Madsen Lawire Consulants v Auckland Council

JurisdictionNew Zealand
JudgeJudge Harland,Leijnen,Buchanan
Judgment Date20 May 2013
Neutral Citation[2013] NZEnvC 109
Date20 May 2013
CourtEnvironment Court

In The Matter of appeals under Clause 14 of Schedule 1 of the Resource Management Act 1991(the Act)

Between
Madsen Lawrie Consultants & Nicholls (ENV-2006-AKL-000973)
Bn Balle & Sons Limited & Ors (ENV-2006-AKL-00099 5)
David Olsen (ENV-2006-AKL-000994)
Federated Farmers Of New Zealand (Incorporated) (ENV-2006-AKL-00095 6)
Appellants
and
Auckland Council (formerly Franklin District Council), Waikato District Council And Hauraki District Council
Respondents

Decision No. [2013] NZEnvC 109

Court:

Environment Judge Harland

Environment Commissioner Leijnen

Environment Commissioner Buchanan

BEFORE THE ENVIRONMENT COURT

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.

Appearances:

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

A. The appeals by BN Balle & Son Limited, Madsen Lawrie Consultants and Nicholls are dismissed.

B. The appeal by Federated Farmers of New Zealand Inc is dismissed.

C. The appeal by David Olsen is allowed.

D. Costs are reserved.

DECISION OF THE ENVIRONMENT COURT

TABLE OF CONTENTS

INTRODUCTION

5

BACKGROUND

6

THE LEGAL FRAMEWORK

7

The planning framework

9

National instruments

9

Regional instruments

10

The District Plan

17

ENVIRONMENTAL LOT SUBDIVISION

22

Introduction

22

What should the ISNF provisions cover inside the EEOA? (Rule 22B.11.1.2)

23

What should the QNF provisions cover inside the EEOA? (Rule 22B.1L1.3)

27

What should the ISNF and QNF provisions cover outside the EEOA? (Rule 22B.11.2.1)

34

Overall evaluation of the proposed rules for Environmental Lot Subdivision

36

TRANSFERABLE RURAL LOT RIGHTS

38

Introduction

38

Should a new provision be introduced to provide for transfers into the EEOA as a discretionary activity?

39

Should the calculation of versatile land relate to the percentage of the lot or the area of versatile land on donor and receiver lots?

42

Are the Environmental Lot provisions consistent with the higher order planning documents?

43

Should there be a site-specific rule for Mr Olsen?

43

BOUNDARY RELOCATION AND ADJUSTMENT SUBDIVISION

50

Should Rule 22B.15.1(f) be amended?

51

Should Rule 22B.7.2(3) be deleted?

51

Overall conclusion on rules to apply to boundary relocation and adjustment

52

DEFINITIONS

52

How should “naturally functioning freshwater wetland” be defined?

52

What should be included in the definition of Qualifying Natural Feature?

53

Should a definition of “riparian planting” be included?

54

OTHER MATTERS

54

Should the rules provide for all restricted discretionary subdivision applications to be non-notified unless special circumstances exist to notify them?

54

density?

55

OVERALL CONCLUSION

55

RESULT

56

REASONS FOR DECISION

INTRODUCTION
1

This decision concerns appeals against the provisions in Rural Plan Change 14 (“PCM”) to the operative Franklin District Plan (“the District Plan”) that relate to the Environmental Lots, Transferable Rural Lot Rights, and Boundary Relocation or Adjustment subdivision method provisions. The overall issue for the Court to decide is whether or not the subdivision methods proposed by the Councils 1 best achieve the settled objectives and policies of PC14 and the purpose of the Resource Management Act 1991 (“the RMA”). The Councils contend that the subdivision rules they propose (known in this hearing as Version 7A) will achieve this outcome, but BN Balle & Sons Limited, Madsen Lawrie Consultants and Peter Nicholls submitted an alternative set of rules (known in this hearing as Version 7C), which they say will be better. We will refer to these parties as (“the appellants”) in this decision. Federated Farmers, whilst also an appellant, did not call any evidence to support its appeal, but made submissions in respect of aspects of the proposed rules and generally supported the appellants' proposed version of the rules as opposed to the Councils. Mr Olsen's appeal is discrete. He seeks a site-specific solution to enable him to transfer twenty (20) existing Environmental Lots 2 off his property into the Environmental Enhancement Overlay Area, an opportunity previously existing but now prevented by the settled objectives and policies.

2

The specific issues we need to decide are:

  • (a) What should the rules for Environment Lot subdivision be?

  • (b) What should the miles for Transferable Rural Lot rights be?

  • (c) What should the rules for boundary relocation or adjustment subdivision

  • (d) Should a site-specific exception be provided within the rules to enable Mr Olsen to transfer his existing twenty (20) Environment Lots within the EEOA?

  • (e) What definitions should apply to certain ecological terms?

  • (f) What should the rules provide about notification and planting density?

3

Before dealing with each of these specific issues, we will provide some matters of background that are important to the context of the issues we need to determine, and we will outline the legal framework that applies.

BACKGROUND
4

In promulgating PC14 the then Franklin District Council faced a number of competing issues and values which it sought to address:

  • (a) The first was to meet the demand for further residential countryside living opportunities to be provided within the district, thereby enabling fanners and other landowners to achieve certain economic benefits, and providing the equally desirable outcome of opening up further opportunities for residential growth particularly close to Auckland. As against this, there was a concern that such development had been occurring on an ad hoc basis with the result that the rural and coastal character of the area was eroding.

  • (b) Secondly there was a need to ensure that any residential countryside subdivision does not significantly adversely affect primary production land, given that parts of the district contain highly productive land comprising versatile soils that are best suited for productive rural farming and horticultural activities. Given the proximity of the district to Auckland, the need to maintain this capacity is of great significance,

  • (c) Thirdly, there was an acknowledgment of the need to try to remedy the ecological degradation that has occurred within the district, by securing the protection and restoration (and where appropriate enhancement) of existing indigenous features as part of a subdivision package.

5

PC14 was notified on 30 September 2003 and it proposed a comprehensive replacement of the rural issues, objectives, policies and rules contained in the District Plan for the rural and coastal areas of the former Franklin District. PCM attracted a large number of submissions and the Council issued its decision in respect of it in July 2006. A wide range of appeals were filed 3 and in August 2007 the former Franklin District Council withdrew parts of PCM in response to concerns that PCM's provisions would still create an excessive number of opportunities for countryside living in the rural and coastal areas. 4 The Council undertook more work on these issues, and released the Franklin District Growth Strategy in 2007.

6

In late 2008 the Environment Court directed that a revised topic structure be prepared based on a “top down approach so that the issues, objectives and policies' appeal topics were considered and resolved prior to the subdivision methods appeal topics. Thereafter there were extensive negotiations and Court-assisted mediations, which resulted in the vast majority of appeal topics being resolved by agreement.

7

On 15 June 2010 the Court made three separate consent orders which have finalised the issues, objectives and policies that apply. These are set out in Parts 3 and 3A of the Franklin District Plan and Parts 16 and 17 of PCM. We return to these shortly, but briefly the settled objectives and policies provide for limited countryside living within an area known as the Environmental Enhancement Overlay Area (“the EEOA”) and very limited opportunities for countryside living outside the EEOA. The EEOA comprises an area to the north of the district near to the Auckland metropolitan boundary, and it is therefore the area which is the most desirable for subdivision,

8

The parties agree that the methods proposed are appropriate, but they differ on the rules that should apply, and some of the key definitions that relate to them. The rules have also been the subject of considerable negotiation and Court-assisted mediation.

THE LEGAL FRAMEWORK
9

As PCM was notified in September 2003, the RMA as it existed prior to the 2005 amendments and the more recent 2009 amendments applies. Accordingly, the specific...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT