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

 
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Decision [2010] NZEnvC 309

BEFORE THE ENVIRONMENT COURT

Court:

Principal Environment Judge C J Thompson

Environment Commissioner K A Edmonds

Environment Commissioner D Bunting

ENV-2007-AKL-000657 and 681

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
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

The appeals by Wairoa River Canal Partnership and Te Arai Coastal Lands Limited are allowed to the limited extent set out in para [37] Costs are reserved

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.

The issues on appeal were: whether the Council could introduce policies into the Policy statement that were worded differently or were inconsistent with the wording in the provisions in Part 2 Resource Management Act 1991 (“RMA”) (purpose and principles) which provided for “inappropriate development” in areas of national importance under s6(a) (matters of national importance) and whether the Policy Statement complied with Regional Policy Statements provisions under ss59 — 62 Resource Management Act 1991.

Held: A Regional Policy Statement must give effect to, and achieve the purposes of the RMA. It therefore could not have a purpose or meaning that was inconsistent with the provisions of Part 2 RMA or any other provision of the RMA. However, it was not necessary that every subsidiary planning document had to replicate the exact words of every superior document including the RMA. A document could give effect to another document without having to repeat it word for word.

The fact that s6(a) RMA (matters of national importance) used the term “inappropriate development” did not mean that it had to be repeated in the Policy Statement. To be of most benefit, policy statements or plans should interpret the wording of higher documents into a regional context. They should provide definition and clarification of phrases such as “inappropriate subdivision, use and development” as used in s6(a) RMA through a descriptive planning framework within which such areas could be identified and informed judgement made as to which policies should be applied to which areas and activities.

Regional Policy Statements had to comply with s59 (purpose of regional policy statements), s60 (preparation and change of regional policy statements), s61 (Matters to be considered by regional council (policy statements)) and s62 RMA (contents of regional policy statements). A Policy Statement could not contain rules that prohibited, regulated or allowed activities. The plan change had not attempted to impose a prohibition on development; to “avoid” was a step short of “prohibit”. If there were issues about the extent of areas with significant ecological or heritage values or outstanding natural features or landscapes of high natural character, they were matters to be addressed through the Policy Statement or District Plan. The Policy Statement had not ruled out or identified special cases for Countryside Living.

Wairoa River's proposed amendment of inserting the words “inappropriate development” as used in s6(a) RMA would not have addressed the concerns about threats to significant ecological, heritage or landscape values or high natural character. The Council's proposed amendment better suited the needs of the Council to carry out its functions in order to achieve the purpose of the RMA and the aims of the Policy Statement.

The appeal was allowed to the extent of substituting the Council's proposed amendment (that stated the Countryside Living was to be avoided in identified areas which had significant ecological, heritage or landscape value or high natural character) to the Policy Statement.

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...

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