Wairoa River Canal Partnership Te Arai Coastal Lands Ltd v Auckland Regional Council

• Jurisdiction: New Zealand
• Judge: C J Thompson,K A Edmonds,D Bunting
• Judgment Date: 10 September 2010
• Neutral Citation: [2010] NZEnvC 309
• Docket Number: ENV-2007-AKL-000657 and 681
• Court: Environment Court
• Date: 10 September 2010

In The Matter of appeals under c114(1) of the First Schedule to the Resource Management Act 1991

BETWEEN

Wairoa River Canal Partnership Te Arai Coastal Lands Limited

Appellants

and

The Auckland Regional Council

Respondent

Decision [2010] NZEnvC 309

Court:

Principal Environment Judge C J Thompson

Environment Commissioner K A Edmonds

Environment Commissioner D Bunting

ENV-2007-AKL-000657 and 681

BEFORE THE ENVIRONMENT COURT

Appeal against provisions of a plan change to the Auckland Regional Policy Statement which provided that “Countryside Living” (low density residential development in rural areas) was to be avoided in areas which contained significant environmental, heritage or landscape values — appellant appealed on basis policies could not be worded differently from Part 2 Resource Management Act 1991 (purpose and principles) which provided for “inappropriate development” in areas of national importance under s6(a) — whether the Policy Statement wording had to be identical to the wording used in the Resource Management Act 1991 — whether the Policy Statement complied with Regional Policy Statements provisions under ss59 — 62 Resource Management Act 1991.

Counsel:

R B Brabant for Wairoa River Canal Partnership

C H Simmons for Te Arai Coastal Lands Limited

R J Sommerville QC, L S Fraser and K S Torrance for the Auckland Regional Council

DECISIONS ON APPEALS

Introduction

1 In June 2007 the Auckland Regional Council (ARC) adopted Plan Change 6 (PC6) which introduced what it regarded as strategic policies into the Auckland Regional Policy Statement (RPS). The provisions of PC 6 relating to Countryside Living (CSL) are the subject of these appeals. A number of other organisations were also appellants or parties to appeals relating to various parts of PC 6, but indicated at the outset of the hearing that they would abide the Court's decision on these issues and did not wish to participate further. They were: Horticulture New Zealand; Neil Construction Ltd; Federated Farmers of New Zealand Inc; Auckland Regional Transport Authority; Winstone Aggregates Ltd; New Zealand Transport Agency; Warehouse Ltd; Waitakere Ranges Protection Soc Inc, and Karaka Harbourside Estate Ltd. The argument for the remaining appellants was carried by Mr Brabant for the Wairoa River Canal Partnership (WRCP), with Mr Simmons for Te Arai Coastal Lands Ltd essentially maintaining a watching brief.

2 The ARC called a number of expert witnesses to support its approach in PC 6. The WRCP did not call evidence and relied upon cross-examination of the ARC witnesses, and submissions on matters of law.

The disputed policy

3 The provision put in issue by the participating appellants was, in the version adopted in June 2007, Policy 2.6.17.4(i)(e):

• (i) Countryside living is avoided in areas which: …

  • (e) contain significant environmental, heritage or landscape values and areas with high natural character, including areas identified in Appendix B.

As a result of mediation and negotiation since the adopting of PC 6, and in an attempt to meet the concerns of these appellants, the version now suggested by the Council is now numbered 2.6.17.3(ii)(a) (referred to in argument as Policy 3) and is worded somewhat differently:

Countryside living avoids development in those areas or parts of areas identified, in the RPS, including Appendix B, or in regional or district plans, as having significant ecological, heritage or landscape value or high natural character and that contain:

• (a) significant ecological value; or

• (b) significant historic heritage (excluding significant historic built heritage); or

• (c) outstanding natural features and landscapes; or

• (d) high natural character;

4 Countryside living is a broad concept. It is defined in Appendix D of the RPS as: … low density residential development on rural land. It includes the concepts of Rural-Residential development, scattered rural-residential lots, farmlets, residential bush lots, retirement lots, large-lot residential development and the like. It is similar to low density residential development where it occurs within urban areas.

5 PC 6 was an exercise undertaken in response to the requirements of s39 of the Local Government (Auckland) Amendment Act 2004 (LGAAA) which stipulated that each Auckland local authority was to make land transport and land use changes to its planning documents, of which the RPS is one. Section 40 of the same Act provided that such a change was to include issues, objectives, policies and methods to give effect to the growth concept in the Auckland Regional Growth Strategy and was to contribute to the matters specified in Schedule 5 to the Act.

6 Schedule 5 speaks of …providing increased certainty in the assessment of resource consents … related to transport and urban form, and ensuring that transport and land use patterns are aligned to achieve sustainability, efficiency and liveability in the …region; supporting … sustainable urban land use intensification; and integrating … land use policies to reinforce metropolitan urban and rural objectives of the [ARPS].

7 Because PC 6 was notified in March 2005, it is agreed that the law to be applied is the relevant provisions of the RMA as they stood prior to the 2005 amendments.

The appellants' position

8 The amendment sought by the appellants is deceptively simple — the insertion of the word inappropriate between avoids and development on the first line of Policy 3. It is accepted that if the amendment is adopted some consequential amendments to other PC 6 provisions would be required, but for present purposes we can focus on the principal issue.

The issues

9 The essence of Mr Brabant's argument is, as he expressed it, that the … Council is not free to introduce policies into the ARPS through Change 6 that are differently worded or are inconsistent with the wording of provisions in Part 2. We have no difficulty in accepting that, given the top down hierarchy of planning documents, a Regional Policy Statement must give effect to, and achieve the purposes of the Act. It therefore cannot have a purpose or meaning inconsistent with the provisions of Part 2 and indeed any other provision of the RMA.

10 But it is less easy to accept a requirement, implicit in the argument, that every subsidiary planning document must parrot the exact words of every superior document, including the Act. As a matter of linguistics, one document might give effect to, and not be inconsistent with, another document without having to repeat it, word for word. Indeed, if it was no more than simply repetitious, there would be little point in having it — the superior document would probably suffice on its own. Nor are we aware of any principle of law to that effect.

11 Another of Mr Brabant's arguments is that other objectives (Objective 7.3.1) and policies (Policy 7.4.4.1) use the words inappropriate development. We do not see that the fact that other objectives and policies rather unhelpfully repeat the words in s6(a) justifies their repetition elsewhere in the ARP S. We also note that there is no challenge to Policy 2.6.17.4(i) and (iii) which contain the word avoid without a qualifying adjective.

12 We agree with the planning evidence of Ms Karen Blair, a consultant planner called by the ARC. To be of most benefit, an RPS (or plan) should not repeat or paraphrase the requirements of higher order documents but should interpret them into the regional (or local) context. They should provide definition and clarification of phrases such as inappropriate subdivision, use and development through an explicit spatial and/or descriptive planning framework within which such areas can be identified and informed judgement made as to which policies should be applied to which areas and activities. One means of doing this is to identify areas where a certain type of development is not appropriate. Mr Peter Reaburn (also a consultant planner called by the ARC) succinctly made the point that without a definition of what amounts to inappropriate development there would be little direction given to TLA's in how to prepare and administer their plans.

Discussion

13 If we dispense with that artificial requirement, we can go straight to the real enquiry: — is Policy 3, as now proposed, a provision that complies with sections 59, 60, 61 and 62of the Act? In posing that question, we are mindful that the only one of those provisions which expressly uses the terms … not be inconsistent with … and … give effect to … is s62, in speaking of water conservation orders, a national policy statement, and the NZCPS as superior planning documents.

14 It is to be noted that an RPS may not, of itself, contain rules that prohibit, regulate or allow activities. But it may contain policies and methods directed to a particular end or outcome, with those policies and methods to be given effect through a District Plan, which must not be inconsistent with the RPS: — see s75(2)(b) and North Shore City Council (Re an Application) [1995] NZRMA 74.Similarly, a policy may be either flexible or inflexible, broad or narrow: — see ARC v North Shore CC [1995] NZRMA 424.

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