Shell New Zealand Limited v Porirua City Council HC Wellington CIV-2003-485-1476
[2005] NZHC 1315
•21 March 2005
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2003-485-1476
UNDER
IN THE MATTER OF
the Resource Management Act 1991
an appeal pursuant to s 299 of the Resource Management Act 1991
BETWEEN
SHELL NEW ZEALAND LIMITED
Appellant
AND
PORIRUA CITY COUNCIL
Respondent
AND
BP OIL NEW ZEALAND LIMITED
Applicant
AND
PAREMATA RESIDENTS ASSOCIATION
S 301 Party
Hearing:
9 March 2005
Appearances: No appearance for Appellant
J G A Winchester for Respondent
I M Gordon and M J Slyfield for ApplicantR J S Munro for Paremata Residents Association Judgment: 21 March 2005
JUDGMENT OF GODDARD J
re: remaining grounds of appeal
[1] Pending determination of the jurisdiction issue, five further grounds of appeal were left over and now require the determination of the Court. The first is the second ground of appeal relied on by Shell and supported by the Paremata Residents Association. The remaining four grounds of appeal were matters raised by the Paremata Residents Association as alleged errors of law.
SHELL NZ LTD v PORIRUA CITY COUNCIL and anor HC WN CIV-2003-485-1476 [21 March 2005]
Second ground of appeal raised by Shell: did the Council take into account irrelevant matters under s 104(1)(a) and (d) of the Act?
[2] Shell’s second ground of appeal alleged that the Environment Court erred by taking into account irrelevant matters under s 104(1)(a) and (d) of the Resource Management Act 1991 by erroneously considering the adjoining suburban shopping centre when having regard to the effects of granting the application on the environment (s 104(1)(a)); and that it had extended this error to an assessment of the application against the objectives and policies of the operative district plan.
[3] Section 104 of the Act required the Environment Court to have regard, inter alia, to the following matters:
(a)any actual and potential effects on the environment of allowing the activity; and
…
(d)any relevant objectives, policies, rules, or other provisions of a plan or proposed plan.
[4] The essence of Shell’s argument is that consideration of the proximity of the shopping centre in the zone immediately adjacent to the suburban zone in which the service station was to be sited was irrelevant to the Court’s consideration of the actual and potential effects of allowing the activity of a service station on that particular site. Also, that the district plan’s objectives and policies for the suburban shopping centre zone were irrelevant to the assessment of BP’s application. Essentially, Shell’s argument amounted to a contention that the Environment Court’s evaluation of the possible effects on the environment, and on other activities as of right under the district plan, was confined to an assessment within the suburban zone and to be made without regard for the immediately proximate or wider environment. Mr Stevens pointed to various findings of the Environment Court, such as the following, as illustrative of what Shell said was the Court’s erroneous approach:
… the site is most suitable for the proposal. And in terms of the emphasis placed on maintaining and enhancing the amenity values of Mana within the objectives and policies, we conclude that there will be no loss of residential amenity as a result of this proposal …
The commercial influence on the site’s character from the [Suburban Shopping Centre Zone] is thus important to recognise. … this is a mixed use receiving environment and that part of the proposal’s context is the shopping centre, regardless of where lines on the district plan are drawn.
… the existing visual amenity and character of the Mana area are not theoretical matters determined by the location of zone boundaries.
… We conclude, the possibility of residential detraction has to therefore be considered in the context of the area’s atypical Suburban zone ‘environment’ which ranges from a petrol station to a supermarket, sports fields, motels, houses and a railway station, as well as a mix of small commercial activities.
Nor do we see an expansion of commercial activities as necessarily bad. For we do not see this site as likely to attract residential use given the proximity of SH1, the railway and the shopping centre. We conclude that the proposal is not contrary to objective C3.3 nor its related policy. We consider too that neither are strictly relevant.
The aspects of the scale and commercial character of the proposal concerned us more than any others. Services stations are extremely difficult to place within a residential context … and this is no exception. The aspects which assist BP in this case are the [Suburban] Shopping Centre zone adjacent, the transportation corridor in which it is located and the amended landscaping proposal …
[5] Mr Stevens further submitted that the above findings were made by the Court notwithstanding its acknowledgement that the Council had reviewed its district plan after BP’s original application in 1991 was declined and had rejected making provision for BP to establish a service station on the subject site via a zone change on a site-specific basis.
[6] In response to Shell’s argument, Mr Gordon for the Council pointed to the definition of “environment” in s 2 of the Act, which is broad and inclusive and which, for the purpose of s 104, refers to the “existing environment” overlaid with such relevant activity (not being fanciful) as is permitted by the district plan: Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473 at 479-481 and Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 at 333 and 335.
[7] Mr Gordon further submitted that there is no authority that states that the extent of the environment, for the purposes of a s 104(1) assessment, is to be defined by zones and therefore Shell’s approach to that issue was incorrectly predicated on a misunderstanding of the district plan. He said this misunderstanding was clear from Mr Steven’s reference to a suburban shopping centre as a “zone”. He said that a
suburban shopping centre is an area within a suburban zone, rather than a separate zone.
[8] It is evident from the decision of the Environment Court that the Court had regard, as it was required to do, to the matters set out in s 104 of the Act. As part of its expert assessment of any “actual and potential effects on the environment of allowing the activity” it was required to consider whether the proposal was consistent with the amenity and character objectives and policies for the suburban zone, even though (as it expressly noted) the objectives and policies specific to the suburban shopping centre were not “strictly relevant” to its consideration. The Court adopted a thorough approach and made its evaluation by reference to the potential impact of the proposed activity on the Mana environment as a whole and in “the context of the area’s atypical Suburban zone ‘environment’” and its “mixed use receiving environment”. This broad definitional approach relevantly took into account that the range of activities in the proximate area was not confined to residential housing alone but ranged “from a petrol station to a supermarket, sports fields, motels, houses and a railway station, as well as a mix of small commercial activities”. When that wider environmental context is taken into account, it is impossible to conclude that the Environment Court took any irrelevant matters into account under s 104(1)(a) or (d) of the Act. On the contrary, it is clear that the Court was assiduous in ensuring that every possible relevancy was considered. It did not have to have regard to the objectives and policies specific to the shopping centre but the shopping centre itself was part of the immediately proximate environment, in respect of which any actual and potential effects of the service station had to be considered and assessed.
[9] In my view, the Court’s reasoning was both rational and thorough. It has not overlooked any relevant or potentially relevant factor, including the Council’s earlier decision not to make provision for BP to establish a service station on the site b a zone change on a site-specific basis. Accordingly, I can find no error of approach apparent on the face of the Environment Court’s decision and this ground of appeal must fail.
Consent said to maximise use of existing resources
[10] Under this heading, the Paremata Residents Association sought to argue that there is no evidence to support the Environment Court’s finding that a grant of resource consent would result in the “maximisation” of existing resources; or that any such inference could be validly drawn from the available evidence.
[11] The Environment Court approached this aspect by first identifying the relevant plan provisions:
We assess the various propositions put in the terms in which they are set out. First of all we identify the content of the relevant plan provisions which are relevant to this proposal.
…
Site Suitability
Objective C3.1 seeks:
To Encourage Suburban Activities to Utilise Land Most Suitable for that Purpose
The Explanation to Objective C3.1 identifies that the council will encourage the suburban use of land which is suitable for urban development on the basis that it can be serviced with reticulated water and sewerage systems, is able to be provided with appropriate roading, access and parking, and has not topographical or natural hazard constraints, which would preclude development. It is stated the suitability of the land in sustainable management terms means not only its physical suitability, but also means maximising the use of the existing resources, including infrastructure.
[12] Having set out the above objective and the explanatory note to it, the Environment Court then discussed the application of that objective to the facts and the evidence in the case and made its findings accordingly:
We conclude that what the objective itself requires is encouragement by the relevant authority for the utilisation of land most suitable for the purpose of the identified suburban activity. It does not have to be the most suitable land. Mr Hughes, in effect, acknowledges this with his opinion that the objective is designed to ensure that suburban activity should be encourages to utilise land which is most suitable for a particular purpose – after appraisal of the environmental considerations which may apply at the site. We have made that appraisal and have found the actual and potential environmental considerations of the proposal not unduly adverse. And because the land
does not have to be the most suitable for its intended use, it is within the frame of sustainable resource management for the council to allow a service station on this site.
The plan specifies four activities as discretionary in the zone (service stations, vehicle yards, state highway vehicle crossings, and shops outside the Shopping Centre areas), as well as those which are permitted as of right, which can utilise this land. In terms of the criteria in the Explanation, the proposed activity is a service station containing a shop. It can be adequately serviced and is in an area with all the necessary requirements to sustain its operation, such as roading, access and parking. It does not have topographical constraints. It thus meets the identified criteria and this maximises the use of existing resources such as infrastructure.
[13] Mr Munro submitted that the finding that the proposed activity “maximises” the use of the land was clearly one component of the Court’s overall view of the merits and one that had directly affected the final outcome. Thus it was an important finding. He was critical of the findings having been reached by way “an alarming jump unsupported by fact or analysis” and submitted that to have reached a valid factual finding on whether an activity “maximises” use of existing resources required the Court to have identified the existing resources; to have considered at least one other possible use of the land (for example, for residential housing and/or a retirement village); to have identified which existing resources were to be used in each such possibility and which were not; to have compared the extent of such use in two or more proposals; and to have reached a conclusion on maximisation limited or unqualified according to the extent of evidence. Mr Munro contended that the Environment Court had undertaken no such process in relation to the infrastructure already “on site” and therefore it was not open to the Court to reach any valid conclusion on the issue. Furthermore, he submitted, the Court paid no particular regard to the “efficient use” of the site’s natural and physical resources, which should have been considered in conjunction with the issue of maximum use.
[14] With respect, I find no substance in this ground of appeal. The Environment Court’s conclusion that the proposal “maximises the use of existing resources such as infrastructure” was clearly a conclusion open to the Court and one it was entitled to reach on the evidence before it. The use proposed did not have to be the most suitable for the land so long as it was a suitable use of the land. The approach taken by the Court in reaching this conclusion cannot be challenged either. The Court commenced its consideration of the issue by identifying the relevant objective;
expressly referred to the expert planning evidence that had been given by the various witnesses (which was more to the point than endeavouring to reason by way of hypothetical example); found that the actual and potential environmental considerations of the proposal were not unduly adverse; found that the activity could be adequately serviced in the area by roading access and parking etc; and found that the area had no topographical constraints and thus met the identified criteria and that this “maximises the use of existing resources such as infrastructure”. That conclusion constituted a valid factual finding, reached in the context of the objective, and supported by careful and well articulated reasoning. As noted, that underlying reasoning did not need to draw on hypothetical comparisons for validity by using examples of possible uses not the subject of any applications before the Court.
[15]This ground of appeal must fail.
Likelihood of residential use
[16] This alleged error of law was said to lie at the heart of the Paremata residents concerns. It related to the following observations of the Environment Court at paragraphs 330 and 349:
Nor do we see an expansion of commercial activities as necessarily bad. For we do not see this site as likely to attract residential use given the proximity of SH1, the railway and the shopping centre. We conclude the proposal is not contrary to Objective C3.3 nor its related policy. We consider too that neither are strictly relevant.
[17] This is the same passage that was criticised by Shell in its second ground of appeal (which I have dealt with above). As Shell conceded, and as the last sentence of the paragraph makes clear, an evaluation of objective C3.3 and policy C3.3.1 was not strictly relevant to the Environment Court’s overall task but for the sake of completeness the Court nevertheless took the objective and policy into account. This thoroughness reflects the care with which the Environment Court went about its task of expert assessment.
[18] Mr Munro submitted that the Court’s conclusion that the site was unlikely to attract residential use was contrary to the evidence from the residents, contrary to
other facts accepted and referred to in the judgment, and unsupported by any evidence other than the Court’s “own view in forming such a vital finding against the position argued by the residents”.
[19] The other “accepted” facts referred to by Mr Munro were acknowledgements by the Environment Court that flat sites for urban development are scarce in Mana; that there was evidence of a robust new residential development opposite the site; that other infill housing was occurring; that townhouses not far from the site and next to the railway track had sold for over $300,000 per unit; and that Mana has four times as many elderly residents over the age of 65 years as Porirua City as a whole. Mr Munro submitted that, from the above accepted facts, an inference that older persons may prefer residential flat sites close to facilities was open to the Court.
[20] However, as Mr Winchester pointed out, the evidence before the Court was that the owner of the land was not interested in selling the land for residential use. The had earlier considered and explored the viability of a residential use of the land and was now clear that he no longer wished to do so. Therefore, the Court was entitled to rely on the evidence from the owner and from BP that the land was not available for residential use; this, no matter what contrary desires were expressed by the Paremata Residents Association.
[21] In paragraph 248 also, the Court found that “the likelihood of residential development on this site is, on the information before us, uncertain”. Mr Gordon suggested that the uncertainty referred to by the Court may have derived from Mr Black’s own evidence concerning the perceived commercial value of the land. That value has in the past made non-commercial development of the site uneconomic. The Court identified the particular elements likely to make the site unattractive to residential use (the proximity of SH1, the railway and the shopping centre) and considered the conflicting evidence on the matter. The opinion reached by the Court on the issue was open to it as an expert body.
[22] In conclusion, the Court’s finding on the likelihood of residential use was open to it on the evidence before it and reached after a consideration of the site’s character and surroundings, which were of a “mixed use character”. Essentially, as
the Court found, the character and surroundings amounted to “a transport corridor with some residential properties immediately adjacent” and that non-commercial development of the site was uneconomic.
Whose points of view were before the Court – jurisdiction
[23] This alleged error of law overlaps with the second ground advanced in support of the application for leave to appeal; namely, whether there should have been public notification of the proposal additional landscaping and whether the Paremata Residents Association was truly representative of the residential public in the vicinity of the application site.
[24] This alleged error of law has already been dealt with in my substantive judgment and again in determining the application for leave to appeal. Suffice to say that the Association advised the Environment Court that it had a mandate to represent affected residents. It also had ample opportunity to address the proposal for additional landscaping at the appeal hearing before the Environment Court. There is no substance in this point and it must fail.
Failure to correctly interpret plan signage policy
[25] Under this head, the Association submits that the Environment Court erred in finding that nine commercial BP signs, including one large main identifier sign, were acceptable under District Plan Policy C13.1.1. District Plan Policy C13.1.1 permits signage:
… in those areas where they will contribute to the commercial or industrial character and where the site activities benefit from advertising, and restrict the number and size of signs, where they will detract from the character and amenity of the area.
[26] Mr Munro submitted that the principal reasons for the policy are that in the suburban zone advertising signs are not consistent with the general character and amenities of the zone, in that such a zone does “not generally contain activities that can justify large-scale commercial advertising zones”.
[27] Mr Munro further submitted that the overall tone of C13.1.1 is “plainly restrictive, and does not facilitate commercial signage, particularly large signage”. Further that the policy applies to all sites in the suburban zone.
[28] After setting out Policy C13.1 and C13.1.1 and its explanatory note and the principal reasons for the policy, the Court referred also to Policy C13.1, which anticipates environmental outcomes for signs. The Court then traversed the evidence relevant to the issue of signs and noted:
BP appears to concede the appellant’s case on this issue and has agreed that the facility shut down from 10.00pm. Otherwise we accept Mr Hughes’ appraisal that the BP signage is not untoward in the context of what else exists in the locality.
[29]The Court then concluded:
Whilst there will be actual visual effects from the proposed signage during the daytime, they are acceptable within the scale of what already exists. At night-time the lit signage is to be turned off from 10.00pm to avoid any perceived adverse effects on the residents’ night-time visual amenities.
[30] Mr Munro’s submission that the Environment Court misapplied Policy C13.1.1 seems predicated on an interpretation that signage is not permitted in suburban zones. However, as service stations are not excluded from the suburban zone and are a discretionary use, signage of a suitably discreet nature is clearly within the contemplation of the policy. Indeed the Court recognised this and made earlier references to the presence and visibility of commercial signage in (by way of example) paragraphs 215 and 281 of the judgment.
[31] It is clear from all of these references that the Court assessed the possible effects of commercial signage and concluded that the signs proposed in this case would be appropriate, apart from their effects on night-time amenity, and in that regard imposed a restriction on hours of operation. Significantly, this appears to have been a matter of concession in paragraph 347, and the subject of signage seems to have assumed a sharper profile on appeal than at the hearing.
[32] In conclusion, the Environment Court had due regard to the question of commercial signage and to the evidence relating to that and ultimately felt able to
reach a conclusion based on that evidence and on the concession made by BP. That conclusion cannot be assailed.
[33]This ground of appeal also fails.
Conclusion
[34]The appeal is dismissed.
Solicitors:
Phillips Fox, Wellington, for the Appellant Simpson Grierson, Wellington, for the Respondent Morrison Kent, Wellington, for the Applicant
Munro Law, Wellington, for the Paremata Residents Association
Delivered at 4.30pm on 21st March 2005.
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