Riddiford v Masterton District Council
| Jurisdiction | New Zealand |
| Judge | Judge C J Thompson,W R Howie |
| Judgment Date | 05 July 2010 |
| Neutral Citation | [2010] NZEnvC 262 |
| Docket Number | ENV-2008-WLG-000071 |
| Court | Environment Court |
| Date | 05 July 2010 |
In the Matter of an appeal under Cl 14 of the First Schedule to the Resource Management Act 1991
Decision [2010] NZEnvC 262
Principal Environment Judge C J Thompson, Environment Commissioner
W R Howie, Environment Commissioner D Bunting
ENV-2008-WLG-000071
BEFORE THE ENVIRONMENT COURT
Appeal against provisions of Proposed District Plan — creation of a spot zone for aquaculture and housing — whether plan and overlays achieved the aims of s6 Resource Management Act — whether deed transferring a coastal strip as a local purpose reserve and an earlier court proceeding preserved appellant's rights — whether plan provisions made land unusable.
D T S Riddiford for himself
R P Cheriton for the respondent Councils
Decision issued: 29 July 2010
The appeal is declined and the decisions of the Councils are confirmed (except to the extent indicated at para [50])
Costs are reserved
In decisions released on 29 March 2008 the three Councils adopted the Proposed Wairarapa Combined District Plan. Nineteen appeals were lodged about various parts of the plan but, through processes of discussion and negotiation, all except this appeal have been resolved, either formally or in principle, with final resolution awaiting the outcome of this appeal. This appeal originally covered a wider range of topics, but Mr Riddiford advised the Councils, and the Court, in a memorandum dated 26 June 2010, that he intended to pursue only the issues relating to what he described as the ‘House Ration Rule’ and the ‘Aquaculture Precinct/ Foreshore Protection Area’.
Federated Farmers of New Zealand Inc is, formally, a s274 party to the remaining issues of Mr Riddiford's appeal but elected to take no part in the hearing.
Mr Riddiford's concern is with Te Awaiti Station, a property of some 6500ha owned by a family trust on the south-eastern Wairarapa Coast. In a direct line it is some 32km southeast of Martinborough, but its road access is much longer — we understand about one hour's travel, so in New Zealand terms it is a rather remote piece of land. The country is largely high and steep, with essentially only the coastal areas being usable for conventional pastoral farming We accept that it is challenging land to successfully farm. That is not to say however that there was anything in the evidence to persuade us that the land is unique, or even sufficiently different from other landholdings in the Wairarapa as to justify a planning regime that applies to it, and it alone.
The Wairarapa Combined District Plan is the first combined District Plan to be processed under the Resource Management Act. It was notified in August 2006. To give context to the issues in this appeal, it is necessary to go into a little detail about how it affects Te Awaiti Station.
The Station is zoned Rural (Primary Production). Within that zone, primary production is, as one might expect, generally a permitted activity provided that the activity standards in Sections 4 (Rural) and 21 (District-wide Rules) are met. Primary Production is defined in Section 27 of the Plan as:
… the use of land and accessory buildings (eg greenhouses) for the raising, growing and breeding of animals or vegetative matter and crops, including horticulture, plantation forestry, agriculture, viticulture, flora culture, racing stables, and outdoor (extensive) pig farming, as well as wine making, flower packing, and other primary processing activities, but excludes topsoil stripping, intensive farming activities, and mineral extraction and processing.
The Councils confirm, through submissions and Mr Schofield's evidence, that to make the position of Mr Riddiford's proposed aquaculture activities in the Rural (Primary Production) zone quite clear they would be comfortable with adding land-based aquaculture to that list of activities. That would be inserted between agriculture and viticulture.
Also affecting the Station are two planning overlays relating to the coastal areas. The larger is the Coastal Environment Management Area (CEMA) and the narrower is the Foreshore Protection Area (FPA). In these areas the Plan imposes more restrictive performance standards with the expressed intention of protecting the values they contain, and to manage the potential risks of natural hazards arising there.
The CEMA is an overlay based on landscape and ecological factors, and generally extends about 1 km inland from the coastline. On Te Awaiti Station, it covers an area of about 1494ha, or nearly one quarter of its total area. The CEMA has specific Objectives and Policies, as well as specific Rules that supercede or work in conjunction with the underlying zone rules.
The FPA extends along the full length of the Wairarapa coastline, generally extending 50m inland from Mean High Water Springs (MHWS) (with an exception, not relevant to this appeal, for Riversdale Beach, where a specific survey has been undertaken). The purpose of the FPA is expressed to be:
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(a) To protect the amenity values of the foreshore from potentially inappropriate structures; and
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(b) To manage the potential risks from tsunami, coastal erosion and inundation.
The Decisions version of the Plan amended Rule 21.1.15 to permit the construction of non-habitable structures and fences as follows:
Foreshore Protection Area
a) Any structure constructed or located within the foreshore protection area, being 50m landward of Mean High Water Springs for all areas, except as otherwise identified in the Planning Maps, shall comply with the following standards:
(i) Fences shall not exceed 1.8m in height;
(ii) Non-habitable structures shall not exceed 3metres in height and shall not exceed 15m 2 gross floor area (GFA) per site.
Structures not complying with the minimum standards are to be assessed as fully discretionary activities.
Mr Robert Schofield, the Councils' consultant planner points out that Objective 13.3.1 of the Proposed Plan seeks:
To protect the natural character of the coastal environment by ensuring use, subdivision and development maintains the comparatively undeveloped nature of the Wairarapa Coast.
And that is complemented by Policy 13.3.2(h):
Protect foreshore amenity values and avoid hazard risks by controlling the location of structures in close proximity to the foreshore.
The provision for earthworks was also amended in the Decisions version by adding a Discretionary Activity Rule 21.4(q) as follows:
(q) Earthworks of more than 50m 3 within any 12 month period within the coastal environment management area and foreshore protection area.
As a result of post-Decisions discussions with other appellants and parties, further amendments to Rules 21.1.15 and 21.4(q) have been agreed as appropriate. This would involve the amendment of Rule 21.1.15 to read as follows:
(a) Any structure constructed or located within the Foreshore Protection Area, being 50 metres landward of Mean High Water Springs for all areas, except as otherwise identified in the Planning Maps, shall comply with the following standards:
(i) Fences shall not exceed 1.8m in height;
(ii) Structures shall not exceed 3metres in height and shall not exceed 15m 2 gross floor area (GFA) per site.
(iii) Structures shall not be used for habitable purposes.
(iv) Earthworks associated with the construction and maintenance of a fence to a maximum 0.5 metres (cut or fill) measured vertically.
And Rule 21.4(q) would be amended to read:
(q) Earthworks within the Foreshore Protection Area (except as provided for in Rule 21.1.15(a)(iv)).
As part of his relief, advanced under the rubric of an Aquaculture Precinct, Mr Riddiford seeks that all structures for aquaculture be excluded from the operation of Rule 21.1.15, which limit height and bulk for non-habitable structures in the FPA. He also seeks that the FPA on the foreshore of Te Awaiti Station be reduced in width from 50m to 20m. In effect what he is seeking is the creation of a spot zone on the foreshore of Te Awaiti in which any structure or activity connected with aquaculture would be a permitted activity. This outcome, he submits, would comply with the 1995 Deed of Management with the Council and the Crown, and with the outcome of earlier proceedings in this Court, recorded in the decision of Riddiford v South Wairarapa District Council (W56/2002). We shall return to that proposition.
The proposed Rule limiting numbers of dwellings per site is: 4.5.2(e) Number of Dwellings
(i) In the Rural (Primary Production) zone, one dwelling per Certificate of Title under 4 hectares, two dwellings per Certificate of Title between 4–100 hectares, and three dwellings per Certificate of Title over 100 hectares in size.
(ii) In the Rural (Special) Zone, one dwelling per Certificate of Title.
(iii) In the Coastal Environment Management Area within the rural (Primary Production) Zone, one dwelling per Certificate of Title.
There is a repetition of para (iii) in Rule 21.1.25(b), setting the number of dwellings permitted in the CEMA. It provides:
(i) In that part of the Coastal Environment Management Area that is within the rural Zone, one dwelling per Certificate of Title.
The rationale for that decision was that those numbers were considered an appropriate level of development to enable the efficient use and development of rural properties, while maintaining rural character and qualities of the rural environment.
We are informed that the practical result of those Rules would be that (existing uses aside) the Station could have three permitted...
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