Ayrburn Farm Estates Ltd v Queenstown Lakes District Council Hc Inv

• Jurisdiction: New Zealand
• Judge: Hon Justice French
• Judgment Date: 20 April 2012
• Neutral Citation: [2012] NZHC 735
• Docket Number: CIV-2011-425-000262
• Court: High Court
• Date: 20 April 2012

Under the Resource Management Act 1991

In the Matter of an appeal under s 299 of the Act

BETWEEN

Ayrburn Farm Estates Limited J Hadley and R Lucas as Trustees of the Millhouse Trust G & G Davis K Edwards S Figenshow Norman Gray D Mcarthur M Mccleery E Parkin J & M Taylor

Appellants

and

Queenstown Lakes District Council

Respondent

[2012] NZHC 735

CIV-2011-425-000262

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

Appeal under s299 Resource Management Act 1991 (appeal on question of law) from an Environment Court decision upholding a resource consent for the construction of a Catholic primary school in a rural residential zone — purpose of zone under District Plan was to provide for low density residential areas, amenity values identified as privacy and quietness — whether school would have an adverse impact on privacy, noise and traffic — whether Environment Court had made a material error by not expressly referring to Part 2 Resource Management Act.

Counsel:

JDK Gardner-Hopkins and E L Matheson for Appellant

M A Ray and for Respondent

P Cavanagh QC and R Ibbotson for Roman Catholic Bishop of the Diocese of Dunedin

RESERVED JUDGMENT OF Hon Justice French

Introduction

1 Several residents of Speargrass Flat Road, near Arrowtown, are strongly opposed to a school being established in their neighbourhood. The Queenstown Lakes District Council, however, granted the school a resource consent, and that consent was upheld on appeal by the Environment Court. 1

2 The residents now seek to appeal the decision of the Environment Court under s 299 of the Resource Management Act 1991.

3 Unlike the appeal to the Environment Court, an appeal to this Court under s 299 does not involve a rehearing of the merits of the school's application. It has a much more narrow focus. In order to succeed, the residents must satisfy me that the decision of the Environment Court contains material error(s) of law.

4 The key issue raised by the appeal is whether the Environment Court failed to have regard to relevant matters within its discretion.

Factual background

5 St Joseph's Primary School currently operates from a site in Queenstown. The school has outgrown its Queenstown site, and for several years has been looking to find another site on which to establish a satellite campus.

6 In early 2006, the Roman Catholic Bishop of the Diocese of Dunedin, who has oversight of the school, purchased a 2.5945 hectare property at 478 Speargrass Flat Road. The property comprised land and a lodge which the church authorities proposed converting into a campus for 60 pupils.

7 The lodge was, however, destroyed by fire in July 2006.

8 This resulted in the school redesigning its proposal. The salient features of the redesigned proposal were as follows:

• i) 112-pupil school.

• ii) To include a 480 sq m classroom block and a 220 sq m administration block.

• iii) 43 carparks to be provided, together with playing fields and a hard court area.

• iv) St Joseph's School to remain as one entity, but operate from

• two sites.

• v) Speargrass campus to provide for Years 1 to 6 pupils from Arrowtown, Lake Hayes and the outer Wakatipu basin. Years 1 to 6 pupils from Queenstown and all Years 7 to 8 pupils continuing to attend the Queenstown site.

9 Under the Queenstown Lakes District Plan, the site is zoned Rural Residential, with a visitor accommodation overlay. It adjoins the Rural General zone to the north and south, with the Rural Residential zone to the east and west.

10 The existing development in the area is predominantly rural residential sized properties with residential buildings and associated lifestyle activity. The property at issue is one of the few larger sized sites remaining in the zone. Outside of the Rural Residential zones, more extensive pastural farming occurs in the Rural General zone.

11 Section 8.2 of Volume 1A of the Plan states that the purpose of the Rural Residential zone is to provide for low density residential opportunities as an alternative to the suburban living areas in the district. It goes on to state that the Rural Residential zone is anticipated to be characterised by low density residential areas with ample open space, landscaping and with minimal adverse environmental effects experienced by residents. Rural activities are said to be not likely to remain a major use of land in the Rural Residential zone, or a necessary part of the rural residential environment.

12 In s 8.1, which contains “issues, objectives and policies”, amenity and environmental values in Rural Zones are identified as including privacy, rural outlook, spaciousness, ease of access, clean air and, at times, quietness.

13 The Bishop's application for a resource consent for the redesigned proposal attracted significant opposition from local residents. They were concerned at the introduction of a non-rural, non-residential use into their neighbourhood, and believed a school of that size was not compatible with the rural residential environment they valued. The primary concerns were loss of privacy, noise and traffic issues.

14 Following a hearing before Council Hearing Commissioners, the consent was however granted. The residents then appealed to the Environment Court. There was a second hearing, which lasted seven days.

The decision of the Environment Court

15 One of the key issues at the hearing was the correct classification of the proposed activity.

16 The Plan classifies activities according to their status under the Act. The status classifications are permitted, controlled, restricted-discretionary, discretionary, non-complying and prohibited.

17 The scheme of the rural living area rules under the Plan is that any activity which complies with the relevant Zone and Site Standards and is not listed as controlled, discretionary, non-complying or prohibited, is a permitted activity. If an unlisted activity fails to meet all the relevant Zone Standards, it is to be classified as a non-complying activity. If the activity complies with all the Zone Standards but breaches one or more of the Site Standards, its classification is restricted-discretionary.

18 In the Rural Residential zone there is a very limited range of permitted activities. Generally, construction of buildings including residential units is a controlled activity.

19 As for schools, there is no specific mention of schools in the Rural Residential zone. Accordingly, the activity status of the proposed St Joseph's School fell to be determined by reference to the relevant Site and Zone Standards.

20 The residents contended that the proposed school did not comply with the Zone Standards. This was rejected by the Court. However, while finding there was compliance with all the Zone Standards, the Court also found that the proposal failed to comply with two of the relevant Site Standards. That meant the correct classification was restricted-discretionary.

21 The two Site Standards which the proposal was found to breach were:

• • Rule 8.2.4.1(v) “Nature and Scale of Activities”: — which limits non-residential activities in the zone to a maximum gross floor area of 40m2; and

• • Rule 8.2.4.1(x) “Earthworks” — which imposes a limit of 100m3 per site per 12 month period, and a maximum area of bare soil exposure (where the average depth is greater than O.5m) to 200m2 per 12 month period.

22 Having found that the correct activity status was restricted-discretionary, the Environment Court then turned to consider and evaluate the restricted-discretionary assessment matters listed in the Plan relating to earthworks and “nature and scale of activities”. The Court structured its analysis under the headings ‘Scale of Buildings and Activities’, ‘Noise’, ‘Landscape and Visual Impact’ and ‘Traffic’, its key findings being that:

• • The scale of the proposed buildings was compatible with the surrounding area.

• • The design, scale and external appearance of the buildings and associated works were appropriate.

• • The privacy of the immediate neighbours would not be adversely affected.

• • The noise effects would be no more than minor.

• • The proposed earth mounds would not have an adverse effect on the amenity of the surrounding sites.

• • The adverse traffic effects arising from the proposal were able to be mitigated

• sufficiently.

23 The Court concluded:

[120] We have found that a school, along with a wide range of community-type activities, are provided for in the Rural Residential zone as restricted-discretionary activities. A key assessment matter set out in the Plan relates to the extent to which the scale of the activity associated with the proposed school differs from the scale of activities in the surrounding area. We recognise that the proposed school will result in an activity that is different from the existing use of the subject site and to existing development in the surrounding area, which at present comprises single household units on small lifestyle properties. It was clear that many of the neighbours do not want any change to the existing situation… However our assessment requires a consideration of the effects of the proposal in terms of the Plan and not just by comparison with the existing development. To a degree, the neighbours currently have an artificially low level of activity in their environment because this large site has been vacant since the previous lodge was burnt down in 2006.

[121] In assessing the matter of scale we accept that there will be a larger number of people at the school than at the previous lodge, and also more than is likely to be associated with six residential dwellings. However we consider that the relatively large size of the site is significant in that the proposal is able to accommodate all of the functional requirements of the school and also adequate mitigation including noise attenuation and landscaping. We also consider that the activity patterns and...