Waterfall Park Developments Limited v Hadley
[2022] NZHC 376
•7 March 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2021-425-26
[2022] NZHC 376
BETWEEN WATERFALL PARK DEVELOPMENTS LIMITED
Appellant
AND
JAMES and REBECCA HADLEY
First Respondent
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
Second Respondent
Hearing: 14 December 2021 Appearances:
M G Colson QC for Appellant
P J Page and S R Peirce for First Respondent
M J Doesburg (via VMR) and K T Dickson for Second RespondentJudgment:
7 March 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 14 March 2022 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WATERFALL PARK DEVELOPMENTS LIMITED v HADLEY [2022] NZHC 376 [7 March 2022]
Introduction
[1] The appellant, Waterfall Park Developments Ltd (Waterfall Park), owns a substantial tract of land in the Speargrass Flat area of the Wakatipu Basin. The western boundary of this property runs alongside the Queenstown Trail, a track developed as a pedestrian path and cycleway. In 2019 and 2020 Waterfall Park planted the boundary beside the track with evergreen tree species.
[2] The respondents, Mr and Mrs Hadley, also live alongside the Queenstown Trail. Mrs Hadley, drawing on her experience as a landscape architect and knowing Waterfall Park’s development aspirations for its land, considered the planting was not a permitted farming activity under the Queenstown Lakes District Council Proposed District Plan (PDP). Rather, it was “landscaping” as defined in the PDP and required resource consent. The Hadleys sought declarations in the Environment Court confirming those views.
[3] In a decision dated 5 March 2021 the Environment Court agreed with the Hadleys and made the following declarations:1
(a)[Waterfall Park’s] planting of trees (namely Leyland Cypress (Cupresses X Leylandii) Portuguese Laurel (Prunus lusitanica) and Mountain Beech (Fuscospora cliffortioides)) (‘Trees’) adjacent to the western boundary of Lot 4 Deposited Plan 540788 contained within Record of Title 929491 was and remains a non-complying activity by operation of rule 24.4.1 in proposed Chapter 24 of the Queenstown Lakes District Plan;
(b)the Trees were planted in breach of section 9(3) of the Resource Management Act 1991 and remain in breach.
[4] Waterfall Park appeals that decision and contends the Environment Court made various errors of law in reaching its decision to make those declarations. The Hadleys, supported by the Queenstown Lakes District Council (the Council), say the Environment Court did not err and the decision was clearly correct.
1 Hadley v Waterfall Park Developments Ltd [2021] NZEnvC 18 at [61].
[5] At issue is whether the Environment Court erred in any of the ways alleged. If it did, the parties are agreed the matter should be referred back to the Environment Court for reconsideration.
Background
[6] In 2015 Waterfall Park purchased the remaining part of Ayrburn Farm following the farm’s subdivision in 2010. The approximately 42 hectare property is located in the Wakatipu Basin and is bounded by the Lake Hayes rural-residential area on its southern boundary, the Arrowtown-Lake Hayes Road on its eastern boundary, the Waterfall Park Resort Zone and Millbrook Resort Zone on its northern boundary, and an unformed legal road on its western boundary, over which the Queenstown Trail generally runs.
[7] Waterfall Park has sought to rezone the property for residential, commercial or retirement village purposes. However, the Council refused Waterfall Park’s submission on the PDP to rezone the property. Mrs Hadley gave evidence that this was, in part, influenced by the landscape evidence she gave at the hearing, which “drew attention to the importance of the property to the maintenance of the landscape values of the Speargrass Flat Landscape Character Unit as described in Schedule 24.8 of the Proposed District Plan”.2
[8] On 28 April 2020 Mrs Hadley and her husband received correspondence from Waterfall Park’s lawyers regarding a proposed retirement village development for the property. At around the same time she noticed that:
a linear planting of Leyland Cypress trees was being planted on the property adjacent to the Queenstown trail, over a distance of approximately 205m. Prior to this, a double row of native Mountain Beech trees (Fuscospora cliffortioides) was planted over summer 2019/2020 over a distance of approximately 300m, and in mid May 2020 a row of Portuguese Laurel (Prunus lusitanica) has been planted inside the row of Leyland cypress over a distance of 205m.
2 This evidence was given in her professional capacity as a landscape architect, in which she uses her maiden name, Rebecca Lucas.
[9] Given Mrs Hadley’s familiarity with the PDP, she was of the view that the planting was “landscaping” as defined in chapter 2 of the PDP. That definition said “landscaping”:
[m]eans the provision of tree and/or shrub plantings and may include any ancillary lawn, water, rocks, paved areas or amenity features, the whole of such provision being so arranged as to improve visual amenity, human use and enjoyment and/or to partially or wholly screen activities or buildings, and/or to provide protection from climate.
In her view, the planting required consent because landscaping was not listed as a permitted activity in Table 24.1 of the PDP and, under r 24.4.1, any activity not listed in the relevant tables was categorised as a non-complying activity.
[10] On 29 May 2020 the Hadleys filed a notice of application for declarations seeking to have the identified planting declared a non-complying activity under r 24.4.1 of the PDP. This was because the planting was not expressly authorised by a resource consent and was in breach of s 9(3) of the Resource Management Act 1991 (RMA), as it was neither a farming activity or a residential activity as defined in the PDP at the time it was carried out.
[11] Waterfall Park opposed the application primarily on the basis that the planting fell within the definition of a “farming activity”, which is defined in the PDP as:
… the use of land and buildings for the primary purpose of the production of vegetative matters and/or commercial livestock. Excludes residential activity, home occupations, factory farming and forestry activity. Means the use of lakes and rivers for access for farming activities.
The Environment Court’s decision
[12] After setting out the factual background and the relevant provisions of the PDP, Environment Court Judge Hassan addressed the principles governing the interpretation of plan rules. He set out the following summary of those principles contained in Auckland Council v Budden:3
[36] The principles for the interpretation of a subordinate RMA planning instrument are also well settled and not contentious. We are guided by the
3 Hadley, above n 1, citing Auckland Council v Budden [2017] NZEnvC 209 at [36]–[37] (footnotes omitted).
Interpretation Act 1999 (‘IA’), particularly s 5 on purposive interpretation. The principles are also as set out in the leading Court of Appeal authorities of Rattray (decided pre-RMA) and the more recent decision in Powell (where Rattray was applied and interpreted in relation to an RMA district plan matter). In particular, we apply the approach described in the following passage in Powell:
[35] … while we accept it is appropriate to seek the plain meaning of a rule from the words themselves, it is not appropriate to undertake that exercise in a vacuum. As this Court made clear in Rattray, regard must be had to the immediate context… and, where any obscurity or ambiguity arises, it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.
[37] We add that, for subordinate legislation, where examination of the immediate context of the plan leaves some uncertainty, it is also permissible to consider provisions in light of the purpose they fulfil in the authorising legislation (in this case, the RMA). Similarly the fact that a district plan is to give effect to a [Regional Policy Statement] can make the latter of some relevance to the interpretation of the former.
[13] The judgment then discussed the evidence. In addition to Mrs Hadley’s own evidence which set out the factual background and her reasons for believing the planting required a resource consent, the applicants called expert evidence from Mr Jason Glendining, the former farm manager at Ayrburn Farm, and from Mr Arne Cleland, a horticultural expert.
[14] Mr Glendining gave evidence that he did not consider the planting served any useful farming shelterbelt purpose, saying the site already had the benefit of existing shelter from planting on adjoining properties as well as from the topography of the land. He also commented that the evergreen species chosen would create frost issues in the winter and block the wind that helps keep stock cool in summer. A single row of deciduous trees would be more suitable for shelterbelt purposes.
[15] Mr Cleland also gave evidence that the planting was neither necessary nor suitable as a shelterbelt. It would create a screen and would adversely affect the Queenstown Trail in winter by blocking morning sun. He also recommended deciduous trees if a shelterbelt was needed, noting these were used in the shelterbelt to the west of the Trail.
[16] The Council called evidence from a landscape architect, Ms Bridget Gilbert, and from a planning expert, Ms Alana Standish. The Council’s landscape witness agreed with the applicants’ evidence, saying the planting was akin to screen planting that was associated with rural residential living, rather than a shelterbelt. Similarly, the Council’s planning expert did not consider the planting to be within the PDP definition of “farming activity”, because it was not established for that primary purpose.
[17] Waterfall Park called evidence from Mr Christopher Meehan, its director, who outlined the history of Waterfall Park’s acquisition of the property. He also explained the terms of the current licence agreement with owners of the nearby Loch Linnhe Station, allowing them to graze sheep and undertake other farm activities on the property, subject to various obligations “in lieu of any rental payments”. Mr Meehan confirmed that the objective of the licence agreement was simply to ensure the property was adequately and properly looked after while Winton Partners Capital New Zealand Ltd along with other related companies (collectively referred to as Winton), pursued separate property development aspirations for the property. Mr Meehan clarified that Waterfall Park is a subsidiary of Winton.
[18] Mr Meehan then outlined Winton’s staged development strategy for Ayrburn Farm and the adjacent Waterfall Park Zone. For Ayrburn Farm, Waterfall Park sought rezoning that would enable up to 200 residential homes, a retirement village of equivalent size, or rural lifestyle development. Mr Meehan’s evidence was that if Waterfall Park did not achieve the rezoning it sought, then the options for the use of the land would be “essentially limited to farming options” and Waterfall Park wanted to make the site attractive to potential buyers and private for future residents.
[19] While acknowledging he is not a farmer, Mr Meehan gave evidence that the farm was exposed to cold westerly and south-westerly winds, and deciduous trees would not offer as much shelter in winter as evergreens. He also pointed out that Leyland cypress are commonly used for shelterbelt planting in the Wakatipu Basin, and there are many examples of evergreen species being used as shelterbelts on farming properties in the area. He said that Mountain beech was chosen for the boundary on the steeper slope of Christine’s Hill, as it would result in a more natural
look. He also said that in addition to giving shelter to stock from prevailing winds, the planting would protect stock from the adverse presence of people and/or dogs on the Queenstown Trail.
[20] After summarising the submissions, the Judge considered there was some uncertainty over the degree to which the rules in chapter 24 of the PDP sought to control land uses which do not involve use of associated buildings.4 In order to determine whether the rules intended to preclude such planting as a permitted activity, he looked at the rules in the context of the related objectives and policies and in light of the purpose they sought to achieve.
[21] He observed the express purpose of the Wakatipu Basin Rural Amenity Zone (WBRAZ) which was the subject of chapter 24, was to maintain or enhance the character and amenity of the Wakatipu Basin. He identified several policies that were related to that objective by seeking to maintain or enhance landscape character and amenity values, including:
(a)policy 24.2.1.4 which controls “the colour, scale, form, coverage, location (including setbacks) and height of buildings and associated infrastructure, vegetation and landscape elements”;
(b)policy 24.2.1.6 which provides for farming and other activities that rely on the rural land resource but “subject to maintaining or enhancing landscape character and visual amenity values”; and
(c)policies 24.2.5.1 and 24.2.5.2 which allow for rural residential subdivision and development on a similarly qualified basis.
In light of these objectives and policies he considered the rules were intended to allow “for careful scrutiny and control of not only subdivision and development, but also the undertaking of day-to-day land uses and activities”.5
4 Hadley, above n 1, at [41].
5 At [46].
[22] The Judge then turned to consider the definition of “farming activity” as set out at [11] above. In his view, the words “primary purpose” were intentional and had their ordinary meaning. A primary purpose means a purpose of “first importance” or the “chief” purpose.6 From that it followed that an intended land use (including planting of trees other than forestry) would not qualify as a permitted activity unless its primary purpose was demonstrated to be the production of vegetative matters and/or commercial livestock. The stringent land use controls in the PDP recognised the vulnerability of the landscape character and amenity values of the Wakatipu Basin and its setting to change. He concluded, therefore, that it was a “deliberate aspect” of the design of chapter 24 that any land use that did not meet the “primary purpose” test (or otherwise qualify as a permitted activity) would default to a non-complying activity. That stringency of control was intended to serve chapter 24’s purpose of maintaining or enhancing the landscape character and visual amenity values of the Wakatipu Basin and its identified landscape character units.7
[23] He then turned to whether the planting in question was required for the primary purpose of the production of vegetative matters and/or commercial livestock. In terms of the present farming activity, he concluded the planting was “not needed for the relatively limited grazing being undertaken on the [s]ite at present”.8 In his view, the critical difference between the parties was whether it was relevant to consider the potential for the planting to serve any future use for farming activity on the site. He concluded that Waterfall Park’s argument that the planting would serve a future farming use was “speculative at best”.9 The evidence did not satisfy the “primary purpose” test insofar as establishing any future use for a farming activity.
[24] In his view, a sensible reading of the rule allows for a land owner to undertake farm improvements in anticipation of how a farm may be used in the future. Thus, the primary purpose test was not confined to how the farm was being used at the time. However, there must be a “sound evidential basis” for inferring the “primary purpose” test would be likely to be met in the future. On the facts, he found the planting was not for the primary purpose of the production of vegetative matters and/or commercial
6 At [48].
7 At [50].
8 At [51].
9 At [54].
livestock, having regard to both the established farming activities on the property and the realistic potential of the property for farming purposes.10
[25] As the planting was not a permitted activity, it defaulted to a non-complying activity under r 24.4.1. The Judge therefore made declarations that the planting was a non-complying activity, albeit in slightly different terms from those proposed by the applicants.
The appeal
[26] Waterfall Park appeals that decision under s 299(1) of the RMA. That section permits a party to a proceeding before the Environment Court to appeal to the High Court on a question of law.
[27] The approach on appeal under s 299 is well settled. This Court should only interfere with the Environment Court’s decision if it is satisfied that the Environment Court:11
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[28] The High Court will be careful not to engage in a re-examination of the merits of the case under the guise of a question of law. As was said in Guardians of Paku Bay Association Inc v Waikato Regional Council:12
The High Court has been ready to acknowledge the expertise of the Environment Court. It has accepted that the Environment Court’s decisions will often depend on planning, logic and experience, and not necessarily evidence. As a result this Court will be slow to determine what are really planning questions, involving the application of planning principles to the
10 At [55].
11 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
12 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at
[33] (footnotes omitted).
factual circumstances of the case. No question of law arises from the expression by the Environment Court of its view on a matter of opinion within its specialist expertise, and the weight to be attached to a particular planning policy will generally be for the Environment Court.
[29] Even if an error of law is found, it must have been material to the decision before this Court will grant relief.13
Grounds of appeal
[30] The appellant’s grounds of appeal as set out in its notice of appeal are wide-ranging. It says the Environment Court:
(a)misunderstood and misapplied the PDP and/or the RMA;
(b)misunderstood and misapplied the law when determining:
(i)how the “primary purpose” test should be applied when assessing whether a land use was a “farming activity”;
(ii)whether a land use which did not meet the “primary purpose” test defaulted to being a non-complying activity;
(iii)its approach to considering future possible land uses;
(c)took into account matters which it ought not to have taken into account and failed to take into account matters which it ought to have taken into account;
(d)having regard to the evidence, made various factual findings which are clearly untenable in all the circumstances so as to amount to an error of law; and
(e)came to a conclusion to which, on the evidence, it could not reasonably have come.
13 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 11, at 153.
[31] However, in practical terms, the alleged errors can be summarised as being whether the Judge erred in:
(a)determining the planting was not a permitted “farming activity”; and
(b)determining that on a proper reading of the PDP, the planting defaulted to a non-complying activity.
Did the Judge err in determining the planting was not a “farming activity”?
[32] Mr Colson QC, for Waterfall Park, submits the Environment Court made the following errors in coming to the conclusion that the planting did not fall within the PDP definition of “farming activity”.
The Judge applied a wrong legal test
[33] Mr Colson argues the Environment Court misinterpreted and misapplied the legal test when determining whether the planting was a “farming activity” under the PDP. Specifically, the Environment Court erred in:
(a)concluding that where there were multiple purposes for the planting, there was no “primary purpose”; and
(b)concluding that a possible future use could not be a “primary purpose” unless it was “likely” to be the actual future use.
[34] Mr Colson argues the Environment Court wrongly narrowed the phrase “primary purpose” by determining that the use of the word “primary” qualified the purpose and required it to be the “chief” purpose. This meant that where there were multiple purposes for the planting, the Judge held there was no primary purpose capable of falling within the meaning of “farming activity”. Mr Colson argues this is too stringent a test and excludes the possibility of ancillary land uses being included in the definition of farming activity. He says when Mr Meehan’s evidence is looked at, several of the purposes he lists (for example, privacy and protecting stock from the
presence of people or dogs on the Queenstown Trail) can reasonably be seen as at least ancillary to farming activity.
[35] In his view, the Environment Court’s approach to determining the meaning of primary purpose is also contrary to the principles of interpretation outlined in the decisions of Powell v Dunedin City Council14 and Nanden v Wellington City Council,15 in that it:
(a)is inconsistent with other provisions in chapter 24 applying to the WBRAZ;
(b)is not consistent with what an ordinary reasonable member of the public examining the PDP would have taken from the planning document;
(c)would result in an injustice and absurdity; and
(d)would be “out of sync” with the expectations of property owners.
[36] Mr Colson argues there was no legal or policy basis for interpreting the PDP as excluding a possible future use as the primary purpose unless it was likely to be the actual future use. He contends it would also create an untenable degree of uncertainty for land owners in seeking to apply this interpretation. Furthermore, he suggests there was no sound evidential basis for this conclusion. The Environment Court did not suggest the scenarios put forward by Mr Meehan were fanciful or unreasonable. Mr Colson submits that once the Environment Court had been presented with evidence of reasonable possible future uses of the land, it was not open to the Environment Court to impose its own subjective value judgment of how likely that future scenario was as the standard which had to be met.
[37] Had the Environment Court not taken such a restrictive and subjective approach to possible future uses, Mr Colson submits there was evidence to support a conclusion that the planting fell within the definition of “farming activity” and was
14 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [35].
15 Nanden v Wellington City Council [2000] NZRMA 562 (HC).
permitted under the PDP. Accordingly, the errors the Environment Court made were material to the decision.
The Judge had regard to irrelevant considerations
[38] The next error alleged was that the Environment Court had regard to the following irrelevant considerations:
(a)the suitability of the chosen species as a shelterbelt; and
(b)subjective opinions as to the utility of the species.
[39] Mr Colson submits that it is implicit in the time the Environment Court spent detailing this evidence that it considered it of utility in deciding whether the “primary purpose” test was satisfied. The Environment Court concluded it was speculative whether or not a purchaser would find the planting to significantly benefit farming or other rural uses of the site. This suggests the Environment Court made an assessment of whether the species used would be of significant benefit, and wrongly imported a standard into the “primary purpose” test that lacks a legal or policy basis. It is clear from the evidence before the Environment Court that the decision as to which species would be selected is subjective and will depend on what aspects of performance the individual farmer values. In Mr Colson’s submission, the land is currently used for farming and may be used for a different type of farming in the future, so the species of tree to be used in the planting is an irrelevant consideration, so long as the planting can be said to be a shelterbelt which is able to be used for farming purposes. Any other conclusion would lead to undesirable uncertainty.
The Judge failed to have regard to relevant considerations
[40] Waterfall Park’s next submission is that the Environment Court failed to have regard to the uncertainty it would create by interpreting the rule in this way. It is undesirable to have uncertain rules and the Environment Court has long held that rules should be certain.16 Mr Colson argues that the narrow and subjective approach adopted by the Environment Court to the definition of “farming activity” means that
16 Powell v Dunedin City Council, above n 14, at [12].
land owners have to consider the provisions of the PDP, and overlay some form of subjective test as to the utility and benefit of particular species, as well as certainty as to any future plans.
The Judge made findings for which insufficient evidence existed
[41] Mr Colson submits there was insufficient evidence to support the Environment Court’s conclusion the site had little future farming value. He says the Environment Court’s finding that the farm had little, if any, economic value in its own right due to its size appears to have influenced its conclusion as to the site’s future farming value. He contends the Environment Court did not contemplate the possibility that a future owner would take a different approach to farming on this site which could fall within the definition of “farming activity”. Had the Environment Court been prepared to contemplate the possibility of a future purchaser approaching farming activities on the site differently, as was suggested in Mr Meehan’s evidence, it could have reasonably concluded that the planting fell within the definition of “farming activity”.
The Judge came to an unreasonable conclusion
[42] For all those reasons, it is submitted the Environment Court reached an unreasonable conclusion when it held that the planting fell outside the definition of “farming activity”.
Discussion
Did the Judge apply a wrong legal test?
[43] I do not accept Waterfall Park’s criticism of the Environment Court’s finding that the word “primary” acted as a qualifier to the word “purpose” in the definition of “farming activity”. The finding that the word “primary” required the purpose to be of “first importance” or the “chief” purpose was uncontentious and logical. There can be no other reason for inserting those words into the definition. Had a different meaning been intended, the definition would have used less restrictive language.
[44] I also accept that the use of the word “primary” is consistent with the wider context of the PDP provisions relating to the WBRAZ. I consider the PDP is
attempting to deal with the same tensions as were identified as arising under the Operative District Plan (ODP) where the High Court made the following observation:17
[26] The rural areas of the QLDC are widely used for commercial farming activity. Much of the resource management tensions in this area are to reconcile the economic importance of maintaining the farming activity, and so allow its effects, with the economic importance of preserving the landscape and the protection of outstanding natural features and landscapes from inappropriate use.
[45] The PDP seeks to maintain or enhance the landscape character and visual amenity values of the Wakatipu Basin’s landscape resource. Schedule 24.8 of the PDP contains detailed descriptions of each landscape character unit identified in the Wakatipu Basin. Landscape Character Unit 8 (LCU8), Speargrass Flat, where the property is located is listed as having a low absorption capacity for additional development. The particular environmental characteristics and visual amenity values of this part of LCU8 include:
Maintenance of a spacious and open outlook in views from the Queenstown Trail and Arrowtown Lake Hayes Road, including the southbound view as one descends Christine’s Hill.
[46] The objective of maintaining the identified values can only be achieved if activities which have the potential to change it are controlled to the greatest extent possible. That is only possible when the scope of permitted activities is limited to activities which are unlikely to affect the landscape character and visual amenity values of the area, or, if they could, that is accepted because of the recognised economic importance of those activities (as is the case with farming activities).
[47] Once it is accepted that the Environment Court was correct in its interpretation of the words “primary purpose”, the balance of the Environment Court’s findings were factual findings which were readily open to it. Mr Meehan’s evidence was that the current arrangement for use of the land was motivated by the following purpose:
Winton wanted to ensure that the properties would be properly maintained and looked after. Winton was not concerned about how intensively or productively Ayrburn Farm was farmed and managed.
17 Matukituki Trust v Queenstown Lakes District Council HC Christchurch CIV-2006-412-733, 19 December 2006.
[48] There was, as the Hadleys point out, no evidence at all that the planting was required for the current farming activity. Indeed, it was not included as one of the permitted farming activities in the licence agreement with Loch Linnhe Station.
[49] The conclusion that it was speculative to suggest there was a future scenario where the shelterbelt was required for the primary purpose of farming was also unsurprising on the evidence. Mr Meehan’s company acquired the property with its development potential in mind, and the likelihood of it remaining fully rural seems remote. There is no farming activity identified which the shelterbelt will serve a purpose for. It is simply a possibility that it will have some utility to a farming owner in the future if the land remains zoned for rural use. Furthermore, the Environment Court did not, as the appellant submits, rule out the possibility of the planting having other purposes so long as farming was its primary purpose. However, on the evidence presented in the case, that was not established.
[50] I am satisfied there was no error in the Judge’s approach to the interpretation of the definition of “farming activity”.
Did the Judge have regard to irrelevant considerations?
[51] In coming to the factual findings discussed above, the Environment Court considered the evidence presented, including from experts, as to the utility of the species planted for the shelterbelt. Waterfall Park argued this evidence was irrelevant to whether the planting met the “primary purpose” test, as such evidence was subjective and depended on which aspects of performance the individual valued.
[52] I do not consider such evidence is irrelevant, at least in a general sense. If the species used was clearly inappropriate for any farming use, that could go to the credibility of an assertion by a land owner that it was. However, in the present case, although there was evidence that at least one of the species, Leyland Cypress, was used for shelterbelt planting, the Judge’s decision did not rely on the suitability of the species selected. It relied on whether there was any evidence that the planting was now, or in the future, to be used for the primary purpose of farming, which was the factual question which had to be resolved. The species used was a relevant but not determinative consideration.
[53] I am satisfied the Judge did not have regard to irrelevant considerations in deciding the planting was not a “farming activity”.
Did the Judge fail to have regard to relevant considerations?
[54] While Waterfall Park submitted that the Environment Court failed to have regard to the potential for unacceptable uncertainty arising from its interpretation of the definition of “farming activity”, saying this was a relevant consideration, the Hadleys and the Council disagree. They consider the Environment Court’s interpretation was consistent with the plain and ordinary meaning of the definition and with the interpretation that a reasonable reader of the PDP would take. In any event, the Council submits that any alleged uncertainty created by this interpretation was not a mandatory relevant consideration, such that a failure to take it into account would amount to an error of law. The need to consider the factors set out in decisions such as Nanden is only required in the event of obscurity or ambiguity in the interpretation of a plan provision.18 The definition of “farming activity” in the PDP does not give rise to such ambiguity.
[55] As already explained, I accept the Environment Court’s interpretation of the “primary purpose” test for farming activity was correct based on the plain meaning of the words and in light of the PDP provisions for the WBRAZ, including its objectives and policies. While, as here, situations may arise where there is doubt as to whether the test is met without further factual enquiry, that is not the kind of uncertainty that is relevant to interpretation of this definition. Generally, it will be apparent, without enquiry, whether an activity is a “farming activity”. If, as here, there is a real question over whether the activity fell within the definition, the onus falls on the land owner to demonstrate it does.
[56] In any event, I accept the respondent’s submissions that Waterfall Park’s approach to interpretation would create greater uncertainty. If the PDP permitted activities with multiple purposes but without the primary purpose of being a farming activity, or where the farming activity could simply be a possible future use that a future owner of a property might make, that would create an unacceptable level of
18 Nanden v Wellington City Council, above n 15, at [42].
uncertainty for both the Council and the public. It would enable, as permitted activities, any activity where farming might be a purpose, even if not a primary purpose, either now or in the future. The factual enquiry that would be needed to decide if an activity fell within the definition would be far broader and more uncertain than under the current interpretation.
[57] I am satisfied the Environment Court did not need to have regard to potential uncertainty of its interpretation of “farming activity” and, even if it had, that would have strongly favoured the interpretation of the definition reached by the Environment Court.
Did the Judge make findings for which insufficient evidence existed?
[58] The submission that there was insufficient evidence for the Environment Court to conclude that the farm had little, if any, economic value as a farm due to its size does not raise an error of law. This was a factual finding for which there was clear evidence. As both respondents submitted, the Environment Court is a specialist tribunal and it was entitled to come to this finding having undertaken a site visit, considered the evidence before it and applying logic and experience to those facts. Mr Glendining, an experienced farm manager, gave evidence that the land had little farming value saying “the available land for grazing is now too small and there is no ability to control or move stock”. Furthermore, Mr Meehan himself said “Ayrburn Farm has little, if any, value as an economically viable farming property on its own, due to its small size.
[59] In any event, the onus is on the applicant to demonstrate that its activities complied with the PDP. The Environment Court did not accept that onus was discharged, saying that the claimed future uses for the planting as a farming activity were “speculative at best”.19 I am satisfied that this is a finding of fact made on the available evidence which is not impugned by any error of law.
19 Hadley, above n 1, at [54].
Did the Judge come to an unreasonable conclusion?
[60] Similarly, for the reasons given above, the Environment Court’s decision that the planting fell outside the definition of “farming activity” could not be said to be an unreasonable conclusion on the facts before it.
Did the Judge err in determining the planting defaulted to a non-complying activity under the PDP?
[61] The second error Waterfall Park considers the Environment Court made is it wrongly concluded that if the land use did not qualify as a permitted activity, it defaulted to a non-complying activity. Again, Mr Colson submits this conclusion was critical to the outcome of the decision, and was the result of errors made by the Environment Court in:
(a)interpreting and applying the legal test;
(b)failing to properly consider relevant matters; and
(c)reaching untenable factual findings.
The Judge wrongly found that the PDP intended careful scrutiny and control of day- to-day land uses and activities
[62] Mr Colson submits that the Environment Court erred when it described the PDP rules as allowing for careful scrutiny and control of undertaking day to day land uses and activities. He says the following factors support the conclusion that the Environment Court’s interpretation of the rules was in error:
(a)Section 9 of the RMA starts from a presumption that there are no constraints on a person’s ability to use land except where that use would contravene a provision in a district plan (or other standards) and the Environment Court failed to properly consider this presumption.
(b)There is no language in the objectives, policies or rules of the PDP to support this interpretation. The wording of policy 24.2.1.6, which seeks to “provide for farming” and other non-residential activities on
rural land “subject to maintaining or enhancing landscape character and visual amenity values”, does not warrant the conclusion that such activities should be under careful scrutiny and control.
(c)There are other activities that are not specified as permitted in each PDP zone which would, on this interpretation, default to “non-complying”, and this would mean that many activities one would expect to take place within the zone would need resource consent. For example, none of the residential zones identify residential activity as a permitted activity and landscaping is also not a permitted activity in any zone.
(d)Different zones may have different activities that default to non-complying. For example, in Chapter 24 on the WBRAZ, and in certain other chapters, recreational activity is not listed as a permitted activity, so on the Environment Court’s approach, it would fall to be assessed as a non-complying activity. In other zones it is recognised as a permitted activity, and this inconsistency demonstrates the absurdity of the Environment Court’s approach when applied to different scenarios.
(e)Following the Environment Court’s approach, a passive way of using the land, for example allowing self-sown trees to grow, could be determined as having non-complying activity status, leading to obvious challenges in terms of uncertainty and absurdity for land owners and the Council.
The Judge failed to consider wider contextual considerations
[63] Waterfall Park also submits the Environment Court erred in failing to properly consider the wider context of the PDP to support the conclusion that it reversed the previous position under the ODP (where planting for amenity purposes was permitted). While Waterfall Park accepts that the Environment Court was not required to detail every matter it considered, it says there are a number of factors which support the conclusion that a wider contextual approach was relevant and should have been addressed in the Environment Court’s reasoning.
[64]Mr Colson says taking a wider contextual approach was necessary because:
(a)the effect of the Environment Court’s decision is that the planting of any tree in any rural zone which is not planted as part of an existing or future farming activity or a residential activity, and which falls within the definition of “landscaping”, requires consent as a non-complying activity;
(b)this would make tree planting a non-complying activity in over
96.7 per cent of the district;
(c)under the ODP the planting of trees for amenity purposes in the rural zones was a permitted activity;
(d)there is ambiguity in the wording of the PDP provisions as it is not clear whether landscaping is a separate activity in its own right (affected by an activity status);
(e)it cannot reasonably be contended on the basis of the s 32 documentation and the Commissioners’ decision that landscaping was intended to be a non-complying activity if it was not a permitted activity;
(f)there is no policy or other indicator in the PDP that would suggest amenity planting is intended to be or should be, a non-complying activity throughout over 96.7 per cent of the district;
(g)the fundamental similarity between the ODP and the PDP regimes (relevant to landscaping) and the complete lack of reference in the PDP development to an intention to achieve this outcome points away from planting (other than as part of a permitted farming activity or residential activity) being a non-complying activity through 96.7 per cent of the district;
(h)the starting presumption in s 9 of the RMA does not support the narrow interpretation of the PDP, nor is it consistent with the effects-based approach of the RMA;
(i)there is no logic or rationale or any basis grounded in the PDP’s objective and policy regime, the RMA, or otherwise for the alleged change in the rule regime which results in amenity planting not associated with a farming activity or residential activity to have non- complying activity status;
(j)the Environment Court’s decision would result in absurd or anomalous outcomes. For example, a rural land owner would not be permitted to plant a grove of oak trees because it would not fall within the definition of farming activity and whether it was a residential activity would be questionable, particularly if the grove was not adjacent to residential accommodation;
(k)this narrow interpretation would be inconsistent with the expectations of property owners; and
(l)this narrow interpretation would lead to an intolerable burden on the Council with related unacceptable uncertainty for land owners.
[65] Mr Colson says it was clear from the decision that the Environment Court failed to turn its mind to these wider considerations. He submits the limited analysis of the policies in Chapter 24 did not provide a logical support for the conclusion that such activities defaulted to non-complying status.
[66] As this conclusion would have far reaching implications for land owners across the district, Mr Colsen submits the Environment Court needed to expressly consider whether this change was provided for in the PDP, either by way of policy or any other indicator in the PDP and its development history. If that wider contextual approach was taken it would have been concluded that if the planting was not part of a permitted farming activity, it still did not require resource consent because either:
(a)on a proper interpretation of the PDP, landscaping is not a separate activity which attracts its own consent status; or
(b)if landscaping is a separate activity on a proper interpretation, it was never intended to, and does not, attract the default activity status of non-complying activity.
The Judge failed to consider the implications of his approach to interpretation on the wider district
[67] Waterfall Park submits that the implications of the interpretation of the PDP was a relevant and necessary consideration for the Environment Court when determining whether a land use that does not qualify as a permitted activity defaults to being a non-complying activity. It was not open to the Environment Court to close its mind to the absurd or anomalous outcomes of its approach and focus instead on the immediate provisions. By focusing instead on the narrow framework of the provisions in Chapter 24, the Environment Court was at odds with the principles of interpretation of plans laid out in the decisions of Powell and Nanden.20
The Judge made findings for which insufficient evidence existed
[68] Mr Colson submits that in making the finding that it was a deliberate aspect of the design of Chapter 24 of the PDP that any land use that does not meet the primary purpose test or otherwise qualifies as a permitted activity defaults to a non-complying activity, the Environment Court made a finding for which there was insufficient evidence. In particular, the finding that it was a deliberate aspect is not consistent with the evidence before the Environment Court in relation to the development of the PDP.
[69] As a result of all the above errors, Waterfall Park submits the Environment Court erred in applying the provisions of the PDP to the facts of the present case.
20 Powell v Dunedin City Council, above n 14; and Nanden v Wellington City Council, above n 15.
Discussion
[70] The general theme of Waterfall Park’s submissions is that the Environment Court failed to follow the approach to interpretation articulated in Powell and Nanden because it drew conclusions on how the rules should be interpreted that were not supported by the immediate objectives and policies, nor by the broader context of the plan, its history, and the practical consequences of the interpretation.
[71] However, there is no general requirement to go beyond the wording of the rule interpreted in light of its immediate context, including the zone statement, objectives and policies. For example, in Beach Road Preservation Society Inc v Whangarei District Council, Chambers J acknowledged that while there were a number of cases on interpretation of plans which said one could, and should, look to the overall scheme of the plan for assistance where obscurities or ambiguities arose, that was not always required.21 When interpreting the term “residential accommodation” in the case before him he concluded:22
… that at the very least regard must be had to the zone statement, objective and policies and the rest of part 14.4 when interpreting the words “residential accommodation”. [The cases on interpretation] provide authority for looking far beyond Part 14.4. In this particular case, one does not need to go further.
Thus, as a general observation, if the language of the rule is clear and it is consistent with the objectives and policies of the zone which the rule relates to, I do not consider a decisionmaker is necessarily required to go further. Bearing that in mind, I turn now to the specific submissions advanced by Waterfall Park.
Did the Environment Court err in finding that the PDP intended careful scrutiny and control of undertaking day to day land uses and activities?
[72] I accept, as Mr Doesburg for the Council argued, that in reaching the conclusion that the PDP intended careful scrutiny and control of day-to-day land use activities, the Environment Court followed the approach to interpretation which was endorsed in Powell. Rather than attempting to ascertain the meaning of the relevant rule in a vacuum, the Judge identified it was important to consider the rules in light of
21 Beach Road Preservation Society Inc v Whangarei District Council [2001] NZAR 483 (HC).
22 At [33].
the express purpose of the WBRAZ23 and in the context of the related objectives and policies.24 At issue is whether those considerations supported the Environment Court’s conclusions and whether any of the other matters raised by Mr Colson should have been considered and, if so, whether they would have warranted a different conclusion.
[73] As the respondents submit, the presumption in s 9(3) of the RMA does not assist with the question of interpretation. The real issue is whether the rule permits the activity. Section 9(3) applies only if that conclusion is reached.
[74] I reject the submission there is no language in the objectives, policies or rules of the PDP to support the Environment Court’s conclusion that the WBRAZ contemplated careful scrutiny and control of activities. That conclusion was clearly available to the Environment Court. The overriding objective for the WBRAZ is that landscape character and visual amenity values in the Wakatipu Basin are maintained or enhanced. Mr Colson submitted that some of the specific policies relied on were not directly applicable to the issue in dispute. For example, policy 24.2.1.4 sought to control landscape elements which were associated with buildings in the rural amenity zone rather than landscape elements generally. However, I see that policy as supporting the conclusion that the PDP intended to exercise a high level of control over activities in the zone to achieve the stated objective. Another policy, policy 24.2.1.6, provides for farming, commercial, community, recreation, tourism related and other non-residential activities that rely on the rural land resource, subject to maintaining or enhancing landscape character and visual amenity values. In my view, by requiring most of those activities to obtain consent, the PDP will be able to impose conditions on them to maintain or enhance the landscape character and visual amenity values. For farming, which is a permitted activity, that is achieved by limiting activities that will alter landscape character and visual amenity values to those which are directly connected to the farming activity.
23 Hadley, above n 1, at [44].
24 At [43].
[75] Given the WBRAZ is described as a “distinctive and high amenity value landscape”,25 and careful attention has been paid to identifying the specific landscape character units within it, it was clearly open to the Environment Court to hold that the objectives and policies of Chapter 24 supported its view that a high level of control was being exercised over activities within the Wakatipu Basin.
[76] The alleged anomalies between the rules for the different zones, whereby activities which are permitted in some zones default to non-complying in others, on the Environment Court’s interpretation, do not give rise to concerns. For example, the differing treatment of “recreational activity”, which is permitted in some zones, but is non-complying in the WBRAZ, logically supports the Environment Court’s approach. Recreation associated with residential activities in the zone is permitted by virtue of the definition of “residential activity”.26 Commercial recreational activity involving up to 12 people is also expressly permitted. However, a commercial recreational activity involving more than 12 people in any one group is not listed and defaults to a non-complying activity which requires resource consent. As the Council submits, this reflects the Council’s desire to carefully manage such activities in order to maintain and enhance landscape character and visual amenity values.
[77] Mr Colson also pointed out that in certain residential zones, “residential units” are permitted but not “residential activity”. However, as the Council explained in submissions, the definition of a “residential unit” means “a residential activity which consists of a single self contained household unit”. Because the definition incorporates the defined term “residential activity”, that definition includes associated recreational activities, and is not an example of the PDP overlooking making provision for this activity. Similarly, the Environment Court implicitly acknowledged, landscaping on a residential section would be encompassed by the definition of residential activity.27
25 See Queenstown Lakes District Council Proposed District Plan 24.1 zone purpose.
26 Residential activity is defined to mean “the use of land and buildings by people for the purpose of permanent residential accommodation, including … recreational activities …”
27 Hadley, above n 1, at [58].
[78] I am satisfied the Environment Court’s conclusion that the PDP intended careful scrutiny and control of day-to-day land uses and activities was reasonably open to it and was not reached through any error of law.
Did the Judge err by failing to consider wider contextual considerations?
[79] In addition to submitting the objectives and policies of Chapter 24 did not support landscaping defaulting to non-complying status, the appellant says the wider context of the PDP supported the conclusion this activity was not intended to default to non-complying and the Judge erred by failing to have regard to these considerations.
[80] However, as already discussed, it is not in every case that the Environment Court needs to go beyond the words of a rule and their immediate context when interpreting them. Where the words of a rule have a tolerably clear meaning on their face, which is supported by the objectives and policies for that particular zone, I do not accept that it is an error in law to fail to have regard to more general considerations. In any event, I consider that even if the wider context had been considered, this would not have supported a different conclusion or overridden the plain meaning of the words relied on.
[81] First, I do not accept the submission that the Environment Court’s interpretation would mean that non-complying activity status would apply to tree planting in over 96.7 per cent of the district. That is, as Mr Doesburg submits, misleading. In reality, in some cases it will be permitted, for example, as a farming activity or as a residential activity. In other cases, resource consent may be required. However, that outcome is not absurd in the context of a plan which is expressly intended to protect landscape character and visual amenity values.
[82] Furthermore, the mere fact that an activity generally requires resource consent to achieve a result that seems sensible is not proof that the rule is absurd. As was said in Powell, where the effect of the rules was that a resource consent was required to establish the most logical access to a proposed development, “… the rule does not
require [an absurd] outcome: rather, it requires that a resource consent be obtained for an access way which contravenes the access rule.”28
[83] The fact that the PDP reverses the position that was in place under the ODP, where planting of trees for amenity purposes was provided for as a permitted activity, does not suggest this is an unintended consequence. It could equally support the Council’s contention that the PDP deliberately provides for activities which are not listed with a relevant activity status in Table 24.1 to be non-complying activities to ensure that unanticipated effects on the landscape do not occur under the PDP. Indeed, the s 32 report for the Rural Zone of the PDP plan makes it clear that the decision to have unspecified activities default to non-complying activity status in the Rural Zones was deliberate. It says:
The proposed structure of the Rural Zone provisions has a more prescriptive framework and focus than the operative District Plan provisions. …
In addition, it is difficult to anticipate every potential activity that may seek to locate in the rural zones and requiring a resource consent for these activities that are not contemplated as a non-complying status directs attention to the objectives and policies of the District Plan to determine whether they are appropriate and meet the purpose of the RMA.
[84] Once the Environment Court had considered the plain meaning of r 24.4.1 and decided this was supported by the objectives and policies of the WBRAZ, there was no reason to broaden the enquiry to consider the entire PDP, nor the ODP. However, the deliberate exclusion of amenity planting as a permitted activity points to an intentional change in the level of control to be exerted in this district.
[85] The upshot of Waterfall Park’s submissions on this issue is that either landscaping is not a separate activity which attracts its own consent status or, if it is, it was never intended to attract the default activity status of being non-complying. However, I consider the PDP anticipates landscaping to be an activity which is generally subject to controls. For example, Chapter 6, which sets out the PDP’s purpose and policies for managing Landscape and Rural Character, envisages that landscape planting will be controlled by the PDP where appropriate. For example, Policy 6.3.4.5 seeks to “[e]nsure incremental changes from subdivision and
28 Powell v Dunedin City Council, above n 14, at [42].
development do not degrade landscape character, or important views as a result of activities associated with mitigation of the visual effects of proposed development such as screen planting, mounding and earthworks”. It also states, at Policy 6.3.4.9 that in the Wakatipu Basin the PDP seeks to “avoid planting and screening, particularly along roads and boundaries that would degrade openness where such openness is an important part of its landscape character.” It follows that it cannot be said that, on a proper interpretation of the PDP, the Council did not intend landscaping to be an activity which would be subject to controls.
Did the Judge fail to consider the implications of his approach on areas outside the Wakatipu Basin?
[86] Waterfall Park was critical of the Environment Court focusing only on the specific objectives and policies of Chapter 24 when interpreting r 24.4.1, and closing its mind to the wider implications of this interpretation, including “consequential absurdity” and inconsistency with wider provisions and policies in the PDP and RMA.
[87] However, this criticism has largely been addressed in the above discussion. The Environment Court’s interpretation gives certainty to land owners and the general public. While it requires a resource consent to be obtained for planting that is not for the primary purpose of farming activities, that is not an absurd outcome in the context of a plan which seeks to maintain or enhance landscape character and visual amenity values particularly in the valued rural zone of the Wakatipu Basin. Furthermore, if the appellant was correct, that would be directly contrary to policy 6.3.4.9 in the PDP set out in [85] above. The Judge did not err in failing to consider the wider implications of his approach.
Did the Judge make findings for which insufficient evidence existed?
[88] The submission that the Environment Court was wrong to find the default to non-complying status was a “deliberate aspect of the design” does not identify an error of law. As already discussed, this conclusion was clearly available having regard to the provisions of Chapter 24 and is supported by the purpose and policies found in Chapter 6 of the PDP for managing landscape and rural character. Given the clear
foundation which was available for the Judge’s interpretation of the PDP rule, I do not consider the Environment Court erred in making this finding
Conclusion
[89] I do not consider Waterfall Park has identified any error of law in the decision of the Environment Court. It was clearly open to the Environment Court to decide the planting was not a “farming activity” as defined. It was also open to the Environment Court to conclude that a land use, such as the planting, that does not qualify as a permitted activity, defaults to being a non-complying activity.
[90]The appeal is dismissed.
[91] Costs are reserved. My preliminary view is that Waterfall Park is liable to pay costs on a 2B basis. If costs can not be agreed memoranda can be filed as follows:
(a)any application for costs is to be filed and served within 20 working days of the date of this decision;
(b)any memorandum in response is to be filed and served within a further 10 working days of receipt of the application;
(c)any reply is to be filed and served within five working days of receipt of the response; and
(d)costs memoranda should not exceed five pages.
Solicitors:
Winton Property Ltd, Auckland
Gallaway Cook Allan Lawyers, Dunedin WynnWilliams, Auckland
Copy To:
M G Colson QC, Barrister, Wellington
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