The Auckland Council v Dennis Winston Shepherd and Valerie June Shepherd
Decision No:  NZEnvC 423
BEFORE THE ENVIRONMENT COURT
Principal Environment Judge C J Thompson
IN THE MATTER of an Application for an Enforcement Order under s316 of the Resource Management Act 1991
S H Smith for the Auckland Council
N D Wright for D W and V J Shepherd
The application for an Enforcement Order is granted
Costs are reserved.
Application for an enforcement order under s314(1)(b)(i) Resource Management Act 1991 (scope of enforcement order) requiring the respondents to trim trees to comply with Airfield Height Restrictions in a District Plan — respondent's land adjacent to airfield — whether applicant could require the respondents to trim trees to a level lower than specified in the plan to reduce annual trimming costs — whether the respondent could establish existing use under s10 (certain existing uses in relation to land protected) — whether trimming of trees constituted a discontinued breach under s10(2).
The issues were: whether the Council could require the respondents to trim trees to a level lower than the height specified in the plan under s314(1)(b)(i) RMA, to allow leeway for the trees' regrowth and of avoiding unnecessary expenditure by the airfield owners in annually trimming the trees; whether S could establish existing use in that the trees exceeded the specified height at the time the rule was notified in 2000 under s10 RMA (certain existing uses in relation to land protected); and whether trimming of trees constituted a discontinued breach under s10(2) RMA (s10 does not apply when use of land that contravened a rule has been discontinued for a continuous period of more than 12 months).
Held: Section 314(1)(b)(i) RMA allowed the Court to make orders to ensure compliance with a rule in a plan. The Court's power went no further than that and it could not devise or enforce a more stringent standard. All the Court could do was require compliance with the rule which set a finite height for the affected trees. There was no jurisdiction to order compliance and to leave a good margin as well.
Section 10 RMA allowed for existing use rights whereby land could be used in a manner which contravened a rule in a plan if the use was lawfully established before the rule became operative. There was no evidence that gum trees planted in the 1950s had ever breached the height restriction before the Airfield Height Restrictions were notified in 2000. Another group of trees, the willows, had clearly exceeded the height restriction before 2000. However, S had consented to the trimming of the trees over a number of years in order for them to comply with the height restrictions. The non-compliant use had been discontinued for a continuous period of more than 12 months, pursuant to s10(2) RMA, therefore any existing use protection had been discontinued and no longer existed.
Application allowed. Pursuant to s314(1)(b)(i) RMA, S was required to cause or permit the trees to be trimmed or removed so that their height did not exceed the Airfield Height Restrictions in the District Plan.
Mr and Mrs Shepherd have owned a rural property of about 30 ha at Green Road, Parakai since 1971. They graze cattle and sheep there. An airfield was established almost immediately next to their eastern boundary in the mid 1980s. There is a narrow panhandle of land extending between the airfield and the Shepherds' land, so they are not immediately adjacent. For the purposes of this application, that is of no moment and can be put aside. The airfield has a single landing strip which runs east-west, so its notional extension to the west runs directly over the Shepherds' property. As is to be expected on a rural property, there are trees on the Shepherds' land, providing both a degree of amenity, and shelter and shade for the stock. Regrettably, the trees have also been a long-standing source of contention with the Council and the owners and operators of the airfield, culminating in this application for enforcement orders.
The precise terms of the orders sought will be discussed later, but in general terms what is sought are orders requiring Mr and Mrs Shepherd to reduce the height of the trees on their land to comply with the Airfield Height Restriction (AHR) in the Rodney District Plan.
It is not in dispute that there are trees on the property which, in terms of their intrusion into airspace defined by the AHR, do not comply with the Plan's requirements. The matters in contention rest elsewhere.
The structure of the District Plan is relatively straightforward. Planting a tree is a permitted activity in the Rural zone, as one would expect: — Rule 7.9.2. If however a permitted activity fails to comply with the controls in Rule 7.10, it becomes a restricted discretionary activity and would require a resource consent to be lawful. Rule 126.96.36.199 provides that… no tree shall exceed the height limits specified on the relevant Planning Maps for land around the airfields at … Parakai (see … Map Appendix 1 … and Maps… 24) …. Sheet 3 of Appendix 1 shows the relevant height restrictions applying to land at Parakai. It follows therefore that, existing use rights has been sought or granted.
The restrictions apply to land lying beneath what are referred to as Take off/Landing Fans. Clause 3 of Appendix 1 describes the Parakai airfield Fans as
These fans extend for … 1.2km … from each end of each runway. The height begins at ground level and rises at a slope of… 1 in 20.
Clause 4 of Appendix 1 is slightly less clear. It provides:
All height restrictions are affected by the elevation of the property, and height limits must be assessed in terms of elevation relative to the runway itself.
A table in Clause 5 of the Appendix confirms the length and slope angle of the Fan as set out in Clause 3, but notes the ground level of the runway thresholds above mean sea level as being: East End 5m, West End 6m. Mr Shepherd cites material from Surveyors as throwing doubt on the accuracy of those two figures. I cannot directly reconcile the two sets of numbers — not least, I suspect, because the survey RL figure of 2.28m may not have been using the same MSL datum as the District Plan. In any event, the important point is that the Fan dimensions and slopes are to be measured from, and the ground level at, the end of each runway. Put another way, they are to be measured relative to the runway's end, at whatever elevation it may actually be.
These Plan provisions have been the subject of earlier litigation. In its decision in (A24/2009) the Court dealt with an appeal against the provisions lodged by Mr and Mrs Shepherd. The Court recorded (para ) that the AHR provision that Mr and Mrs Shepherd wished to see in the Plan was
…that it commence some 180 metres from their boundary, achieving a permissible height for trees at their boundaiy of some nine metres, rather than the four metres above ground level (10 above mean sea level (amsl)) provided in the Proposed Plan.
The decision also recorded (at para ) that Mr and Mrs Shepherd had opposed the consent for the airfield in 1984 and, when it received consent, had planted trees of various species to provided shelter and shade for stock, and to force aircraft to approach the airfield at a higher angle and avoid or reduce stock reaction. Having followed the line of analysis discussed in cases such as (W47/2005) the Court concluded that the proposed provisions, now reflected in the Plan, were the appropriate planning outcome and confirmed them, subject only to adding an Advice Note which said: Where the owner consents, trimming of trees required to comply with the AHR will be undertaken at the instruction of and paid for by the adjacent airfield. That reflected an offer by the airfield owners to meet those costs, so as to avoid the direct cost burden of trimming from falling on the Shepherds. The Council and Mr and Mrs Shepherd have differing interpretations of that sentence, and I shall return to it at para .
In his submissions for the Shepherds, Mr Wright mentioned the requirements of the Civil Aviation Authority (CAA) and their relationship to the content of the Plan, and the way in which it had been arrived at. I mention that first, simply to set it aside. The assertion was that the neither the airfield's owners, nor the Council for that matter, had conducted a survey of the obstructions existing at the time of notification of the Plan provisions, or at the time the appeal was heard before this Court. Such a survey was said to be a CAA requirement. Possibly so, but it is not a requirement under the Resource Management Act. What is relevant is that the Fan in the Plan matches the CAA requirements for airfield clearances, and that the Fan and its related Plan provisions have been through the RMA processes, including an appeal, and are indubitably part of the District Plan. Whether those provisions have been based on flawed factual material, as Mr Shepherd would have it, is not for resolution in this proceeding. The rule says what it says, and if anyone thinks it should be different they will have to seek a Plan Change. Nothing further need be said on that issue.
The point is made that the Council relies only on...
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