DK Eastgate v Auckland Council (Decision)


Decision No. [2015] NZEnvC 038



Environment Judge M Harland

Environment Commissioner K Edmonds

Environment Commissioner I Buchanan




In The Matter of an appeal under Section 120 of the Resource Management Act 1991 (the Act)

D & Keastgate (ENV-2014-AKL-000085)
Auckland Council

Mr R E Bartlett for D & K Eastgate

Ms D A Riley for Auckland Council

Appeal against a decision declining the appellant's application to subdivide two lots of land (a new native bush lot and a balance lot) as it failed to comply with the District Plan, which required the area of native bush to comprise at least 90% of the native bush lot — the appellant had substantially changed the proposed subdivision plan from the one originally considered by the respondent Council, which sought to introduce expert evidence on the extent of the qualifying native bush — evidence was contrary to that which it had called at first instance — what was the scope of an appeal de novo where a factual matter determined in the original decision had not been raised by the appellants on appeal — whether the respondent could call evidence contrary to the evidence it called in the first instance — whether the respondent could call a new witness on a topic that went beyond the Agreed Statement of Facts — whether the respondent was bound to support or abide by the decision of the Commissioners' factual determination in the first instance (specifically in respect of evidence about the area of qualifying bush) — definition of “native bush”.

The issues were: whether the Council could call evidence contrary to the evidence it called in the first instance; whether the Council could call a new witness on a topic that went beyond the Agreed Statement of Facts; whether the Council was bound to support or abide the decision of the Commissioners factual determination in the first instance (specifically in respect of evidence about the area of qualifying bush) and consideration of the factors outlined in s104 RMA (consideration of applications).

Held: Under s290 RMA (powers of court in regard to appeals and inquiries), appeals were heard de novo. The Court was required to determine the application under appeal afresh on the basis of evidence before it, in light of the circumstances prevailing at the time of its decision and unfettered by what had gone before.

The Court's inquiry was however limited by the scope of the appeal, which was defined by the Notice of Appeal. The key in each case would be the scope of the particular appeal. The Notice of Appeal had been broadly drafted. The whole of the Commissioners' decision was appealed. The Notice of Appeal specifically referred to the native bush lot rule, and it contended that the Commissioners had misapplied not only the rule, but had not decided the application on the basis of the evidence. Because the appeal was against the decision to refuse consent, the Court could consider any evidence relevant to determining whether or not the application complied with the native bush lot rule. However it was still necessary to determine if it should be admitted.

The EC had wide powers to regulate its proceedings. Such proceedings could be conducted without procedural formality where this was consistent with fairness and efficiency pursuant to s269 RMA (Court procedure). The EC had wide powers in relation to the evidence it received under s276 RMA (evidence — receive anything which it considered would assist it to make a decision or recommendation). It was significant that in this case the Council was supporting the decision of its Commissioners to refuse the application for consent, not opposing it (cf: Staufenberg Family Trust v Queenstown Lakes District Council — authority for the proposition that a Council did not have the right to call evidence on appeal that did not support its initial decision, and could only do so if the Court permitted it.).

Even if Staufenberg did apply, the appellants could not complain that the process on appeal has been unfair to them. E had been given the opportunity to see, hear, test and answer evidence with evidence, submissions and by cross-examination. Also, the subdivision plan now proposed was different from that which was put before the Commissioners. There had been a number of changes to E's subdivision plan considered by the Commissioners, and while a degree of change could often be expected, what had occurred here had gone well beyond that.

The Court was being asked to determine a substantially different subdivision plan from that which had been considered and decided by the Commissioners at the first instance hearing, The Council's response to call additional expert evidence on the extent of qualifying native bush had been an appropriate response to the change to the E's application for subdivision.

While the authorities referred to by E seemed to indicate that the Council did not have the right without leave to call evidence on appeal that did not support its initial decision, that situation did not arise in the present case, because the Council on appeal supported the Commissioners' decision to decline the application. If this was wrong, the Council's evidence would have been allowed to have been called as there was no unfairness to the E and there had been a change in circumstances due to the fact that E asked the EC to determine a substantially different subdivision plan from that which was considered by the Commissioners.

The Agreed Statement of Facts formed part of the evidence the EC was required to consider, but it was not a pleading. While the EC was not bound by the traditional rules of evidence that applied to judicial proceedings, the provisions of the Evidence Act 2006 (“EA”) provided a useful starting point. Section 7 EA (fundamental principle that relevant evidence admissible) outlined the fundamental principle that all relevant evidence was admissible unless there was a reason for excluding it, and that evidence was relevant if it had a tendency to prove or disprove anything that was of consequence to the determination of the proceeding.

Under s25 EA (admissibility of expert opinion evidence), expert evidence had to be substantially helpful before it was admitted. The expert evidence was substantially helpful in determining the extent and quality of the native bush in the proposed native bush lot.

The agreement reached by the planners about the area of qualifying native bush was not substantially helpful for two reasons. The first was that the agreement was one based on a factual matter that had not formed part of the planners' primary area of expertise. The second was that the conferencing process had been entered into before the filing of the expert's evidence — a fact that was known at that time. The Court should therefore not preclude M's evidence on the basis of what was included in the Agreed Statement of Facts by the planning witnesses. The area of native bush outlined in the Agreed Statement of Facts did not prevail.

There was no reasoned finding of fact in relation to the size of the qualifying native bush, as the expert evidence upon which the decision relied, did not appear to offer that. It had been entirely appropriate for the Council to call evidence on the issue. The Council was not bound to support or abide the Commissioners' factual determination on the issue. M's expert evidence was relevant to an issue of consequence to the determination of this appeal and was therefore admissible.

Section 104(1)(a) RMA necessitated a consideration of the adverse effects and potential positive effects on the environment of allowing the activity. The positive effects included providing for E's economic well-being. However while it might be argued that there any environmental benefits arising from the feature being covenanted with the wetland, this was not an effect that could or would arise solely from the proposal.

There would be no significant adverse effects on rural character and amenity values if one additional house was introduced into this predominantly rural landscape. The proposed subdivision would not adversely affect the ecological values and features already present at the property.

The key objectives and policies of the relevant planning documents sought to retain the productive potential of rural land, protect and enhance rural character and amenity values, protect significant areas of indigenous vegetation and maintain rural landscape character. The definition of “native bush” had to be considered from an ecological perspective, as the term native bush was an ecological term and had also to be considered in light of the policy background. The protection of areas of native bush that were small, patchy, or lacking in trees of significant height, should not be relied upon for subdivision opportunities in a zone where such subdivision was generally to be avoided.

The area of qualifying native bush fell well short of the coverage requirement in the development standard. The additional benefits of imposed legal protection and active management in exchange for a subdivision opportunity were not of sufficient magnitude to justify granting an exception to the District Plan policies and rules that manage the fragmentation of rural land titles.

The precedent effect of allowing a non-complying activity was a factor that could be considered by the Court. Allowing the appeal would not have triggered a flood of similar applications in the vicinity, to the point where cumulative adverse effects on rural amenity and character would arise.

The appeal was dismissed. The application for subdivision consent was declined.

  • A. The appeal is...

To continue reading