Smith v Marlborough District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeC J Thompson,Environment Judge
Judgment Date20 September 2010
Neutral Citation[2011] NZEnvC 328
Date20 September 2010
Docket NumberENV-2010-CHC-000148

Decision [2011] NZEnvC 328



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

Further submissions received 29 September and 4 October 2011



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

Alan Walter Smith
The Marlborough District Council

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

M J Radich for the Marlborough District Council

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.

The issues on appeal were: the effect of reduced productive land; whether the volunteered covenants made a difference; whether adverse effects should be disregarded under s104(2) RMA (authority may disregard an adverse effect if plan permits an activity with that effect) on the basis the house was already there; whether the second dwelling was inconsistent with objectives of planning documents under s104(1)(b) (consideration of planning documents).

Held: The land or soil resources would not be available for future productive use, including being compromised by the location of a second house and its curtilage in the front part of the property. The fact that the soil resource would continue to exist under the house did not count as minimising the proposal's adverse effects. There would be permanent loss of productive land.

There was a potential for an incremental creep towards subdivision. Two separate dwellings could become a justification for small scale residential subdivision. There was also the potential for an extension to or even replacement of the existing dwelling with a much larger house.

The volunteered covenants made no difference to the actual and potential adverse effects. The suggestion of a non-subdivision consent vindicated the concern that the approval would inexorably lead to a request for the later subdivision of the lot. A potential family flat would not have the adverse effects a second dwelling had. Restricting the site coverage would not overcome the disadvantages of a permanent second dwelling. Covenants of 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 had to be considered.

A temporary residence should not be considered part of the existing environment, particularly given the requirement that it had to be moved once S's mother stopped living there.

The land was in Rural 3 zone, which the district plan stated was a valuable and versatile land resource. The objectives were to maintain or enhance the life supporting capacity of the versatile soils, and to limit the scale and range of activities that could be established to those requiring a rural location and to discourage activities that did not rely on the productive capacity of the land in the Rural 3 zone. In considering the effect on the life supporting and productive capacity of the land, more than an examination of the effects on the soil was required. It was necessary to consider whether the land, including the dwelling and the associated curtilage, would be available for productive use if the proposal was granted. The answer to that was no. The objectives gave primacy to rural activities over purely residential activities and did not support a second house or the possibility of further subdivision to separate out a second house. S's proposal clearly conflicted with the objectives and policies of the Plan.

If S's application was granted it would be an Environment Court precedent which the Council might have difficulty in distinguishing. The proposal would reduce rather than sustain the ability to meet the standards of future generations, and it would undermine rather than safeguard the life supporting capacity of the soil. It did not promote the purpose of sustainable management of natural resources.

Appeal declined.

Decision issued: 07 OCT 2011

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

  • B. Costs are reserved


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.


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

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

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

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

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,


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.


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 theodour, 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.


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.


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.


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...

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