Te R�nanga o Ng�ti Awa v Whakat�ne District Council
[2022] NZHC 819
•26 April 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2021-463-66
[2022] NZHC 819
UNDER the Resource Management Act 1991 IN THE MATTER OF
an appeal under section 299 of the Resource Management Act 1991
BETWEEN
TE RŪNANGA O NGĀTI AWA
Appellant
AND
WHAKATĀNE DISTRICT COUNCIL
Respondent
(continue over page)
Hearing: 17 November 2021
(Undertaken via VMR during COVID-19 Alert Level 3)
Appearances:
H K Irwin-Easthope and K J Tarawhiti for appellant A M B Green and M S Jones for respondent
V J Hamm and L C Murphy for applicant for consent
N R Coates and A O Houia-Ashwell for section 301 partyJudgment:
26 April 2022
JUDGMENT OF HARLAND J
This judgment was delivered by me on 26 April 2022, at 3:30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar Date……………………………..
Counsel/Solicitors:
Whāia Legal, Wellington
Brookfields Lawyers, Auckland Holland Beckett, Tauranga Kāhui Legal, Wellington
TE RŪNANGA O NGĀTI AWA v WHAKATĀNE DISTRICT COUNCIL [2022] NZHC 819 [26 April 2022]
MMS GP LIMITED
Applicant for consent
CAROLINE TAKOTOHIWI (ON
BEHALF OF NGĀI TAIWHAKAEA)
Section 301 party
Introduction
[1] On 4 March 2021, the Whakatāne District Council (the Council) granted resource consent to MMS GP Limited (MMS) to develop land now owned by it at 77 Bunyan Road, Coastlands/Ōpihi, which is of enduring and significant ancestral value to Te Rūnanga o Ngāti Awa and Ngāi Taiwhakaea (the Ngāti Awa parties). These parties (and one other) appealed the Council’s decision to the Environment Court. The Environment Court decided that as a result of amendments made to the Resource Management Act 1991 (RMA) at the time, the Ngāti Awa parties did not have the right to appeal the Council’s decision.1
[2] The Ngāti Awa parties have appealed the Environment Court’s decision to this Court.
The basis for the appeal
[3] Under s 299 of the RMA, the right to appeal a decision of the Environment Court is limited to an appeal on a question of law. In this appeal, I am asked to determine whether the Environment Court’s interpretation of s 120(1A)(c) of the RMA (now repealed) was correct. A question of statutory interpretation is clearly a question of law that is able to be appealed to this Court.
[4] For reasons I develop later in this judgment, the Environment Court was required to determine whether the consented activity in the Lifestyle and Retirement Precinct part of the development was a “residential activity” as defined under the RMA because, if it was, the right to appeal would only be available if the residential activity was a non-complying activity and it was common ground that it was not.
[5] The Environment Court determined that the consented activity was a residential activity and therefore concluded it had no jurisdiction to consider or determine the three appeals brought to it by the Ngāti Awa parties.
1 Manukorihi Tarau – Ngāti Taiwhakaea v Whakatāne District Council [2021] NZEnvC 108 (Environment Court decision).
[6] In this appeal, the Ngāti Awa parties submit that the Environment Court erred in law in determining that the Court was precluded under section 120(1A)(c)2 of the RMA from considering or determining the three appeals,3 including by:
(a)applying an erroneous approach to the interpretation of “residential activity” as defined under the RMA (including at paragraphs [24], [25], [27], [28], [30], [33], [36], [38] and [40]);
(b)concluding that the consented activity is a residential activity within the meaning of section 95A(6) of the RMA as at 30 September 2020 (at paragraph [42]);
(c)determining that section 120(1A)(c) of the RMA as at 30 September 2020 precludes a right of appeal against the Whakatāne District Council’s decision granting resource consent for the consented activity and therefore the Court has no jurisdiction to consider or determine the three appeals (at paragraph [43]).
[7] The appellant asks the Court to allow the appeal and to refer it back to the Environment Court to hear the substantive appeals against the resource consents granted by the Council.4
Background
[8]The background was set out in the Environment Court’s decision as follows:5
[6] The subject property is an area of land of approximately 27 ha at 77 Bunyan Road, Coastlands, within a larger block of approximately 40.5 ha. The block is known variously as the Ōpihi block or the Piripai block. The block lies to the north of Whakatāne between the Orini Stream and the Whakatāne River and the sea. To the east is the Ōpihi Whanaungakore urupā, which is a place of great significance to tāngata whenua and which, together with the broader areas surrounding it, is considered by the appellants in these proceedings to be ancestral land of significant cultural value.
2 As the RMA stood between 19 October 2017 and 30 September 2020 (as section 120(1A) (c) was repealed on 1 October 2020).
3 The three appeals were brought by Te Rūnanga o Ngāti Awa, Manukorihi Tarau on behalf of Ngāi Taiwhakaea and Cletus Maanu Paul on behalf of Ōpihi Whanaungakore Trustees.
4 Consequential relief and costs are also sought.
5 Environment Court decision, above n 1.
[7] The land has been the subject of previous proceedings before the Environment Court. In 2002 the Court heard two appeals against the grant of land use consents by the Council to an application by the Council to subdivide the land for residential, reserve and marae purposes and to an application by Te Rūnanga o Ngāti Awa to build a marae on part of the eastern side of the block.6 The Court confirmed the Council’s decisions. In the course of its decision, the Court considered the application of the Act, and in particular ss 6(e), 7(a) and 8, and the approach that ought to be taken to the assessment of tāngata whenua evidence according to a ‘rule of reason’ approach.7
[8] In 2016 the land was the subject of four appeals from decisions of the Council on submissions on the proposed Whakatāne District Plan.8 The principal issue before the Court, remaining after settlement of other issues, was whether the land should be zoned to enable its subdivision and development for residential purposes in accordance with a proposed structure plan. The Court confirmed the appropriateness of such a structure plan in its interim decision and, in its final decision, confirmed the terms of the Ōpihi Structure Plan.
[9] The block has now been subdivided to create the subject property and several reserves around it. On the seacoast immediately to the north is a local purpose reserve for coastal protection. Immediately to the south on the Bunyan Road frontage is a local purpose reserve as a landscape buffer. In the southwestern corner is a small local purpose reserve for a pumping station. To the west is existing residential development known as Coastlands. Immediately to the east is a lot identified as a buffer to the Ōpihi Whanaungakore urupā, which is on another block further to the east.
[10] The subject property is zoned Residential in the operative District Plan and is also subject to the Ōpihi Structure Plan. Dwellings, including multiple dwellings per lot, are provided for as permitted, controlled or restricted discretionary activities. Retirement villages excluding or including a hospital are provided for as controlled or restricted discretionary activities. The purpose of the Ōpihi Structure Plan, as identified in Strategic Policy 5 of the District Plan, is to enable the development of residential land. Strategic Policy 8 is to provide for a wide range of housing opportunities including, among other things, retirement-style development in the Residential Zones.
[9] In July 2019, MMS GP Limited (MMS) applied for resource consent to subdivide and develop the land in stages in the main for residential activities. There were various iterations to the subdivision and land use application, at least one of which was made following receipt of cultural impact assessments. Another amendment deleted an area proposed to be zoned for mixed use which included commercial activities such as neighbourhood convenience, retail and café activities.
6 Ngāti Hokopu ki Hokowhitu v Whakatāne District Council (2002) 9 ELRNZ 111 (EnvC).
7 At [53].
8 Trustees of Ōpihi Whanaungakore v Whakatāne District Council [2016] NZEnvC 035 (interim decision) and [2016] NZEnvC 067 (final decision).
[10] Eventually the application sought to create 240 residential allotments with 13 access lots, seven road lots and eight reserve lots, as well as a large lot of approximately 8.8 ha for a proposed retirement village. The latter is referred to as a Lifestyle and Retirement Precinct. Under the relevant plan, the subdivision was required to be considered as a restricted discretionary activity.9
[11] In October 2020, the Council appointed Independent Hearing Commissioners to hear and decide the applications.10
[12] A hearing was held in February 2021 and the Commissioners issued their report and decision in respect of it on 4 March 2021. They granted the application subject to conditions.
[13] The decision contains a section entitled “Māori values”. Although it is the Commissioners’ interpretation of the issues presented to it, what is evident from their report is that the Ngāti Awa parties have been resolute in their opposition to residential development at Ōpihi from at least the turn of the 20th century which, as the Commissioners noted, was based primarily on their traditional status as tāngata whenua in the Whakatāne district.11 It is also clear from the Commissioners’ decision that the lot proposed for the retirement village was a significant part of their opposition to the application because of its proximity to the Ōpihiwhanaungakore Urupā nearby. Although a buffer is provided between the Ōpihiwhanaungakore Urupā and the development, in the Ngāti Awa parties’ view, this was not sufficient to mitigate the effects they consider they will experience if the development proceeds.
9 Environment Court decision, above n 1, at [11].
10 Under ss 100A–101, 104C, 108, 220 and 221 of the RMA.
11 At [55], CBD page 1098.
[14] Condition 4 of the land use consent relates specifically to the Lifestyle and Retirement Precinct.12 For the purposes of this appeal, the relevant parts of condition 4 are now reproduced:
General
Lifestyle and Retirement Precinct activities shall comply with the relevant Residential Zone rules of the operative District Plan unless otherwise provided for below:
Activities
Lifestyle and Retirement Precinct activities may include:
1.Dwellings for the purpose of housing people predominantly in their retirement.
2.Services and facilities for the care and benefit of the residents.
3.Activities pavilions and/ or other recreational facilities or meeting places for the use of residents of that complex and visitors of residents.
…
Detailed Design Plan
A Detailed Design Plan for the Lifestyle and Retirement Precinct development shall be submitted with supporting plans and other documentation for approval by the Council or delegate prior to any application for building consent. The detailed design plan shall demonstrate compliance with the standards as set out above.
Advice Note: Development Contributions will be assessed at the time of the submission of the Detailed Design Plan taking into account the policies applicable at that time and the nature and scale of the activity.
[15] Three appeals from the Council’s decision were filed in the Environment Court by the Ngāti Awa parties. Copies of these appeals were not provided as part of the Common Bundle and no party considered that I should refer to them as part of this appeal, however, I was advised that the appeals focus on the part of the subdivision proposed for a retirement village and in particular the activities outlined as 2 and 3 in condition 4, not 1 which permits dwellings for the purpose of housing people predominantly in their retirement.
12 Tab 18 Common Bundle of Documents 1041220 (page 1106).
[16] The Environment Court decided that it had to determine whether it had the jurisdiction to hear the appeals as a preliminary issue. This required it to interpret ss 95A(6) and 120(1A)(c) of the RMA.
The amendments to the right to appeal to the Environment Court
[17] The Environment Court is a creature of statute. It is established under the RMA and its powers are also set out in the RMA. The right to appeal a decision to the Environment Court is provided by s 120 of the RMA. This section remained largely unamended as to substance until 18 October 2017 when by virtue of the Resource Legislation Amendment Act 2017,13 the right to appeal against the decision of a consent authority on an application was restricted.14 Because the application for resource consent in this case was lodged between 19 October 2017 and 1 October 2020, the provisions of s 120 as amended by the Resource Legislation Amendment Act 2017 apply to the appeals filed in the Environment Court by the Ngāti Awa parties.
[18] Two new subsections, (1A) and (1B) were inserted into s 120 of the RMA, however only subs (1A) is relevant this appeal. It provides:
120 Right to appeal
(1)Any 1 or more of the following persons may appeal to the Environment Court in accordance with section 121 against the whole or any part of a decision of a consent authority on an application for a resource consent, or an application for a change of consent conditions, or on a review of consent conditions:
(a)the applicant or consent holder:
(b)any person who made a submission on the application or review of consent conditions:
(c)in relation to a coastal permit for a restricted coastal activity, the Minister of Conservation.
(1A) However, there is no right of appeal under this section against the whole or any part of a decision of a consent authority referred to in subsection (1) to the extent that the decision relates to 1 or more of the following, but no other activities:
13 2017 No 15.
14 This section has now been repealed and replaced by ss 33 and 37(1) of the Resource Management Amendment Act 2020, which came into force on 1 October 2020.
(a)a boundary activity, unless the boundary activity is a non- complying activity:
(b)a subdivision, unless the subdivision is a non-complying activity:
(c)a residential activity as defined in section 95A(6), unless the residential activity is a non-complying activity.
…
(emphasis added)
[19]During the same period, s 95A(6) of the RMA defined “residential activity” as:
… an activity that requires resource consent under a regional or district plan and that is associated with the construction, alteration, or use of 1 or more dwelling houses on land that, under a district plan, is intended to be used solely or principally for residential purposes.
(emphasis added)
[20]The term “dwellinghouse” in s 2 of the RMA provided:
dwellinghouse means any building, whether permanent or temporary, that is occupied, in whole or in part, as a residence; and includes any structure or outdoor living area that is accessory to, and used wholly or principally for the purposes of, the residence; but does not include the land upon which the residence is sited.
(emphasis added)
[21] As outlined above, if the activities referred to as 2 and 3 in condition 4 of the consent are not residential activities, they would be non-complying activities. As the Environment Judge noted, on the basis that the activity status of all activities forming part of the retirement village should be bundled together, the whole proposal would then fall to be considered as a non-complying activity and would provide the Ngāti Awa parties with a right to appeal to the Environment Court.15 Given that appeals to the Environment Court are appeals de novo, this would mean all aspects of the proposal, including cultural issues could be reconsidered by the Court.
15 At [21].
The Environment Court decision
[22] After setting out the issues in contention, the background and the statutory provisions applicable, the Environment Judge considered the general principles that apply to provisions that seek to oust the Court’s jurisdiction. He then identified that the issue he was required to focus on was how the proposed retirement village activity should properly be considered in light of the statutory definition of “residential activity”. He undertook this interpretation exercise with reference to Hawkesbury Avenue, Somme Street and Browns Road Residents Association Inc v Merivale Retirement Village Ltd,16 Mackenzie District Council v Glacier and Southern Lakes Helicopters Ltd.17 He evaluated the statutory provisions in light of the principles established in those cases.
[23] The Environment Judge concluded that the activity that had been consented was a residential activity within the meaning of s 95A(6) and because under the plan it was in accordance with s 120(1A)(c), the Environment Court had no jurisdiction to consider or determine the three appeals by the Ngāti Awa parties. Although invited to strike out the appeals, the Environment Judge did not do so pending the outcome of this appeal.
Legal principles
[24] Section 120(1A)(c) is an ouster clause. Also known as a privative clause, this is a statutory provision which restricts the supervisory jurisdiction of the Court over executive government decision making by preventing those affected by such decisions from appealing or bringing judicial review proceedings against them.
[25] The Court of Appeal has held, adopting the reasoning of the House of Lords in Anisminic Ltd v Foreign Compensation Commission, that ouster clauses will not apply to “an error on a question of law which the authority is not empowered to decide conclusively”.18 The true question is whether the clause exhibits Parliament’s
16 Hawkesbury Avenue, Somme Street and Browns Road Residents Association Inc v Merivale Retirement Village Ltd HC Christchurch AP139/98, 3 July 1998.
17 Mackenzie District Council v Glacier and Southern Lakes Helicopters Ltd [1997] NZRMA 569 (EnvC).
18 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 133; citing Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL).
intention to give the decision maker the power to determine questions of law conclusively:19
It would be surprising if the legislature were to give a quintessentially administrative officer, however senior… power to determine material questions of law conclusively; ...
[26] Because ouster clauses purport to limit the Court’s ordinary supervisory role over government power, they should be interpreted narrowly.20 There is a presumption that Parliament does not intend to exclude judicial review for error of law, though this can be rebutted by clear statutory language.21
Did the Environment Judge correctly conclude that he did not have jurisdiction to hear the Ngāti Awa parties’ appeals?
[27] A key aspect of the appeal is whether the consented activity is a “residential activity” under s 95A(6) of the RMA.
The Environment Court’s analysis
[28] The Environment Judge outlined the Ngāti Awa parties’ argument in para [17] of his decision. He said:
[17] The appellants presented submissions focussing on the definition of “residential activity” in s 95A(6) of the Act and the related definition of “dwellinghouse” in s 2. Their central argument is based on the application of those definitions to the terms of the resource consent in relation to the lifestyle and retirement precinct. It is that while the dwellings to be occupied by inhabitants of the retirement village are residential activities on land intended to be used for residential purposes, the services and facilities included in the proposed activities of the retirement village go beyond being “associated with” the use of the dwellinghouses, are not “accessory to” such activity and are not used “for the purposes of” the residences. On a strict reading of the statutory provisions against the terms of the resource consent, they submit that the only activities for which a right of appeal is not ousted by s 120(1A)(c) are those directly associated with the use of one or more dwellinghouses. On that basis they argue that the resource consent goes beyond the ambit of s 120(1A)(c) of the Act and so the ouster of jurisdiction for an appeal does not apply. The evaluation of this argument is the focus of this decision.
(Emphasis added.)
19 At [136].
20 Kaur v Ministry of Business, Innovation and Employment [2012] NZHC 3563 at [71].
21 Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 2595 at [38] and [39].
[29] The Ngāti Awa parties’ argument was that the service and associated facilities component of the retirement village were not sufficiently associated with the residential part of it and as such, the ouster of the right to appeal did not apply to their appeals.
[30] The Environment Judge then considered how the proposed retirement village, as it was described in the land use consent, aligned with the statutory definition of “residential activity”.22 Having noted that in respect of the retirement village as part of the proposal, the applications for consent did not include a great deal of detail, he observed that although the consent refers to a Comprehensive Development Plan in respect of the lot for the retirement village, the word “comprehensive” appeared to be in the sense of “overall” rather than “detailed”.23 He noted that the plans did not give any indication about how the retirement village might be laid out or how its various facilities might relate to its proposed dwellings.24
[31] The Environment Judge then analysed the meaning of associated with, accessory to and for the purposes of, being the phrases contained in s 95A(6) and in the definition of “dwellinghouse” in s 2 of the RMA he had been asked to interpret.
[32] He first referred to s 5 of the Interpretation Act 1999, noting that the meaning of an enactment must be ascertained from its text and in light of its purpose. With reference to the meanings of the phrases referred to, he said they were phrases consisting of “ordinary words in ordinary use”. He said:
[23] … In their context in the Act, they connote relationships between activities or structures. In this case, the particular relationships are those which arise out of residential activities. It follows that the main purpose of the phrases should be understood in terms of a resource management context and residential purposes. Further, it appears to be uncontentious that the purpose of the enactment of ss 95A(6) and 120(1A)(c) of the Act in 2017 was to promote residential activity by reducing consenting costs.
[33] Section 5 was a useful and appropriate place to start, and the Environment Judge’s reference to the phrases in terms of a resource management context and residential purpose was the correct framework to apply.
22 At [20].
23 At [12].
24 At [13] and [14].
[34] The Environment Judge then turned his attention to the meaning of “associated with”. He decided that the ordinary meaning of this phrase, as it is used in s 95A(6), and when considered with reference to the case law, meant “being connected” or “joined in function (with)”. He did not consider the phrase to have the same meaning as “ancillary to” and he said it “did not convey the idea of subordinate use”. 25
[35] The Environment Judge then considered the meaning of “accessory to” used in the definition of “dwellinghouse” in s 2 of the RMA. Unsurprisingly, he found it to be “something that is incidental to another structure or activity”. 26
[36] The Environment Judge next, considered the phrase “for the purposes of” used in the definition of “dwellinghouse”. He said:27
[27] … Close attention to the purpose of the structure or area may be a surer guide to the nature of the association than the use of a dictionary because such a purposive approach guides one’s sense of the context, whereas reliance on a definition carries the risk of fixing the boundaries of meaning too rigidly.
[37] Having considered the purposive approaches taken by the High Court in Hawkesbury Avenue and the Environment Court in Mackenzie District Council, but particularly with reference to the former which involved deciding, following an appropriate statutory interpretation exercise, that a rest home was a residential activity, the Environment Judge then went on to apply the statutory interpretation principles articulated in those cases to the facts of this case.
[38] While noting that there was no issue between the parties that occupation of a dwellinghouse in a retirement village is a residential activity,28 the Environment Judge next asked whether the element of the resource consent allowing “services and facilities for the care and benefit of the residents” expanded that residential character. He determined that it did not, because the central purpose of such services and facilities must be “for the residents”.29
25 The case law referred to by the Judge was Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58 (HC).
26 At [25].
27 At [27].
28 At [34].
29 At [36].
[39] The Environment Judge then identified examples of activities within the definition that could be envisaged as “services and facilities for the care and benefit of the residents” such as rubbish collection, kitchen, dining and healthcare facilities, but he accepted that other activities would require closer analysis. Using “hairdressing” as an example, he noted that such services could be provided on-site to residents who may otherwise have difficulty in travelling to obtain such services elsewhere, and he said this would be “for the purposes of” or “association with”, however, establishing a stand-alone hairdressing salon would not.30
[40] Accepting that other personal services such as this might arise, the Environment Judge nonetheless did not consider it “necessary to attempt to draw a bright line”.31 He noted that the area zoned in the original proposal for mixed use included commercial activities which he said, “demonstrated how associated commercial activity could clearly go beyond being a residential activity”, but, he said, “the removal of that zoning addressed that issue.” He said, “the retirement village cannot be used as cover for the reintroduction of such activities.”32 By this, I apprehend he meant that on the facts of this case, because of this background, the prospect of commercial activities developing on site that were not primarily providing a service to residents would not arise.
[41] The Environment Judge accepted that the part of the resource consent allowing “activities pavilions and other recreational facilities or meeting places for the use of residents of that complex and visitors of residents” had the potential to go beyond the provision of services and facilities for the care and benefit of the residents. However, he decided, adopting a purposive approach, that the scope to do so was not great because of the primary limitation that use of such facilities is restricted to residents and their visitors.33
[42] In respect of this part of the resource consent, the Environment Judge again considered that a bright line was unnecessary and might cause its own problems. He observed that recreational facilities on a domestic scale are an ordinary part of
30 At [38].
31 At [39].
32 At [39].
33 At [40].
residential activities and provided swimming pools, tennis courts, games rooms and, workshops as examples of such activities. And he noted that such facilities could be housed in separate buildings or pavilions. By way of analogy, he therefore concluded that a retirement village could include such facilities for its residents and their visitors without (I infer) losing its residential character.34
[43] For these reasons, the Environment Judge concluded that the activities outlined in condition 4 as 2 and 3 were residential activities within the meaning of s 95A(6) of the RMA.
The Ngāti Awa parties’ submissions
[44] The Ngāti Awa parties agree with the Environment Judge that definitions in plans cannot affect the statutory definition central to the preliminary issue of jurisdiction. They contend, however, that despite recognising this, the Environment Judge nonetheless went on to do the opposite. This is because, they submit, the Environment Judge considered and ultimately determined the nature of the jurisdictional bar by reference to what is in the contemplation of a retirement village based on definitions from planning documents that had been examined through the case law. The Ngāti Awa parties contend that the Environment Judge’s analysis wrongly focused on whether or not activities are “associated with” a retirement village, rather than whether the activities are “associated with” a dwellinghouse for the purpose of residence.
[45] The Ngāti Awa parties submit that in determining whether the jurisdictional bar to an appeal applies under s 120(1A) of the RMA, it is necessary to consider all aspects of the application against the definition of “residential activity” in s 95A(6) and determine whether all the activities sought by MMS are “associated with the construction, alteration or use of one or more dwellinghouses” or, in turn, a subdivision consent (other than non-complying). It was submitted that this is particularly the case because the emphasis in s 120(1A) in relation to the jurisdictional bar only applies to decisions that relate to those activities that are listed “but no other activities”. Counsel
34 At [41].
submitted that this requires the Court to carefully consider what is included in the proposed retirement village.
[46] In support of this argument, counsel referred to the evidence called before the Independent Commissioners about the proposed retirement village, which was limited as to detail. I was referred to the evidence of Mr McDonald, a director of MMS35 indicating that the establishment of a retirement village was central to the Council’s aspiration for the site and formed part of the obligations MMS had as purchasers of the land. However, counsel noted that as at 29 January 2021, no retirement operator had been appointed and therefore limited information had been provided at the Council hearing about what may be included. Counsel also referred to the s 42A report and the Council’s decision and submitted that neither describe in detail the non-residential aspects of the retirement village.36 As outlined above, the Environment Judge specifically referred to the limited detail about the retirement village in his decision, but he did not consider it limited his ability to interpret condition 4 as required and in relation to the provisions of the RMA.
[47] The lack of information about the nature of the retirement village supports, it was submitted, the need for caution to be applied in considering the jurisdictional bar in this case.
[48] The Ngāti Awa parties submitted that the “activities pavilions”, “recreational facilities”, “meeting places” and “care services and facilities” provided in the Lifestyle and Retirement Precinct are not associated with “the construction, alteration or use of one or more dwellinghouses” as required under s 95A(6) in order for them to be categorised as a residential activity for the purposes of the jurisdictional bar.
[49] Counsel then sought to distinguish Hawkesbury and Mackenzie District Council as both were decided prior to the introduction of the Interpretation Act 1999. It was submitted that both relate to the proper interpretation of a district plan, rather than what is contemplated in the context of a jurisdictional bar. It was submitted that if the jurisdictional bar was to be interpreted by whether or not the activity was enabled
35 Common bundle 201.0001.
36 Vol 104 CBD, P 0882.
by the District Plan, then a wide ambit of activities would be captured by s 120(1A)(c) and, ultimately, inappropriately restrict natural justice beyond that which had been intended by Parliament.
[50] Counsel next referred to the context for the Resource Legislation Amendment Act 2017 which it was submitted sought to respond to a housing supply and affordability crisis.37 It was submitted that a retirement village, such as the one before the Court, was not the type of housing infrastructure in contemplation of Parliament at the time s 120(1A) was promulgated and then enacted.
[51] Overall, counsel submitted that the other activities and services of the retirement village “tip the application over” for the purpose of the jurisdictional bar.
[52] Agreeing with the Judge that the natural and ordinary meaning of “associated” is “being connected” or “joined in function”,38 counsel submitted that the natural and ordinary meaning of “associated with” must be informed by the words of ss 95A(6) and 120(1A) of the RMA and the definition of “dwellinghouse”. In other words, the associated activity must be connected or joined in function to any building that is occupied as a residence, including any structure or outdoor living area that is accessory to and used wholly or principally for the purpose of residents. By way of comparison, counsel submitted that “activities pavilions”, “recreational facilities”, “meeting places” and/or “care services and facilities” are not connected or joined with a dwellinghouse or the purpose of residence. To take that approach, counsel submitted, would mean that any structure in the vicinity of a housing development would qualify as “associated with” the dwellinghouse.
[53] Further, if the gateway to s 120(1A) is to be merely ancillary to the construction, alteration or use of one or more dwellinghouses, counsel submitted that all manner of other activities could be considered to be associated with dwellinghouses, thereby restricting appeals against a wide category of activities.
37 Reference was made to Hansard where the first and second reading of the Resource Legislation Amendment Bill specifically stated that it was focused on addressing long-term issues around housing and particularly enabling housing infrastructure.
38 Manukau City Council v Trustees of Mangere Lawn Cemetery, above n 27.
The Council’s submissions
[54] In terms of the meaning of “associated with”, the Council also agreed that the Environment Judge correctly interpreted this phrase by finding that it means “being connected” or “joined in function”. It was submitted that the Lifestyle and Retirement Precinct activities would not only be paid for by the residents and managed by the village operators, but more importantly, they are necessary to provide the proper care and benefit for elderly residents. In this regard, the Council adopted the Environment Judge’s finding that “the sufficient association or connection involves the inter- relationship of functions, management and financial considerations rather than differences in the processes used”.39
[55] In relation to the argument about whether the activity is associated with the construction, alteration, or use of a “dwellinghouse”, counsel for the Council explained that the construction and alteration activities for the Lifestyle and Retirement Precinct are defined by land use consent conditions 3 and 4 and the Comprehensive Development Plan (CDP) – Development Controls.40 In addition to the conditions of consent, counsel submitted that the CDP and the Structure Plan provisions apply and the development is also subject to the relevant residential zone rules in the District Plan.41 As a result of these measures, counsel submitted the scale, character and intensity of the development is adequately delineated, I infer, to require the activities noted as 2 and 3 in condition 4 to be appropriately “residential”.
[56] It was further submitted that “dwellings for the purpose of housing people predominately in their retirement” clearly come within the definition of “dwellinghouse” in s 2 of the RMA. For this reason alone, counsel submitted that s 95A(6), which requires the activity to be associated with the construction, alteration or use of one or more dwellinghouses, has been satisfied. However, it was further submitted that the Environment Judge had gone further and examined whether the proposed lifestyle and retirement precinct activities could be included in the definition
39 Environment Court decision, above n 1, at [24].
40 Common bundle page 101.0100
41 Common bundle page 104.1221
of “dwellinghouse” as structures that are “accessory to”, and used wholly and principally “for the purposes of” a residence.42
[57] Ultimately, the Council submitted that the Environment Judge correctly adopted a purposive and contextual approach to his interpretation of the relevant definitions, correctly focused his interpretation on the definitions of “residential activity” and “dwellinghouse” as defined by the RMA and interpreted them in the context of their association with the proposed lifestyle and retirement precinct activities. It was submitted that this was the correct approach to take and no error of law was made.
[58] With reference to the Ngāti Awa parties’ submission that the Environment Judge erred by relying on case law which focused on plan provisions, the Council submitted that reference in the decision to the cases was simply in relation to matters of general principle to assist the Court with the interpretative exercise. It was submitted that there could be no error of law in referring to those cases for that purpose.
MMS submissions
[59] MMS adopted the same approach as that taken by the Council. In relation to the activities referred to in condition 4 of the land use consent, MMS submitted that the consented activities are clearly limited to dwellings, or by the express reference to “residents”, to activities associated with the dwellings within the retirement village.
[60]MMS also submitted that:
(a)the approach adopted by the Environment Court was entirely conventional, it did not refer to irrelevant factors such as the District Plan and further, the language of the statute was sufficiently clear to permit ouster of the Environment Court’s jurisdiction;
42 Environment Court decision, above n 1, at [25] and [26].
(b)the Environment Court adopted an approach of identifying the plain, ordinary meaning of the words, having regard to the purpose and scheme of the RMA and evaluated the consented activity against the plain ordinary meaning of the words; and
(c)the Environment Court’s discussion of Hawkesbury did not detract from the interpretative exercise undertaken.
Discussion
[61] The Environment Judge was correct to start with the statutory definitions. The key is the definition of “dwellinghouse” which includes “any structure … that is accessory to, and used wholly or principally for the purposes of, the residence”. The Environment Judge analysed this definition in relation to the CDP provisions applicable to the Lifestyle and Retirement Precinct. Given that the “services and facilities”, “activities pavilions and/or other recreational facilities or meeting places” are defined respectively as “for the care and benefit of the residents”, and “for the residents of that complex and visitors of residents”, it is hard to see how any activity beyond that which relates to the purpose of residence could be permitted. Arguably, within the definition of “precinct” therefore the reference to “facilities”, “pavilions” and “other recreational facilities or meeting places” would come within the definition of dwellinghouse.
[62] For the same reasons, the Judge was right not to put much weight on the limited detail about services and facilities.
[63] In my view although the Environment Judge correctly concluded that the limitation for the activities in the Lifestyle and Retirement Precinct to “residents and visitors of the residents” meant that the definition of “residential activity” under s 95A(6) of the RMA applied to them, I do not agree that he determined these terms with reference to the retirement village rather than dwellinghouses. The activities noted as 2 and 3 in condition 4 specifically limit them to the care, benefit or use of residents or their visitors. Importantly, services and facilities are limited to “the care and benefit of residents” only, but “activities pavilions and/or other recreational facilities or meeting places” can be used by residents and their visitors. By linking
these activities to residents, the purpose of the activities is, in my view, inextricably linked to the definition of “dwellinghouse” and thereby to the definition of “residential activity” in s 95A(b).
[64] Further, I am not persuaded that the Environment Judge misapplied the cases when he undertook his interpretative exercise. It is clear that it was the reasoning in the cases that he considered helpful, particularly in relation to the Hawkesbury Avenue case where he specifically said that the Court’s reasoning had been helpful given the purposive way in which it had undertaken the interpretive exercise. In my view, the process adopted by the Environment Judge was orthodox, namely, he identified the plain ordinary meaning of the words, and had regard to the purpose and scheme of the RMA.
[65] As to the submission by the Ngāti Awa parties that s 120(1A) was introduced to respond to a housing supply and affordability crisis that is not applicable to retirement villages, I agree with MMS that argument cannot be sustained. Fundamentally, retirement villages house people and therefore assist with housing supply and affordability either by housing older people or freeing up housing stock for the market as older people move into retirement villages. I take this matter no further because it is not something which appears to have been argued before the Environment Judge.
[66] It is well established that Courts with supervisory jurisdiction will not lightly accept the ouster of their jurisdiction. However, if Parliament speaks clearly about its intention to oust the jurisdiction of the Court, that must be respected.43
[67] As to whether a special approach ought to be taken because s 120(1A) is an ouster provision, I agree that caution must be taken, however, it is caution in relation to the clarity about which Parliament has spoken of its intention to oust the jurisdiction of the Court, rather than the fact itself of ouster. In my view, the intention of Parliament as expressed in s 120(1A) is clear. It only intended to allow parties to appeal decisions concerning residential activities where those activities were assessed as non-complying activities.
43 Bulk Gas Users Group v Attorney-General, above n 19, at 133.
[68] Having reached the conclusion that ouster was intended, the Court should approach the question of how broadly that ouster extends in a conventional way, namely, by reference to the purpose and scheme of the legislation. This is the approach the Environment Judge adopted.
[69] Even if I am wrong about this, in my view, the ouster here is not of the same kind as that which appears in decisions such as Bulk Gas. That case concerned limits to the High Court’s constitutional role of supervising the lawfulness of executive decision-making. The importance of this role is recognised by the New Zealand Bill of Rights Act 1990, which includes the right of those affected by the decisions of public authorities to apply for judicial review.44 The Environment Court is created and its powers are strictly delineated by the RMA. The RMA grants the right to a full de novo hearing on issues of fact and law, but did not, at the time, extend that right to decisions relating to all residential activities. I agree with counsel for MMS that the general scepticism about ouster revealed in the cases is less applicable in these circumstances.
[70] As well, the scheme provided under ss 95A and 120(1A) has applied in relation to the standing of parties to appeal notification decisions to the Environment Court for some time now. The reference to this well-known definition further clarifies the purpose of the ouster.
[71] I conclude that the ouster of the Environment Court’s jurisdiction to hear certain appeals was clearly outlined in the amendments to s 120 which, although now repealed, were in force at the time the Environment Court was contemplating the Ngāti Awa appeals. Given the conclusion I have reached that the Environment Judge made no error of law interpreting the provisions of s 95A(6) as they apply to this consent; he was correct to conclude that the Ngāti Awa parties had no right to appeal to the Environment Court.
Result
[72]The appeal is dismissed.
44 New Zealand Bill of Rights Act 1990, s 27(2).
[73] I appreciate this decision will be disappointing to the Ngāti Awa parties. It is a decision that has required a clinical approach to the interpretation of statutory provisions. In other words, it has nothing to do with the merits or otherwise of the appeals sought to be argued before the Environment Court. The provisions in issue have now been repealed but that will be cold comfort to the Ngāti Awa parties as they have lost the opportunity to advance the matters they wished to argue before the Environment Court.
[74] It has been important for me to express clearly the nature of the decision before the Court. A party who does not feel they have been afforded an opportunity to have the full ambit of their argument advanced in an appropriate forum will often feel aggrieved. Our system of democracy, however, provides that laws made in Parliament are supreme with the question of their interpretation remaining a matter for the Courts. In this case, both the Environment Court and this Court on appeal have determined that the limitation on the right to appeal applicable at the time means that the Environment Court is not empowered to address the merits of the parties’ respective positions on the substance of the matters in issue between them.
[75] The appeal having been dismissed, the question of costs arises. If costs cannot be agreed, the Council and MMS are to file and serve a memorandum (not exceeding three pages) in relation to costs within 14 days of the date of receipt of this judgment. The Ngāti Awa parties are to file any memorandum in reply (not exceeding three pages) no later than 14 days thereafter. Costs will be dealt with on the papers unless the Court considers upon reading the memoranda that a further hearing is required.
Harland J
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