Harewood Gravels Company Limited v Christchurch City Council
[2018] NZHC 3118
•30 November 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-891
[2018] NZHC 3118
BETWEEN HAREWOOD GRAVELS COMPANY LIMITED
Appellant
AND
CHRISTCHURCH CITY COUNCIL
First Respondent
AND
YALDHURST QUARRIES JOINT ACTION GROUP
Second Respondent
Hearing: 26, 27 and 28 March 2018 Appearances:
E J Chapman, J M Appleyard and J A Robinson for Appellant B K Pizzey for First Respondent
M R G Christensen for Second Respondent
Judgment:
30 November 2018
JUDGMENT OF NICHOLAS DAVIDSON J
HAREWOOD GRAVELS COMPANY LIMITED v CHRISTCHURCH CITY COUNCIL & ANOR [2018] NZHC 3118 [30 November 2018]
TABLE OF CONTENTS
A. INTRODUCTION [1]
The setting for this appeal [3]
HGL’s appeal to this Court[12]
JAG [17]
Christchurch City Council [24]
B. ENVIRONMENT COURT DECISION [26]
Status of the activity [31]
Key definitions [33]
Preliminary legal issues [37]
Christchurch District Plan [39]
Strategic Directions of the District Plan [40]
Noise [56]
Traffic [57]
Threshold of effects [59]
The receiving environment [63]
Landform and soil [64]
Vegetation [65]
Views [66]
Existing land uses [67]
Local road network and environment [68]
Noise environment [70]
Dust environment [73]
Benefits of proposed quarry [75]
Rural amenity and character [76]
The District Plan [82]
Rehabilitation [90]
Cumulative effect of quarrying [91]
Noise [93]
Methodology [98]
The additive noise from HGL Quarry traffic [104] Change to existing noise environment – effect on rural amenity [106] Dust [119]
Traffic [130]
Vibration [136]
Evaluation of the proposal [137]
D. OBSERVATIONS ABOUT THE ENVIRONMENT COURT
DECISION, AND THE LAW [148]
Errors of law [150]
E. SEVEN QUESTIONS OF LAW [156]
First Question of Law: Did the Court err in its interpretation of the meaning of “rural character” and therefore further err in its
interpretation of the evidence before it? [159]
Submissions for HGL [159]
Submissions for the Christchurch City Council [181]
Submissions for JAG [185]
Discussion [187]
Second Question of Law: Did the Court incorrectly apply the District Plan Rules as they relate to noise, to apply to noise from traffic on a
public road? [190]
Submissions for HGL [190]
Submissions for the Council [195]
Submissions for JAG [200]
Discussion [202]
Third Question of Law: Did the Court impose a requirement on evidence of experts which went beyond the role of an expert, assessing the effects
of a proposal? [203]
Submissions for HGL [203]
Submissions for the Council [212]
Submissions for JAG [225]
Discussion [226]
Fourth Question of Law: Did the Court incorrectly interpret the
rehabilitation Rules of the District Plan? [232]
Submissions HGL [232]
Submissions for JAG [238]
Discussion [239]
Fifth Question of Law: Did the Court err in its finding that it had
insufficient evidence to determine whether the application was contrary to the Objectives and Policies of the District Plan and thus whether it
could pass the s 104D gateway test? [242]
Submissions for HGL [242]
Submissions for JAG [247]
Discussion [253]
Sixth Question of Law: Did the Court come to a conclusion without
evidence, or a conclusion which on the evidence it could not reasonably have reached, when determining that a 3dB increase arising from traffic
noise from the Transport Zone was a “significant adverse effect”? [262]
Submissions for HGL [262]
Submissions for the Council [279]
Submissions for JAG [283]
Discussion [284]
The Second and Sixth Questions of Law - Summary [289]
First noise error (sixth error of law) [290]
Second noise error (second error of law) [291]
Third noise error (second error of law) [294]
Fourth noise error (second error of law) [296]
Fifth noise error (second error of law) [298]
Sixth noise error (sixth error of law) [300]
Seventh Question of Law: Did the Court err in its elevation of the
importance of “avoidance” over other approaches contemplated by the District Plan, which resulted in the incorrect interpretation of the
Objectives and Policies? [301]
Submissions for HGL [301]
Submissions for JAG [306]
Discussion [311]
F. CONCLUSION [315]
Relief [321]
The future [323]
G. DISPOSITION [327]
(Note: “emphasis added” means for this Judgment).
A. INTRODUCTION
[1] Harewood Gravels Company Limited (“HGL”) appeals against the Decision of the Environment Court (“the Court”) dated 10 October 2017 (“the Decision”).1 The Court allowed an appeal by Yaldhurst Quarries Joint Action Group (“JAG”) and declined land use consent granted by the Christchurch City Council (“the Council”) to establish a quarry near Christchurch Airport (RMA 92030745).
[2] The appeal is brought under s 299 of the Resource Management Act 1992 (“RMA” or “the Act”). HGL alleges seven material errors of law made by the Court and seeks an order that the Court be directed to reconsider its Decision without such error/s.
The setting for this appeal
[3] HGL applied to the Canterbury Regional Council (“the Regional Council”) and the Council for resource consents to establish and operate a quarry at 21 Conservators Road, Christchurch, west of Christchurch International Airport, on a no-exit rural road, with access to Pound Road via Savills Road. Some longstanding quarry operations are located in the area. The proposed quarry site is depicted in the Schedule to this judgment.
[4] HGL is a joint venture of Road Metals Limited and Isaac Construction Limited and already operates a quarry site at McLeans Island Road which has a limited life. The proposed site is for medium and long-term quarry operations, with a land use consent life of 30 years. It was a contentious submission for HGL that it operates a quarry site and “… this is a replacement quarry…”. That made issues about cumulative effects invalid according to Mr Chapman, co-counsel with Ms Appleyard for HGL. He went so far as to say “It’s simply one quarry closing down its operation at one point, re-opening around the corner”. Pressed further, he said the Court talked about seven quarries in the zone, but the number would remain six and there would continue to be six when the existing HGL quarry is worked out. He acknowledged,
1 Yaldhurst Quarries Joint Action Group v Christchurch City Council [2017] NZEnvC 165.
however, the effects would be different: “New people, new access ways. There are different effects”.
[5] Mr Christensen, counsel for JAG, says there are seven existing and consented quarries on the map (see the Schedule), and this would be the eighth until HGL terminates operations at its existing quarry. The Court said this:
[80] 250m or so north of the formed section of Conservators Rd is the southern boundary of one of four existing quarries, aligned on an approximately 3 kilometres east-west axis, and fronting McLeans Island Rd. these are owned by Fulton Hogan Limited, KB Contracting and Quarries Limited, Harewood Gravels and Isaac Construction. To the west of Conservators Road and adjoining the subject site is a recent quarry developed by SOL Quarries Limited. It has a light vehicle access to Conservators Rd and heavy goods vehicle (HGV) access to guys Rd, located some 700m from the nearest existing dwelling.
[81] To the north and East of Savills Rd adjacent to number 25, there is a recently consented quarry owned by Frews Quarry Limited. At the time of the hearing it was yet to commence production although an access to Savills Road is formed and preliminary site works have been completed. On the southern side of Savills Rd opposite (in part) Frews Quarry has the disused Grant Brothers Quarry, now operated as a cleanfill site.
[6] There are thus six quarries in use or consented, and one cleanfill site. This proposed HGL quarry would be the seventh, but one day, not yet fixed, it will end operations at its existing quarry.
[7] The consents required for quarrying include City Council land use consent and Regional Council consents to discharge contaminants to air and land. Consents were granted by Independent Commissioners appointed by the Regional Council and the Council in a decision dated 13 July 2016 (“the Commissioners’ Decision”). This proposed quarrying activity is non-complying under the Christchurch District Plan (“District Plan”) because it exceeds the relevant noise standard at the site’s southern boundary, although the contiguous land is not noise sensitive. The site is within the Rural Waimakariri Zone where quarrying is a discretionary activity if located 250 metres or more from a residential zone.2 As such, the consent authority, here the Council, must, subject to Part 2 RMA, have regard to any actual and potential effects on the environment of allowing the activity, relevant provisions of the Canterbury
2 Christchurch District Plan, Chapter 17, Rule 17.5.1.4.
Regional Policy Statement, the Christchurch District Plan, and any other matter the consent authority considers relevant and reasonably necessary to determine the application.
[8] The Regional Council consents allow for discharge to air from fugitive dust emissions associated with excavation of the quarry floor and processing on the site. Dust mitigation plans are conditions of consent and include controls on quarrying relating to wind speed, monitoring obligations and directions, to cease operations at a certain level and to operate under a quarry Dust Management Plan. This is unlike the quarry operated by HGL at the moment where there are no dust management conditions, no groundwater testing, and no rehabilitation of the kind required in the consent granted for this HGL proposal by the Hearing Commissioners.
[9] No permitted baseline considerations apply. The JAG appeal to the Environment Court was primarily concerned with effects on the rural character of the area and the amenity values that derive from that character.
[10]The Environment Court’s approach was expressed as follows:3
[13] The effects of the proposal when considered in isolation may well appear of no great moment. The primary issue for determination is whether the cumulative effects of the proposal achieve the objectives of the District Plan and thereby promote the sustainable management of natural and physical resources.
[11] The Court held that HGL had not met either threshold test for a non-complying activity under s 104D RMA, nor would it have granted consent under s 104 RMA.
HGL’s appeal to this Court
[12] HGL says this appeal mainly involves “interpretation errors” which separately and cumulatively resulted in the Decision to allow the appeal and to decline/revoke the consent. Counsel say that this is the first case which involves quarry activities in Rural Zones to come before the High Court, and involves a significant challenge to the reasoning and conclusions of the Court, based on well-established principles.
3 Yaldhurst Quarries Joint Action Group, above n 1.
[13] The boundaries of the Rural Quarry Zone have not changed under the District Plan, but the activity status of a quarry is in some circumstances now discretionary rather than non-complying. Quarrying comes within the definition of a “rural productive activity”. The District Plan has adopted Objectives and Policies for the seven Rural Zones, which seek to foster such activities, but to limit their effects within the Zone. Mr Chapman, one of three counsel for HGL, puts the questions of law broadly as whether the Environment Court’s interpretation of the law was correct in light of the Plan, the expert and neighbour evidence, and whether the ultimate Decision made by the Court to decline consent was correct at law.
[14] Mr Chapman’s submission is that the District Plan has “changed the emphasis” with regard to quarrying outside the Rural Quarry Zone, so that it is just as much a rural productive activity as sheep and beef farming, and this has put quarrying “on the same platform” and “effectively lowered the bar” by making it discretionary. Mr Chapman made much of the fact that there is one Strategic Objective relating to the Rural Zone (discussed further), directed to productive and diverse activity to enable the rural environment primarily for rural productive activities and other activities which use the rural resource efficiently and contribute positively to the economy. As Mr Chapman puts it, “… it’s the money-making zone”. That submission is qualified to the extent that the contribution of rural land to maintaining values in the natural environment must be brought to account. Mr Chapman says that there is no residential use mentioned in the Objectives, but in any event, the amenity values which the District Plan seeks to support, maintain and enhance, are not restricted to residents in an area, and rural productive activities and those involved in such activities also enjoy amenity values.
[15] Mr Chapman says that maintenance of local rural amenity values requires more than one house being affected, and the area is fully developed for that permitted rural residential activity given the number of houses on lots around the quarry site. He submits that maintaining rural amenity value is maintaining that which is present in the locality, and these values are not pristine, not what they were ten years ago, and they should be assessed having regard to the environment in which the quarry is working. He says that is why amenity value should be viewed on a “locality” basis, rather than “one house”.
[16] He says that this appeal also seeks to clarify the point at which the effects of a rural productive activity become too great for residents in a locality within the Rural Zone to absorb, so as to merit the decline of consent.
JAG
[17] JAG is made up of 10 persons who own and occupy properties in the locality, and who are concerned with the cumulative adverse effects of quarrying on their health, and the amenity of the area. JAG appealed the Commissioners’ Decision to grant land use consent, but not the consents granted by the Regional Council. After a six day hearing in the Environment Court, JAG was successful.
[18] JAG, through counsel Mr Christensen, adopts the submissions made for the Council by Mr Pizzey as to the principles which apply on appeal from Decisions of the Environment Court, on the first, second, third and sixth (of seven) questions of law. JAG otherwise largely focuses its submissions on the fourth, fifth and seventh questions of law. Mr Christensen submits that the appeal as a whole is simply a challenge to the merits of the Environment Court’s Decision on the extensive evidence before it, and none of the alleged errors are errors of law, if they are errors at all.
[19] Mr Christensen said JAG made submissions to the Environment Court that the expert evidence had essentially missed the point about the cumulative effects on the residents’ rural amenity, especially as to noise and dust nuisance. The residents’ position is that the rural amenity and character of the area has already changed because of quarrying activities, to their detriment, on their evidence, including a higher level of noise, dust, and heavy traffic than would be the case with permitted rural activity. They accept that well managed quarries are rural activities and that is why they came to a settlement in their opposition to the application made by Frews Quarry Limited (“Frews”) to establish its quarry.
[20] JAG’s position is that it is not “normal” in terms of the Rural Zoning to have several quarries which effectively surround them, each additional quarry adding to the cumulative effects and the subjective feeling, to them, that the environment has changed, no longer reflecting the rural amenity they submit is intended by the Plan.
[21] The JAG residents say that it is wrong to take each element of dust, noise, traffic et cetera and assess that against a Rule or other provision in the District Plan or to make a general finding that effects can be reasonably minimised. Each individual element may have no more than a minor adverse effect, but the overall adverse effect may be more than minor, looking holistically at the proposal and cumulative effects from existing and consented quarries. One quarry may have no more than a minor effect but cumulatively the effects may compound.
[22] In essence, Mr Christensen’s submission is that amenity values in the rural environment, here for residential use, will or may be able to hold in the face of development to a certain point, but there is a degree or intensity of development at some point which will or may “break the camel’s back”. The City Plan does not say quarries are acceptable in all locations in a rural area, because if that were the case, the Quarry Zone provisions would apply across the Rural Zones.
[23] At the heart of JAG’s case is the proposition that it is not enough for the proposed quarry to meet relevant permitted activity noise standards, safe traffic movements, and dust minimisation, so that the Court then has “no choice but to grant consent”. The Court has a discretion to decline consent or impose conditions within permitted activity standards, stricter than might be the case if HGL was the only quarry in the area. A singular point made for the JAG residents is that there will be more operational crushing and heavy traffic noise to a point where for two at least of the residents, the effects from noise will be significantly adverse.
Christchurch City Council
[24] The Council, through counsel Mr Pizzey, submits that the expert evidence led by the Council to assist the Environment Court broadly supported the Decision to grant consent, but it put its case in a way that led the Court to characterise the Council’s position on appeal as neutral. The Council contests alleged errors of law one, two, three and six, and remains neutral and abides the judgment of the Court in relation to alleged errors of law four, five and seven.
[25] Mr Pizzey describes HGL’s case under Questions One, Two, three, and Six as a straightforward challenge to the merits of the Environment Court’s Decision,
particularly the application of its own planning expertise, and its conclusions on the evidence. He challenges HGL’s characterisation of the Court’s Decision and says that the appeal is said to be brought to clarify when the effects of a rural productive activity become too much for residents to absorb, so as to merit the decline of consent, and this is simply a challenge to the merits of the Court’s findings on the evidence. The High Court, he submits, is being asked to substitute its own judgment based on the evidence, over that of a specialist Court. Otherwise, he submits that it is by no means established that any of the alleged errors materially affected the Court’s Decision, even if error is established in one or more respects.
B. ENVIRONMENT COURT DECISION
[26] The Decision of the Environment Court was delivered on 10 October 2017 after a hearing in two tranches in March and May that year. It is not possible to do justice to the Decision, or to fully comprehend the questions for this judgment, without a full understanding of the Court’s reasons and the evidence before it. It is easy to ‘pick at’ a Decision when alleging an error of law which involves evidence, but it is usually wrong to do so unless there is an obvious error of principle. The reasons of the Court, and the evidence available to it, will only emerge when the contextual setting before the Court is thoroughly understood.
[27] First, it must be said that the Court carefully explained the approach which it took to reach its Decision, including cumulative effect, and considered “Preliminary Legal Issues” over some 48 paragraphs.
[28] The Court concluded that HGL had not discharged its onus to satisfy the Court that it met either of the threshold tests under s 104D of the RMA:
[313] Given the scale and intensity of localised effects, particularly the significant adverse effect of noise amenity, we are not satisfied that (it) would be a consentable proposal under ss 104 and 104B of the Act.
[314] While the proposed use and development of the land supports an activity that has the potential to contribute positively to the economy and the wellbeing of the District, the evidence is not sufficient to conclude the same activity will also support and maintain the function, character and amenity values of the rural environment generally (objective 17.2.1.1). Given this, we are not satisfied the proposal promotes sustainable management of natural and
physical resources and uphold the appeal declining the application for resource consent.
[315] As an aside, the court acknowledges the impact on residents of the development of quarrying in this area and their felt sense of frustration, and at times, helplessness, when responding to the applications in respect of which they were notified and their efforts to ‘police’ the compliance by neighbouring quarries with the conditions of their consents. Despite that, the residents conducted the proceedings in a measured and responsible manner.
[29] The Court’s Decision was reached in substantial part on an evidential basis as to the scale and intensity of localised effects, including but not confined to noise. The findings are in part challenged on appeal as not available on the evidence, and the Court is also alleged to have erred in interpreting and applying the District Plan, and the way it addressed the threshold tests under s 104D.
[30] Adopting headings used by the Environment Court, I track and summarise the Decision with occasional comment, before addressing the alleged errors of law.
Status of the activity
[31] The site is within the Rural Waimakariri Zone and quarrying is a discretionary activity 250m or more from a residential zone. It is non-complying because the proposal exceeds the relevant noise standard at the site’s southern boundary by more than 10 dB where the predicted noise level is 76 dB LAeq.
[32] Being non-complying, s 104D RMA provides that the activity may only be consented if the consent authority is satisfied that either (relevantly):
(a)the adverse effects of the activity on the environment (other than any effect to which section 104(3)(a)(ii) applies) will be minor; or
(b)the application is for an activity that will not be contrary to the objectives and policies of the relevant plan.
…
Key definitions
[33] The appeal was primarily concerned with cumulative effects of the proposed quarry on the rural character of the area and the amenity values that derive from that. Amenity values are those natural or physical qualities and characteristics of an area
that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes. The primary issue for determination was whether the cumulative effects achieve the Objectives of the District Plan and thereby promote sustainable management of natural and physical resources.
[34] The Court referred to the wide meaning of the term ‘effects’, which includes effects positive and adverse, temporary and permanent, past, present and future, and cumulative over time or in combination. Effects are regardless of scale, intensity, duration, or frequency, and include a potential effect of high probability, and potential effect of low probability with a high potential impact.
[35] The term “cumulative effect” is significant in the Court’s reasoning, explained in this way:4
[17] In Dye v Auckland Regional Council the Court of Appeal differentiating a cumulative effect from a potential effect, appeared to confine the former to the effect of the activity itself on the environment. The following passage is often quoted but it is worth setting out again in the context of this discussion:
The definition of effect includes “any cumulative effect which arises over time or in combination with other effects”. The first thing which should be noted is that a cumulative effect is not the same as a potential effect. This is self evident from the inclusion of potential effects separately within the definition. A cumulative effect is concerned with things that will occur rather than with something which may occur, that being the connotation of a potential effect. This meaning is reinforced by the use of the qualifying words “which arises over time or in combination with other effects”. The concept of cumulative effect arising over time is one of a gradual built up of consequences. The concept of combination with other effects is one of effect A combining with effects B and C to create an overall composite effect D. All of these are effects which are going to happen as a result of the activity which is under consideration …
… That concept [cumulative effect] is confined to the effect of the activity itself on the environment.
[36]The Court referred to His Honour Judge Thompson where he said:5
[51]There is a passage in the Court of Appeal’s judgment in
Dye v Auckland Regional Council [2001] NZRMA 513 which, taken literally,
4 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [38] – [39].
5 Outstanding Landscape Protection Society Incorporated v Hastings District Council [2008] NZRMA 8 (EnvC).
appears to hold that cumulative effect can only be one that arises from the proposed activity: … All of these are effects which are going to happen as a result of the activity which is under consideration. [para [38]]. The consequence of that would be that only adverse effects emanating from the proposal itself could be brought to account. There could be no cumulative effects [properly so called] created by combining existing or permitted effects with effects arising from the proposal. In turn, that would mean that so long as the adverse effects of the proposed activity are not of themselves more than minor a consent authority could never say … This site has reached saturation point; it can take no more.
[52] That interpretation would, we think, be contrary to the plain meaning of effects in s 3 and contrary to the purpose of the Act, as set out in s 5 – the sustainable management of natural and physical resources. If a consent authority could never refuse consent on the basis that the current proposal is
…the straw that will break the camel’s back, sustainable management is immediately imperilled. It is to be remembered that all else in the Act is subservient to, and a means to, that overarching purpose.
[53] Logically, it is an unavoidable conclusion that what must be considered is the impact of any adverse effects of the proposal on …the environment. That environment is to be taken as it exists or, following Hawthorn, as it can be expected to be, with whatever strengths or frailties it may already have, which make it more, or less, able to absorb the effects of the proposal without a breach of the environment bottom line – the principle of sustainable management.
Preliminary legal issues
[37] The Court explained its decision-making steps and, given the legal challenge on this appeal to the sequence of consideration by the Court, this explanation is set out in full:
[24] The key decision-making steps under ss 104, 104B and 104D were outlined in Blueskin Energy Limited as follows:6
Key decision-making steps under ss 104, 104B and 104D
[26] The High Court decision of R J Davidson is binding on us and in response our approach to decision making on this appeal follows:
(a)decide whether the proposal passes one or both of the threshold tests in s 104D;
(b)if it passes, consider the application and submissions, subject to Part 2, having regard to s 104(1):
•the actual and potential effects of the activity on the environment;
6 Blueskin Energy Limited v Dunedin City Council [2017] NZ EnvC 150.
•any relevant plan; and
•any other relevant consideration
(c)decide the weight that should be given to the matters in subsections 104(1)(a), (b) and (c); and
(d)having regard to effects in the context of properly weighted objectives and policies under s 104(1) and any other relevant consideration, arrive at a judgment whether the proposal promotes the sustainable management of natural and physical resources and decide to grant or decline consent accordingly (s 104B).
[27] We have kept separate the decision-making process under ss 104 and 104D. While the content of the sections are similar, quite different considerations apply.
[28] We do not suggest this approach should be applied as a formula to decision making; the facts of the case may lend itself to a different structure. Other provisions of the Act may apply and will also need to be taken into account.
“Subject to Part 2”
[29] It appears, following the High Court decision of R J Davidson, that s 104(1) provides for the consideration of Part 2 in a particular way. The consent authority may have recourse to Part 2 when considering the application and submissions under s 104(1); but not afterwards as a separate exercise as per the “overall judgment approach”. We suggest [an] inherent risk under the overall judgment approach is that the decision-maker may take into account an irrelevant matter – or more likely fail to take into account a relevant matter – including in particular the weighted findings under s 104(1)(a), (b) and (c).
[30] The circumstances where there may be recourse to Part 2 is where there is invalidity, incomplete coverage or uncertainty of meaning within the planning instruments. There is no need for recourse under Part 2 directly where that policy direction is provided in the higher order instruments; following Southland Fish & Game New Zealand v Southland District Council & Ors and Infinity Investment Group Holdings Ltd v Canterbury Regional Council.
[31] The exercise of any decision-making discretion is to be undertaken in a principled manner and for the purpose the discretion was conferred. Unless the context clearly indicates otherwise, under the RMA this will be for the purpose of promoting the sustainable management of natural and physical resources; per Southland Fish & Game New Zealand v Southland District Council & Ors.
[32] Assuming the application for a non-complying activity passes one of the threshold tests under s 104D, the decision whether or not to grant consent is made under s 104B, taking into consideration the
matters in s 104(1)(a), (b) and (c). Like s 104(1), s 104B does not draw any distinction between an application for a discretionary activity and an application for a non-complying activity. The decision whether to exercise discretion and grant (or refuse) consent necessarily entails a judgment that is informed having regard to the matters under s 104.
The weighting exercise
[33] The weighting of findings is critical to the determination of this appeal. The High Court in Stirling v Christchurch City Council made the following observation regarding weighting of findings under s 104(1):
… s 104(1) adopts an open-ended approach to the weight that is to be attached to the relevant matters. All that is required is that the decision-maker “shall have regard” to each of them. There is no statutory threshold or requirement for the provisions of a plan that are relevant to be approached in a particular way.
[34] Stirling v Christchurch City Council precedes the High Court decision of R J Davidson and the interpretation of “have regard to” in s 104 is now more nuanced. The direction “must, subject to Part 2, have regard to” includes having regard to any indication of the weight given to the relevant consideration in the planning instrument. Where there is no coverage of the relevant effect under any plan or policy statement then Part 2 may provide guidance on the weight. We consider this approach is consistent with Stirling where the High Court held an effect may be proven but receives little weight if that is justified by policy considerations.
Weight given to facts and effects and any other considerations
[35] We will determine the facts, including making predictions about the future effects of the proposal. How much weight is given to this evidence depends on a variety of factors including any policy direction on the fact or effect in issue and the materiality of them to the determination of the case.
…
[37] Occasionally there may be conflict between different provisions within a plan or as between different policy statements or plans – but before the court will come to this conclusion there must be a “thoroughgoing attempt to find a way to reconcile them”; per King Salmon at [131]. [footnotes omitted]
[38] The Environment Court did not consider higher order planning instruments because the District Plan has given effect to them.
Christchurch District Plan
[39] The Court described best practice when interpreting and applying planning instruments, recognising that District Plans may contain different but overlapping ways to achieve stated Objectives. Objectives and Policies inform, build upon, and sometimes constrain one other, so best practice begins with an understanding of the whole planning context. The purpose of an overview is to understand the relationship between different provisions of the District Plan, and whether they align with and support each other to achieve the integrated management of natural and physical resources.
Strategic Directions of the District Plan
[40] The Court addressed the Strategic Directions for Christchurch, in Chapter Three of the District Plan, which provide the context for other chapters to articulate how Decisions about resource use and values are to be made, and outcomes intended for the Christchurch District. Chapter three has primacy over other Objectives and Policies, which must be expressed and achieved to be consistent with its direction.
[41] Strategic Directions are given effect to by the Objectives and Policies, which are to be interpreted accordingly. There are 17 Objectives, two of which have overarching application. One of these is Objective 3.3.1 which provides for the expedited recovery and future enhancement of Christchurch as a dynamic, prosperous and internationally competitive city, in a manner that:
a.…
i.Meets the community’s immediate and longer term needs for housing, economic development, community facilities, infrastructure, transport, and social and cultural wellbeing; and
ii.Fosters investment certainty; and
iii.Sustains the important qualifies and values of the natural environment.
[42] The Court set out other Objectives which give strategic direction to Christchurch.
Objective 3.2.5(a)
The critical importance of business and economic prosperity to Christchurch’s recovery and to community wellbeing and resilience is recognised and a range of opportunities for business activities to establish and prosper.
Objective 3.3.14
(a) the location of activities is controlled, primarily by zoning, to minimise conflicts between incompatible activities; and
(b) conflicts between incompatible activities are avoided where there may be significant adverse effects on the health; safety and amenity of people and communities.
Objective 3.3.16
(a)a range of opportunities is enabled in the rural environment, primarily for rural productive activities, and also for other activities which use the rural resource efficiently and contribute positively to the economy.
(b)the contribution of rural land to maintaining the values of the natural and cultural environment, including Ngai Tahu values, is recognised.
[43] The Court said that Objective 3.3.15 is relevant only in a peripheral way, but it became rather more than that on this appeal. It recognises a temporary transitional period of activity after the earthquakes and this HGL consent would be in force during that transition and beyond, up to 30 years.
3.3.15 Objective - Temporary recovery activities
a.Temporary construction and related activities (including infrastructure recovery), and temporarily displaced activities, as a consequence of the Canterbury earthquakes are enabled by:
i.Permitting a range of temporary construction and related activities and housing, accommodation, business, services and community facilities, recognising the temporary and localised nature of such activities, and the need to manage any significant adverse effects; and
ii.Providing an additional transitional period for consideration of temporary construction and related activities and temporarily displaced activities, taking into account:
A.the need for the activity to remain for a longer period; and
B.the effects on the surrounding community and environment; and
C.any implications for the recovery of those areas of the district where the activity is anticipated to be located; and
iii.Accommodating the adverse effects associated with the recovery of transport and infrastructure networks recognising:
A.the temporary and localised nature of the effects of these activities; and
B.the long-term benefits to community wellbeing; and
C.the need to manage and reduce adverse effects; and
iv.Recognising the importance of aggregate extraction, associated processing (including concrete manufacturing) and transportation of extracted and processed product to support recovery.
[44] The seven Rural Zones in the District Plan have a common single Objective, and a common set of Policies, bar two (Rural Banks Peninsula and the location and management of quarrying activity and aggregates-processing activity). The Court said outcomes for Rural Zones are not clearly stated as Chapter Three directs, and the Rules, not the Objectives and Policies, have been used to drive the outcomes. That led the Court to say:7
This begs the question as to what are the sustainable management outcomes for any given zone when a proposal is not permitted under the relevant zone?
[45]The Court recognised this Objective for all Rural Zones:
Objective 17.2.1.1 – The rural environment:
Subdivision, use and development of rural land that:
i. Supports, maintains and, where appropriate, enhances the function, character and amenity of the rural environment, and in particular, the potential contribution of rural productive activities to the economy and wellbeing of the district; …
[46] The Objective is to be achieved through 13 Policies, and related Policies dealing with noise and traffic. The Court identified the relevant Policy suite as follows:8
7 At [35].
8 At [37].
(a)overall outcomes for activities on rural land (Policies 17.2.2.1 and 17.2.2.2);
(b)fact finding (Policy 17.2.2.3); and
(c)attainment of specific outcomes identified (Policies 17.2.2.4, 17.2.2.10, 17.2.2.12 and 17.2.2.13).
[47] A range of activities on rural land is enabled. Rural productive activity includes quarrying, but the Court said that this “…is not, however, an open-ended arrangement to establish these activities in the rural zones.”9
[48] Adverse effects on rural character and amenity values are to be avoided, remedied or mitigated under Policy 17.2.2.2, which is to be interpreted in light of the overarching Objective for the rural environment and the Strategic Directions. This passage of the Decision is instructive:10
If the adverse effects are not avoided or remedied (we suggest preferably in the first instance), the Policy is tolerant of activities with adverse effects where the activity, circumscribed by any conditions mitigating effects, supports and maintains the function, character and amenity values of the rural environment.
[49] The Court treated amenity values as those of people and communities, consistent with Strategic Objective 3.3.14, which with supporting Policies is concerned with localised effects on neighbouring land owners and the wider effect on the community. The District Plan recognises the “obvious but important point” that rural character and amenity values vary across the district given different combinations of natural and physical resources, and that variation is to be recognised under Policy 17.2.2.3(a).
[50]Two important paragraphs for this judgment are as follows:
[41] Whether the proposal does support and maintain the function, character and amenity of the rural environment (objective 17.2.1.1) depends on the combination of natural and physical resources present. On the one hand, decision-makers are to recognise the elements which characterise an
9 At [28].
10 At [38]
area as rural, from which desired amenity is derived, include the predominance of:
b.…
i.a landscape dominated by openness and vegetation;
ii.the significant visual separation between residential buildings on neighbouring properties;
iii.where appropriate, buildings integrated into a predominantly natural setting; and
iv.natural character elements of waterways, water bodies, indigenous vegetation and natural landforms, including the coastal environment where relevant.
[42] On the other, decision-makers are to recognise rural productive activities produce noticeable noise, odour, dust and traffic consistent with a rural working environment; quarrying is one of these activities that is specifically mentioned.
[51] The Court went on to say that the same Policies are concerned not only with more pleasant aspects of the countryside and country life, but with the reality that rural productive activities may generate adverse effects, which, while less pleasant, are consistent with a rural working environment under Policy 17.2.2.3(b) and (c), and both are to be recognised. The Court put it this way:11
A key issue in this proceeding is whether the adverse effects of the proposed quarry, either considered by itself or together with the other quarries in the locality, are consistent with this particular rural working environment.
[52] Quarrying is defined as a rural productive activity, but that does not mean it is necessarily appropriate at this location. Policy 17.2.2.4(a)(ii) provides that the decision-maker must ensure that the nature, scale and intensity of use and development recognise different natural and physical resources, and the character and amenity values of rural land and other rural productive activities. The Court considered the Policy to be strangely worded, but at heart, it relates to the interaction between proposed rural productive activities and the receiving environment, which means the enquiry is whether the activity will support, maintain and, where appropriate, enhance the function and amenity of the rural environment. Here, that means the existing
11 At [44].
character and amenity experienced and enjoyed by the JAG residents and the wider community.
[53] The Court noted that incompatible activities are to be adequately separated from new quarrying under Policy 17.2.2.10(b), and such activities include the habitation in dwellings along Conservators and Savills Roads. The adequacy of such separation is for the decision-maker.
[54] The Court said that access to, and the processing of, aggregate is important for the recovery and development of the District, but subject to constraints on new quarrying where it is outside the Rural Quarry Zone. Such new quarries may only be established in certain circumstances under Policy 17.2.2.12(a)(ii). The attainment of these outcomes is a major determinator of the Objective for the rural environment and a new quarry is provided for only where the activity relevantly:
(a)Avoids areas of outstanding or significant landscape, ecological, cultural or historic heritage values;
(b)Avoids or mitigates effects on activities sensitive to quarrying activities;
(c)Internalises adverse environmental effects as far as practicable using industry best practice and management plans, including monitoring and self-reporting;
(d)Manages noise, vibration, access and lighting to maintain local rural amenity values;
(e)Avoids or mitigates any effects on surface water bodies and their margins; and
(f)Ensures the siting and scale of buildings and visual screening maintains local rural amenity values and character.
[55] While not determinative in itself, the Court said that under Policy 17.2.2.13 all new proposals for quarrying activities must have a site rehabilitation plan and a final rehabilitated landform must be appropriate, relative to the end use.
Noise
[56] The Court said the Objective for the rural environment is attained in part through managing adverse effects of noise. The broad objective was recognised to be that the adverse noise effects on amenity values and the health of people in communities are managed to levels consistent with the anticipated outcomes for the receiving environment. That is achieved by limitation on sound levels and location and duration of noisy activities under Objective 6.1.2.1 and Policy 6.1.2.1.1. The quarry will not operate at night.
Traffic
[57] The Objective for an integrated transport system requires that it be safe and efficient for all transport modes and that it support the safety, health and liveability of communities by maximising the integration of land use. This is a high traffic generating activity so the Policy requires such activities to manage their adverse effects on the transport system in their location and design so as not to compromise the safe, efficient and effective transport system. Policy 7.2.1.2 applies. The transportation needs of people and freight are to be enabled at the same time as managing adverse effects from the transport system under Objective 7.2.2.
[58] The Court referred to the importance of Policy 7.2.2.3, “Effect on adjacent land user to the Transport Zone”. The Policy directs the management of adverse effects within the Transport Zone, so that the effects are consistent with the amenity values and activity of adjacent land users, whilst providing for the transport network, in particular the strategic transport network, to function efficiently and safely.
Threshold of effects
[59] The Court referred to the Council’s submission that the Strategic Directions establish a threshold of effects on rural character and amenity to be avoided, at the
level of significant adverse effect. The implementation of Objectives and Policies is not concerned only to avoid significant adverse effects, although counsel for the Council referred to Objective 3.3.14 and the Strategic Direction to avoid conflict between incompatible activities where there may be significant adverse effects on the health, safety and amenity of people and communities. This interpretation was not put to the planning witnesses. The Court said that Objective 3.3.14 refers to avoidance which means “not allowing” or “preventing the occurrence of”, and the Objectives and Policies are to be interpreted and implemented to achieve that Strategic Direction. Conflicts between incompatible activities are to be avoided where there may be significant adverse effects on the health, safety and amenity of people and communities. The Court said the Council’s interpretation raises the issue whether Objectives and Policies are to be interpreted and implemented in a way that is permissive of adverse effects which are “not significant adverse effects”. The Court’s short answer to this very important question was “That depends on what the District Plan says”.
[60] Objective 3.3.16 provides another and overlapping direction to recognise the contribution of rural land to maintaining the values of the natural and cultural environment, including Ngai Tahu values, and it overlaps with Objective 3.3.14. Putting these together, the Court said:12
Both directions are to achieve the overarching objective that, inter alia, Christchurch “sustains the important qualities and values of the natural environment.” (Objective 3.3.1)
[61] The inter-relationship of Objectives must be recognised and the Court referred to Gendall J’s observation that:13
… depending on the circumstances [there may be] more than one objective having different, and overlapping, ways of achieving sustainable management of natural and physical resources (the purpose of the Act). But objectives cannot be looked at in isolation, because “the extent” of each may depend upon inter relationships.
12 At [62].
13 Rational Transport Society Inc v New Zealand Transport Agency [2012] NZRMA 298 (HC) at [46].
[62] The Court said that Objective 17.2.1.1 for the rural environment enables development of rural land, but decision-makers must bring to account Policy 17.2.2.2 to ensure activities avoid significant adverse effects on an area of important natural resources, and avoid, remedy, or mitigate other adverse effects on rural character and amenity values. The Court then said, again important to this judgment:
[67] The City Council does not address these key policies and in particular, the distinction made between “significant adverse effects” and “other effects” in policy 17.2.2.2. Under the City Council’s interpretation “other effects” means “all other significant adverse effects”. The City Council does not address these distinctions and whether they are material to the interpretation and implementation of the District Plan.
[68] If an activity gives rise to an adverse effect which, as proposed to be mitigated, does not support and maintain the function, character and amenity values of the rural environment (objective 17.2.1.1) are these effects to be enabled through the granting of consent? Under the City Council’s interpretation, the answer to this is “yes”.
[69] The better interpretation, and the one that fits with the strategic directions as a whole (including, in particular, objectives 3.3.1, 3.3.14 and 3.3.16), and the implementing objectives and policies, is that, regardless of scale, decision-makers are to avoid “significant adverse effects” on health, safety and amenity of people and communities (objective 3.3.14) and for all “other adverse effects”, evaluate the activity in light of the intended outcomes for the rural environment. Where an effect cannot be avoided or remedied in the first instance, then the enquiry is whether the activity as proposed to be mitigated will support and maintain the function, character and amenity values of the rural environment. If not, the activity will not achieve the relevant objective of the District Plan. (emphasis added)
The receiving environment
[63] The area under consideration is that around the intersection of Conservators, Savills, and Guys Roads, approximately 2.4 kms north of Yaldhurst Village, on Christchurch’s north-western periphery. The Court said the rural character derives from natural and physical resources, and includes the existing and future environment. The future environment includes activities permitted under the District Plan or under resource consents granted, and those which it seems likely will be implemented.
Landform and soil
[64] The landform is predominantly flat with subtle variations including terraces along the southern boundary of the subject site, and to the south and north suppressed linear undulations formed by the Waimakariri River braids and 2-3m high bunds
around the boundaries of existing quarries provide visual screening. The Court accepted that soils underlying at least some of the JAG properties are likely to be Waimakariri loam.
Vegetation
[65] The vegetation is, in the main, pasture. North of the HGL site is a ready lawn cultivation business, and there are exotic shelterbelts and plantations for timber production. On the southern boundary is the area owned by the Regional Council with dryland plains native vegetation, a Significant Landscape Area under the District Plan. There is also land between the end of Conservators Road and quarries on McLeans Island Road, the McLeans Grassland Park.
Views
[66] From public roads, there is a range of views, including dwellings and structures accessory to farming. There are long views to the foothills to the west. Short distance views are interrupted by shelterbelts, although generally only on one side of the road. Road entrances provide relatively uninterrupted views. Emerging features in the area are elements of non-farming rural productive activities, including buildings, signage, secure fences, gates and engineered accesses, bunds and screen planting.
Existing land uses
[67] The JAG residents own or occupy small holdings in a “pocket” which fronts Savills and Conservators Roads, north of Yaldhurst Village, with access via Guys Road. The Village has a school with other amenities used by the residents, and there are 11 households on Conservators Road. The potential for additional dwellings is limited by the subdivision pattern and minimum site areas permitted. In the main, the residents’ sites are less than the 20 hectares for a permitted activity, and used for a mix of rural productive activities, mainly pastoral.
Local road network and environment
[68] The local road network and environment was described in evidence by a Joint Witness Statement which said (emphasis added):
…
(c)Savills, Conservators and Guys Roads are classified as local roads whose function is “almost entirely for access purposes and [not] intended to act as through routes for motor vehicles”; and
(d)the daily traffic volumes carried by Conservators, Guys and Savills Roads are reportedly “very low such that the traffic environment can be considered to be very ‘quiet’. The traffic engineers agreed that because afternoon peaks exceed those in the morning, the former should be used for assessment purposes.
[69] The SOL and Frews consent conditions reflect in the receiving environment, and allow SOL 300 Heavy Goods Vehicle (“HGV”) movements per day off Guys Road and 30 Light Vehicles (“LV”) movements off Conservators Road. Frews is allowed 328 HGV movements off Guys Rd, and 84 LV movements off Savills Road. The junction of Pound and Savills Roads is critical for HGL road network effects. The SOL and Frew consents have road upgrading conditions. The Environment Court visited the site and saw that the local roads generally have wide mown grass verges either side of the carriageway. The JAG residents told the Court they value the roads as part of the environment, for cycling, horse riding, running and walking safely, including with dogs, with a high level of amenity, “at least until recently”. The JAG residents’ behavioural response has changed, given their concerns for their own safety.
Noise environment
[70] There was expert evidence that this locality is no longer a secluded rural area and amenity is already affected by ambient noise generated by traffic on local roads, some industrial noise, and airport operations. HGL provided the Court with information from Marshall Day Acoustics of noise surveys in the area, over several years, which include data for the subject site, at or near 70 Conservators Road and 15 Savills Road. At 0100 hours, the ambient noise level would generally be around 41 dB LAeq without aircraft noise. The daytime ambient level will typically be between 45 and 50 dB LAeq.
[71] Mr Camp gave expert acoustic evidence for HGL, and the residents gave their lay evidence of existing noise levels of the SOL quarry traffic’s use of Savills Road. They said that between 7:00am - 9:00am and 4:00pm - 6:00pm the sound from “Every
heavy truck [that] ‘hurtles by [is said to be] loud, intrusive and [to] vibrate [her] home like a mini earthquake’”.
[72]The Court referred to expert evidence from Dr Taylor:
[95] In Dr Taylor’s social assessment he had explored with residents their concerns about the potential change to their existing amenity, if consent were granted. His evidence, supported by the direct evidence inquiry, showed the residents to be concerned about an environment in which they need to shut windows during the day; face restrictions on outdoor activities; and experience disturbed sleep, particularly on Saturdays. Noise received in frequent, short, intensive “bursts” – such as the banging and clanking of machinery and acceleration/deceleration of vehicles – was viewed as an especially adverse element.
Dust environment
[73] The receiving environment is already impacted from dust sources, farm and forestry activities, the Waimakariri River bed, the possibility of dust from the SOL and Frew Quarries, and other quarry and cleanfill operations further afield. Elevated dust levels can be expected, especially in summer. The JAG residents gave evidence that the haul roads are the biggest source of quarry dust and there was evidence of dust intrusion which had effected the health of one resident. The Court said, “for her, the most frustrating part, has been the ‘the denial of experts and operators that [dust] would be a problem’”.14
[74]The Court referred to Dr Taylor’s inquiry as follows:
[105] Dr Taylor’s social assessment inquiry showed that residents understand rural Canterbury can be dusty at times, but they experience multiple adverse effects in the local environment associated with quarrying, crushing, vehicle movements and dirt piles, including poorly vegetated bunds, (primary elements of concern being dust on roads and dust entering houses, resulting in negative ambience, additional cleaning and health effects). In this regard Dr Taylor’s evidence very largely traversed similar aspects of the environment to those described by individual witnesses for the appellants, but included specific examples like:
(a)driving to school and back (past Grants Brothers site on Savills Rd) and the car being covered in dust in one trip;
(b)cars having to be washed every 2-3 days with dust present on the driveway and clothes;
14 At [103].
(c)dust on house exteriors causing increased washing;
(d)dust causing people to close windows even on hot days; and
(d) dust noticed on an outdoor swimming pool. [footnotes omitted]
Benefits of proposed quarry
[75] The Commissioners’ Decision did not refer to positive effects in an evaluative way, but the Court recognised the evidence of a large predicted shortfall of aggregate based on that currently available, and 2041 demand forecasts. The proposed quarry will assist with the rebuild of Christchurch, and contribute to other large projects around the city. This site is said to be marginal for other commercial purposes, given its size, but viable as a quarry project. The aggregate is of good quality, clean, and easy to work with. The proposed quarry would provide about eight per cent of the anticipated shortfall in aggregate supply to 2041, a positive benefit to be considered alongside actual or potential adverse effects. The Court recognised other supply options could be available. It considered this site to be relatively small and overall the benefits of the proposal were given no more than moderate weight.
Rural amenity and character
[76]The Court said:
[115] “Amenity values” are those natural and physical qualities and characteristics of an area that contribute to peoples’ appreciation of its pleasantness, aesthetic coherence, cultural and recreational attributes.15
[77] The Court said visual amenity is important, as is the effect on amenity of any change in background levels of noise, dust, vibration and increase in volume of HGV movements. Change per se does not constitute an adverse effect on rural character or amenity. To test the scale and intensity of effects and change, the baseline environment must be established.
[78]The Court set out its approach to assessing the ‘values’ evidence as follows:
15 Resource Management Act 1991, s 2.
[117] With that in mind, our approach when assessing “values” evidence, is to:
(a)identify the values of people and communities. Based on the topics above this will include the attributes and characteristics of the existing landscape, soundscape and air quality that are valued by them. [We expect the experts will explain how they ascertained the values of people and communities];
(b)ascertain whether the District Plan identifies any valued attributes or characteristics for the relevant zone, landscape or more broadly the receiving environment. These elements may also be identified from other documentation such as a Conservation Management Strategy;
(c)determine whether the amenity values are reasonably held. In that regard we expect the experts to objectively test the basis of the values that are derived from the environment. This is necessary because the residents’ views on their existing amenity is subjective and influenced by personal feelings or opinions, including the strength of their attachment to this place; (emphasis added)
(d)assess whether the proposal gives rise to adverse effect on the relevant attribute or characteristic;
(e)if it does, then to consider whether, in this case, rural character is maintained and second, whether there are any consequential effects on the existing amenity values; and
(f)finally, to assess those effects in light of the outcomes for the relevant resources and values under the District Plans.
[79] The Commissioners concluded that all amenity related effects, including those generated by bunds and shelterbelts, could be avoided or mitigated to the point of being minor or less than minor, so they were satisfied the application was consistent with the general Rural Objectives and Policies. The Court evaluated the residents’ amenity values. When they purchased their properties some 10-15 years ago, the predominant land uses were pastoral and horticultural, dissected by fences and hedges, with stop banks close to the river. There was a sense of open space and the rural outlook was valued. Traffic levels were lower but from time to time there was noise and dust from farming activities and the Airport, although the land was not under flightpaths. Conservators Road is not a through road and traffic is mainly local.
[80] The existing environment encompasses that as it may be modified by the effects of consented activities including consents not yet fully expressed. The residents described the character of the area having changed since the Canterbury earthquakes, and the recent expansion of quarrying, over the last three to four years.
[81] Expert opinion is that the effects on residents will be minor, but the residents disagree and are concerned about the rural character of the area, and adverse effects on the amenity they have enjoyed, and that the effects will intensify if consent is confirmed. The Court did not know whether all the changes described by them are a consequence solely of quarry activities, but it found the residents to be clear in their evidence that the effects of quarry operations on them are adverse, and the quarry associated activities mean they are no longer able to occupy and use their environment as they once used to do.
The District Plan
[82] The particular character of the area is not described in the District Plan. The Court made a comprehensive assessment of the existing landscape based on the evidence of landscape experts. It was not aware if the experts made any inquiries of the residents or the community generally as to the qualities and characteristics that contribute to their appreciation of the area. The proposed quarry site is pastoral and its level of naturalness moderate, but that would reduce to moderately low during quarry operations. Even after rehabilitation there would be a large depression evident in the landform.
[83] Temporary bunds would look artificial but not anomalous, far enough away from existing dwellings so as not to dominate, but there would be views into the site off Conservators Road, and of trucks coming and going. Expert witness Mr Craig’s evidence was that there is no difference in the rural character of a Quarry Zone and a Rural Zone, because under the District Plan quarrying can occur in both, and in Rural Zones a quarry is a “productive” activity. There are many quarries in the area which make up the existing environment, so he said there should be no ‘surprise’ to residents if this quarry is established. He thought the factors which contribute to landscape character would remain unchanged.
[84] Ms Smetham, a landscape architect, accepted that as with other rural productive activities, noise, odour, dust and traffic would be noticeable to residents, but these elements are well established already. She said the ‘openness’ will remain, commensurate with rural character, with visual screening.
[85] Ms Smetham asked whether the addition of this quarry passed the threshold test of acceptable effects on rural character and visual amenity, but she did not, in the Court’s view, address where the threshold lies. The ‘environment’ should not be limited by Policy 17.2.2.3, which as a fact-finding provision does not say anything about the stated outcomes for the area. The sustainable management outcomes are described in Policies 17.2.2.1 and 17.2.2.2.
[86] The Court thought Ms Smetham had a narrow brief and did not inquire into amenity values of the residents to allow her to reach a conclusion where the threshold of acceptable effects lies. Both her evidence and that of Ms Dray, who did not have the opportunity to provide a full brief of evidence, was treated cautiously.
[87] Ms Dray, a senior landscape architect with the Court, was called by the residents. She distinguished landscape and visual effects, the former reflecting change, and the latter seen from various vantage points. Her view was that the capacity of the landscape to absorb change is tested by this proposal, and that the legibility of the landscape may be affected to a degree that may well not be reversible if there is not enough cleanfill to restore the site. If so, the cumulative effect on landscape character and visual amenity would be more than minor, given the views of other quarries.
[88] The Court said Mr Craig’s evidence that the generic rural character of the area as he understood it would not change overlooked the fact that quarries within the Rural Zone are discretionary activities and the application is for an activity otherwise non-complying. The Court identified errors in the interpretation that Objective
17.2.1.1 and Policies are implemented solely through building density and subdivision Rules. The Court thus found errors in the way the expert evidence had been approached, and found that the rural character of the area still depends on pastoral farming, shelterbelts and hedgerows, and more recently bunding, and that there is still a degree of open spaciousness which residents value. Such errors in the landscape assessment proved inimical to assessment of the cumulative effect of use and development of up to 300 ha for quarrying. The scale and intensity of quarrying activity had not been recognised, nor the resulting effect on amenity of residents. Bunding will foreclose the view to a degree and reinforce the perception that quarrying
is becoming a predominant activity and the Court said this will shift the rural character of the area towards one underpinned by quarrying and not pastoral activity. The change in rural character will otherwise have a moderate adverse effect on the visual amenity west of Conservators Road, adjacent to the site along the road. The bunding would become the visually dominant element, but there would also be views of the vehicles entering and leaving the site which would have a moderate adverse effect on the existing amenity of the residents.
[89]Of importance to this judgment, the Court said:
[149] We did not find it helpful to consider the rural character of this area differentiating between a generic character (based on built form) and a specific character (land use and landcover). We doubt attributes and characteristics of any given landscape should be compartmentalised in this way as these elements interact and inform the whole of the landscape. Further, we could not find support for this approach under the District Plan.
…
Findings
[152] Ordinarily we would expect the quality of the landscape – including one modified by farming activity – to contribute to peoples’ appreciation of its pleasantness or aesthetic coherence. This is so even though rural productive activities can have effects which, in other contexts, may be considered adverse.
[153] The rural character of this area depends on pastoral farming, and on the shelterbelts and hedgerows which crosshatch the landscape resulting in a haphazard pattern of lines. As Ms Smetham says, this has created a series of open and closed views. The view towards this pastoral landscape is an amenity that is valued by the residents. While the views are broken by shelterbelts, hedgerows and, more recently, by bunds the landscape’s particular rural character nevertheless retains a degree of open spaciousness which residents also value.
Visual effect and effect on visual amenity
[154] The visual effect of the proposed quarry (being the change in the composition of the view) is sensitive to the location of the viewer. We have considered the scale and magnitude of the proposal’s visual effects by itself; cumulatively with other quarries in the area and together with the existing shelterbelt on the eastern side of Conservators Rd.
[155] Bearing in mind that the purpose of the bund is to exclude views into the quarry, the bund and shelterbelt will reduce the visual amenity that derives from the contribution this site makes to the pastoral landscape. There are extensive views afforded of the landscape along Conservators Rd and Guys Rd although towards the intersection these views are interrupted by an internal shelterbelt. The foreclosing of the view will reduce the openness of
the landscape and reinforce the perception that quarrying is or is becoming a predominant activity. This will shift rural character of the area towards one that is underpinned by quarrying, not pastoral, activity.
[156] This change in rural character will have a moderate adverse effect on the visual amenity west of Conservators Rd. The bunds will reduce the present-day visual amenity afforded by the open pastoral character of the generally expensive views of the landscape. This will be so from Guys Rd looking towards the north and from Conservators Rd across the site.
Rehabilitation
[90] There was no Quarry Rehabilitation Plan before the Court, although HGL’s stated intent is to restore the land after quarrying ceases. The Court said the Commissioners gave the prospect of a shallow basin from a partially restored site scant consideration. The end use was not developed in evidence, and is addressed under Question Four.
Cumulative effect of quarrying
[91] Again, and of importance to this judgment, the Court said it had insufficient evidence to conclude that the cumulative visual effect of quarries has changed the rural character of this locality as a whole. The Court otherwise agreed that quarrying is now the predominant rural productive activity in the locality, gradually enclosing the rural land behind bunds. The Court’s conclusion was that the proposal would have an adverse effect on visual amenity which would reduce the visual permeability of the landscape and the attribute of open “spaciousness” valued by residents and anticipated under the District Plan. It said the bunds and shelterbelts would look like the site of a quarry. The cumulative visual effect of bunding and shelterbelts, in the context of other quarries, means there will be an adverse effect on landscape and visual amenity and these effects too may have reached a tipping point.
[92] Also important to this judgment, the Court said the landscape evidence was so limited that it reached no settled view on the cumulative effect of the proposal and the capacity of the landscape to accommodate further change without altering or compromising its existing character and the values which attach to the same. It concluded, with emphasis added for this judgment:
[164] On the final issue we have insufficient evidence to make a finding on the effect on landform of this proposal considered by itself or together with other quarrying activities in the area that have ceased. This depends on the intended end use of the neighbouring quarrying activities and whether, as in this case, what is proposed is to partially fill in the pit and oversow the top soil with grass.
Noise
[93] Noise was assessed against that from the quarry, traffic associated with the quarry, and cumulatively with other noise sources. The JAG residents described their concerns about noise, including the effect on wildlife being driven off, being unable to sleep beyond 7:30am on a weekday, loud and intrusive noise from heavy trucks, the noise from crushers and the loading of trucks (that from a crusher was likened to a jar full of marbles being shaken), and braking and accelerating trucks as they go through the Guys Road/Savills Road intersection. There was evidence of residents changing bedrooms given the noise from the road and some people it was said had left the area because of quarrying. Their concern is that noise effects will intensify as Frews and SOL quarries become fully operational.
[94] Two noise experts were called, Mr Camp for HGL and Dr Trevathan for the Council.
[95] The daytime noise Standard under the then Operative City Plan is occasionally exceeded by 3 dB in the vicinity of the Savills and Conservators Roads residences. The Commissioners found this to be “no more than minor” and therefore acceptable. The cumulative effect of noise from HGVs from the proposed quarry, and the SOL quarry was considered. The Commissioners were satisfied this would not exceed 50 dB, and that any adverse traffic effects would be minor, although it was not clear whether this was at the façade or the notional boundary of potentially affected dwellings.
[96] The Objective for the rural environment would be attained, in part, through managing the adverse effects of noise, and there is the broad Objective that adverse noise effects are managed to levels consistent with anticipated outcomes for the receiving environment. That means limits on sound levels and the location and duration of noisy activities. The quarry is a daytime operation only. The Objective for
an integrated traffic system under Policy 7.2.1 includes all transport modes being safe and efficient, and that they support safe, healthy and liveable communities by maximising integration with land use. This quarry would be a high traffic generating activity so the Objective is to be achieved by the Policy which requires management of adverse effects. It is also to provide patterns of development that optimise use of the existing transport system, and to mitigate other adverse transport effects such as those on communities and the amenity and surrounding environment under Policy 7.2.1.2. Described by the Court as important, Policy 7.2.2.3 reads:
Policy 7.2.2.3 – Effect on adjacent land uses to the Transport Zone
a.Manage the adverse effect(s) of an activity within the Transport zone so that the effects of the activity are consistent with the amenity values and activity of adjacent land uses, whilst providing for the transport network, in particular the strategic transport network to function efficiently and safely.
[97]The Court set out the noise issues raised by the appeal as follows:
(a)what is the existing noise environment?
(b)what levels of noise will be generated by HGL on-site operations?
(c)what is the additive noise from HGL quarry traffic?
(d)given the above, to what extent will HGL operations change the existing noise environment and what is the effect of any change on rural amenity?
Methodology
[98] The Court addressed the methodology adopted by the experts to address noise effects. Mr Camp said that predicted noise levels were based on a very conservative worst-case scenario, but the Court said there was no evidence initially provided to verify the predictions contained in the Marshall Day noise report. However, the Court said:
[175] We consider the methodology adopted in the report to be appropriate, and generally in accordance with the provisions of NZS 6802. We accept that
the predicted noise levels are likely to be conservative as actual numbers of heavy vehicle movements will be less than the numbers used in the predictions for the majority of the time. This, however, is only one consideration in terms of overall noise effect.
[99] The local noise environment is complex but “regrettably” the expert evidence did not allow the Court to easily understand the significance of the effect of change to the noise environment arising from the HGL quarry operations, and the effect of change was fundamental to its Decision and the focus of its evaluation.
[100] The experts did not always specify the measuring points used which the Court found “most unhelpful when evaluating their evidence.” The Court used the notional boundary of existing dwellings, not the facade. However, it understood there to be a concurrence between the District Plan and the noise experts that 50 dB at a notional dwelling’s boundary would be reasonable and not give rise to effects of concern, no more than minor adverse effects. Generally, the Court agreed, subject to consideration of the cumulative effects of different sources of noise.
[101] The Court discussed the present ‘ambient noise’ using the noise report definition:
[182] As is evident from the residents’ description of their receiving environment, the expert evidence and from our site visit, this rural area has multiple sources of noise. Apart from the quarries, other noise sources include non-quarry light and heavy vehicles on Conservators, Savills and guys Roads, distant industrial noise, distant traffic noise (primarily Pound Rd), light, jet and turboprop aircraft from the airport in the air and on the ground and helicopters.
[102] The Court heard expert and lay evidence, made a site visit, and recognised that the rural area has multiple sources of noise. The ambient noise levels in the Conservators Road/Savills Road area are close to, or exceed, the 50 dB level anticipated in the District Plan for significant periods during the day, without contribution from the proposed quarry. With traffic noise included, the existing ambient level could be 55 dB on Conservators Road, and at the southern boundary of 15-25 Savills Road, including SOL, likely to be at least 55 dB, possibly 58 dB – 63 dB, depending on which noise expert is correct.
[103]Noise from the on-site operation of HGL was found to be reasonable.
The additive noise from HGL Quarry traffic
[104] Traffic volumes will approximately double on Savills Road, and Mr Camp predicts a 3 dB increase there, and similar at 40 Conservators Road. The Court considered actual noise levels would likely be less as the number of HGV movements would be fewer than that predicted for most of the time, but the Court said that this “is only one consideration in terms of overall noise effect”. It found the local noise environment to be “complex” and while the experts were in general agreement, they appeared to differ on noise levels at the notional boundaries of 15 and 25 Savills Road. The Court preferred Mr Camp’s 3 dB increase generally.
The Second and Sixth Questions of Law - Summary
[289] For completeness, I refer to HGL’s breakdown of noise submissions already addressed. Counsel for HGL submit that there are six separate errors of law within Questions Two and Six, relating to the Court’s reasoning at paras [25] and
[208] - [212] of the Decision. The errors are submitted to compound to an overall picture which makes the Court’s findings on noise, and thus rural character and amenity, unsafe. The latter findings do not depend on, but are influenced by the noise findings.
First noise error (sixth error of law)
[290] This has been addressed, that a 3 dB change would be ‘noticeable’ by relying on “different experts” and the Court’s “own experience”, as not open to the Court on the evidence. Counsel for HGL say that Mr Pizzey has attempted to reconcile Dr Trevathan’s evidence, with which Mr Camp agreed, that a change of 5 dB is
noticeable, as the same thing as saying a change of 3 dB to 5 dB is noticeable. A 3 dB increase is equivalent to a doubling of the noise, and an increase from 500 trucks to 900 trucks results in 2.5 dB to 3 dB increase, as Mr Camp says. While I have found that the Court did not have any sufficient evidence on which it could reach a conclusion that a 3 dB increase in noise is noticeable, the notion of such an increase in truck numbers, whether at regular or broken intervals throughout a whole working day, with the characteristics of truck noise, including braking and acceleration, immediately identifies particular characteristics of the noise which are relevant effects. The error of law in the Decision lies only in the extension of the finding that a 5 dB change in noise level is noticeable to that at 3 dB.
Second noise error (second error of law)
[291] The Court at para [205], said that the applicable noise limit for the zone was 5 dB at the notional boundary of existing dwellings. Then at para [209] it said:
It is clear to us that future cumulative noise levels at the notional boundaries of some dwellings affected by HGL traffic noise will, at times, be in excess of the District Plan standard and could reach 55 dB at the dwelling facades based on the evidence of Dr Trevathan.
[292] A 50 dB expected amenity led to the conclusion that 55 dB was too high, but counsel for HGL submits the Rule is not the noise limit for the zone, but a permitted noise level for an individual activity in any Rural Zone and any residential zone outside the CBD without a cap on the number of properties or activities that can each reach a 50 dB level. The permitted noise levels combine to create a number higher than 50 dB, an outcome therefore expressly authorised by the permitted activity Rules in the District Plan. Other permitted activities add to this, some higher than 50 dB, including the airport and roads, which have no limit. Airport activity and roads are not at capacity and any number of new permitted activities, each creating 50 dB, could join the zone. So, the Court’s conclusion that District Plan Standards are being exceeded is not correct as a matter of interpretation or fact, as there is no District Plan Standard about the level of cumulative noise in the zone. The Court must have regard to the impact of the permitted activities, exercised to their maximum permitted level (and with all other effects which accumulate). The Court made an express finding that noise could reach 55 dB at the dwelling facades, based on the evidence of
Dr Trevathan, and HGL’s submission is that the Court wrongly used that in the context of a 50 dB expected amenity being permitted in the Rural Zone. Permitted noise levels will combine to a number higher than 50 dB.
[293] However, the Court was entitled to reason what it considers to be the point at which the noise at the notional boundary of existing dwellings would be impacted by the permitted activity. This is but one component of noise effects with which the Court was concerned, and it was entitled to reach judgment as to this. It had the evidence to do so, and there was no error in law in bringing to account the 50 dB expected amenity.
Third noise error (second error of law)
[294] Mr Pizzey’s submission is that the Court did not know the outcomes expected for the Rural Zones, but thought the Rules ‘pointed’ to these outcomes. While not accepting the Court reasoned in this way this, counsel for HGL say that approach is wrong in law because the District Plan must state Objectives and Policies, and the Rules are the method for implementing the Policies. The Objectives and Policies express outcomes, and Rules are not an expression of the outcome themselves. The Rule relating to traffic on roads is a complete noise exemption and HGL’s counsel submit the Plan writers intended roads to be completely unregulated, unlike other activities.
[295] The Court used the Rules, in what it found to be the absence of Objectives and Policies, to find its way to expected outcomes, in effect by implication. The submission that the Plan writers intended roads to be completely unregulated goes only so far. The Court’s Decision and this judgment are concerned with the effects of the proposal, one effect of which is that from traffic and whether permitted or not. There are effects, to be weighed for degree, and brought to account cumulatively with other effects. I consider the submission that the Court’s evaluation should not include the noise of traffic on roads, with a noise exemption, does not sit well with the fundamental purpose of the Act to achieve sustainable environmental outcomes. It is a technical and limited approach which constrains that fundamental task.
Fourth noise error (second error of law)
[296] If, HGL says, the Court was in principle entitled to take into account permitted activity Rules, it has taken into account an irrelevant factor as the Rules do not apply to roads. Alternatively, it has failed to take into account relevant factors such as other permitted activity Rules in Chapter Six. If the Court wants to take into account a Rule which is expressly not relevant to road traffic noise, counsel submit it needs to explain why the Rule is relevant, and why it was the only relevant Rule in Chapter Six. HGL says the Court failed to explain why overseas and New Zealand Standards set out by Dr Trevathan and Mr Camp were not relevant, or were disregarded. There is some merit in this submission where the expert evidence, including that of Standards, was not ‘explained away’ as irrelevant.
[297] However, the Court was entitled to bring to account its own conclusions with regard to whether the 55 dB noise level was appropriate in this case, having regard to cumulative effects. It was entitled to disregard elements of the expert evidence if it chose and it clearly did so, with the observation above. It is not, however, decisive for this judgment.
Fifth noise error (second error of law)
[298] HGL counsel submit the Court’s approach undermines the separate zoning of roads into a Transport Zone and their specific exemption from the Rules in Chapter Six. The notion that roads, including the State Highway, would have to meet a limit of 50 dB in the adjoining Rural Zone, or residential zone where it passes an individual dwelling, is submitted in error.
[299] The Court did not conclude that roads, including the State Highway, would have to meet a limit of 50 dB in the adjoining Rural Zone or residential where it passes an individual dwelling. The Court referred to the Transport Zone. That is at far as it went. It had to determine noise effects and that was at least a relevant consideration.
Sixth noise error (sixth error of law)
[300] Mr Pizzey says the noise experts gave evidence about the level of change only and did not assess effects on amenity, so the Court was entitled to use its own experience as to what would be a significant adverse effect. Counsel for HGL say that Mr Camp and Dr Trevathan gave evidence about effects, so when the Court said it was satisfied there were adverse effects “from the evidence”, there was no such evidence except that of the residents. That is relevant, and of weight as the Court decides. The Court in my view had ample evidence from which to derive and reach a conclusion about adverse effects on amenity as the review of its Decision in Part C to this judgment demonstrates.
Seventh Question of Law: Did the Court err in its elevation of the importance of “avoidance” over other approaches contemplated by the District Plan, which resulted in the incorrect interpretation of the Objectives and Policies?
Submissions for HGL
[301] This question is based on the Supreme Court judgment in King Salmon.47 The word “avoid” means “not allowing” or “prevent the occurrence of”, but that judgment was given in the context of the New Zealand Coastal Policy Statement (CPS) which contemplates only the avoidance of effects. Here, HGL correctly submits adverse effects may be avoided, remedied or mitigated, and says those words should be read conjunctively and of equal importance.48 Mr Chapman submits that “avoid” in this context should not mean “only avoid” and a ‘remedy’ or ‘mitigation’ are of “equal merit”. HGL submits the Court did not give equal weight and consideration to these factors and Mr Chapman refers to the judgment when it reads:49
If the effects are not avoided or remedied (we suggest preferably in the first instance), the policy is tolerant of activities with adverse effects where the activity, circumscribed by any conditions mitigating effects, supports and maintains the function, character and amenity of the rural environment.
47 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZCR 593.
48 Winstone Aggregates Ltd v Papakura District Council EnvC Auckland A049/2002, 26 February 2002 at [25].
49 At [38].
[302] Here, the Court expressly recognised a degree of tolerance of activities with adverse effects but Mr Chapman says the Court concluded that avoidance of effects was preferable to a remedy or mitigation (the Court referred to both avoidance and remedy as ‘preferences’), and should have recognised that where adverse effects are mitigated the District Plan will tolerate quarry activities. The law does not require priority to be given to avoidance, so “reasonable internalisation” means that if an effect cannot be avoided, then it must be remedied or mitigated through conditions of consent. In that sense “internalising” does not mean “internalise at all costs”.50 The heart of this alleged error is that the Court is submitted to have preferred ‘complete internalisation’, even though the District Plan accepts that conditions might remedy or mitigate effects, and this ‘error’ coloured all further consideration by the Court.
[303] It is then submitted that for the Court to take the view that Objective 17.2.1.1 and Policies 17.2.2.1 and 17.2.2.2 only tolerate activities for which adverse effects can be mitigated is an “overly negative framework”, not supported by the wording of the District Plan. The use and development of rural land supports, in particular, the potential contribution of rural productive activities to the economy and wellbeing of the Christchurch District, and provides for economic development of rural land by enabling a range of activities, while ensuring that adverse effects on rural character and amenity values are avoided, remedied or mitigated.
[304] HGL submits the terms “support” and “provide for” therefore signify a much higher level of support for rural development than the term “tolerate” chosen by the Court. Mr Chapman says the Court’s approach derives from its understanding of the Objective and Policy framework. This shaped its assessment of the evidence and, where that was finely balanced, it treated Objectives and Policies as merely ‘tolerating’ quarry activity and, cumulatively, this resulted in a Decision inherently based on a perception of the District Plan’s opposition to quarry development. This is said to be of significance as the District Plan has one set of Objectives and Policies for all seven Rural Zones. A Decision had been taken during the District Plan Review process not to zone a larger area as Rural Quarry Zone, despite the shortage of available land within that zone. The effect of the Decision is submitted to be that all adverse effects
50 Winston Aggregates, above n 49.
from a quarry are to be avoided in the first instance or, as a less preferred approach, mitigated to such a level that the District Plan can tolerate them. This will carry beyond quarrying to intensive farming which is a “legitimate activity in the Rural Zone”.
[305] In short, the submission is that the Court erred by elevating “avoid” over “remedy” and “mitigate”, which submission I do not accept in itself, and further erred in its failure to understand that the Objectives and Policies could tolerate development such as quarrying in some instances.
Submissions for JAG
[306] Mr Christiansen for JAG submits HGL’s case boils down to a submission that the Court erroneously elevated the importance of avoidance over mitigation and minimisation of effects, and it uses paragraph [38] of the Decision to found its challenge. Mr Christensen says that reference is to Policy 17.2.2.2, which is relevant to the description and analysis of the Objectives and Policies relating to the rural environment reflected in paragraphs [35]-[49] and [68]-[69] of the Decision. Mr Christiansen submits, contrary to the HGL submission, that the Court expressly recognised Policy 17.2.2.2 is to be interpreted in light of the overarching Objective for the rural environment (Objective 17.2.1) and the Strategic Directions for the district.51
[307]He refers to this passage in the judgment:
[56] … regardless of scale, decision-makers are to avoid “significant adverse effects” on health, safety and amenity of people and communities (objective 3.3.14) and for all “other adverse effects”, evaluate the activity in light of the outcomes for the rural environment. Where an effect cannot be avoided or remedied in the first instance, then the enquiry is whether the activity as proposed to be mitigated will support and maintain the function, character and amenity values of the rural environment. If not, the activity will not achieve the relevant objective of the District Plan.
[308] He submits that the Court’s observations in para [38] about Policy 17.2.2.2 are consistent with this passage, which expresses what is known as the “mitigation hierarchy” so that effects should first be reasonably avoided or remedied, but any effect
51 At [38].
should be reasonably mitigated or minimised. Reasonable avoidance and reasonable mitigation depend on the context, and relevant Plan provisions.
[309] Discussed above, this quarry is said for HGL to be the sixth in this area, on a site which does not have reasonable set-backs from neighbouring houses. Unless the HGL quarry in use is discontinued, it is the seventh, with the eighth now being cleanfilled. The Court is entitled to decide whether the effects of this quarry on top of the effects from existing quarries and other noise sources can be adequately controlled by conditions. The Court did not anywhere, it is submitted, equate avoidance of effects with internalisation as HGL contends. Internalisation is not feasible because it would mean no noise beyond the boundary, no trucks entering or leaving the site, the quarry and the bunds not being able to be seen, and so on. When the Court concluded the effects of this quarry could not be adequately controlled by conditions despite suggestions by the appellant how this could be done, declining the application in its entirety was appropriate, and the only way to achieve sustainable management of natural and physical resources. There is no evidence that discontinuance of HGL’s current quarry operations will mitigate the effects with which the Court was concerned.
[310] As to precedent, the Decision is site specific. Somewhat tongue in cheek, Mr Christiansen says if there is any precedent it might be that where there is an application for a quarry outside the rural quarry zone, non-complying, the ‘eighth quarry’ in a particular locality, on a site too small to have appropriate set-backs to address dust and noise, which results in significant adverse noise effects from additional trucks, then consent is unlikely to be granted.
Discussion
[311] At para [69] of the Decision, the Court referred to an effect being avoided or remedied, and whether it may be mitigated to support and maintain the function, character and amenity values of the rural environment. A range of conditions was put before the Court, against which to consider such an outcome, the product of adverse effects being avoided, remedied or mitigated.
[312] As Mr Christiansen submits, quarrying is contemplated in a rural area, but the rural environment logically will have only a certain capacity to absorb development. That environment should not by progressive impact and effect lose its character and amenity by the erosion of that caused by consented activities. The fact that a quarry is “generally acceptable” does not mean all quarries are acceptable in all locations. The Court made an assessment that this proposal goes too far in terms of adverse effects and this is a nuanced and complex evidential exercise, entirely open to the Court. This seventh question involves consideration of potential responses in the decision-making, to avoid, to remedy, or to mitigate. The Court did not look for avoidance at all costs but worked its way through the measures of avoidance, remedy and mitigation. It was not slanted to avoidance, and the result was for the Court to decide on its assessment of the degree of adverse effect.
[313] Given the findings of the Court, and with the clear recognition of deficiencies in evidence, across several important considerations, cumulative effects were such that avoidance was properly for consideration. Because this is a ‘tipping point’ case, even with conditions of consent proffered, the Court was entitled to conclude that a remedy or mitigation was either not available or insufficient. The Court has not treated avoidance as other than its preferred outcome, and it has recognised remedial and mitigating measures available. It has thus not turned a Nelsonian eye to consider avoidance only, or placed unwarranted emphasis on avoidance.
[314]No error of law is disclosed in this Seventh Question.
F. CONCLUSION
[315] One error of law has been made out, the Court’s finding of the 3 dB noise increase being ‘noticeable’, as the evidence does not support such a finding.
[316] The Court had to evaluate a fast changing environment, which reflected societal upheaval in Christchurch from the earthquake sequence, the rebuild of much of the city and its infrastructure, and the rapid evolution of the new District Plan for Christchurch by the rapid and expert process of the Hearings Panel. Christchurch and its surrounds changed in a stroke when the earthquake sequence began, and particularly following that of 22 February 2011. The earthquakes and aftershocks
placed unimagined stress on Christchurch’s inhabitants, infrastructure, and environment. Part of the response was the need for aggregate on a large scale, and that in turn led to pressure on infrastructure, including roads.
[317] The product of these factors is rapid change in the landscape and intensity of activity, particularly in the traditional quarry areas. In the demand for new quarries evidence of the rapid evolution of effects on residents over a very short period is entirely to be expected, with the residents’ telling accounts of noise, dust, vibration and intrusion into their residential lives. The Court was rightly careful to evaluate the position of the residents and their protection from cumulative adverse effects. The overall effect on JAG residents is irrefutably adverse in several respects as things stand, without the effects of this proposed HGL quarry. That is why the Court was critical of landscape evidence which did not seek to understand the values still enjoyed by these residents. The Court in my view correctly took a precautionary approach when identifying many relevant elements of effect where the evidence fell short, either because it was not provided, not adequately provided, or simply did not persuade the Court. This was entirely for the Court. There are no obvious remedial or mitigating steps available to the residents in practical terms after consent is put into effect other than to shift the axis of their home lives, for example, by certain confined parts of their properties to mitigate effects, or leaving the area.
[318] The Court did not rely on how many quarries there are, or will be, but cumulative effects in this area, and there is no evidential basis to assess the effects on these residents on this appeal if and when HGL’s existing quarry closes. This is not a ‘numbers’ game but pluses and minuses of influencing activities will count, when the effects of such are relevant.
[319] As to noise, and apart from the 3 dB increase being ‘noticeable’, Mr Christiansen said that Dr Trevathan and Mr Camp treated 50 dB noise levels as a proxy for acceptable effects which are “no more than minor”, but Dr Trevathan accepted that at 50 dB people may be only “reasonably annoyed”. The concept of “reasonable annoyance” is quaint and irresolute. In the context of noise which is omni-present in daylight hours, or almost so, a “reasonably annoyed” resident would reflect, in my view, a more than minor effect. The residents provide evidence of a
baseline of annoyance against which to measure expert evidence. While subjective, this was clearly relevant.
[320] Mr Christensen referred to his submissions in the Environment Court that the approach of HGL and Council witnesses seems to assume the City Plan provides that quarries are appropriate on this site, and this restricted the Court’s consideration how the effects can be addressed. He refers to Policy 17.1.1.12. Anticipated amenity in the Rural Zone will vary and, for example, on the Port Hills and Banks Peninsula, amenity values will generally be higher than on the plains, and where an activity is proposed determines the way in which intensive agricultural, industrial and quarrying activities will impact on rural amenity. That expectation does not include, as one resident said, “daily gritty dust throughout my home”. This is a case in which “no change” may be what is needed to maintain amenity and meet the Policy. That was in essence the residents’ case, that there should be “no more change”. The Court has agreed, on the evidence before it, while plainly dissatisfied with a good deal of HGL evidence across several important effects-based issues.
Relief
[321] The one error of law found on appeal is in the conclusion that an increase in noise of 3 dB would be ‘noticeable’, as it is not founded on expert evidence, and the Court has done no more than refer broadly to its own experience. On an issue of consequence to this Decision, and where there is expert evidence, the Court must have evidence from some quarter to allow that conclusion, and not simply resort without explanation to its own experience. There is no doubt the Court was drawing on something in this regard, and as such it needed to explain the experience on which it relied.
[322] That finding of error does not, however, dispose of the several other issues regarding noise, in particular its characteristics, repetition, intervals, and frequency, and the overall accumulation of noise and other effects where the evidence plainly fell short. For that reason, this judgment does not respond to the error by sending the application back to the Environment Court. I decline to do so because the finding of error would not usefully be sent back for reconsideration on a directed basis, where
such a degree of dissatisfaction was held by the Court with the way expert evidence was approached, the insufficiency of evidence, and with other findings of effects which would militate against consent being granted, for example, dust, vibration, effects on amenity. These and others presently stand in the way of consent.
The future
[323] This judgment on appeal recognises that the correct pathway to quarry consent in the Bund zones is newly tested. There is no error in the pathway taken by the Court. There is no principle whereby the sacrifice of a few for the ‘greater good’, is a sustainable environmental outcome. The Court recognised the importance of quarrying to the economy when it came to its Decision.
[324] This judgment is by no means the end of the line for HGL for this site, if it is able to mount a fresh case addressing the material deficiencies in the evidence which the Environment Court identified. The bigger hurdle in front of HGL is that the judgment of the Environment Court represents a recognition that there is a point at which the accumulation of effects may go too far, to be more than minor even with mitigation, and to be contrary to the Objectives and Policies in the District Plan.
[325] The Environment Court has signposted clearly where the evidence fell short across several fundamental elements of effect. In some cases, it was for want of evidence, in others it was not satisfied the persuasive burden on HGL was discharged. The evidential shortfall is now plain to HGL, and automatically extends to the sum total of these evidential deficits, in determining cumulative effects. These should not be overridden for the clear economic benefits of the consent that HGL seeks for itself, and for the community. There may be other alternatives. The stakes are high, no doubt for HGL in a commercial sense, but unquestionably for the residents who have seen, felt and live with the advance of quarrying activities around them. The description that the residents are becoming “sandwiched” between quarries resonates for this judgment.
[326] There are obvious commercial outcomes which HGL and interested parties, including GAG residents, may wish to pursue. But for one element as to noise, the Decision of the Environment Court represents a commendably thorough and correct
approach to a multifaceted set of required considerations. In the end, the Court has simply reached a conclusion based on the evidence that this consent, having regard to all relevant and no irrelevant considerations, and in its evaluation of the accumulation of effects constitutes a step too far on what is known, and otherwise that there is insufficient evidence in several critical respects on which the Court might have been able to reach another conclusion.
G. DISPOSITION
[327]The appeal is dismissed.
[328] Costs are reserved. If sought, memoranda should be filed promptly and a conference arranged through the Registry.
…………………………………
Nicholas Davidson J
Solicitors:
Duncan Cotterill, Christchurch Chapman Tripp, Christchurch Christchurch City Council
Natural Resources Law Limited, Christchurch
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