Man O'War Station Ltd v Auckland Council

• Jurisdiction: New Zealand
• Judge: ANDREWS J
• Judgment Date: 21 April 2015
• Neutral Citation: [2015] NZHC 767
• Docket Number: CIV-2014-404-002064
• Court: High Court
• Date: 21 April 2015

Under the Resource Management Act 1991

In The Matter of an appeal against a decision of the Environment Court under s 299 of the Resource Management Act 1991

BETWEEN

Man O'War Station Limited

Appellant

and

Auckland Council

Respondent

[2015] NZHC 767

judges:

Andrews

CIV-2014-404-002064

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal from an Environment Court (EC) decision relating to the respondent council's mapping of areas of farm as Outstanding Natural Landscapes (ONLs) — farm was located on two Islands in the Hauraki Gulf — proposed plan changes had resulted in 75% of the farm being mapped as ONL — some of the land was coastal and some of it was interior landscape — whether the EC erred in its consideration of the effect of the Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd (King Salmon) judgment by failing to address the Wakatipu Environmental Society Inc v The Queenstown-Lakes District Council factors when determining whether the landscapes were ONLs — whether the EC should have made its assessment by reference to landscapes in New Zealand as a whole, rather those in the Auckland region — whether, as a result of King Salmon, the threshold for classification as an ONL was significantly higher than that which had been applied in this case — whether as a result of King Salmon it had been necessary to determine which parts of the farm fell within the coastal environment, and which did not.

Appearances:

M E Casey QC and M J E Williams for Appellant

B O'Callahan and J Burns for Respondent

R B Enright and M C Wright for Environmental Defence Society Incorporated (s 301 party)

R Gardner for Federated Farmers of New Zealand (s 301 party)

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 21 April 2015 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

……………………………………………..

Registrar / Deputy Registrar

Introduction

1 The appellant, Man O'War Station Ltd (“MWS”) owns a 2,364 hectare rural property at the eastern end of Waiheke Island and on Ponui Island in the Hauraki Gulf, known as Man O'War farm (“the farm property”). Proposed Change 8 to the Auckland Regional Policy Statement (“Change 8”) introduced new policy provisions for Outstanding Natural Landscapes (ONLs) and the Auckland Council prepared a new set of ONL maps for the Auckland region. The new mapping resulted in approximately 1,925 hectares of the farm property (more than 75%) being mapped as ONLs, referred to as “ONL 78” (on Waiheke Island) and “ONL 85” (on Ponui Island).

2 MWS appealed to the Environment Court against the Council's mapping. In its decision given on 29 July 2014, the Environment Court accepted that areas in Man O'War Bay and Hooks Bay, and the whole of Ponui Island (apart from the eastern coastal margin and sea scape), should be excluded from the ONL. 1 However, the Court rejected MWS's submission that only coastal areas and particular inland areas should be included in the ONL.

3 MWS has appealed to this Court, pursuant to s 299 of the Resource Management Act 1991 (“the RMA”), on the grounds that the Environment Court made errors of law.

Interim or final decision?

4 The decision of the Environment Court is headed as an “Interim Decision”. At [152] the Environment Court directed that the mapping of ONL 78 and ONL 85 in Change 8 was to be revised as set out in the decision, “subject to possible further consideration of mapping should wording in the [Auckland Regional Policy Statement] change after further agreement or input from parties”.

5 An interim decision of the Environment Court decision cannot be appealed.2 However, counsel for MWS accepted that in relation to the mapping of ONLs, the decision is final. There is, therefore, no issue as to MWS's ability to appeal.

Relevant statutory provisions

6 The applicable law is set out in the provisions of the RMA as they were when Change 8 was publicly notified in September 2005. In Part 2 of the RMA “Purpose and principles”, s 5(1) provides that the purpose of the Act is to promote the sustainable management of natural and physical resources. “Sustainable management” is defined in s 5(2) as including “avoiding, remedying, or mitigating any adverse effects on the environment”. Section 6 is headed “matters of national importance” and provides that in achieving the purpose of the Act, persons exercising functions and powers under it “shall recognise and provide for the following matters of national importance”, including at s 6(b): “the protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development”. Those sections have remained unchanged since 2005.

7 Provisions relating to the sustainable management of the environment are set out in a three-tiered system, moving from the general to the specific: national, regional, and district. 3 Section 57(1) of the RMA (unchanged since 2005) provides that “there shall at all times be at least one New Zealand coastal policy statement prepared and recommended by the Minister of Conservation …” Section 60(1) provides that there must be a regional policy statement for each region, prepared by the regional council. Section 61(1) provides that the regional policy statement must be prepared and changed in accordance with (among other things) Part 2 of the Act, and the regional policy statement must, pursuant to s 62(3) give effect to a New Zealand coastal policy statement. Sections 60 to 62 are also unchanged since 2005.

8 Policies 13 and 15 of the New Zealand Coastal Policy Statement 2010 (NZCPS 2010) are particularly relevant in the present case. Policy 13 “Preservation of natural character” is:

• (1) To preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use, and development:

• (a) avoid adverse effects of activities on natural character in areas of the coastal environment with outstanding natural character; and

• (b) avoid significant adverse effects and avoid, remedy or mitigate other adverse effects of activities on natural character in all other areas of the coastal environment;

  …

9 Policy 15 relates to “Natural features and natural landscapes” and begins:

To protect the natural features and natural landscapes (including seascapes) of the coastal environment from inappropriate subdivision, use, and development;

• (a) avoid adverse effects of activities on outstanding natural features and outstanding natural landscapes in the coastal environment; and

• (b) avoid significant adverse effects and avoid, remedy, or mitigate other adverse effects on activities on other natural features and natural landscapes in the coastal environment;

  Policy 15 then sets out means by which the policy is to be achieved, including:

• (c) identifying and assessing the natural features and natural landscapes of the coastal coastal environment of the region and district, at minimum by land typing, soil characterisation and landscape characterisation …

• (d) ensuring that regional policy statements, and plans, map or otherwise identify areas where the protection of natural features and natural landscapes requires objectives, policies, and rules; …

10 The term “outstanding natural landscape” is not defined in the RMA. The Environment Court referred to the approach and factors set out in the Environment Court's decisions in Wakatipu Environmental Society Inc v The Queenstown-Lakes District Council (“WESI”), 4 and in Maniototo Enviromental Society v Central Otago

District Council (“Maniototo”), 5 in which the Court will first identify a “landscape”, then consider whether the landscape is sufficiently “natural” to be classified as a natural landscape, then assess whether the natural landscape is “outstanding”. That latter assessment is undertaken by reference to the factors set out in WESI. In essence, these require the landscape to remarkable, exceptional, or notable

The judgment of the Supreme Court in Environmental Defence Society Inc v The New Zealand King Salmon Co Limited

11 In submissions to this Court, counsel made extensive reference to the judgment of the Supreme Court in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd (“King Salmon”) delivered on 17 April 2014 (after the hearing of MWS's appeal to the Environment Court). 6 The Environment Court received and considered submissions from counsel as to its impact on the proceeding, before issuing its decision.

12 King Salmon concerned a proposed salmon farm in an area of the Marlborough Sounds (Papatua, in Port Gore) that was accepted as being “an area of outstanding natural character and an outstanding natural landscape”. It was also accepted that the proposed salmon farm would have significant adverse effects on that natural character and landscape. 7 The appeal concerned whether a plan change, which would allow the salmon farm, but would not give effect to Policies 13 (1)(a) and 15(a) of the NZCPS 2010, should have been refused.

13 The Supreme Court held by a majority that the Board of Enquiry considering the proposed plan change was required to give effect to the NZCPS policies, 8 that “avoid” (in the phrase “avoid adverse effects”) means “not allow”, or “prevent the occurrence of”, 9 and that the Policies provided “something in the nature of a bottom line”. 10 The NZCPS is “an instrument at the top of the hierarchy” of environmental instruments, and gives effect to the protective element of sustainable management. 11

In reaching this conclusion, the majority rejected the “overall judgment” approach adopted by the Board of Enquiry, and the High Court on appeal.

14 In his dissent, William Young J noted the possibility of overbroad consequences of the majority's decision: “severe restrictions being imposed on privately-owned land in areas of outstanding natural character”, and the potential to be “entirely disproportionate” in its operation...