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Court of Appeal of New Zealand |
Last Updated: 3 June 2020
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BETWEEN |
AHUAREKA TRUSTEES (NO 2) LIMITED Applicant |
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AND |
AUCKLAND COUNCIL Respondent |
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Court: |
Miller and Courtney JJ |
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Counsel: |
AGW Webb for Applicant M C Allan for Respondent |
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Judgment: (On the papers) |
28 May 2020 at 12.30 pm |
JUDGMENT OF THE COURT
The application
for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
[1] Ahuareka Trustees (No 2) Ltd applied to the Auckland Council for resource consent for land use. The proposal was to establish a village-style development comprising 186 dwellings (stand-alone, lofts, townhouses and apartments) and ancillary buildings together with trade and retail buildings, a community hall and carpark on approximately 16 hectares on the Whitford-Maraetai Road in east Auckland. The application was declined.
[2] Ahuareka appealed to the Environment Court, which upheld the Council’s decision.[1] Ahuareka then appealed to the High Court under s 299 of the Resource Management Act 1991 (the RMA) on a question of law. Hinton J dismissed the appeal.[2] Ahuareka has applied for leave to bring a second appeal to this Court. By virtue of s 308 of the RMA the relevant leave provision is s 303(2) of the Criminal Procedure Act 2011. That provision precludes leave being granted unless the Court is satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[3] Ahuareka proposes three grounds of appeal, which we discuss in more detail later. It identifies the following questions of law as arising:
- (a) Did the High Court err as a matter of law in approving the Environment Court’s approach to interpreting and applying the provisions of the Auckland Unitary Plan (AUP) in assessing applications for residential developments outside the Rural Urban Boundary (RUB)?
- (b) Did the High Court err as a matter of law by failing to recognise and resolve the conflict arising from different approaches by different divisions of the Environment Court in assessing applications for residential developments outside the RUB?
- (c) Did the High Court err as a matter of law by agreeing that the Environment Court can simply ignore substantive environmental enhancement proposals offered in support of an application for resource consent because the implementation was uncertain or was the correct approach for the Environment Court to still consider the environmental enhancement and resolve any issues of uncertainty simply by placing the onus of providing it on an applicant as a condition of consent?
[4] Ahuareka asserts that determination of these questions would clarify the interpretation of the AUP, which is a matter of public importance in terms of subsequent applications for residential development outside the RUB. It also says that if these questions are not determined a miscarriage of justice may occur because its application will have been declined on the basis of an unlawful interpretation and application of the AUP and other such applications will be similarly prejudiced.
[5] Auckland Council opposes the application on the grounds that no errors of law have been identified and the statutory criteria for granting leave are not met. It submits there is no need for this Court to provide further clarity as the language of the AUP is clear and the Environment Court is not applying the law inconsistently.
Application for leave
The first proposed ground of appeal
[6] Ahuareka’s application for a land use consent was subject to the AUP, which provides for both regional and district planning in the greater Auckland region. Under the AUP, the RUB demarcates urban zoned land from rural zoned land. The general effect of the AUP is to require developments that are urban in character to be contained within the RUB.
[7] The proposed development site lies outside the RUB, in a rural area known as the Whitford Precinct (Sub-precinct B), which is a Countryside Living Zone (CLZ). Residential development can be undertaken in this area provided the proposed development maintains and enhances the rural character of the area and avoids an urban form and character.
[8] Ahuareka’s first proposed ground of appeal centres on the Environment Court’s approach to determining whether the proposed development was urban in character, in particular, the Court’s response to the Regional Policy Statement (RPS) in the AUP compared to the district planning provisions. Ahuareka wishes to argue that the Judge erred by:
- (a) endorsing the approach taken by the Environment Court to the assessment of Ahuareka’s discretionary application for a residential development outside the RUB, in particular:
- (i) the interpretation of the AUP in the context of an application for residential developments outside the RUB, particularly the interface between the RPS provisions; Chapters B2 (Urban Growth and Form), B8 (Coastal Environment) and B9 (Rural Environment); and the objectives, plans and policies contained in Chapter H19 of the district plan (Rural Zones);
- (ii) using criteria for determining whether the proposed development was an urban development that were not stated in the AUP and/or failing to give sufficient weight to the other relevant provisions of the AUP.
[9] Ahuareka seeks to argue that a proper assessment of the application should have started with consideration of the relevant district plan provisions including the Whitford Precinct and the CLZ or, at least, have included a substantive assessment of those provisions because they are the “working” provisions of the AUP and the extent and form of residential development outside the RUB is defined by those provisions, relevantly Chapters H19 and I. Ahuareka asserts that the Environment Court wrongly conducted its assessment only against the provisions of the RPS and failed to consider the district plan provisions adequately or at all. The specific complaints are that the Environment Court should have determined the issue of urbanisation by reference to the non-residential buildings and overlooked the fact that residential development outside the RUB did not necessarily constitute urban development.
[10] The approach taken by the Environment Court is said to be contrary to statements made by this Court in R J Davidson Family Trust v Marlborough District Council to the effect that the assessment of applications for resource consent required consideration of the objectives and policies of the RMA as a whole.[3]
[11] It is evident from the Environment Court’s decision that it undertook an extensive consideration of the competing submissions on the question of what constituted urbanisation, including specifically in the context of the CLZ and the Whitford Precinct. The High Court Judge addressed the Environment Court’s consideration of this issue, including the significance of Chapter H19 of the AUP and was satisfied that it made no error of law in its approach. She considered that the Environment Court was entitled to give the weight it did to the RPS and that it had placed appropriate weight on the district policies in the context of this case. She did not accept that the policies provided an exclusion from Chapter B2 of the AUP.[4]
[12] The Auckland Council argues that the Environment Court’s approach to assessment was consistent with s 104 of the RMA which specifies the Court, in considering an application for resource consent, must have regard to the RPS found in Chapter B2 of the Unitary Plan. It says that the proposed ground would essentially relitigate the argument in the Environment Court.
[13] Although misapplication of the law could reach the threshold required for leave, there is no apparent error in the High Court decision that would justify a second appeal. Ahuareka wishes to rerun arguments that have been fully considered twice. We are not satisfied that any matter of general or public importance arises nor that a miscarriage of justice will occur if a second appeal is not allowed.
Second proposed ground of appeal
[14] Ahuareka says that the Environment Court’s decision resulted in an inconsistent approach within divisions of the Environment Court to the assessment of residential development outside the RUB and that the Judge erred in failing to resolve that conflict. This issue is raised in reliance on the Environment Court’s decision in Kumeu Property Limited v Auckland Council.[5]
[15] Kumeu Property, which concerned a proposed supported care facility in a rural area within a CLZ, was decided after the Environment Court’s decision in this case. In the High Court, Ahuareka argued that Kumeu Property had determined that residential development could occur anywhere within the Auckland region, including outside the RUB, depending on the objectives and policies applying to the particular location and that, in deciding Ahuareka, the Environment Court failed to correctly assess the proposal before it.
[16] The Judge did not accept that the two decisions disclosed an inconsistent approach. Not only did Kumeu Property involve a significantly different proposal but the Court in Kumeu Property had before it the decision under appeal in this case and explicitly distinguished it.[6] In our view there is no basis on which to argue that the Judge’s approach to the Kumeu Property decision discloses an error that would justify a second appeal.
The third proposed ground of appeal
[17] The AUP contains requirements for environmental maintenance and enhancement within Sub-precinct B. The Environment Court set out these provisions in detail. At the Council stage, Ahuareka’s proposal included enhancement planting within the Sub-precinct. Before the Environment Court Ahuareka made a further environmental enhancement proposal, the Waikopua project, that would see ecological restoration work undertaken to an area outside Sub-precinct B, being two islands in the creek forming one of the boundaries of the subject area. The work would be undertaken in conjunction with local iwi. The proposal was, however, not finalised at the time of the hearing before the Environment Court.
[18] The proposed enhancement work within Sub-precinct B was insufficient to satisfy the requirements for that area. The Environment Court considered that the proposal would leave a massive “shortfall” compared to what was required.[7] It was not prepared to treat the Waikopua project as part of the enhancement project for the proposed development because there was an insufficient basis on which to conclude that effect would ultimately be given to it.[8]
[19] In the High Court Ahuareka argued that the Environment Court had wrongly dismissed the proposed enhancement work involved in the Waikopua project on the basis that it might not occur. The Judge reviewed the Environment Court’s decision and concluded that the Court had identified and considered the merits of the proposed enhancement work and was entitled to find that, whatever the merits of that proposal, it still would not satisfy the requirements for enhancement work within Sub‑precinct B.[9]
[20] Ahuareka wishes to argue on appeal that, as a matter of public interest, applicants are entitled to have conditions offered by them assessed on the basis that they can be implemented as part of the overall assessment of an application, unless it is obvious that the condition could never be fulfilled.
[21] There is no apparent error by the Environment Court in assessing the Waikopua project or by the High Court in its review of that aspect. It is significant that both courts took the view that even if the proposal had been more certain the requirements for enhancement work within Sub-precinct B would still not have been satisfied. In these circumstances we accept the Auckland Council’s submission that this aspect of the case is specific to circumstances of Ahuareka’s proposed development and does not raise any issue of general or public importance. Nor, given the extensive consideration of the issue in both the Environment Court and the High Court, does any possibility of a miscarriage of justice arise.
Result
[22] The application for leave to bring a second appeal is declined.
Solicitors:
Burton & Co, Auckland
for Applicant
Brookfields Lawyers, Auckland for Respondent
[1] Ahuareka Trustees (No. 2) Ltd v Auckland Council [2017] NZEnvC 205 [Environment Court Decision]..
[2] Ahuareka Trustees (No. 2) Ltd v Auckland Council [2019] NZHC 3142 [High Court Decision].
[3] R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 at [73], citing Dye v Auckland Regional Council [2001] NZCA 330; [2002] 1 NZLR 337 (CA) at [25].
[4] High Court Decision, above n 2, at [57]–[59].
[5] Kumeu Property Ltd v Auckland Council [2018] NZEnvC 27.
[6] High Court Decision, above n 2, at [55]–[56].
[7] Environment Court Decision, above n 1, at [100].
[8] At [99].
[9] High Court Decision, above n 2, at [62]–[67].
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