Young v Queenstown Lakes District Council
[2014] NZHC 414
•7 March 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2013-412-401 [2014] NZHC 414
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal under s 299 of the Act
BETWEEN
JUDITH MARY YOUNG, WILLIAM ROSS YOUNG AND STEPHEN JOHN SYMINGTON BROWN
AS TRUSTEES OF THE ROSS AND JUDITH YOUNG FAMILY TRUST Appellants
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Respondent
STAUFENBERG FAMILY TRUST NO 2
Second RespondentJ A AND M C FEINT Third Respondents
Hearing: 4 February 2013 (Heard at Invercargill) Appearances:
J T Caunter and B Irving for Appellants
M A Ray for First Respondent
K Feint and A Ritchie for Second and Third RespondentsJudgment:
7 March 2014
JUDGMENT OF MANDER J
YOUNG & ORS v QUEENSTOWN LAKES DISTRICT COUNCIL & ORS [2014] NZHC 414 [7 March 2014]
Contents
Factual background ................................................................................................[4] Environment Court decision ................................................................................ [11] Grounds of appeal ................................................................................................[16] Scope of appeal under s 299.................................................................................[18] Permitted baseline ................................................................................................[21] Operative District Plan provisions .......................................................................[42] Roads as urban edges and urban development [44] Rural structures, recreation, visitor activity and future development [63] Visual amenity landscapes and structures [70] Land use [78] Energy efficiency [80] Reference to section 1.5.3 Status of Activities [86] Conditions ............................................................................................................[89] Consideration of alternatives................................................................................[93] Failure to explain reason for disagreeing with decision of first respondent ........[98] Result.................................................................................................................. [111] Costs ................................................................................................................... [112]
[1] This is an appeal from a majority decision of the Environment Court overturning a decision of the Queenstown Lakes District Hearing Commissioners granting consent to establish and operate an entertainment complex in the Rural General zone adjacent to Wanaka airport in the Queenstown Lakes District.
[2] The appeal is brought by the developer pursuant to s 299 of the Resource Management Act 1991 which provides for an appeal on a question of law to this Court against any decision of the Environment Court. The appeal is opposed by the second and third respondents who are residents of nearby Mt Barker Road. The first respondent, the Queenstown Lakes District Council adopted a neutral position in the Environment Court and continued to take the same stance on appeal to this Court. Mr Ray for the first respondent filed written submissions and was heard on discrete issues to assist the Court.
[3] A s 299 appeal does not involve a rehearing of the merits of the developers’ application. It is of much narrower compass and requires the appellants to identify an error of law in the Environment Court decision and satisfy this Court that such error was material in the sense that it materially affected the result of the Environment Court’s decision.1
Factual background
[4] In September 2010 the Ross and Judith Young Family Trust applied to the Queenstown Lakes District Council to build a recreational entertainment complex on land at the corner of the Wanaka-Luggate Highway (State Highway 6) and Mt Barker Road, opposite the Wanaka airport. The complex would cater for such activities as bumper boats, go-kart racing, ten pin bowling and a cafe with associated reception, administration offices, and toilet facilities.
[5] The flat property is 20.09 hectares in size although the site to be developed is a 3.6 hectare triangle in the corner of the intersection between State Highway 6 and Mt Barker Road. The main building would be 1214 square metres in area with a
maximum height of 5.3 metres. An ancillary building housing a workshop would be
1 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC).
298.8 m2 in size. The entertainment complex would be accessed from Mt Barker Road approximately 100 metres south west of the intersection with State Highway 6. A row of mature exotic conifers lines the site’s boundary with the State Highway.
[6] The site itself is to be extensively landscaped with mounding (up to 1.5 metres in height) and tree, native scrub and native grass planting. The complex is proposed to be open to the public seven days per week between 10 am and 10 pm during the summer season closing earlier at 8 pm between April and September inclusive. A condition volunteered by the appellants was that part of the site nearest the second and third respondents’ properties (some 83% of the 20 hectare property) would be used only for farming purposes. A covenant would be registered to that effect.
[7] The property and those neighbouring it are part of a terrace on the Upper Clutha Basin described as the Wanaka Flats. The site is within a visual amenity landscape which stretches across the plain to the surrounding mountains which are recognised as outstanding natural landscapes in the operative district plan. Rising out of the plain some 3.6 kilometres to the west is Mt Barker which is regarded as an outstanding natural feature. Beyond and to the west is the Cardrona Range and somewhat closer to the south west are the Criffel and Pisa Ranges. There are presently no buildings on the site which is in rough pasture nor any flora or fauna of significance. Surrounding rural uses include cattle grazing, tree and stock food cropping. There are accompanying shelterbelts and farm buildings on neighbouring properties.
[8] Directly across from the site on the other side of State Highway 6 is a toy and transport museum which sits between the Wanaka airport to the south west and a special zone, the 23 hectare Windermere Rural Visitor zone to the north east. The Wanaka Airport comprises a number of buildings and other non-rural features (roads, carparks, runways). Permitted activities in the Windermere zone include activities for which consent has been sought in this case. Across from the intersection of Mt Barker Road and State Highway 6 and on the same side of the highway as the proposed development is a shooting range, “Have-a-Shot”.
[9] The land including the site is zoned Rural General under the district plan. Activities are generally permitted in the zone provided they comply with all site and zone standards and are not on the lists of prohibited, non-complying, discretionary, or controlled activities. There is no listed prohibited activity relevant to the application. The proposed activities, however, do not comply with various standards and so resource consents are required. For the purposes of the appeal to the Environment Court the majority of the Court proceeded on the basis that the development was discretionary rather than non-complying. The minority thought it safer to treat the proposal as a whole as non-complying.
[10] The application for consent was publicly notified in October 2010 and the application was heard by Commissioners in early March the following year. The Commissioners on behalf of the Queenstown Lakes District Council granted consent subject to stringent and detailed conditions in May 2011. The Council’s decision was then appealed to the Environment Court by two of the original submitters, the second and third respondents. After some interlocutory argument regarding the role of the council in the appeal, the Environment Court heard the appeal in July 2012, before issuing its decision in May 2013.
Environment Court decision
[11] Two Environment Court Commissioners, representing the majority of the Court upheld the appeal. They decided that the commercialisation of rural land in an “important arrival zone”2 was not consistent with the thrust of the relevant district plan’s objectives and supporting policy designed to manage the landscape amenity of the Wanaka environs. The majority concluded that the effects of the proposal on the environment would be substantive and that the proposal did not meet the purposes of
the Act. In his minority decision, the Environment Judge, Judge Jackson, took the view that the purpose of the Resource Management Act would be better achieved by granting consent. He would have confirmed the Commissioner’s decision on behalf of the Council and granted the resource consent on the same conditions. In deciding
as he did the Judge observed that the result came down to whether the proposal
2 Landscape expert witnesses agreed that the site was located at “an important and main entrance site to Wanaka”. Staufenberg Family Trust No. 2 [2012] NZ EnvC 100 [Majority decision] at [9] and [78]; Staufenberg Family Trust No. 2 [2012] NZ EnvC 100 [Minority decision] at [30].
effectively used the site to meet the needs of the district’s residents and visitors while avoiding, remedying or mitigating adverse effects on the amenities of the area and the surrounding landscape.
[12] The essential issue on which the Court divided was the proposed site’s relationship with the Wanaka Airport complex opposite the site of the proposed development on the other side of State Highway 6. The Wanaka Airport is itself subject to a specific designation in the operative district plan and is in close proximity to the Windermere Rural Visitor zone. The Court was agreed that the character of the Wanaka Airport and associated development was commercial or
industrial in nature.3 Judge Jackson and the Environment Court Commissioners also
agreed that the answer to whether the proposal would be compatible with the character of the surrounding environment depended upon “whether one takes a view that the proposal fits in with the airport and related industrial/commercial complex or with the rural environment”.4
[13] The majority regarded the site as being on a “highly sensitive corner” at the apex created by State Highway 6 and Mt Barker Road. They found as a matter of fact that “the roads separate the commercial developments from the visual amenity landscape” and that “the pastoral and commercial land uses are clearly separated by road corridors”.5 The proposed development was located in an “open rural working landscape” and was “contiguous with the surrounding rural properties it shares boundaries with across the flats”, which in the opinion of the majority “appears to be seamlessly part of that rural visual amenity landscape”.6 In the majority’s opinion the proposed site provided relief from the industrial character of the airport on the other side of State Highway 6.7 To allow the proposal to break the clear edge provided by both Mt Barker Road and particularly State Highway 6 would considerably weaken the existing boundary between commercial activity and the
Rural General zone.8 The majority concluded that the “size, scale and location” of
3 Majority decision at [79]-[80]; Minority decision at [47].
4 Majority decision at [64]; Minority decision at [83].
5 Majority decision at [9], [77]-[78] and[94].
6 At [57] and [74].
7 At [80].
8 At [142].
the proposed development was inappropriate as representing a “commercialisation of rural land in an important arrival zone”.9
[14] Judge Jackson, on the other hand, reached contrasting findings in terms of the relationship of the proposed site with its surrounding environment. The minority found that the site was “ringed” to 300 degrees by other properties with non-rural activities.10 Based on this assessment, the Judge concluded that since more than 300 degrees of the land has commercial development on it or is zoned for non-rural activity the proposal was “largely compatible with the character of the local environment and its buildings”.11 The proposed development represented “infill”
within an existing node of development in the opinion of Judge Jackson.12
[15] As a result of this disparate assessment of the evidence, the Environment Court was split as to the appropriate outcome of the appeal. This resulted in a majority decision being issued by the Court with the effect that the consent granted by the hearing Commissioners was set aside.
Grounds of appeal
[16] The appellants in their notice of appeal (as amended) alleged seven errors of law:
(1)That the Environment Court in its majority decision erred in its application of the permitted baseline, leading it to make further errors in its s 104 assessment of the application.
(2)The Environment Court in its majority decision erred in law in determining the appeal without duly considering all aspects of the existing environment, including the future environment, which forms part of the statutory assessment under s 104 of the Act, and in making
determinations that were unsupported by the evidence.
9 At [149]-[150].
10 Minority decision at [31] and [85].
11 At [85].
12 At [150].
(3)The Environment Court in its majority decision erred in several aspects of its interpretation of the provisions of the operative district plan, making findings based on irrelevant matters, disregarding relevant matters and disregarding relevant evidence and submissions.
(4)The Environment Court in its majority decision erred in law in deciding that the proposal could not be granted consent on the grounds that the conditions imposed by the consent authority “could be changed and because the constraints have an (alleged) economic effect”.
(5)The Environment Court in its majority decision erred in law in determining that the appellants’ proposal was more appropriately located on alternative sites or within other zones.
(6)The Environment Court in its majority decision erred in law in relying on the s 42A report and in failing to explain its reasons for disagreeing with the first respondent’s decision to grant resource consent.
(7)The Environment Court in its majority decision erred in law by making findings on environmental effects that were unsupported by evidence regarding:
(a) noise effects generated by the proposal and whether the district plan standards would be breached;
(b)the effects of lighting and whether any effects could be addressed through consent conditions;
(c) traffic movements on the roading networks and the impact of roading on the amenity of Mt Barker Road residents;
(d) the effect of signage for the development.
[17] At the hearing, the appellants did not pursue the second alleged error which alleged a failure to identify and duly consider the existing environment (including the future environment); nor did it pursue the seventh alleged error relating to findings made by the Environment Court regarding the effects of the development on the environment.
Scope of appeal under s 299
[18] The principles to be applied in approaching an appeal under s 299 of the Resource Management Act 1991 are succinctly summarised by French J in Ayrburn Farm Estates Ltd v Queenstown Lakes District Council:13
Scope of an appeal under s 299
[33] An appeal to this Court under s 299 is an appeal limited to questions of law.
[34] Appellate intervention is therefore only justified if the Environment
Court can be shown to have:
i) applied a wrong legal test; or,
ii) come to a conclusion without evidence or one to which on the evidence it could not reasonably have come; or,
iii) taken into account matters which it should not have taken into account; or,
iv) failed to take into account matters which it should have taken into account.
[35] The question of the weight to be given relevant considerations is for the Environment Court alone and is not for reconsideration by the High Court as a point of law.
[36] Further, not only must there have been an error of law, the error must have been a "material" error, in the sense it materially affected the result of the Environment Court's decision.
(Footnotes omitted)
[19] The Court will not engage in a re-examination of the merits of the case under the guise of a question of law,14 nor will it delve into questions of planning and
13 Ayrburn Farm Estates Ltd v Queenstown Lakes District Council [2012] NZHC 735.
14 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (FCA).
resource management policy.15 The weight to be attached to policy questions and evidence before it is for the Tribunal to determine, and is not able to be reconsidered as a point of law.16
[20] Wylie J in Guardians of Paku Bay Association Inc v Waikato Regional Council17 summarised the deference to be shown to the specialist jurisdiction of the Environment Court and its expertise in determining planning questions:18
[33] 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 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.
Permitted baseline
[21] The appellants submit that the Environment Court erred in its assessment of the permitted baseline and at best conflated their consideration of that concept with an assessment of the future environment. In particular, it was submitted that the Court erroneously included residential housing as forming part of the permitted baseline.
[22] The appellants identified that the construction of any buildings in the Rural General zone is not a permitted activity. Rule 5.3.3.2(i) requires controlled activity consent for construction of a new farm building while r 5.3.3.3(i) provides that in respect of any other building such construction is a discretionary activity. This means that no buildings are within the baseline for the General Rural zone and, so it was submitted, is an indication that no buildings are deemed more appropriate than
others in the zone. All buildings are to be assessed equally in relation to their effects.
15 Russell v Manukau City Council [1996] NZRMA 35 (HC).
16 Stark v Auckland City Council [1994] 3 NZLR 614 (HC); Moriarty v North Shore City Council
[1994] NZRMA 433 (HC).
17 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC).
18 At [33].
[23] It was further submitted that the majority failed to recognise that the proposal’s signage, noise and lighting fell within the permitted baseline and that it failed to consider the level of planting that could occur on site as of right. It was submitted that permanent sheltered planting could prevent views into the site from both State Highway 6 and Mt Barker Road. The appellants submitted that in assessing the permitted baseline these zone standards should have been included. Reference was also made to the levels of fencing and earthworks permitted and that outdoor commercial recreation activity for less than five persons similarly so. In not appreciating the nature and scale of the effects that could have occurred on the appellants’ site as of right it was submitted the majority failed to consider the application against the proper background and that this error was fundamental to the majority’s decision.
[24] The Court of Appeal in Far North District Council v Te Rūnanga-Ā-Iwi O Ngāti Kahu19 observed that in the Resource Management Act context, the concepts of the future environment and the permitted baseline are different:20
[91] ... Both are discrete statutory considerations. The environment refers to a state of affairs which a consent authority must determine and take into account when assessing the effects of allowing an activity; by contrast, the permitted baseline provides the authority with an optional means of measuring – or more appropriately excluding – adverse effects of that activity which would otherwise be inherent in the proposal.
e
Investments Ltd v Auckland Regional Council21 noted the exclusionary nature of the permitted baseline test stating:22
[92] As this Court pointed out in Hawthorn:
[27] ... the “permitted baseline” is simply an analytical tool that
excludes from consideration certain effects of developments on the
site that is subject to resource consent application. It is not to be applied for the purpose of ascertaining the future state of the
environment beyond the site.
[25]
Earli
r in its judgment the Court of Appeal in referring to Arrigato
19 Far North District Council v Te Rūnanga-Ā-Iwi O Ngāti Kahu [2013] NZCA 221 [Far North
District Council].
20 At [91]-[92].
21 Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323 (CA).
22 Far North District Council, above n 19 at [88].
In essence, as this Court observed in Arrigato:
[29] Thus the permitted baseline ... is the existing environment overlaid with such relevant activity ... as is permitted by the plan. Thus, if the activity permitted by the plan will create some adverse effect on the environment, that adverse effect does not count in the ss 104 and 105 assessments. It is part of the permitted baseline in the sense that it is deemed to be already affecting the environment or, if you like, it is not a relevant adverse effect. The consequence is that only other or further adverse effects emanating from the proposal under consideration are brought to account.
(Footnotes omitted)
[26] The Court of Appeal went on to observe that a consent authority under s
104(2) of the Act may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect. The statutory purpose is to vest a consent authority with a discretion to ignore the permitted baseline where previously it had been a mandatory consideration.23
[27] The Environment Court, notwithstanding initially identifying that the activity status for the development of a residential unit in the Rural General zone would be discretionary, appears to have proceeded on the basis that the development of houses on the site, “set well off the road” would have been an outcome within the permitted baseline.24 In comparison it was their opinion that substantial farm buildings,
glasshouses and forestry were unlikely to be constructed (or planted) in the area.25
[28] The majority therefore appear to have proceeded on the basis that some housing of a particular nature is likely to be granted resource consents and that in contrast to the proposed development the placement of a residential house on the site would still preserve the open vistas from State Highway 6. It is not clear whether this analysis forms part of its assessment of the permitted baseline or the future state of the environment.
[29] Counsel for the second and third respondents, Ms Feint, acknowledged that the majority’s discussion of the permitted baseline is not easy to follow and that
there has been some conflating of the future environment with the permitted
23 At [89].
24 Majority decision at [120].
25 At [121].
baseline. It is submitted however that any such error was not a material influence on the majority’s decision to decline consent. Further, it is submitted that such error assisted the appellants. It is apparent that the majority in assessing the development against the permitted baseline wrongly assumed that buildings could be constructed as of right.
[30] In response to that proposition the appellants argue that the majority’s reference to the type of residential development that might be built in the future was speculative and need not necessarily be of the type assumed by the majority in its judgment.26 It was against that type of residential build that the appellants’ development was unfavourably compared.
[31] I accept that the majority’s analysis, be it perceived as a discussion of the permitted baseline or the future environment, was misconceived. Ultimately however, if the correct approach was to be taken, neither parties’ case would be advanced to any degree relative to the other. While as already noted the majority considered the strictly controlled type of residential development that may occur in the area favourably in comparison with the appellants’ commercial project, the fact remains that no building could be constructed as of right. Relying on that being the position, the appellants argue that it follows that no type of building for which consent is sought for construction in the Rural General zone ought to be considered more preferable than another. While that may be true as an initial starting proposition, the weight that can be given to that submission diminishes when consideration is given to the factors the consent authority would necessarily examine when assessing the suitability of a building in the environment in question.
[32] The identification of the majority’s apparent confusion and inconsistent analysis of this aspect of the baseline, while capable of amounting to an error of law, is in my assessment of no material effect. It is apparent that the permitted baseline assessment was of only limited assistance in the context of this case. The majority’s consideration of the development of residential housing, albeit on its analysis subject to a rigorous resource consent process, either as part of its understanding of the
baseline or in its consideration of the future environment, could not realistically be
26 See [136].
viewed as having a material influence on its assessment of the development which focussed on the size, nature and scale of the proposal. Arguably the acceptance of the construction of houses on the site or within the wider surrounding area was to the appellants’ advantage.
[33] Having regard to the matters in issue in this case, the deployment of the baseline method as a means of measuring the adverse effects of the project was, as I have already observed, of only limited utility. The impact of the identified error is of minimal if any material consequence. This is illustrated by the minority decision where the permitted baseline was assessed as allowing inter alia farming, limited forestry, recreation activities, and small scale commercial recreational activities (in
the present context less than five people operating go-karts).27 Judge Jackson noted
that the only relevant potential adverse effects that could arise from the permitted baseline would be the effect on rural amenity in terms of noise, the potential for earthworks to change the form of land over time, and temporary noise and dust effects.28
[34] While the district plan does not appear to favour the construction of any particular structure ahead of any other in the Rural General zone it is difficult to see how an error favouring construction of buildings albeit assumed to be of a less obtrusive size assists the appellants. The developer is still left with the need to bridge the difference between a zone where building is not permitted without consent and the size of the complex it seeks to construct on the particular site in the Rural General zone within a visual amenity landscape.
[35] A further matter the appellants argue should have been taken into account was the screening effect of the tree planting. It was submitted that permitted shelter planting could prevent views onto the site from both State Highway 6 and Mt Barker Road and that this together with signage, noise, levels of fencing and earthworks should have been taken into account as part of the baseline. In response the second and third respondent submit that this potential effect should not be taken into account
because of 5.4.2.2(3) of the plan. This provides that any existing vegetation to be
27 Minority decision at [70].
28 At [70].
planted after 2002 which obstructs or substantially interferes with the views of the landscape (in which the proposed development is set) from roads or other public places should not be considered as part of the permitted baseline.
[36] The appellants’ response to that submission was that the effect of 5.4.2.2(3) is to unlawfully fetter the discretion of the consent authority in relation to its own district plan. The appellants submit that the rules as they relate to planting are set out in the site standard 5.3.5.1(vii) and there is no rule preventing screening by tree planting which would require a consent. For 5.4.2.2(3) as an assessment matter to have such an effect would render it ultra vires the district plan’s own rules. The argument is to the effect that if vegetation which was to have such an impact on views was to be so regulated then the site standards should be explicit in that regard.
[37] As previously stated, the effect of 5.4.2.2(3) is that vegetation which obstructs or substantially interferes with views of the landscape (in which the proposed development is set) from roads or other public places is not to be considered as part of the permitted baseline. It is apparent from 5.4.2.2(1)(a) and (b) and 5.4.2.2(3) that this interpretation of the permitted baseline is to be considered a “guiding principle” to be applied when considering matters of assessment. That required approach does not amount to the creation of a de facto rule governing what is or is not a site standard. Rather, it requires the consent authority when opting to apply the baseline as a means of assessing the adverse effects of an activity to include it in that assessment.
[38] Section 104(2) of the Act expressly allows a consent authority for the purpose of considering an application for resource consent to disregard an adverse effect if the plan permits an activity with such an effect. It is a matter of discretion for the consent authority. In this case the consent authority has directed that where use is made of the baseline analysis, the adverse effect of vegetation which obstructs or substantially interferes with views of the landscape ought not to be disregarded, notwithstanding such vegetation otherwise being permitted. Such an adverse effect is not to be excluded and therefore should not be considered part of the permitted baseline. The effect of the “guiding principle” is on a particular method of analysis not on what the plan prescribes as a site standard.
[39] The second and third respondents sought leave to file further submissions on this issue together with copies of the Environment Court’s decision Paradise Rural Estates Ltd v Queenstown Lakes District Council,29 which was referred to in oral argument. The appellant is not agreeable to these supplementary submissions being received by the Court. As the matter was the subject of argument before me on the hearing of the appeal and as the appellants do not consent, leave is declined. There can however be no objection to the Court receiving a copy of the Environment Court’s decision which was referred to orally in the course of submissions.
[40] The appellants criticise the majority for failing to consider signage, noise and lighting as part of the permitted baseline assessment. While the majority did not refer to these matters in the part of its decision dealing with its discussion of the permitted baseline, the majority earlier in its decision acknowledged that both noise and lighting created no real issue. The majority held that the noise of the go-karts would not create significant amenity effects and would comply with the noise limits in the district plan. While lighting would be seen from elevated sites such as the third respondents’ property, from the state highway and possibly from Mr Barker Road, the majority accepted that the conditions of consent would ensure that these effects while adverse would be at the low end of the spectrum. While some further criticisms based on changes to the night time ambience were noted by the majority, it
is apparent that issues of noise and lighting were not considered as problematic.30 In
terms of signage, the majority expressed a lack of clarity in the evidence as to what was planned despite specific questioning on the topic.31
[41] The significance of any perceived omission on the part of the majority has to be considered against the effect of the proposal as a whole. It is apparent that the extent to which the development complied with the existing baseline in terms of signs, noise and lighting was very much secondary to the nature and scale of the development and in particular the size of the buildings to be constructed, the visual
prominence of the development and its effect on the visual amenity landscape.
29 Paradise Rural Estates Ltd v Queenstown Lakes District Council EC Christchurch C140/05, 3
October 2005; Paradise Rural Estates Ltd v Queenstown Lakes District Council EC Christchurch C47/06, 20 April 2006.
30 Majority decision at [109].
31 At [58].
Pursuant to s 104(2) the Environment Court had a discretion as to whether to take those adverse effects permitted by the district plan into account. If the majority’s perceived failure to do so was capable of being construed as an error of law, I am satisfied such error was not of sufficient materiality to bear upon the validity of the process by which the majority reached its decision or indeed the decision itself.
Operative District Plan provisions
[42] The second broad heading under which challenge was made of the majority decision was that the Court considered irrelevant matters, and failed to consider relevant matters in respect of the operative district plan. The appellants contend that the majority erred in failing to take account of objectives and policies that supported the proposal and/or were directly relevant to its assessment. It was submitted that the majority in some instances misinterpreted or misapplied the objective or policy. It was submitted that the majority decision illustrated an illegitimate “cherry picking” approach.
[43] In considering this part of the appellants’ argument, I am mindful of the need to bear in mind that failure to refer to all potentially relevant policies or statements contained in the district plain does not necessarily affect the integrity of the Court’s decision. In Progressive Enterprises v North Shore City Council, Venning J
observed:32
[17] It is settled that the Environment Court is not required to expressly set out and construe all allegedly relevant provisions of the planning documents to satisfy the requirement that it give genuine attention and thought to them. A thematic approach is acceptable: Auckland Regional Council v Living Earth Limited [2008] NZCA 349 at [45]; Rodney District Council v Gould [2006] NZRMA 217 at [32].
Roads as urban edges and urban development
[44] The appellants submit that the majority erred by taking into account Urban
Development, of the district plan in support of a finding that roads serve as urban edges or defining boundaries.33 This error, it was submitted, underpinned the
32 Progressive Enterprises v North Shore City Council HC Auckland CIV-2008-485-002584, 25
February 2009 at [17].
33 Policy 6 Urban Development, 4.2.5.
majority’s conclusion that the development should not proceed because it would intrude into a different part of the rural/visual amenity landscape.
[45] The parts of the policy referred to by the majority in its decision read as follows:
6. Urban development
...
(b) To discourage urban subdivision and development in the other outstanding natural landscape (and features) and in the visual amenity landscapes of the district.
...
(d) To avoid remedy and mitigate the adverse effects of urban subdivision and development in visual amenity landscapes by avoiding sprawling subdivision and development along roads.
[46] The majority considered this policy to be a “clear directive” to discourage urban development in visual amenity landscapes and to avoid sprawl along roads. The majority placed emphasis on the fact that the appellants’ proposal was sited within the apex of two roads.
[47] The district plan defines “urban development”:34
Any development/activity within any zone other than the rural zones, including any development/activity which in terms of its characteristics (such as density) and its effects (apart from bulk and location) could be established as of right in any such zone; or any activity within an urban boundary as shown on the district planning maps.
This definition expressly excludes any development/activity within the “rural zones”. It includes any activity within an urban boundary as shown on the district planning maps.
[48] The appellants submit that policy 6. Urban Development, can have no application because it only has application to urban development which by definition
does not include any development/activity within a rural zone nor is it an activity
34 Operative District Plan (ODP), Definitions at D-13.
within an urban boundary. The appellants submit that as a matter of law the majority erred in taking parts of that policy into account in assessing the development against the objective of the plan as it relates to the landscape and visual amenity.
[49] The appellants are critical of the emphasis that the majority places on the intersecting roads as providing a “defining edge” between commercial development on one side of the road and the Rural General zone on the other. The majority considered that the road provided edges which separated the commercial activity from rural based activities which were in character with the surrounding farming activities on open land contiguous to the site. The appellants submit that the majority was wrong to apply the policy in support of its view that the roads served as urban or defining edges. The appellants contend that consideration of such “edges” was relevant only to urban areas or zones with urban boundaries and that the policy was only relevant to the consideration of urban issues inside urban boundaries.
[50] As a separate and presumably alternative submission the appellants submitted that urban style development already exists in the environment, referring to the Wanaka airport, associated museums and the Have-a-Shot premises. The Windermere zone will also provide for future urban style development in the immediate area. It was submitted that those “factors” are relevant to the assessment of the urban development provisions. The appellants submit that the Urban Development policy cannot be interpreted as prohibiting urban style development in the subject environment when there are already activities, designations and zones which provide for urban style development to occur in this part of the district. The majority, so it was argued, were wrong to conclude that the development could not meet either paragraphs (b) or (d) of the policy Urban Development “because of the physical site parameters,” referring to the location of the site within the apex of the two roads.
[51] Finally under this heading the appellants in their written submissions observed that the assessment matters relevant to commercial recreation activities in the Rural General zone do not include reference to a consideration of whether such activities could be undertaken in an urban area. This is to be contrasted with the assessment matters relevant to the Windermere zone which requires an assessment of
alternatives in urban areas. The Rural General zone does not provide for such a comparison. This issue of the assessment of alternative sites is considered further later in the judgment, under the heading “Consideration of alternatives”.35 However, as became apparent during the course of the oral argument, this submission was largely abandoned, or at least superseded by the appellants’ amended submission on this topic of alternatives.
[52] The definition of “urban development” contained in the district plan would appear to require exclusion of policy 6 Urban Development as a relevant policy to consider when assessing a development in the Rural General zone. It therefore follows that the appellants have identified an error of law on the part of the majority when they took into account a policy that strictly did not have application to an activity in the Rural General zone. The materiality of the error however needs to be considered against the other objectives and policies of the district plan, the significance of the identified error having regard to both parties acceptance that existing development in the immediate area constituted “urban style” development in the Rural General zone, and the core considerations that were central to the Environment Court’s assessment of whether the development should be allowed on the proposed site.
[53] The majority in considering the district plan referred to one of the stipulated district-wide issues as it relates to landscape and visual amenity. The majority noted under “General Landscape Issues” the following statement:36
Likewise the views from roads within the district assume increasing importance as they give visual access to the mountains, lakes, and landscape that, in turn, are integral to the economic wellbeing of the district, and provide a sense of place to both visitors and residents.
[54] The majority observed the need to bear that statement in mind as it reviewed the objectives and policies of the district plan.37 The majority then referred to the objective of the plan as it related to the maintenance of the landscape and visual
amenity:38
35 See [93] and [96] of judgment.
36 Majority decision at [46]; ODP 4.2.4(1) General Landscape Issues.
37 Majority decision at [46].
38 At [47]; ODP 4.2.5 Objective and Policies.
Subdivision, use and development being undertaken in the district in a manner which avoids, remedies or mitigates adverse effects on landscape and visual amenities values.
[55] The majority expressly noted the policy for visual amenity landscapes which provides:39
4. Visual Amenity Landscapes
(a) To avoid, remedy or mitigate the adverse effects of subdivision and development on the visual amenity landscapes which are:
highly visible from public places and other places which are frequented by members of the public generally (except any trail as defined in this Plan); and
visible from public roads.
[56] The majority then referred to policy 6 Urban Development which is the subject of complaint.40
[57] It is apparent that leaving the Urban Development policy to one side, the district plan places an emphasis on the importance of providing visual access to the landscape and the need to avoid, remedy or mitigate adverse effects of development on the visual amenity landscapes which are visible from places frequented by the public, including from public roads. The question then arises as to whether the apparently illegitimate reference to the policy relating to urban development and its reference to the need to avoid, remedy and mitigate adverse effects of development in visual amenity landscapes by avoiding development along roads made any material difference to the Court’s analysis.
[58] In my view any error on the part of the majority in placing reliance on the policy was eclipsed by the fact that the type of consideration required by the policy, in general terms, the need to avoid remedy or mitigate adverse effects of development on the visual amenity landscape, was already a matter required to be
given central focus by the decision-maker. There were other objectives and policies
39 Majority decision at [50]. ODP 4.2.5(4) Visual Amenity Landscapes.
40 Majority decision at [54].
of the district plan which substantively required the same type of consideration as that contemplated by paragraphs (b) and (d) of the policy.
[59] The policy on urban development does not refer to roads being used as defining edges or boundaries to prevent urban sprawl. The appellants rely upon the suspect reference by the majority to the policy to impugn their rationale for not allowing the proposed development to spread across the road. The majority however found as a matter of fact that State Highway 6 and Mt Barker Road provided edges which separated existing commercial activity and the rural based activities contemplated by the Rural General zone. While the policy was interpreted as a “clear directive to discourage urban development in visual amenity landscapes and to
avoid sprawl along roads”,41 other parts of the district plan sought to similarly avoid,
remedy and mitigate such adverse effects arising from development in such landscapes. Anticipated environmental results described in the district plan as being sought to be achieved from such policies included the strong management of the visual effects of development within visual amenity landscapes and the enhancement
of their natural character.42
[60] It was uncontroversial that the appellants’ development on the proposed site would represent the continuation or spread of urban style development of the type already present in the environment. The difference between the parties was the stark factual contest as to whether the appellants’ development was to be viewed as “infill” of an already existing commercial urban style “node” of development represented by the airport and associated development; or alternatively as the unacceptable spreading of this urban style development into the flat and open pastoral landscape of the Rural General zone, presently separated from such
development by the intersecting roads of State Highway 6 and Mt Barker Road.43
[61] The Urban Development policy was not the sole platform for that contest. Insofar as the policy discouraged development in visual amenity landscapes along roads, other statements in the district plan were to similar effect in furtherance of its
objective to maintain the landscape and visual amenity. The majority was not reliant
41 Majority decision at [55].
42 ODP, 4.26(iii) and (iv).
43 See majority decision at [56].
on the policy in their emphasis of the importance of the existing edges provided by the intersecting roads. Furthermore, while the definition of “urban development” strictly prevented the application of the policy to the Rural General zone, the considerations embodied in paragraphs (b) and (d) were clearly of a type relevant to an assessment of the proposed continuation of “urban style” development in the area.
[62] As an observation it is somewhat disingenuous for the appellants to object to the majority’s consideration of the urban development policy because it only applies to “urban development” as that term is defined in the district plan, yet pray in aid of its case the presence of “urban style development” already present within the environment. In that regard while irrelevant to the identification of an error of law by the majority, it is to be noted that the minority also considered that the policy relating as it does to urban development, provided relevant guidance to the decision
maker.44 Furthermore there was no bar to the consideration of the policy relating to
urban edges, which included specific reference to the avoidance of sprawling development along roads by clearly identifying the edges of “urban areas”; a policy also referred to by Judge Jackson in his decision.45 The majority did not refer to this policy but the potential application of the Urban Edges policy tends to illustrate how the majority’s erroneous reference to the Urban Development policy was one of form rather than substance. The policy is excluded because it uses the defined term
“urban development”, whereas another policy that refers to “urban areas” can legitimately be taken into account. The proposed development is one that all parties were agreed is of an “urban style”.
Rural structures, recreation, visitor activity and future development
[63] The appellants submitted that the majority “omitted to record any determination of the relevance” of a number of activities that have the potential to impact adversely on the landscape and visual amenity landscapes, namely Rural
Structures46 and Recreation and Visitor Activity:47
44 Minority decision at [67].
45 At [188].
46 ODP 4.2.3(ii).
47 ODP 4.2.3(ix).
(ii) Rural Structures – the visual impact of structures is increased when their form and colour contrast with the surroundings and when they are located in visually sensitive areas such as on skylines, ridges, hills, prominent slopes, or shorelines.
...
(ix) Recreation and Visitor Activity – the visual landscape has made this district a “special experience” for thousands of visitors and the permanent residents. Tourism and recreation have become central to the prosperity of the district and this is likely to continue bringing increased pressure and demands on the landscape.
[64] The appellants further submit that the majority misinterpreted policy
4.2.5(1)(a), (b) and (c) relating to future development.48 This policy addresses areas vulnerable to degradation, encourages development to occur in areas with greater potential to absorb change without detracting from landscape and visual amenity values, and seeks to ensure that future development harmonises with local topography and ecological systems as far as possible.
[65] The failure to refer to 4.2.3(ii) Rural Structures is without merit. This consideration does not assist the appellants. To the contrary, a consideration of this activity could only have negatively impacted on its case. Similarly 4.2.3(ix) Recreation and Visitor Activity is to be considered in the context of the visual landscape which makes the district a “special experience” for those seeking tourism and recreation in the area. It has little, if any, application to the generic recreation activities of the type which form part of the appellants’ proposal.
[66] The appellants refer to the consideration of policy 4.2.5(1)(a), (b) and (c) in the minority decision. In relation to sub-policy 4.2.5(1)(a) Judge Jackson accepted that the applicants’ property is in an area with landscape and visual amenities which are vulnerable to degradation49 but since the site is within a visual amenity landscape with a more specific set of policies it is preferable to consider the proposal under that policy, namely 4.2.5(4). This is what the majority did.
[67] In relation to sub-policy 4.2.5(1)(b) which encourages development to occur in areas with greater potential to absorb change without detracting from landscape
48 ODP 4.2.5(1)(a), (b) and (c).
49 Minority decision at [143]-[144].
and visual amenity values, Judge Jackson described the proposal as “infill”50 and as a result accepted on the facts an interpretation that as degradation had already occurred in the area there was potential to absorb further change without detracting from the landscape visual amenity values. It is clear from the majority’s decision that they did not consider, as a matter of fact, that the proposal was “infill” of an existing “node” of development. To the contrary, the majority considered the development to be sited “on a highly sensitive corner” which provided relief from
the industrial character of the airport and associated commercial operations.51 As the
relevance and consideration of this policy turned on an assessment of the facts the omission on the part of the majority to specifically consider the policy is in the circumstances of this case of little, if any, consequence and could not amount to an error of law.
[68] In relation to the third sub-policy about future development, 4.2.5(1)(c), similar considerations apply. The approach to the issue posed by the sub-policy is dictated by the respective fact finder’s view of the facts. For the minority it was that the site was “nearly surrounded by commercial development”,52 whereas the majority’s view was that the undeveloped area between State Highway 6 and Mt Barker Road provided relief from the existing development around the Wanaka airport.53
[69] The appellants’ reliance upon the omission by the majority to refer to these Future Development policies is technical. The view to be taken in respect of them is dependent upon the fact finder’s assessment of the evidence pertaining to the property in question and the local area, as is illustrated by Judge Jackson’s approach in his minority decision. The majority’s omission to refer to those sub-policies cannot constitute an error of law. If such omission was capable of being so considered such error had no bearing on the majority’s decision, particularly when
regard is had to their factual assessment of the evidence.
50 At [144], [150] and [178].
51 Majority decision at [80] and [94].
52 Minority decision at [181].
53 Majority decision at [80].
Visual amenity landscapes and structures54
[70] The appellants allege that the majority erred in its assessment of the policy as it relates to visual amenity landscapes to mitigate loss or enhance natural character by appropriate planting and landscaping.55 It is submitted that the majority in its decision overlooked the fact that 83% of the site would be left in its current state, that this would be more than could be expected from residential development of the site, and that in reply submissions to the Environment Court, the appellants had offered to reduce the size of and gravel the carpark. Such a submission however does not identify any error of law. The majority in any case acknowledged the
planting proposed around the development to minimise adverse effects, and the enhancement of the biodiversity attributes of the site by planting indigenous species. They however took the view that the natural character of the site was diminished due to the “site coverage of the buildings and the hard landscaping involved for the carpark, accessway and outdoor activities”.56 It was open to the majority to find that the scale of the buildings and hard landscape areas reduced the natural character even with screening. There was no error of law.
[71] It is also readily apparent from their decision that the majority appreciated that the 3.6 hectare site to be developed at the northern end of the 20.09 hectare parcel of land represented only approximately 17% of the land in question.57 That their assessment of the effect of that part of the proposal did not accord with the appellants’ view does not give rise to an error of law.
[72] Policy 4.2.5.9(a) and (b) Structures provides as follows:
9. Structures
To preserve the visual coherence of:
(a) outstanding natural landscapes and features and visual amenity landscapes by:
encouraging structures which are in harmony with the line and form of the landscape;
54 ODP 4.2.5(4) and (9).
55 ODP 4.2.5.4(b).
56 Majority decision at [52] and [54].
57 At [3].
avoiding, remedying or mitigating any adverse effects of structures on the skyline, ridges and prominent slopes and hilltops;
encouraging the colour of buildings and structures to complement the dominant colours in the landscape;
encouraging placement of structures in locations where they are in harmony with the landscape;
promoting the use of local, natural materials in construction.
(b) visual amenity landscapes
by screening structures from roads and other public places by vegetation whenever possible to maintain and enhance the naturalness of the environment; and
...
[73] The appellants submit that the majority failed to address the considerations set out in policy 4.2.5.9(a) regarding the preservation of visual coherence of outstanding natural features and visual amenity landscapes. The policy seeks to avoid, remedy or mitigate adverse effects of structures on the skyline, ridges and prominent slopes and hilltops.
[74] The appellants are correct that the majority did not expressly refer to policy
4.2.5.9(a) in its decision. That identified omission, however, does not advance matters for the appellants. Indeed it is plain from a consideration of the policy that any reference to it by the majority would have detracted from the merits of the proposal. It is apparent from the majority’s finding that the Court did not consider the proposed structures as being in harmony with the line and form of the landscape, nor that that placement of such structures in this particular location would be in harmony with the landscape. The proposed remedying or mitigating of the adverse
effects of the structures were considered insufficient by the majority.58
[75] In any event the considerations set out in policy 4.2.5.9(a) are largely embodied in the policy relating to land use:
17. Land use
58 At [60] and [61].
To encourage land use in a manner which minimises adverse effects on the open character and visual coherence of the landscape.
[76] In considering that policy the majority took the view that the site is presently of an open character and the visual coherence is high “as it seamlessly blends with the surrounding land”.59 The majority accepted evidence that the proposed structures and bunding would disrupt the present open vista.60 The majority acknowledged that vegetation over time may hide the buildings in part but would not
avoid, mitigate or remedy the change to the open character and coherence of the site.61 It is unrealistic for the appellants to submit that had the Court explicitly referred to policy 4.2.5.9(a) the policy may have potentially influenced the Court’s conclusion that the proposal failed to meet policies relevant to enhancing and protecting the rural landscape and in particular the visual amenity landscape.
[77] The appellants’ criticism of the majority’s assessment of policy 4.2.5.9(b) does not give rise to any issue of law. The appellants’ submission is based on the majority’s reference in its decision that “for the most part natural processes occurring on site will be interrupted by the built environment”.62 There was no evidence before the Court of natural processes occurring on site or of such processes being disrupted. In my view the appellants are correct that the policy is directed at
the maintenance and enhancement of the naturalness of the environment. While the majority’s wording is clumsy, I would not interpret the majority’s observation as anything but a reference to the open land in its present bucolic state. There is no evidence of “processes” occurring on site, however, what the majority sought to convey by that description is apparent when placed in context. I agree with the respondents’ submission that the majority when making that observation were referring to policy 4.2.5.9(b) and acknowledging that although screening would increase the “treed” vegetation it would be insufficient to prevent the “naturalness”
of the pastoral landscape from being interrupted by the built environment.
59 At [60].
60 At [60].
61 At [60].
62 At [58].
Land use
[78] Policy 4.2.5(17) relating to land use is set out above at [75]. The appellants submit that the majority erred in concluding that “the site will be extensively used for the development so there is no opportunity for setback or absorption”.63 The appellants argue that the statement is incorrect having regard to the undisputed evidence that the development will only absorb 17% of the site with 83% covenanted against further development.
[79] The appellants’ submission amounts to a challenge on the majority’s findings on the evidence. It does not amount to an error of law. The development always complied with the Rural General zone’s setback rules, however, as was recognised by the minority in its decision, greater setbacks as encouraged by policy 4.2.5.9(c) was not achieved by the proposal. Further, the percentage of the site which would actually be used by the development was readily apparent. The development however was to be situated in the triangle of land formed by the adjacent intersecting roads, and while only 17% of the 20.09 hectare site was to be developed, the proposal would occupy approximately 3.6 hectares with the main building occupying a footprint of some 1,214 square metres without taking account of the associated developments including the go-kart track requiring earthworks covering an area of some 4,357 square metres. Ultimately it was a matter of assessment for the Court as to the degree to which the development would affect the open character and coherence of the site.
Energy efficiency
[80] The majority were critical of the appellants’ proposal for not putting before the Court any renewable energy source for the building design. This was considered a shortcoming in the proposal.64 The majority referred to the district plan’s energy policies, and in particular policies 4.5.3 (Objective 1-1.1) and 4.5.3 (Objective 1-1.2) which promote compact urban forms and the compact location of community, commercial, service and industrial activities within urban areas, to reduce the length
and need for vehicle trips and increase the use of public or shared transport. It is
63 At [61].
64 At [66].
apparent that these policies had been the subject of discussion and evidence apparently without challenge as to relevancy. The majority expressed concern in their decision that these energy policies and their anticipated environmental outcomes had not been considered or acted upon by the appellants in the proposed development.65
[81] In critiquing the evidence of one of the appellants’ witnesses, the majority observed that in their view the policies were directed at locating activities in urban areas, “thereby compacting the urban form so that vehicle trips are reduced”. Because the proposal was not located in an urban centre the majority considered that
the policies were not met by the proposal.66
[82] The appellants submit that the majority erred in its interpretation and application of the policy because the development was to be located outside an urban centre and the energy efficiency policies referred to by the majority had no application. In particular the district plan’s definitions of the activities described in policy 4.5.3 (Objective 1.2), namely community, commercial, service and industrial activities exclude recreational activity and could not therefore be applied to the proposal.
[83] I agree that sub-policy 1.2 is by definition irrelevant to the development in question. The application of sub-policy 1.1 is less restricted. Consideration of energy efficiency is a district-wide issue and the objective set out under 4.5.3, is of general application, namely “the conservation and efficient use of energy and the use
of renewable energy sources”.67 Arguably the promotion of “urban forms” of which
the surrounding commercial development is considered to be in the nature of, carries with it the anticipated result that the need for and distance of vehicle trips will be minimised. The majority considered that as the proposal was not located in an urban centre the objective of the policy was not met. If that was a legitimate application of the policy it is apparent that the majority gave little weight to the counter-
consideration relating to the efficiencies to be obtained from the proposal being
65 At [66].
66 At [67].
67 ODP, 4.5.3, Objective 1.
grouped with other surrounding commercial urban development of a similar type, although some synergies with the related activities nearby was acknowledged.68
[84] I agree with the appellants’ submission that these policies provide little, if any, support to the suggestion that this type of development should be located in an urban area. Sub-policy 1.2 by definition had no application, and the relevance of the energy efficiency policy as a whole is barely discernible. In my view the majority did err as a matter of law by inverting the effect of policies designed to have application within urban areas as counting against the location of the proposal outside an urban centre.
[85] The question then arises as to the materiality of the error. The consideration of this question of energy efficiency counted against the appellants in the majority’s analysis. I must however be satisfied that the error materially affected the result of the Environment Court’s decision.69 I do not read the majority’s decision as being greatly influenced by questions of energy efficiency. It was a peripheral consideration of minor importance at best. The majority considered there to be far more fundamental obstacles to the siting of the appellants’ development at the proposed location. I am satisfied that what errors were made by the majority in their
interpretation and application of policy 4.5.3 had little bearing, if any, on the
Environment Court’s ultimate decision.
Reference to section 1.5.3 Status of Activities
[86] Towards the conclusion of the majority’s decision the following observation
is made:70
We note that Section 1.5.3 of the District Plan states activities which have been afforded discretionary activities status in Visual Amenity Landscapes do so because they are inappropriate in many locations. It appears to us, as we have detailed, that the proposal failed to meet the requirements of development in this landscape.
68 Majority decision at [68].
69 Manos v Waitakere City Council [1996] NZRMA 145 (CA); Countdown Properties (Northlands) Ltd v Dunedin City Council, above n1.
70 Majority decision at [147].
[87] The appellants argue, in reliance upon Glentarn Group Ltd v Queenstown Lakes District Council,71 that s 1.5.3 is an “introductory element only”, and must give way to the provisions of the district plan and the Act, and that the section is irrelevant.
[88] The appellants’ submission does not explain how the statement by the majority gives rise to any error of law. The observation made by the majority comes after the articulation of the substantive reasons for their decision, indeed the same paragraph refers back to their earlier reasoning as to why the proposal fails to meet the requirements of development in this visual amenity landscape. The majority’s statement is merely a comment that the proposed development provides an example of why this type of activity has been afforded discretionary status, namely because of its potential inappropriateness in many locations with visual amenity landscapes. The majority had already reached its conclusion that the development was inappropriate in the proposed location.
Conditions
[89] Under this heading the appellants raised a number of points regarding the majority’s treatment and assessment of conditions intended to remedy or mitigate the adverse effects of the proposal. It is apparent that the appellants volunteered and the Queenstown Lakes District Council imposed a number of conditions addressing various environmental effects. The appellants submitted that the Environment Court’s function was to assess the environmental effects caused by the proposal and to then assess the conditions proposed, but that it failed to do this. Secondly, that in declining to grant consent, the majority expressed concerns about the viability of conditions that “micro managed” the activity and may have potential economic consequences for the viability of the enterprise which could have the downstream
effect of requiring conditions to be changed or varied in the future.72
[90] It was submitted that a consent authority is not entitled to judge the business viability of a proposal, citing New Zealand Rail Ltd v Marlborough District
71 Glentarn Group Ltd v Queenstown Lakes District Council EnvC Christchurch, CO10/2009, 18
February 2009.
72 Majority decision at [146].
Council,73 and that should an application seek changes to conditions such application would be subject to the procedural requirements of s 127 of the Act. Reference was made in that regard to the condition in the voluntary covenant which was specifically amended to require any variation or cancellation to be notified to the second and third respondents.
[91] I do not accept that the majority failed to factor in the proposed conditions when assessing the proposal. The majority made specific reference to the rationale of the Queenstown Lakes Commissioners in granting consent, namely that they were satisfied that the suite of conditions attaching to the consent would minimise
potential adverse effects.74 Illustrative of this were specific controls relating to
noise, the intensity of activity on-site and the hours of operation. What however was of overriding concern to the majority, which in their view conditions were unable to mitigate, was the physical size and scale of the proposed development.75
[92] The majority observed that there were risks associated with the long term viability of constraints which could have an economic effect on the enterprise.76 The majority’s remarks do not give rise to an error of law. The majority did not embark on any analysis of the economic viability of the proposed development but commented on the long term effectiveness of a suite of stringent conditions the subject of possible change, to effectively address what they considered were fundamental adverse effects of the development on the landscape. This consideration of the long term viability and therefore effectiveness of conditions to
manage the adverse effects, provided some support for the majority’s view that the proposal would be better placed where it was not so constrained by its impact on the environment.77 I do not consider the majority’s analysis in that regard as being
illegitimate or giving rise to any error of law.
73 New Zealand Rail Ltd v Marlborough District Council [1993] 2 NZRMA 449 at 460.
74 Majority decision at [145]
75 At [146].
76 At [146].
77 At [146].
Consideration of alternatives
[93] Consideration of alternative sites for a development is a legitimate consideration pursuant to s 104(1)(c) of the Act if such a factor is considered relevant and reasonably necessary to determine an application. Provided the consideration of alternative sites is not “pushed too far” it is a legitimate analysis for the Environment Court to undertake on the evidence before it. 78 The appellants did not contend that the majority in its approach to this consideration had breached these principles.
[94] While the appellants abandoned their written submission based upon cl 1(b) of the Fourth Schedule to the Act, a fresh submission was made orally under this heading. The appellants argued that while it was legitimate for a decision-maker to make reference to alternative sites, such a comparative analysis was limited to alternative options within the Rural General zone. The appellants relied upon the three step process involved in the application of assessment criteria set out at 5.4.2.1 of the district plan, and in particular step 3 which states that once the Council has determined which landscape category the proposed development falls within, each
resource consent application will then be considered inter alia against:79
... a general assessment of the frequency with which appropriate sites for development will be found in the locality.
(Emphasis added)
The reference to “locality” it was submitted should be read as a reference to the applicable zone in which the proposal is sited. The appellants submitted that the question in respect of alternative sites was not whether the proposed site was the best in the Upper Clutha area but within the Rural General zone. The appellants submit the majority erred by considering alternative locations that were other than within the Rural General zone. Ms Caunter for the appellants referred to the minority’s
analysis of alternative sites in support of this proposition. I however do not read
78 Meridian Energy Ltd v Central Otago District Council [2011] 1 NZLR 482 at [51], [123] and
[148](d)-(e).
79 ODP, 5.4.2.1, Step 3 Application of the Assessment Matters.
Judge Jackson’s consideration of this issue as requiring the Court to be limited only to alternative sites within the Rural General zone.80
[95] Judge Jackson noted the requirement in step 3 to assess the frequency with which appropriate sites for development will be found in the locality. He then went on to consider that issue. That analysis included a consideration of the Rural Visitor zone and the Three Parks zone, and a comparison of the relative merits of siting the development within those zones in comparison with the present proposal which on
his analysis “fits into the airport node”.81 If the assessment required of step 3 was
limited to a consideration of alternative sites in the particular zone which governs the proposal, the district plan would have expressly used the term “zone”.
[96] Both the majority and Judge Jackson reviewed the competing considerations attaching to alternative sites in the locality. Evidence from an expert witness called on behalf of the appellants considered that the location the subject of the application was the best site in the Upper Clutha for the proposed development. It was in response to that evidence that the majority made reference to the Three Parks zone and the Windermere Rural Visitor zone, noting that “the Plan (1.5.3(iii)) requires a
general assessment of the frequency of appropriate sites in the locality”.82 As
previously noted, Judge Jackson undertook a similar assessment, albeit one that resulted in a contrasting appraisal of alternatives.
[97] The majority assessed the merits of the site in its own right and I am satisfied did not give undue emphasis or relevance to a comparison with other alternatives. It properly was a matter taken into account by the majority as a matter of weight. I am satisfied that the majority’s consideration of alternatives was appropriate and they
did not err in their approach to this part of their assessment.
80 Minority decision at [200]-[204].
81 At [200]-[204].
82 Majority decision at [125].
Failure to explain reason for disagreeing with decision of first respondent
[98] Section 290A of the Act provides:
290AEnvironment Court to have regard to decision that is subject of appeal or inquiry
In determining an appeal or inquiry, the Environment Court must have regard to the decision that is the subject of the appeal or inquiry.
[99] Counsel were agreed that the principles to be applied in giving effect to s 290A are those outlined by Venning J in Man O’War Station Ltd v Auckland Regional Council:83
... The decision the subject of the appeal must be given genuine attention and thought and such weight as is considered appropriate. While the Environment Court is ultimately entitled to conclude the decision is not of sufficient significance either alone or together with other matters to outweigh other contrary considerations which it must take into account in accordance with its statutory functions, it must nevertheless carry out that exercise.
[100] After considering the observation by the Environment Court itself in H B Land Protection Society Inc v Hastings District Council84, Venning J continued:85
[67] I accept that s 290A does not expressly require the Environment Court to give reasons should it depart from a decision on appeal but, as a matter of practice, the requirement to give genuine attention and thought to such a decision would usually require an explanation to be given should the Environment Court depart from the Council decision.
[101] In reliance on Man O’War Station, the appellants submitted that the phrase “have regard to” in s 290A requires more than a cursory glance at the council decision, but rather genuine attention and thought is required. If there are fundamental differences between a council decision and the conclusions of the Environment Court those differences must be explained. The appellants submitted that the majority had come to different findings to the Hearing Commissioners on almost all aspects of the assessment but did not outline why it disagreed with the
council decision, other than a passing reference to the activity being more suitably
83 Man O’War Station Ltd v Auckland Regional Council [2011] NZRMA 235 (HC) at [65].
84 H B Land Protection Society Inc v Hastings District Council EnvC Wellington W57/2009, 28
July 2009, at [7].
85 Man O’War Station Ltd v Auckland Regional Council, above n 83 at [67].
located in another location. Further, the appellants submitted that the reasons for dismissing outright the imposition of conditions to assess environmental effects did “not sit well with a s 290A consideration”.86
[102] The second and third respondents observed that the present case is a far cry from the situation in Man O’War Station, where the Environment Court made only very brief passing reference to the decision of the council, simply acknowledging the decision as a matter of record in the introductory paragraphs of its decision.
[103] In comparison, the majority in the present case made specific reference to s 290A:
[143] We are required under the Act to have regard to the decision under appeal. Our conclusion does not align with that decision but reflects the 42A Report prepared on behalf of the Council which declined on the grounds that:
[a] Adverse effects on the environment would be more than minor due to the nature, scale and location of building and associated activities which effects could not be appropriately avoided or mitigated;
[b] The proposal was inconsistent with the key objectives and policies of the ODP; and
[c] The proposal was not in keeping with the purpose and principles of the Section 91 of the Act.
[144] Although our assessment has not been predicated on a non- complying basis but rather discretionary the issues before us were the same.
[145] The Commissioners granted consent because they were satisfied that the stringent suite of conditions developed would minimise potential adverse effects. Illustrative of this were:
[a] controls on sound emissions;
[b] reducing the number of go carts and bumper boats that may be operated at any one time from 15 to 10 (33%);
[c] limiting the hours of operation; and
[d] prohibiting the use of an outdoor sound system.
[146] There has however been no reduction in the physical size or scale of the development plan before us. There are risks in micro managing through conditions; conditions may be readily changed because the constraints have
86 Majority decision at [143] and [146].
an economic effect. This suggests to us that this proposal would be better placed where the capacity of the business was not constrained by the effects on the environment.
[104] As with the Man O’War Station case, the majority recorded that consent had been granted by the commissioners for the Queenstown Lakes District Council in the introduction to its decision and in its summary of the proceedings to date.87 Neither reference advances matters.
[105] The majority, in the body of their decision however set out a passage from the commissioners’ decision:88
81. Resource consents do not create precedents in a strict sense ...
82.Ms Caunter noted that the proposed development would “complete” development on the remaining corner of the State Highway 6/Mt Barker Road intersection, and suggested it would therefore “not set a precedent for other development to follow”. We are not sure about that because the more the node of development centred on the airport consolidates, the stronger the argument becomes that this locality is particularly suitable for those non-farming activities anticipated in appropriate places within the Rural General Zone. However, we do not see this as a bad thing – a commercial recreational development on this site, in combination with the other commercial recreational activities within the node will encourage any other commercial recreational developments not based on specific rural resources to co-locate here rather than intrude into other rural localities.
[106] The majority agreed with the commissioners’ findings insofar as they related to precedent but parted company with the commissioners as to whether that is to be considered a positive consequence. I agree with the respondents’ submission that this is an important passage central to the rationale for the Queenstown Lakes District commissioners decision, namely the consolidation of the node of development around the airport where like commercial development already existed. In the following paragraph after the cited passage from the commissioners’ decision the majority articulated its concern that such an occurrence would be a retrograde step. The majority considered that this would allow a breaching of the edge which Mt Barker Road and the state highway presently provides to separate the commercial operations associated with the airport and the Have-a-Shot facility from the
remainder of the Rural General zone, and open the door to future like applications.
87 At [1] and [29].
88 At [140].
This is the central contest as between the parties and records the differing approaches to the issue by the commissioners on the one hand and the majority on the other.89
[107] To be added to that articulation of the commissioners’ viewpoint and the majority’s stance in respect thereof, and where the majority contrast their position with that of the decision from which the appeal lies, is the reference to the s 42A report. It is apparent that the report conveniently reflects and summarises where the majority’s conclusion departs from that of the council. There then follows an acknowledgment of the commissioners’ view that such potential adverse effects could be adequately minimised by the imposition of conditions, examples of which are provided. This was before a statement of the majority’s conclusion that such conditions do not address what was considered by the majority as a fundamental
difficulty for the development, namely its physical size and scale.90
[108] I am satisfied that the majority did have proper regard to the decision of the council and gave it genuine attention as the preceding review of the relevant passages of the majority’s decision illustrates. It is apparent from the majority’s decision why it departed from the approach taken by the commissioners. It was not necessary for the majority to address each of the points on which the majority differed from the decision of the commissioners, nor was it contended otherwise.
[109] The majority gave attention and thought to the approach taken in the decision the subject of the appeal. The appellants’ submission that the majority’s reference to the s 42A report was an irrelevancy fails to recognise that it provides a convenient means of summarising their conclusions which are reflected in that document. It has no greater significance or application than that.
[110] It follows therefore that I am satisfied that the majority did not ignore the opinion of the commissioners whose decision was the subject of the appeal and that genuine attention and thought was given to that decision, albeit that ultimately the majority concluded that they could not agree with it. It follows that I am satisfied
that no error of law arises on the majority’s approach to s 290A.
89 At [141] and [142].
90 At [143]-[146].
Result
[111] As will be apparent, I have concluded that the majority decision of the Environment Court does contain some errors of law. I have not however been persuaded that viewed either individually or collectively they were material errors. The appeal is therefore dismissed.
Costs
[112] It is my expectation that the question of costs ought to be the subject of agreement as between the parties without the need to involve the Court. If however agreement is not possible and I am required to make a decision regarding the award of costs, then the second and third respondent are to file submissions within 15 working days, with submissions from the unsuccessful appellant 10 working days thereafter. I note the parties are agreed that the proceeding can be categorised as a
2B matter.
Solicitors:
Gallaway Cook Allan, Wanaka
Macalister Todd Phillips, Wanaka
Anderson Lloyd, Queenstown
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