Hamilton v Far North DC & Northland RC

• Jurisdiction: New Zealand
• Judge: Environment Judge
• Judgment Date: 22 September 2014
• Neutral Citation: [2015] NZEnvC 012
• Docket Number: (ENV 2013 AKL 000100)
• Court: Environment Court
• Date: 22 September 2014

[2015] NZEnvC 012

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge D Kirkpatrick

Environment Commissioner M Oliver

Environment Deputy Commissioner C Blom

(ENV 2013 AKL 000100)

In the matter of an appeal under the Resource Management Act 1991 (the Act)

BETWEEN

Aa Hamilton for the Te Uri Karakahapu

Appellant

and

Far North District Council and Northland Regional Council

Respondents

Appearances:

Mr J Pou for Mr AA Hamilton

Ms J Baguley for Far North District Council (the District

Council) and Northland Regional Council (the Regional

Council)

Mr J Upperton for himself (Mr Upperton)

Appeal against the granting of consents to build a dwelling — appellant said that the area was waahi tapu-consents sought included one for discharge of human sewage effluent — application required discretionary activity consent under the district plan and non-complying consent under the regional water and soil plan-planning experts considered it appropriate to ‘bundle’ the applications and that the status of non-complying should apply to the total combined consent because of the overlap of the matters covered — whether bundling of the consents was appropriate — whether the evidence was sufficient to establish the applicant's land was within the waahi tapu — whether the proposal was contrary to the objectives and policies of the relevant plan.

The issues were: whether bundling of the consents was appropriate; whether the evidence was sufficient to establish the applicant's land was located within the waahi tapu; and, whether the proposal was contrary to the objectives and policies of the relevant plan.

Held: There were concerns about the appropriateness of bundling to the extent of combining the activity statuses under the district and regional plans together. While it was immediately apparent that the proposal would require both district and regional consents, so that there was an “overlap” of its effects, it was nonetheless questionable how relevant the provisions of the district plan might be to an assessment of the consenting issues under the regional water and soil plan, and vice versa.

This issue could be of some significance, especially where (as here) one aspect of a proposal fell to be considered as a non-complying activity, so that one effect of bundling was to make the entire proposal a non-complying activity and subject to the threshold considerations of section 104D RMA (Particular restrictions for non-complying activities). In such circumstances the lack of co-ordination or consistency between the adjoining or overlapping plans could make the assessment of a proposal at least very complicated, particularly in terms of the consideration of the proposal against the objectives and policies of two plans.

There was an important distinction to be made between the bundling of applications to determine an overall activity status, and the proper consideration of the relevant statutory planning documents. The following propositions emerged from the relevant case law:

• (a) It was lawful to bundle the status of different activities where there was an overlap of the matters requiring consideration under multiple consent applications in respect of the same development; and

• (b) Such bundling could include activities regulated under different plans; but

• (c) Notwithstanding the bundled activity status, the differently regulated elements of a proposal should be assessed in terms of the objectives and policies which were relevant to each element.

For the purpose of s104D RMA, the aspects of the proposal requiring land use consent had to be assessed in terms of the relevant objectives and policies of the district plan, and the aspects requiring regional consent had to be assessed in terms of the relevant objectives and policies of the regional water and soil plan.

The planning experts identified the key issues as:

• (a) The potential effects of the proposal on an alleged waahi tapu;

• (b) The potential effects on cultural values, particularly the effects on water quality from earthworks; and

• (c) The potential effects on natural character, landscape values and visual amenity.

The evidence and the submissions on whether U's land was part of the waahi tapu was incomplete and not incontrovertible. While the existence of a waahi tapu appeared, on the evidence generally to be agreed, the location of it was uncertain, at least insofar as it might be on or near the site of the proposed dwelling in this case.

While the Environment Court was not bound by the rules of law about evidence that applied to judicial proceedings, it could not disregard the basic principles on which the concept of proof of facts was based. The essential approach to making a finding on a question of fact was ( Winstone Agrgregates Ltd v Franklin DC):

• 1. There had to be material of probative value, i.e. tending logically to show the existence of facts consistent with the finding;

• 2. The evidence had to satisfy the Court of the fact on the balance of probabilities and having regard to the gravity of the question;

• 3. The heart of a finding of fact was that it had to persuade the Court that it was correct.

There was insufficient probative evidence to establish that there was a waahi tapu on the applicant's site or that there was a waahi tapu that was likely to be adversely affected by the proposed development.

The lack of a cultural impact assessment been overtaken by the opportunity for all parties to present full submissions and evidence to the Environment Court.

The expert technical evidence was that the likely adverse effects on water quality would be no more than minor. Considering this, together with the earlier finding that there was insufficient probative evidence of waahi tapu, the proposed development was appropriate in terms of potential cultural effects in relation to water quality.

There was no proof that there were any adverse effects on cultural aspects of the natural character of the area to a degree sufficient to justify the refusal of resource consents on that basis. Any adverse effects could be mitigated through the proposed conditions of consent.

In terms of the regional consents, all of the activities requiring consent under the regional plan should be bundled together because the various activities would have effects that overlapped, given that they were all elements of the overall proposal to erect a dwelling on the site. The proposal was not contrary, in the sense of repugnant or opposed in nature, to any of the relevant objectives and policies of the regional plan and could be undertaken in a manner that would not result in inappropriate adverse effects on the environment. It was not necessary to determine whether those effects were more than minor, in terms of the threshold in section 104D(1)(a) RMA (adverse effects of the activity on the environment. will be minor), given the conclusion in respect of the threshold in section 104D(1)(b) (application is for an activity that will not be contrary to the objectives and policies of the plan). It was to be noted that it was essential to these conclusions that the proposal was undertaken in accordance with appropriate conditions of consent

While bundling between the District Plan and the Regional Water and Soil Plan was lawful, it was more appropriate to focus the assessment of the district plan issues, in terms of the relevant provisions of the district plan, rather than attempt to bundle the provisions of the different plans together. None of these activities were contrary to the objectives and policies of the District Plan.

If this was wrong, and for the avoidance of doubt, consideration was also given to the aspects of the proposal requiring consent in terms of the District Plan against the objectives and policies of the Regional Plan. They were not contrary, in the sense of repugnant or opposed in nature, to the objectives and policies of the Regional Plan insofar as any of those objectives and policies could be said to be relevant to those land use activities. Again, it was essential to these conclusions that the proposal was undertaken in accordance with appropriate conditions of consent.

The provisions of ss6 (Matters of national importance), 7 (Other matters) and 8 (Treaty of Waitangi) that were relevant to this case were to inform the overall judgement under s5 (purpose — promote the sustainable management of natural and physical resources). In addition to addressing the likely or potential adverse effects on the Maori dimensions of the environment, it was also relevant to consider the applicant's well-being in its relevant dimensions. U had owned the site since 1999 and had been seeking consent to erect a dwelling since that time. The current proposal was for a modest sized single building, set back from the coastal edge and with a comprehensive enhancement planting and weed control programme. In terms of Part 2 RMA (purpose and principles) and s104 (Consideration of applications) and s104B (Determination of applications for discretionary or non-complying activities), the statutory purpose of promoting the sustainable management of natural and physical resources was better achieved by granting the resource consents subject to conditions than by refusing consent on any of the grounds advanced in opposition to the proposal.

Appeal dismissed. Consents granted subject to conditions.

• A. The appeal by AA Hamilton is dismissed.

• B. The resource consents are granted subject to conditions.

• C. The conditions are to be finalised by the Respondents in consultation with the Appellant and the Applicant and filed with the Court by 20 February 2015. The final conditions are to be based on those attached to the evidence of Messrs McAlley and Heaps, and are to include the additional and amended conditions recommended by Messrs Stevens and Farrow and also the matters raised by the Court.

• D. If any matter in the conditions as...