John Lawson v Waikato District Council

 
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Decision No. [2011] NZEnvC 411

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge M Harland

Environment Commissioner H A McConachy

Environment Commissioner A C E Leijnen

ENV-2007-AKL-000080

In The Matter of an appeal pursuant to clause 14 of the First Schedule to the Resource Management Act 1991

Between
John Lawson

(Env-2007-Akl-0080)

Appellant
and
Waikato District Council
Respondent
Appearances:

Mr Lawson in person (with Mr Hamilton in support)

Ms Mackintosh for the Council

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.

The issues on appeal were: 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); and whether the Council had had regard to the Regional Policy Statement.

Held: The appearance of open space and larger sites was often “informal”, with the berm planted and indistinguishable from any adjoining privately owned property. Open space, trees and landscaping on both private and public land intermingled to create the pleasant and distinctive amenity in established areas. A 3m rule would limit front yard planting options. A 6m rule would allow greater flexibility. The combination of the 3m setback rule and daylight control rule would not necessarily prevent the dominance of buildings and structures relative to public places in a consistent manner.

Views were highly valued in seaside towns and the plan encouraged allotments and buildings to be arranged to allow for view-sharing where appropriate. A 6m setback was more likely to achieve that outcome. Retaining private open space and access to public open space would be achieved by either setback.

A single generic setback rule might not be the best way to retain amenity values of sites and localities, and a more flexible response might be required. While some areas could well accommodate a 3m setback, the character of other areas would be significantly altered and would result in a significantly more urban character rather than seaside village character sought to be retained.

Further intensive development carried with it a balancing obligation to retain and enhance residential amenity. A rule providing for a 3m setback would not achieve the policies and objectives of the plan. The ambient character of Raglan included trees and open space as part of its established character. The proposed plan sought to maintain and enhance the amenity for residents. While a 3m setback provided more flexibility on some steeper sites, overall a 6m setback was more likely to result in a more positive outcome.

While a 3m setback rule was effective to achieve the aim of efficient use of residential land, in the established areas building were not placed even proximate to a 3m setback. In that regard the rule was not effective in managing development in some parts. Efficient use of land also had to take into account the public investment in roads as open spaces and it was necessary to consider front yards created by a setback as contributing to streetscape and use of the road. A 6m setback would provide greater efficiency in terms of the investment in those areas and thus achieve greater effect.

Retrofitting an increased density into established neighbourhoods required a sensitive approach. As currently drafted, the rule would not achieve sustainable management of natural and physical resources under Part 2 RMA for a significant part of the area.

Promotion of efficient use of resources should not come at a cost to the environment and amenity. The setback rule was not likely to undermine regional policy (to retain qualities and characteristics of areas and features valued for their contribution to amenity are maintained and enhanced). There had to be a balance between efficiently using land, the use of infrastructure and services, and development which achieved high amenity values and was sympathetic to existing charter in towns and villages. Just because a rule had been in place for a long time did not meant that it was working. The 3m set back rule simply had not needed to be invoked in established areas of Raglan. As development pressure increased, the rule would become a key feature of new development and might result in an erosion of the seaside village character in some parts.

The Council had not had full regard to the actual and potential effects of the rule on the environment.

The Raglan zone presented two identifiable areas where different setbacks could meet the objectives and policies. For the most part, in the coast and established areas, the setback should be 6m, but there was scope for a 3m setback in other locations. The Council could have undertaken a more detailed assessment. The 3m setback would not achieve the policies and objectives relevant to a significant portion of residential land in Raglan and would not adequately address integrated management of the effects of further development.

Appeal allowed to the extent that the setback rule should be a minimum of 6m and would need to be adjusted accordingly.

DECISION OF THE ENVIRONMENT COURT

The appeal is allowed.

REASONS FOR DECISION
Introduction
1

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.

Legal framework
2

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
3

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.

4

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.

5

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...

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