Action for Environment Incorporated v Wellington City Council [2012] NZHC 1687 (13 July 2012)

Last Updated: 16 August 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2486 [2012] NZHC 1687

UNDER the Resource Management Act 1991

IN THE MATTER OF an appeal from the Environment Court

BETWEEN ACTION FOR ENVIRONMENT INCORPORATED

Appellant

AND WELLINGTON CITY COUNCIL First Respondent

AND WELLINGTON BADMINTON ASSOCIATION INCORPORATED Second Respondent and applicant for consent

Hearing: 10 May 2012

Counsel: G Taylor for Appellant

K Anderson and A White for First Respondent

C Anastasiou for the Second Respondent

Judgment: 13 July 2012

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The second respondent Wellington Badminton Association Incorporated

(“Wellington Badminton”) was, on appeal to the Environment Court in October

2011, granted a resource consent to extend its facilities known as Badminton Hall located on Town Belt land in the Wellington suburb of Hataitai.1 Action for Environment Incorporated, the appellant (“AfE”) now appeals against that decision.

_{The essential issue raised by this appeal is whether the Environment Court, when}

1 Wellington Badminton Association Inc v The Wellington City Council [2011] NZEnvC 343.

ACTION FOR ENVIRONMENT INC V WELLINGTON CITY COUNCIL AND ANOR HC WN CIV-2011-

485-2486 [13 July 2012]

allowing Wellington Badminton’s appeal, had proper regard to what may be broadly

described as the “open space value” of the Wellington Town Belt.

Background

[2] The Town Belt is an important feature of Wellington’s urban landscape. As the name suggests, the land comprising the Town Belt encircles the inner city from Oriental Bay, just short of Point Jerningham, across and along the Mt Victoria hills in the east, south to the area of the Berhampore (public) golf course and then north to the Tinakori hills in the west. The Town Belt is held on trust by the first respondent, the Wellington City Council (“the Council”) pursuant to a deed of trust of

20 March 1873 made by the then Superintendent of the Province of Wellington in favour of the Mayor, Councillors and Citizens of the City of Wellington (“the Trust Deed”) for use as “a public Recreation ground for the inhabitants of the City of Wellington”.

[3] Badminton Hall has occupied Town Belt land adjoining Ruahine Street, itself now part of State Highway 1, since 1957 when the Council built a four court hall for its use. The Association holds the site – which comprises a separate certificate of title, on lease from the Council. As extended in the 1970s, Badminton Hall now comprises eight courts, changing facilities, a small “pro-shop” and an adjoining car park.

[4] Other sports facilities occupy Town Belt land. For example, at nearby Hataitai Park there is a complex comprising playing fields, netball courts, a velodrome and associated buildings, club rooms and gymnasiums. Further away, the Renouf Centre provides covered and open tennis courts, stands and associated facilities in an area adjoining Central Park in Brooklyn.

[5] Something of the flavour of the way in which the Town Belt has been used over time for recreational purposes is to be found in the following extract, taken from the still operative Wellington Town Belt Management Plan of January 1995 (“the Management Plan”):

Patterns of recreation use have changed a great deal over the life of the Town Belt. Previously the emphasis was on structured ‘sport’, with little recognition of the importance of informal recreation such as walking and picnicking. As shown in Figure 3 parts of the Town Belt have been intensively developed for organised sport including an extensive range of team sports as well as specialised activities such as croquet, squash, bowls, gun and rifle shooting, golf and cycling. Various cultural and community groups such as scouts, Plunket and the dog obedience clubs also use the Town Belt.

However, to most people the Town Belt represents a piece of close, accessible open space that they “own” and in which they can freely ramble, walk to work, hike, run, dog- walk, picnic and relax. The LINZ (Life in New Zealand survey, June 1991, by the Hillary Commission) data suggests that informal activities such as walking and playing with children are high on peoples’ favourite activity list these days.

This increase in the popularity of informal recreation has been noted by the Council and is also reflected in the public submissions (received in 1992) which suggest that there is more than enough land set aside for formal recreation on the Town Belt, that additional facilities should not be permitted, and, in fact, that some should be removed.

[6] This case reflects an ongoing debate as to the appropriate use of the Town

Belt.

[7] In February 2010 Wellington Badminton applied to the Council for resource consent to extend the Badminton Hall facilities. The Town Belt is designated as Open Space C in the Wellington District Plan (“the District Plan”). The building works associated with the expansion of the Badminton Hall are a Discretionary Activity (Unrestricted). The Council officer reporting to the appointed Commissioners opposed the application. He concluded, on balance, that the adverse effects of the proposal on the vegetation, amenity and landscape values of the Town Belt would not be adequately mitigated and nor would the flow on positive effects outweigh the negative effects. Thus the proposal was, in his view, contrary to the objectives and policies of the District Plan. It was also, in his view, contrary to the Management Plan as a relevant consideration under the District Plan. In August 2010, in a carefully written decision, the Commissioners declined the application. The Commissioners reached similar conclusions to those of the Council officer. They concluded that the proposal was generally inconsistent with the District Plan in relation to Open Space C land. In their view, the proposal would “prioritise one type or form of recreation through building additions over more informal uses” and would not maintain, protect or enhance the open spaces of

Wellington City, a fundamental objective of the District Plan. Like the officer, they also found the proposal inconsistent with the Management Plan and, they added, the Trust Deed.

[8] Wellington Badminton appealed to the Environment Court. Negotiations ensued and a revised proposal was agreed which the Council supported. Although not explained in any detail to me, the revised proposal would reduce the size and change the layout of the proposed additions to Badminton Hall. Thus the appeal to the Environment Court became, in effect, a hearing for a resource consent for that revised proposal. AfE participated in the Environment Court hearing as a s 247 party. AfE opposed Wellington Badminton’s appeal.

The Environment Court decision

[9] In the Environment Court the planning witnesses for AfE, the Council, and Wellington Badminton agreed that the modified proposal was acceptable in respect of all matters, other than the actual and potential adverse effects upon heritage, open space, town belt, recreation and landscape values. More specifically, AfE opposed Wellington Badminton’s application on the basis of a detailed set of five issues, all of which addressed those matters by reference to relevant provisions of the District Plan, the Management Plan and other documents relating to the Town Belt. AfE’s arguments before the Environment Court, as on this appeal, focus in particular on the Trust Deed, the Management Plan and relevant reserves legislation, as those documents provide for the Town Belt to be, or to be predominantly, open space and which limit the type and extent of the buildings that are allowed on the Town Belt.

[10] The Environment Court structured its decision to reflect the requirements of s 104(1) of the Resource Management Act 1991 (“the RMA”). Thus the Court identified and considered relevant provisions of the District Plan, the Management Plan and the Trust Deed. There is no suggestion that the Court overlooked, as opposed to misunderstood, any relevant provision of those documents. The Court used the issues that had been identified by AfE as a framework for its analysis. In doing so, and as a discrete part of its judgment, it considered under the heading “The terms of ownership of the Land”, what it understood to be meant by the central trust upon which the Town Belt is held by the Council: namely for use as a public

recreation ground. In terms of the arguments it had heard from AfE, it recorded that the Trust Deed made no mention of a prohibition of, or indeed any restriction at all upon, buildings on the Town Belt. It noted that in the case Solicitor-General (ex Rel Wilson) v Mayor Councillors and Citizens of Wellington the Court’s view was that the statute and the Trust Deed did not require the whole of the Town Belt to be

available for recreational purposes.2 By the Court’s assessment, the point was the

Council retained a discretion to direct differing uses of different parts of the Town Belt. This was reflected in the phrase used in the Trust Deed providing that the Town Belt was to be “used as a public Recreation Ground in such manner as in and by rules and regulations to be from time to time made in that behalf by the corporation shall be prescribed in directors”. In a central part of its reasoning,

which AfE now challenges, the Environment Court concluded:3

... So, a recreation ground is an area of land on which enjoyable leisure activities can be pursued. We see no reason to confine those activities to those which can only be pursued outdoors, particularly when the 1873 Deed gives the Council the ability to prescribe and direct how the land is to be used.

Nor are we at all convinced by the argument that the construction of a building for a particular recreational use that excludes passive or other uses, must be contrary to the Deed. The point was made in cross-examination of Mr David Armour, the planning witness for AfE, that the provision of any facilities to enable a particular sport to be played will almost certainly exclude other sports and activities from that spot. One cannot, for instance, play rugby on netball courts, or enjoy a leisurely walk with a dog across a field on which a game of hockey is being played. The short answer to that point is that there is room for many recreational choices to be pursued, and the separation of incompatible choices is the simple and common- sense use of a public resource.

In the context of the 21st century, the primary rules and regulations governing the use of the Town Belt will be found, as one might expect, in the District Plan made under the RMA, and a management plan made under the Reserves Act.

[11] In response to AfE’s very specific argument that, as a matter of law, the use of Town Belt land in the manner proposed by AfE would be in breach of the Trust Deed, the Environment Court concluded:4

It is our clear view that this is a question of the ownership of the land, and the rights and restrictions attaching to that ownership. No matter how it might be presented, to delve into and decide issues such as that in this case

2 Solicitor-General (ex Rel Wilson) v Mayor Councillors and Citizens of Wellington (1902)

_{21 NZLR 1.}

3 _{At [28] – [30]}

4 At [43.7].

would require a Court to, at the least, decide upon the correct interpretation of a chain of statutes and then analyse the extent of the Council’s powers and rights as the trustee owner of the Town Belt land to authorise the construction of buildings on it. That has nothing to do with the purpose and principles of the Resource Management Act, and would not, in any event, be within the jurisdiction of this Court to resolve.

[12] There was, the Environment Court correctly noted, no requirement that an applicant for a land use resource consent own the land in question, or even be able to demonstrate a right to use it. Therefore, that there might be a restriction having its legal foundation outside the RMA on the type of building that the Council could erect, or authorise to be erected, on the land in question could not be a prohibition on an application for a grant of resource consent.

AfE’s appeal

[13] As argued, AfE advanced its appeal by reference to eight separate errors of law organised under three headings:

A. The Construction of the [Trust Deed] and Related Legislation

1. The Court misinterpreted the [Trust Deed] by failing to give primacy to the trust objective in the Inner Town Belt being held as a “public recreation ground”.

2. The Court misinterpreted the Wellington (City) Town Belt Act

1908, which, on its proper construction, retained the trust contained

in the [Trust Deed] that the land be used for a “public recreation ground”.

3. The Court applied an old Supreme Court decision, Solicitor- General, ex rel Wilson, v Mayor etc of Wellington (Full Supreme Court), which was wrongly decided.5

4. The Court failed to consider a relevant factor, namely, the actual submissions of the present appellant on the meaning of “public recreation ground”.

B. The Effect of the [Trust Deed] and Related Legislation as Correctly

Interpreted

5. The Court erred in law when holding that to grant consent was not repugnant to the law, namely the lawful use of the Inner Town Belt.

5 Solicitor-General, Ex rel Wilson, v Mayor, Councillors, and Citizens of City of Wellington (1902)

21 NZLR 1.

6. The Court failed to consider a relevant factor, namely, the actual submissions of the present appellant on the effect of the lawful use of the Inner Town Belt on granting resource consents.

C. Other Matters

7. The Court misconstrued the meaning of “site” in the Resource Management Act 1991, when it held that “the recreational potential of this site is, realistically, the potential for playing and watching badminton”.

8. The Court failed to apply the High Court decision in Stirling v Christchurch City Council correctly, and, in purporting to apply the decision, found a fact which was contrary to the evidence.6

The nature of this appeal

[14] This is an appeal under s 299 of the RMA on a question of law. The approach on appeal is:

(a) The High Court review should not scrutinise the merits of the case under the guise of a question of law;7

(b) The question of weight to be given to the assessment of relevant considerations is for the Environment Court alone, and not for reconsideration by the appellate court as a point of law;8

(c) A reviewable question of law includes: 9

(i) Whether the Environment Court has applied a wrong legal test;

(ii) Whether the Environment Court has come to a conclusion without evidence or one which on the evidence could not

_{reasonably have been reached;}

6 _{Stirling v Christchurch City Council HC Christchurch CIV-2010-409-2892, 19 September 2011.}

7 _{Sean Investments v Mackellar (1981) 38 ALR 36.}

8 Hunt v Auckland City Council [1996] NZRMA 49 (HC); Moriarty v North Shore City Council

_{[1994] NZRMA 433 (HC).}

9 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145, 153 (HC)

and West Coast Regional Council Abattoir Co Ltd v Westland County Council (1983) 9 NZPTA

289 (HC), as cited in Stark v Auckland Regional Council [1994] 3 NZLR 614 (HC) at 617.

(iii) Whether the Environment Court has taken into account matters that should not have been taken into account; or has failed to take into account matters which should have been considered.

(d) Any error of law identified must have materially affected the Environment Court’s determination.10 Where such an error is found, the usual practice is to remit the case for further consideration.

(e) In reviewing these matters, the Environment Court ought to be given some latitude in reaching findings of fact within its areas of expertise.11 The role of this Court is not to delve into questions of planning and resource management policy, but rather to ensure that the statute, the district plan and the regional plan have been correctly interpreted and applied.12

[15] Effectively, AfE’s first six grounds say that the Environment Court erred in the way it interpreted the phrase “public recreation ground” as not excluding the extension of the Badminton Hall facilities because they provide for indoor, and not outdoor, recreation. In terms of the grounds upon which a decision of the Environment Court may be appealed, the Environment Court’s alleged error can be categorised as it having misunderstood in a fundamental way the significance and status of the Town Belt and therefore having failed to take that significance and status, a relevant matter, into account.

The positions of the parties

AfE

[16] For AfE, Mr Taylor’s principal argument was that all use of the Town Belt was subject to the core trust of the Trust Deed, that it be used as a “public recreation ground”. By AfE’s interpretation, that was an area open to the public to be used for

_{outdoor recreation. Mr Taylor based that proposition on a detailed analysis of the}

10 _{Smith v Takapuna (1988) 13 NZPTA 156 (HC).}

11 Environmental Defence Society Inc v Mangonui County Council [1987] NZHC 385; (1987) 12 NZTPA 349 (HC)

_{at 353.}

12 Stark v Auckland Regional Council [1994] 3 NZLR 614 (HC) at 617.

history of the Town Belt, and the various statutory instruments that had applied to it over time.

[17] The origins of the Town Belt date back to instructions given by the New Zealand Company to its Surveyor-General, prior to his departure on 1 August 1839 on the Tory for the Cook Strait area. Those instructions include a reference to separating the town from the surrounding area by a broad belt of land to be held as public property on the condition that “no buildings ever be erected upon it”. It is clear that those original instructions did not constitute a trust. To the extent that AfE had argued in the Environment Court that the reference to no buildings being constructed upon the Town Belt was now part of the trusts that governed its use, Mr Taylor rightly did not pursue that argument before me. Mr Taylor also based his arguments on a very detailed analysis of the range of reserves and similar legislation that had been in force over time. He initially argued, by reference to s 5(2) of the Wellington (City) Town Belt Reserves Act 1908 (a private Act still in force) that in some way all that previous legislation remained potentially relevant to what might constitute a lawful use today of the Town Belt. Thus, to the extent that building might be allowed on the Town Belt, it was limited by the provisions of the (now repealed) Public Reserves and Domains Act 1908. But, again sensibly in my view, Mr Taylor did not pursue that argument.

[18] Rather, he based his argument on the description in the Trust Deed of the Town Belt use as being that of a public recreation ground. The overriding purpose was, therefore, that the Town Belt was to be available as an open space to all the citizens for their recreation. To the extent that areas of the Town Belt could be divided off, those areas were to be used for outdoor recreation. Buildings associated with those outdoor uses, such as gymnasiums, grandstands and pavilions, were permitted. The class of permitted buildings did not extend to buildings of the type of Badminton Hall. That was a facility for the indoor recreation of badminton, a sport which could not – generally speaking – be played outdoors.

[19] Thus, when the Environment Court had considered relevant provisions of the District Plan, as those referred to the Trust Deed, the Management Plan and other relevant documents, the Environment Court had erred: it had failed to properly

understand what was the dominant purpose of the trust of the Town Belt and therefore had failed to properly consider those matters.

[20] As regards the other, more specific, points on appeal:

(a) When assessing the impact of the proposal on the site, the Council had wrongly limited its consideration to the current subdivided title on which Badminton Hall sits. Rather, what was required was an assessment of the larger site comprising the Mt Victoria and associated areas of the Town Belt, of which the Ruahine site of Badminton Hall was but a part.

(b) In considering the issues of precedent, the Council had failed to apply the Stirling decision correctly. Moreover, it had misconstrued the evidence before it of the precedential significance of its decision as regards Badminton Hall.

The Council

[21] The Council’s position was that the question of “lawful use” was not one for the Environment Court under the RMA. The RMA was a code governing the consenting of activities and matters that could and could not be taken into account when granting consent to an activity. The lawfulness of an activity under another statute or document, such as the Trust Deed, was not a matter to be considered under the RMA. There was no requirement that an applicant for a resource consent own the land in question, or even be able to demonstrate the right to use it. That proposition had been accepted in a number of decisions. The Trust Deed, the Management Plan and the various statutory instruments referred to by AfE in its arguments were not, themselves, planning documents and nor had they been integrated into the District Plan. To the extent that they required consideration by the Environment Court, the Environment Court had properly considered them. The question of whether or not the Council could lawfully agree, as a matter of land use, to the extension to Badminton Hall was a separate question which could be determined when, and if, the Badminton Association chose to implement its consent, which it had five years to do.

[22] In any event, such a lease of a building such as Badminton Hall, including as extended pursuant to the challenged consent, was allowed by, if nothing else, the proviso to s 54 of the Reserves Act 1977 which reads:

Provided that a lease granted by the administering body may, with the prior consent of the Minister given on the ground that he considers it to be in the public interest, permit the erection of buildings and structures for sports, games, or public recreation not directly associated with outdoor recreation.

Wellington Badminton

[23] For Wellington Badminton, Mr Anastasiou supported the Council’s position. In doing so, he emphasised the structure for decision making provided by the RMA and, within that, the hierarchy of considerations set out in s 104. He was firmly of the view that the question of the lawfulness of the possible lease was not for the Environment Court under the RMA, and therefore neither for this Court on appeal. What the Environment Court was required to consider were environmental and resource management matters as reflected in the provision of s 104. Section 104 established a code by which decisions on resource consents were to be made. In any event, and as the Council had submitted, if the Court thought it necessary to consider the question of lawful use, then the use of a small area of Town Belt land for recreation purposes as provided by Badminton Hall was clearly within the spirit and intendment of the Trust Deed. To conclude otherwise would be to reach an artificially narrow and constrained interpretation of that document.

Analysis

[24] As both the Council and Wellington Badminton argued, the RMA, and in particular s 104, provide a code for the consideration of applications for resource consents.13 Section 104, as enumerated in subsections (a), (b) and (c), sets out the matters which, here, the Environment Court was to have regard to. The general lawfulness of a proposed activity is not a matter referred to in s 104. Moreover, and as the Council and Wellington Badminton submitted, there is also clear authority that

questions relating to the right to use land in a particular way, as a matter of private

_{property rights, are not issues which are properly the concern of the Environment}

13. Springs Promotion Limited v Springs Stadium Residents Association Inc [2005] NZHC 104; [2006] NZRMA 101 (HC) at [61].

Court. As noted by the Environment Court in Director-General of Conservation & Others v Marlborough District Council:14

Disputes about private property rights are outside the Environment Court’s jurisdiction and are not generally considered in determining a resource application.

[25] The Court of Appeal in MacLaurin v Hexton Holdings Limited has held that consent authorities are concerned with the effects of proposed activities, and not the nature of the applicant’s legal rights or interests in the particular land.15

[26] Auckland Volcanic Cones Society Inc v Transit NZ Limited is authority of similar effect.16

[27] The provisions of s 104(3)(c), which set out that resource consents may not be granted contrary to certain sections of the RMA itself, any Order in Council in force under s 152 of the RMA, any regulations under the RMA and any Gazette notice referred to in certain provisions of the Foreshore and Seabed Act 2004, provide further support for that interpretation.

[28] The District Plan itself emphasises, at several places, the fact that not only will resource consents be needed for use of Open Space Land, but that permission to use publicly owned land may also be required from the Council as administering authority. At s 16.1, the following text appears:

Activities and uses on publicly owned land are required to obtain permission (such as a lease or a licence) from the Council as the administering authority. This is in addition to any requirements under the District Plan the Resource Management Act 1991. Council, as steward of much of the City’s open space, is working to ensure Wellington retains the asset of its open space. All activities will also have regard to any relevant management plans and legislation (for example the Wellington Town Belt Management Plan, the Town Belt Deed and also the Reserves Act 1977).

[29] Similar text also appears in other sections, for example as a marginal reference alongside the explanation that relates to Permitted Activities allowed by

14 Director-General of Conservation & Others v Marlborough District Council [2010] NZEnvC

_{403 at [32].}

15 _{MacLaurin v Hexton Holdings Limited [2008] NZCA 570.}

16 Auckland Volcanic Cones Society Inc v Transit NZ Limited [2002] NZEnvC 357; [2003] NZRMA 54 (EnvC).

the open space rules in s 17 of the District Plan. In my view, the position is, therefore, very clear.

[30] At the same time, and as the Environment Court itself recognised, it was required to have regard to “the special status” of the Town Belt when making its decision. Therefore I think it must follow, as AfE argued, that if the Environment Court materially misunderstood that special status then it would fail to have regard to it, and would have erred in law, both as regards that misinterpretation and the need to have regard to a relevant matter.

[31] The question really becomes, therefore, whether in the District Plan, as it incorporates or refers to the Trust Deed and the Management Plan, the special status of the Town Belt reflects the essential element that AfE argues for, namely that buildings such as Badminton Hall are, because they provide for essentially internal recreational activities, not permitted.

[32] A review of the District Plan, and in turn the Trust Deed and the Management Plan as referred to in the District Plan, in my view make it clear that that is not the case, and that therefore the Environment Court did not err in the manner AfE argued.

[33] The relevant provisions of the District Plan are found in Part 16, “Open

Space” and Part 17, “Open Space Rules”.

[34] In the Introduction to Part 16, found at 16.1, the open space areas of the City are first described in the following terms:

Open space covers a large proportion of the City. It encompasses a wide variety of environments from coastal habitats to mountain tops and from bush covered areas to playing fields, and includes areas such as parks and reserves that are available to the public for recreational use, both passive and active. Private and publicly owned land is included.

[35] Reference is then made to the [Inner] Town Belt17 being administered under the terms of the Trust Deed and Management Plan, whilst most other land held for

_{recreation purposes has reserve status under the Reserves Act 1977. The}

17 The District Plan refers to the Town Belt as the Inner Town Belt by reference to the Council’s efforts to create an Outer Town Belt. In this judgment, I have used the commonly known phrase “the Town Belt”, and transposed references in the Plan accordingly.

Introduction describes open space as characterised by the fact that it has few buildings and can therefore be enjoyed and experienced as a visual distinction between built and unbuilt areas. It can also be used for a variety of activities from which people experience enjoyment for different reasons. The Introduction then explains that three broad distinctions have been made to facilitate the management of activities that can adversely impact on open spaces. Those distinctions are Open Space A (Recreation Facilities); Open Space B (Natural Environment) and Open Space C (Town Belt). As can be seen already, therefore, the Town Belt is part of a broader area of land that is seen as having both visual amenity and recreational use characteristics which contribute to its special status.

[36] In 16.4 the Open Space C designation is expressed in the following way:

The Town Belt is valued for its historic, social and cultural importance. The Wellington City Council acts as trustee of the Town Belt, for and on behalf of the people of Wellington. The Town Belt is zoned as Open Space C and identified on the Planning Maps. In addition to the District Plan requirements, the Town Belt is administered under the terms of its own deed and also the Wellington Town Belt Management Plan.

[37] Objective 16.5.1 requires the Council, to maintain, protect and enhance the open spaces of Wellington City. In terms of that general objective, explanatory text in the District Plan at 16.5.1.1 notes that recreation space often has multiple functions. An area may be used as a sports field and also be viewed as part of the landscape. To avoid the reduction of open space quality in general Council will continue to assess proposed recreational structures and buildings in order to determine if they can be located on areas other than open space. Accessibility to the City’s open space is also an important part of their management. The Council’s aim is to ensure that everyone has equitable access to sports fields, reserves and other open spaces. A number of policies are articulated to give effect to that general objective. Of specific relevance to use of the Town Belt are the following policies:

(a) 16.5.1.2: Recognise the special status of the Town Belt as public recreation land held in trust by the Council under the Town Belt Deed

1873 and identify that land on the District Plan Maps.

(b) 16.5.1.3: Manage the impact of activities in the Town Belt in order to protect and preserve its special qualities for the benefit of future generations.

[38] The District Plan then incorporates a heading “Methods”, under which reference is made to Rules, Planning Maps and other mechanisms, namely the Management Plan and the Trust Deed. The following text then appears:

The Town Belt provides a backdrop to the inner city and provides for a wide range of activities and recreational pursuits. It is a significant part of Wellington’s heritage. Council aims, where practical, to add land that was alienated from the original land area or that adds to the Town Belt’s visual continuity. All activities on the Town Belt are undertaken in accordance with the Wellington Town Belt Management Plan, the Town Belt Deed and the Reserves Act 1977. Separate approval may be required under these documents in addition to the District Plan requirements.

The environmental result will be the retention of the open space character of the Town Belt.

[39] Perhaps somewhat repetitively, objective 16.5.1.4 provides that the Council must:

Recognise the special status of Wellington’s Town Belt and manage the impacts of activities in order to protect and manage its special qualities for the benefit of future generations.

[40] Thus far the special status of the Town Belt can be seen as reflecting the Town Belt’s open space characteristics, the visual amenity that provides along with provision of a “wide range of activities and recreational pursuits”. Moreover, the Town Belt is managed not only in accordance with the District Plan, but also the Trust Deed and the Management Plan. Separate approval may be required under these documents in addition to the District Plan requirements.

[41] Section 17 of the District Plan sets out the rules that apply to activities, permitted and otherwise, within the open space areas. Under the general provisions of the District Plan, activities fall into four categories, defined as follows:

(a) Permitted. (b) Controlled.

(c) Discretionary (Restricted).

(d) Discretionary (Unrestricted).

[42] Broadly speaking, the rule types are listed in order of increasing actual or potential adverse effects. Resource consents (land use consents or subdivision consents) are not required for Permitted Activities but are required for all others. Discretionary Activities have been divided into those where Council has chosen to restrict the exercise of its discretion to certain matters, and those where there is no restriction on the exercise of Council’s discretion: these are identified in the Plan as Discretionary Activities (Restricted), and Discretionary Activities (Unrestricted). Where rules in the Plan are contravened, applications will be deemed to be Non- complying.

[43] My understanding is, therefore, that the category of Discretionary Activity (Unrestricted) gives the Council the greatest discretion to make decisions designed to protect the environment from possible harm.

[44] As relevant for these purposes, the construction (etc) of buildings of less than

30 square metres in floor area and less than four metres in height for recreation purposes is a Permitted Activity in Open Space C. The construction (etc) of other buildings in Open Space C is a Discretionary Activity (Unrestricted).

[45] Included in the criteria to be considered in determining whether to grant consent are:

17.3.2.1 Whether the structure is designed and located so as to be visually unobtrusive.

17.3.2.3 The extent that buildings and structures within identified ridgelines and hilltops are sited and designed in ways that avoid visually obtrusive development by:

...

17.3.2.3 Whether the structure is needed for the public enjoyment of the

site’s recreational potential.

17.3.2.4 Whether the site’s open space character is maintained.

17.3.2.5 Any relevant provisions of:

Reserves Act 1977 and any amendments to that Act

Queen Elizabeth II National Trust Act 1977 and any amendments to that Act

any management plan prepared for the site e.g. Belmont Regional Park Management Plan and the Wellington Town Belt Management Plan

_{the Town Belt Deed 1873.}

17.3.2.6 Whether established public access or the possibility of such access is maintained.

[46] The following commentary appears immediately after those assessment criteria:

In general, structures in Open Space B or Open Space C are viewed unfavourably unless there is a need for public facilities that cannot reasonably be satisfied by using other land. Council will pay particular attention to this point in decisions on the use of Town Belt land. Any new building works will also be governed by the provisions of any relevant management plans (for example the Wellington Town Belt Management Plan).

[47] Just as with the objectives and policies found in s 16, the rules in s 17 do not express a prohibition on the erection of buildings on Town Belt land in the terms argued for by Mr Taylor. Rather, they reflect the fact that the use of Town Belt land has, over time, involved the erection of buildings. The explanatory commentary just referred to, and the reference to “structures on Open Space B or Open Space C land being viewed unfavourably unless there is a need for public facilities that cannot reasonably be satisfied by using other land” reflects a policy that would restrict buildings, but not eliminate them. AfE’s “not for indoor recreational use” criteria simply does not appear.

[48] Another feature of this part of the District Plan can also be observed: that is, and as relevant, the Management Plan and the Trust Deed are both matters to be considered when consents are considered, but are also considerations which will, outside the District Plan processes themselves, govern the use of the Town Belt.

[49] So the question now becomes whether the Management Plan and the Trust Deed, as relevant in considering whether the consent should have been granted, reflect the prohibition as argued for by Mr Taylor. It is therefore appropriate to refer

to those documents themselves. The Environment Court described its approach to those documents in this way:18

The Wellington Town Belt Management Plan (WTBMP) is not a statutory document and cannot be given, of itself, as much weight as such a document. Nevertheless, it is referred to in the Assessment Criteria (17.3.2.5) and is to be given its place accordingly, as should the Town Belt Deed of 1873, to be mentioned shortly.

[50] In that context, Mr Anastasiou for Wellington Badminton referred to the Environment Court’s decision in Intercontinental Hotel v Wellington Regional Council, by reference to which Mr Anastasiou argued that the Management Plan and the Trust Deed should have been considered more properly as “other matters” under s 104(1)(c) of the RMA, rather than as the Environment Court did when considering

the District Plan itself under s 104(1)(b)(iv).19 As I read the Intercontinental Hotel

decision, the Environment Court took that approach because, in that case, there was clear evidence that submitters on the relevant provisions of the District Plan were not allowed to submit on the external document, the Waterfront Framework, that was at issue. There was no evidence before me that the position was the same as regards these District Plan references to the Trust Deed and the Management Plan. But, even if they were, I do not think the Environment Court erred in the approach it took. In my view the issue, on this appeal, is as I have set it out at [15].

[51] Against that background, I refer first to the terms of the Trust Deed. There are, by my assessment, two key features to the Trust Deed. The first is the clear trust upon which the Council holds the Town Belt, that is on trust as “a public Recreation ground”. Secondly, the Trust Deed provides a restricted power to lease Town Belt land, namely that no such lease shall be for a term exceeding 42 years. There is no express restriction in the Trust Deed on the erection of buildings on the public Recreation Grounds. Nor, in my view, does the phrase “public Recreation ground” import such a restriction or, more accurately in terms of Mr Taylor’s argument for AfE, the restriction that is here argued for.

[52] The Management Plan, as I have already noted, reflects the history of use of

_{Town Belt land for recreation and other purposes. It notes that the Reserves Act}

18 _{At [20].}

19 Intercontinental Hotel v Wellington Regional Council ENC Wellington W015/08, 14 March

2008.

1977 applies generally to the Town Belt, where its provisions are consistent with the Trust Deed, but that overall the Trust Deed prevails. The Trust Deed is described as being “a simple self-contained code which provides for the use, maintenance, protection and preservation of the reserve”. In a section described as “Aims and Objectives”, the overall aim is described as being to manage the Town Belt in accordance with the intent of the Trust Deed, namely as land to be kept for ever as a public recreation ground for the inhabitants of the City of Wellington, and to manage the Town Belt sustainably. That aim is then explained in the following terms:

By way of explanation the term ‘recreation’ is defined in its broadest sense, but recognises the emphasis in outdoor recreation because of the original instruction from the New Zealand Company Secretary to set aside land that “no buildings be ever erected upon it.” Recreation refers not just to the active and passive pastimes of organised team sport, casual individual pursuits such as walking, running and picnicking, but also to the emotional and spiritual benefits of having the green space of the Town Belt close and visible to a large part of Wellington’s community.

The term ‘public’ means the absence of private ownership and affirms the need to preserve free access to the land, and to make this apparent in the treatment of the boundaries so that people can easily understand and interpret their collective ownership.

[53] A range of objectives, under the headings “Public Recreation”, “Conservation and Land Management”, “Administration” and “Interpretation” are set out, no doubt as some form of guiding policy. Included in these objectives are the following:

(a) to maintain and enhance the public recreation qualities of the Town

Belt for the people of Wellington;

(b) to allow as wide a range of appropriate and sustainable recreational activities as possible on the Town Belt, with an emphasis on outdoor, informal public recreation;

(c) to ensure that there will be no additional land area developed for organised recreational facilities (formal recreation) on the Town Belt but to encourage shared use of these existing facilities;

(d) to promote the public recreational use of the Town Belt through the use of interpretive signs, access ways and the dissemination of

information on the recreational opportunities available within the

Town Belt.

[54] Perhaps the strongest support for Mr Taylor’s argument is the policy that there should be no additional land developed for organised recreational facilities (formal recreation). This is, however, a policy, and not a legal constraint. Moreover, it comes within a document that accepts the term recreation in the Trust Deed as defined in its broadest sense, whilst emphasising outdoor recreation. The following description of policies applying to leases for non-utility purposes, as is the type of lease pursuant to which the Badminton Association occupies Badminton Hall,

confirms that interpretation:20

Policies

The following policies apply to non-utility leases.

1. Future leases21 of Town Belt land and facilities shall only be made where the activity undertaken by the organisation applying for the lease is consistent with the objectives of this management plan and, as such, complies with the following:

(i) The activity is primarily concerned with public recreation.

Preference will be given to outdoor recreation, either active or passive.

(ii) The activity is open for public participation. Clubs will be encouraged to allow casual play on their facilities or, at least, that their membership shall be open to all members of the public.

(iii) The occupation by the lessee will not restrict public access across the land except during times of active use. Where existing clubs or community groups, by their very specialised nature, cannot permit this (for example, croquet or bowling greens) their tenancy will be allowed to continue until they wish to relinquish their lease.

(iv) The activity will not be detrimental to any of the other values of the

Town Belt protected under this management plan.

The only exception to these conditions shall be where leases are required to remedy existing encroachments (see section on Encroachments by Occupation, page 18), or where leases are granted for utilities (see section on Utilities, this page).

[55] Again, I note the reference to preference being given to outdoor recreation and allowing the continuance of specialised activities which by their very nature do

20 _{Wellington Town Belt Management Plan, General Provisions at 21.}

21 ‘Future leases’ means both renewal of existing leases or the granting of new leases to

organisations who are not currently lessees.

not permit public access across the underlying Town Belt land. By my assessment, therefore, and as referred to in the District Plan, the Management Plan does not by itself or in combination with other relevant documents provide a prohibition on the erection of buildings on Town Belt land for, as described by AfE, indoor recreational use.

[56] The final matters to refer to are relevant statutory provisions. The District Plan refers to the Reserves Act 1977. Also of relevance is the Wellington (City) Town Belt Reserves Act 1908, and earlier reserves legislation as it applied from time to time.

[57] An important element of AfE’s argument was based on the provisions of the Public Reserves and Domains Act 1908, which are today reflected in the Reserves Act 1977. The provisions in question explicitly provide for the erection of certain buildings on recreation ground reserves. Under the Town Belt Act 1908, the Council was given the powers of the Governor under ss 33, 34 and 38 of the Public Reserves and Domains Act 1908. Those are powers:

(a) to lay out, enclose and plant such lands “and build any lodge,

museum, or other ornamental building thereon” (s 33(a));

(b) to lease such lands for a period not in excess of 21 years (s 34); and

(c) to make bylaws relating to such lands (s 38).

[58] The Public Reserves and Domains Act 1908 also provides directly that trustees having control of reserves set apart as a recreation ground may erect or authorise any person to erect on some portion of that reserve buildings for ornamental purposes, or a stand or pavilion.

[59] Similar provisions are to be found today in the Reserves Act 1977. Section

53(g) provides as follows:

Erect on some portion of the reserve stands, pavilions, gymnasiums, or other buildings and structures associated with and necessary for the use of the reserve for outdoor recreation, and (subject to paragraphs (d) and (e) of this subsection as to the number of days on which a charge may be made for admission to any such building or structure) may fix reasonable charges for the use of and

generally regulate the use and custody of and admission to any such buildings or structures:

Provided that where the Minister considers it to be in the public interest, the administering body may, with the prior consent of the Minister, erect buildings and structures for public recreation and enjoyment not directly associated with outdoor recreation:

[60] The argument for AfE was that the use of the words “stands, pavilions, gymnasiums and other ornamental buildings” in earlier legislation counted against the Council having the power to provide for the erection of a building such as Badminton Hall. Such a building does not come within the permitted types of buildings, as those are buildings directly associated with the use of Town Belt land for outdoor recreational purposes. That had been made clear by s 53(g), with the specific reference to such buildings and structures as were “associated with and necessary for the use of the reserve for outdoor recreation”.

[61] I acknowledge there would appear be something in that argument as a matter of interpretation. However, I think at that level of detail those provisions are outside the proper scope of the Environment Court’s matters for consideration under the RMA, as they are very clearly land use constraints found in legislation other than the RMA. Moreover, and as the Council fairly pointed out, at the end of the day and if that argument is right, the Council may pursuant to the proviso approach the Minister for his consent to erect “buildings and structures for public recreation and enjoyment not directly associated with outdoor recreation”.

[62] The extent to which those provisions of the Reserves Act reflect restrictions on the Council’s ability to erect or authorise the erection of buildings on the Town Belt is, I think, the issue which will need to be confronted if and when Wellington Badminton proceed to action their resource consent, and the Council must decide as landowner whether it will give Wellington Badminton the necessary permission as lessee to do so. But, in my view, and as reflected in many ways throughout the District Plan, that is not a matter under the District Plan itself, but for the Council to consider as trustee landowner. On that basis, I say no more about it.

[63] In that context, I do observe that I think the Environment Court may have read the decision in Solicitor-General ex rel Wilson v Mayor Councillors and

Citizens of Wellington as giving the Council greater discretion when it comes to leasing Town Belt land than I consider was appropriate.22 In my view, however, that was not a material error by the Environment Court.

[64] I therefore conclude that AfE has not established the core contention it argued for, namely that in terms of the core trust of the Trust Deed the Council was to hold the Town Belt as a public Recreation ground forever for the benefit of the citizens of the City of Wellington, the Council may not arrange or authorise the erection of buildings, such as Badminton Hall, which are associated with essentially indoor recreational activities. I think that is sufficient to dismiss this appeal.

[65] Having said that, I now refer to the two more specific arguments that were made.

[66] AfE argued that the Environment Court had misconstrued the meaning of “site” when it held that the “recreational potential of this site is, realistically the potential for playing and watching badminton”. AfE argued that the site in question was properly to be regarded as the some 36 hectares of surrounding land. As the Council pointed out, site is defined in the District Plan relevantly as an area of land comprised wholly in one Certificate of Title. Badminton Hall is in fact located on its own title. This is separate from the wider title of the surrounding land. On that basis, I do not think the Environment Court erred in the way it interpreted the meaning of site.

[67] Finally, AfE submitted that the Environment Court failed to apply Stirling v Christchurch City Council on the question of precedent.23 It did so because, erroneously AfE said, the Court had concluded that there was no evidence of a queue of waiting applications. I accept the Council’s submissions on this point. There is no queue of waiting applications. All the relevant evidence indicated was that at some point in the future other users of indoor covered court facilities might approach

_{the Council to extend their facilities in a similar way.}

22 Solicitor-General (ex Rel Wilson) v Mayor Councillors and Citizens of Wellington (1902)

_{21 NZLR 1.}

23 Stirling v Christchurch City Council HC Christchurch CIV-2010-409-2892, 19 September 2011.

[68] I add that even if the Environment Court had made some error in those aspects of its decision, I would not regard them as being sufficiently material to uphold AfE’s appeal.

[69] I therefore dismiss AfE’s appeal against the decision of the Environment Court. I reserve the question of costs. If the parties are unable to resolve that matter, submissions may be filed within one month of this judgment. The submissions are not to extend beyond five pages in length for each party.

“Clifford J”

Solicitors:

Ruthe Denee and Co, Wellington for the appellant ([e-mail]); (Counsel: [e-mail])

DLA Phillips Fox, Wellington for the first respondent ([e-mail]) Con Anastasiou, Wellington for the second respondent ([e-mail])