Smith v Marlborough District Council

• Jurisdiction: New Zealand
• Judge: C J Thompson,K A Edmonds,J R Mills
• Judgment Date: 20 September 2010
• Neutral Citation: [2011] NZEnvC 328
• Docket Number: ENV-2010-CHC-000148
• Court: Environment Court
• Date: 20 September 2010

Between

In The Matter of an appeal under s120 of the Resource Management Act 1991

Alan Walter Smith

Appellant

and

The Marlborough District Council

Respondent

Decision [2011] NZEnvC 328

Court:

Environment Judge C J Thompson, Environment Commissioner K A Edmonds Environment Commissioner J R Mills

Further submissions received 29 September and 4 October 2011

ENV-2010-CHC-000148

BEFORE THE ENVIRONMENT COURT

Appeal from a decision of the respondent requiring the appellant to remove a temporary dwelling — appellant granted permission to construct a second dwelling to provide temporary living accommodation — dwelling to be removed when no longer required — effects on environment under s104(1)(a) Resource Management Act 1991 (consideration of application) — whether volunteered covenants made a difference — whether adverse effects should be disregarded under s104(2) on basis house was already there — whether second dwelling inconsistent with objectives of planning documents under s104(1)(b) — precedent effect.

counsel:

Q A M Davies and M J Sandom for A W Smith

M J Radich for the Marlborough District Council

Decision issued: 07 OCT 2011

• A. The appeal is declined and the Council's decision is confirmed.

• B. Costs are reserved

DECISION OF THE COURT

Introduction

1 In 1987 the then local authority granted a permit under s642 of the Local Government Act 1974 to Mr Smith to erect a second house on land he owned for … temporary living accommodation – to be removed from the site when it ceases to be used for the purpose requested. The purpose requested was a house for Mr Smith's parents, it being a second house on the property. A bond of $10,000, to be adjusted by the annual CPI movement, was required to assure the removal of the house when it was no longer required for the nominated purpose. Mr Smith's father has since died, and his mother wishes to move elsewhere. So does he, and he wishes to sell the property with the second house remaining on it.

2 The property is located at 678 New Renwick Road, Fairhall, on the outskirts of Blenheim. It is c8ha in size, and about 70% of it is leased for use as a vineyard. The remaining c2.5ha contains the two houses (which are cl50m apart), their curtilages, accessways and outbuildings. The house in question is of about 112m ², with two bedrooms, and it has independent services. The property is surrounded on three sides by other vineyards and pastoral properties, and Woodbourne Airport is about 900m to the north.

Activity status

3 The property is in the Marlborough District's Rural 3 zone where one residence per Certificate of Title is a permitted activity. A second residence in that zone is a discretionary activity and requires consent in terms of Rules 30.1.1 and 30.4.1 of the operative Wairau/Awatere Resource Management Plan. As a discretionary activity the application is to be considered under the provisions of s104 and Part 2 of the RMA.

Section 104(1) (a) — effects on the environment if the second dwelling remains

4 To address this issue, we need to consider:

• • What benefits or positive effects would there be?

• • What would the adverse effects be?

• • Do the volunteered covenants make a difference?

• • Should we disregard adverse effects associated with the permitted baseline (i.e. permitted activities for the site) in the District Plan?

Benefits or positive effects

5 The proposal would undoubtedly have benefits for the Smiths, allowing anyone — not just a family member — to reside in what would be a permanent second dwelling on the property, and also as a lever for removing the requirement to pay the bond. Mr Davies submitted that the bond issue would require an application to the District Court under the Property Law Act 2007, with the Environment Court's decision on the merits of the resource consent application being of relevance, but not decisive.

The adverse effects

6 Mr Phillip Percy, the planning witness for the appellant, took as his starting point the existing environment as including the temporary dwelling. In our view that cannot be right, given that the dwelling must be removed when Mrs Smith no longer lives there,

7 Mr Keith Heather, the planning witness for the Council, gave persuasive evidence on the adverse effects of making a temporary dwelling permanent. The District Plan allows only one dwelling per Certificate of Title as of right in the Rural 3 zone. The minimum subdivisible lot size is 8 ha; smaller lot subdivision is a non-complying activity. Retaining the second dwelling without restriction would double the housing density in that part of the rural environment, resulting in a loss of rural openness. The rural character of the area would be permanently changed through the addition of a residential building and, potentially, accessory buildings and their surroundings as opposed to the visual effects of production buildings.

8 Mr Heather referred to the presence of an additional house within the rural environment, for use by those with purely residential aspirations, as creating the potential for complaint about surrounding rural activity – ie the concept of reverse sensitivity. Mr Percy dismissed the potential for adverse effects on the legitimate operation of existing rural land uses. However, Mr Smith's own evidence states that the reason he wishes to leave and live elsewhere is that he has … grown to dislike the odour, noise, spray drift and visual impact of grapes and viticulture on the Wairau Plain. He has also complained about rural operations near his property, which we accept may be justifiable in terms of their compliance with required standards or conditions.

9 We also recognise that the immediate neighbours have given written approval to the proposal, and under sl04(3)(a)(ii) we cannot consider effects on them.

10 Most importantly, the land or soil resource would not be available for future productive use, including being compromised by the location of a second house and its curtilage in the middle of the front part of the property. We do not accept Mr Percy's argument that the soil resource would continue to exist under the house and that should be counted as minimising the proposal's adverse effects. There would be the permanent loss of productive land from the Rural 3 zone.

11 We also agree with Mr Heather's evidence on the potential for incremental creep towards subdivision, with two separate self-contained dwellings and their associated curtilages becoming a justification for small scale residential subdivision. There could also be the potential for an extension to, or even replacement of, the existing 112m ² dwelling with a much larger house (and even an associated family flat) on the basis that there would only a small incremental change in effects, again justifying the approval of a resource consent application. Either or both of those possibilities have the potential for additional adverse effects. We deal with the precedent and plan integrity considerations of such further development and subdivision later in this decision.

Do the volunteered covenants make a difference?

12 The appellant offered three covenants, to be effective for 25 years:

A 25 year period was put forward for these covenants as recognising that environments, attitudes and plan provisions change over time. There was also a suggestion that Mr Smith would consent to a more restrictive terms if the Court saw that as necessary.

• • To substitute the bond on the title for a no subdivision covenant;

• • A no family flat covenant;

• • Site coverage of no more than 1,000m ² for buildings not associated with a productive use (1.2 hectares coverage is permitted).

13 The volunteered covenants make no difference to the actual and potential adverse effects. The suggestion of a no subdivision covenant vindicates the concern that the approval of a second dwelling would lead inexorably to a request for the later subdivision of the lot into two. A potential family flat located with the existing permanent house would not have the adverse effects a second dwelling has. But restricting the site coverage to the degree proposed would not overcome the disadvantages of a permanent second dwelling and its curtilage, including its central placement on the front of the property. Covenants with terms longer than 25 years would not deal with the adverse effects of the loss of productive land in the longer time frame over which the sustainable management of natural resources has to be considered.

Should we disregard the adverse effects?

14 A major part of the appellant's case was that we should disregard those adverse effects under s104(2) on the basis the house was already there, or that permitted activities would have similar effects. The first instance decision did not disregard those adverse effects and we decline to do that for similar reasons, as discussed in this decision.

15 The applicant considered that even taking into account the bond, the approach in Rodney District Council v Eyres Eco Park Limited [2007] NZRMA 1 (HC) would tend to treat the existing building as part of the existing environment. We disagree. A temporary residence for Mr Smith's mother should not be considered part of the existing environment, particularly given the requirement that the building be removed once Mrs Smith no longer lives in it, and the expressed intention of the Smith family to sell the property and move away.

16 In terms of the Lyttelton Harbour Landscape Protection Association v Christchurch City Council [2006] NZRMA 559 approach, we do not find the Plan provides for permitted activities from which a reasonable comparison of adverse effects can credibly be drawn. Permitted activities would generally not have similar effects. The erection of dwellings and the corresponding reduction in rural use and productive capacity are the effects of concern. A second stand alone dwelling is not a family...