John Lawson v Waikato District Council
| Jurisdiction | New Zealand |
| Judge | M Harland,H A McConachy,A C E Leijnen |
| Judgment Date | 23 December 2011 |
| Neutral Citation | [2011] NZEnvC 411 |
| Court | Environment Court |
| Docket Number | ENV-2007-AKL-000080 |
| Date | 23 December 2011 |
In The Matter of an appeal pursuant to clause 14 of the First Schedule to the Resource Management Act 1991
(Env-2007-Akl-0080)
Decision No. [2011] NZEnvC 411
Environment Judge M Harland
Environment Commissioner H A McConachy
Environment Commissioner A C E Leijnen
ENV-2007-AKL-000080
BEFORE THE ENVIRONMENT COURT
Appeal from respondent's decision that the setback rule in proposed District Plan which required houses to be setback at least 3 metres from the road boundary — appellant argued for a 6 metre setback rule for Raglan — objective of plan to retain seaside village character—whether the setback rule implemented the policies and objectives of the plan—whether the rule was the most appropriate method of achieving the objectives—whether the rule complied with Part 2 RMA (purpose and principles — sustainable management)—whether the council had regard to the Regional Policy Statement.
Mr Lawson in person (with Mr Hamilton in support)
Ms Mackintosh for the Council
The appeal is allowed.
Back in September 2004 the Waikato District Council (“the Council”) notified its proposed District Plan (“the proposed plan”), 1 the provisions of which cover the seaside town of Raglan. Mr Lawson, a resident in Raglan, made a submission in relation to the proposed plan which culminated in him filing an appeal to this Court about various provisions contained within it. The only matter remaining alive in Mr Lawson's appeal concerns what the appropriate building setback rule should be within the Living Zone in Raglan. The proposed plan requires that setback to be at least 3 metres (“3m”), but Mr Lawson advocates that it should be at least 6 metres (“6m”). This is the sole issue we need to determine.
The statutory framework that applies to plan change appeals as it has been interpreted by the Courts was not in dispute. The control of building setbacks in a district plan represents a method of achieving the integrated management of the effects of use, development or protection of land, which is one of the functions of a Council. 2 Section 32 of the Resource Management Act 1991 (“the RMA”) applies, and has been judicially considered in a number of cases, including Eldamos Investments Ltd v Gisborne District Council, 3 and Long Bay-Okura Great Park Society Incorporated v North Shore City Council. 4 What has become known as “the Eldamos test” was endorsed by the Court of Appeal in Coromandel Watchdog of Hauraki Incorporated & Ors v Chief Executive of the Ministry of Social Development & Ors. 5 We have considered and are familiar with these decisions.
The Living Zone covers the areas depicted in Raglan Map 43, Raglan Town Centre Map 44, and Raglan East Map 45. There is also a Living (New Residential) Zone which generally borders the southern edge of the eastern area of Raglan (Main Road/State Highway 23) and to the west (Te Hutewai Road) and beyond it a Country Living Zone applies. However, the Living Zone is not a zone unique to Raglan. The planning maps in the proposed plan indicate that this is a generic zone applied to other residential settlements (such as Ngaruawahia, Te Kowhai, Whatawhata, Te Kauwhata and Huntly) throughout the Waikato district.
In Raglan there is character variability within the living zone which reflects historical subdivision patterns and topographical constraints. As a seaside town the sections and house sizes vary and also show transitions from bach to permanent home occupation. Trees are well established. Many streets in Raglan typically lack kerb and channel footpaths and are often “informal.” Newer subdivisions areas show more uniformity, with kerb and channelling now required in subdivision development. The coastal edge comprises both cliffs and flat areas backdropped by undulating topography made up of gullies and ridges.
The context for the building setback rule (“the setback rule”) in the Living Zone is established by the objectives and policies of the proposed plan. The relevant ones have recently been confirmed as part of the proposed plan review and are now beyond challenge. Thus the questions for the Court are:
(a) Does the rule implement the policies and therefore the objectives of the plan?
(b) Is the rule the most appropriate method for achieving the objectives of the plan, having regard to its efficiency and effectiveness–
(i) Taking into account costs and benefits
(ii) The risk of acting or not if there is uncertain or insufficient information
(c)Is the rule in accordance with the provisions of Part 2 of the RMA?
(d)Did the Council have regard to the Regional Policy Statement ( “the RPS”) or the proposed Regional Policy Statement (“the proposed RPS”) when preparing the rule, and is it consistent with it/them?
(e) What, of the other documents cited (Variation 16, Ministry for the Environment document, CBD design guidelines), are relevant?
(f) In making the rule, did the Council have regard to the actual or potential effect of activities on the environment?
(g) Does the rule assist the Council to carry out its functions in order to achieve the purpose of the RMA?
The Court must also have regard to the decision of the Council. We will discuss matters relating to that decision as they arise under the relevant topics.
The relevant objectives and policies which the setback rule seeks to implement were set out for the Court by Mr Johnson on behalf of the Council. We were told that the proposed plan adopts a different format from the operative plan, because objectives and policies are set out separately from the zone provisions and deal with resource management issues at a more strategic level. We were referred to Chapter 6 of the proposed plan, which establishes the framework for management of the built environment and also to Chapter 13, which deals with amenity values.
From Chapter 6 we were referred to Objective 6.2.1 entitled: “ Development that is connected or grouped around infrastructure,” the purpose of which is to address the issue of disconnected or scattered development which “way “may reduce open space, increase land use conflicts, reduce the range of possible land uses, and increase the cost of providing public facilities and utilities”. 6
Policy 6.2.2, which follows on from this objective outlines that:
Subdivision or development should be located, and have a density, scale and intensity, to ensure efficient use of land, public facilities and utilities.
In our reading of the Plan we also note that the following explanation: 7
… that while the policy encourages efficiency through urban consolidation there are limits to the density scale and intensity of development. The adverse effects of over development include loss of character of the locality, environmental effects and conflicts between activities that are too close in proximity.
Does a setback rule therefore affect the density, scale and intensity of development? In this regard section size is more relevant but we agree with Mr Johnson that a 3m rule may provide flexibility for house placement. Mr Lawson, in his questioning of Mr Johnson, brought to our attention that, during the development of the proposed plan the minimum site area had increased by 50m which Mr Lawson believed provided for increased flexibility for building locations.
We agree that setback rules may contribute to the manner in which buildings are placed on a site, but there are other features such as topography, aspect, and views which may also contribute to this, and in addition the other bulk and location rules in the proposed plan may also impact upon the choice of a particular building layout on a site. Unfortunately, we were not provided with evidence about how the 3m or 6m rules would specifically affect the placement of buildings in response to Objective 6.2.1 and Policy 6.2.2
It seemed to us that Mr Johnson was more concerned about the need to ensure that the set back rule enabled flexibility and his opinion was that a 3m rather than a 6m setback would provide this flexibility. As he observed, the minimum site area specified in the plan for subdivision in itself will influence the placement of buildings.
In reference to the provisions of Objective 6.2.1 and Policy 6.2.2 and based on this common view we do not consider that a change to 6m would necessarily result in the inefficient use of land.
The next chapter we were referred to was Chapter 13 which deals with amenity values. As a useful adjunct to this chapter we reviewed Chapter 1, the introductory chapter of the proposed plan which was referred to us by Mr Lawson and is entitled “ Waikato District Resources and Pressures”. It includes the following statements at clauses 1.6 and 1.6.1:
(a) the amenity, quality of life and wellbeing of the residents and their communities will be maintained and improved
(b) the environment will be safeguarded as development proceeds
(c) existing towns and villages will be consolidated in preference to new towns being created
Raglan will retain its seaside village character as it grows, while protecting the harbour. A sense of place will be fostered with architecture and landscaping that complements both human scale and coastal setting. Industrial developments will be positioned to integrate with the topography so as to reduce the visibility of buildings and storage areas.
Mr Johnson drew our attention...
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