Speargrass Holdings Ltd v van Brandenburg
[2021] NZHC 3391
•10 December 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-36
[2021] NZHC 3391
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal under s 299 of the Resource Management Act 1991
BETWEEN
SPEARGRASS HOLDINGS LIMITED
Appellant
AND
FPM and DMJ VAN BRANDENBURG as
trustees of the FLAX TRUST First Respondents
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Second Respondent
Hearing: 27-28 April 2021 Appearances:
M Colson and E Watt for Appellant
F P M van Brandenburg (in person), a First Respondent (Attendance of counsel for Second Respondent excused)
Judgment:
10 December 2021
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 10 December 2021 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
SPEARGRASS HOLDINGS LIMITED v FLAX TRUST [2021] NZHC 3391 [10 December 2021]
TABLE OF CONTENTS
Introduction[1]
Location[2]
How the parties got here[3]
Background[4]
The 2016 Decision[5]
The 2020 Decision[14]
A — the Flax site and its environment[16]
B — the actual effects of the mound on the environment[17]
C — the potential effects of the mound[18]
(i)Introduction[19]
(ii)Effects on privacy[20]
(iii)Effects on visual amenity[21]
(iv)Other (actual) and potential adverse effects of the as-built mound[22]
D — assessing the effects under the operative district plan (ODP)[23]
E — applying the objectives and policies of the ODP[25]
F — assessing the effects under the proposed district plan (PDP)[26]
G — identifying the relevant objectives and policies of the PDP[27]
Chapter 3 — Strategic direction[28]
Chapter 6 — Landscapes and rural character[29]
Chapter 24 — Wakatipu Basin[30]
Chapter 25 — Earthworks[36]
Chapter 28 — Natural hazards[39]
H — evaluation under policy 24.2.5.1 PDP[40]
Criterion 1 — Landform patterns[42]
Criterion 2 — Vegetation patterns[46]
Criterion 3 — Hydrology[47]
Criterion 4 — Proximity to ONL/ONF[48]
Criterion 5 — Character unit boundaries[50]
Criterion 6 — Land use[51]
Criterion 7 — Settlement patterns[52]
Criterion 8 — Recreation features[53]
Criterion 9 — Infrastructure features[54]
Criterion 10 — Visibility/prominence and (11) views[55]
Criterion 12 — Enclosure/openness[56]
Criterion 13 — Complexity[57]
Criterion 14 — Coherence[58]
Criterion 15 — Naturalness[59]
Criterion 16 — Sense of place[61]
Criterion 17 — Potential landscape issues[62]
Criterion 18 — Potential landscape opportunities[63] Criterion 19 — Characteristics and values to be maintained and enhanced[64] Criterion 20 — Capability to absorb development[69]
I — weighing the relevant considerations[70]
J — Condition 12 of the 2012 consent (RM 120327)[71]
K — the Commissioner’s decision[79]
L — summarising the actual and potential effects of the mound and
the counterfactual[81]
M — should there be changes to the mound?[88]
N — conclusions as to implementing the policies of the ODP[91]
O — conclusions as to implementing the policies of the PDP[93]
P — result[95]
The rehearing (by the Environment Court) of Flax’s appeal — the legal regime[100]
Appeals on questions of law — the legal regime[109]
Interpretation of resource consents[117]
Speargrass’s grounds of appeal[119]
The submissions[120]
Question 1A: focusing on the adverse effects of Speargrass’s activities[125]
Question 1B: reversing the legal burden[130]
Question 1C: unlawful comparative exercise[132]
Discussion[153]
Question 2: the “quite different” earthworks[168]
Question 3: ignoring factual findings[170]
Discussion[177]
Question 4: failing to take into account matters confirmed by the High Court
to be irrelevant and unlawful?[192]
Question 5: failing to attach weight to the statements at [270]–[272] of the
High Court Judgment?[193]
Discussion[195]
Question 6: concluding the Commissioner’s decision contained errors
and/or should be accorded minimal weight[198]
Question 7: incorrectly interpreting and applying the rules under the
ODP and the PDP?[203]
Discussion[220]
Question 8: conclusions not supported by and untenable on the evidence?[225]
Discussion[228]
Summary: the questions answered[231]
Outcome[232]
Costs [233]
Order[234]
Introduction
[1] This appeal under the Resource Management Act 1991 (RMA) concerns the retrospective variation of a land use consent granted in relation to a large earth mound. The consent had been granted by the Queenstown Lakes District Council (QLDC).
Location
[2] The mound was formed along the northern boundary of land (Flax site) owned by the trustees of the Flax Trust (Flax) namely Mr and Mrs van Brandenburg. The neighbours to the north are Mr and Mrs Meehan whose company, Speargrass Holdings Ltd (Speargrass), owns 88 Speargrass Flat Road (88 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.
How the parties got here
[3] A brief history of the decisions concerning the potential and actual mound is as follows:
(a)5 December 2011 — QLDC granted variations to Speargrass’s original consent notice (RM 100318) including as to the location of the building platform and the construction of the house (RM 110186) (2011 Speargrass variations);
(b)12 November 2012 —QLDC granted a consent in respect of multiple proposed subdivision and land use matters in relation to the Flax site (RM 120327), with a structural landscaping plan to be submitted (2012 consent);
(c)10 January 2014 — QLDC granted Flax an earthworks consent (for a mound less than three m high) (RM 130766) (the earthworks consent);
(d)2014 — Speargrass dwelling built on an amended platform pursuant to the 2011 Speargrass variations.
(e)2014 — Flax, without consent, caused a mound to be formed to be approximately 5.17 m high (becoming an “as-built mound”);
(f)14 January 2016 — Flax’s application for retrospective consent for the as-built mound is declined by the Commissioner (RM 150185) (QLDC variation refusal);
(g)17 October 2016 — the Environment Court allows an appeal against the QLDC variation refusal, and varies the consent to authorise the as- built mound, (2016 Decision);1
(h)9 May 2018 — the High Court allows an appeal against the 2016 decision, leaving the (original) earthworks consent RM 130766 in force (High Court Judgment);2
(i)6 November 2019 — the Environment Court issues a procedural decision in relation to the factual findings in the High Court Judgment (Procedural Decision);3
(j)18 November 2019 — the Court of Appeal dismisses Speargrass’s appeal from the Property Law Act 2007 and judicial review aspects of the High Court Judgment (Court of Appeal Judgment);4
(k)19 June 2020 — the Environment Court, upon re-hearing the appeal, varies earthwork consent RM 130766 to increase the mound to 5.17 m high, with some conditions (2020 Decision).5
1 Flax Trust v Queenstown Lakes District Council [2016] NZEnvC 202 [2016 Decision].
2 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20 ELRNZ 645, at [116]–[117] [High Court Judgment]. The High Court Judgment, in addition to determining Speargrass’s appeal under the Resource Management Act 1991, dealt with two other proceedings concerning the mound (one under the Property Law Act 2007 and a second by way of judicial review).
3 Flax Trust v Queenstown Lakes District Council [2019] NZEnvC 177 [Procedural Decision].
4 Speargrass Holdings Ltd v van Brandenburg [2019] NZCA 564, (2019) 21 ELRNZ 466 [Court of Appeal Judgment].
5 Flax Trust v Queenstown Lakes District Council [2020] NZEnvC 84 [2020 Decision].
Background
[4] As the detail of the background leading to the 2016 Environment Court decision has been comprehensively set out by Dunningham J in the High Court Judgment, I respectfully adopt her Honour’s summary:6
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”.7 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
6 High Court Judgment, above n 2.
7 Hawthorn Estates Ltd v Queenstown Lakes District Council EnvC Christchurch C83/2004, 23 June 2004 at [4].
[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. 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”.8
[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:9
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.
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.
8 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.
9 The sub-numbering of the listed objectives has been added for ease of reference when discussing these conditions in the text of this decision.
(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.10 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.
The 2016 Decision
[5] By the 2016 Decision the Environment Court reversed the Commissioner’s refusal of retrospective consent to the as-built mound, varying resource consent RM 130766 by authorising the construction of the as-built mound (at a height of 5.1 m).11
[6] As discussed by Dunningham J in the High Court Judgment, the 2016 Decision was founded on the fact that, despite Speargrass having obtained amendments to the subdivision consent — both as to the location of the building platform on 88 Speargrass and the house construction — Speargrass had failed to register the consent notice against its title to reflect those changes.12
[7] Dunningham J summarised the reasoning which led the Environment Court to grant retrospective consent for the as-built mound:13
10 2016 Decision, above n 1.
11 At [B] and [178].
12 High Court Judgment, above n 2, at [37] and following.
13 Footnotes omitted.
[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”.
[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” to the consent governing earthworks because an earlier consent may be replaced in whole or in part by a later one. 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.
[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”.
[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”. In his view, the issue was whether “the mound [was] an appropriate response to an unauthorised development” on the Speargrass site and he found that it was. 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.
[8] The High Court found the Environment Court to have erred (materially) in law in deciding that what was built on the Speargrass site did not (because of a failure to register the variations to the consent notice) form part of the “environment” for the purposes of assessing the effects of the mound under s 104(1)(a) RMA.14
[9] The High Court went on to consider the other three matters which Speargrass submitted constituted errors of law. It found each, as with the first, to constitute material errors on their own. Dunningham J identified that the Environment Court had erred in four respects:15
14 At [73]–[75].
15 At [115].
(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.
(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.
[10] The High Court, having found that each of the four identified errors was material, then considered what order, if any, should be made. In determining that the single order, would be one quashing the 2016 Decision and refusing to make a non- recurrence order,16 which would have prevented Flax from seeking fresh approval for a higher mound, Dunningham J reasoned:17
[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
16 See Property Law Act, s 333.
17 Emphasis added. Counsel for Speargrass, on this appeal, place importance upon this particular passage as part of the reasoning in the High Court Judgment.
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.18
[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.
[11] The Court of Appeal dismissed Speargrass’s appeal from the High Court Judgment.19
[12] The Court of Appeal found that it had been open to Dunningham J to take the view that the appropriate height of the mound could be assessed by the Environment Court.20 The Court of Appeal noted the Judge had felt unable to determine an optimum height for the mound on the evidence, and was not obliged to make a factual finding she felt unable to make.21
[13] It happened that very shortly before the Court of Appeal Judgment was delivered the Environment Court issued its Procedural Decision.22 Speargrass had sought a ruling, based on the doctrine of issue estoppel, that the Environment Court was bound by the findings of fact in the High Court Judgment, with particular reference to paras [268]–[272] (as set out at [10] above), and also the Court’s discussion of the physical appearance of the mound (at [261]–[266] of the judgment). The conclusion reached by Judge Jackson was that the High Court findings could be treated as facts through to the date of the High Court Judgment (9 May 2019). His Honour recorded:
[23] I must confess to doubts about the doctrine of issue estoppel being a fair or useful concept in relation to findings of “facts” about the effects of an earth mound on a neighbouring property. However, I consider a pragmatic approach is to hold that the High Court findings can be treated as facts on the basis they are understood to be facts as at the date of the High Court hearing (12-15 February 2019) or at the latest the date of its judgment (9 May 2019)
18 It is likely the Judge meant to say “is remote, if not non-existent” at the end of the quoted passage. See the Court of Appeal Judgment, above n 4, at fn 94.
19 Court of Appeal Judgment, above n 4.
20 At [108].
21 At [109].
22 Procedural Decision, above n 3.
and particular regard is had to the tenses and contexts of the High Court’s sentences and the statutory tests it was applying at the relevant point in its decision(s).
The 2020 Decision
[14] By the 2020 Decision, delivered on 19 June 2020, the Environment Court granted retrospective consent to the as-built mound, varying the earthworks consent RM 130766 by allowing the height of the mound to be increased to 5.17 m. This was subject to two conditions. The mound had to be lowered to:
(a)four m in front of the “pin oak gap”; and
(b)2.7 m at a point 20 m from its western end and then tapering down towards the Taquet property.23
[15] The 2020 Decision is a lengthy (479 para) judgment. I will endeavour to summarise the central findings by reference to the headings in the Judgment:
A — the Flax site and its environment
[16] Judge Jackson concluded the Speargrass house was “quite different” from the environment when Flax’s original subdivision and earthwork consents were granted.24 He noted the house now had a greater height and roof pitch, was 5 m closer to the Flax site (Lot 2) building platform and had different landscaping (both approved and in reality). The Judge recorded that “technically” the environment on 88 Speargrass had in 2011 changed (through the 2011 Speargrass variations), before the Flax subdivision earthwork consents were applied for, with the result that the environment under s 104(1)(a) RMA included the unimplemented Speargrass consents. But his Honour found those matters were complicated through the non-registration of the variation until after the 2016 Environment Court hearing and because Mr van Brandenburg and the Hearing Commissioners were unaware of the Speargrass variations at the time of the 2012 Flax consent.25 It might have been appropriate for Flax, on the earthworks
23 2020 Decision, above n 5, at [a] and [475].
24 At [110].
25 At [111]–[113].
consent, to seek a higher mound to deal with adverse effects flowing from the environment on 88 Speargrass.
B — the actual effects of the mound on the environment
[17] The Judge found that maintenance of privacy is one important feature of the as-built mound which favours both the Flax site and 88 Speargrass.26 The Judge assessed the actual adverse effects of the as-built mound on the environment on four dates as being:
(a)August 2016 — the mound was obvious and intrusive from 88 Speargrass at that time (with reliance on the evidence of Mr Skelton, a landscape architect).27
(b)2018 — the Judge cited the High Court findings of fact at [240]–[242] and [261]–[266], including as to the mound’s dominant scale and undue effect on residential living on the Speargrass property. The Judge characterised those at “psychological effects”. The Judge accepted the High Court’s finding that the “psychological effects” will not be negated by Speargrass’s tree planting, but reserved consideration of the possibility that effects may be reduced by the planting if it were properly maintained.
The Judge noted that, by the Procedural Decision, he had determined the High Court findings of fact were binding on the Environment Court in the re-hearing proceeding. But that was subject to the determined facts being as at the date of the (February 2018) High Court hearing, having particular regard to the tenses and context of the High Court’s sentences and the statutory tests it was applying at the relevant point in its decision.28 The Judge then briefly discussed the High Court analysis of the PLA context, concluding that it was puzzling that the High Court apparently failed to consider Flax’s claim that the ordered removal of
26 At [115].
27 At [124]–[125].
28 At [132].
the as-built mound would cause Flax hardship. The Judge concluded he was left without any useful guidance from the High Court on a matter which should be considered if he was to consider the “hardship” caused to Mr and Mrs Meehan and to potential occupiers of the Flax site.29
(c)December 2019/January 2020 — from photographs produced by the Council’s witness, Ms Pfluger, the Judge concluded, by reason of the trees on 88 Speargrass, that the as-built mound was barely visible. He noted that the trees largely screened the views, without meaningful screening contribution yet to eventuate from planted deodars. On that basis the Judge concluded there were no direct adverse effects for over eight months of the year (October to early May).30 The Judge concluded that the visual impact of the as-built mound had changed from February 2018, when the High Court assessed it as “inescapable”, “readily apparent” and “confronting”. He found the mound could be easily ignored in December 2019. The Judge found the “dominating scale” to have been completely hidden from the Speargrass house by planted alders and poplars (with additional screening provided by pin oaks and, to a much lesser extent, deodars).31
(d)February 2020 — the Judge recorded that, in the period immediately before the commencement of the re-hearing in the Environment Court, poplars and alders had been topped and trimmed from about five to six m high to approximately half that height. The Judge observed that “[s]omewhat farcically the situation changed again”.32
(e)The Judge identified three points from which the mound was now visible, with the effects of the as-built mound on visual amenity thereby being adverse.33 But the Judge observed those effects were almost
29 At [136].
30 At [137].
31 At [139].
32 At [140].
33 At [141]–[142].
completely self-inflicted by the Meehans’ topping and thinning work. There were two relatively minor exceptions (the as-built mound possibly being visible during winter in the “pin oak gap” and the mound being mildly obtrusive at the western end of the mound.34
C — the potential effects of the mound
[18] The Judge discussed the potential effects of the as-built mound through an introduction, and then in terms of effects on privacy, visual amenity and other adverse effects.
(i)Introduction
[19] In the introductory passage on potential effects of the mound, the Judge identified evidence given in relation to both the Speargrass (consented) landscaping plans and the numbers and locations of the actual plantings on 88 Speargrass. The Judge referred also to the evidence as to the likely density of trees and the unlikelihood of being able to see through the trees. His Honour had regard to a scale model of the predicted effect of the deodars on 88 Speargrass produced by Mr van Brandenburg at previous hearings, showing a “wall of trees” which cannot be seen through.
(ii)Effects on privacy
[20] The Judge referred to evidence relating to the required height of the alders if they were to screen particular points (the roof and the mid-point of windows) on the Meehans’ house from a point on the Flax site (1.6 m above the front edge of the building platform). Making some assumptions as to the location of the high point of the mound and then making trigonometric calculations, the Judge concluded that to fully protect rural visual amenity, the mound would need to be 7.06 m high (1.8 m above the as-built mound) whereas to screen views from the first floor on 88 Speargrass, the mound would be 3.97 m.35
34 At [142].
35 At [160]–[166].
(iii)Effects on visual amenity
[21] The Judge turned to predict the extent to which the Meehans’ planting would maximise screening.36 He preferred the evidence of the Council’s arborist, Mr Rowley, and the Council witness, Ms Pfluger, as to the screening effect of the trees (even in winter) to that of Speargrass’s landscape architect, Mr Skelton. The Judge expressed reservations as to the latter’s objectivity and accuracy. His Honour concluded that Speargrass’s conditions of consent required the trees to be planted in the correct location and allowed to mature.37 This means there is limited scope for the Meehans to top and trim their trees.38 The Judge concluded this discussion with recognition of two potential future problems with the nature of the Speargrass plantings, arising from crowding and sun blockage.
(iv)Other (actual) and potential adverse effects of the as-built mound
[22] The Judge turned to consider the mound’s adverse effects on amenity (other than visual amenity), privacy, security and “psychological effects”.39 His Honour concluded that the security issue carried no weight.40 The answer to the “psychological effects of the mound” was that “if Mr and Mrs Meehan allowed the planting on their landscaping plans to grow as I have held they should, they would not be able to see the mound”.41 The Judge noted that the facts found by the High Court were relevant to the situations where the alders were topped and the deodars immature, whereas the adverse effect, as at December 2019, when the alders had grown to about five m, was minimal.42
D — assessing the effects under the operative district plan (ODP)
[23] The Judge noted the most relevant assessment matters in the ODP are contained in r 22.4.43
36 At [167]–[183].
37 At [182].
38 At [179], citing the High Court Judgment, above n 2, at [241].
39 At [190]–[197].
40 At [193].
41 At [194].
42 At [195]–[197].
43 At [199].
[24] The Judge then turned to assess those matters (interpolating ch 5 assessment matters at points):
(a)Whether the earthworks are … necessary44 — the Judge considered the planting on 88 Speargrass may have made the mound unnecessary had it been carried out in an adequate manner and timeframe.45 He noted three problems with relying on Speargrass’s consent RM 160361. Those are the weakness of potential or actual enforcement of the planting conditions; the readiness of the Meehans to “breach the spirit of their consent” by topping and trimming; and the bad design of the planting.46
(b)Whether the design of the finished earthworks is sympathetic to natural topography47 — the Judge concluded the mound is generally not sympathetic to most of the original topography of the Hawthorn Triangle (the Triangle).48
(c)Whether and the extent to which the [mound] … adversely affects the naturalness and rural quality of the landscape49 — the Judge found the grass-covered side of the mound is more natural than the view of houses on the Flax site that would be there if there were a reduced mound.50
(d)Whether the mound maintains or enhances … cultural patterns51 — the Judge maintained his (earlier) 2016 determination that the earthworks maintain (although the mound may not enhance because of its height) the cultural mound-and-pond pattern in parts of the Triangle.52 The Judge found the scale generally appropriate because of the dense screen of trees which should have been provided on 88 Speargrass.53
44 Rule 22.4(i)(a) ODP.
45 At [201].
46 At [202].
47 Rule 22.4(i)(b) ODP.
48 At [206].
49 Rule 5.4.2.2(4)(iv) ODP.
50 At [210].
51 Rule 5.4.2.2(4)(v) ODP.
52 At [211].
53 At [213].
(e)Whether the earthworks will be completed within a short period54 — the Judge found this to be largely irrelevant because the mound is already in place.55
(f)Whether the mitigation measures proposed … reflect the level of environment effects from the proposal56 — the Judge found the environment effects of the mound to be low and predicted them to be even less in the future except in relation to the pin oak gap, where further mitigation was necessary.57
(g)Whether the earthworks … adversely affect stormwater and overland flows58 — the Judge, adopting the earlier (2016) decision, found any hydrological issues to be insignificant.
(h)To what extent revegetation will mitigate any adverse effects59 — the Judge considered that mitigation of amenity effects was best discussed at a later point, but observed that the current consent issues involve a different off-site environment (88 Speargrass) to that which the mound was designed to respond to.60
(i)Whether and to what extent the scale and location of the mound will adversely affect identified amenity values61 — the only identified value in this particular rule which the Judge considered important was the visual amenity values of surrounding sites. The Judge rejected opinion evidence (of Ms Mellsop) that the mound would have a “wall effect” and an adverse effect on views. This was on the basis that the mound would be more rural than houses on the Flax site, and the deodars had to be taken into account.62
54 Rule 22.4(i)(b) ODP.
55 At [214].
56 Rule 22.4(i)(c) ODP.
57 At [215].
58 ODP pp 22-11 and 22-12.
59 Rule 22.4(iii) ODP. See also r 25.8.3.2 PDP.
60 At [217]–[219].
61 Rule 22.4(a)(iv) ODP.
62 At [222].
(j)The visual quality and rural amenity value63 — the Judge adopted his earlier (2016) prediction that an adverse “visual” effect which no one can see is unworthy of consideration in this context.64
(k)Whether the earthworks … take into account the sensitivity of the landscape65 — the Judge predicted that the mound (when reasonably assessed) would not have large enough effects to be considered adverse in what is, in the Triangle, a relatively insensitive landscape.66
(l)The potential for cumulative effects on the natural form of the existing landscape67 — the Judge adopted his earlier (2016) decision that the mound is consistent with the Triangle’s “landscape”, but subject to the adjustment to height required in two places.
(m)Whether … earthworks can create buffers to avoid or mitigate the potential effects of development on adjoining properties68 — the Judge concluded that the mound creates a rural buffer between the domestication of the Flax site and the house complex on 88 Speargrass.69
(n)Are there appropriate mitigation measures? Will revegetation assist?70
— the Judge concluded that the mounding was appropriate under the ODP as a response to development which is unsympathetic to the mound-and-pond concept for retaining rural qualities and privacy in the area, but subject to mitigation through the two alterations he would order.71
63 Rule 22.4(iv), and r 5.4.2.2(4)(xii) ODP.
64 At [224]–[225].
65 Rule 22.4(iv)(b) ODP.
66 At [226].
67 Rule 22.4(iv)(c) ODP.
68 Rule 5.4.2.2(4)(viii), also r 5.4.2.2(4)(vii) ODP.
69 At [229].
70 Rule 22.4(1)(c) ODP.
71 At [230]–[232].
E — applying the objectives and policies of the ODP
[25] The Judge, having referred to the assessment matters in the ODP rules, then applied the objectives and policies of the ODP, doing so under eight headings:
(a)Can the adverse effects of the mound on visual amenity be adequately avoided, remedied or mitigated72 — the Judge identified this issue as the crux of the case from the Meehans’ point of view.73 The Judge then referred to the evidence of Mr Meehan as to impacts on his family, which included Mr Meehan feeling like he was “living in a crater” and losing a substantial part of the view of the Remarkables in winter. He also referred to the evidence of Ms Vanstone, which he found variously confusing, evasive and incomplete.74
(b)Chapter 4 ODP — the Judge found that the only relevant objective of Chapter 4 of the ODP (District-wide Issues) was Objective 4.2.5 (to undertake development in a manner which avoids, remedies or mitigates adverse effects on landscape and visual amenity values). The Judge noted that three policies had been referred to as relevant, being policy one (future development), policy eight (avoiding cumulative degradation) and policy 17 (land use).
(c)The Judge first considered the future development policy. He concluded that, in relation to 4.2.5(1)(a), the avoiding, remedying and mitigating objective in the policy was qualified so that it only applied to values that are “vulnerable to degradation”. He agreed with the Commissioner that the Flax site was not such an area.75
The Judge found, in relation to 4.2.5(1)(b), that a rural landscape, such as the Triangle — being relatively flat without trees and hedges — “is able to absorb change simply by planting more trees or bulldozing more
72 District-objective 4.2.5 and Objective 2 ODP.
73 At [235].
74 At [236]–[239].
75 At [242]–[243].
mounds”.76
The Judge found concerns of certain experts (such as Mr Edmonds) — as to the creation of a “steep and unnatural appearance” detracting from the visual amenity values of people living at 88 Speargrass — to have been overstated, because the as-built mound does harmonise with the “new” natural topography as far as possible.77
From the perspective of the potential residents on the Flax site, the Judge accepted that a partial view of the house (a man-made structure) is worse than the view of the (natural) earth mound.78
(d)Avoiding cumulative degradation79 — the Judge considered that the as- built mound is moderately sympathetic with the existing and likely future surrounding topography.80 He found the as-built mound to be consistent with the “new natural” mound-and-pond landscape character which has developed in part of the Triangle. The Judge noted the mound is not the largest feature in the Triangle, being much smaller than Quarry Hill.81
The Judge also concluded, in relation to the policy’s intended encouragement of the sympathetic development of rural areas, that the lowering of the mound would be less sympathetic to the rural qualities of the area by opening up views between the first floors of the buildings on the two sites.82
(e)Land use83 — the Judge rejected the criticism (of Mr Edmonds) that the as-built mound does not implement a policy of maintaining the “open character of the landscape”. He considered that part of the policy
76 At [245].
77 At [247]–[250].
78 At [251].
79 Policy 4.2.5.8 ODP.
80 At [252].
81 At [253].
82 At [254].
83 Policy 4.2.5.17 ODP.
irrelevant because the “other rural landscape” of the Triangle does not have an open character.84
(f)Chapter 5 ODP — the Judge noted he was required, under Chapter 5 (rural areas) of the ODP, to give full consideration to the objectives and policies of Chapter 4, which he had done.85
(g)Character and landscape value86 — the Judge concluded that because of the required planting on 88 Speargrass the adverse effects of the mound are, with two exceptions, minor.
In the event earthworks such as the mound are subject to Policy (5.2)1.7 (which the Judge rejected based on the mound not qualifying under the definition of “structure”), the as-built mound’s effect on the other rural landscape is very minor.87
(h)Rural amenity88 — the Judge appeared to conclude that it was unnecessary to consider the need to avoid, remedy or mitigate any adverse effects of the mound on rural amenity because the growth of the planted trees was doing that and the “psychological effects” would have been avoided had the Meehans not interfered. The Judge recorded:
[260] Policy (5.2) 3.3 requires adverse effects on rural amenity to be avoided, remedied or mitigated. The bulk of the mound is of concern to Mr and Mrs Meehan. I have held that time has remedied the visibility of the mound, and will continue to strengthen that lack of visibility as the deodars grow. The psychological effects of the mound would, to a reasonable observer, be non-existent now if Mr and Mrs Meehan had not had the trees trimmed and topped. To a considerable extent if Mr and Mrs Meehan are still troubled by the mound they are the cause of their own problems.
84 At [255].
85 At [257].
86 Policies 5.2.1.6 and 5.2.1.7 ODP.
87 At [259].
88 Policy 5.2.3.3 ODP.
(i)Chapter 22 (Earthworks) — the Judge found that in, terms of Policy (22.2)1.1, it is not “practicable” to achieve privacy and rural amenity for the Flax site in a flat landscape without planting or mounding. Flax chose to utilise the latter in a way which harmonises with the mound- and-pond topography of the Triangle. The Judge considered Policy (22.2)2.2 was irrelevant to this proceeding, noting that, in any event, its subject-matter is covered by (22.2)1.
F — assessing the effects under the proposed district plan (PDP)
[26] The Judge first assessed the mound as an earthwork under Chapter 25 of the PDP, coming back to consider the relationship between the set of assessment criteria in Chapter 24 alongside the Chapter 25 assessment matters. The Judge identified the matter of landscape and visual amenity as the only issue counsel had raised under r 25.8.1.89
(a)Whether the design of the earthworks is sympathetic to natural topography90 — the Judge cited evidence from Mr Skelton, who assessed the as-built mound as not being sympathetic to the natural topography, being a modified and intentional landform and degrading the natural character to a moderate degree. The Judge cited Ms Pfluger’s opinion that the mound had not been formed in an “organic shape”, and had been “established at an unnaturally steep angle to accommodate the large bund as close as possible to the boundary”.91 The Judge implicitly rejected both those assessments, identifying the following three reasons for doing so:92
(i)the mound would slump if unnaturally steep;
(ii)there are many steep grass slopes visible in the area; and
89 At [264]–[269].
90 Rule 25.8.3.1 PDP.
91 At [273].
92 At [274].
(iii)any lack of sympathy with the changed natural topography can be mitigated by the two alterations the Judge would direct.
(b)Whether any rehabilitation is proposed and to what extent rehabilitation, revegetation or future buildings would mitigate adverse effects, including any revegetation or landscaping93 — the Judge observed that while Flax does not, in terms of its resource consents, propose vegetation other than “grass”, there is the potential to include native grass species (for mitigation purposes). The Judge further observed, while vegetation on 88 Speargrass is not mitigation “in the strict sense”, it forms a very important part of the environment to be considered.94
(c)The duration of earthworks and any timeframes proposed for remedial works and revegetation95 — the Judge recognised, with the as-built mound already in place, this matter is not in point.96
(d)Within the Rural Character Landscapes, whether and to what extent earthworks avoid, remedy or mitigate adverse effects or improve landscape quality and character97 — the Judge observed the earthworks contemplated under Flax’s resource consent are to be used “to improve landscape quality and character”. The Judge referred to Mr van Brandenburg’s evidence as to the as-built mound’s improvement of landscape quality by eliminating views of the Meehans’ house from the Flax site and his acceptance that it can be unsightly when seen from the Meehans’ house.98 The Judge referred also to Mr Skelton’s evidence that the 2.7 m consented mound would “increase the mitigation provided by [Speargrass’s] vegetation” but implicitly viewed the evidence as lacking detailed analysis.
93 Rule 25.8.3.2 PDP.
94 At [275]–[276].
95 Rule 25.8.3.3 PDP.
96 At [277].
97 Rule 25.8.3.4
98 At [278].
(e)The sensitivity of the landscape to absorb change, and whether the earthworks will change the character or quality of the landscape99 — the Judge referred to the evidence of Mr Skelton and Ms Pfluger as to the mound’s potential adverse effects or relative inability to integrate into the landscape, but found that the mound does in fact integrate into “this disjointed part of the landscape” (albeit not as much as other mounds on the Flax site) because it assists with integration of the large house complex on 88 Speargrass.100
(f)The potential for cumulative effects on the natural form of the landscape101 — the Judge referred to Ms Pfluger’s conclusion that the cumulative effects of the consented bunds are only experienced from within the Flax property.
(g)Whether the design or location of any new tracks or roads can be modified in order to decrease the effects on the stability, visual quality and amenity values of the landscape102 — the Judge found this matter was irrelevant.103
(h)The extent earthworks will affect visual amenity values including public or private views and whether the earthworks will be remediated, and the final form of the area affected is consistent with natural topography and land use patterns104 — the Judge found, by reference to Ms Pfluger’s evidence, that the mound is barely visible from nearby public viewpoints. He rejected other conclusions of Ms Pfluger as to the mound blocking certain views as being internally inconsistent and not borne out by her photographs.
99 Rule 25.8.3.5 PDP.
100 At [280]–[282].
101 Rule 25.8.3.6 PDP.
102 Rule 25.8.3.7 PDP.
103 At [284].
104 Rule 25.8.3.8 PDP.
G — identifying the relevant objectives and policies of the PDP
[27] The Judge explained his conclusion that the PDP is less accessible and transparent than the ODP, which in turn is “moderately complex and repetitive”.105 Having explained issues relating to the regime, the Judge turned to consider what he viewed as the more relevant objectives and policies referred to in each of Chapters three, six, 24, 25 and 28.
Chapter 3 — Strategic direction
[28] The Judge found certain strategic directions referred to in Chapter 3 of the PDP by the Council’s planning witness (Mr Woodford) either to be not relevant to applications for resource consents generally or to this particular application.106
Chapter 6 — Landscapes and rural character
[29] Although policies in Chapter 6 had been identified by both the witnesses Mr Woodford and Mr Edmonds as of some importance, the Judge held that those policies were irrelevant given the express exclusion of them in Policy 6.3.1.4.107 The Judge also noted they would be irrelevant as the principles under Chapter 6 had to give way to the more specific policies in Chapter 24.108
Chapter 24 — Wakatipu Basin
[30] The Judge noted the Flax site is managed through Chapter 24 of the PDP through being:109
(a)in the Hawthorn Triangle Landscape Character Unit (LCU), identified as LCU 9 — which is nested in —
(b)the Wakatipu Basin Lifestyle Precinct, which in turn is a subzone of —
105 At [288].
106 At [294].
107 At [301]–[302].
108 At [301], citing New Zealand Rail Ltd v Marlborough District Council (1993) 2 NZRMA 449 (PT) at [460].
109 At [303].
(c)the Wakatipu Basin Rural Amenity Zone.
[31]The Judge noted that Chapter 24 begins by explaining:110
In accordance with 24.2, Objectives 24.2.1 to 24.2.4 and related policies apply to the Precinct and the balance of the Rural Amenity Zone. Objective 24.2.5 and related policies apply to the Precinct only.
[32] The Judge then referred to the standards in relation to fill111 and buildings, both of which included distances from boundaries).112
[33] The Judge next recognised that the objectives in Chapter 24 include an objective that landscape character and visual amenity values in the Rural Amenity Zone be maintained and enhanced. But he found these policies (although referred to by some of the experts with particular weight) had been either duplicated or over- ridden by the more relevant objective for the Precinct area.113
[34] The Judge considered Policy 24.2.1.3 as essentially more helpful than the earlier policies. It seeks to ensure that development maintains or enhances the landscape character and visual amenity values identified in sch 24.8 – Landscape Character Units. The Judge noted Ms Pfluger’s recognition of the strong sense of enclosure provided by shelter belts and extensive amenity planting of LCU 9 but found her assessment of the effect of the Flax as-built mound on views from 88 Speargrass not informed by the values or characteristics of LCU 9.114 He also noted Ms Pfluger’s recognition that, after 10 years, the deodars will have filled gaps and will be likely to effectively obscure views of the as-built mound even in the winter.115 The Judge noted Mr Woodford’s conclusions (in relation to Policies 24.2.1.4 and 24.2.1.9) that landscape character and visual amenity values would not be enhanced by the as-built mound and that they will, when viewed from 88 Speargrass, be adversely affected.116
110 At [304].
111 At [305].
112 At [306]
113 At [307].
114 At [309].
115 At [311].
116 At [313]–[314].
[35] The Judge considered the most relevant objective to be Objective 24.2.5 which states that “rural living opportunities in the Precinct are enabled, provided landscape character and visual amenity values are maintained or enhanced”.117 The Judge noted Policy 24.2.5.1 as a “key implementing policy under the PDP”, requiring a close analysis of whether the 5.17 m high as-built mound maintains or enhances the values identified in sch 24.8 (to be considered in the Judge’s assessment of the evidence, as summarised below at [40]–[68]).118
Chapter 25 — Earthworks
[36]The Judge identified that Objective 25.2.1 of the PDP requires that:119
Earthworks are undertaken in a manner that minimises adverse effects on the environment, protects people and communities, and maintains landscape and visual amenity values.
[37] The Judge referred to the evidence of both Mr Woodford and Ms Pfluger in relation to adverse effects of the as-built mound upon 88 Speargrass. But he recorded, through reference to Mr Rowley’s evidence, a preference for the view that the as-built mound would not be generally visible (except through the pin oak gap) provided the Meehans abide by the terms of their resource consents.120
[38] In relation to Policy 25.2.1.4 (maintaining the amenity values and the quality of rural and urban areas by managing the scale and extent of earthworks), the Judge effectively rejected the opinion of Mr Woodford that such values would not be maintained by the as-built mound on the basis that Mr Woodford had not considered the Triangle’s landscape characteristics and visual amenity values in that context.121
Chapter 28 — Natural hazards
[39] The Judge found the objectives and policies of Chapter 28 were all met (provided the recommended traffic management plan and attached conditions were carried out).
117 At [315]–[316].
118 At [317].
119 At [321].
120 At [323].
121 At [325].
H — evaluation under policy 24.2.5.1 PDP
[40] The Judge next evaluated the as-built mound under Policy 24.2.5.1 of the PDP. Notwithstanding his conclusion that the experts had concentrated their evidence on more general earthworks assessment criteria contained in Chapter 25, his Honour considered the Policy 24.2.5.1 criteria more important in the scheme of the PDP. He viewed them as more directive criteria and more particularised, and noted they had been added to the plan more recently.122
[41]His Honour then discussed the criteria for LCU 9 contained in sch 24.8.
Criterion 1 — Landform patterns
[42] The Judge noted both the description of the Triangle in sch 24.8 (flat with localised man-made mounding) and the existence of Quarry Hill, which is much larger than the Flax site mound, within the Triangle.123 The Judge noted the purpose of the man-made mounding, as described in LCU 9, is “to assist the integration of dwellings and provide privacy”, a matter he considered was not specifically assessed by the experts in their evidence-in-chief.124 The Judge observed that evidence provided by Mr Edmonds as to the earth mound not promoting a sense of openness did not reflect a value sought in the Triangle, one of the characteristics of the Triangle being a “strong sense of enclosure”.125
[43] On the evidence as to the nature of houses that might be constructed on the Flax site, the Judge rejected an analysis presented by Mr Edmonds which suggested that Mr van Brandenburg was seeking greater privacy from Speargrass than he had available from neighbouring sites within the Flax subdivision. The Judge considered that Mr Edmonds had ignored three specific matters:
(a)that the Speargrass properties (88 and 90) lie to the (sunny) north of the Flax site so windows will generally orient in that direction;
122 At [328]–[329].
123 At [334].
124 At [335].
125 At [336], citing Criteria 12 and 18.
(b)the large, high nature of the Meehan’s complex with south facing windows is such as to create extra privacy issues for the Flax site; and
(c)the Meehans (both before the High Court hearing and before the 2020 Environment Court hearing) topped the trees so as to reduce the privacy on the Flax site drastically (in the absence of the mound).126
[44] The Judge found this is an area where the two obvious ways to integrate the Speargrass development into the LCU are by way of screening and mounding. He found the mound on the Flax site, by largely obscuring the lower half of the Meehans’ house, assists in integration of the houses on the two sites, especially as perceived from the Flax site. The Judge made this finding after noting that the Meehans had been barely honouring the words and spirit of their consents in relation to the implied limitations on topping and trimming.127
[45] The Judge concluded, in relation to landform patterns, that to assist integration and ensure privacy a 5.17 m high mound on the Flax site is prima facie generally reasonable in the existing and reasonably foreseeable future environment.
Criterion 2 — Vegetation patterns
[46] The Judge recognised the current vegetation on the as-built mound (exotic grass) is consistent with the vegetation patterns of the Triangle.128 The Judge then turned to consider the landscape planting on 88 Speargrass and the impact on the maintenance of views from anywhere north of the line of deodars. The Judge found that maintenance of the alders and the deodars needed to be at least 4 m for privacy between neighbours and 5.7 m to achieve integration of buildings.129
Criterion 3 — Hydrology
[47]The Judge found this matter was irrelevant.
126 At [338]–[339].
127 At [340].
128 At [342].
129 At [344]–[349].
Criterion 4 — Proximity to ONL/ONF
[48] The Judge noted that the value identified in LCU 9 is mid- and long-range views “above the hedging and tree plantings” to the mountains circling the Wakatipu basin.130 The Judge further noted his (necessary) acceptance of the High Court’s finding 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”.131
[49] The Judge concluded Speargrass is only entitled under the PDP to views over its alder hedge and deodar screen, if both are grown to and maintained at the heights required to ensure the roofs of the buildings on 88 Speargrass are not seen from the Flax site. The Judge further concluded that if the Meehans’ topping of trees means the as-built mound interferes with the views from 88 Speargrass, that is a “reasonable effect of the mound (if undesired) caused by the owners of 88 Speargrass themselves”.132
Criterion 5 — Character unit boundaries
[50] The Judge noted that the hawthorn hedges (which give LCU 9 its name) are only relevant to the extent that they are usually tall and largely obscure views.133
Criterion 6 — Land use
[51] The Judge referred to his earlier discussion of land use and added that mounding is consistent with the pattern of development in the Triangle.134
Criterion 7 — Settlement patterns
[52] Under the PDP the Triangle incorporates both “rural residential dwellings” and a “large-lot suburban character”. The Judge observed that the Speargrass development fits better into the latter description whereas the Flax subdivision is designed to retain rural qualities.135 The Judge noted that both properties have been developed on the
130 At [351].
131 At [354], citing High Court Judgment, above n 2, at [242].
132 At [356].
133 At [357].
134 At [358].
135 At [360].
one ha density average and that the Speargrass landscaping, particularly if the deodars are allowed to grow, will complement very tall trees to the north of Speargrass Flat Road.136
Criterion 8 — Recreation features
[53]The Judge noted no relevant impact on recreation features.137
Criterion 9 — Infrastructure features
[54]The Judge found these are not relevant.138
Criterion 10 — Visibility/prominence and (11) views
[55] The Judge observed that these values relate to views into the Triangle, and along the roads bordering the triangle, the latter of which he had already considered.139
Criterion 12 — Enclosure/openness
[56] The Judge again rejected openness (as relied upon by Mr Edmonds) as a value, noting that the Triangle is valued for its strong sense of enclosure.140
Criterion 13 — Complexity
[57] The Judge noted that mounding is expressly regarded by the PDP as adding to the valued complexity of the LCU, and concluded the Flax site mound adds to the complexity of the LCU through its unusually large size.141
Criterion 14 — Coherence
[58]The Judge found this value to be largely neutral.142
136 At [300].
137 At [361].
138 At [362].
139 At [363].
140 At [364].
141 At [365].
142 At [366].
Criterion 15 — Naturalness
[59] The Judge observed that, largely due to the density of development, the Triangle has a low degree of naturalness (that being particularly true of the Speargrass house and garden).143
[60] The Judge added that the grassed mound is a “picture of modest naturalness”. He attached minimal weight to differences of opinion about the aesthetics and naturalness of the mound given the low naturalness of the Triangle.144
Criterion 16 — Sense of place
[61] The Judge found the mound to contribute to the “large-lot suburban parkland character” of the LCU.145
Criterion 17 — Potential landscape issues
[62]The Judge found no identified issues to be relevant.146
Criterion 18 — Potential landscape opportunities
[63] The Judge found that the mound can be integrated with minimal impact on the wider basin landscape.147
Criterion 19 — Characteristics and values to be maintained and enhanced
[64] The Judge noted at this point the list of values turns from the descriptive to the prescriptive, making this value particularly important. To maintain the characteristics and visual amenity values identified in earlier values, the LCU description envisages integration of buildings “via appropriately scaled mounding, planting and the application of a consistent series of building development controls”.148
143 At [367].
144 At [368].
145 At [369].
146 At [370].
147 At [371].
148 At [372], citing PDP P24-23.
[65]The Judge then turned to the evidence provided by the experts:
(a)He found Mr Skelton’s evidence as to the inappropriate scale of the as-built mound to be based on a mistake, first because the consented mound was not a response to the requirements of the PDP in their current form and, secondly, because the as-built mound was a response to a different environment to that of the consented mound;149
(b)The Judge rejected Ms Pfluger’s conclusion as to the as-built mound being out of character through taking a restricted view of the values and characteristics of the Triangle;150 and
(c)The Judge effectively rejected Mr Edmonds’ evidence as to the inappropriate scale of the mound.151
[66] The Judge concluded that the fact that the as-built mound is higher than any other mound adds “desired complexity” (as an alternative to lower mounds with higher vegetation), rather than making it automatically wrong.152
[67] The Judge further referred to evidence of there being a pattern of conduct by [Speargrass] which suggests the mound is a reasonable way of protecting privacy on the Flax site because there can be no confidence that [Speargrass] will do it”.153
[68] The Judge concluded by referring to the two alterations he would require to provide privacy and integration of buildings into the landscape.154
149 At [373].
150 At [374].
151 At [375]–[377].
152 At [378].
153 At [379].
154 At [380].
Criterion 20 — Capability to absorb development
[69] The Judge identified the Triangle as having a high culpability to absorb development and considered that this supported Flax’s case that the mound can be absorbed into the landscape.155
I — weighing the relevant considerations
[70] In order to reach his result, the Judge set out his discussion of six considerations:
(a)are there other relevant considerations under s 104(1)(c) RMA? (Answered “yes”);
(b)what weight should be placed on the Commissioner’s decision? (Answered “minimal”);
(c)summarising the effects of the as-built mound and the consented (under RM 130766) mound? (Answered by saying he would place no weight on the comparative assessment);
(d)whether there should be changes to the mound? (Answered “yes” — one at the pin oak gap and one adjacent to the Taquet property);
(e)whether the as-built mound, with the two charges, implements the relevant policies and achieves the relevant objectives of the ODP? (Answered “yes”); and
(f)whether the as-built mound, with the two charges, implements the relevant policies and achieves the relevant objectives of the PDP? (Answered “yes”).
155 At [381].
J — Condition 12 of the 2012 consent (RM 120327)
[71]Condition 12 of the 2012 consent provides:156
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 lb and ld (depending on the Option selected) and shall specify the species and location of structural planting throughout the subdivision. 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.Provide in the context of Option B only for an internal area of open character that is centred on the proposed common lot. This will require some space within Lots 1-8 to contribute to this open character area. This area is envisaged as providing some village green, common open space purpose, and to provide some aggregated open land that brings relief from enclosure.
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.
156 The original bullet point format has been replaced with the numbering one to six for ease of reference in later discussion.
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.
[72] The Judge identified two matters to be considered under s 104(1)(c) RMA. First was that the consent RM 130766 (the earthworks consent) and any variation of it must work with and implement condition 12 of Flax’s original 2012 consent (RM 120327).
[73] His Honour identified 12(1), 12(2) and 12(6) as the relevant parts of Condition 12.
[74] The Judge rejected a suggestion by Mr Edmonds that condition 12(1) clearly anticipated that any boundary treatment would be relatively low-scale. The Judge found that neither condition 12(1) nor the decision on RM 120327 says that. He concluded a mound less than 7 m would not be out of scale under the condition with reference to the height of trees noted on a landscape plan.157
[75] Turning to condition 12(2), the Judge concluded, having particular regard to the building of the Meehans’ house closer to the boundary and with different features, that the as-built mound is a direct response to restore privacy and rural visual amenity for the Flax site — the Flax site being entitled under the condition to reasonably complete privacy.158
I say “perhaps” because while I am bound by the High Court's findings of fact I am not sure that I am bound by its predictions.
[173] Mr Colson then set out a table, which I now produce as Table A, of the findings or statements in the 2020 Decision which he submitted are inconsistent with, or fail to take into account, the High Court’s findings.
TABLE A
Paragraph
Decision
High Court Finding
[115]
The mound favours the maintenance of privacy.
The required tree planting will
allow privacy to be achieved in a more natural way.
[139]
By December 2019 the visual impact was non-existent.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary
[139]
The mound could easily be ignored.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary.
[145]
The effects of the mound on visual amenity would clearly be adverse without planting on the Speargrass property.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary.
[194]
If the Meehans allow the
plantings to grow they would not be able to see the mound.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary.
[195]
The facts found by the High Court were as at 2019 and were relevant to a situation when the alders are topped and the deodars immature.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary.
[196]
In December 2019 the mound could not be said to dominate anyone. The adverse effect is minimal.
The mound is so dominant in scale, and so proximate to the
house on the Speargrass property, that it has an undue effect on its use for residential living.
255 At fn 182.
[225]
I maintain [my] prediction that no one can see the mound once the trees on Speargrass are fully grown.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary.
[239]
The views of the mound are more natural than views of houses on the Flax site.
The mound is so dominant in scale, and so proximate to the
house on the Speargrass property, that it has an undue effect on its use for residential living.
[254]
Lowering the bund would be less sympathetic to the rural qualities by opening up views from the Meehan’s first floor to buildings on the Flax site.
The required tree planting will
allow privacy to be achieved in a more natural way.
[323]
I find [that the mound would not be generally visible] to be the most likely scenario provided that the Meehans abide by the terms of their resource consents.
The effect of the as-built mound is not negated by Speargrass’ obligation to plant and maintain trees on its own boundary.
[340]
To assist integration and privacy a
5.17 m mound is prima facie generally reasonable in the
existing and foreseeable future.
The required tree planting will
allow privacy to be achieved in a more natural way.
[345]
If the deodars are trimmed or pruned then the mound is likely to be visible to the Speargrass occupants. I consider that would be in breach of the Speargrass’
consents.
The Meehans cannot thin or modify the trees to an extent which negates the privacy but they nevertheless maintain some control over the trees’ density.
[383]
Even if the Meehans can legally top and trim the alders and deodars then the mound is the best answer to preserve amenities and privacy anyway.
The Meehans cannot thin or modify the trees to an extent which negates the privacy but they nevertheless maintain some control over the trees’ density.
The required tree planting will
allow privacy to be achieved in a more natural way.
[174] Mr van Brandenburg submitted the factual findings in the High Court Judgment, as identified and relied upon by Mr Colson, are relevant only to the PLA argument and are irrelevant in the RMA context. In relation to Dunningham J’s finding
that the effect of the as-built mound is not negated by Speargrass’s obligation to plant and maintain trees on its own boundary,256 Mr van Brandenburg submitted that that finding amounted to the Judge’s personal view as it “flies in the face of the evidence”. Mr van Brandenburg submitted that, if the correct receiving environment is taken into account, the effect of the as-built mound is in fact negated by Speargrass’s obligations in relation to its trees.
[175] Mr van Brandenburg submitted Judge Jackson had not ignored the High Court findings of fact and referred particularly to the Judge’s discussion of “psychological effects” of the mound.257 There the Judge drew a distinction between the facts as found by the High Court as at 2018 (when the alders were topped and the deodars immature) as against the recent past (December 2019) when the alders had been allowed to grow to around 5 m, with the result that “the mound could not be seen at all (except for possible glimpses of grass)”.258 Judge Jackson concluded that at that point the mound could not be said to dominate anyone on 88 Speargrass and the adverse effect was minimal.
[176] In response to Mr Colson’s Table A, Mr van Brandenburg submitted that Judge Jackson was entitled to “see things differently” because the hearing before him was a de novo process with new evidence. Mr van Brandenburg suggested that it was inappropriate for Speargrass to rely on litigation that had been before the High Court without that new evidence.
Discussion
[177] Mr van Brandenburg’s submission as to the scope of the de novo hearing before Judge Jackson involved a misunderstanding of the ambit of that hearing. The Environment Court on the re-hearing was bound, as recognised by Judge Jackson in the Procedural Decision, to follow the factual findings in the High Court Judgment.259 The Judge — in the passage quoted at [13] above — expressly recognised that he was
256 High Court Judgment, above n 2, at [265]. 257 2020 Decision, above n 5, at [194]–[196]. 258 At [196].
259 Procedural Decision, above n 3, at [23].
bound by those findings of fact, albeit choosing to describe the effects as “psychological effects” in the 2020 Decision.260
[178] Mr van Brandenburg also misunderstands the extent of the relevance of the High Court’s factual findings. Those findings as to the scale and impact of the mound, although contained in the part of the Judgment dealing with the PLA application, were also relevant to the consideration of the adverse effects of the as-built mound that had been considered in the earlier Environment Court hearing and would be reconsidered in the 2020 hearing. They were integral to Dunningham J’s finding that the as-built mound unduly interferes with the Meehans’ use of their property and does have an adverse effect on views. Judge Jackson therefore correctly accepted in the Procedural Decision that he was bound by those factual findings. If I am satisfied that he did not correctly apply the High Court’s factual findings on material issues, then it is no answer (as suggested by Mr van Brandenburg) that the findings, because expressed in a PLA context, were irrelevant and could be ignored.
[179] The route by which the Judge came to depart from the High Court findings was by assessing the actual effects of the mound at another period (December 2019 to January 2020), some 22 months after the High Court hearing. The Judge’s finding that the impact of the as-built mound was “non-existent”261 by December 2019 led to his finding that the High Court’s considerations such as the mound being “confronting” and “dominating” no longer applied.262
[180] When considering the actual and potential adverse effects of the as-built mound, the Judge recorded that the High Court findings were “only a small part of the situation” to be considered. He held that the facts found by the High Court were as at 2018 and were relevant to situations when the alders are topped and the deodars immature.263
260 2020 Decision, above n 5, at [130].
261 At [260].
262 At 139].
263 At [195].
[181] This discussion followed directly from the Judge’s previous comment in relation to the “psychological effects”:
[194] As for the psychological effects of the mound, the answer is that if Mr and Mrs Meehan allowed the planting on their landscaping plans to grow as I have held they should, they would not be able to see the mound.
[182] The difficulty with this approach to potential effects of the as-built mound is the Judge’s assessment of what the Meehans should do in relation to their plantings was based not on the letter of the Speargrass consent conditions but on what the Judge took to be the spirit of those conditions.
[183] It was implicit in the factual and legal findings of the High Court Judgment that activities which had preceded the 2018 High Court hearing — such as the topping of the alders — were permissible. Activities such as those had altered the extent to which the trees might have blocked views, rather than provide partial-screening. The High Court Judgment specifically found, (against that altered landscape) the effect of the as-built mound was not negated by Speargrass’s duties of maintenance of trees.264
[184] The Judge recognised that the mere fact that the Speargrass trees were of a particular height or density at one point (December 2019 to January 2020) did not mean that such a state would continue. And, indeed, by the time of the hearing in February 2020, the trees had been altered by trimming and topping. But what the Judge found was that the trees as they were in December 2019 to January 2020 were to be treated as the potential receiving environment because it was in that form (at a minimum) that they should be maintained.
[185] The key finding in this regard in the High Court Judgment in relation to Speargrass’s obligation to place and maintain trees had been that it did not negate the effect of the as-built mound.265 That finding implicitly recognised that Speargrass’s consent did not require Speargrass to allow its trees to grow to and retain such a shape and density as to fully screen or block views from one property to the other (leaving aside the winter view corridor of the pin oak gap).
264 High Court Judgment, above n 2, at [265].
265 At [264]–[265].
[186] The Judge, towards the start of the 2020 Decision, discussed Speargrass’s screening obligations under its consents.266 The Judge recognised the consent contained no express reference to the landscape plan in the written conditions.267 But the Judge turned to consider whether the planting of the species in their plan location was an implied term or condition through the consent’s reference to the application (which in turn referred to the landscape plan).268 His Honour then went a step further to consider whether there was also a condition as to the height and density which the trees must be allowed to attain (or, put another way a restriction on topping and trimming) — he analysed that possibility by reference to his conclusion that “[a] purpose of the trees on the BDG plan is to screen Mr and Mrs Meehan’s house from being viewed from the south”.269
[187] The purpose identified by the Judge of “screening” is valid only to the extent it is understood not to equate to full blocking of views or “full screening”. To read the consent as requiring “full screening” would be inconsistent with the findings in the High Court Judgment (set out above at [185]). But the Judge, on the basis of an inferred “full screening” purpose, then explained how the consent was to be interpreted:270
It is an implied limitation or condition that any actions (apart from minor trimming) that hinder the trees attaining the heights shown or their natural shapes is in breach of the express terms of the resource consent.
The “implied limitation” cannot necessarily arise from any express term or condition of the consent, especially when the findings in the High Court Judgment are applied.
[188] The difficulty with finding such an implied limitation is also reflected in the Judge’s subsequent discussions concerning the “spirit of the consent” in relation to the trees. At four points in the 2020 Decision, the Judge identified the spirit of the consent.271 The Judge’s first discussion of the spirit of the Speargrass consent came
266 2020 Decision, above n 5, at [86]–[109].
267 At [99].
268 At [103].
269 At [107]
270 At [108].
271 At [202], [340], [348] and [413].
when he was considering (under r 22.4(i)(a) of the ODP) whether the mound was necessary:
[202] I consider that there are three sets of problems with relying on the planting in [SHL’s] consent RM160361. First the planting conditions are either too weak to be enforced, or at least the Council has shown minimal interest in enforcing them. Second, Mr and Mrs Meehan show a concerning readiness to breach the [Speargrass’s] spirit of their consent by topping and trimming the alders so that they gain views, but the Flax site (in the absence of the mound) would lose privacy and rural amenity. Third, even if Mr and Mrs Meehan did not top and trim the alders, the planting is so badly designed that in the longer term it is difficult to predict how effective its screening will be. Accordingly I provisionally conclude that the mound (possibly in an amended form as I will discuss later) is reasonably necessary.
The concept of “the spirit” is repeated later through the Decision with the Judge also observing that “Mr and Mrs Meehan are barely (if at all) honouring the words, and certainly not the spirit, [of the screening conditions].272
[189] The difficulty with this analysis (which leads to the Judge’s conclusion the as- built mound will potentially have no effect, aside from in the pin-oak gap, because the trees will block views of it from 88 Speargrass)273 is that it flows not from any clearly- stated legal obligation under the Speargrass consent which is likely to be acted on. It expressly rests instead on a “spirit” derived from a view of what those involved in the original subdivision contemplated in relation to the future maintenance of the Speargrass plantings. History has shown the parties take distinctly different views of the legal obligations arising from the Speargrass consent. As Judge Jackson himself recognised at [202] of the 2020 Decision, set out above at [188], there are at least two possibilities in relation to the Council’s approach, namely either that the Council has minimal interest in enforcing obligations or the conditions themselves are so weakly spelt out as to be unenforceable. The very fact that Judge Jackson concluded the 2020 Decision with some final paragraphs in which he proposed that local authorities might add to standard landscaping conditions an express ban on topping and trimming reinforces the fact that there can be no reliable predictions, against the background of the actual consent conditions imposed on Speargrass, that topping and trimming of trees will not continue.274
272 At [340].
273 At [196].
274 At [477]–[479].
[190] The conclusion in the High Court Judgment that the receiving environment will contain (through Speargrass’s right of control) trees which allow glimpses to the south mean that the as-built mound will have adverse effects on the Speargrass environment is a factual finding which bound the Environment Court at the re-hearing. It is not overridden by the fact that at later times the density of the Speargrass trees may have been for a period such as to fully block views of the as-built mound from 88 Speargrass.
[191]Question 3 will accordingly be answered “yes”.
Question 4: failing to take into account matters confirmed by the High Court to be irrelevant and unlawful?
[192] Mr Colson focused his submissions on the Environment Court’s failure to apply the High Court’s (binding) factual findings rather than on this issue, which I will accordingly treat as withdrawn.
Question 5: failing to attach weight to the statements at [270]–[272] of the High Court Judgment?
[193] Under s 104(1)(c) a consent authority, when considering a resource consent, must have regard to “any other matter” the consent authority considers relevant and reasonably necessary to determine the application.
[194] Mr Colson submitted that the conclusions reached by the High Court on the facts of the case, going beyond specific facts, were matters which the Environment Court was required to consider because they were relevant. In particular, Mr Colson noted that Judge Jackson, in his consideration of “other matters” at [385]–[395] of the 2020 Decision failed to have any regard to Dunningham J’s conclusions at [270]–[272] of the High Court Judgment, where one conclusion was that the prospect that a mound as high as the as-built mound would be approved was “remote, if [not] non- existent”.275
275 At [271].
Discussion
[195] Contrary to Mr Colson’s submission, the Judge did consider (in some detail) the cited passages in the High Court Judgment. At [452] of the 2020 Decision, the Judge specifically referred to the High Court’s conclusion as to the low prospect of the mound being approved. He went on to recognise it as “strong guidance”276 but explained the reasons why he was reaching a different view as to the “real and potential environment setting of the as-built mound”.277 In reaching this view he had particular regard to his conclusions as to what Mr van Brandenburg believed would occur through the original Speargrass consent in terms of both buildings on 88 Speargrass and the protection of privacy.
[196] While I have determined (above at [153]–[167]) that Mr van Brandenburg’s belief is not in this context a relevant consideration, the Environment Court did consider the cited passages in the High Court Judgment. It did so but found them to be of limited assistance. In doing so, the Environment Court cannot be said to have failed to comply with the obligation under s 104(1)(c) RMA.
[197]Question 5 will accordingly be answered “no”.
Question 6: concluding the Commissioner’s decision contained errors and/or should be accorded minimal weight
[198] Under s 290A RMA, the Environment Court was required to have regard to the decision of the Commissioner.
[199] The Judge specifically considered the Commissioner’s decision before determining that he would place minimal weight on it.278
[200] For Speargrass, Mr Colson submitted the Judge’s choice to place minimal weight on the Commissioner’s decision involved at least four incorrect findings:
276 At [453].
277 At [455].
278 At [396]–[410].
(a)finding that Flax was entitled to a very high standard of privacy.279 Mr Colson submitted that that was not so and involves a misunderstanding of the test under s 104 RMA by not focussing on the impact of Flax’s activities on the environment;
(b)elevating a statement in an assessment of environmental effects to the status of a condition in a resource consent.280 Mr Colson observed that the resource consent decision (RM 160361) contained no such condition;
(c)treating RM 120327 as considering a different environment.281 Mr Colson adopted his earlier submissions as to the fact that the environment had not legally changed; and
(d)considering the occupants of the Flax site were entitled to an environment of “ultimate seclusion”.282 Mr Colson submitted that this expectation is in direct contradiction to, and fails to apply, the conclusion of the High Court that condition 12 did not require an environment of “ultimate seclusion”.283
[201] For parallel reasons to those discussed on question 5 (concerning regard for conclusions in the High Court Judgment) I do not find that the Judge failed to have regard to the Commissioner’s decision. He had regard but, partly through his bringing into account earlier conclusions which I have found to be in error, came to the view that the Commissioner’s decision should be accorded minimal weight.
[202] I will accordingly be answering question 6 “no”, although the Judge’s reasons for attaching minimal weight to the Commissioner’s decision are themselves the subject of findings of error.
279 At [397]–[398], [400], [402] and [404].
280 At [398].
281 At [399], [401]–[402] and [405].
282 At [402(c)].
283 High Court Judgment, above n 2, at [182].
Question 7: incorrectly interpreting and applying the rules under the ODP and the PDP?
[203] By s 104(1)(b)(vi) RMA the Court is required to have regard to any relevant provisions of a plan or proposed plan.
Ms Watt presented the submissions for Speargrass on this ground of appeal.
[205] In Ms Watt’s submission, the Environment Court’s approach to the ODP and PDP contained the following four errors of law:
(a)misinterpreting the provisions of the ODP and PDP, and thereby applying the wrong legal test;
(b)reaching conclusions for which there was no evidence or which could not reasonably have been reached on the evidence;
(c)taking into account irrelevant matters including:
adverse effects of Speargrass’s lawful activities on Flax; and
(ii)the Court’s view that the environment considered by the Council in granting the earthworks consent and declining the variation to the mound was “quite different” from the environment under consideration.
[206] Ms Watt referred to the obligation upon the Court under s 104(1)(b)(vi) to have regard to a “plan or proposed plan”. The Court of Appeal in Powell v Dunedin City Council has emphasised that the text of a rule in a district plan is not to be interpreted by rigid adherence to words, but rather in light of its immediate context (including the objectives and policies of the relevant sections of the plan and the statutory purpose of the RMA).284
284 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [35].
[207] The objective under chapters four, five and 22 is that the adverse effects of activities — and particularly earthworks — is to be avoided, remedied or mitigated.
This was recognised by Judge Jackson in the 2020 decision.285
[208] In Ms Watt’s submission, however, the 2020 Decision failed to recognise or give effect to the focus of those objectives being on avoiding the adverse effects of the proposed activities on amenity values, and not vice versa. While the 2020 Decision set out the objectives under chapters four and five of the ODP, it omitted to set out the objective of chapter 22, relating to earthworks, which reads:
Objective 1
Enable earthworks that are part of subdivision, development, or access, provided that they are undertaken in a way that avoids, remedies or mitigates adverse effects on communities and the natural environment.
[209] Ms Watt noted that the relevant objectives of the ODP reflect both pt 2 of the RMA and in particular the statutory purposes set out in s 5(2)(b) and the nature of the enquiry under s 104 RMA.
[210] In Ms Watt’s submission, the approach Judge Jackson took in the 2020 Decision involved ignoring the fact that, under the overarching objectives of the ODP, development is enabled only where the adverse effects of the activity on the environment and on others are avoided or mitigated. Ms Watt submitted that this approach led the Judge to wrongly reject or discount the expert evidence before him, effectively and entirely in the case of some experts.
[211] Ms Watt submitted the Judge had also misdescribed a number of the assessment matters under the ODP and had consequently failed to take into account relevant matters and relied on irrelevant matters.
[212] Ms Watt cited the first assessment matter considered by Judge Jackson in his assessment of the effects of the as-built mound under the ODP. The Judge framed the assessment question as: “Whether the earthworks are … necessary.”286 His Honour
285 2020 Decision, above n 5, at [235].
286 At [201], by reference to r 22.4(i)(a) ODP.
then introduced the discussion by observing “[t]his assessment matter raises a useful question: is the mound necessary at all?”.
[213] As Ms Watt observed, the relevant assessment matter under r 22.4(i)(a) ODP asks:
Whether the earthworks are a necessary part of the subdivision, development or access construction and the extent to which the subdivision engineering works, building or finished project will remedy the effects of the earthworks.
[214] Judge Jackson, under his formulation of the question, provisionally concluded that the mound was reasonably necessary.287 He did so because of the three sets of problems he perceived with Speargrass’s planting consent, in the passage set out at [24(a)] above.
[215] Ms Watt submitted there were four errors involved in that particular assessment:
(a)the Judge, by narrowing the question to the five words he had selected, failed to address the correct legal question, which is whether the earthworks are a necessary part of a broader process/activity (and the extent to which the finished product will remedy any effects);
(b)the Judge reversed the legal test by focussing on the activities of Speargrass (assessing whether the activities on 88 Speargrass had such an effect on the Flax site as to make a mound necessary);
(c)the Judge concluded that Speargrass would not comply with its consent conditions, which in Ms Watt’s submission was both unfounded and (in terms of the High Court Judgment) irrelevant and wrong in law; and
(d)the Judge relied on his view as to the merits of Speargrass’s council- approved planting plan when the merits or otherwise of that plan were not a matter jurisdictionally for the Environment Court to question, in
287 At [202].
terms of the Supreme Court’s decision in Waitakere City Council v Estate Homes Limited.288
[216] For Flax, Mr van Brandenburg submitted the suggested errors identified for Speargrass in the Judge’s discussion of the objectives of the ODP were matters for debate in the Environment Court, not the High Court. He submitted that Judge Jackson’s conclusions were all available because the as-built mound would have been unnecessary had the Meehans complied with their conditions of consent and thereby created “the authorised receiving environment”.
[217] Mr van Brandenburg submitted that Ms Watt’s focus on the full version of the assessment matter under r 22.4(i)(a) of the ODP did not require an answer because the condition of the Flax subdivision consent was there to create privacy through earthworks. He submits that the three “answers” given by the Judge as to the perceived problems with Speargrass’s planting consent are logical explanations of why the as- built mound is necessary.289
[218] Mr van Brandenburg submitted that what is involved in these assessments are factual issues which belong in the Environment Court, not to be turned into a point of law for re-litigation in this Court.
[219] Mr van Brandenburg responded to each of the four matters identified by Ms Watt as involving errors of law (summarised at [215] above):
(a)the “earthworks” allowed mounds as a condition of Speargrass’s consent;
(b)Speargrass has incorrectly identified the receiving environment;
(c)Speargrass ignored the fact that deodars were planted in incorrect places and the Meehans have been refusing to allow trees to grow; and
288 Waitakere City Council v Estate Homes Limited,, above n 219, at [38].
289 Citing the 2020 Decision, above n 5, at [202].
(d)the Environment Court, not the High Court, had jurisdiction to define the receiving environment, which is contrary to Speargrass’s assertions.
Discussion
[220] By the nature of Mr van Brandenburg’s submissions, his focus in relation to this question is again on the receiving environment, the contention that the Judge correctly applied that concept, and the proposition that that is a factual outcome with which this Court cannot deal on appeal.
[221] Mr van Brandenburg’s approach involves a misunderstanding of the point of law involved. The issue is whether the Judge correctly identified the question under r 22.4(i)(a) of the ODP and then responded to the correct question.
[222] I am satisfied the Judge did not. As identified by Ms Watt, the objective (Objective 1 in Chapter 22) specifically relating to earthworks is to enable such works, but only if they are undertaken in a way that avoids, remedies or mitigates adverse effects on communities and the natural environment. Rule 22.4(i)(a) of the ODP, in that context, requires a focus on the earthworks, both as to whether they are a necessary part of subdivision or development and the extent to which the finished project will remedy the effect of the earthworks. By selecting the shortened summary as to the necessity of earthworks as the question that was posed, the Judge focused again (as discussed above at [153]–[167]) incorrectly on the activities of Speargrass rather than on the effects which the as-built mound would have on 88 Speargrass.
[223] The Environment Court’s error in that regard, which I have found above (at [153]–[167]), permeates its consideration of the Objectives of the ODP and, for this reason also, I find it to involve a material error of law.
[224]Question 7 will be answered “yes”.
Question 8: conclusions not supported by and untenable on the evidence?
[225] Ms Watt submitted, by reference to a schedule of factual findings, that the Judge was led to reach a number of errors of fact through a combination of errors of
law (which I have found to be established) and the incorrect discounting of the expert evidence provided for Speargrass.
[226] Ms Watt noted the experts were unanimous in their evidence that the as-built mound creates more than minor adverse effects on 88 Speargrass, the screening effect of the planting on Speargrass does not avoid those effects, and the proposed variation to Flax’s earthworks consent is inconsistent with the objectives and policies of the ODP and/or the PDP.
[227] In response, Mr van Brandenburg submitted there was sufficient expert evidence before the Judge to enable him to reach his various decisions on the facts and further that the facts speak for themselves.
Discussion
[228] Given the extent and fundamental nature of the errors of law which I have found to be established, and the extent to which the Judge discounted the evidence of Speargrass’s experts on the basis of perceived partiality for reasons I have found to be unjustified, it is unnecessary to extrapolate those findings out to the individual factual errors which Ms Watt submitted exist in the 2020 Decision.
[229] What is clear is that factual errors flowed from the errors of law and, given that combination, Flax did not establish an entitlement to the grant of a retrospective consent. In other words, the Commissioner’s refusal of retrospective consent should have stood.
[230]Question 8 will be answered “yes”.
Summary: the questions answered
[231]The answers to the questions (as identified at [119] above) are:
(a)Question 1A is answered “yes”;
(b)Question 1B is answered “no”;
(c)Question 1C is answered “yes”;
(d)Question 2 is answered “yes”.
(e)Question 3 is answered “yes”;
(f)Question 4 is withdrawn;
(g)Question 5 is answered “no”;
(h)Question 6 is answered “no”;
(i)Question 7 is answered “yes”;
(j)Question 8 is answered “yes”.
Outcome
[232] By the 2020 Decision, the Environment Court overturned the Commissioner’s decision, instead granting application RM 150815 (for retrospective consent) and varying the earthworks consent RM 130766 by allowing the height of the mound to be increased to 5.17 m. Conditions were imposed. Costs were reserved. By this decision, the 2020 Decision will be quashed. The effect of that will be to restore the Commissioner’s decision.
Costs
[233] Issues relating to the costs and disbursements of the proceedings in the Court below will be reserved. The parties may seek directions should there be any matters arising in that regard. The most appropriate course in the event of disagreement, may be for the costs and disbursements incurred in the Environment Court to be remitted to that Court for reconsideration.
Order
[234]I order:
(a)the decision as contained at (A), (B), (C) and (D) of the 2020 Decision is quashed;
(b)consequently the decision of the Commissioner dated 14 January 2016 is reinstated;
(c)the first respondents are to pay to the appellant the costs and disbursements of the appeal. In the event there is disagreement between the parties, the appellant’s submissions on costs (five page limit) are to be filed and served within 20 working days of this Judgment and the first respondents’ submissions are to be filed within five working days thereafter (five page limit). The costs and disbursements of the appeal will then be determined on the papers; and
(d)costs and disbursements in the Court below are reserved.
Osborne J
Solicitors:
Bell Gully, Wellington
(Counsel: M Colson/E Watt, Barristers, Wellington) Wynn Williams, Christchurch
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