MacKenzie v Tasman District Council - [2018] NZHC 2304

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-769

[2018] NZHC 2304

UNDER the Resource Management Act 1991

IN THE MATTER

of an appeal against a decision of the

Environment Court pursuant to s 299 of the Act

BETWEEN

CATHARINE MARY MACKENZIE

Appellant

AND

TASMAN DISTRICT COUNCIL

Respondent

Hearing: 27 February 2018

Counsel:

S Franks and A Dartnell for Appellant C P Thomsen for Respondent

Judgment:

3 September 2018

JUDGMENT OF GRICE J

Table of contents

Para No

Awaroa, Golden Bay [1]

Background [6]

The Submission [10]

Decision of the Environment Court [19]

Statutory framework for Plan Changes [33]
Appeals from the Environment Court to the High Court [42]

Grounds of appeal [46]

No Separate Zone ground abandoned  [46]
Relief sought in Environment Court appeal  [47]
Reframed appeal  [49]
Issues  [51]

MACKENZIE v TASMAN DISTRICT COUNCIL [2018] NZHC 2304 [3 September 2018]

The Judge erred by failing to take into account relevant considerations causing him to misconstrue the content of either Plan Change 60 or Ms Mackenzie’s submission [52]

How did the Environment Court Judge approach Ms Mackenzie’s Submission?[52] The Submission  [55]
What was Plan Change 60 about?  [59]
Cooperative living  [60]
Other dwellings  [63]
Subdivision prohibition  [66]
Linkages between Plan Change 60 and the Submission  [68] Did the Judge err by misapplying or misinterpreting both limb one and limb two of the Clearwater/Motor Machinists test?  [81]
Limb one of the Clearwater/Motor Machinists test  [85]
Was the first limb applied too narrowly?  [87]
Section 32 Evaluation Report  [98]
The second limb of the Clearwater/Motor Machinists test  [105]
Policy issues  [114]
Further evidence  [118]
Conclusion  [119]
Costs  [121]

Awaroa, Golden Bay

[1]Ms Mackenzie has owned land in the Golden Bay area of Awaroa since 1997.

She and her family have their holiday home there. It is their tangata whenua.1

[2] The land is unique. It adjoins the Abel Tasman National Park and Marine Reserve. It has limited access – generally by boat or tramping in. Some landowners would like to see more flexible uses allowed for their land. For instance, to enable confined “hamlets” to be established on minimum sized land holdings in the area as well as common areas like “village greens” to be used by the public.

[3] The land is zoned Rural Residential Closed Zone (RRC), in which subdivision is prohibited.2 Over the years Ms Mackenzie and other local landowners have spoken to the local authority, the Tasman District Council (the Council), about easing the restrictions on the use of the Awaroa RRC land. With that objective in mind,

1 Oral submission of counsel for the appellant, Mr Franks.
2 Except in limited circumstances, such as boundary and similar adjustments: Tasman District Council Tasman Resource Management Plan (District and Regional Plan, 28 November 2015) at r 16.3.8.6.

Ms Mackenzie made a formal Submission3 in response to a plan change proposed by the Council referred to as Plan Change 60 or PC60.4

[4] The Council rejected Ms Mackenzie’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2304
Decision Date: 3 September 2018

CaseChat Overview and Summary

Catharine Mary Mackenzie appeals the decision of the Environment Court (EC) dismissing her appeal against the decision of the Tasman District Council to reject her submission in response to a proposed plan change (Plan Change 60) to its combined District and Regional Plan, the Tasman Resource Management Plan. The EC dismissed the appeal on the basis that Mackenzie’s submission was not “on” the proposed plan change. The appeal to the High Court was brought under s 299 of the Resource Management Act 1991 (the Act). The questions of law raised by Mackenzie were whether the EC misdirected itself in its interpretation and application of cl 14 of Sch 1 of the Act, and whether it misapplied or misinterpreted both limbs of the Clearwater/Motor Machinists test in assessing whether a submission was “on” a plan change. The appeal was dismissed. The Judge concluded that the EC Judge did not misdirect himself in his interpretation and application of cl 14 of Sch 1 of the Act, nor did he err in applying the Clearwater/Motor Machinists test in assessing whether a submission was “on” a plan change. The EC Judge’s analysis of Mackenzie’s submission and Plan Change 60 was correct. The EC Judge was well placed to undertake the Clearwater/Motor Machinists assessment. The conclusion the EC Judge reached that the Submission was not “on” Plan Change 60 was correct.

Orders