Speargrass Holdings Ltd v Queenstown Lakes District Council
[2018] NZHC 1009
•9 May 2018
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2016-425-000121
[2018] NZHC 1009
BETWEEN SPEARGRASS HOLDINGS LIMITED
Appellant
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Respondent
AND
FLAX TRUST
Interested Party
CIV-2017-425-000062 BETWEEN
SPEARGRASS HOLDINGS LIMITED
First ApplicantAND
CHRISTOPHER SCOTT MEEHAN AND MICHAELA WARD MEEHAN
Second Applicants
intituling continued
Hearing: 12 to 15 February 2018 Appearances:
A J L Beatson and R A Rose for Speargrass Holdings Ltd and C S and M W Meehan
P J Page and S R Wells for Flax Trust and F P M and D M J van Brandenburg
N M Whittington and A H Balme for Queenstown Lakes District Council
Judgment:
9 May 2018
JUDGMENT OF DUNNINGHAM J
SPEARGRASS HOLDINGS LIMITED v QUEENSTOWN LAKES DISTRICT COUNCIL [2018] NZHC 1009 [9 May 2018]
AND FREDERIKUS PETRUS MARIA VAN BRANDENBURG AND DIANNE MARY JACQUELINE VAN BRANDENBURG
Respondents
CIV-2017-425-000078 BETWEEN
SPEARGRASS HOLDINGS LIMITED
Applicant
AND CHRISTOPHER SCOTT MEEHAN AND MICHAELA WARD MEEHAN
Second ApplicantsAND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Respondent
AND FREDERIKUS PETRUS MARIA VAN BRANDENBURG AND DIANNE MARY JACQUELINE VAN BRANDENBURG
Second Respondents
Table of Contents
Introduction.......................................................................................................... [1]
Background.......................................................................................................... [7]
PART A: THE ENVIRONMENT COURT APPEAL................................... [33]
Did the Environment Court err in law in deciding that what was built on the Speargrass site did not form part of the “environment” for the purpose of
s 104(1)(a) RMA?............................................................................................... [48]
Did the Court err in concluding that the effects of the earth mound were the same as the effects of trees without evidence to support that conclusion?......................................... [76]
Did the Environment Court Judge misunderstand and misapply the law as to the application of the permitted baseline when deciding to disregard the adverse
effects of the earth mound on the environment?.................................................. [85]
Was the Environment Court in error in considering matters relating to Speargrass’s activities on the Speargrass site when assessing the effects of the Flax Trust application?.... [98]
Conclusion on the Environment Court Appeal.................................................. [115]
PART B: THE JUDICIAL REVIEW PROCEEDINGS............................. [118]
Did the Council err in making the notification decision?.................................. [126]
Did the Council err in making the substantive decision?.................................. [184]
Should the Court, in the exercise of its discretion, decline relief?.................... [188]
PART C: THE PROPERTY LAW ACT APPLICATION.......................... [210]
Is the earth mound an unauthorised structure?.................................................. [215]
What are the effects of the earth mound?.......................................................... [233]
Is there undue interference with the use of the land for growing trees and with access to light?........................................................................................................................... [243]
Is there undue interference with the reasonable use and enjoyment of the land for residential purposes?........................................................................................................... [252]
What order, if any, should be made?................................................................. [267]
Conclusion........................................................................................................ [273]
Costs.................................................................................................................. [276]
Introduction
[1] These three proceedings all concern a large earth mound. It has been formed along the northern boundary of land owned by the trustees of the Flax Trust1 and abuts the boundary of the property at 88 Speargrass Flat Road, owned by Speargrass Holdings Ltd (Speargrass). Both properties are situated in the Wakatipu Basin near Queenstown, an area prized for its spectacular scenic views, including of the Remarkables and Coronet Peak.
[2] The earth mound is over five metres high. Flax Trust only had consent to build a mound less than three metres high. However, Mr van Brandenburg, a trustee of Flax Trust, gave the go-ahead to build the higher mound when he saw that Speargrass had been allowed to build much closer to the Trust’s boundary than had originally been approved. He did this primarily to protect the privacy of future purchasers of Flax Trust land.
[3] Speargrass, and the occupiers of the property at 88 Speargrass Flat Road, Mr and Mrs Meehan, say they are significantly adversely affected by the earth mound. They consider there are errors in the way that the Queenstown Lakes District Council (the Council) processed and granted the original application for resource consent which allowed construction of a lower earth mound. They also consider the Environment Court erred in law when it granted retrospective consent to increase it to more than five metres. Even if the decisions authorising its construction stand, they seek its removal under the provisions of the Property Law Act 2007 (PLA).
[4]Thus, the challenge to the earth mound is on the three fronts:
(a)An appeal of the decision of the Environment Court granting a variation of the resource consent authorising the construction of the mound, to increase its height to 5.1 metres above existing ground level (CIV-2016- 425-121) (the Environment Court appeal);
1 Mr and Mrs van Brandenburg are the trustees of the Flax Trust, but for convenience I will refer to them collectively as the Flax Trust.
(b)An application for judicial review of the decision not to notify the original application for resource consent permitting construction of the earth mound and the decision to grant it (CIV-2017-425-078) (the judicial review proceedings);
(c)An application for an order under s 333 PLA requiring the removal of the earth mound at the cost of the Flax Trust or its trustees, Mr and Mrs van Brandenburg (CIV-2017-425-062) (the PLA proceeding).
[5] As the parties accepted, these are three discrete proceedings, involving different legal issues, and relying on different evidence. The PLA proceeding also does not involve the Council. Furthermore, the outcome of one proceeding could have consequences for the factual matrix in which a subsequent proceeding is considered. For these reasons, the proceedings were not consolidated. However, as the factual background to each claim overlapped, and there was, generally, a commonality of parties, it was agreed that it would be most efficient to hear all three proceedings together, in the order set out in [4] above.
[6] For the same reasons, I set out my decisions on each proceeding in this single judgment, as it avoids repetition of the common chronology of events which gives rise to each proceeding, and facilitates the explanation of the interrelationship between them.
Background
The land and the land owners
[7] Both the land at 88 Speargrass Flat Road, and the Flax Trust land, are situated within a triangle of land, east of Dalefield near Queenstown, which is bordered by Lower Shotover Road, Domain Road and Speargrass Flat Road (the Triangle).
[8] Mr van Brandenburg has held interests in land in this area for some time. He is an architect and was involved in a comprehensive subdivision proposal for another block of land within the Triangle, where the property was to be developed by Hawthorn Estates Ltd using “an integrated system of mounds and ponds across all
sites to provide on-site amenity and privacy”.2 That development fell victim to the global financial crisis and did not proceed. However, he has implemented that landscaping concept in a later subdivision development in the Triangle: the Reflections subdivision in Birchwood Road. He and his wife also decided to implement this style of landscaping on the eight hectares of land owned by Flax Trust on Birchwood Road to the south of the Speargrass property, which is where the earth mound now sits.
[9] 88 Speargrass Flat Road was originally part of a block of land, approximately four hectares in area, with frontage on Speargrass Flat Road. In 2010 that four hectare block was owned by Winton Partners New Zealand Ltd (Winton Partners), a company related to the Meehan family. In May 2010 Winton Partners applied for subdivision consent (RM 100318) to divide it into four one hectare lots.
[10] In 2015 two of the four lots created by the subdivision, 86 and 88 Speargrass Flat Road, were acquired by Speargrass. Speargrass is the sole trustee of the Speargrass Trust, of which the Meehans are discretionary beneficiaries, and it proposed to develop a family home for the Meehans on 88 Speargrass Flat Road.
[11] When Winton Partners first proposed subdivision of the Speargrass Flat Road land, the Meehans and the van Brandenburgs were on good terms. They communicated regularly and it seemed they were agreed on their adjacent land holdings being subdivided and landscaped in a co-ordinated fashion. The subdivisions would reflect the mound and pond design philosophy that had originally been proposed for the Hawthorn Estates subdivision, with the aim of mutually protecting the amenity values and privacy for all allotments.
The subdivision of the Speargrass Flat Road land
[12] When Winton Partners applied for subdivision consent Mr van Brandenburg was happy to note that the landscape design contained a mound against the Flax Trust boundary and the building platforms were to be centrally located on the proposed lots.
2 Hawthorn Estates Ltd v Queenstown Lakes District Council EnvC Christchurch C83/2004, 23 June 2004 at [4].
That application for subdivision consent, RM 100318, was notified in June 2010 and granted in November 2010.
[13] As required by the conditions of consent, a consent notice (8860256.3) was registered on the titles to the subdivided lots on 13 September 2011 (the original Speargrass consent notice). It specified various obligations on subsequent land owners, including limitations on where buildings could be erected on the lots and what landscaping had to be maintained, reflecting the terms on which the subdivision consent had been granted.
[14] Not long after consent was granted, an application was made to vary the conditions of the original Speargrass consent notice as it applied to Lots 1 and 3. That application was not notified to Flax Trust. On 5 December 2011, resource consent RM 110186 to vary the original Speargrass consent notice, was granted.
[15] Among other changes, that consent varied the position of the building platform on 88 Speargrass Flat Road, moving it westward and significantly closer to the Flax Trust boundary. The building platform at the southwest corner of the property was now nearly nine metres closer to the boundary of the Flax Trust land.
[16]Condition 2 of RM 110186 provided:
Prior to works commencing on site, the consent holder and Council shall vary the consent notice and shall execute all documentation and attend to the registration of a new or varied consent notice.
However, the variations that had been authorised to the original Speargrass consent notice were not registered before work began on Lot 3, or before Flax Trust made its own subdivision consent application.
[17] In December 2011, Winton Partners applied for a further land use consent (RM 110820) to construct a dwelling and an accessory building containing a residential flat within the approved residential building platform on 88 Speargrass Flat Road, and to vary the landscaping conditions in the consent notice to include plantings of evergreen cedrus deodara trees on the southern boundary of the property between the house and the Flax Trust land, which would “significantly screen the proposed
buildings from all adjoining neighbours”. The consent was granted on 1 November 2012, but again, these variations were not registered before work began, although prior registration was a condition of RM 110820.
The subdivision of the Flax Trust land
[18] In June 2012, Flax Trust applied for subdivision consent to create eight residential lots on the Flax Trust land. That application, RM 120327, was granted on 12 November 2012 (the Flax Trust subdivision consent).
[19] Two plans for the configuration of the Flax Trust subdivision, option A and option B, were presented at the hearing and provided for in the decision. Condition 1 of the Flax Trust subdivision consent required the subdivision and land use activity to be “carried out in accordance with” either the option A landscape plan or the option B landscape plan “with the exception of the amendments required by the following conditions of consent”.3
[20] Both the option A and option B plans incorporated some proposed landscaping elements, including a mound between the southern boundary and a walkway on Birchwood Road, and some groups of tree planting. However, the Commissioner hearing the application considered the plans they had in front of them were insufficient to identify exactly what was proposed in terms of landscaping treatment. As a result, they granted consent on conditions which included Condition 12 requiring the preparation and submission of a “structural landscaping plan” to achieve the objectives stated in that condition. It read as follows:4
12Prior to Council approval of the survey plan pursuant to section 223 of the Act, a structural landscaping plan shall be prepared and submitted to the Principal: Landscape Architecture at Lakes Environmental Limited for approval. The structural landscape plan shall incorporate the landscape treatment provided for in the Option A Landscape Plan OR Option B Landscape Plan referred to in Condition 1b and 1d (depending on the Option selected) and shall specify the species and location of structural planting throughout the subdivision.
3 While Condition 1 described the two plans as landscape plans they were, in reality plans for the layout of the subdivision and contained limited information about landscaping.
4 The sub-numbering of the listed objectives has been added for ease of reference when discussing these conditions in the text of this decision.
The structural planting shall be designed to achieve the following objectives:
(1) Provide landscape screening that appropriately mitigates potential visual effects of future dwellings within the residential building platforms as viewed from the immediately neighbouring dwellings or building platforms to the east, north-east, west and south of Lots 1-8 by using landscape measures that are within Lots 1-8 themselves. This landscape treatment may take the form of clumps and stands of planting or other measures including mounding.
(2) Provide privacy and amenity for future occupants of Lots 1 – 8. Given that fencing is not permitted, planting and/or landforms shall be used to delineate spaces around the residential building platforms in an informal way to achieve an overall park-like setting.
(3) …[irrelevant – relates to Option B]…
(4) Provide an attractive green frontage to Birchwood Road. The proposed mounding in this area should be finished in gentle, naturalistic grades. Tree planting should combine with the proposed mounding to filter and partially screen visibility of future dwellings but need not necessarily take the form of hedgerow type planting.
(5) Provide for the formation of a walkway adjacent to the site’s eastern boundary within the existing pedestrian right of way easement. Planting and landscape treatment in this part of the site shall provide a pleasant amenity for walkway users and provide some privacy for future dwelling occupiers, although complete screening is not envisaged.
(6) While it is recognised that the sites that surround the subject sites are somewhat disparate in terms of their style of landscape treatment, the landscape design for the subject sites is to seek to coordinate and accord with these surrounding sites as much as is practicable. This coordination may take the form of some continuity in the layout, species or colour of plantings.
The application for earthworks consent
[21] In order to implement the landscape treatment Flax Trust proposed for its subdivision, Flax Trust realised a further consent was required because of the extent of earthworks involved. Accordingly, in November 2013, Flax Trust lodged an application (RM 130766) for land use consent to “undertake earthworks to create landscape screening and ponds associated with conditions of [the subdivision consent]”. The total earth to be moved to implement the proposed landscaping works was 27,000 m³. The relevant mounds were to be constructed from 3,000 m³ of fill
which was already on site, plus 16,000 m³ of fill acquired from the creation of the proposed ponds and 8,000 m³ of imported fill.
[22] The earthworks proposed would create seven ponds on the property along with mounding which would partially encircle each building platform to achieve a degree of screening, both from the properties surrounding the subdivision and from other homes within the subdivision. The only boundary which would not have some mounding along it was the boundary to the west where the neighbouring property had an existing evergreen hedge. The mounds themselves were to be of varied and interesting shapes, with fingers of land reaching out into the flat areas, and tops which were to be undulating or gently sloped, rather than built to a uniform height. The overall effect of the design was to enclose each building site in gently curving mounds, thus achieving partial privacy from neighbouring dwellings without the need for fences, but still allowing views to the encircling mountains beyond.
[23] On 9 January 2014 a senior planner within the Council determined the application should be processed on a non-notified basis. The following day an independent Commissioner granted the consent taking into account the application, the answers provided to requests for further information, an additional report commissioned by the Council from Michelle Snodgrass, a consultant landscape architect, and a report from Richard Powell, a Council resource management engineer, on the engineering and construction aspects of the proposal.
The earth mound is constructed
[24] Mr van Brandenburg explained in his evidence that the height of the mound on the boundary to 88 Speargrass Flat Road was determined having regard to the original location of the consented building platform on the Speargrass property and was to ensure reciprocal privacy for both Flax Trust and the Meehans. However, while Mr van Brandenburg was overseas, work commenced on the two storey garage structure located in the amended building platform on the Speargrass property authorised by consent RM 110186.
[25] Mr van Brandenburg’s evidence in these proceedings glossed over his involvement in making the decision to increase the height of the mound to over
five metres. However I accept the answer he gave in cross-examination in the Environment Court proceedings addressed this issue. In that hearing he said that when he realised that the building on 88 Speargrass Flat Road was closer and higher than he had expected from the terms of the Speargrass subdivision consent, he “… gave … the go ahead to finish [the mounds] off such that the garage structure staircase on 88 Speargrass was screened…”
[26] It was only later, when Mr van Brandenburg checked the Council records, that he discovered that Speargrass had applied for, and been granted, consent to vary its subdivision consent to move the building platform materially closer to the Flax Trust boundary and to build a two storey house, with a different roof pitch from that which had originally been approved.
[27] The mound that has been formed exceeds five metres in height over a length of about 90 metres. The as-built mound is at least two metres higher than the approved mound and, in some parts, is nearly two and a half metres higher than was approved.
[28] Speargrass was dismayed by such a large mound being constructed hard against the boundary of its land and Mr Meehan contacted the Council by email. In that email he said that he was “patently unhappy” with the large earth mound built on his boundary and although he had tried to discuss this with Flax Trust, there had been no meaningful response. His email to the Council concluded by making the following complaints:
1. That the earthen mound has not been built to its approved shape or size, and that Council should take enforcement action to ensure that should be removed immediately.
2. That the process of Council approving any such mound of what we loosely understand to be the circa 2.5 metre high approved size so close to our boundary has been fundamentally flawed in so much as we were not notified or asked for comment or approval in relation to the proposed earthworks at any stage. We reserve our rights to challenge the validity of the subdivision and/or earthworks approvals.
[29] The Council responded agreeing that there was a non-compliance and advising that it had written to Flax Trust asking it to reform the mound so it complied with the
approved plan. It also provided a brief explanation of why it approved the earthworks without notification to Speargrass.
The application for retrospective consent for the earth mound
[30] Rather than reduce the height of the mound, Flax Trust sought a retrospective amendment to its earthworks consent to permit the increased height on the northern boundary. That was declined by the Council in a decision dated 14 January 2016. The stated grounds for declining consent were:
· The proposal is inconsistent with a number of objectives and policies of the Operative District Plan, Plan Change 49, the Proposed District Plan and Part 2 of the RMA.
· The proposal does not align with the intent of condition 12 of decision RM 120327 or the intent of Decision RM 130766.
· The proposed mound is inconsistent with the landscaping treatment in the Palmer and Reflections subdivisions, when it was required to be consistent with them.
· The proposed mound creates a ‘fortress’ like effect when viewed from the Meehan land to the north and from Lot 2 of the Flax Trust land. It is not natural in appearance and will be difficult to maintain.
· The proposal is contrary to the purposes and principles of the Resource Management Act 1991.
[31] Flax Trust appealed the Council’s decision and the Environment Court allowed the appeal and granted a variation to the earthworks consent to allow the increased height of the mound.5 It is as a result of that decision that Speargrass brings these three related proceedings, all designed to challenge the continued presence of the mound on its boundary.
[32] The first proceeding I address is the appeal of the decision of the Environment Court which retrospectively approved the higher mound.
5 Flax Trust v Queenstown Lakes District Council [2016] NZEnvC 202, [EC Decision].
PART A: THE ENVIRONMENT COURT APPEAL
Approach on appeal
[33] Speargrass appeals the decision of the Environment Court under s 299 of the Resource Management Act 1991 (the RMA). Such an appeal may only be on a question of law.6 In those circumstances, it is well understood that the High Court will only interfere with the decision of the Environment Court if it considers that the Environment Court:7
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[34] Even if the Environment Court erred in one of these ways, an appeal will not succeed unless the error materially affected the decision under appeal.8
[35] In this case, Speargrass submits that the Environment Court made the following errors of law. It:
(a)misunderstood and misapplied the law in deciding that what is built on the Speargrass site does not form part of the environment for the purposes of s 104(1)(a) of the RMA;
6 Section 299(1).
7 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
8 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 7, at 153.
(b)concluded that the effects of the mound are the same as the effects of trees without evidence, or made a decision which, on the evidence, the Environment Court could not reasonably have come to;
(c)misunderstood and misapplied the law in deciding under s 104(2) of the RMA to disregard the adverse effects of the mound on the environment on the basis the effects of the mound are the same as the effects of trees permitted in the plan, when the effects of trees are controlled under other legislation and by a resource consent for the Flax Trust site; and
(d)took into account matters relating to Speargrass’s activities on the Speargrass site which it should not have taken into account when making its decision under s 104 of the RMA to grant resource consent for the mound on the Flax Trust site.
The Environment Court’s decision
[36] After setting out the background giving rise to the retrospective application to authorise the as-built mound, the Judge set out the matters he needed to consider in assessing the application for consent as follows:9
(1) Any actual and potential effects on the environment of allowing the activity;
(2) The provisions of the relevant policy and planning documents being the Queenstown Lakes District Plan … and its proposed district plan …;
(3) Any other matter the court considers relevant and reasonably necessary to determine the application; and
(4) Part 2 of the Act if either of the relevant district plans is incomplete, ambiguous or illegal (applying the decision of the majority of the Supreme Court in Environmental Defence Society v The New Zealand King Salmon Company Ltd as applied in the section 104(1) RMA situation by the Environment Court in R J Davidson Family Trust v Marlborough District Council).
(footnotes omitted).
9 EC Decision, above n 5, at [22].
[37] He noted that in assessing the effects on the environment under s 104(1)(a), a matter on which he had a discretion was the application of the permitted baseline.10 He considered that was relevant and important because the planting of trees or shrubs on the Flax Trust site was a permitted activity under the District Plan. He also observed that in considering the environment for the purposes of the application, the proceeding “raises a difficult question as to whether a development on a neighbouring property is part of the existing or future environment when that development inconsistent [sic] with a registered consent notice as at the date of the application by the Flax Trust”.11 What he was referring to was the fact that, despite Speargrass having sought and been granted various applications to amend the subdivision consent including, in particular, to move the building platform on 88 Speargrass Road, Speargrass had not altered the original Speargrass consent notice to reflect those changes.
[38] In describing the Flax Trust site and its neighbours to the west and south, the Judge adopted Mr van Brandenburg’s description of the Flax Trust proposal as a “landscape driven subdivision, where the subdivision lines around lots are defined using mounds to provide instance [sic] privacy to and for the neighbours … Ponds are an internal amenity”.12 He noted that the same landscape treatment had been used elsewhere within the Triangle including “more comprehensively in the Reflections development on the opposite south side of Birchwood Road”.13
[39] He then turned to describe 88 Speargrass Flat Road, noting that Mr Meehan had originally said he would develop his land with “some undulation into it, both for aesthetics and privacy. To do this will involve cutting and filling a fair bit of fill, and creating ponds in the process of doing so…”.14 However, the Judge observed that what was ultimately developed on the Speargrass property “has substantially abandoned any pretence of retaining rural qualities: it is essentially a large elegant
10 This discretion arises under s 104(2) RMA which permits a decision-maker to “disregard an adverse effect of the activity on the environment if … the plan permits an activity with that effect”.
11 At [28].
12 At [33].
13 At [31].
14 At [37].
lifestyle section, the pond has been replaced by a tennis court and a considerable part of the landscaping is now more a formal rectilinear garden”.15
[40] While he noted that a substantial house and ancillary buildings, including a garage, were nearing completion on 88 Speargrass Flat Road, they were outside the approved building platform described in the original Speargrass consent notice registered on the title. That raised the important question of “whether the existing environment is constituted by what is legally permitted by the registered consent notice or by the unregistered variations”.16
[41] In the end, he decided that the “environment” was constituted by what was shown in the registered consent notice because it is “indefeasible” and can be relied on by Flax Trust.17 He therefore concluded that the buildings on the Speargrass site did not form part of the environment on the grounds that a variation of a consent notice has no effect until it is registered.
[42] He was fortified in his conclusion by the provisions of s 221(5) of the RMA. That section states that:
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 Registrar- General of Land 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.
[43] His conclusion also relied on his view that a subdivision consent is “effectively dead” once a survey plan is deposited, and so the only ongoing conditions of the subdivision consent after that point are those in a consent notice.18 In those circumstances, the rule that a registered document prevails over an unregistered one gave primacy to the registered consent notice.19
15 At [41].
16 At [46].
17 At [81] and [84].
18 At [66].
19 Rodney District Council v Fisherton Ltd [2005] NZRMA 514 (CA) at [28].
[44] In short, because Speargrass had not registered the variation before it commenced work, the original Speargrass consent notice prevailed. That meant, in his view, the environment should be assessed on the basis of what that consent notice allowed and not on the basis of what was allowed under the subsequent applications to amend it, including the works that had been carried out in accordance with those subsequent amendments. That, the Judge said, was “an important result because it means all the witnesses have assessed the effects on the wrong environment”.20
[45] Having reached that view, the Judge assessed the application, and departed from the views of the Commissioner appointed to hear the application. He considered that any inconsistency with condition 12(6) of the Flax Trust subdivision consent did not point against the grant of consent as condition 12 “must give way”21 to the consent governing earthworks because an earlier consent may be replaced in whole or in part by a later one.22 In relation to condition 12(3), he did not consider that the mound was inconsistent with the landscaping treatment in other adjacent subdivisions. While noting that it was “higher and more uniform” he considered there was a “distinct family resemblance” with other nearby subdivisions that had adopted the mound and pond concept.23
[46] In respect of the Commissioner’s conclusion that the mound was “fortress like” and had adverse effects on the occupants of 88 Speargrass, the Judge was able to discount that on the basis that “all opposing witnesses have made the same error”, which was to assume that “the actual location and design of the house on 88 Speargrass is part of the environment”.24
[47] In addition, the Judge took into account that “the mound is a response to a situation on 88 Speargrass which Mr van Brandenburg dislikes (on subjective grounds, but they are important to him) and about which he was neither consulted nor given the opportunity to be heard”.25 In his view, the issue was whether “the mound [was] an appropriate response to an unauthorised development” on the Speargrass site and he
20 At [85].
21 At [122].
22 Applying the principle in Sutton v Moule (1992) 2 NZRMA 41 (CA).
23 At [126].
24 At [152].
25 At [170].
found that it was.26 He concluded that the variation sought by Flax Trust should be granted on conditions which included appropriate planting of the mound with low growing species such as tussocks and flaxes.
Did the Environment Court err in law in deciding that what was built on the Speargrass site did not form part of the “environment” for the purpose of s 104(1)(a) RMA?
Speargrass’s submissions
[48] Speargrass considers the Environment Court erred in law by holding that the buildings on the Speargrass site did not form part of the environment under s 104(1)(a) of the RMA simply because the varied consent notice had not yet been registered. Speargrass points to the wide definition of the “environment” in the RMA which includes “all natural and physical resources”.27 This would, says Speargrass, include the existing buildings on the Speargrass site which, as a physical resource, were clearly part of the “environment” as defined in s 2.
[49] Furthermore, the definition of “environment” in the RMA must be construed from its text and in light of its purpose.28 Consequently, the environment is not confined to what exists at the time a resource consent application is being considered by a consent authority, but may include the future state of the environment in which such effects will occur.29 Thus in Hawthorn, the Court of Appeal concluded that the word “environment”:30
… includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented.
[50]Speargrass emphasises that this is a factual not legalistic issue, citing
Queenstown Central Ltd v Queenstown Lakes District Council, where Fogarty J said
26 At [174] and [177].
27 Resource Management Act, s 2.
28 Queenstown-Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [41].
29 Queenstown-Lakes District Council v Hawthorn Estate Ltd, above n 28, at [57].
30 At [84].
“the RMA as a whole, calls for a “real world” approach to analysis, without artificial assumptions, creating an artificial future environment”.31
[51] In light of this guidance Speargrass submits that the existing environment can be ascertained by a simple three stage enquiry:
(a)What is there at the moment?
(b)Are there any resource consents allowing other activities?
(c)If so, are these resource consents likely to be implemented?
[52] In the present case, the Speargrass buildings not only had the necessary consents, but they had already been constructed. It was therefore clearly an error to ignore them on the basis the paperwork had not been fully perfected.
[53] Speargrass rejects the Environment Court’s view that the “environment” consists of what is shown in the registered consent notice because it is “indefeasible and can be relied upon by Flax”. It submits that the purpose of s 221 of the RMA (which requires the Registrar to give effect to a variation or cancellation of a condition specified in a consent notice) is to ensure the integrity of the register and the maintenance of the continuing accuracy of the registered consent notice. However, the integrity of the register, and indefeasibility of title, are matters pertaining to the Land Transfer Act 1952 (LTA), and the right of subsequent owners to acquire land free of claims and obligations which are not recorded on the title. For the separate purpose of the RMA, unregistered variations to a consent notice exist, have legal effect, and can be the subject of enforcement action prior to registration.
[54] Furthermore, s 221(3A) of the RMA provides that ss 88 to 121 and 127(4) to 132 apply, with all necessary modifications, in relation to an application made to vary or cancel a condition specified in the consent notice. Accordingly, s 116 of the RMA applies to specify when such a resource consent commences. Applying s 116, the
31 Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815, (2013) 17 ELRNZ 585 at [85].
variation to the original Speargrass consent notice commenced on the date on which the decision granting the application for the variation was notified.32 While the variations to the consent notices would not be capable of enforcement under the LTA against a subsequent land owner, the underlying authorisation is enforceable under the RMA in the same way as any other resource consent condition. The fact that variations to the consent notice have not been registered does not change the consent holder’s obligation to comply with the conditions of the consent notice as varied, if it wishes to exercise that variation, nor does it affect the Council’s ability to enforce compliance at that time.
[55] Indeed, Speargrass says that the Environment Court’s conclusion that a variation of a consent notice has no effect until registered, would mean that the Council would have no ability to enforce a condition of the varied consent notice, even if work had commenced, simply because the varied consent notice had not been registered.
[56] In addition, Speargrass submits that the Court was wrong to consider that Flax Trust was not bound by its knowledge of the unregistered variations because of Speargrass’s failure to register them. Speargrass says that this would create the illogical situation where a subdivision consent could be granted to neighbouring land but could be ignored until the conditions of that subdivision consent had been registered in a consent notice. Furthermore, Speargrass points out that there is no similar mechanism for registering the conditions of land use consents. It is up to a purchaser or owner to make enquiries about what resource consents may have been granted which could affect his or her land. Thus, in general, there could never be reliance on registration alone to advise adjacent land owners of what could take place on surrounding land.
[57] Finally, Speargrass points out that the error in identifying the original Speargrass consent notice as defining the existing environment was clearly material to the Environment Court’s decision. The Environment Court stated that the witnesses had wrongly assumed that the house and associated buildings on the Speargrass site in their current and consented position formed part of the existing environment when
32 Section 116(1A).
assessing the actual and potential effects of the earth mound. The Court, therefore, discounted that evidence. Furthermore, the Environment Court held that whether or not the earth mound was appropriate depended very much on how one assesses the environment. In this case, it assessed the higher mound as an appropriate response to “an unauthorised development”, as opposed to earthworks to be placed alongside an authorised lifestyle development. That erroneous approach materially affected the assessment of what was proposed.
The Council’s submissions
[58] The Council concurred with Speargrass’s view that the consents authorising the variations to the Speargrass subdivision consent had commenced and whether or not the changes to the consent notice were registered did not affect their legal validity under the RMA.
[59] The Environment Court’s reference to indefeasibility of title was not relevant in this context where, as between the consent holder and the Council, the consent conditions could still be enforced. In the Council’s view, the Environment Court wrongly conflated the relationship between the provisions of the RMA and the LTA. Registration of a consent notice under the LTA was to give notice to prospective purchasers of ongoing obligations affecting a title. This was not relevant in this case where the issue was what was permitted under the RMA.
Flax Trust’s submissions
[60] Flax Trust, however, supported the Environment Court’s view of what might be the “environment” for the purpose of s 104(1)(a) and submitted that the Judge was correct to ignore “unlawful” structures as being part of the environment. In support of this it relied on the decision in Schofield v Auckland Council,33 where the Environment Court excluded the effects of unlawful structures for the purpose of assessing the existing environment. In that case the Court excluded the area of two unconsented decks built on units in a cross-lease development, when determining
33 Schofield v Auckland Council [2012] NZEnvC 68.
total site coverage for the purpose of assessing an application for consent to build a deck on another unit on the property.34
[61] Flax Trust also points to the provisions of s 221(5) of the RMA saying that this shows “a clear intent from Parliament that registration elevates the status of the consent notices”. The register should accurately reflect all of the encumbrances that affect the land, and anyone who inspects it should not have to “go behind the curtain” to ascertain the true position.
[62] Flax Trust considers the consequence of the failure to register the variations was that the amendments to the consent notice had no regulatory effect. If it were otherwise, there would be inconsistencies with what was enforceable under the LTA and under the RMA. In short, to allow unregistered consents to usurp registered ones would undermine the LTA system. It is for this reason that s 221(5) of the RMA provides that the varied consent notice “takes effect” on registration. The corollary of this is that, prior to registration, the consent variation has no regulatory effect. For this reason, it is s 221 which determines when variations to a registered consent commence, not s 116 of the RMA as Speargrass contends.
[63] In summary, Flax Trust considers the question of whether the variations were “likely” to be exercised did not arise until there was a consent that had taken effect and so could be exercised. That point had not been reached by the date of the Environment Court’s decision because registration of the variation had not occurred and the Judge did not need to enquire into the likelihood of registration.
Discussion
[64] The leading statement on what constitutes the “environment” for the purposes of s 104 of the RMA is found in the Court of Appeal’s decision in Hawthorn.35 There the Court held that it included the environment as it might be modified by the implementation of resource consents which had been granted at the time the application was being considered and where it appeared likely that those resource
34 At [26]-[30].
35 Queenstown-Lakes District Council v Hawthorn Estate Ltd, above n 28.
consents would be implemented. I agree that this calls for a “real world” approach, not an artificial approach, to what the future environment will be.36 The consent authority must not minimise the effects of the proposed activity, either by comparing it with an unrealistic possibility allowed by the relevant plan, or by ignoring its effects on what is, or undoubtedly will be, part of the environment in which the activity will take place.
[65] Had the consent that authorised the relocation of the building platform on Speargrass’s land been any other kind of resource consent, the Court would have had little difficulty in concluding that the activity it authorised formed part of the environment. This is because the consent had commenced under s 116 and work had been carried out pursuant to it. The failure to comply with a condition of consent would be seen simply as a matter of enforcement for the consent authority to address. For example, if there was a breach of a requirement to erect fencing before construction work started under a land-use consent, the Council would simply use its enforcement powers to see that the non-compliance was addressed. The non- compliance would not negate the validity of the consent, nor would it alter whether that activity was taken into account as part of the environment when a neighbouring land owner applied for resource consent.
[66] What is in issue in this case is whether a subdivision consent which requires registration of a consent notice (or in this case, a variation to the consent notice) should fall into any different category. I do not consider that it does.
[67] The purpose of a consent notice is to ensure future land owners are bound by those obligations of a subdivision consent that are required to have ongoing effect. As the Council explains, this is because subdivision consents are effectively complete once implemented.37 They cannot be undone or revoked once titles issue. Other types of resource consent, however, are ongoing. For example, a land use consent can only be exercised while the current owner of the land is prepared to comply with the conditions of consent. This gives the consent authority enduring power to enforce
36 Adopting Fogarty J’s approach in Queenstown Central Ltd v Queenstown Lakes District Council, above n 31.
37 Section 125(2) RMA provides that a subdivision consent “is given effect to when a survey plan in respect of the subdivision has been submitted to the territorial authority”.
performance of those conditions against subsequent land owners. However, in the case of a subdivision consent, it is the consent notice which provides a mechanism under the LTA to ensure those obligations can be enforced against subsequent owners.
[68] I accept, therefore, that the essential purpose of registration is to give notice to prospective owners that they will be bound by the ongoing obligations, as the consent authority otherwise has no mechanism, or leverage, for enforcing these obligations once the subdivision consent has been given effect. Registration under the LTA does not override or supplant the RMA resource consent regime, but supplements it.
[69] In this case, the amendments to the original Speargrass consent notice had been approved by the Council but not registered on the title. That was clearly an omission by the land owner, which has subsequently been rectified. However, I do not accept it rendered the development unlawful as was suggested by Flax Trust. This was not a case, as in Schofield, where what was built had never been authorised. The Speargrass buildings complied, both in form and location, with the resource consents granted by the Council. The question the Court should have asked was whether it was realistic to assume that the buildings constructed on the revised building site would be removed, rather than the consent notice being amended to reflect the amended consent conditions, as has now occurred. Had it done so, the assessment of the effects of the mound would have taken into account the effects on the occupants of the Speargrass buildings.
[70] In respect of the argument that s 221(5) of the RMA alters the position because it provides that the condition in the consent notice “shall take effect following entry on the register”, that must, in my view, be read as “taking effect under the LTA for the purposes of notifying future owners through the mechanism of the consent notice”. To read it in any other way would be inconsistent with s 116 RMA which governs when a resource consent commences.
[71] I also do not consider the Court was correct to rely on the registered consent notice as notification to the world of the “environment” proposed for that land. Leaving aside for one moment the fact that Flax Trust placed no reliance on the title (it had not searched it and it knew by the time it sought retrospective consent for the
higher earth mound that the Speargrass building platform had changed), land owners could never rely on a title search of adjacent properties to obtain a complete picture of what those properties may be authorised to do on that land. They would need to make enquiries of the consent authority to obtain comprehensive information about what planning approvals had been granted in their neighbourhood.
[72] I also consider that the Environment Court’s reference to indefeasibility of title is not relevant in this context. The purpose of indefeasibility is to protect the estate of a registered proprietor of land against claims of a competing owner and against encumbrances or interests not appearing on the title.38 The principle of indefeasibility does not exist to protect other property owners from having to consider the effects of resource consents granted to neighbouring properties when proposing to undertake activities which require consent on their own land.
[73] In conclusion, the concept of the “environment” for the purposes of s 104 must reflect reality. If a resource consent has been granted and is being implemented on adjacent land, that would, almost inevitably, need to be taken into account as part of the environment when considering the effects of a later proposed activity. If there have been breaches of consent conditions including, as here, a failure to register the variations to the consent notice, that must be assessed in a practical way. If the non-compliance is likely to be rectified, allowing the consented work to remain, then the effects of that activity would normally be taken into account. It is only if the consented activity is likely to be terminated or removed as a consequence of the breach, that the activity could sensibly be ignored as part of the existing environment. As that is not the case here, I consider the Court erred in ignoring the existence of the Speargrass buildings in their present location when assessing the effects of the earth mound.
[74] I also accept that this was a material error. The Court repeatedly said it was able to discount the evidence of the adverse effects of the earth mound because it considered the expert witnesses had erred in their understanding of what constituted the existing environment. Consequently it minimised or dismissed the adverse effects
38 Frazer v Walker [1967] NZLR 1069 (PC) at 1075-1076.
on occupants of the Speargrass buildings because it assessed the effects of the earth mound ignoring the current location of those buildings.
[75] On the basis of this error alone, I would allow the appeal and set aside the decision of the Environment Court.
Did the Court err in concluding that the effects of the earth mound were the same as the effects of trees without evidence to support that conclusion?
Speargrass’s submissions
[76] The Environment Court Judge relied on the concept of the permitted baseline to conclude that the effects of the earth mound were similar to the effects of tree planting along the same boundary. The Judge concluded that:39
… the Flax Trust would be entitled to plant its own dense row of alders and many deodars along its northern boundary which would have nearly as dense an effect as the mound and would be (at maturity) five times higher. … It would also extinguish any views of the Remarkables from the house on 88 Speargrass.
…I conclude that in essence [Speargrass] is making too much of this compared with what could occur as of right.
… I find that there being a few extra (and on [sic] some ways less) adverse effects from the mound when compared with the baseline of planting trees (in place of the mound) is a strong factor towards granting consent under the [District Plan]…
[77] Speargrass submits that the Judge did not have adequate evidence before him to support this conclusion or, if he did, he nevertheless reached a conclusion that was not reasonably available to him on the evidence.
[78] Speargrass is particularly critical of the Judge’s purported reliance on the evidence of Ms Vanstone, the planning officer for the Council, to support these conclusions. The Judge cited an extract from cross-examination of Ms Vanstone where she appeared to concede that the view of the Remarkables from 88 Speargrass Flat Road would be lost entirely if trees were planted on the boundary between it and the Flax Trust site. However, Speargrass says this was unfairly selective because she
39 EC Decision, above n 5, at [132], [135] and [136].
went on to say that when she compared the mound to the existing shelter belt planting in the vicinity you could “see through it in the winter months … [and would] … get intermittent views in the summer months”. As a result, she concluded that “the effects of a shelter belt planting … to the mound at question – were quite different”.
[79] Speargrass submits that apart from the evidence of Ms Vanstone provided during cross-examination, which was misinterpreted, there was no evidence before the Environment Court comparing the effects of the earth mound with trees. As a result, the Judge did not have an evidential underpinning to support his conclusion that the effects of the two activities were comparable. Rather, he relied on his own opinion. In Speargrass’s submission, this was not a case where the difference in effects is a matter of common sense and the usual reluctance to interfere with the findings of fact of a specialist tribunal should not apply.
The Council’s submissions
[80] The Council concurs with Speargrass on this issue, saying that the Judge relied on the view expressed by the Council’s planning officer, Ms Vanstone, to reach his conclusion. In doing so, he plainly misconstrued the tenor of her evidence and, therefore, he erred. Furthermore, the Environment Court incorrectly applied the permitted baseline because the adverse effects of the constructed earth mound and the hypothetical permitted activity (tree planting) were not comparable.
Flax Trust’s submissions
[81] Flax Trust, however, submits that there was ample evidence on which the Court could reach its conclusion that the effects of permitted tree planting on the boundary were similar to the effects of the mound. In this regard, Mr Page points to the evidence of Mr van Brandenburg, which included a photograph of a mature cedrus deodara (being the type of conifer which Speargrass had planted along this boundary), and a 3D model showing the Speargrass buildings, the consented mound, and mature trees along the boundary (albeit the trees were those planted on the Speargrass side as required by the landscaping conditions RM 110820). This showed the trees would be higher than the mound and would be dense enough to block views. This meant there
was ample evidence to compare the visual effects of the mound and mature trees, and the Court’s evaluation of that evidence was open to it.
Discussion
[82] The second alleged error of law relates to whether the Judge drew a conclusion without evidence on the matter, or that could not reasonably have been drawn from the evidence before him. In addressing this alleged error of law, I defer the other questions regarding whether the Judge properly applied the permitted baseline test to the discussion on the third alleged error of law.
[83] I accept that to the extent the Environment Court Judge relied on the view expressed by the Council’s planning officer, Ms Vanstone, to conclude that the adverse effects on the environment of the earth mound were comparable to the adverse effects of trees, he misconstrued her evidence. Looking at her evidence in its entirety, she did not accept that the two were comparable, even on the limited issue of whether they blocked views to the same extent. That said, Mr van Brandenburg’s evidence and, in particular, the exhibits he produced, did provide an evidential foundation for the view that evergreen trees such as the cedrus deodara trees planted by Speargrass would, in time, have the same, or similar, adverse effects on views that the mound did.
[84] However, that is the only conclusion that the evidence could support, and views comprise only one aspect of effects on amenity values of the mound. In this case, the Judge discounted the wide range of effects of the mound by applying the permitted baseline when the evidence did not address that issue. While the Judge expressed reservations about counsel for Speargrass submitting “that the dappled light and opaque appearance of trees is … entirely different … to a five metre earth wall” as this was “evidence from the bar”,40 he was prepared to draw his own contrary conclusion that by planting the mound with flax and grass, a “similar texture” could be achieved, and so Speargrass “was making too much of this, compared with what could occur as of right”.41 To the extent he discounted all adverse effects of the earth
40 At [131].
41 At [135].
mound and not just views, by comparing it with permitted tree planting, I consider there was inadequate evidence to support such a conclusion.
Did the Environment Court Judge misunderstand and misapply the law as to the application of the permitted baseline when deciding to disregard the adverse effects of the earth mound on the environment?
Speargrass’s submissions
[85] In respect of the third alleged error of law, Speargrass assembles a range of challenges to the Judge’s analysis of the permitted baseline concept. Speargrass says that the Judge ignored the effect of the existing Flax Trust subdivision consent, which included conditions concerning landscaping. Because this did not envisage trees being planted parallel to the 88 Speargrass boundary, and Flax Trust had said that the mound would be grassed upon formation, it was artificial to adopt a continuous planting of evergreen trees as a comparative permitted activity.
[86] Speargrass also says the comparison fails to recognise that the effects of trees are able to be controlled under the PLA. If the trees did become an undue obstruction to the view, an order could be made to remove such an interference. This, too, should impact upon whether it is reasonable to compare a solid line of evergreen trees along the boundary with the five metre high earth mound.
[87] Furthermore, while the Environment Court Judge accepted that the earth mound was inconsistent with condition 12(6) of the Flax Trust subdivision consent, he considered that “the general landscaping provision in condition 12 of RM 120327 must give way in respect of earthworks to RM 130766 since the latter is the consent governing earthworks”.42 He reached this conclusion by applying the principle in Sutton v Moule, which recognised that an earlier consent may be replaced in whole or in part by a later one.43
[88] However, Speargrass says that here, the resource consent for earthworks was sought on the basis it was associated with, but not intended to replace, the provisions of Flax Trust subdivision consent. It was sought in order to implement the landscaping
42 At [122].
43 Sutton v Moule, above n 22.
proposed pursuant to condition 12 and was advanced on the basis that the proposed works would meet the objectives of that condition.
The Council’s submissions
[89] The Council combined its submissions on the second and third alleged errors of law and did no more than assert that the Judge misconstrued the tenor of Ms Vanstone’s evidence and incorrectly applied the permitted baseline because the adverse effects of the earth mound and of the hypothetical permitted activity of tree planting “were not comparable”. It did not express a view on the balance of the errors claimed by Speargrass.
Flax Trust’s submissions
[90] Flax Trust rejects the Speargrass submission that the Judge should have taken into consideration that trees can be trimmed through Court orders made under the PLA. It referred to the decision of NZ Suncern Construction Ltd v Auckland City Council, where the Planning Tribunal (as it was then) determined that it could not have regard to the District Court’s power under s 129C of the PLA (now s 333 PLA) to order removal or trimming of trees as this was an irrelevant consideration when looking at whether an application would promote the objectives of the RMA.44 Thus, the Judge was correct in law not to take into account such powers.
[91] Flax Trust also says that the Environment Court was not required to take into account the fact that the planting of trees was controlled by Flax Trust’s resource consent, particularly where, as here, there are challenges to the grant of the earthworks consent. If that is set aside, then the full extent of the District Plan’s permitted baseline would need to be considered. In any event, Flax Trust argues that the permitted baseline comparison is not qualified by existing conditions of consent that might apply to a property and is a “strict district-plan based comparison”. For this reason, it was not necessary for the Court to rely on Sutton v Moule to decide that the earthworks consent amended the requirements of condition 12 of RM 120327. Those consents
44 NZ Suncern Construction Ltd v Auckland City Council (1997) 3 ELRNZ 230 (HC) at 246-247.
were not relevant to the permitted baseline test which relates solely to what is permitted under the plan.
Discussion
[92] I do not accept that the Court should have taken into account the possibility that trees could be trimmed through Court orders under the PLA when considering the permitted baseline. That would require the Environment Court to graft onto its assessment of what is permitted under the relevant plan, the potential outcome of an application under the PLA which would be determined under quite different criteria, including the Court’s assessment of relative hardship as between the applicant and the defendant in any particular application. Sections 335 and 336 of the PLA set out a wide range of matters that the Court may or must have regard to in deciding whether to order removal or trimming of a tree, some of which would point to retention of the trees despite them causing a level of hardship to the applicant. The circumstances in which an application could be made and the factors which bear on the outcome are so many and varied, it would be impossible to assume that any particular outcome would result.
[93] More importantly, though, the permitted baseline comparison is between the effects of what is proposed and the effects of what is permitted under the relevant plan. These are comparisons which are made within the framework of the RMA. There is no requirement to have regard to potential restraints on that permitted activity through steps that could be taken, or rights that could be exercised, under other legislation. There is nothing in the language of s 104(2) which requires this of a consent authority and I do not consider the Judge erred by ignoring that consideration.
[94] The next issue is whether the permitted baseline concept was relevant when there were already constraints on what Flax Trust could do on its land by virtue of its subdivision consent conditions. In the usual case, a consent authority is assessing an application to do something that is not permitted on site, against a scenario where the land owner can undertake what is permitted under the plan. In the present circumstance, the situation is different. The land owner has already committed to developing the land for subdivision, and the earthworks consent was to permit a further
aspect of development which would form part and parcel of the implementation of the subdivision consent. In my view, that raised a question as to whether it was appropriate to compare the proposed activity with what was permitted under the plan (that is, a line of evergreen trees along the boundary) when the applicant had already constrained itself by condition 12 of the subdivision consent in respect of what could be planted and where.
[95] Where a further resource consent is applied for which will occur on land in conjunction with an existing consent, that circumstance may be relevant to the discretion to apply the permitted baseline. The existing consent may control what might otherwise be permitted on the land, in order to manage the effects of activities which are not permitted, making it unrealistic to apply the permitted baseline test, as to do so might give rise to a combination of effects which was not anticipated under the plan.
[96] In this case, the Court did not turn its mind to the possibility that it may not be appropriate to apply the permitted baseline principle when the earthworks being considered would only proceed in the context of controls already provided for under the existing Flax Trust subdivision consent. I consider the existing subdivision consent was a relevant consideration and the Judge was in error to ignore this when deciding whether it was appropriate to discount effects by having regard to what may be permitted under the plan as of right.
[97] Furthermore, I consider it was wrong to view the earthworks consent as overriding or amending the existing subdivision consent. It was clearly advanced on the basis it would sit within the provisions of the Flax Trust subdivision consent and, in particular, would comply with condition 12 governing landscaping.
Was the Environment Court in error in considering matters relating to Speargrass’s activities on the Speargrass site when assessing the effects of the Flax Trust application?
Speargrass’s submissions
[98] In concluding that the mound was “a justified and reasonable response to an unauthorised set of non-compliant buildings outside the registered approved platform on 88 Speargrass”,45 the Environment Court Judge:
(a)compared the adverse effects of the activities on the Speargrass site with the adverse effects of the Flax Trust mound; and
(b)took into account what he perceived as an “unfair” decision by the Council not to notify Flax Trust of Speargrass’s applications to amend its subdivision consent.
[99] Speargrass submits that these matters do not fall within the scope of ss 104(1)(a) or (b) of the RMA, nor can they properly be had regard to as “other matters the consent authority considers relevant and reasonably necessary to determine the application”, in accordance with s 104(1)(c) of the RMA. The words “relevant and reasonably necessary” constrain what the consent authority can consider, and require there to be a nexus between the “other matters” being considered under s 104(1)(c) and the purpose of the RMA.
[100] In this case, Speargrass says that the Environment Court Judge considered reverse sensitivity effects of the application under s 104(1)(c) but erred in his analysis of that concept. He assumed that reverse sensitivity effects arose from the Speargrass residential activities which were “currently unauthorised on their face” and found that “the mound is there to reduce the adverse effects of structures on 88 Speargrass” and this “favours the Flax Trust application”. However, Speargrass says that reverse sensitivity effects arise when a lawfully established and pre-existing land use adversely affects a new land use with the result that the new activity could bring pressure on the ability of the existing lawful activity to continue.46 Speargrass says
45 EC decision, above n 5, at [177].
46 Sugrue v Selwyn District Council EnvC Christchurch C43/2004, 7 April 2004 at [12].
that these are effects which fall squarely within s 104(1)(a) and, in any event, they do not apply in this case as the mound is not a sensitive activity, nor do the Speargrass buildings adversely affect it.
[101] Speargrass also submits that if an activity is not lawfully established, and it has adverse effects, that is an enforcement issue which should be dealt with under a separate part of the RMA regime. The focus under both ss 104(1)(a) and 104(1)(c) must be on the actual and potential effects of the proposed activity on the environment, which includes Speargrass’s buildings. A consideration of the effects of Speargrass’s activities on Flax Trust (which is what the Environment Court undertook in this case) does not contribute to that assessment, nor does a comparative assessment of the effects of the proposed activity with the effects of an existing activity on a neighbouring site. Whether or not the effects of Speargrass’s buildings are greater than the effects of the earth mound does not alter or change the effects of the earth mound or the significance of those effects, and they cannot be used to justify a decision to grant consent to the earth mound, as the Court did in this case.
[102] Similarly, the Environment Court’s concern that the situation that had developed was “unfair” to Flax Trust, involved consideration of extraneous matters that were not relevant or reasonably necessary to determine whether or not to grant consent for the earth mound. The process the Council followed in notifying and granting an application by a third party in respect of another site is only relevant to the extent that the other activity, once lawfully established, becomes part of the environment affected by the subsequent proposal. Any perceived unfairness to Flax Trust associated with the process of granting other consents is not a permissible consideration under s 104(1)(c) of the Act.47 Rather, it is a subjective, non-planning related, extraneous matter. It is not relevant to the assessment of the effects of the earth mound nor to whether granting consent achieves the purpose of the RMA.
[103] Furthermore, Speargrass submits that in the absence of any judicial determination holding that the Council’s previous decisions were invalid, the Court
47 Lee v Auckland City Council [1995] NZRMA 241 (PT) at 261-262.
did not have jurisdiction to take account of, let alone to rectify, any perceived unfairness in those decisions when considering a subsequent application.
The Council’s submissions
[104] The Council concurs with Speargrass in saying that the Court was in error when it took account of:
(a)a comparison of the adverse effects of the earth mound with the adverse effects of the “unauthorised” development on Speargrass’s property; and
(b)the “unfair” decision by the Council not to notify Flax Trust of Speargrass’s proposed development.
[105] The Council submits that the matters relating to activities undertaken on the Speargrass site do not come within the parameters of either ss 104(1)(a) or 104(1)(c). Section 104(1)(a) focuses on the actual and potential effects on the environment of allowing the activity. What is occurring on a different site is only relevant to determining the receiving environment, or in the context of assessing reverse sensitivity or cumulative effects, which was not the case here.
[106] Like Speargrass, it submits that s 104(1)(c) is not unfettered and must still be correlated to the considerations in ss 104(1)(a) and (b). Furthermore, the Council’s previous decisions must be treated as legally valid and effective until set aside.48 The Environment Court was bound to treat them accordingly and did not.
Flax Trust’s submissions
[107] Flax Trust submits that the Environment Court was justified in taking into account Speargrass’s “unauthorised” activities on its land and the perceived unfairness to Flax Trust. These matters fall under s 104(1)(c)’s provision for the Council to take into account “any other matter… [it] considers relevant and reasonably necessary to determine the application”. The Court was entitled to be influenced by whether the
48 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA) at [4].
Council’s decision was fair in light of Speargrass relying on the cedrus deodara trees for its own purpose, and whether Speargrass should therefore be expected to put up with the adverse effects of the earth mound. As Speargrass has only found itself in this position because of its own decision to move the residence closer to the boundary, there is a question as to the reasonableness of complaints about subjective effects on amenity values that are, to some extent, self-inflicted. Flax Trust submits that there is no reason why a Court could not find that such issues of fairness are relevant and necessary to decide an application.
[108] Alternatively, if the Court was in error to consider fairness under s 104(1)(c), Flax Trust submits that the error was immaterial to the result. The Court’s analysis showed that an orthodox evaluation under ss 104(1)(a) and (b) led to allowing the appeal in any event, regardless of what the Court thought of the parties’ behaviour.
Discussion
[109] While the matters raised by Speargrass on appeal were wide ranging, I have focussed on the pleaded error, which is, in essence, that the Environment Court was wrong to take account of its view that the situation was “unfair” to Flax Trust because:
(a)the development at the Speargrass site is an illegal activity; and
(b)Flax Trust had not been given the opportunity to be heard about changes at the Speargrass site.
[110] In discussing the first ground, I have already explained why I disagree with the Environment Court’s conclusion that the buildings were unauthorised or illegal. It follows that that conclusion was an irrelevant consideration, and, to the extent the Court took it into account, it was in error.
[111] The remaining issue is whether the perceived “unfairness” to Flax Trust of not having had an opportunity to participate in the decision to amend the Speargrass subdivision consent conditions was a relevant consideration, either under s 104(1)(a) or s 104(1)(c). Many of the issues raised by Speargrass (such as the purported misuse of the concept of reverse sensitivity), were simply aspects of the reasoning which the
Judge used to support his view that the changes on the Speargrass site had an adverse effect on Flax Trust and therefore warranted some latitude in assessing reciprocal effects on Speargrass created by the earth mound.
[112] I am satisfied that the Environment Court was not authorised to look behind the Speargrass consents when their validity was not in issue in the appeal proceedings. As was said in McGuire v Hastings District Council, “the exercise … of a statutory power of the council must be accepted as lawful unless and until set aside”. 49 Any qualms the Environment Court had about the fairness of the process by which those consents were granted were clearly irrelevant to its assessment of the effects of Flax Trust’s proposed earthworks on the environment under s 104.
[113] Similarly, I accept that this section does not mandate a comparison between the adverse effects of a third party’s existing activity and the effects of a proposed application, to minimise, or to justify, the effects the proposed activity would have. Unless the activities on the Speargrass site were not authorised (and I have held that they were), they formed part of the existing environment and the effects of the proposed activity on that environment needed to be assessed in an objective way.
[114] Thus, to the extent that the decision took into account the Judge’s view of the fairness of the process by which Speargrass obtained amendments to its subdivision consent, and its comparative assessment of the adverse effects of the proposed activity with the existing activity on Speargrass land, the Environment Court decision was in error as these were irrelevant considerations.
Conclusion on the Environment Court Appeal
[115]I am satisfied that the Environment Court Judge erred in the following ways:
(a)By determining that the Speargrass buildings authorised to be built in the form and location specified in RM 110186 and RM 110820 could not form part of the existing environment for the purpose of s 104.
49 McGuire v Hastings District Council [2000] 1 NZLR 679 (CA) at [56].
(b)By misinterpreting the extent to which the available evidence allowed the Court to discount the adverse effects of the as-built earth mound when compared with the effects of a line of evergreen trees on the boundary, applying the permitted baseline principle.
(c)By failing to consider whether the discretion to apply the permitted baseline should be exercised when the application is made in the context of an existing consent which already constrains what can be done as of right on the property.
(d)By having regard to irrelevant considerations, including the Court’s view of whether the process of granting the Speargrass consents allowing construction of buildings within a revised building platform, was fair.
[116] All, or any one, of these errors was material to the Court’s decision. Accordingly, the Environment Court’s decision allowing the appeal and granting consent to vary the conditions of Flax Trust’s earthworks consent RM 130766 is set aside.
[117] For the avoidance of doubt, earthworks consent RM 130766 remains in force in the form originally granted by the Council.
PART B: THE JUDICIAL REVIEW PROCEEDINGS
[118] The judicial review proceedings pursued by Speargrass challenge the Council’s decision to grant resource consent RM 130766 for earthworks on the Flax Trust property (the earthworks consent). That consent was granted without notification to Speargrass and permitted construction of ponds and mounds, including an earth mound alongside the boundary to the property at 88 Speargrass Flat Road. The mound that was authorised to be built along that boundary comprises around 2,600 m³ of fill, is up to 2.7 metres in height, and is approximately 100 metres in length.50
50 While there was some debate over whether the permitted mound could be 2.70, 2.75, 2.82 or 3 metres high, the consent was expressly granted on the basis that the maximum height would be
2.7 metres, and I do not see how it could be suggested the mound could exceed that height.
[119] Judicial review is, of course, a fundamentally different process from an appeal. It is focused on the lawfulness of the process by which the decision is made and, except to the extent that decisions may be challenged for Wednesbury unreasonableness, can not revisit the merits of the decision.51
[120] In this case, Speargrass says the decisions are amenable to being set aside on review because:
(a)the statutory requirements governing notification were not adhered to;
(b)the Council did not have adequate information to make either the notification or substantive consent decision;
[223] Equally, Flax Trust submits the mound can not be considered a fence. It does not meet the Fencing Act 1978 definition of a fence and, in any event, condition 18(e) of the Flax Trust subdivision consent prohibits the use of fencing in the subdivision.
Speargrass’s submissions
[224] Speargrass submits that the earth mound is either an improvement or a fence, and so falls within the PLA definition. Although it is not located on the boundary line, Speargrass submits the mound fits within the definition of a fence in the Fencing Act
69 The Proprietors of Atihau-Wanganui v Malpas [1979] 2 NZLR 545 (CA) at 552.
1978, which includes “any ditch or channel or raised ground that serves as a dividing fence”.70
[225] In support of the argument that it is an “improvement”, Speargrass refers to legal definitions of that term. For example, Black’s Law Dictionary defines an improvement as:71
… an addition to property, usu. real estate, whether permanent or not; esp. one that increases its value or utility or that enhances its appearance…
[226] Speargrass argues that the earthworks carried out under the earthworks consent were clearly intended to increase the value or desirability of the Flax Trust subdivision land and to suggest they are not “improvements” defies logic and common sense. They must have been seen as improving the value or utility of the land or else Flax Trust would not have gone to the trouble and expense of designing them, applying for resource consent for them and then undertaking their construction.
[227] Speargrass also argues that the assertion that it cannot be an improvement or structure because it is “part of the land” is inconsistent with the Court’s acceptance in Woodworth v Milich72 that, but for a building consent, the Court would have had jurisdiction over the structure which involved a concrete slab floor set into the land, making it part of the land. The fact that the PLA has deliberately chosen to use the much broader term of an “improvement”, rather than a technical term such as “fixture”, reinforces that a broad and purposive approach should be taken to the construction exercise.
Discussion
[228] The starting point for determining whether the mound is a structure is, of course, the definition in the PLA itself. That must be interpreted from the text of the PLA and in light of its purpose.73 As was said in Guo v Bourke, the powers in the PLA are “remedial”, which is why they are expressed in broad terms.74 They are designed
70 Section 2.
71 Bryan Garner (ed) Black’s Law Dictionary (10th ed, Thomson Reuters, Minnesota, 2009).
72 Woodworth v Milich DC Waitakere CIV-2007-090-2669, 16 September 2008.
73 Interpretation Act 1999, s 5.
74 Guo v Bourke [2017] NZCA 609 at [12].
to help resolve disputes between neighbours. The definitions contained in the PLA should be read in a way which facilitates achievement of that purpose.
[229] The PLA’s definition of what comprises a structure is very broad in scope. It includes items such as a “path” or a “plantation”, which do not readily fit in with the more conventional definitions of a structure relied on by Flax Trust and suggests the term is not constrained by such definitions. Furthermore, the term “improvement” used in the PLA embraces a wide range of works on land, including those which might normally be thought of as being part of the land, such as a driveway or path. Consequently, I consider the broad definition of “structure” used in the PLA is intended to encompass any man-made works or planting introduced on a property, which might give rise to adverse effects on neighbouring properties. This includes improvements such as a man-made mound of earth.
[230] The concern that such an interpretation would cast the net too wide and expose any earthworks on residential land to the prospect of a removal order, is readily met by the requirements of s 335. Only structures which have the capacity to unduly affect neighbouring land in one of the ways described in that section would be amenable to a removal order. It is difficult to conceive of circumstances where mere recontouring of land would have such effects.
[231] In the present case, the as-built mound is a significant feature constructed using existing and imported fill, and its purpose is clearly to screen the Speargrass house from the adjacent Flax Trust subdivision. Had it been constructed of any other material, for example rocks or concrete, there would be no doubt that it would form a structure on the land and be amenable to removal if it reached the threshold for making an order under s 333. I see no reason why the PLA provisions should not apply to a structure created by piling earth to create a tall physical barrier, when they would to such a barrier made of any other material.
[232] I accept, therefore, that the earth mound is a structure for the purposes of this part of the PLA.
What are the effects of the earth mound?
Speargrass’s submissions
[233] Speargrass submits that removal and anti-recurrence orders are necessary in this case, because the earth mound unduly:
(a)obstructs the views that the Meehans previously enjoyed from the property at 88 Speargrass Flat Road;
(b)interferes with their use and enjoyment of the land in relation to:
(i)the growing of trees or crops; and
(ii)access to “secondary light from the Remarkables and Rôche Moutonnée”; and
(c)interferes with their reasonable use or enjoyment of the land at 88 Speargrass Flat Road for residential living.
[234] The Meehans state that the earth mound significantly obstructs views of the Remarkables and the Wakatipu Basin’s wider rural living landscape from all the south facing rooms in the Meehans’ family home, including their master bedroom, and from the garage structure and from numerous external areas towards that boundary of their property which includes, in particular, the driveway and forecourt area to the rear of their house and the orchard area.
[235] The evidence of Mr Skelton, a landscape architect, is that the earth mound “unduly interrupts visual access from much of the Speargrass’s/the Meehans’ site to a high degree” and cuts the site off from the “dramatic southern landscape”. He states that it prevents those viewing the surrounding landscape from the property from “perceiving the geologic legibility and natural character and from understanding the scale of the wider Wakatipu Basin and landscape”.
[236] In terms of whether the obstruction of views is undue, the Meehans point out that it has a major effect on what are widely regarded as world class views from their
property. The mound was not there when they purchased the property, and they designed their family home so that, in particular, the master bedroom would have views to the south towards these views. They say this is not a case where, for example, a tree simply interferes with otherwise unobstructed views. Rather, the earth mound has “created a wholesale change to the available views and the nature of those from [their] property”.
[237] In response to Flax Trust’s submission that, in any event, Speargrass’s resource consent requires planting of trees near the boundary line shared with the Flax Trust subdivision, many of which are evergreen, and these will, in time, obstruct the views as well, the Meehans say this contention is misconceived. Specifically, they say the relevant trees on their land can be topped or thinned as desired to maintain the views. Furthermore, the deciduous nature of many of the trees means that good views will still be available when the mountains look their most spectacular in winter. Even in summertime, the trees give filtered views to the south. In other words, the trees function quite differently in terms of the views when compared with the long solid earth mound, as the trees still allow views through and across the landscape.
[238] The Meehans say they have no desire to live in a “canyon/fort-like environment” where they feel constantly hemmed in. The trees would always be managed and maintained and as such, the earth wall is unlikely to ever be invisible. In short, they say that obstruction of the Meehans’ views is “undue”.
Flax Trust’s submissions
[239] As signalled in the summary above, the position of Flax Trust is that any effect the mound has on views does not amount to an “undue” obstruction, when it is a condition of the Speargrass’s resource consent that it must plant a dense row of trees along the same boundary. It says this row of trees was a “device used by Speargrass which allowed it to move its consented building platform, via subsequent consent variations, closer to the van Brandenburg boundary without requiring the variations to be notified to the van Brandenburgs”. Given the trees are largely evergreen coniferous trees, which can reach 40 metres in height with significant spread, they will create an impenetrable wall of evergreen leaves which will both render the mound completely
invisible to anyone looking south from the Speargrass site and would obstruct the views to the south in any event. In these circumstances, the mound itself would not be unduly obstructing views that Speargrass would otherwise enjoy.
Discussion
[240] It is clear that, at present, the mound blocks the views of the Remarkables from all the south facing windows on both floors of the house, and from external areas at the southern end of the property. The real issue is whether the tree planting which is required as a condition of the Speargrass consent will, in time, equally block that view so that the role of the mound in blocking the view can be discounted. This largely depends on a careful understanding of what is required by the Speargrass landscaping conditions and whether the Meehans are able to thin the trees or modify them to an extent which would assist in maintaining those views.
[241] While the evergreen cedrus deodara trees are required to be planted along a large portion of the boundary, there is a planned gap where there is only one deciduous oak tree, which would afford views to the south in the winter months. Furthermore, as the Environment Court Judge found, it would take a number of years before the evergreen trees were at a height where they would largely, if not entirely, screen the views. In my view, in the short term, the mound clearly does unduly affect the views, but over time the trees would also largely block those views. While the Meehans may be able to maintain some control over the trees’ density, I agree with the Environment Court Judge that the Meehans are not able to thin the trees or modify them to an extent that would negate the privacy they asserted that the landscaping would provide. In the long run, though, the mound will be only one factor in reducing the views to the south; the required tree planting will be the other factor.
[242] In summary, I consider the mound does impact on views and, at present, that effect is undue, but I must assess the impact in the overall context of what is proposed for the two properties. In that regard, I consider that Speargrass had always planned to relinquish a considerable portion of its views to the south, maintaining just glimpses of the Remarkables through the trees. Considered in that context, the effect of the mound on views is adverse but not, in my view, undue.
Is there undue interference with the use of the land for growing trees and with access to light?
Speargrass’s submissions
[243] Speargrass says that the earth mound unduly interferes with its use of 88 Speargrass Flat Road by:
(a)causing run-off and pooling/ponding of water which creates unfavourable growing conditions for trees on their property; and
(b)significantly limiting access to “irradiated light”.
[244] The first claim relies on evidence by Mr Meehan and Mr Skelton to the effect that there is additional run-off from the earth mound which creates puddling/ponding on the Speargrass property and which has caused several of the trees that have been planted near the boundary to die from “drowning”.
[245] In respect of an interference with the Meehans’ access to light, the claim relies on evidence from Mr Skelton that the mound reduces access to the “irradiated light projected off the mountains” and it “generates a darkening effect” by blocking/reducing the irradiated light that would otherwise be available” and creates a “corridor effect” in the area of land to the south of the Meehans’ family home.
Flax Trust’s submissions
[246] On the first issue, Flax Trust responds by simply saying that there is no credible evidence before the Court that the alleged run off/pooling occurs. That suggestion was rejected in the Environment Court for lack of evidence and that situation has not changed. In any event, to the extent that it exists, it could be alleviated by drainage and/or planting the mound as proposed.
[247] In respect of light and shading, Flax Trust points out that the mound is located on Speargrass’s southern boundary and common sense dictates that any light/shading effects are minimal or non-existent because the sun is to the north and the mound does
not cast any shadow on the Speargrass land. Even if did have effects, none of these are undue.
Discussion
[248] This aspect of the claim can be dealt with quickly. While it is possible there may be some additional run off water deflected on to the Speargrass property by the mound, the planting that is in place on the Speargrass property is generally in good condition and the evidence falls far short of there being an undue effect on Speargrass’s plantings. At best, Mr Skelton puts it as “a risk”.
[249] The concern about light and shading is even more easily disposed of. I accept that the mound’s location on the southern boundary of the Speargrass property means it does not cast shade on the Speargrass property. Indeed Speargrass’s landscape expert accepts that it “does not directly impede the solar gain the property might otherwise experience”.
[250] The associated claim as to loss of “irradiated light” from the mountains to the south struck me as being an effect of such subtlety that, even if it exists, it could never reach the threshold of constituting an “undue interference” with access to light. Furthermore, no attempt was made in the evidence to quantify the effect. Rather, it was expressed in impressionistic terms saying that while irradiated light does not directly illuminate Speargrass’s property, it can provide “a vivid experience and give a sense of warmth”. These seem to me to be factors more relevant to the next category of effect, rather than a quantifiable effect on light received.
[251] There is therefore no undue interference with the use of the land for growing trees or with access to light.
Is there undue interference with the reasonable use and enjoyment of the land for residential purposes?
Speargrass’s submissions
[252] The Meehans submit that the earth mound unduly interferes with “their reasonable use or enjoyment of their land for general rural/residential living”. The
land in the Triangle area is classified as Rural. However, substantial residential activity is evident there and has been facilitated by the grant of subdivision consents.
[253] The Meehans’ evidence is that, on a day-to-day and long-term basis, the earth mound reduces their sense of privacy and security, as any occupant or visitor to the Flax Trust subdivision can walk up the earth mound and look directly across and down into the Meehans’ family home. They also find it “depressing” and “distressing” to the point when it interferes with the Meehans’ family life. As Mr Meehan says in evidence:
… the earth wall is overbearing and intrusive. It makes me feel hemmed-in and as if a fort or similar structure has been built around my home. I understand that Michaela and other members of my family feel the same. I believe that these unavoidable and unpleasant feelings are the direct opposite of what one should feel in the stunning, spacious Queenstown environment.
[254] Mrs Meehan explains in her evidence that the earth mound “makes me feel as though my family is living in a large canyon and constantly fenced in”. The earth mound has “deeply affected my enjoyment of the property and taken away much of the excitement that I had about living in our new family home”.
[255] Mr Skelton, too, gives his expert opinion evidence that the earth mound functions as a “barrier” and is incompatible with the adjacent residential activity.
Flax Trust’s submissions
[256] Flax Trust submits that any sense of enclosure felt by the mound will also be created by the dense row of mature evergreen trees that will eventually form in front of the mound. Furthermore, the mound is further back from the Speargrass buildings than the trees are, so that any sense of enclosure created by the mound will be less than the trees and short term in nature. Consequently, those effects will not be undue.
[257] Similarly, the complaint about potential loss of privacy by future property owners using the top of the mound as an outdoor area will fall away in light of the proposed planting of the mound with grass and flax. The mounding area would thereby become a garden and, by implication, would not be used for this purpose.
Discussion
[258] I have a combination of evidence on the effects the mound has on the reasonable use and enjoyment of the land for residential purposes. There is the evidence of the occupants, along with the expert evidence of Mr Skelton. This is supplemented by the impressions I have gleaned from the Court’s site visit.
[259] While Mr Skelton has given evidence about the earth mound’s effects, I consider this is a matter that can readily be assessed without expert evidence. It is a decision to be made having regard to the views of the Meehans, and in light of whether, in all the circumstances, including the Court’s assessment of the adverse effects, those views are reasonably founded, and reach the threshold of being “undue”.
[260] In the present case, my assessment of the effects of the mound has been informed by the site visit. The Speargrass property is clearly rural-residential in nature. As the Environment Court said, the property has been landscaped as “a large elegant lifestyle section” with a “formal rectilinear garden”. It is a carefully tended environment, albeit not naturalistic, in contrast to what is sought to be achieved by the neighbouring Flax Trust subdivision.
[261] As one approaches the forecourt area to the rear of the Meehans’ house, the visual impact of the mound is inescapable. It strikes a jarring note in the carefully curated environment of the Speargrass property. Once in the forecourt area on the southern side of the house, the full scale of the earth mound is readily apparent and is confronting. Even inside the house it makes its presence felt. At over five metres high, the occupants are still looking across to it in the second floor of the house.
[262] I consider that the Meehans do not exaggerate when they talk about the effect this has on their day-to-day living. The sheer scale of the mound, both in length and in height, can not be ignored in coming and going from the house, or in engaging in any activity within the southern end of the property. It clearly detracts in a significant way from the amenity values of the property.
[263] I am satisfied that the earth mound in its current form does have an undue effect on the Meehans’ use of the property for rural residential living. It is, to borrow from the language used in Aitchison v Walmsley,75 an;
… incongruent structure in this setting, totally dominating the outlook from inside the house …. irrespective of whether or not [one] knew what views existed beyond the structure.
[264] I consider the mound is so dominant in scale, and so proximate to the house on the Speargrass property that it does have an undue effect on its use for residential living.
[265] I do not consider that effect is negated by the obligation on Speargrass to plant and maintain trees on its own boundary. Hedgerows and trees are a natural and congruent element in this landscape. While I have accepted that the Environment Court Judge is correct when he concludes that the Meehans cannot thin or modify the trees to an extent which negates the privacy they asserted the landscaping would provide, they nevertheless maintain some control over the trees’ density and, of course, they have retained a winter view corridor through those trees by providing a gap where only a deciduous oak is planted. With the required tree planting there will always be glimpses to the south, and privacy will be achieved in a more natural way.
[266] The required tree planting, therefore, does not alter my view that the presence of the mound has an undue effect on the applicant’s residential use of the land. While the trees will, in time, reduce the effects of the mound, they will not eliminate it.
What order, if any, should be made?
[267] That leads to consideration of whether, in all the circumstances, an order should be made. The starting point is that the existing mound is no longer authorised as a consequence of my decision allowing the appeal of the Environment Court’s decision. The only mound that can lawfully exist is the one permitted under the plan approved by the earthworks consent.
75 Aitchison v Walmsley [2016] NZEnvC 13 at [32].
[268] I have already determined that the mound as originally consented would have an acceptable range of effects. It will be two to two and a half metres lower than the existing mound and the gradient as perceived from the Speargrass property will be commensurately more gradual, and it will not have the adverse effects on views of the surrounding mountains or amenity values that the present mound does.
[269] As the present position is that the mound must comply with the original consent, that only leaves the question of whether I should make a non-recurrence order as sought, to prevent Flax Trust from seeking fresh approval for a higher mound, whether through a further appeal to the Environment Court, or through a fresh application for amendment of its existing earthworks consent.
[270] In my view, I should not. While I have held that the as-built mound does unduly interfere with the Meehans’ use of their property for residential purposes, and does have an adverse effect on views, I am not able to say at what height between the as-built and the consent mound those effects would be sufficiently ameliorated so that they were no longer “undue”.
[271] Furthermore, while I do not encourage Flax Trust to do so, in the event it was to pursue an amendment to its current earthworks consent to allow a higher mound, that application would have to be assessed on the basis that the Meehans’ existing house formed part of the existing environment, which the previous Environment Court decision did not do. As the concerns of Speargrass and the Meehans will be fully ventilated in that process, I consider the prospect that a mound as high as the as-built mound would be approved is remote, if non-existent.
[272] Consequently, because the appeal has been successful, and the right to construct a mound that is higher than the currently consented mound would be the subject of a further decision, I consider it is preferable to leave any changes to the consented mound to the RMA process, rather than to use the blunt tool of an order under s 333. For this reason, I decline to make a non-recurrence order.
Conclusion
[273] Speargrass has been successful in its appeal of the Environment Court decision and the decision granting the amendment to the earthworks consent to allow the as-built mound has been quashed.
[274] While Speargrass has demonstrated, and the Council has accepted, that in at least one regard the Council erred in both its notification and substantive decision on the earthworks consent, in the exercise of my discretion I have declined to grant relief.
[275] Finally, while I have held that the as-built earth mound does have undue effects on the reasonable use or enjoyment of the Speargrass property for residential purposes, I have held that the outcome in the appeal proceedings means an order under the PLA is not necessary to remove that undue interference. I have also declined to make a non-recurrence order on the basis that such an order is not necessary because the issues raised are better addressed through the normal RMA processes.
Costs
[276] It will be apparent from the outcome above that the parties have had mixed success and, while I have generally agreed with the Council’s stance in the first two proceedings, the Council has acknowledged that it erred in the processing of the earthworks consent. In my view, although there were three separate proceedings, this is a case where I am minded to consider costs holistically, given the interrelated nature of the proceedings and my preliminary view is that costs should lie where they fall for all three parties.
[277] If costs cannot be agreed, I reserve leave to file submissions on costs. In those circumstances:
(a)any party seeking costs must file those submissions within 30 working days of the date of receipt of this judgment;
(b)any submissions in response are to be filed within a further 10 working days;
(c)any submissions in reply within a further five working days; and
(d)submissions are to be no more than 10 pages in total, with reply submissions to be no more than five pages.
[278]Costs will be determined on the papers unless I require to hear from counsel.
Solicitors:
Bell Gully, Wellington
Meredith Connell, Wellington Gallaway Cook Allan, Dunedin
Copy to:
Queenstown Lakes District Council
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