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High Court of New Zealand Decisions |
Last Updated: 18 May 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-6912
IN THE MATTER OF an appeal under s299 of the Resource
Management Act 1991
BETWEEN OREWA LAND LIMITED Appellant
AND AUCKLAND COUNCIL (FORMERLY RODNEY DISTRICT COUNCIL)
First Respondent
AND OREWA RATEPAYERS AND RESIDENTS ASSOCIATION INCORPORATED
Second Respondent
Hearing: 12 and 13 April 2011
Counsel: RE Bartlett and JE Small for appellant
GC Lanning and SH Smith for first respondent
JM Savage and JA Harker for second respondent
Judgment: 21 April 2011 at 2:30pm
JUDGMENT OF FAIRE J
This judgment was delivered by me on 21 April 2011 at 2:30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: North Harbour Law, PO Box 104, Orewa 0946
Simpson Grierson, Private Bag 92 518, Auckland 1141
Bell Gully, 4199, Auckland 1140
OREWA LAND LIMITED V AUCKLAND COUNCIL (FORMERLY RODNEY DISTRICT COUNCIL) HC AK CIV 2010-404-6912 21 April 2011
The appeal
[1] Orewa Land Ltd has appealed a decision of the Environment Court dated
26 September 2010.[1] For the purposes of this appeal, the appellant appeals that part
of the court‘s decision which ordered that:
Variation 101 as it relates to the Variable Height Zone is cancelled and the Proposed Plan provisions for Res H continue to apply. Rule 9.10.7.3 of the Plan is removed, including page 42. Policy 9.8.1.2.2 is confirmed and any shading removed. Rule 9.12.4 is confirmed and shading removed.
[2] The appeal is brought under s 299 of the Resource Management Act 1991
(the ―Act‖).
The grounds of appeal
[3] Orewa Land Ltd now advances three grounds in support of its appeal. A fourth had originally been advanced but has since been abandoned. The three remaining grounds are that the Environment Court:
(a) Failed to assess the Variable Height Overlay (―VH Overlay‖) against the relevant statutory principles. In particular, the Court failed to carry out an analysis of the objectives in the plan and the plan change to determine if they were the most appropriate way to achieve the purposes of the Act, and failed to analyse further the policy and rules to determine, having regard to their efficacy and effectiveness, whether they were the most appropriate way for achieving the objectives;
(b) Failed to assess the originally notified version of the variable height option which permitted, subject to obtaining a restricted discretionary activity consent, buildings up to seven storeys on sites of 5,000 metres
square or greater within the zone. In particular, it is claimed the Court
failed to assess this version of the zone against the relevant statutory criteria and case law and instead dismissed the zone because of an overall concern as to whether the location of the zone was more appropriate elsewhere; and
(c) Came to a series of conclusions on:
(i) Density and intensification issues; (ii) Public transport issues;
(iii) Sunlight and shading issues
when it reached its decision not to approve the VH Overlay, without there being any evidence placed before the Court upon which it could reasonably draw those conclusions.
The first respondent’s position
[4] The Auckland Council, formerly Rodney District Council, supports Orewa Land Ltd‘s appeal based on the first of the three grounds which I have recorded in [3]. The first respondent joins the appellant in seeking an order that the appeal be allowed and that the matter be referred back to the Environment Court for further consideration.
The second respondent’s position
[5] The second respondent opposes the appeal.
The statutory basis for the appeal
[6] Section 299(1) of the Resource Management Act 1991 provides:
299 Appeal to High Court on question of law
(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a [[question]] of law to the
High Court against any decision, report, or recommendation of the
Environment Court made in the proceeding.
The nature of the inquiry in the High Court on appeal on a question of law
[7] The High Court will only interfere with a decision of the Environment Court if it considers the Court:[2]
(a) Applied a wrong legal test; or
(b) Came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c) Took into account matters which it should not have taken into account; or
(d) Failed to take into account matters which it should have taken into account.
[8] The principles that must be taken into account by the court in considering an appeal were summarised by Potter J in Nicholls v Papakura District Council.[3] They are:
(a) The High Court will not concern itself with the merits of the case under the guise of a question of law; Sean Investments v Mackellar (1981) 38 ALR 363.
(b) The appellate Court‘s task is to decide whether the Tribunal has acted within its powers; Hunt v Auckland City Council [1996] NZRMA 49.
(c) The question of weight to be given to the assessment of relevant
considerations is for the Environment Court [Planning
Tribunal] alone, and not for reconsideration by the appellant Court as a point of law; Hunt (supra); Moriarty v North Shore City Council [1994] NZRMA 433.
(d) Any error of law must materially affect the result of the Environment Court‘s [Planning Tribunal‘s] decision before the [appellate] Court will grant relief; Countdown Properties (supra); BP Oil NZ Limited v Waitakere City Council [1996] NZRMA 67.
(e) To succeed, an appellant must identify a question of law arising out of the Environment Court‘s [Planning Tribunal‘s] determination and then demonstrate that that question of law has been erroneously decided by the Environment Court [Planning Tribunal]; Smith v Takapuna City Council (1988) 13 NZTPA 156.
(f) On an appeal under s.299 it is not for the High Court to say whether the Environment Court [Planning Tribunal] was right or wrong in its conclusion but whether it used the correct test and all proper matters were taken into account; West Coast Regional Abattoir Co Ltd v Westland County Council (1983) 9 NZTPA 289.
Background
[9] This appeal relates to the proposed Variation 101 to the Rodney District Proposed Plan. The variation proposed changes to planning provisions applying to Orewa East. Of relevance to this appeal was the introduction of the VH Overlay provisions for a portion of the high intensity residential zone in an area bordering the Hibiscus Coast Highway south of Orewa town centre.
[10] Variation 101 was the result of a lengthy study over a number of years and a consultation process. The purpose of the process was to plan for growth in Orewa in accordance with the requirements of the Auckland Regional Policy Statement. It culminated in the adoption of the Orewa East Structural Plan in November 2007 and the notification of the Variation 101 on 18 December 2007.
[11] The VH overlay was a proposed set of district plan provisions that would overlay, but not replace, the existing high intensity residential zone (―Residential H Zone‖). It introduced a different approach for integrated residential development on sites of over 5,000 metres square in the Residential H Zone. The existing provisions in the Residential H Zone continue to apply to all other sites and for all other types of developments regardless of site size.
[12] Orewa Land Ltd owns land within the zone covered by the proposed VH Overlay. It lodged submissions generally supporting Variation 101 but seeking amendments to the development controls for the zone. It sought an increase in the
maximum building height of up to 12 storeys with an average of 10 storeys. It sought a reduction in the 100 metres minimum net useable floor space for household units. It sought an increased site coverage of 35 per cent. It sought for the assessment of developments that did not comply with any of the controls in the plan to be dealt with as restricted discretionary activities, rather than non-complying activities. It did not seek greater unit density.
[13] The Commissioners hearing submissions accepted that the form of development proposed in the VH Overlay required some amendment. The Commissioners did not accept the second respondent‘s submissions which opposed the VH Overlay.
[14] Variation 101, in its amended form, following decisions, was notified on
27 March 2009.
[15] Appeals were lodged, in particular by the appellant, Orewa Land Ltd and the second respondent and another. I do not mention the other appellant‘s positions because they are not directly relevant to the matters raised in this appeal.
[16] Before the Environment Court heard the appeals the first respondent and the appellant reached agreement. They entered into a consent memorandum and produced a proposed consent order which was placed before the Court at the commencement of the hearing. The second respondent declined to sign the consent order.
The VH Overlay
[17] Mr Lanning, in his written submissions, set out a summary of the VH Overlay with which all counsel were in agreement.
[18] On sites in the Residential H Zone over 5,000 m2 it provided as follows:
(a) An integrated residential development could be applied for, as a restricted discretionary activity, if:
(i) The site met both the following standards in rule 8.9.3.3, namely:
(1) Be a front, through or corner site with an area of not less than 5,000 m2; and
(2) No more than 25 per cent of the number of units shall have a net floor area less than 100 m2, and no unit shall have a net floor area less than 70 m2; and
(ii) It complied with all development controls in rules 8.10.1 to
8.10.6 and 8.10.8;
(b) An integrated residential development could be applied for, as a discretionary activity, if the site:
(i) Met the standard in rule 8.9.3.3(a) by being a front, through or corner site with an area of not less than 5,000 m2; but
(ii) Did not meet the standard in rule 8.9.3.3(b) by failing to deliver household units of a minimum of 100 m2 net useable floor space;
(c) An integrated residential development could be applied for, as a discretionary activity, if:
(i) The site met both the standards in rule 8.9.3.3; but
(ii) The development did not comply with all the development controls in 8.10.1 to 8.10.6 and 8.10.8 (excluding the maximum building height control under rule 8.10.1.3);
(d) Failure to comply with the maximum building height control in rule
8.10.1.3 resulted in any integrated residential development being assessed as a non-complying activity.
[19] In order to be assessed as a restricted discretionary activity, the development controls required compliance with the following:
(a) Maximum height:
(i) One tower – 10 storeys;
(ii) More than one tower – average height 10 storeys, maximum height 12 storeys; and
(iii) Otherwise – 11.5 metres; (b) Maximum site coverage:
(i) 35 per cent of net site area; and
(ii) Provide that no more than half of that area (17.5 per cent)
exceeds the maximum height of 11.5 metres; (c) Minimum yard width:
(i) Front yard – 6 metres, or 8 metres from those parts of a building over 11.5 metres;
(ii) Shoreline yard – 23 metres; and
(iii) Other yards – 6 metres, or 1.2 metres where the boundary adjoins a public reserve, lake canal or other area of permanent open space;
(d) Private open space:
(i) A minimum of 50 per cent of each site shall be landscaped;
(ii) A minimum of one semi-mature tree per ground floor dwelling shall be planted on the site;
(iii) A minimum of one semi-mature tree spaced at one per 10 metres of street frontage shall be planted in the street berm adjoining the site;
(iv) A minimum area of private open space of 50 m2, with a useable space of not less than 6 metres by 4 metres, shall be provided to the north, west or east of every ground level apartment. A minimum of 30 per cent of this area shall be planted; and
(v) A minimum total balcony area of 20 m2, with a minimum dimension of 3 metres by 4 metres, shall be provided to the north, east or west of every above ground level apartment;
(e) Towers:
(i) Maximum floor area: 24 metres by 24 metres; (ii) Minimum separation distance:
(1) 25 metres to another tower on the same site; (2) 6 metres to another building; and
(iii) Minimum setback: 12.5 metres to the side and rear boundary
(8 metres to the front boundary is required by the yard rule).
[20] All applications were to be assessed against the criteria set out in rule
8.12.3.2 which include criteria focussing on building mass, siting and design of buildings and facilities, and landscaping and screening.
[21] In order to take advantage of the VH overlay rules lots would need to be amalgamated and resource consent would need to be obtained in all cases. The most
‗generous‘ activity status for such resource consents is restricted discretionary. The Council (and potentially the Environment Court on appeal) would be able to assess the effects of any particular building proposal through the resource consent process. The outcome of that assessment enables the Council or the Court to:
(a) Impose conditions to address those effects which are considered unacceptable; or
(b) Decline consent.
[22] At the conclusion of the VH Overlay policies sections contained at 8.8.8.2.10 the explanation and reasons for the zone are described as follows:
The creation of the Orewa High Intensity Variable Height Zone has been generated in response to visioning and community planning exercises held in Orewa. The concept behind the zoning is to facilitate high quality apartment developments within richly planted and landscaped grounds with buildings of different heights on each site. As a reaction to the High Intensity ‗infill‘ housing in the town which has eliminated in many cases the opportunity to plant larger trees it was felt a special form of High Intensity development of increased height but reduced site coverage would create the circumstances for more landscaping and the introduction of larger trees into developments.
The area of the zone is well located in terms of access to important public transport routes and other community facilities such as the beach and beachside Reserve. By allowing higher density development greater support to existing services and facilities will be possible as well as moving towards justification for improved regional public transport links.
As a component of the Districts‘ overall growth strategy it is felt this type of zoning reconciles the need for greater density of housing without sacrificing environmental quality and general amenity. It is therefore considered this type of development helps to promote the sustainable provision of services and infrastructure and assists in limiting the adverse effects of the spread of urban areas.
The Environment Court decision
[23] For the purposes of this appeal the Court identified the issue which it must determine as follows:[4]
Whether the Variable Height Overlay or existing Residential H provisions are better or more appropriate, or whether some position between those of the existing Residential H and those proposed by the appellant, Orewa Land?
[24] The Court then set out the approach that it should follow and said:[5]
[T]hat the Court should be seeking to obtain the optimum planning solution based on an evaluation of the evidence before it, without starting with any particular presumption about the appropriate provisions; but based on the settled provisions of the relevant plans including the Proposed Plan.
[25] The Court next said, in reliance on the various tests formulated in Eldamos
Investments Ltd v Gisborne District Council:[6]
[7] In particular, in deciding which provisions are better or more appropriate the Court must consider:
[a] whether the provisions have been designed to accord with and assist the territorial authority to carry out this function so as to achieve the purpose of the Act;
[b] whether the objectives are the most appropriate way to achieve the purpose of the Act;
[c] whether the policy rules and other provisions are, having regard to their efficiency and effectiveness, the most appropriate method for achieving the settled objectives of the Plan, taking into account the benefits and costs and the risks of acting and not acting; and
[d] in making a rule, whether regard has been had to actual or potential effects.
[26] The Court then analysed why it preferred the existing Res H requirement to that of the VH overlay. The following is but a brief summary of its reasons for that conclusion:[7]
(a) The development (which must mean what was possible in the zone), is not around the town centre but is spread out in a ribbon fashion
along the coastal highway;
(b) It was not on a main transport corridor, (ie a road to the motorway);
(c) Any justification for further intensive building around Orewa should relate to proximity to transport corridors and bus terminals;
(d) The amenity values of the site areas and neighbourhood would not be maintained and enhanced by the construction of taller buildings;
(e) The sites may be subject nearly to complete coverage;
(f) There was nothing that required the area to be open so that there were free spaces. It is inevitable that sections will be walled and planted so that there is no view into the properties;
(g) The intention to relax the height in relation to boundary controls would result in adjoining properties being affected by shadowing and loss of privacy. The tall buildings would dominate nearby buildings;
(h) The increase in height to 11.5 metres in the existing Residential H Zone enables the existing provisions to achieve the intent of the Auckland Regional Growth Strategy;
(i) Public areas (ie roads, reserves), would be affected by shadowing at various times of the year;
(j) The level of development allowed under the plan without the overlay provides for a higher level of development of Orewa than is envisaged throughout the district;
(k) The Court was not satisfied there is a need to achieve the density levels proposed;
(l) Construction of buildings of 10 to 12 storeys along the Pacific Highway would visually create a wall effect along the Orewa frontage, particularly when viewed form positions to the west;
(m) In discussing a lesser height and, in particular, a seven-storey maximum height, it considered that the VH Overlay would be more appropriate in some other area rather than where it was proposed.
The first ground of appeal
[27] The appellant and the first respondent both submit that the Court failed to assess the VH Overlay against the relevant statutory principles and, in particular, failed to carry out an analysis of the objectives in the plan and the plan change to determine if they were the most appropriate way of achieving the purposes of the Act. They further claim that there was a failure to analyse the policy and rules to determine, having regard to their efficacy and effectiveness, whether they were the most appropriate way of achieving the objectives.
[28] The starting point for this examination is s 32 of the Resource Management Act 1991. Subsection (1) requires the carrying out of an evaluation of a plan. Subsection (3) provides that:
An evaluation must examine —
(a) the extent to which each objective is the most appropriate way to achieve the purpose of this Act; and
(b) whether having regard to their efficacy and effectiveness, the policies, rules or other methods are the most appropriate for achieving the objectives.
[29] The objectives in the (operative) District Plan 2000 are:
(a) 8.3.1 – to maintain and enhance amenity values within residential sites;
(b) 8.3.2 – to maintain and enhance amenity values of neighbourhoods in residential areas;
(c) 8.3.3 – to enable higher intensity development around town centres where both the local and the more wide ranging adverse effects of such developments can be avoided, remedied or mitigated;
(d) 8.3.4 – to protect the character, ecology, landscape and open space qualities of the environment and especially the existing character of rural townships, the natural character of areas near the coast and landscapes of high value, from being adversely affected by inappropriate subdivision and development.
[30] When one considers the principles that must be taken into account in considering which outcome is appropriate,[8] the Court is required to:
(a) Determine what actual or potential effects may arise from an integrated residential development;
(b) Consider whether compliance with the development controls would adequately avoid, remedy or mitigate those effects when measured against the objectives of the plan; and
(c) Determine whether the matters that are reserved for discretion and assessment criteria provide sufficient guidance at the consenting stage to address any remaining concerns with the actual and potential effects.
[31] When I consider the summary of reasons given by the Court I am satisfied that the Court, in fact, completed the first part of the analysis that is required. Clearly it was concerned about the effects of taller buildings within the VH Overlay. It reached a number of conclusions to which I have referred.
[32] In the VH Overlay, before any proposal could proceed, it had to be located on a site of 5,000 square metres or greater. All proposals required assessment as restricted discretionary activities or full discretionary activities depending on compliance with certain controls in the zone referred to. Accordingly, the authority asked to consider such applications has, by virtue of ss 104B or 104C as appropriate, an absolute discretion as to whether to grant or refuse such applications.
[33] The judgment of the Court does not contain a detailed analysis of the VH Overlay provisions with a view to determining whether they would avoid, remedy or mitigate the effects of any particular development. It is a specific requirement of s 32(3)(b) of the Act.
[34] Mr Savage drew attention to Contact Energy Ltd v Waikato Regional Council as authority for the proposition that an error of law will not occur where the Court fails to articulate all of the reasoning to support its conclusions, provided the Court turned its mind to the relevant statutory provisions and had some evidence to justify its conclusions.[9]
[35] Mr Savage noted that the Environment Court said:[10]
In respect of the development for this overlay, our next most significant problem was that we were not satisfied that these developments would achieve Objectives 8.3.1, 8.3.2 or 8.3.4. We cannot see how the amenity values of the site area and neighbourhood can be maintained or enhanced by the construction of these taller buildings. ...
[36] Mr Savage submitted that this was simply a shorthand method by which the Court expressed its conclusion that potential developments were able to be constructed under the rules in contravention of the objectives. He drew attention to the fact that in ascertaining the likely adverse effects resulting from a new zone the Court must engage in some consideration of the types of developments that could occur under the provisions.
[37] There is some force in that submission. The problem here, however, is that there is no indication the Court gave consideration to the efficacy of the rules and their ability to achieve the objectives. I am left in some doubt as to whether the Court, in fact, evaluated the complete package provided by the VH Overlay when it considered whether the VH Overlay was an appropriate method of achieving the objectives of the District Plan. It must do that before it can make any proper assessment of whether the VH Overlay was more or less appropriate for achieving the objectives of the District Plan in the current zoning. By contrast, when looking at [63] and [65] of the decision the Court appears to have made that type of analysis when it considered changes to the town centre area.
[38] In my opinion this is not a situation where the Court simply omitted to detail their considerations as to the efficacy of the rules and whether they are appropriate to achieve the district plan‘s objectives. The discussion in the judgment focussed only
on the assumed potential effects of VH Overlay; it did not discuss whether the VH Overlay proposal was adequate to manage the effects of future development proposals. This indicates to me that the Court did not consider the second and third obligations set out at [30], which is an error of law.
The second ground – the seven-storey option
[39] The Court deals with this matter at [34] and records the following:
We have considered whether a lesser height such as that recommended by the Commissioners of 7 storeys is appropriate. There may be situations where the acquisition of a number of sites enables the height in relation to a neighbouring boundary to be met. Overall, our concern in this regard is whether or not the area for which such development would be prescribed is more appropriate on the Pacific Highway than elsewhere.
[40] It is clear that the Court‘s rejection of this option is based on its preference for the current zone without an overlay. That is, it prefers a zone which does not permit buildings of heights greater than that prescribed of 11.5 metres.
[41] The seven-storey option was not sought as an alternative option by any of the parties at the Environment Court hearing.
[42] Mr Bartlett, however, pointed to [4](b) of the Court‘s decision where it sets
out the issues which it must determine as follows:
Whether the Variable Height Overlay or existing Residential H provisions are better or more appropriate, or whether some position between those of the existing Residential H and those proposed by the appellant Orewa Land?
[43] Mr Savage submitted that the Court‘s reference to the seven-storey option at [34] was simply an example of a range of lesser heights that the Court considered when evaluating the VH Overlay. He submitted, therefore, that the Court could not be criticised as having made an error of law for failing to carry out a detailed and separate alternative evaluation of what has been known as ―the seven-storey option‖. Mr Bartlett drew attention to the concluding words of [34] of the Court‘s decision. In effect, he submitted that the implication was that the Court was making an assessment by way of comparison with alternative sites. Such an approach is not
contemplated by s 32 of the Act when the Court is considered with a site specific issue.[11]
[44] Mr Savage drew attention to the fact that the plan change is not restricted to a specific site and seeks to provide for new areas of high density living. His submission is supported by Chisholm J in Brown v Dunedin City Council where he said:[12]
[16] I am satisfied that the theme running through the Environment Court decisions is legally correct: s 32(1) does not contemplate that determination of a site-specific proposed plan change will involve a comparison with alternative sites. As indicated in Hodge, when the wording of s 32(1)(a)(ii) (and, it might be added, the expression
―principal alternative means‖ in s 32(1)(b)) is compared with the
wording of s 171(1)(a) and cl 1(b) of the Fourth Schedule it appears that such a comparison was not contemplated by Parliament. It is
also logical that the assessment should be confined to the subject
site. Other sites would not be before the Court and the Court would not have the ability to control the zoning of those sites. Under those circumstances it would be unrealistic and unfair to expect those supporting a site-specific plan change to undertake the mammoth task of eliminating all other potential alternative sites within the district. In this respect a site-specific plan change can be contrasted with a full district-wide review of a plan pursuant to s 79(2) of the Act. It might be added that in a situation where for some reason a comparison with alternative sites is unavoidable the Court might have to utilise the powers conferred by s 293 of the Act so that other interested parties have an opportunity to be heard. However, it is unnecessary to determine that point.
[17] It should not be implied from the foregoing that the Court is constrained in its ability to assess the effects of a proposed Plan Change on other properties, or on the district as a whole, in terms of the Act. Such an assessment involves consideration of effects radiating from the existing or proposed zoning (or something in between) of the subject site. This is, of course, well removed from a comparison of alternative sites.
[45] What the Court was confronted with was a position where no party supported the seven-storeys at the Environment Court. The question raised by this ground of
appeal is whether there is an appealable error of law by failing to explore the extent
of this particular option. In Rodney District Council v Gould Cooper J gave helpful guidance as to the approach which should be adopted:[13]
[42] ... Put simply, his argument is that the Environment Court has a duty to decide the question of whether a proposed activity is contrary to district plan objectives and policies on the basis of provisions of that plan not relied on by the parties in the hearing; and it commits an error of law liable to be corrected on appeal to this Court if it does not comply with that duty.
[43] I reject that argument which would have widespread implications for the ability of the Environment Court to perform its functions under the Act, having regard to the complexity and length of the planning instruments with which it has to deal. In the case of district plan provisions, the Court must be able to rely on the parties bringing what is allegedly relevant and important to its attention; that must be one of the principal reasons for the Court conducting a hearing on an appeal, something it is obliged to do by s272 of the Act.
...
[48] ... the alleged error in the present case is not apparent on the face of the Court‘s decision. It arises from policies said not to have been considered, and where the parties themselves did not refer to them. Perhaps the provisions were considered by the Court, but simply not mentioned in its decision, a perfectly reasonable reaction to something not referred to by the parties.
[46] I conclude, therefore, that by itself the ground relying on the seven-storey option does not disclose an error of law on the part of the Environment Court. The issue was not advanced by any party by the Court. At best the Court concluded that a lower height by itself would not satisfy the Court that the VH Overlay was better than the existing Residential H Zone position.
The third ground – lack of evidence to support key conclusions
[47] The appellant submits that the Environment Court‘s conclusions in reliance on issues relating to the density and intensification, public transport, and sunlight and shading were errors of law because there was no evidence before the Court upon which it could have drawn the conclusions reached.
[48] The authorities dealing with the Court‘s approach to an appellant‘s assertion
that the Court appealed from reached conclusions without there being any evidence
placed before it upon which it could draw such conclusions were reviewed in
Friends of Pakari Beach v Auckland Regional Council:[14]
[18] The courts have grappled with the issue of how far a consideration of facts by an appellate court can go. A commonly accepted articulation of the position is that of Lord Radcliffe in Edwards v Baistow [1955] UKHL 3; [1956] AC 14, 36, a decision cited with approval by the Supreme Court in Bryson v Three Foot Six Limited & Ors [2005] 3
NZLR 721 at [26]. The Supreme Court stated:
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.
[19] An appellant seeking to assert that there was no evidence to support a finding or that the only reasonable conclusion contradicts the actual determination faces ―a very high hurdle‖: Bryson at [27]. It has been said frequently that the court will not allow litigants to use appeals as an occasion for revisiting the merits of decisions under the guise of a question of law: Manukau CC v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58, 60; Skinner v Tauranga District Council HC AK AP98/02 5 March 2003 at [13]. The question of the weight to be given to the assessment of relevant considerations is for the Environment Court alone, and not for reconsideration by the appellate Court: Hunt & Moriarty v North Shore City Council [1994] NZRMA 433; Nicholls v District Council of Papakura [1998] NZRMA 233 at 235.
[20] It is clear, however, that it is an error of law for a deciding body to fail to draw from unchallenged primary facts an inference in favour of a party when that inference was the only one reasonably possible: Smiturnugh Limited v Auckland City Council HC AK AP28/00
6 July 2000, Fisher J. Certainly if a court‘s decision is one that the
appellate court is satisfied could not have been reasonably reached, that may be a basis for a successful appeal: Centerpoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 at 706; Hutchinson Bros v Auckland City Council (1988) 13 NZTPA 39, 44. But a Court must be cautious not to persuade itself that because it might have reached a different conclusion, the Tribunal, which did so, was wrong: Bryson at [27].
Density and intensification
[49] The appellant‘s concerns in relation to density and intensification issues arise from the following passages from the Court‘s decision:[15]
The Variable Heights Zone is intended to be an overlay on the Residential H Zone. The argument for the overlay is predicated on a proposition that the existing intensification provisions within Orewa, and particularly in Residential H, are not sufficient to achieve Orewa growth targets.
And:[16]
The argument for Orewa Land was based upon the ability to provide greater intensity of development by creating multiple stories.
And:[17]
We are not satisfied at this stage that there is any demonstrated necessity or requirement to achieve density at the levels now proposed (down to 1 in
100m2).
[50] Mr Bartlett submitted that there was no evidence or submission which could cause the Court to conclude that the VH Overlay had been promulgated because existing intensification provisions were not sufficient to achieve Orewa‘s growth targets. He submitted that the purpose of the new zone was to provide a better form of development with open quality space to ensure certainty for the community as to where these types of developments could occur as opposed to ad hoc applications being made to the Council in the future. He said its purpose was not to ensure Orewa‘s growth targets were met. He drew attention to the following passages contained in 8.5 that set out the strategy for the Plan:
There is within the community a general concern regarding the effects of infill development in the District, such as a loss of privacy, less open space and greenery and buildings being located too close together. This is especially so where such development occurs on sites neighbouring existing single residences. ...
The Strategy adopted is to address these concerns through the use of high, medium and low intensity zones as a means of managing environmental effects, thus providing some certainty to residents and achieving improved levels of amenity values in the urban environment.
In addition in Orewa two Special Purpose Residential Zones are applied to achieve the outcomes identified in the Orewa East Structure Plan. The first
is a special high intensity variable height overlay zone enabling residential development on large sites with a variety of building heights of up to seven storeys, complemented by extensive open space. This overlay zone applies to a limited area at the southern end of Orewa beach ....
[51] In response, Mr Savage drew attention to the following matters:
(a) The paragraph in the plan dealing with strategy opens with the statement:
The strategy adopted by the Plan enables further residential development, including appropriate increases in residential intensity, to take place while at the same time managing the adverse local effects of such development and retaining the spacious nature of much of the urban areas of the District.
(b) The strategy also records:
High intensity development is provided in the Orewa Special High Intensity Variable Height Zone with buildings being in apartment form with a variety of building heights up to twelve storeys but only occurring on large sites and retaining large areas of open space.
(c) The objectives provide in 8.8.8.1.1:
To enable high intensity living opportunities, with a variety of taller built forms, focused around the unique environment existing near the southern part of Orewa Beach with its extensive beachfront reserves and Orewa Beach and town centre.
(d) At 8.8.8.2.10:
As a component of the District‘s overall growth strategy it is felt this type of zoning reconciles the need for greater density of housing without sacrificing environmental quality and general amenity.
[52] These passages suggest that a purpose of the VH Overlay was to enable high
density living to achieve the District‘s growth strategy.
[53] Mr Savage then reviewed the evidence of several witnesses which I shall not detail but which covered increased intensity and the density purpose of the VH Overlay. I am not satisfied that there is justification for the appellant‘s allegation
that there was no evidence on which the Environment Court could base its conclusions in relation to the density and intensification. Certainly, it could not ground the setting aside of the judgment based on an error of law in its dealing with these matters.
Public transport
[54] The next complaint made by the appellant is as to the Court‘s dealing with
public transport issues. In [22] of its decision the Court recorded:
We were told that the current arrangements for a bus terminal for example have not been finalized but if it follows the format for other elements of the Northern Busway, it is likely that it will be associated with the motorway rather than with the old Pacific Highway.
[55] The Court deals with the question of public transport routes following its discussion on intensity which might be produced by such developments. It notes that the location of future public transport routes are undecided and that it would be premature to make decisions on further intensification based upon the old Pacific Highway. I accept Mr Savage‘s submission that the Environment Court did not reach a conclusion as to the future public transport route serving Orewa. That was because of the lack of certainty about the subject matter. I conclude that there is no error of law arising from the court‘s statements regarding public transport in its decision.
Sunlight and shading
[56] The next complaint relates to the Court‘s conclusions based on sunlight and
shading issues.
[57] At [27] the Court says:
However, we have greater difficulty with the suggestion that other amenities values such as access to sunlight and daylight will not be compromised. In this regard, there is evidence that not only public areas of space, including the road but also areas of public open space such as the reserves, would be affected by shadowing at various times of the year.
Mr Bartlett submitted that there was no evidence before the Environment Court on
which it could have predicted the extent of, or analysed the effect of, future resource consents that the first respondent or the Environment Court itself might be asked to approve in the future. He submitted that without precise proposals the Court could not draw any conclusions as to likely effects of future buildings.
[58] Mr Savage provided a helpful summary of passages of evidence from witnesses called on behalf of the appellant on the potential effects of shading. That evidence, in itself, is sufficient for the Environment Court to draw some conclusions as to possible adverse effects in terms of shading and loss of sunlight within the VH Overlay. The real problem in this area is with the Environment Court‘s failure to analyse the criteria which are included within the VH Overlay provisions dealing with shading effects. Having said that, the Court was presented with evidence from which it was able to draw its own conclusions as to the effect that might be caused by the VH Overlay provisions. This, then, is not a matter which would, by itself, justify the referral of the case back to the Environment Court based on an error of law on the Court‘s part.
Conclusions and order
[59] The Environment Court was required to consider whether the VH Overlay is a more appropriate method of achieving the objectives of the District Plan than the current Residential H Zone.
[60] The Court identified that developments within the VH Overlay might contain certain adverse amenity effects. Unfortunately, the Court did not analyse the rules to determine whether the rules take account of those concerns and, in particular, whether they would be adequately covered when either the Council or, in an appropriate case, the Environment Court considers future resource consent applications. Without carrying out that assessment the Environment Court was not in a position to determine whether the objectives of the Plan were more appropriately met by the VH Overlay than the existing current zoning and thereby an error of law occurred.
[61] It is appropriate that this decision be referred back to the Environment Court unless I am satisfied that the error of law did not materially affect the decision.[18] I am not satisfied that the Court‘s error of law did not materially affect the decision. A referral back of this proceeding to the Environment Court for further consideration is therefore appropriate.
[62] I order accordingly.
Costs
[63] Counsel were in agreement that the appropriate category and band for this appeal were respectively 2B. Mr Lanning advised that in the event that the appeal was successful no application for costs would be made by the first respondent.
[64] Accordingly, I order that the second respondent pay the appellant‘s costs in
relation to this appeal based on 2B together with disbursements as fixed by the
Registrar.
JA Faire J
[1] Orewa Ratepayers and Residents Association Inc v Rodney District Council [2010] NZEnvC 343.
[2] Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
[3] Nicholls v Papakura District Council [1998] NZRMA 233 (HC) at 235.
[4] At
[4].
[5] At
[6].
[6]
Eldamos Investments Ltd v Gisborne District Council EnvC Wellington
W047/2005, 22 May 2005 at [123], [129].
[7] At [22]-[36].
[8] Referred to in
[8].
[9] Contact
Energy Ltd v Waikato Regional Council [2006] NZHC 1523; (2007) 14 ELRNZ 128 (HC) at [92].
[10] At
[24].
[11]
Brown v Dunedin City Council [2003] NZRMA 420
(HC).
[12]
Ibid.
[13] Rodney District Council v Gould [2006] NZRMA 217 (HC).
[14] Friends of
Pakari Beach v Auckland Regional Council [2009] NZHC 1594; [2009] NZRMA 285
(HC).
[15] At
[19].
[16]
At
[21].
[17] At
[31].
[18] Forest and Bird Protection Society Inc v WA Habgood Ltd (1987) 12 NZTPA 76 (HC) at 81-82.
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