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High Court of New Zealand Decisions |
Last Updated: 4 December 2018
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CIV-2017-409-891
[2018] NZHC 3118 |
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BETWEEN
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HAREWOOD GRAVELS COMPANY LIMITED
Appellant
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AND
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CHRISTCHURCH CITY COUNCIL
First Respondent
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AND
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YALDHURST QUARRIES JOINT ACTION GROUP
Second Respondent
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Hearing:
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26, 27 and 28 March 2018
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Appearances:
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E J Chapman, J M Appleyard and J A Robinson for Appellant B K Pizzey for
First Respondent
M R G Christensen for Second Respondent
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Judgment:
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30 November 2018
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JUDGMENT OF NICHOLAS DAVIDSON J
HAREWOOD GRAVELS COMPANY LIMITED v CHRISTCHURCH CITY COUNCIL & ANOR [2018] NZHC 3118 [30 November 2018]
TABLE OF CONTENTS
The setting for this appeal [3]
HGL’s appeal to this Court [12]
JAG [17]
Christchurch City Council [24]
Key definitions [33]
Christchurch District Plan [39]
Strategic Directions of the District Plan [40]
Noise [56]
Traffic [57]
Threshold of effects [59]
The receiving environment [63]
Landform and soil [64]
Vegetation [65]
Views [66]
Existing land uses [67]
Local road network and environment [68]
Noise environment [70]
Dust environment [73]
Benefits of proposed quarry [75]
Rural amenity and character [76]
The District Plan [82]
Rehabilitation [90]
Cumulative effect of quarrying [91]
Noise [93]
Methodology [98]
The additive noise from HGL Quarry traffic [104] Change to existing noise environment – effect on rural amenity [106] Dust [119]
Traffic [130]
Vibration [136]
Evaluation of the proposal [137]
DECISION, AND THE LAW [148]
Errors of law [150]
E. SEVEN QUESTIONS OF LAW [156]
First Question of Law: Did the Court err in its interpretation of the meaning of “rural character” and therefore further err in its
interpretation of the evidence before it? [159]
Submissions for HGL [159]
Submissions for the Christchurch City Council [181]
Submissions for JAG [185]
Discussion [187]
Second Question of Law: Did the Court incorrectly apply the District Plan Rules as they relate to noise, to apply to noise from traffic on a
public road? [190]
Submissions for HGL [190]
Submissions for the Council [195]
Submissions for JAG [200]
Discussion [202]
Third Question of Law: Did the Court impose a requirement on evidence of experts which went beyond the role of an expert, assessing the effects
of a proposal? [203]
Submissions for HGL [203]
Submissions for the Council [212]
Submissions for JAG [225]
Discussion [226]
Fourth Question of Law: Did the Court incorrectly interpret the
rehabilitation Rules of the District Plan? [232]
Submissions HGL [232]
Submissions for JAG [238]
Discussion [239]
Fifth Question of Law: Did the Court err in its finding that it had
insufficient evidence to determine whether the application was contrary to the Objectives and Policies of the District Plan and thus whether it
could pass the s 104D gateway test? [242]
Submissions for HGL [242]
Submissions for JAG [247]
Discussion [253]
Sixth Question of Law: Did the Court come to a conclusion without
evidence, or a conclusion which on the evidence it could not reasonably have reached, when determining that a 3dB increase arising from traffic
noise from the Transport Zone was a “significant adverse effect”? [262]
Submissions for HGL [262]
Submissions for the Council [279]
Submissions for JAG [283]
Discussion [284]
The Second and Sixth Questions of Law - Summary [289]
First noise error (sixth error of law) [290]
Second noise error (second error of law) [291]
Third noise error (second error of law) [294]
Fourth noise error (second error of law) [296]
Fifth noise error (second error of law) [298]
Sixth noise error (sixth error of law) [300]
Seventh Question of Law: Did the Court err in its elevation of the
importance of “avoidance” over other approaches contemplated by the District Plan, which resulted in the incorrect interpretation of the
Objectives and Policies? [301]
Submissions for HGL [301]
Submissions for JAG [306]
Discussion [311]
Relief [321]
The future [323]
(Note: “emphasis added” means for this Judgment).
A. INTRODUCTION
[1] Harewood Gravels Company Limited (“HGL”) appeals against the Decision of the Environment Court (“the Court”) dated 10 October 2017 (“the Decision”).1 The Court allowed an appeal by Yaldhurst Quarries Joint Action Group (“JAG”) and declined land use consent granted by the Christchurch City Council (“the Council”) to establish a quarry near Christchurch Airport (RMA 92030745).
[2] The appeal is brought under s 299 of the Resource Management Act 1992 (“RMA” or “the Act”). HGL alleges seven material errors of law made by the Court and seeks an order that the Court be directed to reconsider its Decision without such error/s.
The setting for this appeal
[3] HGL applied to the Canterbury Regional Council (“the Regional Council”) and the Council for resource consents to establish and operate a quarry at 21 Conservators Road, Christchurch, west of Christchurch International Airport, on a no-exit rural road, with access to Pound Road via Savills Road. Some longstanding quarry operations are located in the area. The proposed quarry site is depicted in the Schedule to this judgment.
[4] HGL is a joint venture of Road Metals Limited and Isaac Construction Limited and already operates a quarry site at McLeans Island Road which has a limited life. The proposed site is for medium and long-term quarry operations, with a land use consent life of 30 years. It was a contentious submission for HGL that it operates a quarry site and “... this is a replacement quarry...”. That made issues about cumulative effects invalid according to Mr Chapman, co-counsel with Ms Appleyard for HGL. He went so far as to say “It’s simply one quarry closing down its operation at one point, re-opening around the corner”. Pressed further, he said the Court talked about seven quarries in the zone, but the number would remain six and there would continue to be six when the existing HGL quarry is worked out. He acknowledged,
1 Yaldhurst Quarries Joint Action Group v Christchurch City Council [2017] NZEnvC 165.
however, the effects would be different: “New people, new access ways. There are different effects”.
[5] Mr Christensen, counsel for JAG, says there are seven existing and consented quarries on the map (see the Schedule), and this would be the eighth until HGL terminates operations at its existing quarry. The Court said this:
[80] 250m or so north of the formed section of Conservators Rd is the southern boundary of one of four existing quarries, aligned on an approximately 3 kilometres east-west axis, and fronting McLeans Island Rd. these are owned by Fulton Hogan Limited, KB Contracting and Quarries Limited, Harewood Gravels and Isaac Construction. To the west of Conservators Road and adjoining the subject site is a recent quarry developed by SOL Quarries Limited. It has a light vehicle access to Conservators Rd and heavy goods vehicle (HGV) access to guys Rd, located some 700m from the nearest existing dwelling.
[81] To the north and East of Savills Rd adjacent to number 25, there is a recently consented quarry owned by Frews Quarry Limited. At the time of the hearing it was yet to commence production although an access to Savills Road is formed and preliminary site works have been completed. On the southern side of Savills Rd opposite (in part) Frews Quarry has the disused Grant Brothers Quarry, now operated as a cleanfill site.
[6] There are thus six quarries in use or consented, and one cleanfill site. This proposed HGL quarry would be the seventh, but one day, not yet fixed, it will end operations at its existing quarry.
[7] The consents required for quarrying include City Council land use consent and Regional Council consents to discharge contaminants to air and land. Consents were granted by Independent Commissioners appointed by the Regional Council and the Council in a decision dated 13 July 2016 (“the Commissioners’ Decision”). This proposed quarrying activity is non-complying under the Christchurch District Plan (“District Plan”) because it exceeds the relevant noise standard at the site’s southern boundary, although the contiguous land is not noise sensitive. The site is within the Rural Waimakariri Zone where quarrying is a discretionary activity if located 250 metres or more from a residential zone.2 As such, the consent authority, here the Council, must, subject to Part 2 RMA, have regard to any actual and potential effects on the environment of allowing the activity, relevant provisions of the Canterbury
2 Christchurch District Plan, Chapter 17, Rule 17.5.1.4.
Regional Policy Statement, the Christchurch District Plan, and any other matter the consent authority considers relevant and reasonably necessary to determine the application.
[8] The Regional Council consents allow for discharge to air from fugitive dust emissions associated with excavation of the quarry floor and processing on the site. Dust mitigation plans are conditions of consent and include controls on quarrying relating to wind speed, monitoring obligations and directions, to cease operations at a certain level and to operate under a quarry Dust Management Plan. This is unlike the quarry operated by HGL at the moment where there are no dust management conditions, no groundwater testing, and no rehabilitation of the kind required in the consent granted for this HGL proposal by the Hearing Commissioners.
[9] No permitted baseline considerations apply. The JAG appeal to the Environment Court was primarily concerned with effects on the rural character of the area and the amenity values that derive from that character.
[10] The Environment Court’s approach was expressed as follows:3
[13] The effects of the proposal when considered in isolation may well appear of no great moment. The primary issue for determination is whether the cumulative effects of the proposal achieve the objectives of the District Plan and thereby promote the sustainable management of natural and physical resources.
[11] The Court held that HGL had not met either threshold test for a non-complying activity under s 104D RMA, nor would it have granted consent under s 104 RMA.
HGL’s appeal to this Court
[12] HGL says this appeal mainly involves “interpretation errors” which separately and cumulatively resulted in the Decision to allow the appeal and to decline/revoke the consent. Counsel say that this is the first case which involves quarry activities in Rural Zones to come before the High Court, and involves a significant challenge to the reasoning and conclusions of the Court, based on well-established principles.
3 Yaldhurst Quarries Joint Action Group, above n 1.
[13] The boundaries of the Rural Quarry Zone have not changed under the District Plan, but the activity status of a quarry is in some circumstances now discretionary rather than non-complying. Quarrying comes within the definition of a “rural productive activity”. The District Plan has adopted Objectives and Policies for the seven Rural Zones, which seek to foster such activities, but to limit their effects within the Zone. Mr Chapman, one of three counsel for HGL, puts the questions of law broadly as whether the Environment Court’s interpretation of the law was correct in light of the Plan, the expert and neighbour evidence, and whether the ultimate Decision made by the Court to decline consent was correct at law.
[14] Mr Chapman’s submission is that the District Plan has “changed the emphasis” with regard to quarrying outside the Rural Quarry Zone, so that it is just as much a rural productive activity as sheep and beef farming, and this has put quarrying “on the same platform” and “effectively lowered the bar” by making it discretionary. Mr Chapman made much of the fact that there is one Strategic Objective relating to the Rural Zone (discussed further), directed to productive and diverse activity to enable the rural environment primarily for rural productive activities and other activities which use the rural resource efficiently and contribute positively to the economy. As Mr Chapman puts it, “... it’s the money-making zone”. That submission is qualified to the extent that the contribution of rural land to maintaining values in the natural environment must be brought to account. Mr Chapman says that there is no residential use mentioned in the Objectives, but in any event, the amenity values which the District Plan seeks to support, maintain and enhance, are not restricted to residents in an area, and rural productive activities and those involved in such activities also enjoy amenity values.
[15] Mr Chapman says that maintenance of local rural amenity values requires more than one house being affected, and the area is fully developed for that permitted rural residential activity given the number of houses on lots around the quarry site. He submits that maintaining rural amenity value is maintaining that which is present in the locality, and these values are not pristine, not what they were ten years ago, and they should be assessed having regard to the environment in which the quarry is working. He says that is why amenity value should be viewed on a “locality” basis, rather than “one house”.
[16] He says that this appeal also seeks to clarify the point at which the effects of a rural productive activity become too great for residents in a locality within the Rural Zone to absorb, so as to merit the decline of consent.
JAG
[17] JAG is made up of 10 persons who own and occupy properties in the locality, and who are concerned with the cumulative adverse effects of quarrying on their health, and the amenity of the area. JAG appealed the Commissioners’ Decision to grant land use consent, but not the consents granted by the Regional Council. After a six day hearing in the Environment Court, JAG was successful.
[18] JAG, through counsel Mr Christensen, adopts the submissions made for the Council by Mr Pizzey as to the principles which apply on appeal from Decisions of the Environment Court, on the first, second, third and sixth (of seven) questions of law. JAG otherwise largely focuses its submissions on the fourth, fifth and seventh questions of law. Mr Christensen submits that the appeal as a whole is simply a challenge to the merits of the Environment Court’s Decision on the extensive evidence before it, and none of the alleged errors are errors of law, if they are errors at all.
[19] Mr Christensen said JAG made submissions to the Environment Court that the expert evidence had essentially missed the point about the cumulative effects on the residents’ rural amenity, especially as to noise and dust nuisance. The residents’ position is that the rural amenity and character of the area has already changed because of quarrying activities, to their detriment, on their evidence, including a higher level of noise, dust, and heavy traffic than would be the case with permitted rural activity. They accept that well managed quarries are rural activities and that is why they came to a settlement in their opposition to the application made by Frews Quarry Limited (“Frews”) to establish its quarry.
[20] JAG’s position is that it is not “normal” in terms of the Rural Zoning to have several quarries which effectively surround them, each additional quarry adding to the cumulative effects and the subjective feeling, to them, that the environment has changed, no longer reflecting the rural amenity they submit is intended by the Plan.
[21] The JAG residents say that it is wrong to take each element of dust, noise, traffic et cetera and assess that against a Rule or other provision in the District Plan or to make a general finding that effects can be reasonably minimised. Each individual element may have no more than a minor adverse effect, but the overall adverse effect may be more than minor, looking holistically at the proposal and cumulative effects from existing and consented quarries. One quarry may have no more than a minor effect but cumulatively the effects may compound.
[22] In essence, Mr Christensen’s submission is that amenity values in the rural environment, here for residential use, will or may be able to hold in the face of development to a certain point, but there is a degree or intensity of development at some point which will or may “break the camel’s back”. The City Plan does not say quarries are acceptable in all locations in a rural area, because if that were the case, the Quarry Zone provisions would apply across the Rural Zones.
[23] At the heart of JAG’s case is the proposition that it is not enough for the proposed quarry to meet relevant permitted activity noise standards, safe traffic movements, and dust minimisation, so that the Court then has “no choice but to grant consent”. The Court has a discretion to decline consent or impose conditions within permitted activity standards, stricter than might be the case if HGL was the only quarry in the area. A singular point made for the JAG residents is that there will be more operational crushing and heavy traffic noise to a point where for two at least of the residents, the effects from noise will be significantly adverse.
Christchurch City Council
[24] The Council, through counsel Mr Pizzey, submits that the expert evidence led by the Council to assist the Environment Court broadly supported the Decision to grant consent, but it put its case in a way that led the Court to characterise the Council’s position on appeal as neutral. The Council contests alleged errors of law one, two, three and six, and remains neutral and abides the judgment of the Court in relation to alleged errors of law four, five and seven.
[25] Mr Pizzey describes HGL’s case under Questions One, Two, three, and Six as a straightforward challenge to the merits of the Environment Court’s Decision,
particularly the application of its own planning expertise, and its conclusions on the evidence. He challenges HGL’s characterisation of the Court’s Decision and says that the appeal is said to be brought to clarify when the effects of a rural productive activity become too much for residents to absorb, so as to merit the decline of consent, and this is simply a challenge to the merits of the Court’s findings on the evidence. The High Court, he submits, is being asked to substitute its own judgment based on the evidence, over that of a specialist Court. Otherwise, he submits that it is by no means established that any of the alleged errors materially affected the Court’s Decision, even if error is established in one or more respects.
B. ENVIRONMENT COURT DECISION
[26] The Decision of the Environment Court was delivered on 10 October 2017 after a hearing in two tranches in March and May that year. It is not possible to do justice to the Decision, or to fully comprehend the questions for this judgment, without a full understanding of the Court’s reasons and the evidence before it. It is easy to ‘pick at’ a Decision when alleging an error of law which involves evidence, but it is usually wrong to do so unless there is an obvious error of principle. The reasons of the Court, and the evidence available to it, will only emerge when the contextual setting before the Court is thoroughly understood.
[27] First, it must be said that the Court carefully explained the approach which it took to reach its Decision, including cumulative effect, and considered “Preliminary Legal Issues” over some 48 paragraphs.
[28] The Court concluded that HGL had not discharged its onus to satisfy the Court that it met either of the threshold tests under s 104D of the RMA:
[313] Given the scale and intensity of localised effects, particularly the significant adverse effect of noise amenity, we are not satisfied that (it) would be a consentable proposal under ss 104 and 104B of the Act.
[314] While the proposed use and development of the land supports an activity that has the potential to contribute positively to the economy and the wellbeing of the District, the evidence is not sufficient to conclude the same activity will also support and maintain the function, character and amenity values of the rural environment generally (objective 17.2.1.1). Given this, we are not satisfied the proposal promotes sustainable management of natural and
physical resources and uphold the appeal declining the application for resource consent.
[315] As an aside, the court acknowledges the impact on residents of the development of quarrying in this area and their felt sense of frustration, and at times, helplessness, when responding to the applications in respect of which they were notified and their efforts to ‘police’ the compliance by neighbouring quarries with the conditions of their consents. Despite that, the residents conducted the proceedings in a measured and responsible manner.
[29] The Court’s Decision was reached in substantial part on an evidential basis as to the scale and intensity of localised effects, including but not confined to noise. The findings are in part challenged on appeal as not available on the evidence, and the Court is also alleged to have erred in interpreting and applying the District Plan, and the way it addressed the threshold tests under s 104D.
[30] Adopting headings used by the Environment Court, I track and summarise the Decision with occasional comment, before addressing the alleged errors of law.
Status of the activity
[31] The site is within the Rural Waimakariri Zone and quarrying is a discretionary activity 250m or more from a residential zone. It is non-complying because the proposal exceeds the relevant noise standard at the site’s southern boundary by more than 10 dB where the predicted noise level is 76 dB LAeq.
[32] Being non-complying, s 104D RMA provides that the activity may only be consented if the consent authority is satisfied that either (relevantly):
(a) the adverse effects of the activity on the environment (other than any effect to which section 104(3)(a)(ii) applies) will be minor; or
(b) the application is for an activity that will not be contrary to the objectives and policies of the relevant plan.
...
Key definitions
[33] The appeal was primarily concerned with cumulative effects of the proposed quarry on the rural character of the area and the amenity values that derive from that. Amenity values are those natural or physical qualities and characteristics of an area
that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes. The primary issue for determination was whether the cumulative effects achieve the Objectives of the District Plan and thereby promote sustainable management of natural and physical resources.
[34] The Court referred to the wide meaning of the term ‘effects’, which includes effects positive and adverse, temporary and permanent, past, present and future, and cumulative over time or in combination. Effects are regardless of scale, intensity, duration, or frequency, and include a potential effect of high probability, and potential effect of low probability with a high potential impact.
[35] The term “cumulative effect” is significant in the Court’s reasoning, explained in this way:4
[17] In Dye v Auckland Regional Council the Court of Appeal differentiating a cumulative effect from a potential effect, appeared to confine the former to the effect of the activity itself on the environment. The following passage is often quoted but it is worth setting out again in the context of this discussion:
The definition of effect includes “any cumulative effect which arises over time or in combination with other effects”. The first thing which should be noted is that a cumulative effect is not the same as a potential effect. This is self evident from the inclusion of potential effects separately within the definition. A cumulative effect is concerned with things that will occur rather than with something which may occur, that being the connotation of a potential effect. This meaning is reinforced by the use of the qualifying words “which arises over time or in combination with other effects”. The concept of cumulative effect arising over time is one of a gradual built up of consequences. The concept of combination with other effects is one of effect A combining with effects B and C to create an overall composite effect D. All of these are effects which are going to happen as a result of the activity which is under consideration ...
... That concept [cumulative effect] is confined to the effect of the activity itself on the environment.
[36] The Court referred to His Honour Judge Thompson where he said:5
[51] There is a passage in the Court of Appeal’s judgment in
Dye v Auckland Regional Council [2001] NZCA 330; [2001] NZRMA 513 which, taken literally,
4 Dye v Auckland Regional Council [2001] NZCA 330; [2002] 1 NZLR 337 (CA) at [38] – [39].
appears to hold that cumulative effect can only be one that arises from the proposed activity: ... All of these are effects which are going to happen as a result of the activity which is under consideration. [para [38]]. The consequence of that would be that only adverse effects emanating from the proposal itself could be brought to account. There could be no cumulative effects [properly so called] created by combining existing or permitted effects with effects arising from the proposal. In turn, that would mean that so long as the adverse effects of the proposed activity are not of themselves more than minor a consent authority could never say ... This site has reached saturation point; it can take no more.
[52] That interpretation would, we think, be contrary to the plain meaning of effects in s 3 and contrary to the purpose of the Act, as set out in s 5 – the sustainable management of natural and physical resources. If a consent authority could never refuse consent on the basis that the current proposal is
...the straw that will break the camel’s back, sustainable management is immediately imperilled. It is to be remembered that all else in the Act is subservient to, and a means to, that overarching purpose.
[53] Logically, it is an unavoidable conclusion that what must be considered is the impact of any adverse effects of the proposal on ...the environment. That environment is to be taken as it exists or, following Hawthorn, as it can be expected to be, with whatever strengths or frailties it may already have, which make it more, or less, able to absorb the effects of the proposal without a breach of the environment bottom line – the principle of sustainable management.
Preliminary legal issues
[37] The Court explained its decision-making steps and, given the legal challenge on this appeal to the sequence of consideration by the Court, this explanation is set out in full:
[24] The key decision-making steps under ss 104, 104B and 104D were outlined in Blueskin Energy Limited as follows:6
Key decision-making steps under ss 104, 104B and 104D
[26] The High Court decision of R J Davidson is binding on us and in response our approach to decision making on this appeal follows:
(a) decide whether the proposal passes one or both of the threshold tests in s 104D;
(b) if it passes, consider the application and submissions, subject to Part 2, having regard to s 104(1):
6 Blueskin Energy Limited v Dunedin City Council [2017] NZ EnvC 150.
(c) decide the weight that should be given to the matters in subsections 104(1)(a), (b) and (c); and
(d) having regard to effects in the context of properly weighted objectives and policies under s 104(1) and any other relevant consideration, arrive at a judgment whether the proposal promotes the sustainable management of natural and physical resources and decide to grant or decline consent accordingly (s 104B).
[27] We have kept separate the decision-making process under ss 104 and 104D. While the content of the sections are similar, quite different considerations apply.
[28] We do not suggest this approach should be applied as a formula to decision making; the facts of the case may lend itself to a different structure. Other provisions of the Act may apply and will also need to be taken into account.
“Subject to Part 2”
[29] It appears, following the High Court decision of R J Davidson, that s 104(1) provides for the consideration of Part 2 in a particular way. The consent authority may have recourse to Part 2 when considering the application and submissions under s 104(1); but not afterwards as a separate exercise as per the “overall judgment approach”. We suggest [an] inherent risk under the overall judgment approach is that the decision-maker may take into account an irrelevant matter – or more likely fail to take into account a relevant matter – including in particular the weighted findings under s 104(1)(a), (b) and (c).
[30] The circumstances where there may be recourse to Part 2 is where there is invalidity, incomplete coverage or uncertainty of meaning within the planning instruments. There is no need for recourse under Part 2 directly where that policy direction is provided in the higher order instruments; following Southland Fish & Game New Zealand v Southland District Council & Ors and Infinity Investment Group Holdings Ltd v Canterbury Regional Council.
[31] The exercise of any decision-making discretion is to be undertaken in a principled manner and for the purpose the discretion was conferred. Unless the context clearly indicates otherwise, under the RMA this will be for the purpose of promoting the sustainable management of natural and physical resources; per Southland Fish & Game New Zealand v Southland District Council & Ors.
[32] Assuming the application for a non-complying activity passes one of the threshold tests under s 104D, the decision whether or not to grant consent is made under s 104B, taking into consideration the
matters in s 104(1)(a), (b) and (c). Like s 104(1), s 104B does not draw any distinction between an application for a discretionary activity and an application for a non-complying activity. The decision whether to exercise discretion and grant (or refuse) consent necessarily entails a judgment that is informed having regard to the matters under s 104.
The weighting exercise
[33] The weighting of findings is critical to the determination of this appeal. The High Court in Stirling v Christchurch City Council made the following observation regarding weighting of findings under s 104(1):
... s 104(1) adopts an open-ended approach to the weight that is to be attached to the relevant matters. All that is required is that the decision-maker “shall have regard” to each of them. There is no statutory threshold or requirement for the provisions of a plan that are relevant to be approached in a particular way.
[34] Stirling v Christchurch City Council precedes the High Court decision of R J Davidson and the interpretation of “have regard to” in s 104 is now more nuanced. The direction “must, subject to Part 2, have regard to” includes having regard to any indication of the weight given to the relevant consideration in the planning instrument. Where there is no coverage of the relevant effect under any plan or policy statement then Part 2 may provide guidance on the weight. We consider this approach is consistent with Stirling where the High Court held an effect may be proven but receives little weight if that is justified by policy considerations.
Weight given to facts and effects and any other considerations
[35] We will determine the facts, including making predictions about the future effects of the proposal. How much weight is given to this evidence depends on a variety of factors including any policy direction on the fact or effect in issue and the materiality of them to the determination of the case.
...
[37] Occasionally there may be conflict between different provisions within a plan or as between different policy statements or plans – but before the court will come to this conclusion there must be a “thoroughgoing attempt to find a way to reconcile them”; per King Salmon at [131]. [footnotes omitted]
[38] The Environment Court did not consider higher order planning instruments because the District Plan has given effect to them.
Christchurch District Plan
[39] The Court described best practice when interpreting and applying planning instruments, recognising that District Plans may contain different but overlapping ways to achieve stated Objectives. Objectives and Policies inform, build upon, and sometimes constrain one other, so best practice begins with an understanding of the whole planning context. The purpose of an overview is to understand the relationship between different provisions of the District Plan, and whether they align with and support each other to achieve the integrated management of natural and physical resources.
Strategic Directions of the District Plan
[40] The Court addressed the Strategic Directions for Christchurch, in Chapter Three of the District Plan, which provide the context for other chapters to articulate how Decisions about resource use and values are to be made, and outcomes intended for the Christchurch District. Chapter three has primacy over other Objectives and Policies, which must be expressed and achieved to be consistent with its direction.
[41] Strategic Directions are given effect to by the Objectives and Policies, which are to be interpreted accordingly. There are 17 Objectives, two of which have overarching application. One of these is Objective 3.3.1 which provides for the expedited recovery and future enhancement of Christchurch as a dynamic, prosperous and internationally competitive city, in a manner that:
[42] The Court set out other Objectives which give strategic direction to Christchurch.
Objective 3.2.5(a)
The critical importance of business and economic prosperity to Christchurch’s recovery and to community wellbeing and resilience is recognised and a range of opportunities for business activities to establish and prosper.
Objective 3.3.14
(a) the location of activities is controlled, primarily by zoning, to minimise conflicts between incompatible activities; and
(b) conflicts between incompatible activities are avoided where there may be significant adverse effects on the health; safety and amenity of people and communities.
Objective 3.3.16
(a) a range of opportunities is enabled in the rural environment, primarily for rural productive activities, and also for other activities which use the rural resource efficiently and contribute positively to the economy.
(b) the contribution of rural land to maintaining the values of the natural and cultural environment, including Ngai Tahu values, is recognised.
[43] The Court said that Objective 3.3.15 is relevant only in a peripheral way, but it became rather more than that on this appeal. It recognises a temporary transitional period of activity after the earthquakes and this HGL consent would be in force during that transition and beyond, up to 30 years.
3.3.15 Objective - Temporary recovery activities
[44] The seven Rural Zones in the District Plan have a common single Objective, and a common set of Policies, bar two (Rural Banks Peninsula and the location and management of quarrying activity and aggregates-processing activity). The Court said outcomes for Rural Zones are not clearly stated as Chapter Three directs, and the Rules, not the Objectives and Policies, have been used to drive the outcomes. That led the Court to say:7
This begs the question as to what are the sustainable management outcomes for any given zone when a proposal is not permitted under the relevant zone?
[45] The Court recognised this Objective for all Rural Zones:
Objective 17.2.1.1 – The rural environment:
Subdivision, use and development of rural land that:
i. Supports, maintains and, where appropriate, enhances the function, character and amenity of the rural environment, and in particular, the potential contribution of rural productive activities to the economy and wellbeing of the district; ...
[46] The Objective is to be achieved through 13 Policies, and related Policies dealing with noise and traffic. The Court identified the relevant Policy suite as follows:8
7 At [35].
8 At [37].
(a) overall outcomes for activities on rural land (Policies 17.2.2.1 and 17.2.2.2);
(b) fact finding (Policy 17.2.2.3); and
(c) attainment of specific outcomes identified (Policies 17.2.2.4, 17.2.2.10, 17.2.2.12 and 17.2.2.13).
[47] A range of activities on rural land is enabled. Rural productive activity includes quarrying, but the Court said that this “...is not, however, an open-ended arrangement to establish these activities in the rural zones.”9
[48] Adverse effects on rural character and amenity values are to be avoided, remedied or mitigated under Policy 17.2.2.2, which is to be interpreted in light of the overarching Objective for the rural environment and the Strategic Directions. This passage of the Decision is instructive:10
If the adverse effects are not avoided or remedied (we suggest preferably in the first instance), the Policy is tolerant of activities with adverse effects where the activity, circumscribed by any conditions mitigating effects, supports and maintains the function, character and amenity values of the rural environment.
[49] The Court treated amenity values as those of people and communities, consistent with Strategic Objective 3.3.14, which with supporting Policies is concerned with localised effects on neighbouring land owners and the wider effect on the community. The District Plan recognises the “obvious but important point” that rural character and amenity values vary across the district given different combinations of natural and physical resources, and that variation is to be recognised under Policy 17.2.2.3(a).
[50] Two important paragraphs for this judgment are as follows:
[41] Whether the proposal does support and maintain the function, character and amenity of the rural environment (objective 17.2.1.1) depends on the combination of natural and physical resources present. On the one hand, decision-makers are to recognise the elements which characterise an
9 At [28].
10 At [38]
area as rural, from which desired amenity is derived, include the predominance of:
[42] On the other, decision-makers are to recognise rural productive activities produce noticeable noise, odour, dust and traffic consistent with a rural working environment; quarrying is one of these activities that is specifically mentioned.
[51] The Court went on to say that the same Policies are concerned not only with more pleasant aspects of the countryside and country life, but with the reality that rural productive activities may generate adverse effects, which, while less pleasant, are consistent with a rural working environment under Policy 17.2.2.3(b) and (c), and both are to be recognised. The Court put it this way:11
A key issue in this proceeding is whether the adverse effects of the proposed quarry, either considered by itself or together with the other quarries in the locality, are consistent with this particular rural working environment.
[52] Quarrying is defined as a rural productive activity, but that does not mean it is necessarily appropriate at this location. Policy 17.2.2.4(a)(ii) provides that the decision-maker must ensure that the nature, scale and intensity of use and development recognise different natural and physical resources, and the character and amenity values of rural land and other rural productive activities. The Court considered the Policy to be strangely worded, but at heart, it relates to the interaction between proposed rural productive activities and the receiving environment, which means the enquiry is whether the activity will support, maintain and, where appropriate, enhance the function and amenity of the rural environment. Here, that means the existing
11 At [44].
character and amenity experienced and enjoyed by the JAG residents and the wider community.
[53] The Court noted that incompatible activities are to be adequately separated from new quarrying under Policy 17.2.2.10(b), and such activities include the habitation in dwellings along Conservators and Savills Roads. The adequacy of such separation is for the decision-maker.
[54] The Court said that access to, and the processing of, aggregate is important for the recovery and development of the District, but subject to constraints on new quarrying where it is outside the Rural Quarry Zone. Such new quarries may only be established in certain circumstances under Policy 17.2.2.12(a)(ii). The attainment of these outcomes is a major determinator of the Objective for the rural environment and a new quarry is provided for only where the activity relevantly:
(a) Avoids areas of outstanding or significant landscape, ecological, cultural or historic heritage values;
(b) Avoids or mitigates effects on activities sensitive to quarrying activities;
(c) Internalises adverse environmental effects as far as practicable using industry best practice and management plans, including monitoring and self-reporting;
(d) Manages noise, vibration, access and lighting to maintain local rural amenity values;
(e) Avoids or mitigates any effects on surface water bodies and their margins; and
(f) Ensures the siting and scale of buildings and visual screening maintains local rural amenity values and character.
[55] While not determinative in itself, the Court said that under Policy 17.2.2.13 all new proposals for quarrying activities must have a site rehabilitation plan and a final rehabilitated landform must be appropriate, relative to the end use.
Noise
[56] The Court said the Objective for the rural environment is attained in part through managing adverse effects of noise. The broad objective was recognised to be that the adverse noise effects on amenity values and the health of people in communities are managed to levels consistent with the anticipated outcomes for the receiving environment. That is achieved by limitation on sound levels and location and duration of noisy activities under Objective 6.1.2.1 and Policy 6.1.2.1.1. The quarry will not operate at night.
Traffic
[57] The Objective for an integrated transport system requires that it be safe and efficient for all transport modes and that it support the safety, health and liveability of communities by maximising the integration of land use. This is a high traffic generating activity so the Policy requires such activities to manage their adverse effects on the transport system in their location and design so as not to compromise the safe, efficient and effective transport system. Policy 7.2.1.2 applies. The transportation needs of people and freight are to be enabled at the same time as managing adverse effects from the transport system under Objective 7.2.2.
[58] The Court referred to the importance of Policy 7.2.2.3, “Effect on adjacent land user to the Transport Zone”. The Policy directs the management of adverse effects within the Transport Zone, so that the effects are consistent with the amenity values and activity of adjacent land users, whilst providing for the transport network, in particular the strategic transport network, to function efficiently and safely.
Threshold of effects
[59] The Court referred to the Council’s submission that the Strategic Directions establish a threshold of effects on rural character and amenity to be avoided, at the
level of significant adverse effect. The implementation of Objectives and Policies is not concerned only to avoid significant adverse effects, although counsel for the Council referred to Objective 3.3.14 and the Strategic Direction to avoid conflict between incompatible activities where there may be significant adverse effects on the health, safety and amenity of people and communities. This interpretation was not put to the planning witnesses. The Court said that Objective 3.3.14 refers to avoidance which means “not allowing” or “preventing the occurrence of”, and the Objectives and Policies are to be interpreted and implemented to achieve that Strategic Direction. Conflicts between incompatible activities are to be avoided where there may be significant adverse effects on the health, safety and amenity of people and communities. The Court said the Council’s interpretation raises the issue whether Objectives and Policies are to be interpreted and implemented in a way that is permissive of adverse effects which are “not significant adverse effects”. The Court’s short answer to this very important question was “That depends on what the District Plan says”.
[60] Objective 3.3.16 provides another and overlapping direction to recognise the contribution of rural land to maintaining the values of the natural and cultural environment, including Ngai Tahu values, and it overlaps with Objective 3.3.14. Putting these together, the Court said:12
Both directions are to achieve the overarching objective that, inter alia, Christchurch “sustains the important qualities and values of the natural environment.” (Objective 3.3.1)
[61] The inter-relationship of Objectives must be recognised and the Court referred to Gendall J’s observation that:13
... depending on the circumstances [there may be] more than one objective having different, and overlapping, ways of achieving sustainable management of natural and physical resources (the purpose of the Act). But objectives cannot be looked at in isolation, because “the extent” of each may depend upon inter relationships.
12 At [62].
[62] The Court said that Objective 17.2.1.1 for the rural environment enables development of rural land, but decision-makers must bring to account Policy 17.2.2.2 to ensure activities avoid significant adverse effects on an area of important natural resources, and avoid, remedy, or mitigate other adverse effects on rural character and amenity values. The Court then said, again important to this judgment:
[67] The City Council does not address these key policies and in particular, the distinction made between “significant adverse effects” and “other effects” in policy 17.2.2.2. Under the City Council’s interpretation “other effects” means “all other significant adverse effects”. The City Council does not address these distinctions and whether they are material to the interpretation and implementation of the District Plan.
[68] If an activity gives rise to an adverse effect which, as proposed to be mitigated, does not support and maintain the function, character and amenity values of the rural environment (objective 17.2.1.1) are these effects to be enabled through the granting of consent? Under the City Council’s interpretation, the answer to this is “yes”.
[69] The better interpretation, and the one that fits with the strategic directions as a whole (including, in particular, objectives 3.3.1, 3.3.14 and 3.3.16), and the implementing objectives and policies, is that, regardless of scale, decision-makers are to avoid “significant adverse effects” on health, safety and amenity of people and communities (objective 3.3.14) and for all “other adverse effects”, evaluate the activity in light of the intended outcomes for the rural environment. Where an effect cannot be avoided or remedied in the first instance, then the enquiry is whether the activity as proposed to be mitigated will support and maintain the function, character and amenity values of the rural environment. If not, the activity will not achieve the relevant objective of the District Plan. (emphasis added)
The receiving environment
[63] The area under consideration is that around the intersection of Conservators, Savills, and Guys Roads, approximately 2.4 kms north of Yaldhurst Village, on Christchurch’s north-western periphery. The Court said the rural character derives from natural and physical resources, and includes the existing and future environment. The future environment includes activities permitted under the District Plan or under resource consents granted, and those which it seems likely will be implemented.
Landform and soil
[64] The landform is predominantly flat with subtle variations including terraces along the southern boundary of the subject site, and to the south and north suppressed linear undulations formed by the Waimakariri River braids and 2-3m high bunds
around the boundaries of existing quarries provide visual screening. The Court accepted that soils underlying at least some of the JAG properties are likely to be Waimakariri loam.
Vegetation
[65] The vegetation is, in the main, pasture. North of the HGL site is a ready lawn cultivation business, and there are exotic shelterbelts and plantations for timber production. On the southern boundary is the area owned by the Regional Council with dryland plains native vegetation, a Significant Landscape Area under the District Plan. There is also land between the end of Conservators Road and quarries on McLeans Island Road, the McLeans Grassland Park.
Views
[66] From public roads, there is a range of views, including dwellings and structures accessory to farming. There are long views to the foothills to the west. Short distance views are interrupted by shelterbelts, although generally only on one side of the road. Road entrances provide relatively uninterrupted views. Emerging features in the area are elements of non-farming rural productive activities, including buildings, signage, secure fences, gates and engineered accesses, bunds and screen planting.
Existing land uses
[67] The JAG residents own or occupy small holdings in a “pocket” which fronts Savills and Conservators Roads, north of Yaldhurst Village, with access via Guys Road. The Village has a school with other amenities used by the residents, and there are 11 households on Conservators Road. The potential for additional dwellings is limited by the subdivision pattern and minimum site areas permitted. In the main, the residents’ sites are less than the 20 hectares for a permitted activity, and used for a mix of rural productive activities, mainly pastoral.
Local road network and environment
[68] The local road network and environment was described in evidence by a Joint Witness Statement which said (emphasis added):
...
(c) Savills, Conservators and Guys Roads are classified as local roads whose function is “almost entirely for access purposes and [not] intended to act as through routes for motor vehicles”; and
(d) the daily traffic volumes carried by Conservators, Guys and Savills Roads are reportedly “very low such that the traffic environment can be considered to be very ‘quiet’. The traffic engineers agreed that because afternoon peaks exceed those in the morning, the former should be used for assessment purposes.
[69] The SOL and Frews consent conditions reflect in the receiving environment, and allow SOL 300 Heavy Goods Vehicle (“HGV”) movements per day off Guys Road and 30 Light Vehicles (“LV”) movements off Conservators Road. Frews is allowed 328 HGV movements off Guys Rd, and 84 LV movements off Savills Road. The junction of Pound and Savills Roads is critical for HGL road network effects. The SOL and Frew consents have road upgrading conditions. The Environment Court visited the site and saw that the local roads generally have wide mown grass verges either side of the carriageway. The JAG residents told the Court they value the roads as part of the environment, for cycling, horse riding, running and walking safely, including with dogs, with a high level of amenity, “at least until recently”. The JAG residents’ behavioural response has changed, given their concerns for their own safety.
Noise environment
[70] There was expert evidence that this locality is no longer a secluded rural area and amenity is already affected by ambient noise generated by traffic on local roads, some industrial noise, and airport operations. HGL provided the Court with information from Marshall Day Acoustics of noise surveys in the area, over several years, which include data for the subject site, at or near 70 Conservators Road and 15 Savills Road. At 0100 hours, the ambient noise level would generally be around 41 dB LAeq without aircraft noise. The daytime ambient level will typically be between 45 and 50 dB LAeq.
[71] Mr Camp gave expert acoustic evidence for HGL, and the residents gave their lay evidence of existing noise levels of the SOL quarry traffic’s use of Savills Road. They said that between 7:00am - 9:00am and 4:00pm - 6:00pm the sound from “Every
heavy truck [that] ‘hurtles by [is said to be] loud, intrusive and [to] vibrate [her] home like a mini earthquake’”.
[72] The Court referred to expert evidence from Dr Taylor:
[95] In Dr Taylor’s social assessment he had explored with residents their concerns about the potential change to their existing amenity, if consent were granted. His evidence, supported by the direct evidence inquiry, showed the residents to be concerned about an environment in which they need to shut windows during the day; face restrictions on outdoor activities; and experience disturbed sleep, particularly on Saturdays. Noise received in frequent, short, intensive “bursts” – such as the banging and clanking of machinery and acceleration/deceleration of vehicles – was viewed as an especially adverse element.
Dust environment
[73] The receiving environment is already impacted from dust sources, farm and forestry activities, the Waimakariri River bed, the possibility of dust from the SOL and Frew Quarries, and other quarry and cleanfill operations further afield. Elevated dust levels can be expected, especially in summer. The JAG residents gave evidence that the haul roads are the biggest source of quarry dust and there was evidence of dust intrusion which had effected the health of one resident. The Court said, “for her, the most frustrating part, has been the ‘the denial of experts and operators that [dust] would be a problem’”.14
[74] The Court referred to Dr Taylor’s inquiry as follows:
[105] Dr Taylor’s social assessment inquiry showed that residents understand rural Canterbury can be dusty at times, but they experience multiple adverse effects in the local environment associated with quarrying, crushing, vehicle movements and dirt piles, including poorly vegetated bunds, (primary elements of concern being dust on roads and dust entering houses, resulting in negative ambience, additional cleaning and health effects). In this regard Dr Taylor’s evidence very largely traversed similar aspects of the environment to those described by individual witnesses for the appellants, but included specific examples like:
(a) driving to school and back (past Grants Brothers site on Savills Rd) and the car being covered in dust in one trip;
(b) cars having to be washed every 2-3 days with dust present on the driveway and clothes;
14 At [103].
(c) dust on house exteriors causing increased washing;
(d) dust causing people to close windows even on hot days; and
(d) dust noticed on an outdoor swimming pool. [footnotes omitted]
Benefits of proposed quarry
[75] The Commissioners’ Decision did not refer to positive effects in an evaluative way, but the Court recognised the evidence of a large predicted shortfall of aggregate based on that currently available, and 2041 demand forecasts. The proposed quarry will assist with the rebuild of Christchurch, and contribute to other large projects around the city. This site is said to be marginal for other commercial purposes, given its size, but viable as a quarry project. The aggregate is of good quality, clean, and easy to work with. The proposed quarry would provide about eight per cent of the anticipated shortfall in aggregate supply to 2041, a positive benefit to be considered alongside actual or potential adverse effects. The Court recognised other supply options could be available. It considered this site to be relatively small and overall the benefits of the proposal were given no more than moderate weight.
Rural amenity and character
[76] The Court said:
[115] “Amenity values” are those natural and physical qualities and characteristics of an area that contribute to peoples’ appreciation of its pleasantness, aesthetic coherence, cultural and recreational attributes.15
[77] The Court said visual amenity is important, as is the effect on amenity of any change in background levels of noise, dust, vibration and increase in volume of HGV movements. Change per se does not constitute an adverse effect on rural character or amenity. To test the scale and intensity of effects and change, the baseline environment must be established.
[78] The Court set out its approach to assessing the ‘values’ evidence as follows:
15 Resource Management Act 1991, s 2.
[117] With that in mind, our approach when assessing “values” evidence, is to:
(a) identify the values of people and communities. Based on the topics above this will include the attributes and characteristics of the existing landscape, soundscape and air quality that are valued by them. [We expect the experts will explain how they ascertained the values of people and communities];
(b) ascertain whether the District Plan identifies any valued attributes or characteristics for the relevant zone, landscape or more broadly the receiving environment. These elements may also be identified from other documentation such as a Conservation Management Strategy;
(c) determine whether the amenity values are reasonably held. In that regard we expect the experts to objectively test the basis of the values that are derived from the environment. This is necessary because the residents’ views on their existing amenity is subjective and influenced by personal feelings or opinions, including the strength of their attachment to this place; (emphasis added)
(d) assess whether the proposal gives rise to adverse effect on the relevant attribute or characteristic;
(e) if it does, then to consider whether, in this case, rural character is maintained and second, whether there are any consequential effects on the existing amenity values; and
(f) finally, to assess those effects in light of the outcomes for the relevant resources and values under the District Plans.
[79] The Commissioners concluded that all amenity related effects, including those generated by bunds and shelterbelts, could be avoided or mitigated to the point of being minor or less than minor, so they were satisfied the application was consistent with the general Rural Objectives and Policies. The Court evaluated the residents’ amenity values. When they purchased their properties some 10-15 years ago, the predominant land uses were pastoral and horticultural, dissected by fences and hedges, with stop banks close to the river. There was a sense of open space and the rural outlook was valued. Traffic levels were lower but from time to time there was noise and dust from farming activities and the Airport, although the land was not under flightpaths. Conservators Road is not a through road and traffic is mainly local.
[80] The existing environment encompasses that as it may be modified by the effects of consented activities including consents not yet fully expressed. The residents described the character of the area having changed since the Canterbury earthquakes, and the recent expansion of quarrying, over the last three to four years.
[81] Expert opinion is that the effects on residents will be minor, but the residents disagree and are concerned about the rural character of the area, and adverse effects on the amenity they have enjoyed, and that the effects will intensify if consent is confirmed. The Court did not know whether all the changes described by them are a consequence solely of quarry activities, but it found the residents to be clear in their evidence that the effects of quarry operations on them are adverse, and the quarry associated activities mean they are no longer able to occupy and use their environment as they once used to do.
The District Plan
[82] The particular character of the area is not described in the District Plan. The Court made a comprehensive assessment of the existing landscape based on the evidence of landscape experts. It was not aware if the experts made any inquiries of the residents or the community generally as to the qualities and characteristics that contribute to their appreciation of the area. The proposed quarry site is pastoral and its level of naturalness moderate, but that would reduce to moderately low during quarry operations. Even after rehabilitation there would be a large depression evident in the landform.
[83] Temporary bunds would look artificial but not anomalous, far enough away from existing dwellings so as not to dominate, but there would be views into the site off Conservators Road, and of trucks coming and going. Expert witness Mr Craig’s evidence was that there is no difference in the rural character of a Quarry Zone and a Rural Zone, because under the District Plan quarrying can occur in both, and in Rural Zones a quarry is a “productive” activity. There are many quarries in the area which make up the existing environment, so he said there should be no ‘surprise’ to residents if this quarry is established. He thought the factors which contribute to landscape character would remain unchanged.
[84] Ms Smetham, a landscape architect, accepted that as with other rural productive activities, noise, odour, dust and traffic would be noticeable to residents, but these elements are well established already. She said the ‘openness’ will remain, commensurate with rural character, with visual screening.
[85] Ms Smetham asked whether the addition of this quarry passed the threshold test of acceptable effects on rural character and visual amenity, but she did not, in the Court’s view, address where the threshold lies. The ‘environment’ should not be limited by Policy 17.2.2.3, which as a fact-finding provision does not say anything about the stated outcomes for the area. The sustainable management outcomes are described in Policies 17.2.2.1 and 17.2.2.2.
[86] The Court thought Ms Smetham had a narrow brief and did not inquire into amenity values of the residents to allow her to reach a conclusion where the threshold of acceptable effects lies. Both her evidence and that of Ms Dray, who did not have the opportunity to provide a full brief of evidence, was treated cautiously.
[87] Ms Dray, a senior landscape architect with the Court, was called by the residents. She distinguished landscape and visual effects, the former reflecting change, and the latter seen from various vantage points. Her view was that the capacity of the landscape to absorb change is tested by this proposal, and that the legibility of the landscape may be affected to a degree that may well not be reversible if there is not enough cleanfill to restore the site. If so, the cumulative effect on landscape character and visual amenity would be more than minor, given the views of other quarries.
[88] The Court said Mr Craig’s evidence that the generic rural character of the area as he understood it would not change overlooked the fact that quarries within the Rural Zone are discretionary activities and the application is for an activity otherwise non-complying. The Court identified errors in the interpretation that Objective
17.2.1.1 and Policies are implemented solely through building density and subdivision Rules. The Court thus found errors in the way the expert evidence had been approached, and found that the rural character of the area still depends on pastoral farming, shelterbelts and hedgerows, and more recently bunding, and that there is still a degree of open spaciousness which residents value. Such errors in the landscape assessment proved inimical to assessment of the cumulative effect of use and development of up to 300 ha for quarrying. The scale and intensity of quarrying activity had not been recognised, nor the resulting effect on amenity of residents. Bunding will foreclose the view to a degree and reinforce the perception that quarrying
is becoming a predominant activity and the Court said this will shift the rural character of the area towards one underpinned by quarrying and not pastoral activity. The change in rural character will otherwise have a moderate adverse effect on the visual amenity west of Conservators Road, adjacent to the site along the road. The bunding would become the visually dominant element, but there would also be views of the vehicles entering and leaving the site which would have a moderate adverse effect on the existing amenity of the residents.
[89] Of importance to this judgment, the Court said:
[149] We did not find it helpful to consider the rural character of this area differentiating between a generic character (based on built form) and a specific character (land use and landcover). We doubt attributes and characteristics of any given landscape should be compartmentalised in this way as these elements interact and inform the whole of the landscape. Further, we could not find support for this approach under the District Plan.
...
Findings
[152] Ordinarily we would expect the quality of the landscape – including one modified by farming activity – to contribute to peoples’ appreciation of its pleasantness or aesthetic coherence. This is so even though rural productive activities can have effects which, in other contexts, may be considered adverse.
[153] The rural character of this area depends on pastoral farming, and on the shelterbelts and hedgerows which crosshatch the landscape resulting in a haphazard pattern of lines. As Ms Smetham says, this has created a series of open and closed views. The view towards this pastoral landscape is an amenity that is valued by the residents. While the views are broken by shelterbelts, hedgerows and, more recently, by bunds the landscape’s particular rural character nevertheless retains a degree of open spaciousness which residents also value.
Visual effect and effect on visual amenity
[154] The visual effect of the proposed quarry (being the change in the composition of the view) is sensitive to the location of the viewer. We have considered the scale and magnitude of the proposal’s visual effects by itself; cumulatively with other quarries in the area and together with the existing shelterbelt on the eastern side of Conservators Rd.
[155] Bearing in mind that the purpose of the bund is to exclude views into the quarry, the bund and shelterbelt will reduce the visual amenity that derives from the contribution this site makes to the pastoral landscape. There are extensive views afforded of the landscape along Conservators Rd and Guys Rd although towards the intersection these views are interrupted by an internal shelterbelt. The foreclosing of the view will reduce the openness of
the landscape and reinforce the perception that quarrying is or is becoming a predominant activity. This will shift rural character of the area towards one that is underpinned by quarrying, not pastoral, activity.
[156] This change in rural character will have a moderate adverse effect on the visual amenity west of Conservators Rd. The bunds will reduce the present-day visual amenity afforded by the open pastoral character of the generally expensive views of the landscape. This will be so from Guys Rd looking towards the north and from Conservators Rd across the site.
Rehabilitation
[90] There was no Quarry Rehabilitation Plan before the Court, although HGL’s stated intent is to restore the land after quarrying ceases. The Court said the Commissioners gave the prospect of a shallow basin from a partially restored site scant consideration. The end use was not developed in evidence, and is addressed under Question Four.
Cumulative effect of quarrying
[91] Again, and of importance to this judgment, the Court said it had insufficient evidence to conclude that the cumulative visual effect of quarries has changed the rural character of this locality as a whole. The Court otherwise agreed that quarrying is now the predominant rural productive activity in the locality, gradually enclosing the rural land behind bunds. The Court’s conclusion was that the proposal would have an adverse effect on visual amenity which would reduce the visual permeability of the landscape and the attribute of open “spaciousness” valued by residents and anticipated under the District Plan. It said the bunds and shelterbelts would look like the site of a quarry. The cumulative visual effect of bunding and shelterbelts, in the context of other quarries, means there will be an adverse effect on landscape and visual amenity and these effects too may have reached a tipping point.
[92] Also important to this judgment, the Court said the landscape evidence was so limited that it reached no settled view on the cumulative effect of the proposal and the capacity of the landscape to accommodate further change without altering or compromising its existing character and the values which attach to the same. It concluded, with emphasis added for this judgment:
[164] On the final issue we have insufficient evidence to make a finding on the effect on landform of this proposal considered by itself or together with other quarrying activities in the area that have ceased. This depends on the intended end use of the neighbouring quarrying activities and whether, as in this case, what is proposed is to partially fill in the pit and oversow the top soil with grass.
Noise
[93] Noise was assessed against that from the quarry, traffic associated with the quarry, and cumulatively with other noise sources. The JAG residents described their concerns about noise, including the effect on wildlife being driven off, being unable to sleep beyond 7:30am on a weekday, loud and intrusive noise from heavy trucks, the noise from crushers and the loading of trucks (that from a crusher was likened to a jar full of marbles being shaken), and braking and accelerating trucks as they go through the Guys Road/Savills Road intersection. There was evidence of residents changing bedrooms given the noise from the road and some people it was said had left the area because of quarrying. Their concern is that noise effects will intensify as Frews and SOL quarries become fully operational.
[94] Two noise experts were called, Mr Camp for HGL and Dr Trevathan for the Council.
[95] The daytime noise Standard under the then Operative City Plan is occasionally exceeded by 3 dB in the vicinity of the Savills and Conservators Roads residences. The Commissioners found this to be “no more than minor” and therefore acceptable. The cumulative effect of noise from HGVs from the proposed quarry, and the SOL quarry was considered. The Commissioners were satisfied this would not exceed 50 dB, and that any adverse traffic effects would be minor, although it was not clear whether this was at the façade or the notional boundary of potentially affected dwellings.
[96] The Objective for the rural environment would be attained, in part, through managing the adverse effects of noise, and there is the broad Objective that adverse noise effects are managed to levels consistent with anticipated outcomes for the receiving environment. That means limits on sound levels and the location and duration of noisy activities. The quarry is a daytime operation only. The Objective for
an integrated traffic system under Policy 7.2.1 includes all transport modes being safe and efficient, and that they support safe, healthy and liveable communities by maximising integration with land use. This quarry would be a high traffic generating activity so the Objective is to be achieved by the Policy which requires management of adverse effects. It is also to provide patterns of development that optimise use of the existing transport system, and to mitigate other adverse transport effects such as those on communities and the amenity and surrounding environment under Policy 7.2.1.2. Described by the Court as important, Policy 7.2.2.3 reads:
Policy 7.2.2.3 – Effect on adjacent land uses to the Transport Zone
[97] The Court set out the noise issues raised by the appeal as follows:
(a) what is the existing noise environment?
(b) what levels of noise will be generated by HGL on-site operations?
(c) what is the additive noise from HGL quarry traffic?
(d) given the above, to what extent will HGL operations change the existing noise environment and what is the effect of any change on rural amenity?
Methodology
[98] The Court addressed the methodology adopted by the experts to address noise effects. Mr Camp said that predicted noise levels were based on a very conservative worst-case scenario, but the Court said there was no evidence initially provided to verify the predictions contained in the Marshall Day noise report. However, the Court said:
[175] We consider the methodology adopted in the report to be appropriate, and generally in accordance with the provisions of NZS 6802. We accept that
the predicted noise levels are likely to be conservative as actual numbers of heavy vehicle movements will be less than the numbers used in the predictions for the majority of the time. This, however, is only one consideration in terms of overall noise effect.
[99] The local noise environment is complex but “regrettably” the expert evidence did not allow the Court to easily understand the significance of the effect of change to the noise environment arising from the HGL quarry operations, and the effect of change was fundamental to its Decision and the focus of its evaluation.
[100] The experts did not always specify the measuring points used which the Court found “most unhelpful when evaluating their evidence.” The Court used the notional boundary of existing dwellings, not the facade. However, it understood there to be a concurrence between the District Plan and the noise experts that 50 dB at a notional dwelling’s boundary would be reasonable and not give rise to effects of concern, no more than minor adverse effects. Generally, the Court agreed, subject to consideration of the cumulative effects of different sources of noise.
[101] The Court discussed the present ‘ambient noise’ using the noise report definition:
[182] As is evident from the residents’ description of their receiving environment, the expert evidence and from our site visit, this rural area has multiple sources of noise. Apart from the quarries, other noise sources include non-quarry light and heavy vehicles on Conservators, Savills and guys Roads, distant industrial noise, distant traffic noise (primarily Pound Rd), light, jet and turboprop aircraft from the airport in the air and on the ground and helicopters.
[102] The Court heard expert and lay evidence, made a site visit, and recognised that the rural area has multiple sources of noise. The ambient noise levels in the Conservators Road/Savills Road area are close to, or exceed, the 50 dB level anticipated in the District Plan for significant periods during the day, without contribution from the proposed quarry. With traffic noise included, the existing ambient level could be 55 dB on Conservators Road, and at the southern boundary of 15-25 Savills Road, including SOL, likely to be at least 55 dB, possibly 58 dB – 63 dB, depending on which noise expert is correct.
[103] Noise from the on-site operation of HGL was found to be reasonable.
The additive noise from HGL Quarry traffic
[104] Traffic volumes will approximately double on Savills Road, and Mr Camp predicts a 3 dB increase there, and similar at 40 Conservators Road. The Court considered actual noise levels would likely be less as the number of HGV movements would be fewer than that predicted for most of the time, but the Court said that this “is only one consideration in terms of overall noise effect”. It found the local noise environment to be “complex” and while the experts were in general agreement, they appeared to differ on noise levels at the notional boundaries of 15 and 25 Savills Road. The Court preferred Mr Camp’s 3 dB increase generally.
[105] Of consequence, the Court said that while regrettable, the expert evidence was not presented in a way that enabled it to easily understand the significance of the effect of change to the noise environment that would result from the HGL quarry and the effect of change is fundamental to its Decision and the focus of its evaluation.
Change to existing noise environment – effect on rural amenity
[106] The notional boundary of a residential dwelling was held to be the measuring point for assessment as the District Plan Standard is based on that. The Court found that the experts did not always specify the measuring points used which was “most unhelpful”. The existing ambient noise levels at the locality of the Conservators/Savills/Guy Road intersection are at or above District Plan Standards, so the experts agreed.
[107] The Court said the key issue, based on the consensus between experts, was not whether HGL would comply with the Noise Standard in the Plan at the notional boundary of the neighbouring residential dwellings, but whether HGL noise with all noise sources changes the ambient noise levels, and the effect on amenity of any such change. Then, the characteristics of noise from heavy vehicles had to be considered, and whether in combination with the increased volume (number) of vehicles on the road this would have an effect on existing rural amenity.
[108] Mr Camp said there were no Rules that apply to traffic noise, so he looked at the effects of traffic noise by addressing the change in the existing traffic noise
environment, and ignored where the noise is measured, because the effect of traffic noise will be a function of the increase in traffic, more or less, which would result in a “minor change” in noise levels. Because the ambient noise level means people are likely to use their residential properties outside away from the road, and other activities nearest the road, then if the noise associated with quarry vehicles does not exceed 55 dB at the facade dwellings during peak hour, the effects would be only minor. The average levels will remain below 50 dB and at peak hours below 55 dB. So, the noise effects from HGVs would be minor for the 15 and 25 Savills Road dwellings, west of Frews Quarry.
[109] Overall traffic noise levels would remain below accepted guidance on traffic noise such as NZS 6806:2010, Acoustics – Road Traffic Noise – New and Altered Roads. Mr Camp said, however, that this Standard does not apply to smaller roads like Savills Road and “So we just accept that traffic can be a bit noisier without having the same adverse effect than in a quarry (sic)”. The Court noted this. While there would likely be a noticeable increase in traffic on the local road network, Mr Camp was satisfied the change in traffic noise level would be acceptable and the residents would not be adversely affected.
[110] The Court then brought to account Rule 6.1.5.2.1 which reads:
Any activity that generates noise shall meet a noise limit of 50 dB in “All rural zones, except Quarry Rural Zone, assessed at any point within a notional boundary” between 7 a.m. and 10 pm.
[111] This was offered by HGL as a condition for on-site quarrying operations at the notional boundary of existing dwellings.
[112] Rule 6.1.4.2(a)(i) provides that these noise limits do not apply to traffic noise within a Transport Zone, which includes roads. Rule 6.1.4.2(a) requires that noise be assessed in accordance with NZS 6802:2008 “Acoustics – environmental noise – except the provisions in NZS 6802 referring to special audible characteristics will not be applied”. Advice Note One, however, provides that although these noise sources are exempted from meeting the Rules, any potential and actual adverse effect should be considered for any discretionary and non-complying activity and Policy 7.2.2.3(a) is relevant:
(a) Manage the adverse effect(s) of an activity within the Transport Zone so that the effects of the activity are consistent with the amenity, values and activity of adjacent land uses, whilst providing for the transport network, in particular the strategic transport network to function efficiently and safely.
[113] Notwithstanding Rule 6.1.4.2(a)(i), the Court said it was required to consider the effects of traffic noise as part of its assessment under ss 104(1)(a) and 104(1)(b) of the Act. Mr Camp referred to the noise report which concluded that a noise limit of 50 dB at existing dwellings is appropriate to ensure no more than minor adverse effects, being the residential amenity value recommended by the World Health Organisation and 5 dB below the upper day time limit recommended by NZS 6802. Dr Trevathan said that having considered the source, nature and level of the noise, the effects would be “no more than minor” at a level of 50 dB. The Court generally agreed that such level at the boundary would not give rise to effects of concern, subject to consideration of the cumulative effects of noise.
[114] It is important to understand the Court’s reasoning in full, as follows:
[205] As set out above the applicable noise limit for the zone is 50 dB at the notional boundary of existing dwellings. This is less than the “generally not to be exceeded” guideline value of 55 dB in NZS 6802 as a “guideline for the reasonable protection of health and amenity associated with the use of land for residential purposes...”. We note that section 8.6.1 of the Standard identifies that “... communities may wish to make these more or less stringent to suit their particular circumstances”. This indicates to us that when considering the anticipated noise outcome in the context of “the function, character and amenity values of the rural environment” referred to in objective 17.2.1.1(a)(i), there is an expectation that noise levels in the locality are sufficiently important to require them to be managed at a level of 5 dB less than that recommended in the relevant New Zealand Standard.
[206] We accept the evidence of both noise experts that noise from the on-site operations considered both individually and cumulatively with the SOL and Frews quarries, can comply with the relevant district plan, with two exceptions, which we do not consider will result in adverse effects on sensitive receivers. The exceedances of noise limits at the site boundary (at the site access and on land to the south of the site) are not material to our decision. However, the evidence is that the proposed quarry will increase ambient sound levels to some extent.
[207] In terms of the wider environment, the proposed quarry will introduce new noise sources into the local environment which, while not being unreasonable in themselves, will add to existing noise and detract from existing amenity values. Taking an holistic view, the existing residential properties within a few hundred metres of the Savills/Guys/Conservators Road intersection will be affected by noise from
most points of the compass, with some sources having different characteristics to other existing noise sources in the locality.
[208] We explored the significance of a 3 dB increase in traffic noise levels with Mr Camp. He said that a 2 or 3 dB change was minor but that 5 dB is noticeable. We are aware that this is a subjective matter, where different noise experts can have different views, and that from our own experience, a change in noise of less than 3 dB is imperceptible to most people, but that a change of 3 to 5 dB is usually noticeable. For the purposes of our determinations, we have considered a 3 dB change will be noticeable to most people. The fact that noise is audible or even noticeable does not mean the effect of noise is necessarily adverse. Whether it is adverse in this case requires careful consideration of its characteristics and overall cumulative effect.
[209] The permitted noise standard in the District Plan provides guidance on the noise setting within the rural environment. Give this, we found Mr Camp’s evidence that “... we just accept that traffic can be a bit noisier without having the same adverse effect than in a quarry” to be of little assistance. It is clear to us that future cumulative noise levels at the notional boundaries of some dwellings affected by HGL traffic noise will, at times, be in excess of the District Plan standard and could reach 55 dB at the dwelling facades based on the evidence of Dr Trevathan.
[115] Then, important to this judgment, the Court said:
[208] We explored the significance of a 3 dB increase in traffic noise levels with Mr Camp. He said that a 2 or 3 dB change was minor but that 5 dB is noticeable. We are aware that this is a subjective matter, where different noise experts can have different views, and that from our own experience, a change in noise of less than 3 dB is imperceptible to most people, but that a change of 3 to 5 dB is usually noticeable. For the purposes of our determinations, we have considered a 3 dB change will be noticeable to most people. The fact that noise is audible or even noticeable does not mean the effect of noise is necessarily adverse. Whether it is adverse in this case requires careful consideration of its characteristics and overall cumulative effect.
[116] Then the Court expressed an inherent reservation about the predicted levels of noise as follows:
[210] While we were told the predicted levels are unlikely to be reached, there is nothing in the application or the proposed conditions to prevent this. These noise levels could occur at any time over the next 30 years, meaning there is no certainty as to when they will occur or for how long at a time. The proximity of the properties at 15 and 25 Savills Rd to its intersection with Guys Rd and Conservators Rd, and to the entrance to Frews Quarry, will result in a distinctly different noise environment in terms of noise characteristics from accelerating and decelerating trucks compared to the noise environment now.
[117] The Court was required to consider the effects of traffic noise against ss 104(1)(a) and (b) of the Act, and it made this fine-grained analysis of the evidence:
[211] We are satisfied from the evidence that the increase in noise will be noticeable and will have an adverse effect on local residents, particularly the noise from increased heavy vehicles. This noise will not be experienced as a distant hum that fades into the background, as in the case of traffic on Pound Rd for example, but will occur in very close proximity to, at least, two existing dwellings in particular, and will be noticeable by people moving about and occupying the area in general. The noise will be variable as a result of the need to decelerate and accelerate into and out of the Savills/Guys/Conservators Rd intersection, meaning it will be less likely to be perceived as part of the background noise. We could not satisfy ourselves that the noise measurements included deceleration and acceleration of heavy goods vehicles or even that experts had turned their minds to the potential that traffic noise would have this characteristic.
[212] We consider these effects will be significant in terms of any remaining rural amenity, particular when the effects of increased traffic numbers themselves are taken into account, and will not maintain aural amenity of the area, and is a matter to which we give significant weight.
[118] Also of importance to this judgment:
[213] We have noted that the noise environment in the locality of the Harewood Gravels sit is relatively complex, with a number of different existing noise sources, some of which have only been introduced within the last five or so years. Noise is perceived and responded to differently by different people and can be affected significantly by wind direction. Predictions as to the effects of noise are often made by experts based solely on compliance with a specified noise limit from which consideration of traffic noise is sometimes excluded, with no guidelines for assessing traffic noise in this proceeding. There is often little if any consideration of the effects of noise characteristics or variability, as in this case.
[214] We found the scant information provided in the applicant’s original noise evidence and Mr Camp’s reliance on documents that were not before us was frustrating. In saying that he may have been briefed on the basis that his noise assessment was accepted by the residents (or at least they were not calling opposing evidence). Even so, there still needs to be a sufficient evidential context so that the court may understand the basis for and any significance of the noise predictions (emphasis added).
Dust
[119] The Commissioners found that adverse dust effects could be adequately avoided and mitigated.
[120] The Court addressed a preliminary legal issue as to whether, as a matter of jurisdiction, it can consider the amenity effects of dust on an application for a land use consent. HGL says the effects of dust were comprehensively addressed in the air
discharge permit granted by the Regional Council, and that was not appealed, so the effect of dust on air quality was not for the Environment Court.
[121] Dust gives rise to a range of effects, not just contaminants, which may have a deleterious effect on human health and the amenity associated with clean air. The Council submitted, and the Court agreed, that there is overlapping jurisdiction under the RMA as to the effects of dust. Section 31 RMA provides jurisdiction to manage the effects of dust on amenity, both visual and nuisance, a significant issue in this case.
[122] The territorial authority has jurisdiction under s 31 RMA to address the effects of emissions from the use and development of land and associated natural and physical resources, aside from their quality as a contaminant. The Court was not, however, concerned with the discharge of contaminants as such. “Contaminant” for Regional Council purposes, includes:16
... any substance (including gases, odorous compounds, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat –
(a) When discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or
(b) When discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged.
[123] The Court found no binding authority as to the effects of dust being or not being brought to account on a land use consent application, other than as a contaminant. The Commissioners imposed conditions on the land use consent to address the amenity effect of dust emissions, and this was not appealed by HGL. The Court saw no jurisdictional barrier to its consideration of the effects of dust and I agree there is none. There is plainly overlapping jurisdiction and to put aside dust effects because they are addressed as contaminants, for different purposes, is not a credible proposition. Dust effects relevant in this context are or may be entirely different to those of dust as a contaminant. The Court went on to find that there was no comprehensive description of the existing dust environment near the proposed quarry, so there was not sufficient evidence to establish the background level of dust.
16 Canterbury Land and Water Regional Plan, vol 1, at 36.
[124] The Court considered expert evidence before it turned to the evidence of the residents in the receiving environment. It treated the latter, as to existing amenity, as subjective, before saying that for expert evidence to be persuasive, the levels of background dust, the effect on amenity relative to background levels, and the change (if any) in dust emissions brought about by the proposal must be brought to account.
[125] Mr Chilton gave expert evidence for HGL about the main sources of dust and its generic effects, without providing locality-specific detail, but set out the results of qualitative assessment of frequency, intensity, duration, offensiveness and location of dust effects, with six sensitive receivers with potential to be exposed to higher frequency and duration dust events. This evidence did not refer to the residents’ description of the level and effects of dust. Mr Chilton concluded that, with conditions, the adverse effects on air quality would be “no more than minor” and cumulative effects would be the same.
[126] Mr McCauley, the principal consents planner for the Council, addressed cumulative effects, and setback distances, and concluded that the shelterbelts and bunds conditioned by the consent were adequate as a wider dust mitigation response, and the effects of dust discharge were primarily those of nuisance. The respirable particle matter from the discharge site would generally have negligible effect, but it is otherwise generally impossible for a quarry site to internalise dust so some sort of “acceptable” level of impact will occur. He said the proposed conditions of consent were the best practicable option.
[127] The Court was critical of the scope of this evidence.
[230] We record that neither the assessment of effects on the environment, nor the evidence of the applicant or the respondent, provides a comprehensive description of existing dust environment near the proposed HGL quarry. We do not consider the identification of sensitive receptors (i.e. residents) and sources of dust in the locality sufficient I this case to establish the background level of dust.
[231] Second, we were left with considerable uncertainty as to the time that will be required to rehabilitate each stage after quarrying is completed. Condition 11 of ECan consent CRC 15162 requires that “[c]leanfill shall be deposited to ensure there is, in total, not less than three metres of clean fill and/or undisturbed material above the highest recorded groundwater level before rehabilitation commences”. In response to questions from the court, Mr Dixon, the General Manager of Isaac Construction Ltd, a partner in this
venture, stated that the time required to place clean fill in each stage would be “entirely down to demand”. He acknowledged he did not know how long it would take but could be “a year or six months” or it could take ten years. In contrast, Mr Francis, a Director of Harewood Gravels Ltd, said that “... the unknown factor for us is how much cleanfill will be coming back to the quarry” and that a period of six months to two years might be needed to cleanfill a stage.
[128] The Court was left uncertain about the time required to rehabilitate each stage of operations after quarrying. It would depend on the demand for aggregate, very much a guess between months and years. There could be up to 12 hectares of exposed earthworks and the Court considered the possibility that five to ten hectares would be in that state for extended periods of times:
[237] Fourth, the dust control measures proposed for the HGL site are particularly important in terms of our assessment of effects on the environment. A range of measures was proposed by the applicant at the time of application and, as the application process has progressed, significant further controls were either required by the City Council hearing commissioners or offered by the applicant, including:
(a) the 150m of the access road nearest to Conservators Rd will be sealed;
(b) a vehicle speed limit of 15 km/hour will apply on unsealed trafficked routes within the site and they will be sprayed with water as necessary, using a water cart kept permanently on site;
(c) the mobile crusher will be located no closer than either 250m or 500m to the curtilages of residential properties on Conservators Rd subject to our findings on the health risk of respirable silica;
(d) an automated water sprinkler system will apply water to all exposed soil surfaces located within 250m of any dwelling beyond the property boundary under specified hydrological conditions when there would be an increased risk of dust affecting residential properties; and
(e) all activities (except dust mitigation measures) will be ceased within 250m of an inhabited dwelling not on the site in the event that monitored dust concentrations exceed defined trigger levels.
[129] The experts did not, it seemed to the Court, engage with the residents’ evidence or perspective that their amenity is adversely impacted by quarrying activity already. The baseline environment was not established. A desktop analysis was made at two dwellings between 70m and 217m from the site. The Court said it was important that the expert evidence addressed whether the residents’ experience of dust was “normal”, and there was no suggestion they exaggerated when they described dust billowing up from the quarries in a northwest wind, plumes of dust behind trucks, snow like deposits
of dust on pine trees adjacent to quarries, gritty deposits inside household cupboards, and the frequent soiling of clean surfaces, cars, window ledges and washing. It recognised the expert prediction that at two nearby dwellings the dust effects would be no more than minor, and that the dust from two other quarries was not contributing appreciably to background dust levels, but said:
[247] We are satisfied from the residents’ evidence that there has been a marked increase in dust, including dust on roads, following the development of quarrying. We assume the receiving environment has changed even though the existing quarries are assumed to be complying with conditions of their resource consent. What we do not know is the experts’ opinions on whether this is the level of emission anticipated in a receiving environment where quarrying activity is taking place; are these the effects of dust which, in their opinion, are “no more than minor” and if so, will the additive dust emissions be acceptable for this rural environment?
[248] Were there no other sources of dust emissions from quarrying in this rea, we would be inclined to the view that the conditions as proposed to be amended by the applicant would likely maintain amenity. In saying that we have reservations as to whether dust suppression measures are adequately developed for up to 12 hectares of earthworks. Given that there are multiple sources of dust in the area, we have reached the view that we have insufficient evidence to reach a firm conclusion on the additive effect of dust from this proposed quarry. With large areas of exposed earthworks, it is probable that the residents will be exposed to a range of dust effects ranging from minor to adverse (the latter depending on wind strength and direction).
Traffic
[130] The Commissioners concluded that the level of HGV movements associated with the proposed quarry would not cause unacceptable levels of effect. The cumulative transportation effects were assessed on the basis that all three quarries, SOL, Frews and HGL, will operate at fully consented capacity, although that is unlikely to occur.
[131] The experts largely agreed that the design requirements under the City Council Standards were met and exceeded the provisions of NZS 4404:2010. The traffic volumes on Conservators Road, Northern Guys Road and Savills Road, prior to SOL, Frews or HGL quarries becoming operational, were very low and the traffic environment was very quiet. The critical Pound Road and Staples Road intersection is able to accommodate the maximum cumulative levels of traffic.
[132] JAG gave evidence of the effects of traffic, and expert evidence was given in addition to the joint experts’ statement. In the end, the Court was satisfied that the road upgrading required under the consent conditions meant that the future road networks would meet the Council Design Standards and the requirements of NZS 4404:2010. The safe and efficient use of the transport network would not be compromised and Policy 7.2.1.2 of the District Plan would be satisfied, as to management of adverse effects on local roads from high trip generating activity.
[133] The Court focused on community concerns about safety of pedestrians, cyclists and horse riders, recognising the risks of very loose metal, but the evidence did not extend to allow the Court to assess the significance of this. Those issues seemed to the Court inconclusive. The Court said it expected a traffic expert to be aware of the consequences of road design choices on noise levels, particularly where the noise could have potentially significant adverse effects on existing dwellings.
[134] Expert evidence was that the primary source of noise would be braking as vehicles went from Conservators Road onto Savills Road, and from Savills Road to turn right onto Conservators Road. There would be the noise of acceleration and deceleration, the noisiest vehicle activity, but expert evidence did not address whether the difference would be sufficiently significant to be noticeable or different to someone listening to it, nor the distance at which there might be a significant change. Again, the evidence was found wanting.
[135] The Court referred to a very significant increase from about 10 to about 210 HGV vehicle movements per day, and at 15 to 25 Savills Road, approximately doubling of HGV movements affecting the two properties. At Conservators Road, that would increase from an average of less than one per hour to one every two to three minutes. Those passing 15 and 25 Savills Road would increase from one every four minutes to one every one and a half to two minutes.
Vibration
[136] Had it been minded to grant consent, the Court would have required further evidence as to vibration effects to explore whether it was possible to remediate the vibration described in evidence. There was evidence for JAG residents about vibration
from HGVs at Savills Road, and that evidence was preferred based on their concern that there may be an effect on the structural integrity of their homes, and such effects would likely increase if consent were to be granted. The Court would have required further evidence about the effects of vibration and possible remediation, so again the evidence was found wanting.
Evaluation of the proposal
[137] As above, the Court found the evidence fell short on quite a number of issues, precluding findings which were necessary before deciding whether consent could be granted.
[138] The Court found that the proposed activity does not satisfy the first limb of s 104D(1)(a) RMA as it was not satisfied that the effects of the proposed quarry would be minor. Where the Court could properly reach a view of “additive” effect, such would be “more than minor”, and the effect of traffic noise on residents at 15 and 25 Savills Road would be significant. This is telling as a very clear finding of fact, and the evidence in the context identified fell short of what the Court required for its judicial deliberation.
[139] It could not reach a view whether the additive dust effect would be minor without a baseline assessment of the existing dust environment. While HGL proffered a condition that there would be no visual dust emissions beyond the boundary of the site, the Court was not satisfied such would secure the required outcome. The conditions were designed to minimise emissions, not prevent them. There would be visible dust emissions, but the baseline was not well described enough in evidence for a judgment about the scale and significance of additive dust effects.
[140] The cumulative effect on rural character and in particular visual amenity was found to include adverse visual effect on residents in the locality and adverse effect on visual amenity. The ‘sandwiching’ of residents on Conservators Road and Savills Road between quarries with bunding and shelterbelts, with views into the quarries at the access ways, and the number of HGVs entering and exiting the site, would have a moderate adverse visual effect. This is a clear factual finding.
[141] The more difficult question was whether the proposed quarry in the context of 300 acres consented for quarrying would maintain the rural character of the area. The quarry is not contiguous with others, separated by the McLeans Grasslands Park. The threshold of what are acceptable/not acceptable visual effects is hard to determine without a study to determine the level of quarry activity acceptable within the Zone and the Court said it did not have reliable evidence to reach a conclusion about that and thus said:
[287] Consequently, we have inadequate evidence to determine the significance of the additive effect on visual amenity. We record our findings that the issue of the cumulative effects on the rural character of the landscape were not properly canvassed by Mr Craig whose evidence proceeded on the basis that if no new buildings are proposed then the “generic” rural character of the area will not change. This is regardless of the nature, scale and intensity of the cumulative quarrying activities in the area. Indeed, he saw no difference in the rural character of a quarry zone and any other rural zone because under the District Plan quarrying can occur in both.
[142] The Court turned to s 104D(1)(b) as to whether the application was contrary to the Objectives and Policies of the District Plan. It said HGL had not discharged its persuasive burden of providing evidence so that the Court, with any level of confidence, could reliably make predictions about the future dust environment and rural character. It was therefore unable to determine whether the application was contrary to the Objectives and Policies. Again, this is telling, as the evidence fell short of allowing the Court to determine the future dust environment and rural character and whether the appeal was contrary to the Objectives and Policies. This is properly and necessarily addressed with reference to evidence.
[143] The Court thought about requiring further evidence about dust and cumulative visual effects, but decided against that, having considered the appeal under s 104, including the benefits of the proposal, and under s 104B. It decided that consent should be refused because of the scale of localised effects, including but not limited to a significant adverse effect arising from road noise. Critically, the Court was not satisfied the evidence established to the required standard that the use and development of rural land would support and maintain the amenity values of the rural environment. It recognised quarrying as a rural productive activity most suitably located on rural land, but went on to stress the character and amenity of the receiving environment:
[290] We recognise quarrying is a rural productive activity that is most suitably located on rural land. Even so, every decision-maker is to “ensure” the nature, scale and intensity of this activity recognise the character and amenity values of the receiving environment (policy 17.2.2.4). This could be achieved, in part, by ensuring an adequate separation distance between the quarrying activity and incompatible activities (policy 17.2.2.10). If separation distance means the set-back from a sensitive activity, then a separation distance was not proposed. Rather the applicant proffered conditions to manage the adverse effects of dust on residents living within 250m of the site. We are not satisfied that the applicant has demonstrated that the “separation distance” is adequate to address the cumulative effect of off-site dust emissions at least to the standard which we can conclude that the character and amenity of the rural environment will be supported and maintained (objective 17.2.1.1(a)(i)). This finding is important in that, a related policy (17.2.2.12(a)(ii)(B)) is enabling of new quarrying outside of the Rural Quarry Zone only where the activity avoids or mitigates effects on activities sensitive to quarrying activities. And, only where the activity “manages noise, vibration, access ... to maintain local rural amenity values” (policy 17.2.2.12(a)(ii)(D)). We are not satisfied the proposal does achieve these provisions, and this is a finding which we give significant weight.
[144] The Court considered the rehabilitation proposal and the Quarry Management Plan. A Draft Rehabilitation Plan was not provided but rehabilitation was addressed by a Draft Cleanfill Management Plan. The aim of HGL is to return the quarry back to productive farmland as much as possible, which was taken to mean some pastoral use. Rehabilitation to support pastoral farming would meet Policy 17.2.2.13(a), but it was not provided for in any proposed condition. The Court considered that a Site Rehabilitation Plan should be provided when the application for consent is lodged, under Policy 17.2.2.13(b). A Management Plan condition would be required and the Court was not satisfied that the Policy would be achieved.
[145] The Court was satisfied there would be moderate adverse visual effects on rural character and associated visual amenity. It suggested that offsetting the site entrance with bunds may reduce that effect, but this suggestion was not taken up. Overall, the landscape evidence did not persuade the Court that the cumulative effects would be such that rural character and visual amenity would be maintained. It said:
[303] ... this required a fine-grained analysis of the landscape to evaluate the cumulative visual effect on rural character and on derived amenity values of what would be the seventh quarry in this locality.
[146] As to noise, the Court said:
[306] The evidence on existing ambient noise levels at the notional boundaries of residential properties was unclear at best and did not provide certainty of what levels will be with the SOL and Frews quarries operating. It is clear that it approaches or exceeds 55 dB at times and will increase by around 3 dB as a result of the HGL quarry. The combined noise level, although again unclear, could approach 60 dB at times, although not as a normal condition. Overlapping with our findings for rural environment above, on balance we were not satisfied that the proposal would achieve the objective of “managing the effects from the transport system” (objective 7.2.2). the weighting on this matter is adequately provided for under the rural environment findings.
[307] Likewise, the separate provisions addressing noise, which again overlap with the rural environment. We have found the noise effects of accelerating and decelerating trucks entering and leaving the Conservators/Savills/Guys Road intersection, and possibly entering the leaving Frews Quarry are likely to significantly affect the ability of affected residents to enjoy their local environment, but was not addressed in evidence by the noise experts.
...
[309] The above effects are not at a level consistent with existing amenity values and adjacent land use (policy 7.2.2.3). that being the case, we find the objective 7.2.2 is not achieved.
[310] Somewhat perversely given the context of this appeal, the relevant Objective talks about the need to manage the effects of noise to “levels consistent with the anticipated outcomes for the receiving environment” (objective 6.1.2.1). The District Plan does not describe the outcomes either for the Waimakariri rural zone or for any particular receiving environment. We have assessed the additive effect of noise relative to the receiving environment keeping in mind this is a rural zone and it is anticipated that, to some extent, rural productive activities will generate noise. We specifically considered the noise from the mobile crusher as residents report hearing crusher noise in their environment. We are satisfied that if the mobile crusher was located no closer than 250m and certainly if located at 500m, which we understand to be practicable, while the noise may be audible its level, frequency and duration would be acceptable within this rural environment.
[311] While there are several contributing sources of noise within the receiving environment, the additive effect is one of up to 400 HCV/d or a rolling average of 250 HGV/d. This would be to take noise levels beyond that which we can say that noise is being managed relative to the receiving environment. To this extent, the objective (6.1.2.1) is not achieved.
[147] In the end, the Court found that HGL had not discharged its persuasive burden of satisfying the Court that it had met either threshold test under s 104D. Given the scale and intensity of localised effects, particularly the significant adverse effect of noise, it was not satisfied this is a consentable proposal. It recognised the potential of the proposal to contribute to the economy and wellbeing of the District, but there
was insufficient evidence to conclude the activity would support and maintain the function, character and amenity values of the rural environment generally. It was not therefore satisfied the proposal promotes sustainable management of natural and physical resources. It therefore allowed the appeal, declining the application for resource consent.
D. OBSERVATIONS ABOUT THE ENVIRONMENT COURT DECISION, AND THE LAW
[148] Part C to this judgment does not do full justice to the Court’s reasoning but is intended to identify the intensity and detail of the Court’s reasoning on the evidence before it. The errors alleged by the appellant, addressed under the ‘Seven Questions of Law’ in Part E of this judgment, inevitably focus on selected parts of the Decision. Together they comprehend interpretation of the District Plan, the correct legal approach to expert evidence, s 104D of the Act, and issues which are otherwise evidential, where errors of law are alleged under well-established principles.
[149] What cannot be gainsaid is that the Court reached quite a number of conclusions adverse to the application on the facts, and on the quality or adequacy of the evidence, which are simply not amenable to challenge on appeal unless error is established as discussed under ‘The Law’ in this Part D. The reason this is important is because if any error of law is established, there is in these circumstances little point in this Court sending the appeal back to the Environment Court for reconsideration on identified errors, to be corrected in terms of this judgment. This is addressed under ‘Conclusion’, Part F to this judgment. As the Conclusion records, even with an error or errors of law identified and the subject of direction by this judgment, a further hearing in the Environment Court would not “cure” the other obstacles to consent. From these observations, the point to be taken is that a number of findings about the quality of evidence, and other factual findings are not capable of being disturbed on this appeal.
Errors of law
[150] The principles are well established for a s 299 RMA appeal, and were the subject of a concise and helpful memorandum filed by counsel for HGL.
[151] The fact-finding court must correctly understand and apply the law to the facts. Provided it has not overlooked any relevant matter or taken into account any matter which is irrelevant, the conclusion is for the fact-finding court, unless it is clearly unsupportable.17
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Baistow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination”, or “one in which the true and only reasonable conclusion contradicts the determination”. Lord Radcliffe preferred the last of these three phases but he said that each propounded of the same test.
[152] In Friends of Pakiri Beach v Auckland Regional Council,18 the categories of error of law set out in Countdown Properties (Northlands) Limited v Dunedin City Council19 discussed. Three of those categories require the appeal court to consider the evidence before the deciding Court or Tribunal. The fact that HGL refers on this appeal to evidence in detail does not mean it cannot establish an error of law, but subject to the established and limited principles referred to, it is entirely for the Environment Court to reach conclusions on the facts and the weight to be given to any evidence and such conclusions. On appeal, the fact that this court may have reached a different conclusion is irrelevant.
[153] The judgment of Asher J in Friends of Pakiri Beach is also instructive for its concise but comprehensive exposition of the specialist role of the Environment Court. His Honour referred to Salmon J in Green McCahill Properties Ltd v The Auckland Regional Council:20
Mr Bartlett for the appellants warned against the danger of accepting an Environment Court decision just because it was an expert Tribunal. It would, of course, be inappropriate to do so. Its expertise cannot save decisions which do not meet the principles set out above. However, it is important to bear in mind that the Court is required constantly to make decisions relating to planning practice, it is constantly required to assess and make decisions
17 Bryson v Three Foot Six Limited [2005] NZSC 34, 3 NZLR 721.
18 Friends of Pakiri Beach v Auckland Regional Council [2009] NZHC 1594; [2009] NZRMA 285 (HC).
19 Countdown Properties (Northlands) Limited v Dunedin City Council [1994] NZHC 67; [1994] NZRMA 145 at 153.
relating to conflicting expert opinion. Members of the Court are able to contribute to the formation of a judgment as a result of experience gained in other professional disciplines. These considerations and the fact that the Court is constantly exposed to litigation arising from the application of the Resource Management Act, justifies the respect which this Court and the Court of Appeal has customarily accorded its decisions.
[154] In this case, the central question is whether there is evidence on which the Environment Court could, in terms of these principles, properly reach its Decision. If there is evidence on which the Court could reach its various factual conclusions then that is an end to it.21
[155] Mr Pizzey for the Council refers to the latitude given the Environment Court making findings of fact within its own expertise.22 An error of law, if established, no longer automatically leads to relief but only if it materially affects the Decision.23 The High Court will not superimpose its evidential opinion over that of a Court with specialist expertise, nor will it interfere with the weight the Court attached to competing considerations. Further, it will not usually superimpose its opinion on the application of planning principles to the facts of the case, nor whether the particular proposal is consistent with or contrary to the Objectives and Policies of the District Plan, where that is a matter for judgment.
E. SEVEN QUESTIONS OF LAW
[156] Seven errors of law are alleged by HGL, formulated as questions. They relate in part to alleged interpretation errors made by the Environment Court, which HGL says separately and cumulatively resulted in the Court declining consent. Some questions break down into sub-questions, particularly as to noise effects.
[157] The range of Objectives and Policies for the Rural Zone seeks to foster Rural Productive activities, including quarrying, and to limit the effects of those activities within the zone. HGL says that the Environment Court’s interpretation and application of the law was in error, and that the appeal:
21 Guardians of Paku Bay Association Inc v Waikato Regional Council [2011] NZHC 1013; [2012] 1 NZLR 271 (HC).
22 Countdown Properties (Northlands) Ltd, above n 19 at 12.
23 Royal Forest & Bird Protection Society Inc v WA Habgood Ltd (1987) 12 NZTPA 76 at 81.
... seeks to clarify the point at which the effects of a rural productive activity become too great for residents within the zone to absorb so as to merit the decline of consent.
[158] This is a mixed question of fact and law. The factual issues are framed by the correct interpretation and application of the Act and the District Plan. The review of the Court’s Decision, Part C to this judgment, demonstrates its close factual analysis and evaluation, and its obvious and reasoned dissatisfaction with HGL’s evidence in several important respects.
First Question of Law: Did the Court err in its interpretation of the meaning of “rural character” and therefore further err in its interpretation of the evidence before it?
[159] Mr Chapman placed emphasis on various Objectives and Policies in the District Plan:
3.3.1 Objective – Enabling recovery and facilitating the future enhancement of the district
[160] While it would not seem obviously apposite to this appeal, Mr Chapman refers to Objective 3.3.7:
3.3.7 Objective – Urban growth, form and design
...
[161] Mr Chapman says that in the urban area residents are “top of the pile” and that should be borne in mind when looking at Strategic Objectives in the rural environment. The Christchurch (Replacement) District Plan allocated no further land to quarrying, but made it a rural productive activity, discretionary in Rural Zones. Quarrying outside the Quarry Zone is not non-complying as such, but (to repeat) Mr Chapman submits there is a change in emphasis in the District Plan, that quarrying is just as much a rural productive activity “as sheep and beef [farming] are”. He says this outcome in the Plan must be seen in the context of the quarry industry seeking an expansion of quarrying into the ‘rural productive’ category.
[162] The District Plan contemplates “conflicts between incompatible activities”, and when such conflicts are to be avoided.
3.3.14 Objective – Incompatible Activities
...
[163] Zoning aside, and recognising the need to avoid conflict between incompatible activities in these circumstances, Mr Chapman says Objective 3.3.16 is probably most relevant to this appeal, as it points to the ‘primacy’ of rural productive activities.
3.3.16 Objective - A productive and diverse rural environment
[164] He submits rural productive activities are “number one in terms of the Objective”, being productive uses that contribute efficiently and positively to the economy. Mr Chapman also refers to Objective 17.2.1.1:
17.2.1.1 Objective – The rural environment
[165] He submits there is a clear emphasis in the Plan that the use and development of rural land should support, maintain and where appropriate enhance the function, character and amenity values of the rural environment, and in particular the potential contribution of rural productive activities to the economy and wellbeing of the Christchurch District. There is no reference to “residential use” in the Objectives, and ‘amenity values’ are informed by other Policies. The range of such activities is associated with economic development:
17.2.2.1 Policy – Range of activities on rural land
17.2.2.2 Policy – Effects of activities utilising the rural resource
remedy or mitigate other adverse effects on rural character and amenity values.
[166] The range and variation of activity in rural areas is an important part of HGL’s case, as rural productive activities are to be recognised for effects which are noticeable to residents and visitors, in the context of rural character and amenity:
17.2.2.3 Policy – Contributing elements to rural character and amenity values
...
[167] The importance of locally sourced aggregate is emphasised, but outside the Rural Quarry Zone only in circumstances which are protective of certain values.
17.2.2.12 Policy – Location and management of quarrying activity and aggregate processing activity
...
[168] These Objectives and Policies help form Mr Chapman’s submission that the Court failed to understand and apply the District Plan. The Court said the threshold tests in s 104D had not been satisfied because HGL had not discharged its burden of proof on the evidence, so the Court could not determine whether the application was contrary to Objectives and Policies. Mr Chapman says the Court adopted the wrong benchmark in assessing the evidence and if the Court had used the Objectives and Policies to inform its views relating to rural character then HGL would have manifestly discharged its burden of proof, as the District Plan directs decision-makers to the fact that there will (the Policy reads ‘can’) be adverse effects from rural productive activities in the Rural Zone. Mr Chapman makes a bold submission that the Court said the District Plan provided no guidance about rural character, so it simply made up its own mind about that.
[169] The Court said it did not find it helpful to consider the rural character of the area by differentiating between a generic character based on built form and a specific character (land use and land cover). It said:24
24 At [149].
We doubt attributes and characteristics of any given landscape should be compartmentalised in this way as these elements interact and inform the whole of the landscape. Further, we could not find support for this approach under the District Plan.
[170] Mr Chapman says at that point the Court:
Unbolts itself, unhinges itself from what the Plan directs it to [do], and I say that there is plenty of guidance specifically in that one policy relating to rural character but also in policies which ensure that the rural environment is to be a contrast to the urban environment and an acknowledgement that the flat land area surrounding Christchurch, ensuring that that flat land is available for rural productive activities.
[171] The error of law is thus said to be the way the Court determined ‘rural character’, and the ‘amenity’ derived from it. Mr Chapman says rural character should here and now reflect quarrying as a significant feature, which in turn reflects the rural/urban divide, and such an interpretation is consistent with case law such as Robinson v Waitakere City Council, where the relevant planning document included a definition of “rural character” which reflected “the overwhelming feeling ... of open countryside, a sense of productive activity and of managed nature”, in contrast with buildings and structures.25 “Rural character” in the Auckland Regional Policy Statement refers to the: 26
distinctive combination of qualities which make an area “rural” rather than “urban”. These include the dominance in the landscape of natural vegetation and primary production regimes and the absence or subservience of manmade structures ...
[172] I do not derive assistance from these references as this appeal is concerned with the Christchurch District Plan, which has its own definitional structure. However, I recognise the submission for HGL is that they provide an example of how the elements which constitute ‘rural’ character contrast with what one might find in a Rural Zone. If there is anything to be taken from these references, it is that sub-paragraph (b) to Policy 17.2.2.3 specifically addresses elements which contribute to rural character from which the desired amenity is derived, which is no more than identifying the attractive characteristics of a rural area, which provide for desired amenity.
25 Robinson v Waitakere City Council (EnvC Auckland A002/09, 22 January 2009, at [136].
26 Bell v Rodney District Council [2002] NZEnvC 398; [2003] NZRMA 559 at [52].
[173] As to “amenity values”, he says the Court wrongly narrowed its consideration to focus on residents’ amenity values and skewed the meaning of that expression in spite of evidence from HGL as to why this land is attractive for a rural productive activity. This is in my view a stretch of what is ‘attractive’ aesthetically to that which has ‘attraction’ for other reasons. He says those operating rural productive activities “are people too”. When the Court referred to various elements of amenity, particularly visual permeability and open spaciousness, he says it wrongly narrowed its lens because the starting point should have been to define ‘rural character’ with reference to the number of quarries in the area, and the current characteristics of the area, and in so doing the Court has not had enough regard to the District Plan.
[174] Mr Chapman refers to Policy 17.2.2.12 sub-clause F and says this does not mean maintenance of local rural amenity values and character should be “pristine”, but should be assessed in the environment where this quarry is to work. It is not just ‘one dwelling’ to be recognised but the locality. Mr Chapman says that when addressing noise and rural amenity, the Court “concertinaed” what it regards as the rural character and amenity issues, associated with the quarry, sometimes narrowly based on a community of two or three residents, and sometimes broadly, to the area or locality which includes all the quarries. He says that the Policies direct attention to the overall locality, not to one particular house or group of houses, when it comes to managing noise. He submits that as quarries relocate, effects do not demonstrably change in the wider locality.
[175] He submits that the Court began its assessment and evaluation of rural character by looking at the past, not what the locality or area looked like at the time of the hearing. The Court recognised how quickly the character of the area had changed since the Canterbury earthquakes, particularly by the expansion of quarries, and the impact this has had on the rural character of the area. He says the correct starting point is not to be found by “harking back to earlier days”, when the rural character of this area depended on pastoral farming, shelterbelts and hedgerows which cross-hatched the landscape. By such thinking he says the Court over-inflated the degree of change which would be brought about by HGL’s quarry activity, as the locality is already much changed. In short, he says the Court did not evaluate rural character as at the time of the application, nor with appropriate reference to the Objectives and Policies.
[176] In a straightforward manner, Mr Chapman says rural character is “Warts and all. It is the good, the ugly and it’s the neutral”, and that: “... ugly forms part of rural character”. As the Court noted, the Plan does not identify the attributes of the landscape which give it its particular character and Policy 17.2.2.3, referred to above, provides guidance on rural character and amenity.27 Mr Craig gave expert evidence that the site of the proposed HGL quarry has “abundant open space... comprising paddocks, hedgerows, various trees”, over 28 hectares, and it is “very definitely rural in character”. Any structure on the site would be placed in a predominantly natural setting. However, the ‘naturalness’ of a site depends on its degree of modification and Mr Chapman says a farm is highly modified, so consideration of the “natural character elements of waterways, water bodies, indigenous vegetation and natural landforms” is not relevant to this site or any landscape in the district. He submits that once the elements of rural character are identified, the Policy directs that the amenity of an area is derived from those natural and physical qualities and characteristics of the area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes. There is always a subjective element in evaluation because ‘pleasantness’ is the experience seen and felt in different ways by different observers and Mr Chapman says no one expert witness or group of such can (or should) dominate the assessment. The Court identified the values of people and communities under the heading “the residents’ amenity values” and the values of “people and communities” should not be confined as it gives a false impression of the area. The Court did not bring to account the ‘values’ of active farmers (many of whom are not residents), quarry operators, the diverse range of rural businesses, the Regional Council as a landowner in the area, and the rural community to the west of Christchurch Airport. All these make up the “people and communities” by whom effects will be felt in the environment, and Mr Chapman says the Court thus wrongly narrowed its lens and considered the amenity values of rural residential inhabitants in the main.
[177] Dr Taylor, who gave evidence for the residents, interviewed six households, three of whose representatives gave evidence. Mr Chapman says this produced a skewed view of the expectations of all those living and working within the zone. He
27 At [126].
accepts that the experience of surrounding landowners is important when assessing amenity, but submits guidance must first come from the District Plan rather than the subjective views of ‘members of the public’. The Plan specifically contemplates effects adverse to amenity such as noise, dust and traffic, which lawfully arise in the rural environment, in which quarries are expressly contemplated, so that expectation must be kept in mind. Hence, when the Court determined rural character without reference to these other recognised elements, Mr Chapman submits the Court fell into error.
[178] He puts it another way. While the District Plan refers to “rural character and amenity” together, they are different. “Amenity values” are the characteristics which contribute to the appreciation of an area’s “pleasantness”, but “rural character” is not to be evaluated through “rose tinted glasses”, as the adverse effects of noise, odour, dust, traffic, and quarrying, are expressly recognised in the Policy. He submits the Court has in error “bundled together” rural character and amenity values as one, and focused only on those elements of rural character which contribute positively towards amenity. He refers to paragraph [153] where the Court said “the rural character” of the area depends on “pastoral farming, and on the shelterbelts and hedgerows which crosshatch the landscape.” Mr Chapman says the Court has not taken into account the prevalence of gravel in this area, are the numerous other quarries in the vicinity, including those in the McLeans Island Rural Quarry zone. His submission is that pastoral farming and shelterbelts now “live with” quarrying activities, usually screened by pastured bunds, and the assessment of rural character and from that, amenity, must bring to account the environment as it is, not what people, in particular the residents, wish it to be, or how it was before quarrying was established. He puts it neatly this way:
The Court’s idyllic view of pastoral farming and shelterbelts does not take into account these effects which are legitimately arising from authorised activities in the area.
[179] The result is that the Court focused on a group of residents rather than the much broader matrix of “peoples and communities” which the Plan envisages and Mr Chapman says the Court did not give credence to anyone other than the residents in determining amenity value. For example, the evidence of Mr Francis is relevant as
to the difficulty in finding a site in Christchurch suitable for rural productive activity, as is the evidence of Mr Craig as to all the other persons and activities in the area, including quarries, golf clubs, and Ready Lawn, all of which are part of rural amenity. Mr Chapman submits that while the Court referred to “communities” it did not bring this broader community to account.
[180] In short, Mr Chapman submits that the Court made an error of law when interpreting “rural character”, and therefore in its evaluation of the evidence. He submits that the correct interpretation of “rural character” and “amenity” is to be found by first recognising Policy 17.2.2.3, and the express recognition of variation in rural character and amenity values across the Christchurch District which derives from a combination of natural and physical resources and established and permitted (including consented) activities. There is no “one size fits all” approach to determining rural character and Mr Chapman says that the variation is the product of the resources present in any given area. He submits sub-paragraph (b) of Policy
17.2.2.3 means that the desired amenity comes from elements which characterise an area as rural, and this in turn is derived from the predominance of the elements listed, and these qualities overall reflect the “inherent difference” between rural and urban areas. Sub-paragraph (c) recognises that in the rural working environment, including quarrying sites, there may be effects noticeable to neighbours and visitors, in that rural area, and this makes it clear that there are effects which “may be noticeable”. That means they should be “lived with”, given the express recognition of rural productive activities in the Rural Zone.
Submissions for the Christchurch City Council
[181] Mr Pizzey responds to the HGL submission that the Court bundled together and equated rural character and ‘positive’ amenity, and wrongly considered only the amenity values of rural residential inhabitants, and not, for example, business owners. He says that the Court reflected on the evidence it heard and simply described that evidence rather than fell into an error of law as Mr Chapman submits. HGL did not call evidence of the amenity values as experienced, for example, by business owners, including quarry operators, so Mr Pizzey says this first question alleges error of law
without evidential foundation, and has instead been raised as a submission. That is not of course fatal in itself to establishing error of law.
[182] HGL also says that the Court erred in saying the District Plan does not identify attributes of the landscape which give this area its particular character, when those attributes are set out in Policy 17.2.2.3. Mr Pizzey responds that the Court’s stepped assessment of “values” was not to assess rural character ‘per se’. When it referred to “the area” it was talking about that in which the residents live, before it referred to Policy 17.2.2.3 as relevant to rural characteristics and amenity values at a general level.
[183] The notice of appeal pleads that the Court disregarded the evidence and the geophysical attributes provided for in the District Plan in coming to its understanding of rural character, and it did not assess the Plan’s provisions which relate to landscape character. Mr Pizzey says, to the contrary, that the Court began by looking at the overall planning context, the Objectives, Policies and Strategy, and only then did it turn to the Rural Zone Objectives and Policies when considering whether HGL had discharged its persuasive burden of establishing the activity was not contrary to those Objectives and Policies.
[184] Through its reasoning in paras [29]-[33], [45]-[49], [284]-[290] of the Decision Mr Pizzey says the Court did exactly what HGL says it did not. The rural characteristics set out in Policy 17.2.2.3(b) simply provide a framework for factual assessment, not a definition, and the Court had to recognise these characteristics, without having to give effect to or achieve them, rather giving them weight as it saw fit. Mr Pizzey says that HGL is saying that the Court did not give the factors recorded in the Policy as much weight as HGL thinks it should have done and that is a merits based argument, not an error of law.
[185] Mr Christensen agrees with the submissions for the Council by Mr Pizzey. He submits that HGL seems to suggest the Court was describing the rural parts of the Canterbury Plains in general at para [153] of its Decision, but that is wrong because there it was plainly discussing the area around the proposed quarry and around the
residents’ properties. Further, the Court manifestly did not simply focus on those parts of rural character which contribute positively towards amenity. He points out the Court made this plain at para [152] of its Decision when it said it would expect the quality of the landscape, including that modified by farming activity, to contribute to people’s appreciation of its pleasantness, or coherence, even though rural productive activities can have effects which may be considered adverse.
[186] Mr Christensen says the Court has no ‘gilded view’ of pastoral farming and shelterbelts, but instead expressly recognised the existence of quarries and their effects, and that they are already impacting on rural character and amenity. He does not quite put it this way, but he is close to saying that HGL seems to suggest there is no threshold above which additional effects from new quarrying would be unacceptable, because quarrying is a productive rural activity and therefore consistent with the amenity and character of the rural area in general, and this part in particular. If that is right, the entire Rural Zone could become a quarry, or a series of quarries, and he submits with the force of logic that cannot be the intention of the Plan. Outside the Rural Quarry Zone, quarrying is a discretionary activity, and non-complying in this case. Mr Christensen submits the entire Rural Zone cannot become a “de facto quarry zone”. I consider this submission is correct as a matter of principle. The Plan makes it plain that it is not such.
Discussion
[187] I do not find the Court erred in its interpretation of rural character and amenity values under the Plan as a matter of law so as to err in evaluation of the evidence, nor discretely in that evaluation. The Plan recognises a range and variation in rural character and amenity values, based on natural and physical resources, and the location and extent of established and permitted activity. It recognises contributing elements to rural character and amenity values. There is however still such a thing as rural character across this range and variation, in openness, vegetation and separation. These qualities or characteristics are not made redundant by the scale and proximity of effects established and consented but not otherwise permitted in the Rural Zone. The reality is that effects derive from the overall natural, modified and working environment. They are part of the “to be expected” mix and some effects may be
‘noticeable’ to residents and visitors. They ‘go with the territory’ but they do so in the context of the Policy which marks out that rural character is a desired amenity, not ‘Arcadian’, but not (yet) lost to the erosive effects of other activities which are located in and to be expected in such zones and they are now expected to locate, at all costs. The Court has made no error of law in its recognition of this and placed no undue emphasis on these ‘traditionally’ rural qualities. Indeed, it made a balanced and thorough appraisal of the area’s complex rural character, including effects less than Arcadian. The Plan does not require that outcomes and effects of rural productive activities must predominate so as to dictate the Court’s consideration of rural character for those who live there. Quarrying is after all a discretionary activity in the Rural Zones. It must, however, recognise that the District Plan provides that, up to a point, adverse effects of rural productive activities will be felt.
[188] I agree with Mr Christensen that the Court has not taken a pre-quarry Arcadian starting point, but clearly and expressly considered the environment at the date of the hearing. The receiving environment is described throughout the Decision as including the existing quarries. The District Plan does not identify characteristics which give this area its particular character, but rather characteristics of rural areas generally, and that is why the Court undertook a comprehensive assessment of the rural landscape. As it said:28
This necessarily entails a comprehensive assessment of the existing landscape and so we turn next to the evidence of the landscape experts.
[189] There is thus no error of law as this First Question alleges. The Court recognised the discretionary nature of quarrying in the Rural Zone, and the variation in the landscape and activity components for assessment of rural character and amenity. The HGL submission is in effect that the rural character and amenity is modified to a degree that means these elements which characterise an area is rural, from which desired amenity is derived, have been lost. The District Plan says no such thing. These elements go with others derived from the natural and physical resources, together with the location and extent of established and permitted activities. Residents here live with sometimes noticeable adverse effects of rural productive activities, but
28 At [128].
as I have found, and as the District Plan makes clear, not at all costs. This was a difficult evaluative exercise which the Court in my judgment addressed correctly in law, and there is no error disclosed in this First Question.
Second Question of Law: Did the Court incorrectly apply the District Plan Rules as they relate to noise, to apply to noise from traffic on a public road?
[190] Ms Appleyard explains that this question is one part of several alleged errors of law as to noise, in conjunction with Question six. It breaks down into the six sub-questions addressed after the Discussion section of Question Six.
[191] HGL accepts that traffic noise from public roads may be brought to account in the assessment of effects, but says the Court went too far, and incorrectly applied District Plan Rules as they relate to traffic noise within the Transport Zone, which is quite separate from the Rural Zone. The exclusion of such traffic noise from consideration under Rule 6.1.4.2 is because even quiet roads often experience noise levels which exceed those in the adjacent zone, particularly as they affect houses close to the road boundary.
[192] This application of the Rules in the Transport Zone is submitted to be in error, either in bringing to account an irrelevant factor, or misinterpreting the Plan.
[193] Dr Trevathan gave evidence that before quarrying was established in the immediate area, the noise of traffic would have been 58 dB at the houses closest to the Conservators/Savills Road corner. Acoustic engineers say that traditionally operational and traffic noise involve different acoustic assessment frameworks. The 50 dB limit imposed on activities within the Rural Zone was contrasted by the Court with the 55 dB guideline in the New Zealand Standard. The Court concluded that the anticipated noise outcome in the context of the values described in Objective 17.2.1.1(a)(i) (the function, character, and amenity values in the rural environment) means that noise levels must be managed to a level less than that recommended in the Standard. The 50 dB limit in the Rural Zone is already exceeded by local traffic on the road, so the Court thought any exceedance of 50 dB is
inconsistent with expectations in the District Plan, and contrary to the specific exclusion of traffic noise in Transport Zones.
[194] HGL’s submission is that the Court incorrectly and “unrealistically” drew on the Rural Zone noise limits from those of vehicles travelling on public roads in the Transport Zone, and thereby conflated the magnitude of change in noise levels beyond the expectations of the District Plan. Ms Appleyard says this means a precedent has been created for activity involving increased traffic movements by reference to a neighbouring zone’s noise Rules. This is not of precedent effect. It is a question of whether such are relevant in any given case.
[195] Mr Pizzey’s response is that the Court did not apply the District Plan Rules for noise from traffic on a public road, rather the Court demonstrably understood the distinction between Rules and effects. He submits that HGL misconstrues the Court’s reasoning, in particular the distinction between Rules and effects, which can properly be considered. Put simply, he says the key issue is whether the Court was entitled to have regard to the noise effects of road traffic, and submits that it was so entitled.
[196] Mr Pizzey says the Court properly considered the extent to which HGL’s onsite operations and vehicle movements would change the existing noise environment, then the effect of any such change on rural amenity. The Court heard expert evidence and accepted that noise from onsite HGL activity would not result in a breach of noise Rules (with two exceptions which do not affect sensitive receivers), and plainly accepted that noise limits in the Rules do not apply to roads so as to dictate the conclusion. He submits the Court was entitled to have regard to adverse effects from whatever source, including the noise of traffic generated by the proposed activity. The fact that limits apply or do not elsewhere is no bar to considering the effects of noise from that source. It is conceivable that a Plan could prevent a decision-maker considering effects from any particular source, but this Plan does not do so. He says the opposite is the case as Advice Note One states that the adverse effects of noise of traffic on roads is relevant when considering discretionary and non-complying activities. The Advice Note makes it clear that there is no legal constraint when
considering noise effects and all effects of the proposed activity are relevant when considering discretionary and non-complying activities. The Court referred to the Advice Note, and Mr Pizzey says that cannot be an error of law, as the Advice Note is relevant to the Plan’s interpretation.
[197] Mr Pizzey submits that Policy 7.2.2.3(a), which the Court referred to as being relevant to its consideration of effects, is directed to management of adverse effects of activity within the Transport Zone, to ensure consistency with amenity values and activity of adjacent land uses, while providing for the transport network to function efficiently and safely. That too he submits is relevant, and does not mean noise Rules were simply being applied to HGL’s activities on the roads. The Court was concerned with the effects which HGL-generated activity would have on the existing environment, and that includes the noise of traffic on roads.
[198] Counsel says the Court stepped through a sequence of reasons and the starting point was consideration of the level of noise that could reasonably be expected in the receiving environment. It was entitled to use Rules in the District Plan to guide the assessment of effects, and it did not apply the Rule as a limit. The District Plan Rule for noise in the Rural Zone is 50 dB, and NZS 6806 relates to noise from roads. The ‘generally not to be exceeded’ guideline of 55 dB is not the noise from roads. The Court said that because the District Plan sets a permitted noise standard of 5 dB below the Standard for this zone, that indicates values which the District Plan is seeking to protect. Objective 17.2.1.1(a)(i) seeks to support and maintain the function, character and amenity values of the rural environment and there is an expectation that the noise levels in the locality are sufficiently important to require them to be managed at a level of 5 dB less than recommended in NZS 6806.
[199] Mr Pizzey thus says the Court did not make the error alleged, as the Rule is a guide to the rural environment which the District Plan seeks to maintain. The Court thought this was a necessary consideration because the Objectives and Policies do not state the outcomes sought for Rural Zones, leaving it to the Rules to drive outcomes for different Rural Zones. That approach reflects the specialist expertise of the Court, and it is not for the High Court to upset on appeal.
[200] The JAG residents adopt the submissions for the Council and say that the Court looked for the outcomes sought for Rural Zones, as the Objectives and Policies do not provide these. The noise Rule of 50 dB is based on values which the District Plan directs should be maintained, a measure which the Court recognised as less than the New Zealand Standard. Mr Christensen also says the Court did not simply take the noise level from the Transport Zone and apply it, but was entitled to have regard to it. The Court nowhere said the Rural Zone noise standard has to apply to traffic noise, nor did the Court think it was simply applying the Rule, but found what it considers to be an acceptable noise level at houses in the Rural Zone. The Court was focused on the sort of amenity anticipated in the Rural Zone.
[201] The permitted noise standard in the District Plan simply provides guidance in the rural environment, so when Mr Camp said that ‘his’ experts accepted traffic can be a “bit noisier” without having the same adverse effect as a quarry, that was of little assistance. Future cumulative noise levels at the notional boundaries of some dwellings affected by HGL traffic noise would at times be in excess of the Standard and could reach 55 dB at some dwelling facades, based on the evidence of Dr Trevathan. Mr Christensen says the local area is subject to high levels of noise, higher than the District Plan provides as permitted levels, and this is relevant to cumulative effects, the capacity of the receiving environment, and the available amenity to ‘absorb’ the additional noise.
[202] HGL’s submission on the second question of law seeks to isolate the reference in the Plan to noise within the Transport Zone, and to say the Court simply and wrongly applied it. However, in submissions HGL counsel explained that it was not submitting that it was irrelevant to consider Rules applicable to the Transport Zone in the context of effects in a neighbouring zone. As the argument developed the relevance and application of Rules in relation to noise in the Transport Zone is submitted to have been misplaced, so as to constitute an error of law. However, nowhere in the submissions, nor in the Court’s Decision, does the reference to the Rules applicable in the Transport Zone miscarry for the purpose of this second question. Rather, the Court
brought the Rules to account as relevant, and I do not read the Court’s Decision as going further than that. The Court’s reference to the Rules was simply part of its evidential evaluation of cumulative noise and its effect on amenity. That was for the Court to weigh up. It did not dictate the Court’s Decision. The second error of law is not made out.
Third Question of Law: Did the Court impose a requirement on evidence of experts which went beyond the role of an expert, assessing the effects of a proposal?
[203] Mr Chapman says that this question is directed to the Court’s approach to landscape issues, and to a lesser extent the effects of dust on amenity. It relates to the Court’s criticism of expert witnesses in their approach to the evaluation of landscape. It crosses with aspects of Question One.
[204] Mr Chapman begins with the Court’s statement that the District Plan does not identify the attributes of the landscape which give this area its particular character.29 That is submitted to be at odds with the evidence of Mr Craig and Ms Smetham who analysed the District Plan by reference to Rules which are designed to protect open space, and put limitations on the built environment and activities that the District Plan contemplates in the Rural Zone, together with Objectives and Policies which influence landscape outcomes in the zone. Mr Chapman submits that the Court instead began with a blank slate to assess landscape and rural character, whereas Mr Craig and Ms Smetham approached the issue correctly constrained by the District Plan.
[205] Mr Chapman submits Objective 17.2.1.1(a)(i),(ii),(iii) and Policies 17.2.2.1, 17.2.2.3(a),(b),(c), and 17.2.2.12 have application, and articulate functional aspects of the Rural Zone, its contrast with the urban environment, and the varied nature of the zone. The Objectives and Policies are generally listed in a sequence from ‘broad’ to ‘specific’, and Objective 17.2.1.1, the first listed, is to enhance the function, character and amenity values of the rural environment, and reinforce the potential of rural productive activities on the economy. So, Mr Chapman says, change is clearly anticipated in the Rural Zone. Variation across the environment is identified in Policy
29 At [126].
17.2.2.3, already discussed, with reference to established and permitted activities. The list of relevant considerations begins with the concept of openness and vegetation, but this does not guarantee vistas, nor preclude undulation in the landscape. The reference to vegetation, Mr Chapman says is to rehabilitation of quarry sites.
[206] Policy 17.2.2.12 is headed to show it is about management of quarry activity, and Mr Chapman submits the outcome directed for quarries is just that, management of effects, and not elimination of effects on rural character and landscape. Mr Craig took this as guidance, a starting point for evaluation, whereas the Court’s starting point, the ‘blank slate’, is submitted to be at odds with the Policy.
[207] The Court thought the landscape experts had a difficult job on their hands, given the change in landscape over the previous few years. Mr Chapman says it adopted a starting point based on historical landscape, which led to the conclusion that rural character depends on pastoral farming, shelterbelts and hedgerows which cross-hatch the landscape. He says effects should be assessed against the current state of the landscape, with consents granted, and activities permitted by the District Plan. He says that is not a difficult task, and is the correct approach, and the Court erred in not recognising the landscape as so modified.
[208] The landscape experts did not ask residents about the factors they think contribute to their appreciation of the area, and the Court thought that meant they did not engage with the residents’ views that their amenity was adversely affected by the quarrying activity. Mr Chapman says that Mr Craig gave evidence before the Commissioners, and therefore heard or “should be taken to have heard” the residents’ evidence and submissions. This is not an inference available, but in any event does not meet the concern of the Court, as to understanding the amenity in the locality, as it is experienced.
[209] Mr Chapman submits an expert should only provide an expert opinion, not make “an overall broad judgment”. However, the Court can, if it chooses to do so, accept the evidence of a witness on the ‘ultimate issue’ under s 25(4)(A) of the Evidence Act 2006, where it is of substantial help to the Court as the trier of fact and
law. The evidence is not determinative to the extent the expert in effect becomes the decision-maker. There can be no delegation of decision-making to the expert.
[210] Mr Chapman says the upshot of the Court’s reasoning is that Mr Craig should have ‘conferenced’ residents’ views, then adjusted his own conclusions to be more “rounded” in drawing his conclusions. That is submitted to put him in the role of decision-maker, to assess the merits and reliability of opinion evidence, and decide what weight to give the information derived. I pre-empt the Discussion which follows to say this is not what the Court said, nor do I infer that is what it meant. Mr Chapman, however, correctly refers to the Court’s statement in Port Gore Marine Farms v Marlborough District Council, that:30
So individual perceptions of the effect of a proposal on their future amenities will usually not be a sufficient guide to reasonableness of the effects, people do tend to resist change simply because it is different to what they know. Essentially, the test for effects on amenities is one of reasonableness in context, usually be better informed by reference to the District Plan.
[211] He submits that the notion that an expert should ‘conference’ with neighbours and lay persons is novel, and would constitute an ‘absurd compromise’ by experts. The 2014 Practice Note for the Environment Court sets out a protocol for expert witness conferences, and outside of their specialist expertise, others will not participate unless directed by the Court. Landscape is a key element in the Court’s decision-making so criticism of the experts’ approach and the Court’s disregard of the District Plan’s provisions for landscape are submitted to have led to an outcome which Mr Chapman submits is in error.
[212] Mr Pizzey says that criticism of the landscape architects for not ascertaining the views of the residents and bringing them to overall account is not in error, because the Court’s reasoning in paragraphs [130], [148] and [151] of the Decision does not carry the implication alleged by HGL.
30 Port Gore Marine Farms v Marlborough District Council [2012] NZEnvC 72 at [213].
[213] The three landscape architects had provided a report under s 42 RMA to the Commissioners. The Court said it was not aware whether the experts made inquiry of the residents or the community generally as to the qualities and characteristics that contribute to their appreciation of the area.
[214] Mr Craig’s view was that there is no difference in the rural character of a quarry in a Rural Zone or in the Rural Quarry Zone because under the District Plan quarrying can occur in both.31 His conclusion was referred to by the Court, that:32
...the factors contributing to the landscape character will remain unchanged even though there is an increase in the proportion of quarrying relative to other activities in the area.
[215] That issue of change is however entirely for the Court, a question of evaluating the evidence.
[216] Ms Smetham’s opinion was that the residents’ amenity is derived from the area’s rural character, aesthetic coherence and pleasant outlook, but the amenity is variable because of diverse outlook and land cover in the zone. The effects of this proposal on rural amenity would be moderate, including where there would be views into and over the site. The Court discussed Ms Smetham’s evidence, saying that she had a narrow brief, to consider the evidence of Mr Craig and Ms Dray and to focus on their differences without a “longwinded assessment of her own”. The Court then said:33
Had she undertaken a full assessment of the rural character and made inquiry into the residents’ amenity values she may have arrived at a conclusion on where the threshold of acceptable effects lies. We think it prudent in the circumstances to treat her evidence with caution, as we do with Ms Dray who has not had the opportunity to provide a full brief of evidence or to consider the proposal under the District Plan.
[217] Ms Dray differed from Mr Craig and Ms Smetham in her short report tabled before the Commissioners. The Court said it regretted it did not have from her a full brief of evidence. She referred to the submissions made by residents and their concerns about a significant change to rural character and amenity because of
31 At [134].
32 At [135].
33 At [151].
cumulative traffic, noise, dust and visual effects. The Court said she had “helpfully” distinguished landscape effects from visual effects. The former are those that bring about change to the landscape and the latter are those that can be seen arising from the proposal or from various vantage points.
[218] Ms Dray considered that the capacity of the landscape to absorb change would be ‘tested’ by the HGL proposal, and its legibility is affected to a degree that may well be irreversible if there is not enough cleanfill to restore the site, in which case the cumulative adverse effect on landscape character would be more than minor. She also said views into the site would have adverse effects on visual amenity that:34
... are minor but, when considered together with the views of the other quarries, there is an adverse effect on landscape and visual amenity and these effects may have reached a tipping point.
[219] Mr Pizzey refers to para [148] of the Decision where the Court disagreed with Mr Craig for equating “openness” with “built space”. “Openness” characterises this landscape and the fact that this proposal does not increase the built space does not necessarily mean the openness of landscape is retained. The Court said that Mr Craig did not consider whether enclosing the pastoral view by bunding and shelterbelts would have an effect on the visual amenity of the residents.35
[220] He submits the Court does not say that landscape architects as experts must undertake an “overall broad judgment”, although they are not precluded from doing so. The Court is entitled to criticise an expert, accept or reject their evidence and express views about evidence that may have assisted the Court further. It is not bound to accept all or part of the evidence of any witness, lay or expert, but should weigh and consider it with all other evidence. It is entitled to bring to account an absence of evidence on matters which it considers relevant.
[221] Rather than imposing an unlawful or unreasonable requirement on the experts as HGL submits, Mr Pizzey says the Court’s reasoning under “Rural character and amenity” shows how it carefully assessed “values” evidence. It said experts need to begin with assessing the degree of adverse effects against a baseline environment.
34 At [142].
35 At [148].
This involves the experts first identifying what it is that people in communities value about their existing environment, and explaining how the experts ascertained those values. Secondly, experts need to ascertain whether the District Plan and other documents identify such attributes, and in that context, make an objective assessment whether those values identified are reasonably held. Finally, they need to assess adverse effects of the proposal on those values, considering whether values are maintained, and assessing effects in light of the anticipated outcomes of the District Plan. HGL does not challenge that guidance to experts when giving “values” evidence.
[222] When the Court referred to the residents’ description of past amenity values, it expressly acknowledged that the existing environment includes consented quarries, and asked itself whether the District Plan identifies landscape attributes that give this area its particular character, before evaluating the landscape evidence from the experts. At para [130], which HGL says represents an error of law, Mr Pizzey says the Court simply said it was not aware if the landscape experts made enquiry of the residents or community generally as to the qualities and characteristics that contribute to their appreciation of the area. Mr Pizzey says there is no error of law in that, as there was no evidence of such inquiry having been made. The reasonable inference is that the Court thought the experts should have made such an inquiry as it was a step in the required sequence of considerations which it set out, to understand the amenity as it is experienced.
[223] When the Court considered the expert landscape evidence it included that for HGL. However, it was correct in treating the relevant Objectives and Policies of the District Plan not as a code so as to preclude other factors being considered. The Court considered there was an error in the methodology used by Mr Craig because he erroneously equated “openness” with “built space”, as he said if there were no more buildings then enclosing a pastoral view with a bund and shelterbelts would not have an adverse effect on “openness”. The Court did not accept this evidence and that cannot be an error of law, Mr Pizzey submits. It was entirely open to the Court to evaluate bunding and shelterbelts in the context of amenity.
[224] The third passage of the Decision relied on for HGL is at para [151] where the Court evaluated the evidence of Ms Smetham and said had she undertaken a full assessment of rural character and made enquiry of residents about amenity values, she may have arrived at a conclusion as to where the threshold of acceptable effects lies, and without that the Court treated her evidence with caution. None of this means landscape experts must articulate the views of residents and reach an overall judgment. The Court simply said that in assessing values, there must be a first step involving identification of what people value and an objective assessment of those values, which Mr Pizzey says is unremarkable because the issue is the impact of the proposal on the amenity values of residents. The landscape architects did not adequately articulate this first step in their evidence and the Court simply made a finding on the adequacy of their evidence, in an orthodox way.
[225] JAG adopts the submissions on behalf of the Council.
[226] The criticism of the Court’s approach to the evidence of the landscape experts is in my view entirely misplaced. The Court said that the experts did not (so far as it knew) engage with the residents’ views that their amenity is adversely impacted by quarrying activity taking place in the locality. That is simply to point to the need for an understanding of the experience and concerns about amenity including rural character of those affected, and for those elements to be objectively brought to account, recognising their inherent subjectivity. What better evidence in the first place is there than that of those who experience and live with the effects, provided their evidence is objectively assessed against the provisions of the District Plan and other expert evidence? The Court was not in error in observing the need for this fundamental step. A querulous and unreasonable stance taken by a resident will never prevail, but their living experience, not overstated, must be prime evidence. It is easy to dismiss or minimise the views of affected persons as subjective, yet theirs are the experiences of the very effects and amenity with which the Court is concerned.
[227] The Court did not suggest that there should have been “conferencing” which HGL submits is an inference to be drawn from the Decision, nor did the Court undo the effect of Port Gore Marine Farms.36 The Court at para [151] made its position quite clear, as it was entitled to, that inquiry of the residents’ amenity values as they experienced them may have assisted in determining where the threshold of acceptable effects lies. The Court complimented Ms Smetham on putting herself the question:37
whether the addition of this quarry would result in the breach of a threshold of acceptable effects on rural character and visual amenity.
[228] That “good question” was not, however, followed up by evidence of where the threshold lies, and it appeared to the Court that the environment had been considered as if limited by Policy 17.2.2.3. It is probable this was misinterpreted as saying something about the stated outcomes for the area, whereas the sustainable management outcomes are set out in Policies 17.2.2.1 and 17.2.2.2. Policy 17.2.2.3 is a fact-finding provision.
[229] I conclude that the Court’s approach to landscape is unimpeachable on the evidence before it. The quality of the landscape, including that modified by farming and other activities, can be expected to contribute to people’s appreciation of its pleasantness and aesthetic coherence, even though rural productive activities have effects which may be considered adverse. The rural character of the area depends in substantial part on pastoral farming, and on other physical elements of the landscape, but in this locality, there are now open and enclosed views. The view towards pastoral landscape is an amenity valued by residents and although broken up by shelterbelts, hedgerows and more recently by bunds, the rural character nevertheless retains a degree of open spaciousness which residents value. Such a finding is entirely for the Court based on the landscape evidence, in the context of the Plan.
[230] This links to Question One. The Court did not have to treat the character and quality of the landscape and its contribution to people’s appreciation of pleasantness or aesthetic coherence as devalued or degraded to such a degree that the provisions of the District Plan that allow rural productive activity should somehow take precedence,
36 At [150].
37 At [150].
or to lower the bar in assessing amenity based on character and quality of the landscape. If it were otherwise the mere fact of effects which erode the character and quality of the landscape would dictate more of the same. That cannot be right. In my judgment, the Court assessed the threshold of effects against which to assess the issue for this third question, and did so in a careful, evaluative way. It was entitled to look for more evidence from experts of prime evidential material relevant to these questions, from the residents.
[231] The third alleged error of law is not made out.
Fourth Question of Law: Did the Court incorrectly interpret the rehabilitation Rules of the District Plan?
[232] Mr Chapman’s submissions begin by making the reasonable assumption that the Court intended to refer to Policy 17.2.2.13(b) rather than 17.1.1.13(b), as the latter does not appear in the District Plan. Policy 17.2.2.13(b) requires proposals for new quarrying activities to demonstrate “through a rehabilitation plan” the objectives, methodology and timescales for achieving site rehabilitation and appropriate end use. The Court took this to mean such a plan should have been included with the application, but Decisions by the Independent Hearings Panel on the rural chapters of the District Plan had not been made by then, so the Policy did not exist when the application was lodged.
[233] HGL submits the Court incorrectly interpreted the Policy to mean the rehabilitation plan must be produced when the application is made, and says the application needs only make it clear what the rehabilitation plans are, to assure the decision-maker that the eventual rehabilitation will meet the requirements of the Policy.
[234] Section 75(1)(c) RMA provides that Rules are to implement Policies, and only one Rule seems to apply, 17.8.3.14, which requires a rehabilitation plan to be submitted for certification for new quarries prior to commencement of quarrying activities. This is submitted for HGL to be sensible, to reflect conditions imposed by
the Council and the Regional Council, to provide one cohesive document. The submission for HGL is that it simply has to establish that the requirements of the Policy are met through the application, which forms part of the consent, and proffered conditions.
[235] Mr Chapman says that HGL was “effectively between the devil and the deep blue sea” in terms of its evidence about rehabilitation because it held a consent to rehabilitate from the Regional Council, to control issues of groundwater, cleanfill and the depth of fill to ensure pasture cover. HGL could have gone into more detail in relation to those consents, but they were already before the Court.
[236] The Court held the Policy would not be met because there was no stated end use beyond pasture, and no expert evidence whether the rehabilitated end use would in fact provide for pastoral use, nor any assurance that the site would be rehabilitated to enable subsequent use of the land for permitted or consented activities. HGL submits the Court erred when making these findings given the evidence it had before it, and the ‘commonly accepted position’ in Canterbury as to quarry rehabilitation. Mr Francis for HGL said the ultimate goal was to return the site to productive farmland as far as possible, so for the Court to conclude there is no stated end use beyond planting grass is incorrect. Mr Dixon in evidence for HGL made the same point, saying the stages behind and in front of the pit would have sheep in them, and the land once quarried and rehabilitated would do as well, so this would be a “gradual pit that moves along”. The end use will be farmland and rehabilitation will achieve that. The Court was critical that there was no expert evidence to establish that the rehabilitated land could be used for pastoral purposes, but there was no challenge to the stated intention to rehabilitate to that end. Mr Dixon and Mr Francis represent major companies in the aggregate industry, and are familiar with this type of rehabilitation. Mr Bligh said the topsoil proposed to be used would be suitable and he had seen its application work. As a matter of law, the end use of the land is controlled by Regional Council Rules relating to land use for farming activity.
[237] Mr Chapman submits that the Court’s overall uncertainty with the proposal was in part the result of the incorrect interpretation of Policies, and led to error in the reasoning for the second limb of the s 104D threshold tests.
[238] Mr Christensen says when a rehabilitation plan should be provided to the consent authority was not critical to the Court’s Decision, and the issue is whether the HGL proposal meets Policy 17.2.2.13. He says that the Court made its findings about rehabilitation based on the evidence and the commonly accepted position in Canterbury, so there was relevant evidence before it. HGL’s evidence simply did not satisfy the Court that the Policy would be met. The two witnesses referred to in support by Mr Chapman are quarry operators, not experts in rehabilitation, and they were not treated as such at the hearing, nor was Mr Bligh. Thus, the Court’s finding of fact that no expert evidence was led about rehabilitation is just that, a finding that the evidence was inadequate, and that finding is not amenable to challenge as an error of law.
[239] The Court on the evidence concluded that the site would “at least” be partially restored after quarrying is finished. However, Ms Dray held concerns about the cumulative visual effect of a series of shallow basins from partially restored sites within this locality. This is a matter of fact and involved findings which were available to the Court, and relevant to its Decision.
[240] It seems clear that whenever a rehabilitation plan is filed, it must be available to the Court and thus other parties whenever it is relevant to the envisaged outcome for landscape, addressed in terms of effects including cumulative effects. This is not automatically a ‘residual’ or ‘washup’ provision simply to be addressed after the Decision is made. The Court held a real concern about the physical resource available to cleanfill the quarry and that is an evidential issue properly of concern as to landscape. I accept that a Decision with conditions allows a more informed rehabilitation plan, and that may be a staged consideration for the decision-maker. Here, however, the evidence was insufficient for the Court to assess effects. The ‘gap’ could have been closed evidentially, but was not. I add that sometimes a rehabilitation plan may be a matter of detail and not an “effects” issue. That would mean the rehabilitation Plan could be settled and approved after the Decision, because it is not relevant as to effects.
[241] There is no error of law in terms of this fourth question.
Fifth Question of Law: Did the Court err in its finding that it had insufficient evidence to determine whether the application was contrary to the Objectives and Policies of the District Plan and thus whether it could pass the s 104D gateway test?
[242] While this looks like a straightforward challenge to evidential findings, Mr Chapman and Ms Appleyard submit that the Court erroneously undertook the threshold tests under s 104D at the end of the judgment rather than at the beginning. They say the sequence for the decision-making begins with the ‘gateway’ or ‘threshold’ tests under s 104D and these must be addressed before turning to the relevant considerations under s 104(1), as the threshold tests under s 104D are a “sieving process for non-complying activities” and the High Court has endorsed the proposition that it is important when applying regulatory statutes that the right question is asked at the right time.38
[243] This submission is based on the three-step sequence, set out in Baker Boys
sequence:39
(i) to identify relevant s 104 matters for consideration;
(ii) to consider whether the application meets either threshold test under s 104D; and
(iii) to determine the application by weighing matters under s 104.
[244] The Court sought further evidence about discharge to air of respirable crystalline silica, but that was the only evidential issue further explored, so the threshold tests were applied on all the evidence given at the appeal hearing. Ms Appleyard and Mr Chapman submit that the Court “confused” its gateway considerations with weighing evidence under s 104(1). They say the s 104D test is a
38 Queenstown Central Ltd v Queenstown Lakes DC [2013] NZHC 815 at [21].
39 Baker Boys Ltd v Christchurch City Council [1998] NZEnvC 144; [1998] NZRMA 433 (EnvC).
“broad or high-level filter”40 and should not require complex evaluation involving for example the reliability of expert evidence. Further, for a non-complying activity, it is not necessary to garner direct support from the provisions of the District Plan as the test is whether the proposal is contrary to its Objectives and Policies.41 Here, the application is submitted to find direct support for quarries in the Rural Zone as rural productive activities. Objective 17.2.1.1 is submitted to have been ignored, and the Court has instead focused on parts of Objective 17.2.2.12 which address the location and management of quarrying activities, which counsel submit are to be accommodated within this zone. This leads to the submission that the Court has set “too high a bar, evidentially” in evaluating the gateway tests.
[245] This submission is deceptively simple but involves some fundamental propositions as to the way s 104D should be addressed, evidentially.
[246] Counsel submit that the Court ‘ignored’ planning witnesses called for the Council and HGL, and that the evidential burden on HGL to raise issues for evaluation was discharged. They submit that the reliability of evidence in relation to conditions of consent is for s 104 evaluation, not s 104D, and by embarking on what is submitted to be a too fine grained and otherwise erroneous evaluation of the evidence, HGL has been ‘prejudiced’ in the s 104D Decision. They say the Court’s judgment was coloured by its conclusions on the evidence from the outset, and that the Court should have requested further information if it harboured doubts about the gateway test on any issue. Because of what is submitted to be a ‘false start’ in the evaluation under s 104D, Ms Appleyard and Mr Chapman submit the application should go back to the Court for reconsideration.
[247] Mr Christensen submits that the Court has proceeded in an unremarkable and orthodox way in consideration of s 104D and s 104(1), first addressing whether the effects of the proposal are minor, then whether the proposal is contrary to the Objectives and Policies of the District Plan.
40 Foster v Rodney District Council [2009] NZEnvC 327; [2010] NZRMA 159 at [24].
41 Arrigato Investments Limited v Auckland RC [2001] NZCA 329; [2001] NZRMA 481 (CA).
[248] He submits that the Court did not expressly or in effect embark on a s 104(1) analysis first, rather it focused on the threshold test for a non-complying activity. There was no detailed analysis under s 104(1) because the Court did not get that far, but it is relevant that it would have declined consent in the exercise of its overall discretion under s 104 had there been a jurisprudential foundation to do so. Hence, Mr Christensen strongly contests the submission that there was ‘confusion’ in the Court’s approach to s 104D, and he submits that the Court’s decision-making demonstrably proceeded through the following sequence:
(a) What is the state of the receiving environment?
(b) What are the effects (including additive and cumulative effects) of the proposal?
(c) What changes will those effects introduce in terms of rural character and rural amenity?
(d) Are those effects minor?
(e) Is the proposal contrary to the Objective and Policies of the District Plan?
[249] Mr Christensen submits the ‘real challenge’ raised by HGL is to the Court’s thoroughness in considering the s 104D threshold tests, and (paradoxically) what is really being said by HGL is that the Court should have been ‘more superficial’ in its analysis. He says that it is for the Court in any given case to determine the extent of forensic enquiry is needed for the purpose of s 104D, which may include the extent and cogency of the evidence presented, and in several respects the Court here found that HGL failed to meet its evidential burden.
[250] He further submits that the Court did not narrow its evaluation of Objectives and Policies relating to quarrying in the rural environment, because it patently did so thoroughly, demonstrated in paras [36] – [49] of its Decision. It recognised quarrying as a rural productive activity but that does not mean it is necessarily appropriate at any
particular location. The proposal is to be assessed on the evidence, the Objectives and Policies, the Plan as a whole, and the Act. That submission cannot be gainsaid.
[251] He lays considerable emphasis on the Court’s reference to Policy 17.2.2.12(a)(ii) which provides that outside the Rural Quarry Zone (as here), a new quarry may only be established where it:
(a) avoids areas of outstanding or significant landscape, ecological, cultural or historic heritage value;
(b) avoids or mitigates effects on activities sensitive to quarrying activities;
(c) internalises adverse environmental effects as far as practicable using industry best practice and management plans, including monitoring and self-reporting;
(d) manages noise, vibration, access and lighting to maintain local rural amenity values;
(e) avoids or mitigates any effects on surface water bodies and their margins; and
(f) ensures the siting and scale of buildings and visual screening maintains local rural amenity values and character.
[252] The Court said that the attainment of these outcomes is a major ‘determinator’ in meeting Objectives for the rural environment.42 Mr Christensen says that is not an inappropriate narrowing of the Court’s evaluation, but rather focuses on its most relevant provisions. To the submission that HGL has been prejudiced by the s 104D determination as to effects, based on the evidence, Mr Christensen says that cannot be the case because the Court concluded that some effects would be more than minor and would not meet the relevant Objectives and Policies. That is not ‘prejudicial’, but simply contrary to the position for HGL. Further, he submits the Court was clearly
42 At [48].
not satisfied that the HGL had discharged its burden to persuade the Court that the threshold tests were met, and as he puts it “... that was the end of the matter”. The Court did not have to allow the appellant the opportunity to “bolster or patch up its case” on further evidence as seems to be suggested for HGL. It did think about requiring further evidence on dust and cumulative visual effects, but decided against that because it decided it would have declined consent under s 104, for unrelated reasons.43
Discussion
[253] There is a superficially attractive element to HGL’s submissions on this Fifth Question, as the non-complying status is based on a seemingly benign exceedance of noise levels from the HGL site at one boundary which is not noise sensitive. That is perhaps more an observation about the second leg of s 104D, but does not in any way address the first leg, as to the degree of effects.
[254] Section 104D does not require that the Court approach the threshold tests in a “sieving” or more limited way, as a gateway to the considerations under s 104. It has often been applied in that way, prior to the fine-grained and more extensive analysis required under s 104. The Act does not point to any limitation in the decision-maker’s consideration of s 104D, but in this case the reason the activity is non-complying is of little weight when it comes to consideration of effects. In my view, here the Court made a detailed examination of effects, all of which would be addressed under s 104 as well (with others), and it was entitled to do so. The notion that the Court is bound in some way to reduce or minimise its considerations under s 104D is in my view wrong in law. The Court may approach s 104D as it did.
[255] The ‘evaluation’ which began at para [282] of the Decision addressed the question exactly as s 104D requires, as to whether the Court was satisfied the effects of the proposed quarry would be minor. Sometimes that will allow a short course conclusion before moving to s 104, but whether that course is available is for the Court (the decision-maker).
43 At [288].
[256] Policy 17.2.3.12(a)(ii) has a rigorous quality in that a quarry may only be consented in a Rural Zone with specified outcomes. It is instructive for the answer to this Question that the Court first addressed the evidence on which it could properly reach a view as to the level of additive effect, and where in each case it would be “more than minor”. This was a multifaceted exercise as to the traffic noise on residents at 15 and 25 Savills Road, where the effects would be significant. The Court could not even reach a view as to whether the additive dust effect would be minor, in the absence of a baseline assessment of the existing dust environment. As to the proffered condition that there would be no visible dust emissions beyond the boundary of the site, the Court was not satisfied such would secure the necessary outcome. Conditions are meant to minimise dust emissions, not prevent their occurrence, and the Court held on the evidence that it was likely there would be visible dust emissions from the site. However, the baseline dust environment was not sufficiently well described to make a judgment about the scale and significance of additive (cumulative) effect.
[257] The same point was made as to the evidence about the cumulative effect on rural character and, in particular, visual amenity derived from that rural character. The Court was entitled to decide that for residents in the locality the quarry would have an adverse effect on visual amenity, with its descriptive reference to residents being “sandwiched” between the quarries with extensive bunding and shelterbelts, views into the quarries and the number of heavy goods vehicles entering and existing the site.
[258] The Court found it more difficult to determine whether consenting this quarry, given its location in context with the other quarries, would maintain the rural character of the area. It agreed with Ms Dray who said that it is difficult to declare where the threshold lies as to acceptable visual effects is without a study to determine the level of quarrying acceptable within the zone. The Court made a straightforward evidential finding: “We do not have reliable evidence to reach any conclusion about where this threshold may lie”.44 All this led to the Court finding that it had inadequate evidence to determine the significance of additive effect on visual amenity. The Court plainly rejected the evidence that if no new buildings were proposed the “generic” rural
44 At [286].
character of the area would not change regardless of the nature, scale and intensity of cumulative quarrying activities in the area. The Court seems to have been sceptical about evidence that there was no difference in the rural character of a quarry zone and any other Rural Zone because quarrying can occur in both. In my judgment that proposition is a non-sequitur. In the Rural Zone quarrying is a discretionary activity and whether an applicant gains consent will reflect, with other things, the variable character of the Rural Zone in which it is proposed to be situated.
[259] The findings about the future dust environment and rural character meant the Court could not determine whether the application was contrary to the Objectives and Policies of the District Plan or otherwise. However, on the evidence, the Court was not satisfied that the use and development of rural land would support and maintain the rural amenities in the rural environment. It said this, with specific reference to quarrying as a rural productive activity most suitably located on rural land:
[290] We recognise quarrying is a rural productive activity that is most suitably located on rural land. Even so, every decision-maker is to “ensure” the nature, scale and intensity of this activity recognise the character and amenity values of the receiving environment (policy 17.2.2.4). This could be achieved, in part, by ensuring an adequate separation distance between the quarrying activity and incompatible activities (policy 17.2.2.10). If separation distance means the set-back from a sensitive activity, then a separation distance was not proposed. Rather the applicant proferred conditions to manage the adverse effects of dust on residents living within 250m of the site. We are not satisfied that the applicant has demonstrated that the “separation distance” is adequate to address the cumulative effect of off-site dust emissions at least to the standard which we can conclude that the character and amenity of the rural environment will be supported and maintained (objective 17.2.1.1(a)(a)). This finding is important in that, a related policy (17.2.2.12(a)(ii)(B)) is enabling of new quarrying outside of the Rural Quarry Zone only where the activity avoids or mitigates effects on activities sensitive to quarrying activities. And, only where the activity “manages noise, vibration, access... to maintain local rural amenity values” (policy 17.2.2.12(a)(ii)(D)). We are not satisfied the proposal does not achieve these provisions, and this is a finding which we give significant weight.
[260] I conclude that the Court made no error in its considerations under s 104D of the Act, but rather in a thorough way stepped through separate and cumulative effects on the evidence and District Plan considerations required under s 104D. In some cases, the conclusion was of effects more than minor. However, in several important instances, the Court simply did not have the evidence it needed, and without that the
first threshold test of s 104D cannot be satisfied, and by the same reasoning nor can the second threshold test.
[261] The fifth error of law is not made out.
Sixth Question of Law: Did the Court come to a conclusion without evidence, or a conclusion which on the evidence it could not reasonably have reached, when determining that a 3dB increase arising from traffic noise from the Transport Zone was a “significant adverse effect”?
[262] This question is associated with the second question and the effects of noise, including change in the receiving environment. It breaks down further into six alleged errors, set out below. The sixth question is, however, addressed as first put for HGL.
[263] Ms Appleyard submits that the Court focused on the effect of change which would be brought about by HGL operations which it described as “fundamental to our decision and is the focus of our evaluation”.45 In itself, that is correct, but the HGL challenge is aimed at a specific element of the increase in noise, and evidence of the effect of that change. Expert evidence was compared, given on a “worst case” scenario based on maximum traffic numbers to and from the HGL and SOL quarries, and maximum gravel extraction. Mr Camp anticipated a 3 dB increase, Dr Trevathan a 2 dB increase. The Court concluded that there would be at most, a 3 dB increase in noise level as a result of the HGL quarry operations. This is a discrete finding, reasoned without bringing to account the frequency, intervals, and characteristics of noise, all of which are relevant to cumulative effects.
[264] The Court considered what effect the characteristics of noise from heavy vehicles with the 3 dB increase would have on rural amenity. While it was not satisfied with the evidence as to the noise effects of acceleration and deceleration at the Conservators Road/Savills Road corner, the Court concluded:
[212] We consider these effects will be significant in terms of any remaining rural amenity, particularly when the effects of increased traffic numbers
45 At [177].
themselves are taken into account, and will not maintain aural rural amenity of the area, and is a matter to which we give significant weight.
[265] It is obvious that the impact of a 3 dB increase was an important element in the Court’s reasoning. In that, Ms Appleyard submits that the Court came to a conclusion on the evidence that it could not reasonably have come to, or alternatively that there was no evidence that a 3 dB increase in noise is ‘noticeable’. The noise experts were called by HGL on the one hand, and the Council on the other. There was no noise evidence for JAG. Therefore, Ms Appleyard submits that the experts essentially agreed with each other, but the Court came to its own conclusion which she submits was not founded on the evidence, as the noise experts agreed the increase in noise was 3 dB, and only of minor effect.
[266] The evidence before the Court was closely analysed by counsel for HGL. The evidence of a 3 dB ‘change” in level was given in evidence in the Marshall Day Noise Report and described there as “just acceptable”. Mr Camp’s evidence when questioned by the Court was that this is a minor change from an objective point of view, but his company, Marshall Day, has a “Table” which says, “Up to 2 or 3 dB change is minor, and 5 is noticeable, and 7 or 8 is significant”. Mr Camp said a 3 dB change is “relatively small”. Dr Trevathan said that it is “just audible” and 5 dB “clearly noticeable”.
[267] Counsel submit that the Court did not put to Dr Trevathan and Mr Camp any questions derived from the Court’s “own experience” of a 3 dB increase being noticeable to test that against the available expert evidence. So, as Dr Trevathan and Mr Camp said it is not until the change gets to 5 dB that it is “noticeable”, the Court reached a different conclusion without evidence and only an amorphous reference to its own experience. This is the foundation for the error of law alleged.
[268] By contrast, the residents gave evidence about their subjective experience of the existing environment and Ms Appleyard submits the existing noise environment is represented by the combination of noise from activities permitted by the District Plan and authorised by resource consent. The existing environment is about 52 dB, a level the Plan writer and decision-makers consider is consistent with rural amenity. Ms Appleyard submits that the residents called no evidence about the change brought
about by consent and so did not address the question set by the Court for itself: “To what extent would HGL operations change the existing environment, and what is the effect of any change on rural amenity?”.
[269] In summary, it is submitted the Court by necessary inference must have brought to account evidence given in other cases to allow it to decide there will be adverse effects, and that they would be significant. Ms Appleyard concentrates on the Court saying, “...we are aware that this is a subjective matter where different noise experts can have different views”, yet the Court expressly reached the view, based on its own experience, that a change in noise of 3 dB to 5 dB is usually noticeable, and less than 3 dB is imperceptible to most people.
[270] Then, the Court moved from the increase in noise being ‘noticeable’ to whether it would be adverse, and to what extent, to be measured with the characteristics of noise and the overall cumulative effect. Mr Camp and Dr Trevathan said that a 3 dB increase would result in a level of 55 dB at dwelling facades, and that seems to have been be accepted by the Court at para [209]. Dr Trevathan said that effect is “minor”, and Mr Camp said that level is “acceptable” and that the amenity of residents would not be adversely effected. The Court, however at para [211], was satisfied from the evidence that the increase would not only be noticeable, but adverse. There is a suggestion that the Court may have reached its conclusion based on the District Plan Standard, which does not apply to road noise. If the District Plan Rules are to be treated as guidance, then counsel submits there are other District Plan Rules which the Court did not consider: 6.1.4.2, 6.1.6.2.4, 6.1.6.2.5, 6.1.6.2.8, 6.1.7.1.1, and 6.1.7.2.1.
[271] Ms Appleyard says the Court simply put aside the expert evidence, saying that as a change in noise level is subjective, different experts can have different views and took a “holistic view”, saying that some noise sources would have different characteristics compared to others. She submits that these “different characteristics” cannot be found in the evidence. Ms Appleyard says there is nothing in the evidence which allowed the Court to conclude noise generated by this proposal may be differentiated from the existing sound environment. Dr Trevathan said there would be no sound effects with special audible characteristics, although Mr Camp said that
all noise sources have ‘character’ in some respects, because they sound different to other sources.
[272] Ms Appleyard accepts that the Court may look at adverse effects of noise, but says the District Plan does not guide what is acceptable or not. The experts said it would be acceptable, but the Court used an irrelevant Rule as a guide (Question Two). The Advice Note properly records that while specified noise sources are exempt from the Rules, any potential and actual adverse effects should be considered for any discretionary or non-complying activity, and that is why HGL called Mr Camp to give evidence about the acceptability of a 3 dB increase in noise.
[273] Ms Appleyard says the applicable noise limit for the zone is 50 dB, which is for activities within the Rural Zone, less than the guideline value that the District Plan writers could have adopted.
[274] Ms Appleyard then refers to the Court’s conclusion that noise effects, which did not include acceleration and deceleration around the Conservators Road/Savills Road corner, would be significant in terms of remaining rural amenity, particularly when the effects of increased traffic noise were taken into account. This would not maintain the rural amenity of the area, and the Court gave this significant weight. Ms Appleyard submits that this conclusion cannot stand, and amounts to an error of law, because a 3 dB increase is not “significant” and the noise expert said the traffic noise does not containing any special characteristics when considering amenity effects.
[275] The 3 dB increase in noise levels was said by the experts to be the maximum or “worst case” increase in noise levels resulting from the HGL quarry and its associated traffic. The experts considered what is a “significant” increase, and this is where the tripartite distinction between 2 dB to 3 dB as “minor”, 5 dB as “noticeable”, and anything above 7 dB is “significant” was brought to account. This evidence, and this range, was not tested in cross-examination nor in questions from the Court so Mr Camp said the change in noise level would be minor and acceptable and Dr Trevathan much the same. Both those conclusions were reached in a “worst case” setting as opposed to the actuality of operating levels on any given day.
[276] HGL’s case is thus that the Court disregarded this evidence, instead referring to evidence of change in noise levels as something subjective about which experts differed. The Court is said to have erred because there was clear evidence by Mr Camp of what is a “noticeable” change and what is not, and the Court, without being able to draw on relevant evidence of residents in this regard, had no basis to reach its conclusion. The Court went even further to conclude that the increase in noise would be “significant” because, looked at overall, some noises would have different characteristics compared to those already in the locality.
[277] Ms Appleyard submits that the noise sources are known and apart from acceleration/deceleration, the only evidence from a noise engineer concerned engine braking, which she submits would not be a significant issue, and therefore there is no evidence to demonstrate the noise from the HGL operations or differentiate it from the existing sound environment. Neither Dr Trevathan nor Mr Camp thought that there would be “special audible characteristics”, as all noise sources have character in some respects because they sound different to other sources.
[278] Hence, in these two identified respects, Ms Appleyard submits that the Court simply could not reach the conclusion of significant change in the aural amenity of the area. There is nothing to demonstrate what the “special characteristics” are. Without such evidence, a simple finding of a 3 dB increase being “significant” would block consideration of s 104D effects under the first threshold test.
[279] Mr Pizzey’s submission is that the Court heard (and accepted) the evidence of the experts that there would be a 3 dB increase, not that the adverse effects of such increase on the neighbours in this environment would be minor. The Court did not agree with that, and made its own finding of fact based on what it heard from the experts and from the residents themselves, that the adverse effect of a 3 dB increase was not minor, but significant.
[280] Mr Pizzey says the Court’s starting position was to evaluate the existing environment and the values which the community attaches to that environment. Therefore, the evidence of residents about the noise as they experience it was relevant,
and from that point the Court brought to account the evidence of the experts about the increased noise from traffic, above 3 dB. He says “It’s [the Court] simply taking a different approach to the opinion evidence that it had heard from the noise experts”. He says that HGL is challenging the Court’s exercise of its specialist jurisdiction in evaluating the evidence of acoustic experts, and that of neighbours. The Court must decide whether the effects of the proposed activity are consistent or inconsistent with the District Plans, Objectives and Policies, and that too is for this specialist Court. Aligned with that, Mr Pizzey submits the Court’s evaluation of the significance of effects in this locality, with these neighbours and with this history, is essentially for it, not for this Court to revisit.
[281] He emphasises that the Court found the noise increase in the environment would be about 3 dB and looked at the effect of that change not in isolation, but by considering noise characteristics and overall cumulative effect.46 It held that the significance of such change is subjective and experts will have different views, but the Court’s own experience is that the 3 dB/5 dB range is “usually noticeable” or “noticeable to most people”. The Court found as a fact this degree of change would be noticeable and, while that does not make it unreasonable of itself, the cumulative adverse effect would (or could) be significant. That was not the evidence of Dr Trevathan for the Council nor Mr Camp for HGL, but the Court was entitled to reach this conclusion, so Mr Pizzey submits. He submits there are “highly sensitised residents” who have to face demonstrably cumulative effects in a rapidly changing environment, and such cumulative effects are at the heart of the Court’s assessment.
[282] He submits the Court does not need expert evidence and can reach this conclusion for this locality, when deciding effects on these residents and neighbours. That is not an error of law as it is simply based on the Court’s assessment of the existing environment and the values given in evidence by residents.
[283] Mr Christensen says the residents’ position is that the level of amenity is already compromised by existing activities. The existing environment has only
46 At [208].
a certain capacity to absorb additional effects and the 3 dB increase in the context of an “already compromised amenity” is significant. The Court found a noticeable increase and that meant there would be a significant effect on the amenity of the residents.
[284] There is a proper challenge about the evidence available to the Court as to a 3 dB increase being noticeable, but whether that was an available finding or not, that says nothing about the characteristics of the noise so as to differentiate it from other, present and permitted noise, including from consented sources. The Court went a step further, and drew on its own experience, without elaboration, as to when it considers an increase in noise will be noticeable to the “highly sensitised” residents, then as to the significance of that.
[285] I have read the material before the Court and had regard to submissions and conclude this sixth question comes down to whether the Court can reach into its specialist knowledge, without reference to other cases which included evidence of the effect of change in noise levels, to find that the increase in noise would be noticeable, and then determine the significance of that in an additive or cumulative sense with reference to noise characteristics, and frequency.
[286] It is difficult, if not impossible, for those reading any judgment, to comprehend how a tribunal or court has reached a conclusion that is based on unstated reasons. It was open to the Court to regard the residents as highly sensitised, and not to dismiss that sensitivity as lacking objectivity. They live with significant change to their environment already. The imposition of objective considerations or conclusions over the evidence of sensitised individuals is cold comfort to them, and in my view ignores what is a proper consideration under the RMA of people being highly sensitised for a reason. If their response is more the product of an ‘over sensitivity’ rather than a reasonable sensitivity, that will be brought to account.
[287] In supplementary submissions, Mr Christensen said that while Mr Camp’s evidence was that a 3 dB increase is “minor”, Dr Trevathan said it was “audible”. The Court said it is “noticeable”, consistent with its own understanding, so this 3 dB
increase is a “noticeable addition of noise”, and that is why the Court said it required careful consideration of its characteristics for the overall cumulative effect. I find that latter finding is in itself correct. The effect of such increase itself may not be significant but, in the overall context, may be telling. The Court said that meeting a 50 dB noise standard is generally reasonable, subject to consideration of the cumulative nature of different sources of noise. Here, there are multiple sources of noise, and changes in the ambient noise levels from all sources is important when considering amenity, in particular new noise sources, which add to existing noise and may detract from existing amenity values. The ‘capacity’ of existing amenity puts in context the additional noise if it is “noticeable”. Where another noise environment is not already “full”, an additional 3 dB may not result in a significant adverse effect on amenity.
[288] Here, without reference to other cases in its experience, from which the Court has reached a conclusion as to what change in noise level is “noticeable”, I consider the evidence falls short. It is simply not available to the Court, and so constitutes an error of law. It is, however, one important facet of a much more complex question of noise effects and does not of itself dictate the outcome for this judgment.
The Second and Sixth Questions of Law - Summary
[289] For completeness, I refer to HGL’s breakdown of noise submissions already addressed. Counsel for HGL submit that there are six separate errors of law within Questions Two and Six, relating to the Court’s reasoning at paras [25] and
[208] - [212] of the Decision. The errors are submitted to compound to an overall picture which makes the Court’s findings on noise, and thus rural character and amenity, unsafe. The latter findings do not depend on, but are influenced by the noise findings.
First noise error (sixth error of law)
[290] This has been addressed, that a 3 dB change would be ‘noticeable’ by relying on “different experts” and the Court’s “own experience”, as not open to the Court on the evidence. Counsel for HGL say that Mr Pizzey has attempted to reconcile Dr Trevathan’s evidence, with which Mr Camp agreed, that a change of 5 dB is
noticeable, as the same thing as saying a change of 3 dB to 5 dB is noticeable. A 3 dB increase is equivalent to a doubling of the noise, and an increase from 500 trucks to 900 trucks results in 2.5 dB to 3 dB increase, as Mr Camp says. While I have found that the Court did not have any sufficient evidence on which it could reach a conclusion that a 3 dB increase in noise is noticeable, the notion of such an increase in truck numbers, whether at regular or broken intervals throughout a whole working day, with the characteristics of truck noise, including braking and acceleration, immediately identifies particular characteristics of the noise which are relevant effects. The error of law in the Decision lies only in the extension of the finding that a 5 dB change in noise level is noticeable to that at 3 dB.
Second noise error (second error of law)
[291] The Court at para [205], said that the applicable noise limit for the zone was 5 dB at the notional boundary of existing dwellings. Then at para [209] it said:
It is clear to us that future cumulative noise levels at the notional boundaries of some dwellings affected by HGL traffic noise will, at times, be in excess of the District Plan standard and could reach 55 dB at the dwelling facades based on the evidence of Dr Trevathan.
[292] A 50 dB expected amenity led to the conclusion that 55 dB was too high, but counsel for HGL submits the Rule is not the noise limit for the zone, but a permitted noise level for an individual activity in any Rural Zone and any residential zone outside the CBD without a cap on the number of properties or activities that can each reach a 50 dB level. The permitted noise levels combine to create a number higher than 50 dB, an outcome therefore expressly authorised by the permitted activity Rules in the District Plan. Other permitted activities add to this, some higher than 50 dB, including the airport and roads, which have no limit. Airport activity and roads are not at capacity and any number of new permitted activities, each creating 50 dB, could join the zone. So, the Court’s conclusion that District Plan Standards are being exceeded is not correct as a matter of interpretation or fact, as there is no District Plan Standard about the level of cumulative noise in the zone. The Court must have regard to the impact of the permitted activities, exercised to their maximum permitted level (and with all other effects which accumulate). The Court made an express finding that noise could reach 55 dB at the dwelling facades, based on the evidence of
Dr Trevathan, and HGL’s submission is that the Court wrongly used that in the context of a 50 dB expected amenity being permitted in the Rural Zone. Permitted noise levels will combine to a number higher than 50 dB.
[293] However, the Court was entitled to reason what it considers to be the point at which the noise at the notional boundary of existing dwellings would be impacted by the permitted activity. This is but one component of noise effects with which the Court was concerned, and it was entitled to reach judgment as to this. It had the evidence to do so, and there was no error in law in bringing to account the 50 dB expected amenity.
Third noise error (second error of law)
[294] Mr Pizzey’s submission is that the Court did not know the outcomes expected for the Rural Zones, but thought the Rules ‘pointed’ to these outcomes. While not accepting the Court reasoned in this way this, counsel for HGL say that approach is wrong in law because the District Plan must state Objectives and Policies, and the Rules are the method for implementing the Policies. The Objectives and Policies express outcomes, and Rules are not an expression of the outcome themselves. The Rule relating to traffic on roads is a complete noise exemption and HGL’s counsel submit the Plan writers intended roads to be completely unregulated, unlike other activities.
[295] The Court used the Rules, in what it found to be the absence of Objectives and Policies, to find its way to expected outcomes, in effect by implication. The submission that the Plan writers intended roads to be completely unregulated goes only so far. The Court’s Decision and this judgment are concerned with the effects of the proposal, one effect of which is that from traffic and whether permitted or not. There are effects, to be weighed for degree, and brought to account cumulatively with other effects. I consider the submission that the Court’s evaluation should not include the noise of traffic on roads, with a noise exemption, does not sit well with the fundamental purpose of the Act to achieve sustainable environmental outcomes. It is a technical and limited approach which constrains that fundamental task.
Fourth noise error (second error of law)
[296] If, HGL says, the Court was in principle entitled to take into account permitted activity Rules, it has taken into account an irrelevant factor as the Rules do not apply to roads. Alternatively, it has failed to take into account relevant factors such as other permitted activity Rules in Chapter Six. If the Court wants to take into account a Rule which is expressly not relevant to road traffic noise, counsel submit it needs to explain why the Rule is relevant, and why it was the only relevant Rule in Chapter Six. HGL says the Court failed to explain why overseas and New Zealand Standards set out by Dr Trevathan and Mr Camp were not relevant, or were disregarded. There is some merit in this submission where the expert evidence, including that of Standards, was not ‘explained away’ as irrelevant.
[297] However, the Court was entitled to bring to account its own conclusions with regard to whether the 55 dB noise level was appropriate in this case, having regard to cumulative effects. It was entitled to disregard elements of the expert evidence if it chose and it clearly did so, with the observation above. It is not, however, decisive for this judgment.
Fifth noise error (second error of law)
[298] HGL counsel submit the Court’s approach undermines the separate zoning of roads into a Transport Zone and their specific exemption from the Rules in Chapter Six. The notion that roads, including the State Highway, would have to meet a limit of 50 dB in the adjoining Rural Zone, or residential zone where it passes an individual dwelling, is submitted in error.
[299] The Court did not conclude that roads, including the State Highway, would have to meet a limit of 50 dB in the adjoining Rural Zone or residential where it passes an individual dwelling. The Court referred to the Transport Zone. That is at far as it went. It had to determine noise effects and that was at least a relevant consideration.
Sixth noise error (sixth error of law)
[300] Mr Pizzey says the noise experts gave evidence about the level of change only and did not assess effects on amenity, so the Court was entitled to use its own experience as to what would be a significant adverse effect. Counsel for HGL say that Mr Camp and Dr Trevathan gave evidence about effects, so when the Court said it was satisfied there were adverse effects “from the evidence”, there was no such evidence except that of the residents. That is relevant, and of weight as the Court decides. The Court in my view had ample evidence from which to derive and reach a conclusion about adverse effects on amenity as the review of its Decision in Part C to this judgment demonstrates.
Seventh Question of Law: Did the Court err in its elevation of the importance of “avoidance” over other approaches contemplated by the District Plan, which resulted in the incorrect interpretation of the Objectives and Policies?
[301] This question is based on the Supreme Court judgment in King Salmon.47 The word “avoid” means “not allowing” or “prevent the occurrence of”, but that judgment was given in the context of the New Zealand Coastal Policy Statement (CPS) which contemplates only the avoidance of effects. Here, HGL correctly submits adverse effects may be avoided, remedied or mitigated, and says those words should be read conjunctively and of equal importance.48 Mr Chapman submits that “avoid” in this context should not mean “only avoid” and a ‘remedy’ or ‘mitigation’ are of “equal merit”. HGL submits the Court did not give equal weight and consideration to these factors and Mr Chapman refers to the judgment when it reads:49
If the effects are not avoided or remedied (we suggest preferably in the first instance), the policy is tolerant of activities with adverse effects where the activity, circumscribed by any conditions mitigating effects, supports and maintains the function, character and amenity of the rural environment.
49 At [38].
[302] Here, the Court expressly recognised a degree of tolerance of activities with adverse effects but Mr Chapman says the Court concluded that avoidance of effects was preferable to a remedy or mitigation (the Court referred to both avoidance and remedy as ‘preferences’), and should have recognised that where adverse effects are mitigated the District Plan will tolerate quarry activities. The law does not require priority to be given to avoidance, so “reasonable internalisation” means that if an effect cannot be avoided, then it must be remedied or mitigated through conditions of consent. In that sense “internalising” does not mean “internalise at all costs”.50 The heart of this alleged error is that the Court is submitted to have preferred ‘complete internalisation’, even though the District Plan accepts that conditions might remedy or mitigate effects, and this ‘error’ coloured all further consideration by the Court.
[303] It is then submitted that for the Court to take the view that Objective 17.2.1.1 and Policies 17.2.2.1 and 17.2.2.2 only tolerate activities for which adverse effects can be mitigated is an “overly negative framework”, not supported by the wording of the District Plan. The use and development of rural land supports, in particular, the potential contribution of rural productive activities to the economy and wellbeing of the Christchurch District, and provides for economic development of rural land by enabling a range of activities, while ensuring that adverse effects on rural character and amenity values are avoided, remedied or mitigated.
[304] HGL submits the terms “support” and “provide for” therefore signify a much higher level of support for rural development than the term “tolerate” chosen by the Court. Mr Chapman says the Court’s approach derives from its understanding of the Objective and Policy framework. This shaped its assessment of the evidence and, where that was finely balanced, it treated Objectives and Policies as merely ‘tolerating’ quarry activity and, cumulatively, this resulted in a Decision inherently based on a perception of the District Plan’s opposition to quarry development. This is said to be of significance as the District Plan has one set of Objectives and Policies for all seven Rural Zones. A Decision had been taken during the District Plan Review process not to zone a larger area as Rural Quarry Zone, despite the shortage of available land within that zone. The effect of the Decision is submitted to be that all adverse effects
50 Winston Aggregates, above n 49.
from a quarry are to be avoided in the first instance or, as a less preferred approach, mitigated to such a level that the District Plan can tolerate them. This will carry beyond quarrying to intensive farming which is a “legitimate activity in the Rural Zone”.
[305] In short, the submission is that the Court erred by elevating “avoid” over “remedy” and “mitigate”, which submission I do not accept in itself, and further erred in its failure to understand that the Objectives and Policies could tolerate development such as quarrying in some instances.
[306] Mr Christiansen for JAG submits HGL’s case boils down to a submission that the Court erroneously elevated the importance of avoidance over mitigation and minimisation of effects, and it uses paragraph [38] of the Decision to found its challenge. Mr Christensen says that reference is to Policy 17.2.2.2, which is relevant to the description and analysis of the Objectives and Policies relating to the rural environment reflected in paragraphs [35]-[49] and [68]-[69] of the Decision. Mr Christiansen submits, contrary to the HGL submission, that the Court expressly recognised Policy 17.2.2.2 is to be interpreted in light of the overarching Objective for the rural environment (Objective 17.2.1) and the Strategic Directions for the district.51
[307] He refers to this passage in the judgment:
[56] ... regardless of scale, decision-makers are to avoid “significant adverse effects” on health, safety and amenity of people and communities (objective 3.3.14) and for all “other adverse effects”, evaluate the activity in light of the outcomes for the rural environment. Where an effect cannot be avoided or remedied in the first instance, then the enquiry is whether the activity as proposed to be mitigated will support and maintain the function, character and amenity values of the rural environment. If not, the activity will not achieve the relevant objective of the District Plan.
[308] He submits that the Court’s observations in para [38] about Policy 17.2.2.2 are consistent with this passage, which expresses what is known as the “mitigation hierarchy” so that effects should first be reasonably avoided or remedied, but any effect
51 At [38].
should be reasonably mitigated or minimised. Reasonable avoidance and reasonable mitigation depend on the context, and relevant Plan provisions.
[309] Discussed above, this quarry is said for HGL to be the sixth in this area, on a site which does not have reasonable set-backs from neighbouring houses. Unless the HGL quarry in use is discontinued, it is the seventh, with the eighth now being cleanfilled. The Court is entitled to decide whether the effects of this quarry on top of the effects from existing quarries and other noise sources can be adequately controlled by conditions. The Court did not anywhere, it is submitted, equate avoidance of effects with internalisation as HGL contends. Internalisation is not feasible because it would mean no noise beyond the boundary, no trucks entering or leaving the site, the quarry and the bunds not being able to be seen, and so on. When the Court concluded the effects of this quarry could not be adequately controlled by conditions despite suggestions by the appellant how this could be done, declining the application in its entirety was appropriate, and the only way to achieve sustainable management of natural and physical resources. There is no evidence that discontinuance of HGL’s current quarry operations will mitigate the effects with which the Court was concerned.
[310] As to precedent, the Decision is site specific. Somewhat tongue in cheek, Mr Christiansen says if there is any precedent it might be that where there is an application for a quarry outside the rural quarry zone, non-complying, the ‘eighth quarry’ in a particular locality, on a site too small to have appropriate set-backs to address dust and noise, which results in significant adverse noise effects from additional trucks, then consent is unlikely to be granted.
Discussion
[311] At para [69] of the Decision, the Court referred to an effect being avoided or remedied, and whether it may be mitigated to support and maintain the function, character and amenity values of the rural environment. A range of conditions was put before the Court, against which to consider such an outcome, the product of adverse effects being avoided, remedied or mitigated.
[312] As Mr Christiansen submits, quarrying is contemplated in a rural area, but the rural environment logically will have only a certain capacity to absorb development. That environment should not by progressive impact and effect lose its character and amenity by the erosion of that caused by consented activities. The fact that a quarry is “generally acceptable” does not mean all quarries are acceptable in all locations. The Court made an assessment that this proposal goes too far in terms of adverse effects and this is a nuanced and complex evidential exercise, entirely open to the Court. This seventh question involves consideration of potential responses in the decision-making, to avoid, to remedy, or to mitigate. The Court did not look for avoidance at all costs but worked its way through the measures of avoidance, remedy and mitigation. It was not slanted to avoidance, and the result was for the Court to decide on its assessment of the degree of adverse effect.
[313] Given the findings of the Court, and with the clear recognition of deficiencies in evidence, across several important considerations, cumulative effects were such that avoidance was properly for consideration. Because this is a ‘tipping point’ case, even with conditions of consent proffered, the Court was entitled to conclude that a remedy or mitigation was either not available or insufficient. The Court has not treated avoidance as other than its preferred outcome, and it has recognised remedial and mitigating measures available. It has thus not turned a Nelsonian eye to consider avoidance only, or placed unwarranted emphasis on avoidance.
[314] No error of law is disclosed in this Seventh Question.
F. CONCLUSION
[315] One error of law has been made out, the Court’s finding of the 3 dB noise increase being ‘noticeable’, as the evidence does not support such a finding.
[316] The Court had to evaluate a fast changing environment, which reflected societal upheaval in Christchurch from the earthquake sequence, the rebuild of much of the city and its infrastructure, and the rapid evolution of the new District Plan for Christchurch by the rapid and expert process of the Hearings Panel. Christchurch and its surrounds changed in a stroke when the earthquake sequence began, and particularly following that of 22 February 2011. The earthquakes and aftershocks
placed unimagined stress on Christchurch’s inhabitants, infrastructure, and environment. Part of the response was the need for aggregate on a large scale, and that in turn led to pressure on infrastructure, including roads.
[317] The product of these factors is rapid change in the landscape and intensity of activity, particularly in the traditional quarry areas. In the demand for new quarries evidence of the rapid evolution of effects on residents over a very short period is entirely to be expected, with the residents’ telling accounts of noise, dust, vibration and intrusion into their residential lives. The Court was rightly careful to evaluate the position of the residents and their protection from cumulative adverse effects. The overall effect on JAG residents is irrefutably adverse in several respects as things stand, without the effects of this proposed HGL quarry. That is why the Court was critical of landscape evidence which did not seek to understand the values still enjoyed by these residents. The Court in my view correctly took a precautionary approach when identifying many relevant elements of effect where the evidence fell short, either because it was not provided, not adequately provided, or simply did not persuade the Court. This was entirely for the Court. There are no obvious remedial or mitigating steps available to the residents in practical terms after consent is put into effect other than to shift the axis of their home lives, for example, by certain confined parts of their properties to mitigate effects, or leaving the area.
[318] The Court did not rely on how many quarries there are, or will be, but cumulative effects in this area, and there is no evidential basis to assess the effects on these residents on this appeal if and when HGL’s existing quarry closes. This is not a ‘numbers’ game but pluses and minuses of influencing activities will count, when the effects of such are relevant.
[319] As to noise, and apart from the 3 dB increase being ‘noticeable’, Mr Christiansen said that Dr Trevathan and Mr Camp treated 50 dB noise levels as a proxy for acceptable effects which are “no more than minor”, but Dr Trevathan accepted that at 50 dB people may be only “reasonably annoyed”. The concept of “reasonable annoyance” is quaint and irresolute. In the context of noise which is omni-present in daylight hours, or almost so, a “reasonably annoyed” resident would reflect, in my view, a more than minor effect. The residents provide evidence of a
baseline of annoyance against which to measure expert evidence. While subjective, this was clearly relevant.
[320] Mr Christensen referred to his submissions in the Environment Court that the approach of HGL and Council witnesses seems to assume the City Plan provides that quarries are appropriate on this site, and this restricted the Court’s consideration how the effects can be addressed. He refers to Policy 17.1.1.12. Anticipated amenity in the Rural Zone will vary and, for example, on the Port Hills and Banks Peninsula, amenity values will generally be higher than on the plains, and where an activity is proposed determines the way in which intensive agricultural, industrial and quarrying activities will impact on rural amenity. That expectation does not include, as one resident said, “daily gritty dust throughout my home”. This is a case in which “no change” may be what is needed to maintain amenity and meet the Policy. That was in essence the residents’ case, that there should be “no more change”. The Court has agreed, on the evidence before it, while plainly dissatisfied with a good deal of HGL evidence across several important effects-based issues.
Relief
[321] The one error of law found on appeal is in the conclusion that an increase in noise of 3 dB would be ‘noticeable’, as it is not founded on expert evidence, and the Court has done no more than refer broadly to its own experience. On an issue of consequence to this Decision, and where there is expert evidence, the Court must have evidence from some quarter to allow that conclusion, and not simply resort without explanation to its own experience. There is no doubt the Court was drawing on something in this regard, and as such it needed to explain the experience on which it relied.
[322] That finding of error does not, however, dispose of the several other issues regarding noise, in particular its characteristics, repetition, intervals, and frequency, and the overall accumulation of noise and other effects where the evidence plainly fell short. For that reason, this judgment does not respond to the error by sending the application back to the Environment Court. I decline to do so because the finding of error would not usefully be sent back for reconsideration on a directed basis, where
such a degree of dissatisfaction was held by the Court with the way expert evidence was approached, the insufficiency of evidence, and with other findings of effects which would militate against consent being granted, for example, dust, vibration, effects on amenity. These and others presently stand in the way of consent.
The future
[323] This judgment on appeal recognises that the correct pathway to quarry consent in the Bund zones is newly tested. There is no error in the pathway taken by the Court. There is no principle whereby the sacrifice of a few for the ‘greater good’, is a sustainable environmental outcome. The Court recognised the importance of quarrying to the economy when it came to its Decision.
[324] This judgment is by no means the end of the line for HGL for this site, if it is able to mount a fresh case addressing the material deficiencies in the evidence which the Environment Court identified. The bigger hurdle in front of HGL is that the judgment of the Environment Court represents a recognition that there is a point at which the accumulation of effects may go too far, to be more than minor even with mitigation, and to be contrary to the Objectives and Policies in the District Plan.
[325] The Environment Court has signposted clearly where the evidence fell short across several fundamental elements of effect. In some cases, it was for want of evidence, in others it was not satisfied the persuasive burden on HGL was discharged. The evidential shortfall is now plain to HGL, and automatically extends to the sum total of these evidential deficits, in determining cumulative effects. These should not be overridden for the clear economic benefits of the consent that HGL seeks for itself, and for the community. There may be other alternatives. The stakes are high, no doubt for HGL in a commercial sense, but unquestionably for the residents who have seen, felt and live with the advance of quarrying activities around them. The description that the residents are becoming “sandwiched” between quarries resonates for this judgment.
[326] There are obvious commercial outcomes which HGL and interested parties, including GAG residents, may wish to pursue. But for one element as to noise, the Decision of the Environment Court represents a commendably thorough and correct
approach to a multifaceted set of required considerations. In the end, the Court has simply reached a conclusion based on the evidence that this consent, having regard to all relevant and no irrelevant considerations, and in its evaluation of the accumulation of effects constitutes a step too far on what is known, and otherwise that there is insufficient evidence in several critical respects on which the Court might have been able to reach another conclusion.
G. DISPOSITION
[327] The appeal is dismissed.
[328] Costs are reserved. If sought, memoranda should be filed promptly and a conference arranged through the Registry.
.......................................
Nicholas Davidson J
Duncan Cotterill, Christchurch Chapman Tripp, Christchurch Christchurch City Council
Natural Resources Law Limited, Christchurch
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