Meadow 3 Limited v Brandenburg HC CHCH CIV 2007-409-001695
[2008] NZHC 2360
•30 May 2008
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2007-409-001695
BETWEEN MEADOW 3 LIMITED Appellant
ANDFREDERIKUS PETRUS MARIA VAN BRANDENBURG
First Respondent
ANDQUEENSTOWN LAKES DISTRICT COUNCIL
Second Respondent
Hearing: 1 April 2008
Counsel: P Page and M J Wallace for Appellant
M E Parker for First Respondent
G M Todd for Second Respondent
Judgment: 30 May 2008
JUDGMENT OF FOGARTY J
A Appeal allowed in part.
B Declarations 3, 4, 5 and 6 are set aside.
CThe remainder of the issues are referred back to the Environment Court for reconsideration on a correct interpretation of the resource consents.
D Costs are reserved.
MEADOW 3 LIMITED V VAN BRANDENBURG AND ANOR HC CHCH CIV 2007-409-001695 30 May
2008
INDEX
Paragraph No.
Introduction [1]
Does clause 1 of the subdivision consent incorporate the restraints imposed by the Ladies Mile Subdivision Landscape Plan and the landscape strategy? [3]
Interpretation of clause 1(d) of the land use consent – the
relationship between the landscape plan and the landscape strategy [40]
Analysis [45] Does the land use consent prohibit pruning trees? [52] Has condition 5 been complied with [63] Has condition 15 been complied with? [67] Cottages consent – what was required? [69] Can a resource consent be abandoned? [70] The legality of the Environment Court’s declarations [89] Relief [94]
Introduction
[1] This is an appeal against a decision of the Environment Court released on 28
June 2007. These proceedings are principally about the protection of the views across Lake Hayes near Queenstown. The subject property is in the centre of many of these views. Mr FPM van Brandenburg lives on the eastern side of Lake Hayes and is concerned that development on the site has not been carried out in accordance with the land use and subdivision consents granted by the Council under a consent order made by the Environment Court on 6 May 2004, in respect of which he was an appellant. His concern centred upon the removal of lower limbs of mature trees, and the felling of trees, the effect being to alter the views. He applied for declarations and enforcement orders under the RMA against the current owner of the site, Meadow 3 Limited, which is also the consent holder. His application for declarations was successful and as a result of that the Environment Court reserved the need for enforcement orders.
[2] The issues that come before this Court centre particularly on the relationship or inter-relationship between the land use consent and the subdivision consent which were made separately but at the same time by the consent order. The Environment Court effectively implied into the terms of the subdivision consent significant obligations imposed in the land use consent. The question is whether or not that implication was in error of law.
Does clause 1 of the subdivision consent incorporate the restraints imposed by the Ladies Mile Subdivision Landscape Plan and the Landscape Strategy?
[3] Clause 1 of the subdivision consent provides:-
1.That the activity be undertaken in accordance with the Master Scheme plan – Pritchard Group Limited (19/02/2004) Master Scheme Plan, with the exception of the amendments required by the following conditions of consent.
(Emphasis added)
[4] Clause 1 of the land use consent provides:-
1.The activity shall be undertaken in accordance with the plans and specifications attached here to and labelled;
(a) Master Scheme plan – Pritchard Group 19/2/2004 (Master
Scheme Plan) (Emphasis added)
(b)Vegetation Restoration Plan – Slope Hill. (Vegetation Restoration Plan) MPQ778C(03) Morgan Pollard and Associates
(c) Ecological Restoration Plan – Slope Hill. Morgan Pollard and Associates 30/1/2003. (Ecological Plan)
(d) Ladies Mile Subdivision landscape plan MPQ778C(10) (19/02/2004) (Ladies Mile Landscape Plan) and Landscape Strategy 23/02/2004 Morgan Pollard and associates; (Emphasis added)
And in accordance with the following conditions of consent.
[5] The Environment Court held that compliance with the Ladies Mile Landscape Plan and Landscape Strategy is a condition of the subdivision consent, although it is not expressed, in contrast to the land use consent. (Compare the italicised portions above.) It did so for two reasons. The first and principal reason was that the Ladies Mile Landscape Plan and the Landscape Strategy are also expressly included by the Master Scheme Plan itself. This is because the box in the bottom left hand corner of the Master Scheme plan says, among other information:
This plan [is] to be read in conjunction with Morgan and Pollard & Associates Ladies Mile Subdivision Landscape Plan and Slope Hill Vegetation Restoration Plan numbers MPQ778C(03) and (10).
[6] The second reason given by the Court was that condition 7(e) of the subdivision consent requires identification of squares called “residential building platforms”. Condition 7(e) requires:
Prior to certification pursuant to Section 223 of the Resource Management
Act 1991, the applicant shall complete the following:
(e) Submit a scaled plan accurately identifying building platform(s) with a maximum area of 1000m2 and a minimum dimension to accommodate a 30m x 30m square for each allotment.”
[7] The Environment Court pointed out that these building platforms are directly related to the primary intended land use activity. It noted that condition 8(m) of the
subdivision consent provides that consent notices are placed on each of the relevant titles identifying the building platform for that title.
[8] Consent notices are empowered by s 221 which provides:
221 Territorial authority to issue a consent notice
(1) Where a subdivision consent is granted subject to a condition to be complied with on a continuing basis by the subdividing owner and subsequent owners after the deposit of a survey plan (not being a condition in respect of which a bond is required to be entered into by the subdividing owner, or a completion certificate is capable of being or has been issued), the territorial authority shall, for the purposes of section 224, issue a consent notice specifying any such condition.
(2) Every consent notice shall be authenticated by the territorial authority under section 252 of the Local Government Act 1974.
(3) At any time after the deposit of the survey plan,—
(a) the owner may apply to a territorial authority to vary or cancel any condition specified in a consent notice:
(b) the territorial authority may review any condition specified in a consent notice and vary or cancel the condition.
(3A) Sections 88 to 121 and 127(4) to 132 apply, with all necessary modifications, in relation to an application made or review conducted under subsection (3).
(4) Every consent notice shall be deemed—
(a) To be an instrument creating an interest in the land within the meaning of section 62 of the Land Transfer Act 1952, and may be registered accordingly; and
(b) To be a covenant running with the land when registered under the Land Transfer Act 1952, and shall, notwithstanding anything to the contrary in section 105 of the Land Transfer Act 1952, bind all subsequent owners of the land.
(5) Where a consent notice has been registered under the Land Transfer Act 1952 and any condition in that notice has been varied or cancelled after an application or review under subsection (3) or has expired, the District Land Registrar shall, if he or she is satisfied that any condition in that notice has been so varied or cancelled or has expired, make an entry in the register and on any relevant instrument of title noting that the consent notice has been varied or cancelled or has expired, and the condition in the consent notice shall take effect as so varied or cease to have any effect, as the case may be.
The effect of the consent notice on the relevant title is that it warns any buyer before purchase that the use of the land in the title as a residence is confined by the building platform which in turn confines the siting of the residence on the parcel of land.
[9] The Environment Court then went on to reason that:
[125] If the survey plan is given a section 223 or 224 Certificate by the Council and Meadow 3 Limited lodges the plan with those certificates for deposit that will have the consequence that the residential building platforms are officially identified on a deposited plan.
[126] Rule 5.3.3.2 of the District Plan then provides that land use consent can be applied for by each title-holder for a controlled land activity – which cannot be refused – with the Council’s discretion limited as follows:
(i)
…
b)The construction of any new building contained within a residential building platform approved by resource consent;
in respect of
(i) external appearance;
(ii) associated earthworks, access and landscaping;
(iii) provision of water supply, sewage treatment and disposal, electricity and telecommunication services.
The rule has the effect that a new title holder could subvert the (now invalid) land use consent by applying for a resource consent for a single residence on any one allotment. (My emphasis)
[10] As I understand the reasoning of the Environment Court the critical conclusion is in the last three italicised lines of paragraph [126]. The Court identified that if compliance with the Ladies Mile Landscape Plan and Landscape Strategy was not a condition of the subdivision consent, and taking into account that it had been severely breached as part of the land use consent, the consequences of that breach could be avoided by a new title-holder applying for a resource consent for a single residence on the building platform on the title issued as a consequence of the s 224 certificate.
[11] Accordingly, as I understand the Environment Court, the true significance of the identification of the residential building platforms in the Master Scheme Plan was that it enabled potentially a subversion of the land use consent and so contributed to justifying the finding that the Ladies Mile Landscape Plan and Landscape Strategy were a condition of the subdivision consent although they were not set out expressly in the list of conditions, in the same way they were in condition
1 of the land use consent.
[12] Mr Parker did not place weight on the residential platform reasoning of the Environment Court in his argument. He argued that clause 1 of the subdivision consent required that the activity be undertaken with the Master Scheme Plan with the exception only of the amendments required by the express additional conditions of consent. He argued that the Master Scheme Plan had to be taken in its entirety and that included giving effect to the injunction in the left hand box that the Master Scheme Plan was to be read in conjunction with the Ladies Mile Subdivision Landscape Plan. By corollary he said that condition 1 did not allow as an exception giving effect to the Master Scheme Plan apart from not giving effect to the injunction that the Plan be read in conjunction with the Ladies Mile Subdivision Landscape Plan.
[13] Mr Page argued that there were two errors in the Environment Court’s reliance on these words in the left hand box of the Master Scheme Plan. The first is that the words do not include a reference to the Landscape Strategy. The second is that it is not a fair interpretation of the subdivision consent to incorporate conditions by reliance on these two lines in the left hand box. Rather, he argued the function of the left hand box was to give information enabling the Plan to be read. The other pieces of information in the box are:
• The alignment of the Plan to the north.
•The scale of the Plan 1 : 4000 on an A1 sheet and 1 : 6666 on the print attached to the consent.
•Seven “keys” which explain lines drawn on the map being the resource consent boundary, curtilage area (Slope Hill), building platforms (Ladies Mile), existing buildings, cottage sites [also for Ladies Mile], surveyed sight line and floating vegetation line.
[14] Mr Page pointed out that you would not expect to see a surveyed sight line or a floating vegetation line on a Master Scheme Plan for subdivision. He said that the injunction that the Plan be read in conjunction with the Ladies Mile Landscape Plan and the Slope Hill Vegetation Restoration Plan was there to explain the presence of the surveyed sight line and the floating vegetation line (in the case of Ladies Mile) as these two lines have much greater prominence on the Ladies Mile Landscape Plan.
[15] Mr Page also argued that a fair interpretation of the consent order as a whole is that the subdivision consent conditions were standard conditions addressing the provision of services and easements ensuring that appropriate infrastructure would be put in place. Briefly, conditions 2 and 3 place on the consent holder the cost of monitoring and the Council’s administration expenses. Condition 4 imposes a standard as to the quality of all engineering works. Condition 6 requires Council approval of the provision of a water supply system, waste water system, storm water system, derogation easements, internal roading, vehicle crossings and control over dust during earthworks construction. Condition 7 describes the work required to be completed prior to certification pursuant to s 223 (essentially details to appear on the survey plan and the production of owners’ consents for easements over land not owned by the applicant). Condition 8 identifies steps that require completion prior to certification pursuant to s 224(c) and these include: construction of all engineering works; formation of vehicle access from the State Highway; provision of underground power and telephone services; certification that all fill material has been placed according to standards; various other engineering certificates; and consent notices to be placed on certificates of title restricting the building of structures etc.
[16] Allied to this argument Mr Page argued that the Act draws a distinction between land use consents and subdivision consents. While subdivision consents can contain provisions which protect landscape amenity, it is more customary to
place such conditions in land use consents because under the scheme of the Act such conditions run with the land and often require, or may require, ongoing compliance subsequent to the issue of title.
[17] The subdivision consent terms had been settled by Environment Judge Jackson sitting alone, the same Judge presiding in the panel of the Environment Court whose decision is under appeal. Mr Todd, counsel for the QLDC, advised the Court that the terms had been negotiated between the parties to the appeal and drafted in the first instance by the applicant. The terms of both the land use consent and the subdivision consent were made by the Judge without considering the merits of the solution agreed by the parties. The context was that the consent order resolved appeals relating to applications for resource consents to subdivide and develop land on the western side of Lake Hayes near Queenstown. As appears from the Master Scheme Plan there were two areas of residential development proposed: one called Slope Hill and the other called Ladies Mile. The Slope Hill development is not part of the current dispute.
[18] The current dispute arose out of a concern by Mr van Brandenburg, an architect who lives on the eastern end of Lake Hayes, that the development on Ladies Mile has not been carried out in accordance with the land use and subdivision consents. Mr van Brandenburg applied for enforcement orders in respect of the Ladies Mile part of the development, under s 314 of the Act.
Analysis
[19] The land use consent falls to be construed in the context of the whole of the consent order of which it is part. This context is a two page consent order briefly recording that the issues arose from appeals relating to applications for resource consents to subdivide and develop land on the western side of Lake Hayes. The other part of the consent is the schedule which contains the land use consent and the subdivision consent and appendices thereto.
Applications for resource consents to subdivide and develop land on the western side of Lake Hayes
[20] It is common ground that any subdivision and development of land on the lake side of Lake Hayes raised landscape issues as formulated under the Queenstown Lakes District Plan. The Lake Hayes site is characterised as “visual amenity landscape” in the District Plan. It is relevant to quote the summation by the Environment Court in the decision under appeal as to the relevant provisions of the District Plan in this respect:
[132] The landscape setting of the Lake Hayes’ site is valued by the wider community of the district. The site is categorised as ‘Visual Amenity Landscape’ in the District Plan: - see the earlier decision in van Brandenburg et ors v Queenstown Lakes District Council. The very name suggests that it is important in visual terms. … The District Plan describes:
The visual amenity landscapes [as] the landscapes to which particular regard is to be had under section 7 of the Act. They are landscapes which wear a cloak of human activity much more obviously – pastoral (in the poetic and picturesque sense rather than the functional sense) or Arcadian landscapes with more houses and trees, greener (introduced) grasses and tend to be on the district’s downlands, flats and terraces. The extra quality that these landscapes possess which bring them into the category of “visual amenity landscape” is their prominence because they are:
• adjacent to outstanding natural features or landscapes; or
• on ridges or hills; or
• visible from public roads; or
• a combination of the above.
[133] Counsel did not refer us to them but we are aware that there are two relevant policies in the District Plan relating respectively to visual amenity landscapes and outstanding natural features. We will quote these because they show the importance the District Plan places on landscape values, natural character and visual amenity values. First there is a policy about:
4. Visual Amenity Landscapes/
(a)To avoid, remedy or mitigate the adverse effects of subdivision and development on the visual amenity landscapes which are:
• highly visible from public places and other places which are frequented by members of the public generally; and
• visible from public roads.
(b) To mitigate loss of or enhance natural character by appropriate planting and landscaping.
(c) To discourage linear tree planting along roads as a method of achieving (a) or (b) above.
The subdivision and development in the consent order was not going to be visible from State Highway 6. Now we find the development will be clearly visible and a house on Lot 13 will be highly visible.
[134] Secondly there is a policy about:
5. Outstanding Natural Features
To avoid subdivision and/or development on and in the vicinity of
distinctive landforms and landscape features, including:
(a) …
(b)in Wakatipu; the Kawarau, Arrow and Shotover Gorges; Peninsula, Queenstown, Ferry, Morven and Slope hills;
Lake Hayes, Hillocks; Camp Hill; Mt Alfred; Pig, Pigeon and Tree Islands;
- unless the subdivision and/or development will not result in adverse effects which will be more than minor on:
(i) Landscape values and natural character; and
(ii) Visual amenity values
- recognising and providing for:
(iii) The desirability of ensuring that buildings and structures and associated roading plans and boundary developments have a visual impact which will be no more than minor in the context of the outstanding natural feature, that is, the building etc is reasonably difficult to see;
…
[Underlining added]
[21] Any development of this site had to address these provisions. Under the RMA there is a degree of discretion available to an applicant as to how issues made relevant by the provisions of the Act should be allocated between applications for resource consent. It is typical in comprehensive developments for there to be the need for more than one type of resource consent. In this case there plainly had to be at least a land use consent and a subdivision consent.
[22] The RMA creates a separate regime for land use consents and subdivision consents, subject to the qualification that there can be a degree of overlap.
[23] A land use consent is a consent to depart from s 9. All uses of land are permitted unless a rule in a plan or a proposed plan states otherwise.
[24] A subdivision consent permits a departure from s 11. The reverse presumption applies. With limited exception (some matters are specifically excluded from s 11) no survey plan may deposit under the Land Transfer Act without following the s 11, survey plan, s 223, s 224 deposited plan process.
[25] The reason for these distinctions are to a degree self-explanatory. They tend to require a distinct set of considerations, subject to some overlap. It needs to be borne in mind that the RMA endeavours to provide a Parliamentary policy on resource consent management which cascades from, and is ultimately informed by, s 5 of the Act. It is appropriate in this case, which ultimately raises questions as to the subversion or otherwise of the purpose of the Act, to set out s 5:
5 Purpose
(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—
(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.
[26] There is, to some degree, a separation between conditions which can be imposed on resource consents generally (s 108) and conditions which can be imposed on subdivision consents (s 220).
[27] When setting conditions in a subdivision consent, an important consideration to keep in mind is whether the condition is to be complied with prior to the issue of title or whether it will be complied with on a continuing basis by the subdividing owners and subsequent owners. This subject is addressed in s 221. In respect of ongoing obligations the territorial authority is required to issue a consent notice which by s 221(4) is deemed to be creating an interest in land and to be a covenant running with the land and so binding on all subsequent owners of the land.
[28] Land use consents can also be subject to conditions which require ongoing compliance as these conditions attach to the land (see s 134). But these conditions are not necessarily also conditions to the subdivision consent and so are not necessarily part of the content of consent notices registered against the title.
[29] Accordingly, when an applicant and/or consent authority addresses the subject of conditions to a land use consent as distinct from a subdivision consent, particularly where both have been applied for, it is necessary to address:
1.Conditions appropriate to the development of the site to achieve the purpose of the RMA, and which are enabled by ss 108 and/or 220.
2.Whether an identified condition should be made a condition of the land use consent and/or of the subdivision consent.
In the second part of that exercise consideration needs to be given to whether or not a condition should be made part of a subdivision consent in order to be part of a consent notice.
[30] For the purposes of construing the terms of the subdivision consent in this case, the important aspect of this contextual analysis to keep in mind is that there is a degree of discretion available to the applicant and the consent authority (depending on the scope of the decisions made by the applicants in the first place) as to how the conditions are identified, formulated and allocated between the different consents. It is important to distinguish the power to choose how the conditions are to be allocated from the exercise of that power.
[31] The Environment Court was quite correct to note that the identification of the residential building platforms on the subdivision consent was directly related to the primary intended land use activity. In the QLDC Plan typically the location of the residential building platform is often directly related to the preservation or management of the landscape quality of the environment. But it does not follow that the decision to make the size and location of residential platforms a condition of the resource consent means that all aspects of landscape strategy are intended to be made conditions of the resource consent. The landscape category conditions, taken as a whole, can still be allocated and/or duplicated across the consents. The fact that there was a power to impose as condition 1 of the subdivision consent the same terms as condition 1 of the land use consent, does not mean that condition 1 of the subdivision consent should be read as having the same content as condition 1 of the land use consent. This is particularly so when the text of the two conditions are different.
[32] It is important also to keep in mind that many land use consent and resource consents run with the land and so bind subsequent holders. Accordingly, the consents are intended to be documents which speak to and will be relied upon by subsequent holders as well as the applicants who succeed in obtaining the consent.
[33] It follows that when a Court comes to interpret these documents primacy is given to the meaning communicated in the text, though of course read in the context of being instruments of the RMA.
[34] Placed side by side, clause 1 of the subdivision consent is quite different from clause 1 of the land use consent. Clause 1 of the land use consent distinguishes between activity to be undertaken in accordance with the Master Scheme Plan, (clause 1(a)) from activity to be undertaken in accordance with the Ladies Mile Subdivision Landscape Plan and Landscape Strategy (Clause (1)(d)).
[35] Furthermore, clause 1(d) of the land use consent distinguishes between the
Ladies Mile Subdivision Landscape Plan and the Landscape Strategy 23/02/2004
Morgan Pollard and Associates.
[36] Yet clause 1 of the subdivision consent and clause 1 of the land use consent are in the same document. Fundamentally, interpreting documents is a task performed by the Court seeking the intention of the maker of the document. On the face of it then the maker of the document intended clause 1 of the subdivision consent to be something different from clause 1 of the land use consent.
[37] As is quite apparent from the last three lines of paragraph [126] of the
Environment Court decision, the Court was motivated to expand the scope of clause
1 of the subdivision consent for fear that otherwise the consequences of breach of the requirements of the Ladies Mile Landscape Plan and Landscape Strategy could be taken advantage of by a new title holder applying for resource consent as a controlled use. It was to head off this consequence that the Court was attracted to expanding the effect of clause 1 by taking advantage of the notation in the left hand box in the Master Scheme Plan. I am satisfied in my view that it was never the intention of the maker of the document and so never a meaning communicated by the document for clause 1 of the subdivision consent to be read this way. This conclusion is reinforced by an examination of the single qualification appearing in clause 1 of the subdivision consent (with the exception of the amendments required by the following conditions of consent). As set out above at [15], the following conditions of consent are of an engineering character in the main and directed to the subdivisional aspects of the development. There are a number of supporting reasons for this conclusion. They include the fact that the words in the left hand box of the Master Scheme Plan do not include an express reference to the Landscape Strategy. To read the reference to the Ladies Mile Landscape Plan as including a reference to the Landscape Strategy is inconsistent with the distinction drawn between the two in clause 1(d) of the land use consent.
[38] Mr Parker’s argument that this construction means that clause 1 of the subdivision consent requires the Master Scheme Plan to be read with the injunction of being read in conjunction with the Ladies Mile Subdivision Landscape Plan cannot be sustained. It is typical of resource consents under the RMA to take advantage of plans drawn for a number of purposes. As I have emphasised, everybody knows that the development of farm land such as this into residential development will involve a comprehensive plan. The Master Scheme Plan in that
sense refers to subordinate plans. However, the readers of the documents, informed by the RMA, know that the single residential development can be the subject of a number of consents which are distinct, one from the other.
[39] Mr Page was correct to sum up this topic with a heading: “Is There One Resource Consent Or Two”. There are two resource consents. They are separate. Their terms are not identical. The Environment Court was in error of law in interpreting clause 1 of the subdivision consent to include compliance with the Ladies Mile Landscape Plan and the Landscape Strategy 23/02/2004 Morgan Pollard and Associates.
Interpretation of clause 1(d) of the land use consent – the relationship between the Landscape Plan and the Landscape Strategy
[40] The Environment Court explained clause 1(d) in the following way:
[71] The land use consent begins with the words:
1. The activity shall be undertaken in accordance with …
The activity is, we assume, the activity of building and using a residence since that is a discretionary activity in the partly operative District Plan. ‘In accordance with …’ means ‘in agreement with’ or ‘in compliance with’. When used of a plan the phrase suggests the plan must be followed; that a reader should be able to look at features shown on the plan and find them on the ground. If the plan is accompanied by an explanatory document – as here we have the Landscape Strategy – then the plan must be read in the light of, and so as to achieve that document.
[41] Mr Wallace for the appellant argued that the last sentence of paragraph [71] discloses an error of law. He submitted that there was no basis for the conclusion of the Court that the landscape plan had to be read to achieve the Landscape Strategy and thereby the Court has reversed the importance or hierarchy of the documents.
[42] This point is relevant to establish to what extent the land use consent was breached. The Environment Court has found breach and counsel for the appellant accepted that there was breach. The issue is the extent of breach.
[43] Mr Wallace argued that the Landscape Strategy contains within it a description of its role:
This brief document intends to explain the philosophy and intentions of the landscape plan intended for the Threepwood (Ladies Mile) subdivision. The title of this plan is “Threepwood, Lake Hayes Ladies Mile Subdivision Landscape Plan (MPQ 778C(10)) It should be read in conjunction with viewing the plan.
[44] Mr Wallace went on to argue that the plan is not an illustration of the strategy and the strategy is not the genesis of the plan (it being completed three days after the plan). Rather, he submitted the substantive definition of obligation is the landscape plan and the strategy is provided solely to assist in the interpretation of the definition.
Analysis
[45] The landscape plan does not expressly refer to the Landscape Strategy. As well as it being a plan it has a substantial text. For example, in respect of the area round the homestead marked ‘A’ it says under the heading “Overlay Key”:
Protect all existing trees via covenant. Trees that die or become diseased shall be replaced with the same species.
[46] In respect of the indicative layout of guest lodges it says:
1.Cottages shall be located so that they are nestled into existing and proposed vegetation …
…
3.An assessment of existing trees should be undertaken by Arborculturalist / Landscape Architect team to determine the treatment required. In some cases removal of trees may be required.
[47] The Landscape Strategy is a three page text attached to the consent order. It is prepared by the same author of the plan, Mr Ralf Kruger. It does not present, on first reading, being in any way inconsistent with the plan. Some of the language is identical. For example, in respect of area ‘A’ the passages quoted from the plan are replicated in the strategy.
[48] In respect of area ‘C’ the language is only slightly different. For example:
… the integration of the new cottages … will be achieved by placing the new buildings within the existing trees in the paddock. Further planting of large trees will both screen the buildings from public and private views from across Lake Hayes as well as provide an idyllic setting with framed views out. ….
[49] The last words in paragraph [71] of the judgment do suggest that the
Landscape Strategy is the dominant document.
[50] The self-expressed purpose of the Landscape Strategy is that it should be read in conjunction when viewing the plan. Condition 1(d) uses the conjunctive term “and”.
[51] I cannot discern any manifest intention by the author of both documents, Mr Kruger, that one document is intended to be dominant over the other. Rather, the intention is they be read in conjunction. That is the literal meaning of condition 1(d). That said, then literally there is an error of law in paragraph [71]. However, it is quite another matter as to whether or not that error of law is in any way material to the determinations made by the Environment Court.
Does the land use consent prohibit pruning trees?
[52] The Environment Court held:
[75] The general principle that trees identified on the landscape plan should remain unfelled and unmodified is strongly reinforced by the Landscape Strategy. In fact the Landscape Strategy also indicates that substantial pruning and/or limbing up is not contemplated either. For convenience, we isolate and number the key sentences in the Landscape Strategy as follows:
(1)We believe it is paramount not to compromise the strong characteristics of the historic homestead.
This sentence uses very strong language to state that the character of the historic homestead is not to be compromised. The sentence might be taken as referring to the heritage fabric of the buildings themselves, but in this context – this is a landscape plan – we consider it is referring principally to the landscape setting and visual context.
(2)We believe that spatial separation and screening – using new plantings in addition to the existing thick belt of vegetation – is the key to a successful relationship between the homestead and the new dwellings of the subdivision.
We understand this to mean that the ‘existing thick belt of vegetation’ is not to be modified much, but is to be bolstered by new planting. As we shall see condition 5 of the conditions of consent is designed to ensure there is a management plan for new planting.
(3)There will be very few, elevated points from where both entities [i.e. the homestead and the subdivision] can be perceived in combination.
We have considered whether the sentence reading: ‘[t]here will be very few, elevated points from where both entities can be perceived in combination’ means ‘there will be very few elevated points from where both entities can be perceived …’. In our view that ignores both the comma and the context which requires the homestead (in particular) and the new subdivision’s houses to be seen in a rural setting’. Together those guides entail that the meaning of the sentence is:
There will be very few, [and they are] elevated [,] points from where both the homestead and the new houses can be perceived in combination.
(4)Picking up on existing vegetation patterns and landscape characteristics is the key to successful integration.
The reference is again to ‘existing vegetation patterns’, not to new patterns.
(5)The rural setting dominated by large groups of substantial exotic trees and adequate underplanting as well as foreground planting will be carried through into the subdivision.
The landscape plan expects the ‘rural setting’ to continue, and that is dominated by ‘large groups of substantial exotic trees and adequate underplanting as well as foreground planting’. There are three dominant elements:
• large groups of substantial exotic trees;
• adequate underplanting;
• foreground planting.
We infer that the subdivided residential lots are to contain or be surrounded by large groups of substantial exotic trees; that these groups are not to look like pruned plantations but are to have shrubs and smaller trees within them and around their edges; and that the foreground planting along the old Avenue and in area F is to be maintained and (where necessary) underplanted also.
[76] The Landscape Strategy then continues:
The landscape zones within the proposed subdivision are described as follows:
•Area A – “heritage Area” (around historic homestead): in this zone; all existing trees shall be protected via covenant. Any tree lost to disease or otherwise shall be replaced with the same species. This ensures the historic and visual integrity of this important area both, for the enjoyment of the general public from public viewpoints and for users and residents of the immediate area.
•Area B – “Historic Trees Repair Patch”: in this area, the once existent continuous row of large conifers shall be repaired by planting the same species in the gap.
•Area C – Cottage Zone: the integration of the new cottages (designed to match small farm outbuildings in form and bulk) will be achieved by placing the new buildings within the existing trees in the paddock. Further planting of large trees will both screen the buildings from public and private views from across Lake Hayes as well as provide an idyllic setting with framed views out. The buildings will not be completely invisible but will be dominated by trees similar to the existing proportions between trees and farm sheds present on the site now.
•Area D – Area of Visual Protection: Keeping this part of the landscape as open paddock will assist the intentions of area A and allow unobstructed views of the historic homestead. Any planting or building in this area is prohibited.
…
We infer that the existing trees are important to accomplish the Landscape Strategy’s requirements that the views from the eastern side of Lake Hayes do not include both the homestead (visible from almost everywhere) and new houses on Lots 1-19 at the same time. Any other view would change the landscape setting of the heritage building (the homestead).
[77] There are some detailed provisions in the core documents making up the land use consent which suggest that existing trees are not to be removed or altered:
•the Ladies Mile Landscape Plan contains an exhortation to ‘[p]rotect all existing trees via covenant’, with the implication they should not be altered or cut down in the meantime; and
• condition 15 gives some detail as to the proposed covenants.
[53] Mr Wallace submitted that nowhere in the text of the Landscape Strategy is there any express prohibition on pruning, modifying or even felling a tree. Rather, the Environment Court has inferred from the text that such actions are prohibited.
In respect of paragraph [77] he noted the Court omitted to mention the next sentence on that key:
Trees that die or become diseased shall be replaced with the same species.
[54] He submitted that there is no mention of what must be done if a tree is pruned on the recommendation of an arborist, because “pruning” is not to be protected by the covenant.
[55] The reasoning of the Environment Court has to be read in the context of the nature of the pruning that took place on the site. A relevant reasoning is contained in the following paragraphs:
[27] We find from the photographs attached to Mr van Brandenburg’s first affidavit that before 6 May 2004 – the date of the consent order – the large trees on the site, many of which (e.g. the Wellingtonias or the Metasequoia) had low sweeping branches, formed a wall of vegetation parallel with but above the western shore of Lake Hayes. Underneath and around the trees there was lower dense vegetation so that the historic Threepwood homestead nestled into a ‘thick belt of vegetation’ against the southern side of Slope Hill to the west of Lake Hayes. That vegetation screened the gently rising land behind the belt from sight from the eastern side of Lake Hayes; and in particular from the public places there – the walkway along the lake front, the Bendemeer Reserve on the terrace between the lake and State Highway, and the State Highway itself.
[28] Clearly something has happened to the trees on the Lake Hayes site because the three expert witnesses called to be cross-examined – Mr van Brandenburg himself (an architect) and two landscape architects, Mr A D Rewcastle (for the Council) and Ms M K Snodgrass (for Meadow 3 Limited)
– agreed that many parts of the site are now visible from the other side of
Lake Hayes which were not so before. Our site inspection in their presence confirmed that the proposed lots for subdivision had signs on them which were clearly visible behind the remaining trees from many public places on the eastern side of the Lake.
[56] Following these two paragraphs there is a detailed set of findings of fact as to what was recommended by an arborist, Mr David Finlin, what happened, and then moving on to conclusions. In summary, a large number of mature trees on the old avenue have been felled. Most of the remaining trees on the old avenue have been limbed up. A number of small trees and lilac bushes towards the end of the drive approaching the homestead have been removed. A number of trees around the homestead have been removed.
[57] The Court found that the effect of the removal of the vegetation was that the houses and curtilage areas on Lots 17, 18 and 19 would be visible under the limbed canopy from various points on the east and south sides of Lake Hayes. The cottages would be clearly visible from the east. Lots 9, 10, 11 and 13 are visible, with the last the most conspicuous.
[58] These findings were made in the context of a conclusion:
[81] In summary, the Ladies Mile Landscape Plan consistently suggests that, since the homestead is generally visible, houses on Lots 1-19 are not to be seen from the eastern side of Lake Hayes.
This is stated more fully in paragraph [84]:
[84] More important are our earlier factual findings that houses on Lots
10, 11, 12, 13, 18, 19, and possibly 17, will be visible – and that cottages on
Lots 21 to 23 will be very visible when looking at the homestead and landscape from across Lake Hayes. The houses on Lots 17, 18 and 19 will be visible not simply because trees have been removed from area A on the Ladies Mile Landscape Plan, but also because of the major delimbing and pruning that has taken place along the Old Avenue.
[59] The conclusion in paragraph [84] does not flow from any error of law. It does not depend on the reasoning in paragraph [77] which taken on its own might suggest that the landscape plan is read as a rule that existing trees are not to be removed or altered. I do not think that was the Court’s intention in any event as in paragraph [83] the Court specifically acknowledged that in area ‘C’ removal of some trees may be required.
[60] Nor does it follow that there is an error in respect of the consequences of the limbing of trees because there is no prohibition against pruning.
[61] What the Environment Court has done is read the Landscape Strategy with the plan and drawn the inference that the two documents intended to preserve the screening effect of existing vegetation, if not enhance them. This is summed up in paragraph [81] of the decision set out above in respect of Lots 1 to 19 and in respect of the cottages. They are now going to be “very visible” due to the fact that of the 11 blue circles representing the approximate location of various existing trees only one walnut tree now remains.
[62] Both the landscape plan and strategy documents impose criteria and goals. They are not a set of rules viewed separately or together. However, there is nothing in the RMA which requires methods of enforcement to be sets of rules. It is frequently the case that the holder of the consent must conform to standards. I am satisfied that this is a case where the standards imposed by the plan and strategy have been clearly breached.
Has condition 5 been complied with?
[63] Condition 5 of the land use consent requires a planting/landscaping plan to be submitted and approved prior to any development of the site. That plan is to include a management plan. Before the Court Mr Wallace for the developer submitted that the felling of trees and limbing of others was not development. The Court rejected that argument finding that once the land use consent is granted the landowner is implicitly barred from carrying out any activity even if allowed under the District Plan which would make it impossible to carry out the terms and conditions of the consent. The Court also found that condition 5 of the land use consent was contravened in terms of s 314(1)(a) of the Act by the carrying out of development before approval of a planting plan.
[64] In this Court Mr Wallace argued that condition 5 has to be read in the context of condition 9. This latter condition expressly envisaged that vegetation would be removed from any areas excavated for infrastructure services, roading or buildings. Therefore he submitted the Court was wrong to conclude that the plans required by condition 5 of the land use consent envisaged that existing vegetation will remain where it is.
[65] I do not find this argument to have any appeal at all. This case is not about vegetation being removed from areas excavated for infrastructure services, roading or building platforms. It is a semantic argument to submit that the felling of trees and limbing of others is not part of the development of the site. In this particular context, of course it is. It was plainly undertaken to develop lines of sight from the building platforms to the Lake. That is plainly development. In any use of the word the felling and limbing of trees is part of landscaping.
[66] However, this is not a significant issue in the totality of the case. The more significant findings being breach of the landscape plan and Landscape Strategy.
Has condition 15 been complied with?
[67] Condition 15 requires a covenant to be registered on the title in respect to certain Lots. The Court found that the consent holder has put condition 15 out of its power to perform because some of the trees to be protected no longer exist.
[68] The question of compliance with condition 15 is again a distinct question from compliance with the plan and the Landscape Strategy. It is addressed to the placing of covenants on the new titles to ensure that the planting proposals contained in the landscape plan are met. If those proposals are breached the application of the covenant will be rendered futile. This is what the Court found. But there is nothing in the condition which requires the requirements of the plan and planning strategy to be read down. It is a condition subsequent. It does not narrow the scope of the plan and strategy.
Cottages consent – what was required?
[69] The appellant argued here that the plan did envisage some removal of trees from the cottage area. This is an argument which does not bear upon the case, for the case is not one where one tree was removed but rather where all the trees were removed except one.
Can a resource consent be abandoned?
[70] After the Environment Court found that a number of Lots will be visible and the cottages very visible as a result of the removal of the vegetation (see paragraph [84] above) the Environment Court went on:
[85] Those actions by the consent holder or its agents mean that has put compliance with the land use consent out of its power to perform. Thus meadow 3 Limited has contravened the land use consent.
[86] Unless and until new houses are built on the land it is arguable whether the silvicultural work on the land has, in itself, caused adverse effects on the environment. There are fewer Lombardy Poplars behind the homestead to add their lambent effects to the autumn views across Lake Hayes, but we heard insufficient evidence as to whether that is aesthetically bad or good. We are also unsure as to whether the effect, if bad, contravenes the resource consent.
[87] However, we find that the next step – commencement of building – will very likely cause serious adverse effects on the Lake Hayes environment, especially its landscape when looked at from the east side of the lake.
[71] Those findings in turn led the Court to find the consent holder had “abandoned the land use consent”. This finding is contained in paragraph [110] which comes under the further discussion of the cottage consent:
[110] We agree with Mr van Brandenburg that key implies that that process is intended before Meadow 3 Limited removed the vegetation, so that the best location of the cottages could be determined and approved. That did not happen. Indeed we find there is no possibility of any cottages
‘nestling’ into vegetation at present because there is not any vegetation to nestle into. We also find that the 75 or so trees on the (approved)
Implementation Plan leave no room to accommodate the cottages in the
‘Design Approval’ Plan. That reinforces a finding that Meadow 3 Limited has abandoned the land use consent as granted on 6 May 2004.
(Emphasis added)
[72] The appellant challenges that finding as an error of law. Mr Page argued that a resource consent is entirely a creature of the Act and nothing can be done with and to a resource consent nor a resource consent lapse or be abandoned unless the Act so provides. Counsel submits there is nothing in the Act that refers to abandonment. Rather, the Court had in mind circumstances where consent may well not be able to be exercised, but submitted that does not have the effect of making it cease to exist as a legal instrument under the Act.
[73] Mr Parker, counsel for Mr van Brandenburg, argued that the Environment Court had used the term “abandoned” in the context of a consent holder that by its actions had, in fact, acted in a way so as to frustrate its ability to comply with the resource consents. Use of such a term is not objectionable. The Court was not finding that the consent had not been exercised. It was considering the wrongful execution of a resource consent.
[74] Mr Todd for the second respondent submitted that if one does not complete or give effect to what is proposed in terms of the grant of a resource consent then it can be said, notwithstanding the term is not strictly referred to in the Act, that the applicant has “abandoned” that consent. He submitted the consequence of which is that the consent holder may subsequently allow the consent to lapse (s 125 of the Act), be surrendered (s 138) or seek a variation (s 127). He argued that the landowner, having chosen to remove vegetation from its property in the context of the land use consent which contemplates that vegetation will be relied on to screen, or at the very least, mitigate the effects of development, it could be said to have “abandoned” any resource consent that it might otherwise hold authorising development to occur where a condition of that consent (either expressed or implied) requires such vegetation to remain.
[75] It is always dangerous for any regulatory authority or Court to use in its analysis of a statute a concept which cannot be found in that statute. The notion of abandoning a resource consent is not found expressly in the Resource Management Act.
[76] Section 123 addresses the duration of consents and has to be read with s 125.
[77] The most relevant provision is s 123(b) which provides:
123 Duration of consent
Except as provided in section 125,—
…
(b) Subject to paragraph (c), the period for which any other land use consent, or a subdivision consent, is granted is unlimited, unless otherwise specified in the consent:
Section 125 provides:
125 Lapsing of consent
(1) A resource consent lapses on the date specified in the consent or, if no date is specified, 5 years after the date of commencement of the consent unless, before the consent lapses,—
(a) the consent is given effect to; or
(b) an application is made to the consent authority to extend the period after which the consent lapses, and the consent authority decides to grant an extension after taking into account—
(i) whether substantial progress or effort has been, and continues to be, made towards giving effect to the consent; and
(ii) whether the applicant has obtained approval from persons who may be adversely affected by the granting of an extension; and
(iii) the effect of the extension on the policies and objectives of any plan or proposed plan.
(1A) Sections 357A and 357C to 358 apply to subsection (1)(b).
(2) For the purposes of this section, a subdivision consent is given effect to when a survey plan in respect of the subdivision has been submitted to the territorial authority under section 223, but shall thereafter lapse if the survey plan is not deposited in accordance with section 224.
(3) This section is subject to section 150G.
[78] The term “resource consent” in s 125 is defined in s 87 which provides relevantly:
87 Types of resource consents
In this Act, the term resource consent means any of the following:
(a) A consent to do something that otherwise would contravene section 9 or section 13 (in this Act called a “land use consent”):
[79] Taking these provisions together a land use consent which does not provide expressly for a duration is unlimited in duration provided it is “given effect to” within five years after the date of the commencement of the consent.
[80] Mr van Brandenburg had sought from the Environment Court a declaration that the consent holder has failed to execute the land use activity in accordance with the consent order (I am using the wording from paragraph [113] of the judgment slightly adapted, the actual words of the notice of motion were more detailed). He then went on to argue that as a result of the failure to comply with the land use consent order (conditions 1, 5 and 15) and condition 1 of the subdivision consent that there be a declaration that that precludes the issue of a certificate under s 224(c) of the Resource Management Act. Section 224(c) provides:
224 Restrictions upon deposit of survey plan
No survey plan shall be deposited under the Land Transfer Act 1952 or with the Registrar of Deeds for the purposes of section 11(1)(a) unless—
…
(c) there is lodged with the District Land Registrar or the Registrar of Deeds, as the case may require, a certificate signed by the chief executive or other authorised officer of the territorial authority stating that, it has approved the survey plan under section 223 (which approval states the date of the approval), and all or any of the conditions of the subdivision consent have been complied with to the satisfaction of the territorial authority and that in respect of such conditions that have not been complied with—
(i) a completion certificate has been issued in relation to such of the conditions to which section 222 applies:
(ii) a consent notice has been issued in relation to such of the conditions to which section 221 applies:
(iii) a bond has been entered into by the subdividing owner in compliance with any condition of a subdivision consent imposed under section 108(2)(b); …
[81] The power to make declarations comes under Part 12 of the Act addressing declarations, enforcement and ancillary powers. Section 310(c) provides:
310 Scope and effect of declaration
A declaration may declare—
…
(c) Whether or not an act or omission, or a proposed act or omission, contravenes or is likely to contravene this Act, regulations made under this Act, or a rule in a plan or proposed plan, a requirement for a designation or for a heritage order, or a resource consent; …
[82] Declarations are distinct from enforcement orders. Section 314 deals with scope of enforcement orders and provides relevantly:
314 Scope of enforcement order
(1) An enforcement order is an order made under section 319 by the
Environment Court that may do any one or more of the following:
…
(b) Require a person to do something that, in the opinion of the
Court, is necessary in order to—
(i) Ensure compliance by or on behalf of that person with this Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or
(ii) Avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person:
(c) Require a person to remedy or mitigate any adverse effect on the environment caused by or on behalf of that person:
[83] It can be seen that Parliament envisaged that a land use consent can be breached, without it lapsing. In s 314(1)(b) and (c) the Court is given powers to require a person to remedy any adverse effect. The power, however, to cancel a resource consent is circumscribed and appears in s 314(e):
(e) Change or cancel a resource consent if, in the opinion of the Court, the information made available to the consent authority by the applicant contained inaccuracies relevant to the enforcement order sought which materially influenced the decision to grant the consent:
[84] That section is also referred to in s 319(3)(b):
319 Decision on application
…
(3) The Environment Court may make an enforcement order if—
…
(b) the person was acting in accordance with a resource consent that has been changed or cancelled under section 314(1)(e).
[85] The scheme of the Act is that where resource consents are breached compliance orders can be made to remedy the breach.
[86] Counsel for the appellant is correct in his submission that while there may be circumstances where a consent may not be able to be exercised, and so will lapse, there is no concept of abandonment. The alteration or removal of a physical resource making it impossible for a consent to be put into effect is not of itself an act
or omission which contravenes or is likely to contravene the Act and so is a subject for declaration under s 310, but is not a subject for an enforcement order under s 314. If the alteration or removal can be undone the holder of the consent may well be able to put him, her or itself back into a position where the consent can be given effect to.
[87] Paragraph [110] of the decision under appeal is a finding that by removing the vegetation Meadow 3 Limited has placed itself in a position where it can no longer give effect to the land use consent as granted on 6 May 2004. Inasmuch as that is all paragraph [110] is read to say, and one ignores the concept of abandonment, then it is a finding of fact, which is not subject to challenge for error of law.
[88] The significance of that finding of fact is another matter. It was made by the Court in a context where the Court had implied into the subdivision consent the vegetation and landscaping requirements of the land use consent. That has been held to be in error of law. The question which now arises is whether or not a finding that the land use consent cannot be given effect to, as a matter of fact, has any relevance to the ability to give effect to the separate subdivision consent.
The legality of the Environment Court’s declarations
[89] The Environment Court made the following declarations:
[152] Having regard to all the matters discussed in this decision and all our findings of fact and law, the Court will make declarations to the effect that:
(1) under section 310(c) of the RMA that:
• the felling of trees in area C on the Ladies Mile Landscape Plan;
• limbing up and pruning of trees in area A on the Ladies Mile
Landscape Plan;
- contravened the land use consent because it was not in accordance with the Ladies Mile Landscape Plan and/or the Landscape Strategy;
(2)under section 310(a) and 310(h), that the approved Armada Plans and planting in compliance with them does not remedy the non- compliances identified in (1) above;
(3)under section 310(a), that the land use consent granted under the consent order dated 6 May 2004 is currently invalid and voidable because it can no longer be performed and/or has been abandoned;
(4)under section 310(h), that unless and until the consent holder obtains a variation of the land use consent that consent cannot be exercised; that is, residences cannot be built on the residential building platforms;
(5)under section 310(a) and (b), that the residential building platforms on Lots 10, 11, 13, 17, 18 and 19 shown on any survey plan giving effect to the Master Scheme Plan are consequentially invalid because there is no longer any right to build residences on them;
(6)under section 310(a) of the RMA that the Queenstown Lakes District Council does not have a duty to, and should not, issue section 223 and/or section 224 certificates for Meadow 3 Limited’s current survey plan showing the residential building platforms as on the Master Scheme Plan or Ladies Mile Landscape Plan.
[90] The findings that I have made so far do not disturb declarations 1 and 2. On the basis of the findings in this judgment declaration 3 cannot stand. Rather, the Court has simply made a finding of fact that that land use consent cannot currently be given effect.
[91] The balance of this judgment now addresses the legality of declarations 4, 5 and 6. These declarations are underpinned by two findings. The first is the erroneous finding that compliance with the Ladies Mile Landscape Plan and the Landscape Strategy is a condition of the subdivision consent. The second is as follows:
[128] Even if we are wrong about that, condition 7 of the subdivision consent expressly requires the applicant for a consent to supply a scaled plan identifying the building platforms.
[129] Therefore the Council should neither sign a certificate under section
223(2) stating that the survey plan conforms with the subdivision consent, nor a certificate under section 224(c) stating that condition [7(e)] of the
subdivision consent has been complied with, because the residential building platforms identified on the survey plan are invalid.
[92] I have explained earlier in the judgment the reasoning of the Environment Court in this regard. See above paragraphs [5] to [9] of this judgment. Once the land use consent is considered as a separate set of conditions from the subdivision consent there is no basis for that additional clause: “because there is no longer any
right to build residences on them”. On the contrary, though there may be no existing right a new title holder could apply for resource consent for a single residence on any one allotment as the Environment Court itself recognised in the last sentence of its paragraph [126] quoted above in paragraph [9] of this judgment. There is nothing under the RMA which prevents a subdivision consent identifying building platforms, usually to pursue overall landscape objectives, leaving it to the individual title holders to subsequently apply for resource consent for a dwelling postponing to that point in time the location, bulk and appearance, if necessary, of the dwelling itself.
[93] Accordingly, the two reasons given in paragraphs [127] and [128] of the judgment for justifying declaration 4 proceeds upon an error of law. So did declarations 5 and 6, as they are consequential.
Relief
[94] Mr van Brandenburg filed two applications to the Environment Court: for declarations and, second and separately, for enforcement orders. The Environment Court made the declarations only. The Environment Court said:
[154] Since we are granting declarations that the resource consents are unimplementable, we see no need to make enforcement orders at this stage. However, we reserve leave for Mr van Brandenburg to renew his application, or for the council to apply for further orders, or for any party to request that the Court make orders under the existing application. If the enforcement proceedings are pursued we would wish to hear evidence from the expert witnesses on whether a combination of further planting and a fence or wall west of the new planting, i.e. along the eastern edge of the residential building platforms on Lots 18 and 19, would mitigate the adverse effects. We would want evidence on the general merits (or not) of a fence or wall versus mounding, and specific evidence on height, colour and permanence of such a barrier.
[95] The outcome of this appeal is that the Court has found that declarations 3, 4,
5 and 6 were made in error of law. They are set aside.
[96] This Court did not hear any argument as to what alternative declarations and/or enforcement orders might be made given the findings of fact by the Environment Court, none of which have been disturbed by this judgment. The appellant counsel has advised this Court that the principal relief they seek is to quash
the declarations concerning the Council’s ability to issue a s 224(c) certificate. Further, that the remainder of the issues may be referred back to the Environment Court for reconsideration of a correct interpretation of the resource consents.
[97] Counsel have also advised the Court as follows:
Meadow 3 Limited has offered to undertake significant remedial planting and landscaping, and remains prepared to do so. It has applied for variations to the subdivision consent and has prepared an amended landscape plan to address the issues. It does not seek to avoid responsibility for what has occurred.
[98] The second respondent has advised the Court that the appellant has advised a fresh application for resource (subdivision) consent but only to the extent that the same seeks authorisation for the staging of the subdivision of the Ladies Mile portion of the site. Whilst it may have prepared an amended landscaping plan “to address the issues” such has not been submitted to the Council for approval or as part of any variation.
[99] While this Court has found that the land use consent is separate and distinct from the subdivision consent it does seem likely that there is a commercial relationship between giving effect to both consents, for purchasers of individual building platforms will have an interest in the neighbourhood that they are buying into. It may well be that the removal of the declaration that the Council does not have a duty to and should not issue ss 223 and/or 224 certificates may not have the consequence feared by the Environment Court that the developer will have evaded the conditions imposed under the land use consent. There is a distinction between the possible ability of the developer to do so as a matter of law and the commercial likelihood of the developer wanting to do that.
[100] I am satisfied that the submission of the appellant as to relief is correct. Accordingly, the orders of this Court are:
1. Declarations 3, 4, 5 and 6 are set aside.
2. The remainder of the issues are referred back to the Environment
Court for reconsideration.
3. Costs are reserved.
[101] In elaboration of the costs question I have no view as to where costs should fall on this appeal. I will hear submissions if the parties wish to take the question of costs further.
Solicitors:
Tomlinson Paull, Christchurch, for Appellant
M E Parker, Queenstown, for First Respondent
Macalister Todd Phillips, Queenstown, for Second Respondent
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