Adcock and Devir v Marlborough District Council
| Jurisdiction | New Zealand |
| Judge | Miller J |
| Judgment Date | 24 May 2011 |
| Neutral Citation | [2011] NZHC 513 |
| Docket Number | CIV 2010-406-230 |
| Court | High Court |
| Date | 24 May 2011 |
Under Section 299 of the Resource Management Act 1991
[2011] NZHC 513
CIV 2010-406-230
IN THE HIGH COURT OF NEW ZEALAND
BLENHEIM REGISTRY
Appeal against Environment Court decision upholding respondent's refusal of consent for a subdivision of rural property owned by appellant's parents — refusal based on loss of rural amenity — affected neighbours identified by respondent had given permission — whether Court erred in identifying other affected persons on its own volition — whether Court erred in relying on incomplete approvals to bring into account local effects such as loss of rural character and amenity — whether Court erred in considering effects on future owners.
D J Clark for Appellants
P J Radich and M J Radich for Respondent
JUDGMENT OF Miller J
This appeal is brought on a point of law from a decision of the Environment Court upholding the Marlborough District Council's decision to refuse Mr Adcock and Ms Devir permission to subdivide a rural property owned by Mr Adcock's parents. 1
The proposal would create two lots, one of 7451 m 2 containing the appellants' house, and the other of 7.2 ha, on which is situated the home of the Adcocks senior. Mr Adcock and Ms Devir have already built their house with the Council's consent. However, the subdivision was a non-complying activity, for the land is situated in the Rural 3 zone, in which the minimum lot size is 8 ha.
The first ground of appeal is that there appeared in the Environment Court decision, for the first time and with no prior notice, reference to the appellants having failed to secure the approval of affected neighbours. A consent authority must ignore effects on persons who have approved. Approvals had been obtained, but the Court of its own volition identified two other affected persons, one being a neighbour and the other the Adcocks senior. It then relied on ‘incomplete’ approvals to bring into account local effects, in the form of reverse sensitivity (arising from the introduction of a purely residential use into an agricultural setting) and loss of rural amenity and character. It is common ground that the Court erred, for the appellants had in fact secured the consent of all whom the Council had identified as affected persons, including the neighbour identified by the Court, and no one doubted that the Adcocks senior were in substance parties to the application. The Council says the error matters not, for the Court, like the Council before it, was motivated in substantial part by a desire to preserve the integrity of the Rural 3 zone, which protects productive rural land from subdivision for residential or other non-conforming uses. Local effects upon nearby landowners played little part in the decision.
The second ground of appeal is that the Court attached significance to the loss of specific productive land, being the smaller lot of 7451 m2. The appellants maintain that the smaller lot is unsuited to farming, saying it forms a “narrow finger” in the middle of which sits their house, which was erected under a resource consent issued in 2006. The Court, which customarily hears matters afresh and receives evidence, criticised the absence of expert farming evidence from the appellants. They say that they were denied the opportunity to call such evidence because they had no prior notice that the point was disputed. In its own decision the Council had made no reference to it; further, it was common ground before the Environment Court that the proposal would have at worst minor adverse effects on the environment. The Council accepts that the Environment Court placed greater weight on loss of productive land in this case than had the Council itself, but maintains that the appellants were on notice that the issue was live.
The third ground of appeal is that the Court misdirected itself in law. It was common ground that the effects of the proposal were less than minor, so the proposal could be considered on its merits under s 104 of the Resource Management Act. The appellants say that the Court erred by considering whether the proposal might nonetheless not be in harmony with the objectives and policies of the District Plan and Part 2 of the Act. They say that such approach would almost certainly ensure that a non-complying activity could never be approved. The Council responds that the argument is plainly wrong, for plan and Part 2 provisions are mandatory considerations under s 104.
The fourth ground of appeal is that the Court mischaracterised the smaller lot as “purely residential”. The appellants say it is rural residential for purposes of the District Plan, recognising that its size is such that a subsequent owner might use it for mixed rural and residential purposes. The Council denies that the Court mischaracterised the smaller lot on the evidence before it, and says the finding was in any event purely factual.
It is not in dispute that an appeal may be allowed under s 299 of the Act for procedural error, 2 or where the Environment Court overlooked a relevant matter or took into account a matter which it should not. 3 This Court will not intervene, however, unless the error materially affected the result. 4
Because I have reached the view that the appeal must be allowed on the first ground and the case remitted to the Environment Court for rehearing, I say no more than is necessary about the other grounds.
The parent lot is located at 45 Godfrey Road, Renwick, about 1.4 km west of the Marlborough airport runway. It is flat farm land, used to fatten calves for a butchery which Mr Adcock has taken over from his parents. It is the only remaining
The parent lot is lot 2 DP 7307 on the plan below, which shows the proposed subdivision. Lot 1 DP 2829 is the Gill house, which was subdivided some years ago. It would not receive consent now. The proposed subdivision would create a new lot numbered 1, shown to the east of the Gill property. It is what the appellants describe as a narrow finger of land in the middle of which sits their house and garage, which are also depicted on the plan.
The properties to the east and south of the parent lot are, or were at the relevant times, owned by the Godfrey Road partnership. Kathy Lynskey Wines Ltd is situated across Godfrey Road. About 100 m to the north-east, not shown on the plan, is a house associated with the Fromm winery. A little further away is the Fromm winery itself.
The purpose of the Rural 3 zone under the Proposed Wairau/Awatere Resource Management Plan, was outlined by a Council planner, Mr Heather, in these terms:
… the majority of land within the Plan's area is rurally zoned. The flat lands of the Wairau Plain are the most productive of those rural lands but comprise only about five percent of the rural zoned land, the balance being steep to very steep hill country and mountain land. … Flat, rural land on the Wairau Plain is recognised by the Plan as being particularly valuable and its Rural 3 Zoning is intended to differentiate the Wairau Plain resource from other rural land because of its particular characteristics which make it a valuable and versatile land resource. (Emphasis removed)
As Mr Heather went on to explain, subdivision and use of small lots for principally residential purposes can result in substantial areas of land being covered in buildings and used for non-productive purposes. There is an incentive to subdivide in this way because short-term gains from subdivision exceed those to be made from agricultural activities. For more than 20 years the Council has accordingly maintained a minimum lot size of 8 ha with the dual objectives of maintaining the life-supporting capacity of the Wairau Plains and protecting rural amenity values, in the form of privacy, outlook and spaciousness and, generally, quiet. Although they are normally quiet, rural areas are also the setting for activities which cause occasionally high levels of noise, dust, smell and traffic. These activities are tolerated by other farmers, but residential subdivision leads to complaints from residents about them.
The 8 ha limit is well settled not only through passage of time but also because in 2004 the Environment Court firmly endorsed the Council's desire to maintain the integrity of the zone. Calapashi Holdings Ltd v Marlborough District Council concerned a not dissimilar application to subdivide off 6380 m2 for a house, leaving a balance lot of 15.95 ha, in the Rural 3 zone. 5 In the circumstances, the appellants' application inevitably raised concerns about precedent.
The appellants' house was erected pursuant to a resource consent issued in 2006. Mr Adcock first sought approval to erect a second dwelling, but after discussions with the Council he withdrew that application and instead sought permission to build a “family flat”, which did not require a resource consent under the District Plan. A family flat, however, is not more than 80 m2 in area, while Mr Adcock planned a much larger dwelling. (It is 320 m2 including the separate garage.) A resource consent was needed after all. For reasons which are obscure and which the Environment Court did not find it necessary to inquire much into, Council officers then advised the Council to grant a resource consent for a family flat. The consent recorded, however, that family members of the occupants of the main dwelling were the only persons permitted to occupy the new house.
The Environment Court rejected a submission that the Council was effectively required to authorize the subdivision because it had already authorized the house. The Court...
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