Riddiford v Masterton District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeC J Thompson,Principal Environment Judge
Judgment Date05 Jul 2010
Neutral Citation[2010] NZEnvC 262
Docket NumberENV-2008-WLG-000071

Decision [2010] NZEnvC 262

BEFORE THE ENVIRONMENT COURT

Court:

Principal Environment Judge C J Thompson, Environment Commissioner

W R Howie, Environment Commissioner D Bunting

ENV-2008-WLG-000071

In the Matter of an appeal under Cl 14 of the First Schedule to the Resource Management Act 1991

Between
D T S Riddiford
Appellant
and
The Masterton District Council
The Carterton District Council
The South Wairarapa District Council
Respondents
Counsel and Representatives:

D T S Riddiford for himself

R P Cheriton for the respondent Councils

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.

Held: The Court had difficulty assessing what it was Riddiford was actually seeking and therefore it could not even begin to form a view of the possible effects on the environment of his suggested modifications to the plan.

The creation of the CEMA and the more spatially restricted FPA met the criteria of s6 Resource Management Act by preserving the character of the coastal environment and protecting it from inappropriate subdivision, use and development. A proposal that aquaculture activity be a permitted activity did not provide for that nationally important issue.

In contrast to the difficulty of ascertaining specifics of the Riddiford's proposals, the plan was a coherent package which would lead to a sound planning and environmental outcome. The Riddiford's proposals had no coherence or measurable likely outcomes.

The New Zealand Coastal Plan acknowledged that some uses and developments in the coastal environment were important to the social economic and cultural well-being of people and communities, and that appropriate use and development in an appropriate place was not precluded by the protection of the values of the coastal environment. This did however not support a proposition that any activity connected with aquaculture should be an uncontrolled activity. The plan recognised both principles in making provision for aquaculture activities (and structures), while ensuring, through the resource consent processes that they were an “appropriate use and development, in appropriate places”.

The 1995 Deed of Management relied on by Riddiford, transferred to the Council (as the then legislation) required, a 20m wide strip along the high water mark as a local purpose reserve. It specified that if Riddiford wished to build intertidal seaweed, fish or marine organism culture ponds or build boat and barge berths and ancillary activities on part of the reserve and obtained all (if any) statutory consents, the Council would transfer or lease the land back to Riddiford. It did not contain any right or acknowledgement of priority or preferment in connection with aquaculture activities along what was now part of the FPA. The rights that Riddiford claimed were established by the declaration in the earlier proceeding, were likewise limited and very specific.

Further Riddiford's stance of preserving these rights overlooked the fact that territorial authorities were entitled to change the terms of their district plan. What was permitted in a first generation plan may require a consent under a later plan. Existing rights to use resources are preserved only in the very carefully phrased terms of s10 and s20A of the Act.

The appellant argued that requiring that either controlled or restricted or unrestricted discretionary resource consents be obtained for building houses, resulted in the Station land being incapable of reasonable use in terms of s85 RMA. The Court rejected this, stating that it had the power under s 85 (2) to direct necessary changes if they were made out under a s 32 analysis. It also drew attention to s 85 (6) (definition of reasonable use) and said that in assessing this, effects were not confined to those which are necessarily adverse, and significant connoted a degree of effect higher on the scale than minor, or some similar term. Land was not rendered incapable of reasonable use simply because some form of resource consent was required to avoid, remedy or mitigate adverse effects on the environment.

The Proposed Plan did not prohibit any activity mentioned by Riddiford. Those that were not permitted were controlled or were restricted or fully discretionary. There were no non-complying activities. This was not an unreasonable outcome for a coastal environment and in the scale of things it was possibly even a rather liberal outcome. The Act's regime envisaged that plan provisions might restrict common law or other landowners' rights and privileges to some degree.

Except to the extent of some suggested drafting improvements to the provisions, the appeal was declined and, the councils' decisions confirmed.

DECISION ON APPEAL

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

Introduction
1

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’.

2

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.

3

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.

Background — the Proposed Plan provisions
4

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.

5

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.

6

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.

7

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 Coastal Environment Management Area
8

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 Foreshore Protection Area
9

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:

  • (a) To protect the amenity values of the foreshore from potentially inappropriate structures; and

  • (b) To manage the potential risks from tsunami, coastal erosion and inundation.

10

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...

To continue reading

Request your trial