AHUAREKA TRUSTEES (NO 2) LIMITED v AUCKLAND COUNCIL [2020] NZCA 191

AHUAREKA TRUSTEES (NO 2) LIMITED v AUCKLAND COUNCIL [2020] NZCA 191 [28 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA19/2020[2020] NZCA 191BETWEEN AHUAREKA TRUSTEES (NO 2)LIMITEDApplicantAND AUCKLAND COUNCILRespondentCourt: Miller and Courtney JJCounsel: AGW Webb for ApplicantM C Allan for RespondentJudgment:(On the papers)28 May 2020 at 12.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] Ahuareka Trustees (No 2) Ltd applied to the Auckland Council for resourceconsent for land use. The proposal was to establish a village-style developmentcomprising 186 dwellings (stand-alone, lofts, townhouses and apartments) andancillary buildings together with trade and retail buildings, a community hall andcarpark on approximately 16 hectares on the Whitford-Maraetai Road in eastAuckland. The application was declined.[2] Ahuareka appealed to the Environment Court, which upheld the Council'sdecision.1 Ahuareka then appealed to the High Court under s 299 of the ResourceManagement Act 1991 (the RMA) on a question of law. Hinton J dismissed theappeal.2 Ahuareka has applied for leave to bring a second appeal to this Court. Byvirtue of s 308 of the RMA the relevant leave provision is s 303(2) of the CriminalProcedure Act 2011. That provision precludes leave being granted unless the Court issatisfied that the appeal involves a matter of general or public importance or that amiscarriage of justice may have occurred, or may occur unless the appeal is heard.[3] Ahuareka proposes three grounds of appeal, which we discuss in more detaillater. It identifies the following questions of law as arising:(a) Did the High Court err as a matter of law in approving theEnvironment Court's approach to interpreting and applying theprovisions of the Auckland Unitary Plan (AUP) in assessingapplications for residential developments outside the Rural UrbanBoundary (RUB)?(b) Did the High Court err as a matter of law by failing to recognise andresolve the conflict arising from different approaches by differentdivisions of the Environment Court in assessing applications forresidential developments outside the RUB?(c) Did the High Court err as a matter of law by agreeing that theEnvironment Court can simply ignore substantive environmentalenhancement proposals offered in support of an application for resourceconsent because the implementation was uncertain or was the correctapproach for the Environment Court to still consider the environmentalenhancement and resolve any issues of uncertainty simply by placingthe onus of providing it on an applicant as a condition of consent?1 Ahuareka Trustees (No. 2) Ltd v Auckland Council [2017] NZEnvC 205 [Environment CourtDecision]..2 Ahuareka Trustees (No. 2) Ltd v Auckland Council [2019] NZHC 3142 [High Court Decision].[4] Ahuareka asserts that determination of these questions would clarify theinterpretation of the AUP, which is a matter of public importance in terms ofsubsequent applications for residential development outside the RUB. It also says thatif these questions are not determined a miscarriage of justice may occur because itsapplication will have been declined on the basis of an unlawful interpretation andapplication of the AUP and other such applications will be similarly prejudiced.[5] Auckland Council opposes the application on the grounds that no errors of lawhave been identified and the statutory criteria for granting leave are not met. It submitsthere is no need for this Court to provide further clarity as the language of the AUP isclear and the Environment Court is not applying the law inconsistently.Application for leaveThe first proposed ground of appeal[6] Ahuareka's application for a land use consent was subject to the AUP, whichprovides for both regional and district planning in the greater Auckland region. Underthe AUP, the RUB demarcates urban zoned land from rural zoned land. The generaleffect of the AUP is to require developments that are urban in character to be containedwithin the RUB.[7] The proposed development site lies outside the RUB, in a rural area known asthe Whitford Precinct (Sub-precinct B), which is a Countryside Living Zone (CLZ).Residential development can be undertaken in this area provided the proposeddevelopment maintains and enhances the rural character of the area and avoids anurban form and character.[8] Ahuareka's first proposed ground of appeal centres on theEnvironment Court's approach to determining whether the proposed development wasurban in character, in particular, the Court's response to the Regional Policy Statement(RPS) in the AUP compared to the district planning provisions. Ahuareka wishes toargue that the Judge erred by:(a) endorsing the approach taken by the Environment Court to theassessment of Ahuareka's discretionary application for a residentialdevelopment outside the RUB, in particular:(i) the interpretation of the AUP in the context of an application forresidential developments outside the RUB, particularly theinterface between the RPS provisions; Chapters B2 (UrbanGrowth and Form), B8 (Coastal Environment) and B9 (RuralEnvironment); and the objectives, plans and policies containedin Chapter H19 of the district plan (Rural Zones);(ii) using criteria for determining whether the proposeddevelopment was an urban development that were not stated inthe AUP and/or failing to give sufficient weight to the otherrelevant provisions of the AUP.[9] Ahuareka seeks to argue that a proper assessment of the application shouldhave started with consideration of the relevant district plan provisions including theWhitford Precinct and the CLZ or, at least, have included a substantive assessment ofthose provisions because they are the "working" provisions of the AUP and the extentand form of residential development outside the RUB is defined by those provisions,relevantly Chapters H19 and I. Ahuareka asserts that the Environment Court wronglyconducted its assessment only against the provisions of the RPS and failed to considerthe district plan provisions adequately or at all. The specific complaints are that theEnvironment Court should have determined the issue of urbanisation by reference tothe non-residential buildings and overlooked the fact that residential developmentoutside the RUB did not necessarily constitute urban development.[10] The approach taken by the Environment Court is said to be contrary tostatements made by this Court in R J Davidson Family Trust v Marlborough DistrictCouncil to the effect that the assessment of applications for resource consent requiredconsideration of the objectives and policies of the RMA as a whole.33 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR283 at [73], citing Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [25].[11] It is evident from the Environment Court's decision that it undertook anextensive consideration of the competing submissions on the question of whatconstituted urbanisation, including specifically in the context of the CLZ and theWhitford Precinct. The High Court Judge addressed the Environment Court'sconsideration of this issue, including the significance of Chapter H19 of the AUP andwas satisfied that it made no error of law in its approach. She considered that theEnvironment Court was entitled to give the weight it did to the RPS and that it hadplaced appropriate weight on the district policies in the context of this case. She didnot accept that the policies provided an exclusion from Chapter B2 of the AUP.4[12] The Auckland Council argues that the Environment Court's approach toassessment was consistent with s 104 of the RMA which specifies the Court, inconsidering an application for resource consent, must have regard to the RPS found inChapter B2 of the Unitary Plan. It says that the proposed ground would essentiallyrelitigate the argument in the Environment Court.[13] Although misapplication of the law could reach the threshold required forleave, there is no apparent error in the High Court decision that would justify a secondappeal. Ahuareka wishes to rerun arguments that have been fully considered twice.We are not satisfied that any matter of general or public importance arises nor that amiscarriage of justice will occur if a second appeal is not allowed.Second proposed ground of appeal[14] Ahuareka says that the Environment Court's decision resulted in aninconsistent approach within divisions of the Environment Court to the assessment ofresidential development outside the RUB and that the Judge erred in failing to resolvethat conflict. This issue is raised in reliance on the Environment Court's decision inKumeu Property Limited v Auckland Council.5[15] Kumeu Property, which concerned a proposed supported care facility in a ruralarea within a CLZ, was decided after the Environment Court's decision in this case.4 High Court Decision, above n 2, at [57]–[59].5 Kumeu Property Ltd v Auckland Council [2018] NZEnvC 27.In the High Court, Ahuareka argued that Kumeu Property had determined thatresidential development could occur anywhere within the Auckland region, includingoutside the RUB, depending on the objectives and policies applying to the particularlocation and that, in deciding Ahuareka, the Environment Court failed to correctlyassess the proposal before it.[16] The Judge did not accept that the two decisions disclosed an inconsistentapproach. Not only did Kumeu Property involve a significantly different proposal butthe Court in Kumeu Property had before it the decision under appeal in this case andexplicitly distinguished it.6 In our view there is no basis on which to argue that theJudge's approach to the Kumeu Property decision discloses an error that would justifya second appeal.The third proposed ground of appeal[17] The AUP contains requirements for environmental maintenance andenhancement within Sub-precinct B. The Environment Court set out these provisionsin detail. At the Council stage, Ahuareka's proposal included enhancement plantingwithin the Sub-precinct. Before the Environment Court Ahuareka made a furtherenvironmental enhancement proposal, the Waikopua project, that would see ecologicalrestoration work undertaken to an area outside Sub-precinct B, being two islands inthe creek forming one of the boundaries of the subject area. The work would beundertaken in conjunction with local iwi. The proposal was, however, not finalised atthe time of the hearing before the Environment Court.[18] The proposed enhancement work within Sub-precinct B was insufficient tosatisfy the requirements for that area. The Environment Court considered that theproposal would leave a massive "shortfall" compared to what was required.7 It wasnot prepared to treat the Waikopua project as part of the enhancement project for theproposed development because there was an insufficient basis on which to concludethat effect would ultimately be given to it.86 High Court Decision, above n 2, at [55]–[56].7 Environment Court Decision, above n 1, at [100].8 At [99].[19] In the High Court Ahuareka argued that the Environment Court had wronglydismissed the proposed enhancement work involved in the Waikopua project on thebasis that it might not occur. The Judge reviewed the Environment Court's decisionand concluded that the Court had identified and considered the merits of the proposedenhancement work and was entitled to find that, whatever the merits of that proposal,it still would not satisfy the requirements for enhancement work withinSub-precinct B.9[20] Ahuareka wishes to argue on appeal that, as a matter of public interest,applicants are entitled to have conditions offered by them assessed on the basis thatthey can be implemented as part of the overall assessment of an application, unless itis obvious that the condition could never be fulfilled.[21] There is no apparent error by the Environment Court in assessing theWaikopua project or by the High Court in its review of that aspect. It is significantthat both courts took the view that even if the proposal had been more certain therequirements for enhancement work within Sub-precinct B would still not have beensatisfied. In these circumstances we accept the Auckland Council's submission thatthis aspect of the case is specific to circumstances of Ahuareka's proposeddevelopment and does not raise any issue of general or public importance. Nor, giventhe extensive consideration of the issue in both the Environment Court and the HighCourt, does any possibility of a miscarriage of justice arise.Result[22] The application for leave to bring a second appeal is declined.Solicitors:Burton & Co, Auckland for ApplicantBrookfields Lawyers, Auckland for Respondent9 High Court Decision, above n 2, at [62]–[67].