Madsen Lawire Consulants v Auckland Council
Decision No.  NZEnvC 109
BEFORE THE ENVIRONMENT COURT
Environment Judge Harland
Environment Commissioner Leijnen
Environment Commissioner Buchanan
In The Matter of appeals under Clause 14 of Schedule 1 of the Resource Management Act 1991(the Act)
Mr R Brabant for BN Balle & Sons Limited, Madsen Lawrie Consultants and Peter Nicholls
Mr M Savage and Ms R Madey for, David Olsen
Mr R Gardner for Federated Farmers of New Zealand Incorporated
Ms HAsh, Ms D Hartley for Auckland Council, Waikato District Council and Hauraki District Council
Appeals against provisions in Rural Plan Change 14 (“PC14”) to the operative Franklin District Plan relating to rural subdivision method provisions — changes were intended to meet the demand for further residential countryside living opportunities thereby enabling farmers and other landowners to achieve certain economic benefits, and providing further opportunities for residential growth, while ensuring that primary production land was not adversely affected — whether the subdivision methods proposed by the respondents best achieved the objectives and policies of PC14 and the purpose of the Resource Management Act 1991 (“RMA”) — whether the changes significantly adversely affected primary production land — whether the environmental lot provisions assisted the Councils to carry out their functions in order to achieve the purposes of the RMA — whether the Court had jurisdiction to change policy — how should “naturally functioning freshwater wetland” and “Qualifying Natural Feature” be defined.
There was a specific theme encapsulated in the Strategic Policy of avoiding countryside living in areas containing outstanding natural features and landscapes and high natural character. Part 17 A Rural and Coastal Resource Management Strategic Objectives had the following as key objectives:
• to preserve and enhance remaining indigenous ecological resources and enhance their contribution to biodiversity, landscape and amenity values; and
• to provide limited and directed opportunities for living in rural and coastal areas through the rural growth management hierarchy.
The approach to rural living within the EEOA (where demand was greatest) and outside the EEOA differed. Within the EEOA, there was the requirement that rural living should achieve environmental protection, enhancement or restoration, whereas outside the EEOA, provision was to be more limited and small scale, and could only occur where there was significant environmental protection and enhancement and the growth strategy was not undermined. In addition to the focus of rural living opportunities being directed to be within the EEOA, there was a requirement for significant environmental protection and enhancement to occur in tandem with that opportunity. Matters such as effects on rural character and avoiding inappropriate proliferation and dispersal of lots were also required to be addressed.
Outside the EEOA, there was also an obligation for significant environmental protection and enhancement, but the focus was on providing larger areas of indigenous vegetation and wetlands. The expectation was for less subdivision to occur in that area and for its scale to be small. The distinction between subdivision within the EEOA and outside the EEOA reflected the relevant objectives. The objectives and policies made it clear that subdivision should only be possible if there was protection, and then supported by the methods, enhancement of a defined natural feature to achieve the minimum area of indigenous vegetation or feature to qualify for the opportunity to subdivide. Outside the EEOA the opportunity would not be as great as within the EEOA.
The qualification for a subdivision entitlement under the Environmental Lot provisions was centred on the protection, restoration and enhancement of natural features. That concept had been part of the District Plan for some time, as the operative rules provided a subdivision entitlement based on the provision of Conservation Lots. Environmental Lots were able to be created inside the EEOA where there was protection, enhancement or restoration of Identified Significant Natural Features (“ISNF's”). Where the size of the ISNF was below the threshold for entitlement to create a lot, restoration to enlarge the ISNF was required.
Larger ISNFs would be more stable and resilient, and would have greater biodiversity potential. The incentive provided in the councils' Version 7A to restore ISNFs of less than 2 hectares in order to qualify for an Environmental Lot had the potential to deliver greater environmental gains than simply protecting remnants that are smaller. That might result in some small ISNFs remaining unprotected, but the potential benefits gained by incentives for restoration planting would offset that concern.
Version 7A included ecological corridors within the EEOA. Version 7A would provide for a substantial subdivision opportunity, and was more consistent with a sustainable outcome taking into account of all of the objectives and policies that applied to rural subdivision. The parent lot size limitations included in Version 7A were the most appropriate means of giving effect to the policies and objectives ofPC14.
There was no right answer to the appropriate width for riparian corridors. The 30 metre average width (60 metre total) of Version 7A was sufficient space to provide the multifunctioned environmental benefits by the use of corridors based on select stream systems which would lead to ecological preservation and enhancement. Including ecological corridors established through the same standards applying to QNFs, was the most appropriate way of achieving the relevant environmental objectives and policies of PC14.
The Councils' functions under the RMA included controlling the potential adverse effects of countryside living, being effects on rural landscape values and versatile soils. Version 7A would better assist in this regard than the more liberal provisions of Version 7C.
Section 293 RMA provided jurisdiction to amend parts of the plan, and while the use of it to change plan provisions that had been agreed by consent should be sparing, in the appropriate case there was the ability for the Court to do exactly that. The issue was whether it should be changed in this case. The objectives and policies overall identified the need to take a cautious approach to the pressures to expand countryside living opportunities. It was not certain that the Version 7C approach would limit these opportunities to the extent needed to implement the objectives and policies as a whole. A more cautious approach was required, and this would not be achieved by a change to Policy 17C.2.2.7(vi) as suggested in Version 7C. Because of the findings on the merits of the rules, there was no need to further consider the jurisdictional argument.
In terms of boundary adjustments, Version 7A better reflected the overall settled objectives and policies while retaining some flexibility to accommodate minor title adjustments which might result in a more logical land division.
Version 7A provided a definition for “naturally functioning freshwater wetland” that focused on the characteristic of the hydrological functioning and natural ecological diversity of such a wetland. Artificial wetlands were specifically excluded. The definition was necessary to assist in identifying features which might qualify for protection and enhancement to enable subdivision. Version 7C amended the definition by adding a qualifier to include artificial wetlands that replicated natural systems and were integrated with natural wetlands.
The ecological evidence did not support the protection of artificial ponds and drains as having the potential to make a significant contribution to indigenous biodiversity and thus would be inconsistent with the objectives and policies of the plan change. For these reasons the definition of “naturally functioning freshwater wetland” stated in Version 7 A was to be preferred.
The Version 7A defined QNF by reference to other defined terminology used in the Plan. It did not contain any other standard. Such standards were confined to the rules. Version 7C would add minimum size and biodiversity significance score requirements to the definition. The definitions in Version 7A were preferred. The definitions should be consistent (in this case with the definition of ISNF). Any qualifications to the use of a term (which in this case would impact upon the enablement of subdivision) were better placed in the performance standards rather than in the definition.
There was a need to ensure that all of the objectives and policies in PC14 were balanced and represented in the rules that related to them. The use of subdivision as a tool for environmental enhancement of itself had the potential to create other outcomes such as the loss of rural character and versatile productive land, as well as increasing the opportunity for reverse sensitivities to arise. The objectives and policies directed a cautious and managed approach to growth, with a priority given to growth that occurred around existing centres where there was infrastructure to support it. The rules promulgated by the councils and included in Version 7A provided an appropriate balanced approach which was cautious, practical and supported all of the relevant objectives and...
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