TW Reed Estate v Far North District Council [2014] NZHC 3328 (18 December 2014)

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BETWEEN	TW REED ESTATE (Trustees J M Cropper, K E McGill, V D L Reed and E D Aickin) and DALLING INVESTMENTS LIMITED (J and M Zazulak) Appellants
AND	FAR NORTH DISTRICT COUNCIL Respondent

Hearing:	21 October 2014
Appearances:	Paul Cavanagh QC for the Appellant Joanne Baguley for the Respondent Martin Williams for the Paihia Heritage Precinct Society Inc (Section 301 party)
_Judgment:	_{18 December 2014}

This judgment was delivered by on 18 December 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

TW REED ESTATE & ANOR v FAR NORTH DISTRICT COUNCIL [2014] NZHC 3328 [18 December 2014]

Introduction ................................................................................................................[1] Summary of appeal ....................................................................................................[7] Factual background .................................................................................................. [11] Approach to appeal ..................................................................................................[21] Grounds of appeal ....................................................................................................[24] Principles and purposes of the RMA .......................................................................[26] “Heritage landscape”................................................................................................[36] Analysis ....................................................................................................................[43] “Heritage landscape”....................................................................................[43] Protection of the surrounding area ...............................................................[52]
Did the Environment Court apply the heritage landscape construct? ..........[66]

Appellants’ other arguments.........................................................................[75] Double counting .......................................................................................................[87] Appellant’s submissions...............................................................................[87] Respondent’s submissions............................................................................[92] Analysis ....................................................................................................................[95] Economic effects ........................................................................................[105]

Setback designation................................................................................................ [115] Result ..................................................................................................................... [117] Costs ....................................................................................................................... [118]

[1] The appellants, TW Reed Estate and Dalling Investments Limited, own land on Marsden Road, Paihia. The TW Reed Estate owns 30 Marsden Road and Dalling Investments Limited is the owner of 24 Marsden Road. These properties fall within the Paihia Mission Heritage Area (“PMHA”) which is included in the Far North District Plan (“the Plan”). The PMHA imposes various planning restrictions on the land contained within it with the object of protecting the heritage values contained within it.

[2] It is common ground that this area and the activities which took place in and around it before the signing of the Treaty of Waitangi played a significant part in the early development history of New Zealand during the contact period between Maori and European.

[3] Indeed, as one historian noted in the course of his evidence at the hearing, the Church Missionary Society’s Mission Station (“the CMS”) established by Reverend Henry Williams in the 1820s was the central site of the most important group of pakeha in early colonial New Zealand.

[4] The physical remnants of these very early colonial activities are limited. Furthermore, the physical vestiges or “built heritage”, is not located on any of the properties owned by the appellants.

[5] The issue before the Environment Court was whether various restrictions imposed by a plan change to protect the wider heritage values of the area should apply to the land owned by the appellants. The Environment Court concluded that it should.

[7] The respondent, the Far North District Council (“the Council”), proposed a plan change (“PC12”) to the Plan. This established the PMHA over land not only in Marsden Road but also Kings Road in Paihia.

[8] The appellants challenged PC12 in the Environment Court.¹While the decision of the Environment Court reduced the scope of the PMHA, the appellants’ land remained within it. It is from that decision that the appellants now appeal.

[9] The Council’s position is that the restrictions imposed by PC12 are necessary to protect the area’s unique heritage resources. Conversely, the appellants claim that the PMHA contains little in the form of heritage resources and, in any event, for those heritage resources which do exist the current Plan provides adequate protection. The appellants seek relief in the form of an order quashing that part of the Environment Court’s decision which confirms PC12 over their land and an order quashing the interim plan change provisions incorporated in 2006 by a consent order. The appellants submit it is unnecessary to remit the proceedings back to the Environment Court. This Court can simply remove PC12 with the effect that the underlying commercial zone revives. It is submitted that this aligns with the approach the Environment Court took with the land removed from the PMHA, submitting that this Court can finish what the Environment Court started by removing PC12 in its entirety rather than prolonging matters by reference back.

[10] Before examining the merits of the appeal it is necessary to examine the factual background to this appeal, the plan change and the procedural history which led to the present appeal.

[11] The PMHA includes part of the site of the CMS Mission Station established by Reverend Henry Williams in the 1820s. The land contains a number of heritage elements. Some relate back to that early contact period. Others are more recent. In

(b) the ruins of William Williams’ house and the Colenso printing workshop. These were both originally located in the same building and are now part of the same ruins;

(e) a plaque commemorating the service of the Reverend Henry Williams to local Maori.

[13] When the Plan was last reviewed by the Council in 2000 the subject land was zoned commercial. That zoning was appealed to the Environment Court by the Paihia Heritage Precinct Support Society (“the Society”). By a consent order dated

16 January 2006 the Council was directed by the Environment Court to create a heritage overlay over the subject land. This was the PMHA.

Road and a slither of land on 3 Kings Road, Paihia. [15] The consent order required that:

²The William Williams ruins, Colenso printing workshop (both on 28 Marsden Road), the Church of St Paul and the cemetery and churchyard and Henry Williams memorial on 36 Marsden Road are all listed in the Schedule of Historic Sites, Buildings and Objects in the existing district plan. The Norfolk Pine (on 24 Marsden Road) is listed on the existing district plan on the Schedule of Notable Trees. The Herald plaque on 3 Kings Road and is managed by the Waitangi National Trust.

(c) the building height limit overall is 8.5 metres and to secure appropriate sunlight admission at any point, the maximum height of a building may not exceed 2 metres plus the horizontal distance between the buildings and the site boundary.

[16] Only one land owner took part in the appeal process that resulted in the consent order being made. This was Mr Rendell, the owner of 40 Marsden Road also known as the “Bistro 40” site. He secured the exclusion of his land from the PMHA and the imposition of some controls tailored to the particular site and buildings.

[17] The consent orders recorded that the Council resolved to commence a plan change process by 31 July 2006 to examine the provision of historic heritage in Paihia more generally. The Council undertook a consultation process and notified the plan change (PC12) on 28 June 2012.

[18] A hearing was held before an independent commissioner in November 2012. The Commissioner confirmed the PMHA over the sites. Significant changes from the controls introduced by the Council in 2006 were:

(b) the sunlight admission rule stating that no building to penetrate a 45^orecession plane commencing 2 metres high on a site boundary adjoining land zoned conservation or a site containing a notable tree, historic building or objects scheduled in the Plan;

(c) a site coverage restriction where the proportion of the site that could be covered by buildings was limited to 50 per cent as a permitted activity and 60 per cent for a restricted discretionary activity;

(d) the provision for the above rules to be relaxed for discretionary activities if a comprehensive development plan is complied with.

[19] As can be seen, these restrictions are significantly more onerous than those which would have been applicable under the commercial zoning approved in 2000.

[20] The Commissioner’s decision was appealed to the Environment Court by the Society which sought to retain certain restrictions imposed by the 2006 consent order. The appellants, including the appellants in the present appeal, opposed PC12 in its entirety. The Environment Court removed the applicability of PC12 from 16 to

22 Marsden and 3 Kings Road. However it confirmed that the remaining area should continue to be subject to PC12. This includes the land in Marsden Road owned by the appellants. It is this decision of the Environment Court which is the subject of the present appeal.

[21] Section 299 of the Resource Management Act 1991 (“the Act”) provides that a party may appeal against a decision of the Environment Court to the High Court on questions of law. An error of law occurs if the Environment Court:³

(b) came to a conclusion without evidence, or one to which, on the evidence, it could not reasonably have come; or

(d) failed to take into account matters which should have been taken into account.

³Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZHC 67; [1994] NZRMA 145 (HC) at 153.

[22] Any identified error of law must materially affect the result of the Court’s decision before this Court should grant relief.⁴On appeal this Court is not to revisit the merits of the case under the guise of a question of law.⁵As the Environment Court is a specialist court, this Court on appeal may not get involved in a qualitative analysis of expert evidence that was before the Environment Court and any preferences shown as to competing expert evidence does not give rise to a question of law.⁶

[23] The appellants claim their grounds of appeal fall under the first two categories of error in terms of the Countdown Properties (Northlands) Ltd v Dunedin City Council test, ⁷as set out above.

[24] The grounds relied upon by the appellants are narrow and can be simply stated. They are:

(a) That the Environment Court erroneously applied a “heritage landscape” construct to the PMHA. In summary the appellants’ submission is that the Environment Court found as a matter of fact that there was no built heritage on any of the appellants’ land and that the topography and setting of the PMHA was remote from the

despite this finding the Environment Court did, in fact, apply a heritage landscape construct to reach its decision that s 6(f) of the Resource Management Act 1991 (“the RMA”) justified the restrictions proposed in PC12.⁹Thus the appellants submit it was an error of law for the Environment Court to apply a heritage landscape construct because it did not have the rigorous multidisciplinary

⁴_{At 153. See also, Young v Queenstown Lakes District
Council [2014] NZHC 414 at [19].}

⁶_{Friends of Pakiri Beach v Auckland Regional Council
[2009] NZHC 1594; [2009] NZRMA 285 (HC) at [28].}

⁷_{Countdown Properties (Northlands) Ltd v Dunedin City
Council [1994] NZHC 67; [1994] NZRMA 145 (HC).}

⁹At [71] where the Environment Court states none “of these s 7 matters are of themselves definitive in this case.”

landscape and the evidence the Environment Court did have does not support a finding that a heritage landscape of national significance existed in the PMHA. It is submitted by the appellants that once the façade of a heritage landscape falls away it is clear that the heritage values associated with the appellants’ land could not support the restrictions in PC12.

(b) By applying a “heritage landscape” construct the Environment Court double-counted the landscape and amenity values of the PMHA in its Part 2 analysis. The appellants submit this error also caused the Environment Court to erroneously place a corresponding lack of weight on the economic effects of the PMHA. The appellants submit that a reasonable decision maker, not committing a double counting error, could not have reached the view that the restrictions in PC12 were justified under Part 2.

(c) The Environment Court erred in holding the 15 metre set back in PC12 was not required to be designated but was a reasonable planning restriction. The appellants submit that in the absence of a designation and purchase by the Council of the land affected by it, the 15 metre set back from Marsden Road cannot be sustained.

[25] In order to examine these issues it is necessary to place them in the wider statutory context of the RMA and, more particularly, the Act’s purposes and principles.

[26] Decision making under the RMA is tested through Part 2 which sets out its purposes and principles. The core purpose of the RMA is stated in s 5(1):

[27] This purpose is supplemented by the mandatory considerations found in other

sections in Part 2. Decision makers “shall recognise and provide for” matters of

national significance in s 6, and “have particular regard to” other matters under s 7 and, pursuant to s 8, shall “take into account” the principles of the Treaty of Waitangi. But the “cardinal and pivotal matter to bear in mind is the purpose set out in s 5”.¹⁰

[28] A broad judgement is to be applied in relation to Part 2 considerations. The oft-cited decision of Greig J in NZ Rail Limited v Marlborough District Council describes the balance to be achieved:¹¹

It is certainly not the case that preservation of the natural character is to be achieved at all costs. The achievement which is to be promoted is sustainable management and questions of national importance, national value and benefit, and national needs, must all play their part in the overall consideration and decision.

This part of the Act [Part 2] expresses in ordinary words of wide meaning the overall purpose and principles of the Act. It is not, I think, a part of the Act which should be subjected to strict rules and principles of statutory construction which aim to extract a precise and unique meaning from the words used. There is a deliberate openness about the language, its meanings and its connotations which I think is intended to allow the application of policy in a general and broad way.

[29] As Mr Cavanagh QC, for the appellants submits, the factors under s 6 are not ends in themselves but are to be weighed amongst themselves together with the other relevant factors contained in ss 6 to 8 to inform the decision maker in terms of making an overall judgment about the proposal under s 104.¹²

[30] Those parts of ss 6 and 7 which are relevant to the present appeal are set out below:

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes

¹⁰Genesis Power Ltd v Franklin District Council [2005] NZEnvC 341; [2005] NZRMA 541 (EnvC) at [213] per Judge

¹¹_{NZ Rail Ltd v Marlborough District Council [1994]
NZRMA 70 (HC) at 85-86 per Greig J.}

¹²Section 104 deals with the matters a consent authority is to have regard to when considering an application for resource consent.

and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:

(f) the protection of historic heritage from inappropriate subdivision, use and development.

[31] Of particular relevance to this appeal is s 6(f) which elevates the protection of heritage to a matter of national importance.

(a) Means those natural and physical resources that contribute to an understanding and appreciation of New Zealand's history and cultures, deriving from any of the following qualities:

[33] Generally, to give effect to s 6(f), a district plan will include rules and policies relating to heritage and character. District plans will normally list buildings, places or trees for protection. However, s 6(f) does not provide absolute or total protection because, consistent with the wider principles contained in the RMA, historic heritage is simply one of the considerations required to be taken into account by the decision maker under Part 2.

[34] The purpose of district plans is to “assist territorial authorities to carry out their functions in order to achieve the purpose of [the] Act”.¹³As the Chief Justice observed in Discount Brands Ltd v Westfield (New Zealand) Ltd:¹⁴

The district plan is key to the Act’s purpose of enabling “people and communities to provide for their social, economic, and cultural well being”. It is arrived at through a participatory process, including through appeal to the Environment Court. The district plan has legislative status. People and communities can order their lives under it with some assurance.

[35] A district plan or a plan change must be prepared in accordance with the district council’s functions under s 31, the provisions of Part 2 of the RMA and the council’s obligation to prepare and have particular regard to an evaluation report in accordance with s 32.¹⁵The mandatory content of district plans is provided for in s 75. The hierarchical structure of planning documents under the RMA mandates that a district plan must give effect to national policy statements, the New Zealand Coastal Policy Statement and any regional policy statements.¹⁶Section 73(1) of the RMA provides that the district plan must be prepared in the manner set out in Schedule 1. However, it is not a mandatory requirement for plan changes to also adhere to the processes set out in Schedule 1.¹⁷

[36] Mr Cavanagh submits that s 6(f) has no application because none of the properties owned by the appellants within the MPHA contains any identified

_{archaeological sites or heritage fabric and that any built heritage
existing within the}

¹⁴_{Discount Brands Ltd v Westfield (New Zealand) Ltd
[2005] NZSC 17, [2005] 2 NZLR 597 at [10].}

[37] Mr Cavanagh submits that the Environment Court applied the heritage landscape construct and thus erred in law. He submits that the Environment Court did not have before it the rigorous multidisciplinary evidence necessary to make a decision on the existence of a heritage landscape. He submits that this Court must be satisfied that the heritage landscape is of significant national significance to justify the proposed development restrictions.

[38] Mr Cavanagh also submits that the Court must be the satisfied that the heritage landscape is of sufficient national significance to justify the proposed development restrictions. In the present case he submits that the key landscape features of the PMHA have nothing to do with the area’s heritage and thus there was no evidential foundation for the Environment Court to apply a heritage landscape construct. He acknowledges that the Environment Court did not actually adopt the term “heritage landscape” in its decision but, nonetheless, effectively applied that construct in its analysis. He submits that despite finding that the PMHA contained minimal built heritage (and the appellants’ land contained no built heritage whatsoever) the Environment Court considered that the “historical ambience” of the area, provided by its visual character and landscape, justified placing weight on s 6(f) concerns.

[39] Mr Cavanagh submits that as the Environment Court has recognised in earlier decisions, the decision maker must be cautious before applying a heritage landscape construct. The decision maker must undertake a rigorous analysis, involving interdisciplinary expert evidence, and be satisfied that the heritage values in the landscape are of sufficient national significance to trigger s 6(f). In the present case he submits that the Environment Court:

[40] Alternatively, he submits that if the Environment Court applied the correct legal test its factual findings cannot support its conclusion that the PC12 restrictions are justified for the purpose of protecting historic heritage. In making that submission, Mr Cavanagh stressed that he was not asking this Court to undertake a factual evaluation; rather he relied on the Environment Court’s factual findings to support his argument that the conclusion was not one which the evidence supported.

[41] Mr Williams, appearing for the Society,¹⁸carried the argument for the respondents in relation to this part of the appeal. He submits that the appeal is a thinly veiled attempt to re-examine the merits and policy findings of the Environment Court. He submits that the appellants’ real concern relates to the weight which was placed by the Environment Court on the heritage and amenity values of the PMHA. He says that there is no error of law and described the heritage landscape argument as a “red herring”. He submits that PC12 was not developed on a heritage landscape basis and the Environment Court did not apply a heritage landscape construct in reaching its decision.

[42] Mr Williams submits that the Environment Court did not err in its reasoning because neither the definition of historic heritage nor amenity values are confined to “built heritage”. Furthermore, any finding that the built heritage on the appellants’ land was minimal would not preclude a finding the PMHA triggered the provisions which deal with heritage and amenity values in ss 6(f) and 7(c). He submits that the

_{Environment Court had sufficient evidence before it to support its
conclusion.}

¹⁸The Society, having filed a notice of intention to appear within the prescribed time, had a right to appear and be heard on the appeal under s 301 of the RMA.

[43] The issue of whether a decision maker should take into account the heritage landscape construct under s 6(f) has, apparently, not yet been considered by this Court.

[44] Section 6(f) has been used to protect built heritage, the surroundings of heritage areas and heritage landscapes. The concept of a heritage landscape has been considered in a number of decisions of the Environment Court. However, that Court has tended to adopt a cautious, even non-committal, approach to its considerations of the concept.

Department of Conservation-led study referred to in argument by Mr Cavanagh, known as the Bannockburn Heritage Landscape Study.¹⁹Apparently the primary purpose of the Bannockburn study was to trial a newly developed methodology for investigating heritage at a landscape scale. It appears, at least in part, that the catalyst for this initiative was the concern that previously, heritage management agencies in New Zealand “tended to focus on individual heritage sites and features”.²⁰The methodology is interdisciplinary and involves spatial analysis using connectivities between superimposed layers of history.

Facilitate the identification, management and interpretation of landscapes which may have multiple historic sites, many stories and close community relationships with the land. It was recognised that identifying, interpreting and managing heritage at a landscape scale would require different techniques to discrete heritage sites ...

¹⁹Janet Stephenson & Ors, Bannockburn Heritage Landscape Study (Department of Conservation, Wellington, 2004).

A heritage landscape is a landscape, or network of sites, which has heritage significance to communities, tangata whenua, and/or the nation.

The landscape methodology uses the concept of layered webs to analyse and highlight key relationships between physical remains, key stories, and contemporary associations.

As development and subdivision make their own marks on the landscape, the older continuities become fainter, and their cohesion as a physical aspect of the past become more difficult to establish. A landscape approach, recognising the interconnectedness of physical remains and stories associated with the land, can help to bring together understanding about the different traces of the past on the landscape, and how and why it is valued by people today.

[48] It appears that the first judicial reference to the concept of “heritage landscape” is found in Waiareka Valley Preservation Soc Inc v Waitaki District Council where the Environment Court was satisfied that a purposive interpretation of s 6(f) enabled that provision to “describe a collection of historic sites, places or areas as a heritage landscape”.²³

[49] But just several months later, the Court cautioned against the use of the phrase “heritage landscape” in Maniototo Environmental Society Inc v Central Otago District Council noting that such usage:²⁴

... may be dangerous under the RMA where the word “landscape” is used only in s 6(b). Further, the concept of a landscape includes heritage values, so there is a danger of double- counting as well as of confusion if the word “landscape” is used generally in respect of section 6(f) of the Act.

[50] Further words of judicial caution were expressed by the Environment Court over the use of the term and its inclusion in the complex lexicon of the RMA, noting

²³Waiareka Valley Preservation Soc Inc v Waitaki District Council EnvC C058/2009; 14 August 2009 at [230]-[231].

²⁴Maniototo Environmental Society Inc v Central Otago District Council EnvC Christchurch 103/09,

(b) Outstanding landscapes and features are protected from inappropriate subdivision use and development by s 6(b) of the Act;

(d) Historic heritage is protected from inappropriate subdivision use and development by Section 6(f) of the Act ; and

(e) There are also other important matters provided for in the Act that would apply, such as matters relating to amenity, indigenous vegetation, natural character and coastal environment, that may at times be relevant to a given situation.

To introduce a new concept not recognised explicitly by the statute would, in our view, add to the already complex web of the Act and make matters more confusing.”

[51] The dangers of double-counting Part 2 matters under the umbrella of a heritage landscape have also been discussed in relation to Maori issues which are specifically provided for in ss 6(e), 7(a) and 8 of the RMA.²⁶

[52] Section 6(f) extends beyond the protection of a listed heritage item. The definition of “historical heritage” includes the “surroundings associated with the natural and physical resources” that contribute to an understanding and appreciation of our history. As a matter of commonsense, the s 6(f) protection extends to the curtilage of the heritage item and the surrounding area if the protection of those areas helps to retain the heritage significance of the heritage item itself. This is uncontroversial. The difficulty, however, is the extent of the relevant curtilage or “surrounding area”. Where that area is expansive the boundary between heritage protection and the concept of a “heritage landscape” may begin to blur. This issue arose in Waiareka Valley Preservation Soc Inc v Waitaki District Council where

We further agree that it is open to us under section 6(f) to describe a collection of historic sites, places or areas as a heritage landscape. However, the nomenclature “landscape” could easily be substituted by “area” or “surrounds”. Which nomenclature is used would depend on the particular context.

[53] It is the imprecision of the language which has led to the criticism of the

[54] A helpful case which discusses the relationship between a heritage item and its setting is to be found in the Environment Court’s decision in Oriental Parade (Clyde Quay) Planning Society v Wellington City Council.²⁸That case involved a more restricted application of the s 6(f) protection to the surroundings heritage site in Oriental Bay. The Wellington District Plan attempted to control the height of buildings on Oriental Parade under a plan change which specified a 22 metre height limit for certain properties and set back restrictions. The appellant wished to build to a height of 30 metres. The subject site is dominated by the St Gerard’s Monastery on

the hill behind Oriental Bay which serves as a back drop to the central city. The monastery is a Category 1 historic place under the Historic Places Act 1993 and a listed heritage item in the district plan.²⁹

Meaning the area of land surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance. It can apply to land which is integral to the heritage significance of items of the built heritage, or a precinct which includes buildings, works, relics, trees or places and their setting.

[56] He defined the curtilage of St Gerard’s as the actual chapel, the hillside location, the views of St Gerard’s and its setting and “adjacent nearby residential

²⁸Oriental Parade (Clyde Quay) Planning Society v Wellington City Council EnvC W63/05, 2 August

... there is a clear presumption in the RMA that the surroundings of a historic place are important qualities that should be recognised and provided for.

... the council's limitation of the height limits of buildings adjacent to the escarpment is a careful, well thought out approach to ensuring that St Gerard's and its setting are not incrementally encroached upon by unsympathetic and smothering development. ...

If high buildings were allowed to 30 metres many of the values of St Gerard's in its setting be they landscape, heritage, grandeur or open space at night, would merge into a blur of lit domesticity.

[59] The Environment Court then considered the height restriction in the context of assessing the views of the monastery and concluded: ³³

Returning from a site visit to those facilities, from the boardwalk the close up views of the escarpment and monastery are thus immediate with strong visual appeal. It takes little extrapolation from 166 Oriental Parade to see that the 30 metre height limit sought by the appellant across the face of the escarpment would markedly reduce the green podium on which the monastery sits and the open space “frame” for the monastery ...

... The beauty of St Gerard's in its prominent location is that it can be seen from numerous places with sequential views (rather than fixed ones) gained from walking or driving so the view changes.

[60] The appeal was dismissed. The Environment Court concluded that extending the height limit to 30 metres in Oriental Parade would not fulfil the purposes of the RMA.

[61] Similar comments can be found in Pick v Far North District Council³⁴which dealt with appeals concerning the level of heritage protection afforded to the township of Russell in the proposed district plan. The Environment Court noted the

_{comments of an expert on the subject of heritage protection and
surrounding areas:}³⁵

Mr Salmond is an architect very experienced and qualified by training in heritage conservation work. Building on his description of the way in which the town has come together, he opined that the relatively small number of heritage structures in the mapped heritage precincts required to have their surrounding amenity protected by a “fitting in” so as to maintain established patterns of scale and setting, meaning the relationship to other buildings, the streets, and the broader urban landscape.

[62] The Environment Court was persuaded that the heritage precinct in the proposed plan was insufficient to satisfy the objectives of the plan:³⁶

... we are persuaded that a number of the very clear objectives, policies and issues quoted earlier in this decision (which properly address the relevant aspects of the purpose and principles of Part 2 of the Act), should have further reinforcement at policy and implementation levels. ... The evidence clearly established that there is an attractive village atmosphere in the relevant parts of the town, with a distinctive low density character, that the setting and landscape character give Russell a particular distinction from other urban localities in the district and beyond, that historic heritage and amenity values are interwoven, and that these qualities can be diminished by encroachment by out of scale new buildings, alterations and additions, on the flat area and basin slopes.

[63] The appeals were allowed and the parties were directed to draft new provisions for insertion into the proposed district plan.³⁷

[64] That the decision maker can take into account features which fall outside the development area because “they nevertheless influenced, and will be influenced by, what will take place within the development area” was recognised by the Environment Court in Waterfront Watch Inc v Wellington City Council.³⁸

[65] As is apparent from the case law, s 6(f) applies to the protection of the specific heritage site and its surroundings. The degree to which those surroundings will be protected is to be determined by reference to a range of considerations including those in Part 2 as well as the regional and district planning documents. The protection of the surroundings of a heritage site is supported by the learned

amenity and design control policies and rules may be introduced in district plans in recognition of the fact that:³⁹

The relationship between heritage buildings and new structures may be compromised by an incompatible design which diminishes the integrity of the heritage protection objective, and detracts from the value of heritage within the location.

[66] As already noted and frankly acknowledged by Mr Cavanagh, nowhere in the decision of the Environment Court is express reference made to a “heritage landscape”. I am of the view the Environment Court did not adopt a “heritage landscape” construct to its assessment of heritage considerations within the PMHA. What the Environment Court did, correctly in my view, was to apply the concept of “surrounding areas” heritage to protect the listed items located on the site.

[67] For the reasons already discussed, the notion of a heritage landscape does not readily apply to the PMHA. The value of the Bannockburn study is that its methodology required a shift from a focus on individual heritage sites to a wider consideration of the landscape within which they fit. In my view the Environment Court adopted a conventional approach to this assessment.

[68] The subject land within the PMHA does not lend itself to ready comparisons with other cases where the scale of the area involved is a good deal greater.⁴⁰The subject land area in the PMHA is modest and commercially zoned. It originally affected a limited scattering of properties at 16 to 36 Marsden Road and 3 Kings Road. The cases discussed above involve tracts of land often measuring hundreds of hectares. They thus fit within the conventional and commonly accepted definition of

[69] Secondly, the Environment Court did not refer to the Bannockburn study and did not use the terminology used in that study to characterise the heritage landscape.

_{Instead the Environment Court restricted the PMHA to “critical
neighbouring sites”,}

³⁹Derek Nolan (ed) Environmental and Resource Management Law (4th ed, LexisNexis, Wellington,

⁴⁰See Waiareka Valley Preservation Soc Inc, above n 23; Maniototo Environmental Society Inc, above n 24; Clevedon Cares Inc, above n 26; and Gavin H Wallace Ltd, above n 25.

the scheduled stone ruins, St Paul’s Church and its environs and the scheduled

[70] Thirdly, there are other indications in the Environment Court’s judgment which tell against the use of a heritage landscape concept in favour of the more conventional and settled approach to heritage protection. After considering the expert evidence and the effects of the various planning regimes proposed, the Environment Court turned to consider PC12 in light of the Plan, other policy documents and Part 2 considerations. This is the correct and principled approach to take, as mandated by s 74 of the RMA. The Environment Court made express

A heritage resource [is] recognised as a complete entity whose surrounds or setting may have an important relationship with the values of the resource. (FNDP 12.5.4.1). By way of explanation the policy outlines instances where the setting is important ...

[71] A further statement of the Environment Court which demonstrates that recourse was not made to the heritage landscape construct is:⁴³

The polices, as we have indicated, look to avoid compromising the heritage values of areas with significant historic character and to recognise heritage resources as a complete entity whose surrounds and setting may relate significantly to the resources’ value.

[72] The Environment Court concluded that the purpose of the RMA and the objectives and policies of the Plan would not be served by treating the area as “simply another part of the commercial zone of Paihia”.⁴⁴The Environment Court then found that the planning restrictions in PC12 were required on the “critical neighbouring sites” of the listed historic heritage resources. The effect of surrounding properties on the appreciation of listed heritage sites was explicitly

Building mass, dominance and the location of development on adjoining sites will determine the extent to which persons at 28 and 36 Marsden Road appreciate the sites’ historic heritage and amenity values.

[73] A further demonstration of the Environment Court’s focus on neighbouring sites was the removal of certain properties from the PMHA. On that topic the Environment Court said:⁴⁶

[W]e have concluded that 16 to 22 Marsden Road and the sliver of 3 Kings Road behind the “Herald” plaque site are sufficiently distant from the historic heritage resources around St Pauls and the Trust land and are sufficiently devoid of historic heritage values, as not to warrant management for the purposes of s 6(f) RMA.

[74] In my view it is plainly apparent the Environment Court did not apply the heritage landscape construct. It is thus not necessary to address whether rigorous multidisciplinary evidence was required.

[75] I turn now to consider the further arguments advanced by the appellants under this ground of appeal.

[76] Mr Cavanagh submits that s 6(f) has no application because the appellants’ properties are bereft of any built heritage and what heritage does exist within the PMHA is already protected under the Plan. The details of these protections were set out earlier in this judgment.

[77] For the reasons earlier set out, s 6(f) can apply to protect the surroundings of specific heritage sites even if no built heritage is evident on those surrounding sites.

[78] Mr Cavanagh also submits that the Environment Court’s conclusion that PC12 was justified for the purpose of protecting historic heritage is not supported by its factual findings. I do not accept that submission.

[79] The Environment Court expressly found that the “site contains very few physical remains above ground from the early period when it was most significant” and that the built heritage on the site is “minimal”.⁴⁷The Environment Court considered the evidence of landscape architects that the defining elements of the PMHA are limited site coverage, generous building set backs and that the views from St Paul’s to the beachfront and to the Paihia Scenic Reserve are “key elements in its character”.⁴⁸

[80] The Environment Court then considered the evidence of the appellants’ expert, Mr Scott, who conceded that under a commercial zone without additional heritage protection, “many of the attributes which are key to the present character of the site would be lost”.⁴⁹Mr Scott also accepted that the views of St Paul’s from Marsden Road would be “significantly diminished” and that the sense of place and the character of the experience would “change completely” under his modified rules.⁵⁰The Environment Court then added:⁵¹

However, any of the other planning regimes proposed would also bring change to the experience of anyone on or close to the site.

[81] The Environment Court noted the evidence of Dr Gilling, an historian with particular expertise in early colonial New Zealand history called by the Society, who was asked:

What outside the area of the properties controlled by St Paul’s parish and the

[82] Although the judgment does not make reference to other parts of Dr Gilling’s evidence, reference to them adds to the body of evidence which supports the conclusion that the surroundings to the identifiable historical features contribute to

The preservation of a historical precinct on the site of the CMS Mission Station at Paihia would nevertheless be a valuable and appropriate recognition of the central site of the most important group of Pakeha in early colonial New Zealand.

[83] Dr Gilling maintained that view even though an overlay, as opposed to a precinct, was what was proposed by PC12. On this topic he said:⁵³

... precisely because of the lack of built remains from the CMS period, it is all the more important to ensure this area “stands apart” from the rest of Paihia, in order to prompt people living within the District or visiting the locality to ask “Why is this area different, what happened here?”

[84] The Environment Court concluded its findings that whilst the PMHA contains few remnants of the past colonisation and contact period, the open, low density development “still enables the visitor to get a sense of place and the context of the remaining structures of the period”. Such an experience would change completely under a commercial zoning. However, if the area was developed to the full extent allowed by PC12, “the visitor would find it much more difficult to get a

[85] For these reasons I do not accept that the Environment Court reached a conclusion which was irrational or one that no reasonable decision maker would have come to. There was ample evidence available to the Environment Court to conclude that the area has heritage values worthy of protection. Despite the express finding that the built heritage within the PMHA is “minimal” and that the setting has been significantly altered and can expect to be further modified, it was still open to the Environment Court to conclude that the area required differentiation from the balance of the commercial zone. The finding that “under any scenario the experience of the person on site will be remote from the experience of people in the

19^thcentury”⁵⁵does not exclude the PMHA “from contribut[ing] to an understanding

[86] For these reasons I reject the submission that the Environment Court adopted a heritage landscape construct. The Environment Court’s factual findings support its conclusion that the PC12 restrictions are justified. I am thus not satisfied that the Environment Court fell into error.

[87] Mr Cavanagh submits that because the Environment Court adopted a “heritage landscape” construct it erroneously conflated landscape and amenity values with historic heritage which led to the type of double counting that the Environment Court warned against in Maniototo Environmental Society Inc and Gavin H Wallace.

[88] Mr Cavanagh submits that the experts retained by the Council and the Society used the concepts of landscape and amenity value to inflate the heritage value of the PMHA and that, in fact, there is no link between the landscape and amenity qualities of the PMHA and the historical events which took place there. He submits that these errors flow through and flawed the Environment Court’s analysis.

[89] Mr Cavanagh also highlights passages in the Environment Court’s decision where it noted that apart from already protected items, the most significant feature of the PMHA is its typography and setting and that the experience of persons on the site today is “remote” from the experiences of the 19th century.

[90] Furthermore, Mr Cavanagh submits that the Environment Court erred by placing inadequate weight on the economic effects of the PC12 restriction when considering the merits of PC12 under its Part 2 analysis. He submits that PC12 disrupts the longstanding planning development partnership between Russell and Paihia and that PC12 alters this balance by removing an important strip of commercially zoned beachfront land from the future development potential of the township of Paihia. He refers to the evidence of Mr Putt whose evidence was to the effect that the restrictions prevented reasonable development on most land within the PMHA. Mr Cavanagh says that without PC12, the underlying commercial zoning

would still promote the use of the land and would ensure that the identified heritage resources on the waterfront are protected.

[91] It is Mr Cavanagh’s submission that the Environment Court did little to address the submissions on economic effects and did not draw any real conclusions as to the economic effects. As a consequence, the Environment Court fell into error by giving disproportionate weight to landscape and amenity values in preference to economic values. He submits that a reasonable decision maker could not have reached the conclusion that PC12 fits within the purpose of the RMA.

[92] Mr Williams, for the Council, submits that the question of weight to be attached to policy questions and evidence is a matter for the Environment Court. He repeats his submission that the question of evidential weight may not be considered on an appeal on a point of law. Furthermore, he rejects the argument that there was any “double counting” relying on the evidence of Mr Brown that there is an important inter-relationship between heritage and amenity factors.

[93] Mr Williams submits that the Environment Court did not fail to consider the economic effects of the competing planning options. He observes that no party analysed the costs and benefits of PC12 compared with the costs and benefits of a commercial zone. The Environment Court decision, he submits, turned upon matters of evaluation and fact which are not amenable to challenge on this appeal.

[94] The weight to be attached to a particular planning policy and the Environment Court’s view on a matter of opinion within its specialist expertise will generally be a matter for the Environment Court. No question of law arises from the expression by the Environment Court of its view on a matter of opinion within its

specialist expertise,⁵⁷unless there is an error of law falling under one of the four

⁵⁷Guardians of Paku Bay Association Ltd v Waikato Regional Council [2011] NZHC 1013; [2012] 1 NZLR 271 (HC) at [33]; Stark v Auckland City Council [1994] 3 NZLR 614 (HC) at 617 per Blanchard J; Hutchinson Brothers Ltd v Auckland City Council (1988) 13 NZTPA 39 (HC); Hungry Horse Ltd v Manukau City Council HC Wellington M117/84, 28 October 1984 at [6].

[95] Under s 6(b) of the RMA the Court is required to take into account the need to protect “... outstanding natural features and landscapes from inappropriate subdivision, use, and development”. The Court is also required to recognise and provide for other matters of national importance including those referred to in s 6(f), namely the protection of historic heritage from inappropriate subdivision, use, and development. The Environment Court has urged caution not to “double count” when considering a heritage landscape, in other words to ensure that the consideration of outstanding natural features and landscapes is quarantined from the considerations and assessment of historic heritage and its protection. This principle was discussed

in Maniototo Environmental Society Inc where the Environment Court observed:⁵⁸

[W]e consider this usage may be dangerous under the RMA where the word “landscape” is used only in section 6(b). Further, the concept of a landscape includes heritage values, so there is a danger of double-counting as well as of confusion if the word “landscape” is used generally in respect of section

[96] Plainly, the need for caution is justified. In Maniatoto Environmental Society Inc the Environment Court determined that the Lammermoor range was an outstanding natural landscape worthy of protection in terms of s 6(b). However, due to the historic heritage considerations, particularly the Old Dunstan Road, which runs across the range, the landscape also has historic values in terms of s 6(f). The Environment Court concluded there was a risk of double counting the landscape value by also dressing it up as a heritage consideration.

[97] The question of double counting has also been in discussed in relation to s 6(e) which requires the Environment Court to recognise and provide for the relationship of Maori and their culture and traditions, being matters of national importance. This was discussed by the Environment Court in Clevedon Cares Inc which determined that the Wairoa Valley was a cultural heritage landscape but noted

It is also important to recognise the need to avoid the double counting of Maori issues which are specifically provided for in Sections 6(e), 7(a) and 8 of the Act.

[98] As I have already discussed, I am satisfied that in the present case the Environment Court did not apply a heritage landscape construct in its analysis and on this basis alone the cases cited by Mr Cavanagh are capable of being distinguished. In the present case there was no suggestion that the land within the PMHA was an area of outstanding natural features and landscapes. In fact, the Environment Court did not consider s 6(b) at all. Nor did it need to. That being the case it is difficult to see how the claim of double counting in this case can be maintained. It is a wholly different position from that which was involved in Maniatoto Environmental Society Inc.

[99] Furthermore, Mr Cavanagh’s submission that the concept of landscape and amenity value were used by the Environment Court to erroneously inflate the heritage value of the PMHA by the Environment Court equating “distinctive landscapes” with “heritage” cannot succeed. There was no error of law involved for the reasons which follow.

[100] First, in my view, it is artificial to attempt to segregate or quarantine the various Part 2 considerations in every case. Matters such as landscape, heritage and amenity are all values which, to a greater or lesser extent, are shared and their consideration must, inevitably, to some extent overlap when examining the value and importance to be ascribed to them. In the present case heritage values and amenity values are inevitably linked. The Environment Court, in its assessment, made it clear that the existing landscape characteristic such as limited site coverage, generous setbacks and low fences, operated to enhance the amenity value of the area and assisted the public’s appreciation of St Paul’s Church and the historic events which

[101] The difficulty, if not artificiality, of an assessment which completely segregates the factors requiring consideration is illustrated by Mr Brown’s evidence where he said:⁶¹

Once cannot, therefore, address amenity without regard to the locality’s heritage or vice versa. Consequently, I don’t see my assessment of the area as some sort of double counting: it simply acknowledges an important inter- relationship.

[102] The Environment Court’s approach in the present case parallels that adopted by that Court in Oriental Parade (Clyde Quay) Planning Society and Waterfront Watch Inc where that Court, in its balancing of the need to manage use and development with the protection of natural and physical resources, concluded that the proposed development of the surroundings of protected heritage can have a detrimental effect on the amenity values of the site and the public’s perception and appreciation of the heritage values. In Oriental Parade (Clyde Quay) Planning Society the Court placed emphasis on the importance of sight lines to the monastery and the effect which a 30 metre height limit on Oriental Parade might have on the green podium on which the monastery sits and the open space “frame” for the

determined that the limitations on development imposed by PC12 would help retain sight lines into St Paul’s Church. Dr Gilling’s evidence on this point is worthy of repeating. He said:⁶³

Should the Paihia Mission site be lost to view, it is quite possible, even probable, that a potentially distorted picture of history will result, based largely on what may appear today as the most significant old buildings preserved in other places of the Far North, simply because through accidents of construction or location they have survived this long. A more complete and therefore accurate understanding cannot be gained without reference to a more embedded, less immediately visible and accessible, but arguably more important history, requiring more subtle forms of recognition to enable and even encourage continued study and understanding of the past it represents.

the need to maintain sight lines in order to appreciate the area’s heritage values:⁶⁴

We are not confident that the corresponding Commercial Zone ... would be the most appropriate way of dealing with these matters in order to maintain sight lines into and from St Paul’s and a level of amenity commensurate with the appreciation of its heritage values.

[104] It follows that I do not accept that the concepts of landscape and amenity value were improperly used by the Environment Court to inflate the heritage value of the PMHA and that there was no conflation of the notions of “distinctive landscape” with “heritage”. Indeed, the Environment Court appears to have been assiduous in its treatment of the requirement of separation in its judgment.

[105] Finally, I need to consider whether the Environment Court placed insufficient weight on the economic effects of the restrictions imposed by PC12. The appellants’ submission is that the statutory purpose of sustainable management includes enabling communities, and those living within them, to promote their economic well-being. That is plain from the wording of ss 5, 6, 7 and other provisions within the RMA.

[106] Questions of weight, as earlier noted in this judgment, are not normally capable of examination on an appeal on a question of law unless the appeal Court concludes the decision maker failed to take into account a relevant consideration.

[107] A reading of the Environment Court’s judgment reveals that it did, expressly, take into account the economic effects of PC12 but determined that the relevant matters required to be considered in terms of ss 6 and 7 weighed against development of the PMHA under the commercial zone rules.

[108] For example, in the judgment under the heading, “Economic effects of the various planning regimes,”⁶⁵the Environment Court specifically dealt with

economic assessment to quantify the losses both to the landowners through lost development opportunity and to the community in terms of reduced ability to provide more extensive tourist-related facilities in the PMHA. The Environment Court made particular reference to the evidence of Mr Putt, a town planner called by the appellants, who stated there had been no assessment of the benefits and costs of the policies and methods produced by PC12 compared to the benefits and costs for the community at large from the operation over this land of unfettered commercial- zoned provisions.

[109] The Environment Court recorded that no party had brought to the case such an analysis, adding, however, that common sense would dictate that the range of development opportunities available under the provisions of PC12 would be somewhat less than if development were allowed in accordance with commercial zone rules. The Environment Court referred to evidence called by the appellants from Mr Rendell, the owner of the “Bistro 40” site who was also a Paihia real estate agent. His evidence was that there was a shortage of commercial land in Paihia for the future development of retail and tourist accommodation buildings. He noted, in particular, the lack of vacant retail space on the Paihia waterfront. He also referred to a perceived lack of good quality, high-end accommodation in Paihia expressing the view that the appropriate place for such accommodation was on the waterfront and, in this context, the land subject to PC12 was important for the future development of tourist facilities in Paihia but would be seriously constrained by the restrictions of PC12.

[110] The Environment Court also referred to the evidence of Professor Milne, a tourist expert, who was of the opinion that the area of most demand was not necessarily for a large-scale five-star property but rather for boutique style high-end accommodation. The Environment Court recorded Mr Putt’s concession that under PC12, as proposed by the Council, development of this sort could occur on the subject land.

[111] The Environment Court explicitly dealt with the question of the economic effects. It accepted that the landowners would not receive as high a return from the land as they would if commercial zoning only applied, noting, despite this, that there

was no evidence on which the Court could estimate the extent of that loss. The Environment Court also recognised that the land would service fewer visitors and so the input from it into the wider community would be reduced, again by “an unquantifiable amount”.⁶⁶

[112] The Environment Court then went on to balance those losses against any gain from increased “heritage tourism” which could result from the enhanced protection to the heritage of the site afforded by the proposed plan change. The Environment Court referred to the evidence of Professor Milne whose opinion was that a more diversified tourism offering, including better use of the region’s heritage resources, had the potential to extend the “shoulder-season” on either side of the summer peak. Professor Milne also referred to research by the Travel Industry Association of America which showed that, on average, visitors to historic sites stayed longer in destinations and spent more money than other types of tourist. That tendency has been confirmed by recent research from the New Zealand Tourism Research Institute in both New Zealand and the South Pacific.

[113] The Environment Court summarised the issue of balancing the economic effects with the heritage and amenity values in the following way:⁶⁷

We summarise our findings on the effects of the various planning regimes proposed, in the following way. The PMHA covers a site where important events in the early period of European colonisation occurred. It contains few remnants of that era, but the open, low-density development that has occurred so far still enables a visitor to get a sense of place and the context of the remaining structures of the period. That would change completely if a Commercial Zone enabled by the rules favoured by Guyco was imposed on the site. However, PC12 in its present form would reduce the range and flexibility of commercial activities on this site and would reduce, to an extent we are unable to quantify with precision, the level of contribution the site would make to the provision of tourist-related facilities in the area. The extent to which this reduction would be offset by the effect of visitors exploring the site’s historic heritage features also remains uncertain, but it is likely to be less to the extent that development in accordance with PC12 would reduce the ability of people to interpret the area and its history.

_{[114] For these reasons I am satisfied that this ground of appeal must
also fail.}

[115] Mr Cavanagh accepts that the success of this ground of appeal is inextricably linked to the success of the first two grounds of appeal. If the appellants are unsuccessful in relation to those grounds the argument in relation to the setback designation must consequentially fail. As Mr Cavanagh conceded:

If the setback control is justified for the protection of heritage values then it is a legitimate planning control.

[116] Having regard to the findings I have made in relation to the first two grounds of appeal it is not necessary for me to consider the question of setback.

[118] The respondent and the Paihia Heritage Precinct Society Inc (s 301 party) are entitled to costs. Costs are awarded on a 2B basis with disbursements as fixed by the

High Court of New Zealand Decisions

TW Reed Estate v Far North District Council [2014] NZHC 3328 (18 December 2014)