)
(a)land which is:
(i)comprised in a single allotment or other legally defined parcel of land and held in a single certificate of title, or
(ii)comprised in a single allotment or legally defined parcel of land for which separate title cannot be issued without further consent of the Council: or
(b)an area of land which is comprised of two or more adjoining certificates of title where such titles are
(i)subject to a condition imposed under S.80 of the Building Act 2004; or
(ii)held together in such a way that they cannot be dealt with separately without the prior consent of the Council.
[105] The general definition of a “site” is set out in the first sentence. This definition “includes” the scenarios which follow. The use of the word “includes” means the list is not exhaustive but are examples or illustrations of possible circumstances which satisfy the general definition. I work through each of the parts of the definition below.
[106]The general definition has three parts:
(a)An area of land or volume of space;
(b)Shown on a plan;
(c)With defined boundaries.
[107] Lot 1 and Lot 2 are, together, an area of land or volume of space. That part of the definition is satisfied.
[108] The question of whether they are shown on a plan is a more difficult one. The general definition is vague. It refers only to a plan. Other parts of the definition follow specify statutory instruments such as certificates of title or unit plans. The general definition of site does not refer to a survey plan or a registered survey plan. In contrast, an “allotment”, which is relevant to determining whether Lot 1 and Lot 2 are sites, is defined in part as “a continuous area … whose boundaries are shown separately on a survey plan.” The definition refers elsewhere to land (or building) shown on a survey plan. These are references to instruments under the Land Transfer Act.
[109] The definition of “site” is much less specific. It just refers to a plan. However, I am of the view, in light of the rest of the definition, and given the definition of “allotment”, that the reference to “plan” in the definition of “site” should be construed narrowly to mean a survey plan rather than simply any diagram or image. This means, therefore, that the aerial photograph included in the application (and other similar diagrams in the evidence) does not satisfy this part of the definition.
[110] On this construction of the word “plan” in the definition of “site”, the two plans attached to the title for the property do satisfy the definition. These plans are DP 356529 and DP 483749. As noted above, Lot 1 is shown on DP 483749 and Lot 2 is shown on DP 356529. Both plans are annexed to record of title 683963 because each of the parcels is shown separately in the two plans.
[111] This is where the last part of the definition is relevant. Lot 1 and Lot 2 are an area of land and they are shown in both plans. The last part of the definition is that the area is shown on a plan with defined boundaries. In DP 356529 the boundaries of Lot 2 are clearly shown. However, the boundaries of Lot 1 are those prior to the subdivision of the allotment so the south-eastern boundary of Lot 1 on DP 483749 is not shown. DP 483749 does show the boundaries of Lot 1 but does not show the
boundaries of Lot 2. This part of the definition is therefore not satisfied so Lot 1 and Lot 2 are not, for the purposes of the Plan, a “site.”
[112] While this disposes of the issue , I am also of the view that none of the specific examples is satisfied either.
[113]I work through each part as follows:
1(a)(i)
[114] I do not consider this part of the definition applies. Although Lots 1 and 2 are held in a single certificate of title, they are not comprised in a single allotment. “Allotment” is defined in the Plan, in part, as “[a]ny parcel of land under the Land Transfer Act 1952 that is a continuous area and whose boundaries are shown separately on a survey plan.” There are two lots within the Identifier 683963, one being Lot 1 and the other being Lot 2.
1(a)(ii)
[115] As I understand their submissions, it is this part of the definition that Mr Mathias and Ms Baguley particularly rely on. It has two parts. The first part “land comprised in a single allotment” does not apply. Lot 1 and Lot 2 are not land comprised in a single allotment. They are separate lots, as an “allotment” is defined in the Plan.
[116] Turning to the second part of the definition, the question is whether Lot 1 and Lot 2 together are land “… comprised in a single … legally defined parcel of land for which separate title cannot be issued without further consent of the Council”. If the definition is read as a “single legally defined parcel of land”, which I consider is the correct plain reading, then the condition is not satisfied because Lot 1 and Lot 2 are not a single legally defined parcel of land. The land in one title is legally defined as two parcels of land with distinct boundaries.
[117] However, even if that part of the definition is construed as “a legally defined parcel of land” (as opposed to a single legally defined parcel of land), the condition is
not satisfied either. An entry on the certificate of title for Lot 1 and Lot 2 is relevant here. That entry reads:
Subject to Section 241(2) and Sections 242(1) and (2) Resource Management Act 1991 (affects DP483749).
[118] The effect of that entry is that the separate parcels of land included in the record of title, i.e. Lot 1 and Lot 2, are not able to be disposed of individually or held under separate records of title except with the approval of the territorial authority.28 Ms Baguley submits that because separate titles cannot be issued for each of Lot 1 and 2 without the consent of the Council, then this part of the definition is satisfied. I do not accept that submission. The word in the definition is title not titles. Lots 1 and 2 taken together are not a legally defined parcel of land for which separate title cannot be issued without the consent of the Council. They are already together in a certificate of title.
[119] In other words, Lot 2 is a single allotment. As the record of title 683963 is subject to s 241(2) of the RMA, it cannot be held in a separate record of title without the approval of the Council. Lot 2, on its own, meets the definition of site. In the same way so does Lot 1. They are each separately a “site” but together they are not one site.
1(b)
[120] This part of the definition does not apply. Lot 1 and Lot 2 are not comprised of two or more adjoining certificates of title. They are in one record of title.
[121] Therefore, in terms of the definition in the Plan, Lot 1 is a site and Lot 2 is also a (separate) site.
[122] To conclude: Lot 1 and Lot 2 are not part of the one site. The fact that they are on the same certificate of title does not provide a legal basis for the Court to impose
28 There is a second entry on the certificate of title: Consent notice pursuant to s 221 Resource Management Act 1991 – 20.4.2016 at 4.28 pm (affects Lot 1 DP 483749). The Court was provided with a copy of that consent notice. It requires the registered proprietor, at the time of lodgement of any application for a building consent, to provide a report as identified within the condition as the property is located within a flood susceptible area. It is not relevant for present purposes.
a condition on Lot 1 (where the condition is not offered by the applicant) in relation to an activity on Lot 2.
[123] Even if I am wrong in my conclusion above, and the Court did have jurisdiction to impose a condition on Lot 1, the condition must nevertheless be reasonable under the Newbury test. The requirement under that test is that the condition must not be so unreasonable that a reasonable planning authority, duly appreciating its statutory duties, could not have approved it. In this case the house was a permitted activity on Lot 1. It was not part of the activity on Lot 2.
[124] Can a condition be imposed on a permitted activity? North Canterbury Clay Target Assoc Inc v Waimakariri District Council, while not directly on point, provides some assistance. In that case, the Court of Appeal addresses points of law in relation to the certificate of compliance regime. The Act provides for a consent authority to issue a certificate of compliance for an activity that is a permitted activity. As the activity is permitted, a resource consent is not required. The Court of Appeal states the Act treats the certificate as a resource consent subject to any conditions specified in the relevant plan.29
[125] Certificates of compliance are therefore closely connected with the category of activities which are permitted. Most importantly, the Court of Appeal notes a certificate of compliance “cannot be qualified” by attaching conditions (other than those provided for in the plan). Either the activity is permitted, or it is not.30 Thus, a territorial authority has no discretion to impose conditions or other controls on a permitted activity. Neither does a Court.31 The applicant offered a landscaping condition on Lot 1. But offering that particular condition does not make the whole of Lot 1 part of the application site for all purposes.
[126] Therefore, to impose a condition prohibiting an activity which is permitted is unreasonable in the Newbury sense. It was thus not a condition which the Court could
29 North Canterbury Clay Target Asso Inc v Waimakariri District Council [2016] NZCA 305 at [1].
30 At [29].
31 Marlborough District Council v Zindia Ltd [2019] NZHC 2765, at [66](d).
lawfully impose (assuming that it did have jurisdiction over Lot 1 for the purpose of imposing conditions).
[127] Either way, the error was material. The presence of the house on Lot 1 was the reason the Court refused consent.
Third alleged error of law
[128] The third alleged error is that the Court came to a conclusion which, on the evidence, it could not reasonably have come to. It is said to be based on a lack of evidence.
[129] Mr Webb did not make any separate submissions on the third error of law. His position was simply that the foundation for the error was contained in his submissions for the first two errors of law.
[130] Because of the basis on which the Court made the Final Decision, there was no discussion of: the ALS; the draft conditions agreed between HHH and the Council; Ms Baguley’s memorandum of 4 July 2019 in relation to the proposed draft conditions; and, Mr Webb’s memorandum of 10 July 2019 responding to the proposals in Ms Baguley’s memorandum and in documents annexed to that memorandum.
[131] Effectively HHH is asking this Court to review all of the evidence and make a decision on the evidence. In other words this Court is asked to make a decision on the factual merits of the case under the guise of a question of law.
[132] That is not a proper use of an appeal on a question of law. I therefore do not intend to address the third alleged error of law.
Fourth alleged error of law
[133] The fourth alleged error is that the Final Decision was so unreasonable that no reasonable Court would have made it. I have determined that the Court did not have jurisdiction to impose a condition that there be no house on Lot 1. The essential reason for refusing consent and dismissing the appeal was that HHH had moved a house onto
Lot 1. A condition that HHH could not do so would not have been lawful. It follows that the decision was unreasonable.
Fifth alleged error of law
[134] HHH says there was a breach of natural justice. No further submissions are made. Instead HHH relies on its submissions for the first and second alleged errors of law.
[135]Section 27(1) of the New Zealand Bill of Rights Act 1990 provides:
27 Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
[136]In Udompun v Minister of Immigration,32 Heath J concluded:33
[143] Both the terminology employed in s 27(1) of the Bill of Rights and the general purpose of the provision suggest that the object is to ensure those who exercise public authorities (whether acting judicially or administratively) exercise their functions in a manner which can be assessed, objectively, as “fair” to those who may be affected by their decisions.
[137] On appeal, the Court of Appeal disagreed with a number of the conclusions reached by Heath J.34 However, the Court of Appeal did not comment specifically on the above passage.
[138] In a decision the following year in Henderson v Director, Land Transport Safety Authority of Palmerston North,35 Gendall J said that natural justice simply means “fair play in action” so that natural justice in any particular case is to be determined by the overall requirements of fairness. The Court of Appeal dismissed an
32 Udompun v Minister of Immigration (2003) 7 HRNZ 238 (HC).
33 At [143].
34 Attorney-General v Udompun [2005] 3 NZLR 204 (CA).
35 Henderson v Director, Land Transport Safety Authority of Palmerston North HC Wellington CIV-2004-485-736, 17 June 2004 at [36].
appeal from the judgment of the High Court and did not express a contrary view in relation to the passage I have quoted.36
[139] The manner in which the Court approached its Final Decision meant that it did not consider the evidence which it had requested or counsel’s submissions in their memoranda on that evidence. In my view the overall requirement of fairness meant that the Court should have considered the evidence, including the ALP, before making its final decision. As a result, the process was unfair.
[140] There was therefore a breach of natural justice in failing to consider relevant evidence. For reasons already discussed in relation to the ALP, that breach was material.
Questions of law
[141]I answer the questions of law in the notice of appeal as follows:
(a)Did the Court err in law in failing to take into account relevant considerations?
Answer: Yes.
(b)Did the Court err in law by taking into account irrelevant considerations?
Answer: Yes (one irrelevant consideration).
(c)Did the Court err in law by reaching a conclusion which, on the evidence, it could not reasonably have come to?
Answer: For the reasons given in [130] to [132], the Court does not answer this question.
36 Henderson v Director of Land Transport New Zealand [2006] NZAR 629 (CA).
(d)Did the Court err in law by reaching conclusions that no reasonable Court could have reached?
Answer: Yes.
(e)As the result of the foregoing, was there a breach of natural justice?
Answer: Yes.
Result
[142] The appeal is allowed. The Final Decision is set aside. The matter is remitted to the Environment Court for further consideration.
Costs
[143] I reserve the question of costs. If the parties are able to agree costs, counsel should file a joint memorandum within 20 working days of the date of this judgment. If costs cannot be agreed, HHH should file and serve its memorandum within 10 working days of the date for the joint memorandum. The Council and Ms Waldron are to file their replies within a further 10 working days. Costs memoranda should not exceed four pages (excluding any attachments).
[144]I will then determine costs on the papers.
Gordon J
ANNEXURE
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