GOCK v AUCKLAND COUNCIL [2019] NZHC 276

GOCK v AUCKLAND COUNCIL [2019] NZHC 276 [27 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-866[2019] NZHC 276IN THE MATTER of the Local Government (AucklandTransitional Provisions) Act 2010 and theResource Management Act 1991BETWEEN JOE GOCK AND FAY GOCKAppellantsAND AUCKLAND COUNCILRespondentAND.continued over pageHearing: 7, 8, 9 and 19 November 2018Further submissions 26 November and 3 December 2018Appearances: A Webb for the AppellantsH J Ash and T R Fischer for the RespondentR Enright for Auckland Volcanic Cones Society Inc (InterestedParty)Judgment: 27 February 2019INTERIM JUDGMENT OF MUIR JThis judgment was delivered by me on Wednesday 27 February 2019 at 3.00 pm pursuant to Rule 11.5of the High Court Rules.Registrar/Deputy Registrar Date:.Counsel:A Webb, Barrister, AucklandR Enright, Barrister, Auckland (for Auckland Volcanic Cones SocietySolicitors:Wilson McKay, RemueraSimpson Grierson, AucklandHaigh Lyon, AucklandIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-923IN THE MATTER of Local Government (AucklandTransitional Provisions) Act 2010 and theResource Management Act 1991BETWEEN JOHN SELF, ADRIANA SELF ANDROGER CLARK as Trustees of SELFFAMILY TRUSTAppellantsAND AUCKLAND COUNCILRespondentTABLE OF CONTENTSIntroduction [1]Background and procedural history [5]General background [5]Development of the Auckland Unitary Plan [9]How the case came before this Court [12]Legal framework [18]Statutory provisions [18]Part 2 of the Resource Management Act and King Salmon [23]The requirement to give effect to the Regional Policy Statement [26]Appeals to this Court [28]Grounds of appeal [31]Section 148 of the LGATPA—Scope [34]Discussion [40]Elite and prime soils [66]Background [66]Discussion [77]Outstanding natural features [96]Background [96]Discussion [106](1) Entire volcano or volcanic features [106](2) A blanket ban? [108](3) Did the Environment Court erroneously invoke Policy B8? [114]Structure plan guidelines [128]Background [128]Discussion [138]The Special Purpose—Quarry zoned lands [154]Mana whenua issues [172]Result [202]Introduction[1] These are appeals against a decision of the Environment Court.1[2] The substantive dispute relates to the location of the Rural Urban Boundary(RUB) at Puhinui, west of State Highway 20 on the edge of the Pūkaki-WaokauriCreek. The decision covers two separate but related areas: Crater Hill, most of whichis owned by the Self Family Trust (the SFT); and Pūkaki Peninsula, which is owned,in part, by Mr Joe and Ms Fay Gock (the Gocks). The land is surrounded byhousing/State Highway 1 on one side, and bordered by the Manukau Harbour on theother.[3] The Independent Hearings Panel (the Panel) recommended that the RUBfollow the coastal margin, with the result that both Crater Hill and the PūkakiPeninsula would be on the urban side of the RUB and therefore be identified as suitablefor urbanisation. The Auckland Council (the Council) did not accept the Panel'srecommendation, and in its decision dated 22 July 2016 excluded both areas.[4] The SFT appealed to the Environment Court, which upheld the Council'sdecision. The appellants now appeal to this Court on questions of law.2Background and procedural historyGeneral background[5] Crater Hill and Pūkaki Peninsula are relatively close together, but are notcontiguous: they are separated by two arms of Waokauri Creek and by strips of largeresidential lots and open space between those arms. Crater Hill is the eastern of thetwo sites, and covers approximately 100 hectares. Pūkaki Peninsula is of similar size.Both sites are treated in the Council's Auckland Unitary Plan (AUP) as a sub-precinctof a special precinct called the Puhinui Peninsula.1 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323.2 As they are entitled to under ss 156(4) of the Local Government (Auckland TransitionalProvisions) Act 2010 and 299 of Resource Management Act 1991 (RMA).[6] The AUP is the principle planning document for Auckland. It is now operativein part. It describes how the Auckland region's natural and physical resources will bemanaged while enabling growth and development to meet the needs of Auckland'sexpanding population. It is a complex document, and includes a regional policystatement (RPS) comprising multiple chapters, a regional plan and a district plan forAuckland.3[7] The RPS includes the objective that urban growth ought to occur in a quality,compact urban form.4 A 'compact urban form' is described in the plan as one havingclear boundaries, within which residential and commercial areas are relatively closetogether.5 The concept is central to the RPS.[8] The RUB is a "district plan use rule".6 In plain English, as explained by theEnvironment Court, it is simply "a line on a map".7 It is intended to provide a cleardelineation between urban and rural areas, and define the maximum extent of urbandevelopment in Auckland until 2040. It is a method of achieving the goal of a compacturban form.Development of the Auckland Unitary Plan[9] The process for the development of the AUP is described in s 115 of the LocalGovernment (Auckland Transitional Provisions) Act 2010 (LGATPA):115 Overview of this Part(1) This Part sets out the following process for the preparation of the firstAuckland combined plan:(a) the Auckland Council prepares a proposed plan for Aucklandthat meets the requirements of a regional policy statement, aregional plan, including a regional coastal plan, and a districtplan:(b) the plan is prepared in accordance with this Part and, to theextent provided for by this Part, the RMA:3 Local Government (Auckland Transitional Provisions) Act 2010, s 122.4 Auckland Unitary Plan, objective B2.2.1(1).5 Auckland Unitary Plan, Chapter B2.9.6 A phrase characteristic of the unfortunately opaque language which appears to have infected manyof the planning documents I have been required to consider.7 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [17].(c) the plan is not required to include district plan provisions inrelation to the Hauraki Gulf Islands (the district planprovisions of the former Auckland City Council in relation tothose islands will become operative as part of an existingseparate process):(d) the Council prepares its reports on the proposed plan undersections 32 and 165H(1A) of the RMA and makes themavailable for public inspection, and provides the reports to theMinistry for the Environment for audit:(e) the Council notifies the proposed plan and calls forsubmissions:(f) the Council notifies a summary of submissions and calls forfurther submissions:(g) the Council then forwards all relevant information obtainedup to this point to a specialist Hearings Panel appointed by theMinister for the Environment and the Minister ofConservation:(h) the Hearings Panel holds a Hearing into submissions on theproposed plan by means of hearing sessions conducted inaccordance with the procedural and other requirements of thisPart:(i) the Council must attend the hearing sessions and otherwiseassist the Hearings Panel with the task of the Hearing:(j) no later than 50 working days before the expiry of 3 yearsfrom the date the Council notifies the proposed plan, theHearings Panel must make recommendations to the Councilon the proposed plan (unless that period is extended by theMinister for the Environment by up to 1 year):(ja) the Hearings Panel may make recommendations to theCouncil in respect of a particular topic once it has finishedhearing submissions on that topic[10] Once the Panel makes its recommendations to the Council, the Council mustdecide whether to accept or reject each such recommendation. Then, for each rejectedrecommendation, it must decide an alternative solution, which may or may not includeelements of both the proposed plan as notified and the Panel's recommendation inrespect of that part of the proposed plan, but must be within the scope of thesubmissions.88 Local Government (Auckland Transitional Provisions) Act 2010, s 148(1). I note theinterpretation of this particular requirement is disputed in this appeal.[11] Following the Council's decision and assuming the Panel's recommendation isrejected, a person who made a submission on the proposed plan may appeal to theEnvironment Court. The appeal must be in respect of a provision or matter relating tothe proposed plan that the person addressed in their submission, and in relation towhich the Council rejected a recommendation of the Panel and decided an alternativesolution.9 A decision of the Environment Court on such an appeal may be furtherappealed on questions of law to the High Court.10How the case came before this Court[12] The AUP started life as the Proposed Auckland Unitary Plan (PAUP), whichidentified the subject areas as remaining outside the RUB. The SFT was the onlylandowner to make a submission in that respect. It sought an amendment to the RUB,relocating it around the coastline and bringing Crater Hill within it.[13] The Panel recommended to the Council that Pūkaki Peninsula and Crater Hillbe included within the RUB and rezoned accordingly.[14] The Council rejected this recommendation in favour of retaining the boundaryin its original location together with existing Rural Production zoning.[15] The SFT appealed the Council's decision to the Environment Court. It soughtto set it aside and reinstate the Panel's recommendations. But the terms of its appealwere wide enough to cover the Pūkaki Peninsula, so the Gocks and a Mr Edwardsjoined the appeal as s 274 parties.11 Both own land on the Peninsula. Mr Edwards isno longer a party.[16] The Environment Court concluded that the Council was correct to reject thePanel's recommendations. It said:129 Section 156(1).10 Section 156(4), and Resource Management Act 1991, s 299.11 Resource Management Act 1991, s 274.12 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [538].Standing back and looking at all relevant considerations, properly weighted,we consider the Auckland Council drew the RUB in the correct place so as toexclude the Pūkaki Peninsula and Crater Hill. Its decision should beconfirmed as creating an appropriate strong defensible boundary in this area.[17] Under s 156(4) of the LGATPA, the Environment Court was required to treatthe appeal as if it were a hearing under cl 15 of sch 1 to the Resource Management Act1991 (RMA). As a result, s 299 of the RMA applies, which allows a party to aproceeding before the Environment Court to appeal to this Court against any decision,report or recommendation on a question of law.Legal frameworkStatutory provisions[18] The matters in dispute before the Environment Court—the location of theRUB, zonings and precinct provisions for the subject land—are all "district planmethods". The statutory tests for a district plan therefore apply.[19] The appeal is governed by the RMA (incorporating the Resource ManagementAmendment Act 2013). The Resource Legislation Amendment Act 2017 (RLAA)received the royal assent on 18 April 2017. However, the transitional provisions incl 13, sch 2 of that Act provide that where, prior to the commencement date a proposedplan has been publicly notified but has not proceeded to the stage at which no furtherappeal is possible, the proposed plan must be determined as if the RLAA had not beenenacted.[20] For the purposes of this appeal the relevant statutory considerations whenconsidering the contents of a district plan are therefore those set out in the un-amendedversions of ss 31, 32 and 72–77D of the (un-amended) RMA.[21] To summarise, the relevant factors include whether district plan provisions:(a) are designed to accord with and assist the Council to carry out itsfunctions, so as to achieve the purpose of the Act; 1313 Resource Management Act 1991, ss 31 and 74(1)(a).(b) are in accordance with any regulations (including nationalenvironmental standards);14(c) give effect to any national policy statement or the New Zealand CoastalPolicy Statement;15(d) give effect to the RPS;16(e) are "not inconsistent" with an operative regional plan for any matterspecified in section 30(1),17 and have regard to any proposed regionalplan on any matter of regional significance;18 and(f) have regard to any relevant management plans and strategies underother Acts and to any relevant entry in the New Zealand Heritage Liststo the extent their content has a bearing on the resource managementissues of the region.19[22] Under s 32 of the RMA, an "evaluation report", which for present purposesincludes a decision of the Environment Court,20 must examine whether the objectivesof the proposal being evaluated are the most appropriate way to achieve the purposeof the Act. It must also examine whether the provisions in the proposal are the mostappropriate way to achieve the objectives having regard to other reasonablypracticable options for doing so and in light of their efficiency and effectiveness inachieving that purpose.21Part 2 of the Resource Management Act and King Salmon[23] Part 2 of the RMA contains the purposes and principles of the Act. InEnvironmental Defence Society v New Zealand King Salmon the Supreme Court14 Section 74(1)(f).15 Section 75(3).16 Section 75(3)(c).17 Section 75(4).18 Section 74(2)(a)(ii)19 Section 74(2)(b).20 Section 290(1).21 Section 32(1)(b).considered the relationship between the New Zealand Coastal Policy Statement(NZCPS) and Part 2 of the Act.22[24] It held that the NZCPS gives substance to the provisions of Part 2 in relationto the coastal environment. In principle, by giving effect to the NZCPS, a regionalcouncil is necessarily acting in accordance with Part 2 and there is no need to referback to the Part when determining a plan change.23 But the Supreme Court identifiedthree exceptions where reference could be made to Part 2: invalidity of the NZCPS,or any part of it; instances where the NZCPS does not "cover a field"; or where thereis uncertainty as to the meaning of particular policies within the NZCPS.24[25] Under the principles established in King Salmon, therefore, to the extent thearea subject to the appeal is within the coastal environment, Part 2 of the RMA shouldnot be referred to because the NZCPS applies and none of the three exceptions arerelevant.The requirement to give effect to the Regional Policy Statement[26] Section 75(3) of the RMA requires the Environment Court to give effect to theNZCPS, any national policy statement, and any RPS. The Supreme Court in KingSalmon held that "give effect to" means simply to implement.25 The Supreme Courtfurther commented:[91] We acknowledge that the scheme of the RMA does give subordinatedecision-makers considerable flexibility and scope for choice. This isreflected in the NZCPS, which is formulated in a way that allows regionalcouncils flexibility in implementing its objectives and policies in theirregional coastal policy statements and plans. Many of the policies are framedin terms that provide flexibility and, apart from that, the specific methods andrules to implement the objectives and policies of the NZCPS in particularregions must be determined by regional councils. But the fact that the RMAand the NZCPS allow regional and district councils scope for choice does notmean, of course, that the scope is infinite. The requirement to "give effect to"the NZCPS is intended to constrain decision-makers.22 Environmental Defence Society v New Zealand King Salmon [2014] NZSC 38, [2014] 1 NZLR593.23 At [85].24 At [88].25 At [77].[27] The Supreme Court also held that the requirement to give effect to a policy thatis framed in a specific and unqualified way may be more prescriptive than arequirement to give effect to a policy that is worded at a higher level of abstraction.26Where, therefore, policies are expressed in clearly directive terms (e.g. "to protect" or"to avoid"), a decision-maker may have no option but to implement them.27Appeals to this Court[28] Appeals to this Court from the Environment Court are governed by ss 156(4)of the LGATPA and 299 of RMA. Such appeals are confined to questions of law.28The onus of establishing any errors of law rests on the appellant.29[29] This Court will only interfere with a decision of the Environment Court if itcan be established that the Environment Court did one of the following:30(a) applied the wrong test;(b) came to a conclusion without evidence or one to which, on theevidence, it could not reasonably have come;(c) took into account matters that it should not have taken into account; or(d) failed to take into account matters that it should have taken intoaccount.[30] The weight to be afforded to relevant considerations is a question solely for theEnvironment Court, and is not open to challenge on appeal.31 This Court will not,therefore, re-examine the merits of a case under the pretext of considering questions26 At [80].27 At [80] and [129]–[130].28 Resource Management Act 1991, s 299(1).29 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC).30 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 12.31 Moriarty v North Shore City Council [1994] NZRMA 433 (HC).of law.32 And where the Environment Court has made a qualifying error, this Courtwill not grant relief unless the error is one which has materially affected the result.33Grounds of appeal[31] The SFT and the Gocks say the Environment Court erred in the followingways:(a) in its interpretation of s 148 of the LGATPA;(b) in requiring structure planning in the context of a RUBlocation/relocation exercise;(c) in its interpretation and application of policy B2.2.2(j) in relation to theprotection of elite and prime soils;(d) in its interpretation and application of RPS Chapters B4, B7, B8 and D10 in relation to outstanding natural features and the coastalenvironment;(e) in determining issues relating to Mana Whenua against the weight ofevidence;(f) by failing to discharge its obligations properly under s 32 of the RMA;and(g) as a consequence of the above, in determining that the most appropriate,efficient and effective way of achieving the purpose of the RMA wasto keep Pūkaki Peninsula and Crater Hill outside the RUB.32 Blencraft Manufacturing Co Ltd v Fletcher Development Co Ltd [1974] 1 NZLR 295 (SC); andMurphy v Takapuna City Council HC Auckland M456/88, 7 August 1989.33 Royal Forest and Bird Protection Society Inc v W A Habgood Ltd (1987) 12 NZTPA 76 (HC) at81–82; and BP Oil NZ Ltd v Waitakere City Council [1996] NZRMA 67 (HC).[32] The appellants further submit that the Court made findings that were notsupported by evidence about the effects of development on the Gocks and the SFT'sland.[33] As they were in submissions and argument, I group the appeal points under thefollowing headings:(a) Section 148 of the LGATPA—Scope.(b) Elite and prime soils.(c) Outstanding natural features.(d) Structure Plan Guidelines.(e) The Special Purpose Quarry Zoned lands.(f) Manu Whenua issues.Section 148 of the LGATPA—Scope[34] The appellants allege that the Council (and likewise the Environment Court)did not have jurisdiction to reinstate the RUB promulgated in the PAUP. It says thatthe Environment Court erred in:(a) holding that the relevant statutory provision did not require thatreversion to the PAUP be requested in submissions; and(b) in its alternative finding that such request was nevertheless made.[35] The relevant statutory provision is s 148(1) of the LGATPA which providesthat, on receipt of the recommendations of the Panel, the Council must —(a) decide whether to accept or reject each recommendation of theHearings Panel; and(b) for each rejected recommendation, decide an alternative solution,which—(i) may or may not include elements of both the proposed plan asnotified and the Panel's recommendation in respect of that partof the proposed plan; but(ii) must be within the scope of the submissions.[36] The Environment Court interpreted s 148 as follows:[25] There are two components to section 148(1)(b): subparagraph (i)provides that an alternative solution may or may not include elementsof both the proposed plan and the Hearings Panel's recommendation.In this case the Council's alternative solution for the location of theRUB and consequential zoning was to revert to the notified version ofthe plan. Thus the alternative solution clearly satisfies subparagraph148(1)(b)(i) of the LGATPA.[26] Subparagraph (ii) requires that the alternative must be within thescope of submissions. The second subparagraph is introduced by"but" for emphasis, although its logical meaning is "and". We acceptMs Ash's submission that the word "but" when used at the end ofsubsection (1)(b)(i) is conjunctive. It is incorrect to read therequirement for alternative solutions to be "within the scope of thesubmissions" as requiring the alternative solutions be "requested insubmissions". We hold that the Council's alternative solution, torevert generally to the notified PAUP, therefore also comes withinsubparagraph 148(1)(b)(ii).(Footnotes omitted)[37] It went on to hold:34In any event there are a number of submissions which effectively seek the"alternative solution" decided by the Council when it rejected the [Panel's]recommendations.[38] The appellants submit that the Environment Court was incorrect to read theword "but" as "and". However, little in my view turns on that point. The provisionsof s 148(1)(b)(ii) are mandatory and cumulative on those in (i). Whether the "but" isappropriately considered an "and" seems to me to be a reasonably arid inquiry.34 At [27].[39] More substantively, the appellants argue that the requirement ins 148(1)(b)(ii)—for the alternative solutions to be "within the scope of thesubmissions" should be interpreted as meaning "requested in submissions"—the resultbeing that both the Council and the Environment Court only had jurisdiction to decideon an "alternative solution" that a submitter had requested in a submission on thePAUP. They say that "the orthodox position as to scope of submission" is whether therelief was "reasonably and fairly raised" via submission and that none of thesubmissions before the Panel contemplated reinstatement of the original RUB.Discussion[40] At the outset, I accept as appropriate Ms Ash's concession that, in the contextof any notification and submission process, it is the written submission lodged inrespect of the relevant proposal that is key and not the oral submissions that weresubsequently presented, in this case, to the Panel.35 That is for essentially naturaljustice reasons given that, otherwise, as Wylie J noted in General Distributors Limitedv Waipa District Council:36 the plan could end up in a form which could not reasonably have beenanticipated resulting in potential unfairness.[41] However, it will be readily apparent that if this is the underlying rationale itwould not preclude reversion to (in this case) the original PAUP as that was already aproposal in the public domain.[42] Consistent with that position, the Council argues that the word "scope"suggests that there must be a starting reference point, in this case the notified PAUP.It says that on receipt of the recommendations from the Panel, the Council had a rangeof options open to it, from the notified PAUP to the relief requested in submissions, orsomewhere in between. It says that this is consistent with the ordinary requirementsin relation to scope that apply when a Council notifies a plan change or review underthe first schedule to the RMA. And, it says, the only additional limitation whichapplied to the Council's decision making in respect of the PAUP (other than the 20-35 Including by the Council in support of the RUB in the PAUP.36 General Distributors Limited v Waipa District Council (2008) 15 ELRNZ 59 (HC) at [55].working day time limitation) was the requirement under s 148(2)(b) of the LGATPAthat the Council not consider any submission, or other evidence, unless it had beenmade available to the Panel prior to the issue of its recommendations.[43] The Council defines these "ordinary requirements", in terms which I accept, asfollows:(a) The paramount test is whether any amendment made to the plan asnotified goes beyond what is reasonably and fairly raised insubmissions on the plan.37(b) That assessment should be approached in a realistic workable fashion.38(c) A submission must first raise a relevant resource management issue,and then any decision requested must fairly and reasonably fall withinthe general scope of the original submission, or the proposed plan asnotified, or somewhere in between.39(d) The approach requires that the whole relief package detailed insubmissions be considered.40(e) Consequential changes that logically arise from the grant of reliefrequested and submissions lodged are permissible, provided they arereasonably foreseeable.4137 Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 (HC) at171.38 Royal Forest & Bird Protection Society Inc v Southland District Council [1997] NZRMA 408(HC) at 413.39 Re an application by Vivid Holdings Ltd [1999] NZRMA 467 (EnvC) at [19]. See also The Churchof Jesus Christ Latter Day Saints Trust Board v Hamilton City Council [2015] NZEnvC 166 at[19].40 Shaw v Selwyn District Council [2001] 2 NZLR 277 (HC) at [31].41 Westfield (New Zealand) Ltd v Hamilton City Council [2004] NZRMA 556 (HC) at [73]–[77].(f) Such changes can extend to consequential rule changes followingagreed relief regarding policy changes, provided the changes arereasonably foreseeable.42(g) There is an implied jurisdiction to make consequential amendments torules following changes to objectives and policies on the principle thatregional and district plans have an internal hierarchical structure.43(h) In the case of a combined plan being developed contemporaneously,submissions on higher order provisions inevitably bear on the directionof lower order objectives. Objectives, policies, methods and rulesshould be promulgated with regard to all topically relevantsubmissions.44[44] I accept as one of the key principles emerging from the various decisionsfootnoted above that any amendment must be fairly and reasonably within a range ofoptions between what was originally notified and the relief requested in individualsubmissions.[45] It was almost precisely in these terms that the position was put in Re anapplication by Vivid Holdings Ltd:45 any decision of the Council, or requested of the Environment Court in areference [that is on appeal], must be:(a) Fairly and reasonably within the general scope of:(i) an original submission; or(ii) the proposed plan as notified; or(iii) somewhere in between.provided that42 The Church of Jesus Christ of Latter Day Saints Trust Board v Hamilton City Council [2015]NZEnvC 166 at [47].43 Clark Fortune McDonald & Associates v Queenstown Lakes District Council (No 2) C89/02,24 July 2003 at [17].44 Albany North Landowners v Auckland Council [2017] NZHC 138 at [114].45 Re an application by Vivid Holdings Ltd (1999) 5 ELRNZ 264 (EnvC) at 271 (footnotes omitted).(b) the summary of the relevant submissions was fair and accurate andnot misleading.[46] In Albany North Landowners v Auckland Council the High Court recognisedthat Part 4 of the LGATPA (in which s 148 appears) did not envisage a departure fromthis body of case law.46[47] In my view the Environment Court's finding that the Council's alternativesolution (namely to revert generally to the notified PAUP) was within the scope ofsubmissions for the purposes of s 148(1)(b)(ii) is consistent with such principles andfulfils the underlying natural justice imperative. I cannot therefore accept theappellant's argument that the s 148(1)(b)(ii) reference necessitates a specificsubmission proposing reversion to the notified PAUP.[48] In any event, the Environment Court went on to hold that there were "a numberof submissions which effectively seek the 'alternative solution' decided by the Councilwhen it rejected the Panel's recommendations".47[49] In support of this finding the Council refers to the submissions of each of TeĀkitai Waihoua (Te Ākitai), The Board of Airline Representatives of New Zealand(Inc) (BARNZ), Auckland International Airport Limited (AIA) and New ZealandTransport Agency (NZTA).[50] In its original submission (No 6386) Te Ākitai stated (paragraph 3.2 (11)) thatit generally supported:The location of the Rural Urban Boundary (RUB) in respect of Puhinui andMangere and the zoning of this land as rural production.[51] The schedule to its submission included the following:46 Albany North Landowners v Auckland Council [2017] NZHC 138 at [1148].47 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [27].TOPIC PAUP PROVISIONS/REASONS RELIEF SOUGHTRuralUrbanBoundary• Support for the location of the Rural UrbanBoundary (RUB) as it applies to thePuhinui/Mangere area. This locationreflects the key agreements reached as partof the Puhinui master planning processundertaken in 2013 and the Eastern AccessAgreement and ensures that urbandevelopment of this land will not proceeduntil such a time that sufficient planningwork is undertaken to advise otherwise.• Support and retain the locationof the RUB on the Maps (RUBoverlay) as it applies to thePuhinui/ Mangere area.[52] Te Ākitai also lodged a further submission (FS No 3321) in respect of theoriginal submission by Self Family Trust. In that submission it identified its positionas "oppos[ing] amendment to the RUB at Puhinui to follow the coast line and rezoningfor a range or urban purposes".48 The relief sought in that submission was:To not accept the relief sought by Self Trust unless a collaborative andcomprehensive structure planning process identifies that urban developmentcan occur without having significant cumulative adverse effects on Te Ākitai'scultural values in the Puhinui Peninsula.[53] BARNZ's operative submission was in the following terms:SubNo.Submittername andaddressfor serviceSubmitter'sreliefSupport/OpposeDecisionsought byBARNZReasons3866-1 Self Trust Amend theextent of theRUB toinclude allland alongthe coastlinein Puhinuiarea withinRUB.Oppose Disallowthe wholeof thesubmission.BARNZ considers that amending theRUB as proposed may not be appropriatefor a range of reasons, including inrelation to potential reverse sensitivity,traffic, and air discharge effect. Inaddition, it is considered that a fullstructure planning exercise should beundertaken prior to amending the RUB. Astructure plan is required to assesstransportation and infrastructureconstraints, aircraft and potential futureairport maintenance base noiseconstraints, and environmental andcultural constraints. Comprehensiveanalysis on these constraints has not beenundertaken or made available to date.48 At 19.[54] AIA in turn relevantly submitted:Item Sub #PointSubmitter Decisionsought bysubmitterSupport/OpposeReasons Decisionsought297 3866-1Self Trust Amend theextent of theRUB toinclude allland alongthe coastlinein Puhinuiarea withinRUB.Oppose Auckland Airportconsiders thatamending the RUB asproposed may not beappropriate for a rangeof reasons, includingin relation to potentialreverse sensitivity,traffic, and airdischarge effect. Inaddition, it isconsidered that a fullstructure planningexercise should beundertaken prior toamending the RUB. Astructure plan isrequired to assesstransportation andinfrastructureconstraints, aircraftand potential futureairport maintenancebase noise constraints,and environmental andcultural constraints.Comprehensiveanalysis on theseconstraints has notbe[en] undertaken ormade available to date.AucklandAirport seeksthat thesesubmissionsbe disallowed.[55] And NZTA's submission was in terms:Submittername,addressandCouncilsubmissionnumberPosition RelevantUPProvisionParticularParts of theSubmissionReason for support/oppositionReliefSelf Trust Oppose RuralUrbanBoundary(RUB)Amend RuralUrbanBoundary atPuhinui areashould bebrought intoThe Agency supports theuse of the RUB (inconjunction with structureplans) as a means ofeffectively and efficientlydelivering future growthTheAgencyseeks thatthe wholeof thesubmissionSubmittername,addressandCouncilsubmissionnumberPosition RelevantUPProvisionParticularParts of theSubmissionReason for support/oppositionReliefthe RuralUrbanBoundary)and berezoned for arange ofurbanpurposes.(including aligning theprovision of infrastructurenecessary to support thegrowth). The Agency wasinvolved in the developmentof the proposed RUB, as theState highway network iscritical to providingtransport services to thefuture urban area and theAgency is a co-investor inthe transport system.While it is acknowledgedthat transport was just oneof the criteria used by theCouncil to identify theRUB, the Agency would bevery concerned if the extentof the RUB areas, or FutureUrban Zones, wereincreased significantlywithout the opportunity toconsider the potentialimpact on the national Statehighway network and widertransport system, andwhether the extensionwould increase (or bringforward) the need fortransport investment fromthe National Land TransportFund.bedisallowed.[56] In respect of Te Ākitai's original submission, in which it sought to "retain thelocation of the RUB on the Maps", it is common ground that the Map referred to is thePAUP Rural Urban Boundary Map, identifying both the Puhinui Peninsula and CraterHill as being outside the RUB.[57] Mr Webb relies, however on the observation in the reasons section of thesubmission that:This location reflects the key agreements reached as part of the Puhinui masterplanning process undertaken in 2013.[58] He says that this process, which resulted in a report by the Council's AucklandDevelopment Committee dated 16 October 2014, but which was subsequentlyovertaken by the PAUP, produced a recommendation that Crater Hill in fact beincluded within RUB. He refers to paragraph [32] of the Development Committee'sReport:While it is acknowledged that area B [Crater Hill] is special given the cultural,geological and archaeological values present within this area, it isrecommended that this area be included within the RUB on the basis that theprecinct provisions to be applied to this area will ensure that these importantvalues are not compromised. Any partial movements of the RUB in thislocation will not ensure the defensibility of the RUB line, which is only ableto be secured by moving the line to the coast.[59] Mr Webb submitted therefore that Te Ākitai's position was not one of adamantsupport for the RUB as detailed in the PAUP, and could not therefore be considered abasis for reversion to that proposal.[60] In response, the Council says that there is no evidence of Te Ākitai having, in2013, agreed that Crater Hill should be within the RUB. To the contrary, the samereport of the Auckland Development Committee records its "strong objection" to"alternatives to the holistic protection of the site".[61] In my view Mr Webb's submission therefore lacks an adequate evidentialfoundation. More significantly, however, the relief sought in the Te Ākitai submissionis to retain the location of the RUB in the PAUP. Its subsequent submission does notnegate that but rather serves only to qualify it. I accept the submission of the Councilthat the relief sought in a submission is the best determinant of scope and that TeĀkitai's support of the original RUB location means that the Council's ultimatedecision to reject the recommendation of the Panel was within the "scope ofsubmissions" for the purposes of s 148(b)(ii).[62] The position is even clearer in relation to the BARNZ, AIA and NZTAsubmissions. They each seek decisions in terms that the submission to amend the RUBbe "disallowed". A necessary implication of disallowing the submission is that thenotified RUB (and associated zoning) would be retained.[63] The appellants also argue that the Environment Court was in error by notexpressly benchmarking its assessment of the submissions against the legal test ofwhether reversion to the PAUP was "fairly and reasonably raised" in them.[64] I am unable to accept that submission. Although the Environment Court maynot have referred to the test in these terms, it nevertheless substantively adopted it. Iaccept in that respect Ms Ash's argument that reversion to the notified PAUP was soplainly raised in submission (either directly or by necessary implication from reliefwhich sought that the SFT's original submission be rejected) that it was unnecessaryfor the Court to go further and make express findings in terms of the test. AsWoodhouse J said in Contact Energy Limited v Waikato Regional Council:49[64] Appeals purportedly on points of law not infrequently turn into acontention that the Tribunal did not refer in its decision to a matter of fact orof law in issue in the hearing. That, of itself, is not an error of law [65] There is also no obligation on a Tribunal to record every part of itsreasoning process on the facts or on the law, and notwithstanding the fact thatthe conclusions reached may involve unarticulated rejections of contentionsof witnesses or submissions of parties on the law.[65] For these reasons I do not consider any error of law arises in relation to theEnvironment Court's decision as to scope.Elite and prime soilsBackground[66] The evidence before the Environment Court was that approximately 68 percent of Pūkaki Peninsula and 44 per cent of Crater Hill (the latter assuming de-stoning)comprised either "land containing elite soil" or "land containing prime soil" asrelevantly defined.50[67] In relation to the Pūkaki Peninsula, 37 per cent of the available land wasidentified as elite and 31 per cent prime. In relation to Crater Hill, the area of elitesoils was described by Council's expert, Mr Ford, as "relatively small".49 Contact Energy Limited v Waikato Regional Council (2007) 14 ELRNZ 128 (HC) at [64]–[65].50 At paragraph 4014 of its decision the Environment Court describes "almost all" of the PūkakiPeninsula as including elite or prime soils. This significantly overstates the positon.[68] Land containing elite soils is the most highly versatile and productive land inAuckland. It is well-drained, friable, has well-structured soils, is flat or gentlyundulating and capable of continuous cultivation. Land containing prime soils is landwith only moderate limitations for arable use.51[69] The appellants submit that the Environment Court erred in construction of therelevant provision in the RPS relating to the significance of elite and prime soils in thelocation or relocation of the RUB. Such provision is contained in Chapter B2.2.2(2)(j)and is in the following terms:Ensure the location or any relocation of the Rural Urban Boundary identifiesland suitable for urbanisation in locations that; while (j) avoiding elite soils and avoiding where practicable prime soils whichare significant for their ability to sustain food production.[70] In its recommendations the Panel noted the requirement to "avoid elite soils",but said that:52 this is not an absolute but is in the overall context of the soil's significancefor its ability to sustain food production across the values for which elite soilsare protected.[71] It held that:53.. with the wider and surrounding urbanisation of Puhinui this area iseffectively a rural island whose soils are not significant in terms of their abilityto sustain food production across the versatile range that is associated withelite soils.[72] Despite the fact that the relevant provision in the RPS was itself the product ofthe Panel's processes, the Environment Court adopted a different interpretation. Itconsidered that the phrase "significant for their ability to sustain food production"qualified only the reference to prime soils with the result that, subject to a de minimis51 Auckland Unitary Plan, Chapter J1.4 definitions: "land containing elite soil" and "land containingprime soil".52 Report to Auckland Council Hearing Topics 016,017. Changes to the Rural Urban Boundary:080,081, Rezoning and precincts, Annexure 3 Precincts South at [3.4].53 At [3.4].exception, the location of the RUB was required to avoid elite soils without referenceto their significance in sustaining food production.54[73] Although conceding the protection may not in fact be "absolute",55 theEnvironment Court nevertheless held that the policy of avoidance required that "otheractivities which do not utilise the elite soils not be allowed, which is a strong bottomline".56[74] In coming to that conclusion the Environment Court relied on the fact that:57(a) the wording of RPS policy B2.2.2(2)(j) repeats the word "avoiding",thereby setting up a disconnection between the first three words and thebalance of the provision;(b) such disconnection was reinforced by the additional subordinate phrase"where practicable"; and(c) support for that construction was provided by RPS objectives B9.3.1(i)and (ii) which, in the context of the "rural environment" respectivelyseek protection of land containing elite soils and management of landcontaining prime soils.[75] The Council submits that the Environment Court's interpretation reflects theplain and ordinary grammatical construction of the provision and that the appellant'sinterpretation could not be sustained without the addition of commas after each of thereferences to elite soils and prime soils, viz:Avoiding elite soils, and avoiding where practical prime soils, which aresignificant for their ability to sustain food production.54 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [144].55 At [402].56 At [402].57 At [144].[76] It also adopts the Environment Court position that repetition of the word"avoiding" reinforces the disconnection between "avoiding elite soils" and theremainder of the sentence. Likewise, it says that the Environment Court was correctto interpret the provision in light of the RPS objectives B9.3.1(i) and (ii).Discussion[77] I am unable to accept the Environment Court's construction of this provision.My reasons are as follows:(a) The approach too readily dismisses the Panel's interpretation of aprovision for which it was itself responsible and in respect of whichthere was, unusually therefore, direct evidence of the drafter'sintention.(b) I consider it reads too much into repetition of the word "avoiding"when, in other respects, the RPS is not a model of spare drafting(reflecting, realistically, the considerable pressure under which it wasprepared).(c) There is in my view limited support which can appropriately be drawnfrom Chapter B9.3.1(1) and (2). These provisions relate to land that isoutside the RUB. To then use them to support the logically antecedentinquiry about where the RUB should be located appears to meinappropriate. In any event, on the interpretation advanced by the Paneland by the appellants there remains a significant distinction betweenthe level of protection afforded to elite and prime soils. That is becauseprime soils must only be avoided "where practicable", whereas areascontaining elite soils must simply be avoided. In that sense theprotection/management dichotomy in B9.3.1(1) and (2) has a parallelwithin B2.2.2(2)(j), even on the appellant's construction.(d) Importantly, the purpose of avoiding elite soils in RUB location orrelocation cannot simply be in the service of pedology. The very basisfor their protection (where they are "significant") is to sustain foodproduction. That is confirmed by the definition of "land containingelite soil" which emphasises that it is "the most highly versatile andproductive land" and is "capable of continuous cultivation". And if thatis the case, then the qualification at the conclusion of 2.2.2(2)(j) is aslogically relevant to elite as it is to prime soils.(e) The Environment Court's near absolute protection is capable ofproducing perverse consequences, for example by preserving rural"islands" fully surrounded by urban development, or precluding landcontaining elite soils from inclusion within the RUB even though, forexample, a reverse sensitivity analysis58 made it unsuitable for foodproduction.(f) Although the punctuation suggested as necessary by the Council wouldeliminate any ambiguity from the provision, it is not in my viewnecessary to be able to maintain the appellants' interpretation which,overall, better accords with the purposive approach which the RPSrequires.[78] It is also significant that only 37 per cent of the Pūkaki Peninsula compriseselite soil. The Environment Court's decision to exclude the whole of the Peninsulaappears substantially based on the near absolute protection it affords to thisapproximately one third area.[79] However, although I consider the Environment Court's construction ofB2.2.2(2)(j) to have been in error, such conclusion is not decisive in the appellants'favour. The Court apparently accepted that both Pūkaki Peninsula and Crater Hillnevertheless contained elite and prime soils significant for their ability to sustain foodproduction. Paragraph [268] of the judgment records, for example:[268] The evidence of Dr Hicks (and Mr SJ Ford) is that half(approximately) of the land on Crater Hill and almost all of the land on PūkakiPeninsula is "significant for their ability to sustain food production". Weaccept Ms Ash's submissions that the Council's evidence shows that Crater58 The possibility of spray drift over adjoining residential areas may for example render the landunsuitable for cropping.Hill is capable of meeting the relevant RPS objectives and policies bycontributing to the wider economic productivity of and food supply forAuckland New Zealand (Objective B9.2.1). The Crater Hill land hasproductive potential and should be retained for productive purposes in orderto give effect to the RPS, irrespective of any possible comparisons with othersoils elsewhere in South Auckland.[80] In the context of an appeal to this Court on a point of law the question istherefore whether such conclusion was one to which the Environment Court couldreasonably have come on the evidence, or involved consideration of irrelevant factors,or a failure to consider the corollary.[81] I observe at the outset that the portion of the sentence appearing betweeninverted commas in para [268] line 3 of the judgment—that the lands were "significantfor their ability to sustain food production"—is not a reflection of what was actuallysaid by either of the Council's expert witnesses Messrs Hicks or Ford. Rather itrepresents the Court's overall assessment of the evidence benchmarked against theB2.2.2(2)(j) test.[82] Looking then at the evidence of these witnesses, Mr Webb is, in my view,correct when he says that Mr Hicks' evidence (with which the appellants took nosignificant issue) was focused on identifying the areas of elite and prime soils on boththe Peninsula and at Crater Hill and their suitability for horticulture. It did not discusssignificance in any sense other than to confirm that the soils were suitable for a rangeof horticultural crops. By comparison, Mr Ford, who is an agricultural and resourceeconomist addressed what he called "contribution to the wider economic productivityof and for supply for Auckland and New Zealand". He did so separately under PūkakiPeninsula and Crater Hill Farm headings.[83] In respect of Pūkaki Peninsula he said:5.26 The vegetable production sector provides an essential service to thecountry by supplying vegetables to our predominantly urbanpopulation throughout the year at an affordable cost. Their ability toprovide this service throughout the year is predominantly driven bythe availability of the correct soil types in the required climate zoneswhich are situated in the Auckland and Waikato regions.5.27 If there was sufficient loss of land which was both elite and frost freethis would mean that the demand for this produce would not be ableto be met. The alternative source of these vegetables would involveeither the produce simply not being available or significantly higherproduction costs for them to be produced on much lower productivepotential land, or produced indoors at much higher cost or producedinternationally, which would result in the price required to be paid forthem to be too high for the majority consumers.5.28 Therefore the failure to protect land containing elite and prime soilswill ultimately lead to the loss of production of some of the staplevegetables that are currently available in the Auckland market place.That is why the retention of such soils is not only essential for thehorticultural sector which currently uses it but also for the greaterAuckland and national consumers who are able to source their food atreasonable prices.5.29 Access to fresh vegetables at certain times of year would becomeaffordable only by the elite in terms of wealth because the cost of themwould be prohibitive for the average wage earner.5.30 At point 6 of the joint statement (relating to scarcity of elite soils inthe Auckland region) I state that my opinion is reliant on Dr FionaCurran-Cournane when she made the points in her evidence on Topic011 that elite land is less than 1% of the land area or approximately4,397 ha and that this area is of national importance for their highversatility. Dr Singleton and Dr Hicks both in separate statementspoint out that there are more elite soils in the Auckland Region whenthe soil mapping is carried out at a lower scale. However, I believethat we reached consensus on this issue when we refer toDr Singleton's statement that "they are still rare and important".[84] In respect of Crater Hill he said:It is my opinion that although there is a relatively small amount of elite soilsidentified, with destoning of the soils identified as elite and prime whichencompass 44% of the total area or approximately 50 ha, there is a significantamount of area on the land at Crater Hill which would be able to be utilisedfor vegetable production. The relatively frost-free nature of this soil wouldmean that it would make a significant contribution to this relatively rare classof land within the Auckland region.[85] The evidence in relation to Pūkaki Peninsula is in my view generic to all eliteand prime soils. Mr Ford identifies the value of such soils in production of freshvegetables and posits that if sufficient of them are lost then there will be inevitableconsequences in terms of supply and therefore (at certain times of the year at least)cost. But nowhere in his statement does he address whether on any reasonable metricthe loss of these particular lands would lead to any significant overall drop in supply.[86] Similarly, his observation that Crater Hill would, with destoning, releaseapproximately 50 ha of land suitable for vegetable production, contains no assessmentof significance within an overall supply context.[87] By comparison, the appellant's expert planner, Mr Putt, endeavoured to placethe subject lands within the wider perspective of the total areas of land containing eliteor prime soils within the Auckland region. His evidence (unchallenged in this respect)was that 63,000 ha of land in the Auckland region comprise elite and prime soils. Ofthis amount, on the latest figures available, a little over 20 per cent was being used forcropping and horticulture (including market gardening) and 35 per cent was occupiedby lifestyle blocks. He concluded:13.8 Accordingly, it is clear that when considering whether the removalfrom food production of the 100 ha. of elite and prime soil on PūkakiPeninsula is an issue in terms of resource protection, the 63,000 ha. of thosesoils across the Auckland regions is the backdrop to that decision. It isstatistically an extremely small part of the elite and prime soil portfolio in theregion.[88] To put that statistic in perspective, the areas of elite and prime soil on thePeninsula comprise, using Mr Putt's figures, 0.0016 of such lands in the Auckland areaand 0.0024 if lifestyle blocks are excluded.59 Nowhere does Mr Ford depose to howthe loss of such a comparatively small area of land to urban development wouldmaterially change the economics of vegetable supply in Auckland or New Zealand.And, significantly, the Environment Court does not engage with Mr Putt's essentialthesis at all.[89] Rather it appears to have substantially relied on rebuttal evidence from theCouncil's witnesses Ms Trenouth and Mr Hicks. This emphasised the cumulativeerosion of Auckland's elite and prime soils to urbanisation over time (particularlyduring the post-war expansion of suburbs beyond the Tāmaki Isthmus) and thesubstantial cumulative effect of re-zoning on the availability of elite and prime soils59 Note Mr Putt assumes 100 ha of elite and prime soils on the Peninsula under the actual area was71.5. To that is potentially added 50 ha on Crater Hill. I have adopted his 100 ha benchmark forthe purposes of these calculations, although recognising small adjustments would be requied toreflect the actual combined position of the two areas.for food production. During oral argument this approach came to be identified as"death by a thousand cuts".[90] So, at [401] the Environment Court observed:Continual erosion of even incremental quantities of such [elite] soils has aneffect on potential sustainable food production for Auckland region and NewZealand as a whole. It was also stated that once urbanisation occurs land isnot able to be returned to food production.[91] The question on appeal is whether this involved consideration of an irrelevantfactor. In my view it did. Although incremental loss will undoubtedly be relevant atan individual resource consent or scheme change/variation level, what theEnvironment Court was concerned with on the appeal was whether, at the policy levelassociated with location of the RUB, this had occurred in a coherent and lawful way.If, as urban Auckland expands, the areas of elite and prime soil were, on the premiseof incremental loss, invariably excluded from the RUB, then the integrity andcoherence of that boundary would inevitably be compromised, and spot zoning result.As the Panel noted, the Peninsula and Crater Hill areas already comprise a "ruralisland". They do so as a result of cumulative individual decisions that have expandedthe RUB to points significantly south, in turn cumulatively eroding arable lands. Theessential question in terms of B2.2.2(2)(j) was whether this land now fully surroundedby urban development, with the exception of its coastline, is significant in terms of itsability to sustain food production. That was not an inquiry in my view adequatelyanswered by reference to incremental loss. Such would too significantly threaten thepolicy requirement for coherent RUB location.[92] An alternative route to the same conclusion is to say that unless the thresholdin terms of significance in B2.2.2(2)(j) is met, then there is no relevant reduction or"cutting" for the purposes of the incremental loss argument. That is the approachsubmitted by Mr Webb. I accept that submission because the "death by a thousandcuts" proposition presupposes that any land potentially lost is significant—a logicallyantecedent inquiry.[93] Accordingly, I find:(a) the Environment Court erred in the proper construction of B2.2.2(2)(j);and(b) its assessment of whether the relevant areas of premium soils weresignificant for their ability to sustain food production (to the extentundertaken) proceeded in error of law by:(i) failing to take into account the insignificant area concerned inthe context of the total area of elite and prime soils in theAuckland region; and(ii) taking into account the principle of incremental loss in thecontext of RUB location or relocation involving lands alreadysurrounded by urban development.[94] I also accept the appellant's submission that the error(s) were material. As theCouncil's witness Ms Trenouth acknowledged, apart from the position that the Counciladopted (and the Environment Court accepted) in respect of Policy B2.2.2(2)(j) at leastthe majority of other issues relevant to Pūkaki Peninsula could be addressed by aFuture Urban Zoning (FUZ) and appropriate structure planning. This (in my viewappropriate) concession is reflected in [533] of the Environment Court's decisionwhere it said that in respect of the Peninsula it was "one characteristic"—the elitesoils—which "outweighed the positive characteristics of the counterfactual"(inclusion within the RUB on the basis of a FUZ).[95] As to what specific relief flows from this, including as to whether the Peninsulaand Crater Hill might potentially fall on opposite sides of the RUB and whether thecorrect response is to remit the matter to the Environment Court, I intend to invitefurther submissions after the parties have had an opportunity to consider thisjudgment.Outstanding natural featuresBackground[96] The appellants say that the Environment Court erred in interpreting relevantRPS Policies in respect of "outstanding natural features".[97] Policy B2.2.2(2)(g) provides:Ensure the location or any relocation of the Rural Urban Boundary identifiesland suitable for urbanisation in locations that: while (g) protecting natural and physical resources that have beenscheduled in the Unitary Plan in relation to natural heritage,Manu Whenua, natural resources, coastal environment,historic heritage and special character.[98] Both the Pūkaki Lagoon Volcano (situated on the Gocks' land) and Crater Hill(on the SFT's land) are included in Chapter L of the AUP, Schedule 6; OutstandingNatural Features (ONF) Overlay Schedule.60[99] The appellants submit that the Environment Court erroneously interpreted andapplied B2.2.2(2)(g). They say that, relying on a misinterpretation of the B4.2.2(7),the Court assumed an absolute level of protection for both ONFs which was incorrect.[100] Chapter B4 relates to "Natural Heritage". It records as objectives B4.2.1(1)and (3):(1) Outstanding natural features and landscapes are identified andprotected from inappropriate subdivision, use and development.(3) The visual and physical integrity and the historic, archaeological andcultural values of Auckland's volcanic features that are of local,regional, national and/or international significance are protected and,where practicable, enhanced.[101] The policies in B4.2.2 in turn set out mechanisms for identifying, evaluating,protecting and managing outstanding natural landscape and ONFs.60 The appeal does not raise any material issue in respect of the Pūkaki Lagoon Volcano. It is alreadysubject to Open Space/Conservation Zoning which Mr Webb concedes would remain even if thearea were to come within the RUB.[102] In respect of ONFs, the following protections are specified in B4.2.2:(6) Protect the physical and visual integrity of Auckland's outstandingnatural features from inappropriate subdivision, use and development.(7) Protect the historic, archaeological and cultural integrity of regionallysignificant volcanic features and their surrounds.[103] Both outstanding natural landscapes and ONFs are in turn to be managed "inan integrated manner to protect and, where applicable and appropriate, enhance theirvalues".61[104] In respect of these provisions, the Environment Court held:[260] The more detailed policies in the RPS for setting the level ofprotection for a volcano in Auckland which has been scheduled as an ONF arepolicies B4.2.2(6), (7) and (8). We discuss the inter-relationship of thesepolicies in more detail later. Since at present we are merely trying to assessthe effectiveness with which they are being achieved we simply note that,while policy (6) provides for protection of ONFs generally from inappropriatesubdivision, use and development, policy (7) directs that regionally significantvolcanoes – and regional significance (or national significance) is what makesa natural feature outstanding – are to be protected completely fromsubdivision, use and development. Questions of inappropriateness do notarise because all subdivision, use and development is inappropriate.[449] Those two policies must be read with policy (7). Policy (7)specifically relates to volcanic features – thus appearing to be intended toimplement objective B4.2.1(3) –(a) refers only to "regionally significant volcanic features andtheir surrounds", and(b) only protects their "historic, archaeological and culturalintegrity".The effect of policy (7) is that if a volcanic feature and its surrounds are"regionally significant" its historic, archaeological and cultural integrityshould be protected. Development of regionally significant volcanoes isimplicitly inappropriate in all circumstances, otherwise the formula "protect from inappropriate subdivision, use and development" would havebeen used. To imply those words would make policy (7) redundant: the policywould add nothing to policy (6).[450] These policies are uncertain because while objective B4.2.1(3)requires:61 Auckland Unitary Plan, B4.2.2(8).(a) complete protection of all Auckland's remaining volcanicfeatures; and(b) in particular protection of their "visual and physical integrity"(in addition to other values).– the policies read together do not cover either field completely in that:• locally important features are not referred to (that is not importantin this case because Pūkaki Hill is a scheduled ONF);• the requirement to protect the visual and physical integrity hasbeen qualified by the phrase "from inappropriate subdivision, useand development";• questions arise as to whether development and use canappropriately affect "visual and physical integrity" withoutaffecting archaeological, historic and cultural integrity at all.[451] These policies are difficult to apply because an ONF's historic,archaeological and cultural integrity is protected from adverse effects, fullstop. In contrast its physical and visual integrity are protected only frominappropriate subdivision, use and development. It is difficult to see how thepolicies by themselves or in context can be said to consistently implement theobjectives. However, these policies need to be read with those in sub-chapterB8 as we shall see.(Footnotes omitted)[105] The appellants argue that three errors of law emerge from this discussion:(a) Policy B4.2.2(7) does not relate to the entire volcano, but only toregionally significant volcanic features (for example, the tuff ring, thecrater and the slopes).(b) It was, in the words of the appellants' written submissions, "wrong forthe Court to interpret (7) as imposing a blanket ban on any use ondevelopment of a scheduled volcano".(c) The Court erroneously interpreted and applied Chapter B8 CoastalEnvironment to support its position.Discussion(1) Entire volcano or volcanic features[106] I am unable to accept the appellants' argument in this respect. The wording ofPolicy B4.2.2(7) recognises that the intended protection is not only of the regionallysignificant volcanic features but also of their "surrounds". This suggests a holisticrather than deconstructed approach to the features. That is, in turn, reinforced by bothB4.1 Issues and B4.6 Explanation, both of which refer to the "maunga"62 of theAuckland volcanic field as a "significant part of Auckland's natural identity andcharacter". Again, it is the overall feature rather than individual components of it thatis recognised. And it would be unusual, even in the absence of the words "and theirsurrounds" for volcanic features to be defined in some more limited way than other"outstanding natural features"—the latter clearly encompassing all components of afeature within a defined area.[107] In any event, the appellants recognise as regionally significant volcanicfeatures each of the tuff ring, crater and slopes. Collectively these components definethe entire feature. So although the Environment Court might be technically faultedfor describing the B4.2.2(7) protection as being for "regionally significant volcanoes"as opposed to "volcanic features and their surrounds", nothing substantively turns onthat point.(2) A blanket ban?[108] I accept that paragraphs [260] and [449] of the Environment Court's decisionin their terms recognise what is fairly described as a "blanket ban" on development(including subdivision) of regionally significant volcanic features.63 The issue iswhether that is an appropriate construction of B4.2.2(7).[109] In their initial written submissions the appellants argued that if theEnvironment Court's construction was correct then "there would be no need for Policy(6) or any of the other objectives or policies referring to protection from inappropriate62 That is, "mountains".63 Paragraph [449] uses the phrases "regionally significant volcanoes" which is not strictly correct.But nothing turns on this for the reasons previously indicated.subdivision". And, they say, that the Court's approach went against the "theme" ofthe RPS which is to protect against inappropriate subdivision, use and development.[110] Understandably this was interpreted by the Council and the Auckland VolcanicCones Society (AVCS) as an attempt to graft onto the "protection" afforded byB4.2.2(8) a qualification limiting it to protection from "inappropriate subdivision, useand development". I agree with Ms Ash and Mr Enright that no such qualification isappropriately read into the section. Subsections (6) and (7) can be read togetherwithout it, simply by recognising that the reasonably significant volcanic featuresreferred to in (7) represent a subset of the outstanding natural features referred to in(6), and one subject to an additional level of protection.64[111] But, as the appellants submitted in oral argument, such conclusion does not ofitself justify the Environment Court's conclusion that (7) makes any development (oruse or subdivision) per se or even "implicitly" inappropriate.[112] Although (6) and (7) overlap for the reasons indicated, the subsections in facthave different focuses—(6) on protection of "physical and visual integrity", and (7)on "historic, archaeological and cultural integrity". They reconcile in an unqualifiedprotection (or what the appellants call "blanket ban") for regionally significantvolcanic features against any subdivision, use or development that fails to protect65their historic, archaeological or cultural integrity, but a regime that would neverthelessallow such activities where this level of protection occurred and where it was also not"inappropriate" in terms of effects on "physical and visual integrity".[113] Although the Environment Court in fact recognises this same dichotomy at[451], it earlier casts the proscription on subdivision use or development of"volcanoes" in absolute terms66 leaving this Court uncertain as to whether the correctlegal test has been applied.64 I accept the submission of both the Council and Auckland Volcanic Cones Society Inc that thiswas a legitimate policy approach. A similar point is made in Environmental Defence Society vNew Zealand King Salmon [2014] NZSC 38, [2014] 1 NZLR 593 at [101].65 That is "to keep safe from harm, injury or damage". See Royal Forest and Bird Protection Societyof NZ Inc v New Plymouth District Council [2015] NZEnvC 219, (2015) 19 ELRNZ 122 at [63].66 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [260] and [449].(3) Did the Environment Court erroneously invoke Policy B8?[114] The Environment Court then attempts to resolve the conflict engendered by itsearlier unqualified prohibition on subdivision use and development by reference toChapter B8—Coastal Environment. In that context it embarks on a very lengthyanalysis of whether B8 reflects the mandatory provisions of Policy 15(a) of theNZCPS67—concluding that it does at least "partly" do so.68[115] I have two principle problems with this. First, I consider the conflict to be ofthe Environment Court's own making. B4.2.2(6) and (7) are adequately reconcilablein their terms; provided (7) is not elevated to a blanket ban on subdivision use anddevelopment. Paragraph [451] of the judgment itself recognises the route to thatreconciliation. Secondly, I accept the appellants' submission that although the CoastalEnvironment provisions of the RPS appropriately attempt to capture the NZCPSrequirement that outstanding natural features in the coastal environment be protectedfrom "adverse effects of activities",69 they are an unlikely source of assistance in theinterpretation of provisions relating to volcanic features, for the simple reason that notall volcanic features are in the coastal environment.[116] Nevertheless, the policy provisions of Policy B8 were necessarily given effectto. And B8.3.2(2)(b) requires urban activities to be avoided in parts of the coastalenvironment scheduled in the AUP in relation to natural heritage.[117] It was common ground before the Environment Court that the extent of thecoastal environment in the area was as depicted in a map annexed to witnessMr Brown's evidence and reproduced as Annexure D to the Court's decision. Thisdepicts the Pūkaki Lagoon as within the coastal environment, as are what appear to be67 Mandatorily reflected in any Regional Policy Statement by virtue of s 62(3) of the ResourceManagement Act 1991.68 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at[463].69 Refer NZCPS Policy 15(a) in terms "avoid adverse effects of activities on outstanding naturalfeatures and outstanding natural landscapes in the coastal environment" and RPS Policy B8.3.2 interms:(2) Avoid or mitigate sprawling or sporadic patterns of subdivision, use and development in thecoastal environment by all of the following:(b) avoiding urban activities in areas with natural and physical resources that have beenscheduled in the Unitary Plan in relation to natural heritage, Mana Whenua, natural resources,coastal, historic heritage and special character; most if not all the outer slopes of Crater Hill on the northern, western and southernsides.70 However all the eastern slopes, together with the crater itself and the lake arenot.71[118] Mr Webb argues that the B8.3.2(2)(b) requirement to "avoid" urban activitiesshould not be interpreted to prevent all subdivision and development, only that whichis inappropriate. He calls in aid various objectives in Policy B8, including B8.2.1(1),B8.2.1(2), B8.3.1(1) and B8.3.1(2). These are in terms:B8.2.1 Objectives(1) Areas of coast environment with outstanding and high naturalcharacter are preserved and protected from inappropriate subdivision,use and development.(2) Subdivision, use and development in the coastal environment aredesigned, located and managed to preserve the characteristics andqualities that contribute to the natural character of the coastalenvironment.B8.3.1 Objectives(1) Subdivision, use and development in the coastal environment arelocated in appropriate places and are of an appropriate form andwithin appropriate limits, taking into account the range of uses andvalues of the coastal environment.(2) The adverse effects of subdivision, use and development on the valuesof the coastal environment are avoided, remedied or mitigated.[119] However, as Ms Ash submits, the starting point must be the plain meaning ofRPS Chapter B8.3.2(2)(b) itself. It is clear in its requirement to avoid urban activities72in scheduled areas occurring within the coastal environment.70 The Environment Court clearly regarded all the outer slopes on those sides as in the coastalenvironment (at [441]). Mr Webb submits the "upper outer slopes" were not. I am unable toresolve that issue from Annexure D. Clearly however if some parts of the upper slopes are outsidethe coastal environment they are very limited. Nothing turns on the issue in my view.71 Indeed, significant portions of the eastern slopes are not part of the ONF. They comprise (partrehabilitated) quarry subject to Special Purpose Zoning.72 This is not defined but I agree with the Environment Court [at 463] it must include housing. Asto the word "avoid" it is simply to be given its usual or ordinary meaning of "keep away or refrainfrom"; Shorter Oxford English Dictionary (7th ed, Oxford University Press, Oxford, 2007) at 161.[120] I agree with her also that B8.3.2(2)(b) can be readily reconciled with theobjectives referred to by the appellants on the basis that some parts of the coastalenvironment may be appropriate for urban development, but those scheduled in theAUP in relation to natural heritage, such as ONFs are not. B8.3.1(1) says as much.[121] So, a proposal to develop housing on parts of Crater Hill, which were bothwithin the coastal environment and part of the ONF, was always going to face thesignificant obstacle of B8.3.2(2)(b).[122] This brings me then to the question of materiality. Although I have said that itis unclear whether the Environment Court correctly interpreted B8.4.2.2(7) when itconcluded that its effect was to render inappropriate all subdivision uses anddevelopment of "regionally significant volcanoes", nevertheless:(i) it went on to address the appropriateness of the SFT's subdivision anddevelopment proposals in terms of Chapter B4.2.2(b); and(ii) the constraints proposed by RPS Chapter B8.3.2(2)(b) were alwaysnecessarily adhered to.[123] As to appropriateness in terms of B4.2.2(6), it said:[452] Mr Bartlett submits that both policies B4.2.2(6) and (7) appliedseparately would be achieved if the RUB were moved to [the Panel's] lines.On the evidence we have found, in section B, that the effects of the Self familyproposed on Crater Hill are likely to be inappropriate. We prefer the evidenceof Mr Brown on the adverse effects of the proposal on visual integrity to theless coherent evidence of Mr Scott (who, as his counsel reiterated) evaluatedthe proposals largely in the framework of the original ONF assessmentcriteria, rather than having regard to the conceptually difficult and wider list(s)provided in the AUP. We accept the evidence of Dr Hayward on the effects onits geophysical integrity. We find that the proposed Self family developmentwould isolate the crater and fragment the important outside slopes.[124] That was clearly a conclusion to which the Environment Court was reasonablyentitled to come on the evidence and is therefore immune to challenge in this Court.No error of law can therefore arise in that respect. And on the basis of that conclusion,any error of law in respect of the interpretation of B4.2.2(7) was clearly immaterial tothe result.[125] Since it has long been recognised that any error of law by the EnvironmentCourt must have been material to the decision before the High Court will grant relief,73that therefore effectively resolves this aspect of the appeal.[126] I comment briefly, however, on the alternative submission that theEnvironment Court "erroneously included all of Crater Hill in the coastalenvironment". That fails on the wording of the Court's decision, which at its highestdescribes "much" of Crater Hill as occurring in that environment. At [435] itspecifically excludes the "inside of the crater", and at [441] it makes clear itsunderstanding that the eastern outer slopes lay outside the area. As I have indicated,74nothing in my view turns on whether some small part of the upper slopes or thenorthern, western and southern sides fall inside or outside the coastal environment, asdepicted in Annexure D to the Court's decision.[127] That said, the conclusion to which I have come in no way derogates from theSFT's arguments in respect of that part of Crater Hill which is neither included in theONF nor within the coastal environment. I will return to that issue in my discussionof the Quarry Zoned land below.Structure plan guidelinesBackground[128] The appellants submit that the Environment Court erred in law when it stated:75We hold that the structure plan process needs to be followed wheneverlocation or movement of the RUB is being considered. It is therefore relevantto this proceeding.[129] Policy B2.2.2(2)(f) of the RPS provides:2. Ensure the location or any relocation of the Rural Urban Boundaryidentifies land suitable for urbanisation in locations that:73 Royal Forest and Bird Protection Society Inc v WA Habgood Ltd (1987) 12 NZTPA 76 (HC) at81—82; BP Oil NZ Ltd v Waitakere City Council [1996] NZRMA 67 (HC).74 The Environment Court clearly regarded all the outer slopes or those sides as in the coastalenvironment (refer Decision at [441]). Mr Webb submits the "upper outer slopes" were not. I amunable to resolve that issue from Annexure D. Clearly however if some parts of the upper slopesare outside the coastal environment they are very limited. Nothing turns on the issue in my view.75 At [99].(f) follow the structure plan guidelines as set out in Appendix 1.[130] The introduction to Appendix 1—Structure Plan Guidelines—in turn identifiesthat "[T]his appendix forms part of the regional policy statement". To that end theEnvironment Court was obliged to give effect to it under s 75(3) of the RMA.[131] The Court recorded and adopted Ms Trenouth's description of structureplanning as:76 the process undertaken to analyse an area to determine the appropriateurban form and structure, including land uses, location of infrastructure, andintegration and management of effects on the environment. The structureplanning guidelines ensure a collaborative process with multiple partiesincluding landowners and key stakeholders such as Mana Whenua to identifya high level plan that guides future development including the preparation ofa plan change to relocate the RUB.[132] All planning experts had agreed on a joint statement which included anacknowledgement in respect of B2.2.2(2) that "(a) to (f) all important—all relevantcriteria need to be met to meet this policy, no ranking ". But the SFT's planningexpert, Mr Putt and counsel for the Gocks are recorded in the decision as arguing thatB2.2.2(2)(f) "only needs to be considered if [the Court] decide[s] the RUB should bemoved".77 That is essentially the argument repeated in this Court.[133] The Environment Court rejected that approach. It said:[100] However, that rather overlooks that rezoning of land within theRUB is the subject of policy B2.2.2(7) which also requires following thestructure plan guidelines. Thus it is clear that those guidelines are relevant tolocation of the RUB. Ms Trenouth explained the rationale in cross-examination:So when you are looking to relocate the RUB you need to think aboutwhat is the land use going to be, what sort of land use, how efficientis it going to be, does it protect the natural and physical resources, youhave to do that analysis, that structure plan analysis before yourelocate the RUB because you don't want to move the RUB if theanswer's going to be we'll move the RUB but actually there's nothingthat you can achieve in there, it's [not] going to meet those criteria.So in this example, in this situation, we've got, an ONF and we'veheard one of the key issues is the ONF and we've heard the evidence76 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [99].77 At [100].before me today about the impacts of residential development andurbanisation on that feature. So my question would be why wouldyou move the RUB if you're going to have such significant impactson the environment.[101] The relevance of that answer is increased by another considerationwhich is that without the inclusion of the structure plan matters thelist of considerations in policy B2.2.2(2) would be incomplete in thatit otherwise omits consideration of the Mana Whenua objectives andpolicies in sub-chapter B6 and most of the coastal environmentconsiderations in sub-chapter B8 unless they have been "scheduled"so that policy B2.2.2(2)(g) applies.[134] The Court then came to its conclusion set out at [128] above. Having done so,it went on to hold that significant failures on behalf of both the Gocks and the SFT tofollow/apply the guidelines factored against their appeal.[135] In relation to the SFT, which had sought an active zoning of its property,78 theEnvironment Court held that:79 more information should have been supplied in relation to how toachieve:• a desirable urban form at a neighbourhood scale including pedestrianconnectivity, diversity of lot sizes within blocks, provision of openspaces, integrated stormwater management approach.• • feedback from consultation with landowners, infrastructure providers,council controlled organisations and communities, and• a range of specialist documents to support the structure plan and planchange: including infrastructure assessments for stormwater,transport, water and wastewater; assessments of impacts on naturaland cultural values; assessment of environmental risk; andimplementation plans.(Footnotes omitted)[136] It suggested that on that basis, "a FUZ would be a preferable way for the SelfFamily to proceed if the RUB is to be moved",80 but having concluded that the ONFon Crater Hill was the "one characteristic which by itself outweighs the positivecharacteristics of the counterfactual [i.e. the SFT's proposal]" the Court considered78 A "Mixed Housing Suburban" zoning on the site of the quarry and the outer slopes adjacent toSH20 and a "single House" zone on the northern and southern sides79 At [206]–[209].80 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [209].that relocation of the RUB was inappropriate and therefore further investigation of theFUZ option was unnecessary.81[137] By contrast, the Gocks had sought a FUZ and in that context had not activelyengaged with the structure plan guidelines. They considered that to be an exercise fora later date when they came to seek an active zoning. This resulted in EnvironmentCourt criticism;While the question of how much structure planning detail needed is clearly aquestion of fact and degree each time the location of a RUB is raised beforethe Council or the Environment Court, the lack of detail given in relation tothe Pūkaki Peninsula is worrying especially with respect to:• the location, type and form of the urban edge;• the protection of " the coastal environment";• the integration of the "green network".(Footnotes omitted)Discussion[138] Mr Webb makes a number of arguments against the Environment Court'sapproach. He points to the policies in B2.2.2(3) and (7). These are in terms:(3) Enable rezoning of future urban zoned land for urbanisation followingstructure planning and plan change processes in accordance withAppendix 1 Structure plan guidelines.(7) Enable rezoning of land within the Rural Urban Boundary or otherland zoned future urban to accommodate urban growth in ways thatdo all of the following:(a) support a quality compact urban form;(b) provide for a range of housing types and employment choicesfor the area;(c) integrate with the provision of infrastructure; and(d) follow the structure plan guidelines as set out in Appendix 1.[139] He submits that when the Environment Court said that his approach "ratheroverlooks that rezoning of land within the RUB is the subject of policy B2.2.2(7)81 At [533] and [539].which also requires following the structure plan guidelines"82 it was invoking aprovision irrelevant to the logically antecedent issue of RUB location. However, Iaccept Ms Ash's submission that although in its terms Policy B2.2.2(7) relates torezoning land already within the RUB or other land zoned future urban,83 rezoningwill always be a necessary consequence of relocating the RUB (in this case requiringa change from Rural Production to urban or FUZ). To that extent I accept theEnvironment Court's position that Policy B2.2.2(7) supports application of thestructure plan guidelines whenever location or relocation of the RUB is beingconsidered. It is not, however, what I would describe as the Council's strongest point.[140] Mr Webb's principal submission focuses on Policy B2.2.2(3). He says thisconfirms that where a FUZ is sought (or in the case of Crater Hill, potentially imposed)structure planning is to occur at the subsequent point active zoning is applied for. Hesays that to "require [it] now would make Policy B2.2.2(3) entirely redundant".[141] I am unable to accept that submission. For a start it does not recognise thesubtle but nevertheless important distinction between the requirement in B2.2.2(2)(f)(and B2.2.2(7)) to "follow the structure plan guidelines" and the B2.2.2(2)(3) policyof enabling rezoning of future urban zoned (FUZ) land "following structure planning".I consider Ms Ash correct when she says that although the "full blown" structure plannecessary to move from a FUZ to live zoning is not necessary in the context of alocation or relocation argument, nevertheless if change is sought to the RUB, itsproponent(s) will need to establish that the land is suitable for urbanisation "inlocations that follow the structure plan guidelines".[142] The rationale for that is, I consider, adequately explained in Ms Trenouth'sevidence as recorded in [133] above—before relocating the RUB the decision maker"needs to think about what the land use is going to be you don't want to move theRUB if that answer is going to be actually there's nothing you can achieve in there,it's [not] going to meet those criteria".82 At [100].83 An example of the latter is the area of land around Kingseat which although outside the RUB iszoned future urban.[143] So although the level of detail in terms of compliance with the guidelines mayvary, depending, for example, on the size of the area to be brought within the RUB(and thus as a further example the impact on transport networks)84 there is a thresholdwhich must be crossed in terms of suitability for urbanisation having regard to theguidelines.[144] Mr Webb says that such an approach will lead to arbitrariness in the assessmentand will allow "specific concerns to be raised (potentially unreasonably) if certaindetails are not addressed, to disallow an application". He says that is what theEnvironment Court did here, referring to the various omissions in terms of guidelinecompliance which it identified. He submits you either "do a structure plan or you donot".[145] I accept that the position is not entirely satisfactory. If it is the case that theguidelines have to be followed at the location/relocation stage then, for fear ofomission and subsequent criticism, applicants will inevitably tend towardscomprehensive assessment against the guidelines. That may, in real terms, look littledifferent to a "structure planning" exercise in terms of B2.2.2(3). And if that is thecase, then there would seem little point in the context of a location or relocationargument to seek a FUZ—the work will probably have been done to support a livezoning.[146] However, these are difficulties which seem to me to be unavoidable havingregard to the provisions of Policy B2.2.2(2)(f) and the s 75(3) RMA requirement thatit be given effect to.[147] Mr Webb says that there is no obligation to apply B2.2.2(2)(f) "just because itis there". He points to the fact that B2.2.2(2) also mandates:(h) protecting the Waitakere Ranges Heritage area and its heritage features;and(k) avoiding mineral resources that are commercially viable.84 Refer Auckland Unitary Plan, Appendix 1 Structure Plan Guidelines at [1.4.6].He says, self-evidently, these proscriptions will not apply to every location orrelocation application, so why likewise should (f)?[148] I cannot accept that submission. B2.2.2(2)(2)(a) to (f) cumulatively define therequirements for locations to be appropriately brought within the RUB.Subparagraphs (g) to (m), which are introduced by the word "while", in turn definewhat might broadly be defined as limitations, some of which may apply to individualapplications but others not. It is not possible in my view to read out of the assessmentone or more of the cumulative requirements simply because one or more of thelimitations may on its face be inapplicable.[149] I agree therefore with both Ms Ash and Mr Enright when they say that, both atthe time of locating or relocating the RUB and at the time rezoning of land within theRUB is sought, there was a mandatory requirement to follow the structure planguidelines. As Mr Enright put it, the appellant's argument relies on a binary fiction—the guidelines cannot be considered when relocating the RUB; they can only beconsidered when rezoning—which is not reflected in the plain words of PolicyB2.2.2(2)(f) and B2.2.2(7)(d). I agree with him that the Environment Court would infact have erred if it had not taken the guidelines into account in identifying where theRUB should be.[150] As to the evidence before the Environment Court, the Gocks did notspecifically address the guidelines, believing that to be premature in the context oftheir proposed FUZ. It was, in that context, clearly open to the Environment Court toexpress its concerns about the "worrying" lack of detail.[151] In respect of the SFT land, Mr Webb says that although the Court considerednot enough information had been provided to justify a live zoning, it neverthelessundertook its assessment of the effects from urbanisation anyway. He says it "can'thave it both ways—either there was sufficient information to determine this issue orthere was not". He went on to submit, however, that "[i]n any event, a masterplan wassubmitted for the SFT land [so] it is difficult to accept the Court's finding thatinsufficient material was provided".[152] I do not see any contradiction in the Environment Court's approach. It wasopen to it to identify what it described as "the dearth of information" relating toguideline compliance in the specified areas and yet draw conclusions as to suitabilityfor urbanisation based on the information it had. And Ms Ash and Mr Enright are alsocorrect in saying that the evaluation of the evidence in terms of sufficiency was amatter for the Environment Court and that no error of law is therefore established.[153] This ground of appeal therefore fails.The Special Purpose—Quarry zoned lands[154] In his submissions in respect of the SFT lands Mr Webb developed analternative argument relating to the area on the south east of the volcanic feature. Thisarea is neither part of the ONF nor within the coastal environment and is currentlyzoned Special Purpose—Quarry. He argued that absent an application to extend theONF boundary into what is now this part-rehabilitated area or to change its zoning,the Environment Court was obliged to address RUB location having regard to thestatus quo (which includes an existing right to undertake a number of industrial typeactivities). And he further argued that having regard to B2.2.2(2)(m), the appropriateboundary for the RUB coincided with the boundary of the ONF. He submitted,therefore, that having rejected the SFT's submission that the whole of Crater Hill bebrought within the RUB, the Environment Court was obliged, in terms of s 32(1)(b)(i)of the RMA, to examine the reasonable practicality of including the quarry zoned landwithin the RUB. And he said that any decision not to was (or would be) sounreasonable as to constitute an error of law. He submitted that it should have beenbrought inside the RUB with a FUZ.[155] This alternative submission elicited the predictable response from Ms Ash andMr Enright that it went beyond the identified grounds in the Notice of Appeal dated10 May 2018. The alleged "Seventh Error" in that document put in issue whetherretention of "Pūkaki Peninsula and Crater Hill outside the RUB" was the "mostappropriate, efficient and effective way of achieving the purpose of the RMA, pursuantto s 32 of the RMA", but nowhere was specific error of law alleged in relation tocontinued exclusion of the quarry zoned area.[156] In response, Mr Webb initially sought an oral amendment to the Notice ofAppeal to capture the point. Ms Ash and Mr Enright replied that they were unlikelyto take a technical point in relation to late amendment but because the prospect ofincluding the quarry lands within the RUB—while leaving the balance of Crater Hilloutside it—had never been developed as an alternative before the Environment Courtthere could be no error of law in the Court not addressing this option. They submittedthat if an amendment was allowed an opportunity should be given to make additionalwritten submissions. I agreed with that suggestion.[157] The amendment is in respect of the alleged "Seventh Error", which is nowidentified as following:859. As a consequence of the above, the Court erroneously determined thatthe most appropriate, efficient and effective way of achieving thepurpose of the RMA pursuant to s 32 of the RMA, was to keep PūkakiPeninsula and Crater Hill, and in particular the Self Family Trust landcurrently in the Quarry Zone, which has been severely modified andwhich was neither part of the outstanding natural feature overlay onCrater Hill, nor within the coastal environment, outside the RUB andsuch decision was so unreasonable that no reasonable Court couldhave made that decision.[158] By memorandum dated 3 December 2018 the Council and AVCS confirmedtheir absence of "any technical objection" to the amendment. I grant leave accordinglyand proceed to consider whether the appeal should be allowed on this point. I do soagainst the agreed background that the Environment Court did not identify bringingwhat Mr Webb refers to as "just" the "quarry land", within the RUB and applying aFUZ as a reasonably practicable option under s 32(1)(b)(i) of the RMA.[159] It is also common ground that, neither in evidence before the EnvironmentCourt nor in submissions made to it, was this alternative proposal advanced. However,the SFT argues that the Environment Court "cannot avoid its statutory duty under s 32of the RMA on this basis". It also says that the Court's assessment of Crater Hill wasas a "feature in the coastal environment" and that it applied this approach equally tothe quarry lands. It says that in respect of such lands the Court therefore took intoaccount irrelevant factors. It also says that the Environment Court failed to take into85 The emphasis is my own and identifies the additional words added in the amended Notice ofAppeal.account a relevant factor, namely the activities (including on-site primary producemanufacture and processing and recycling mineral material, construction waste anddemolition waste) permissible as of right in the quarry zone and whether in facturbanisation might therefore give better effect to the RPS provisions.[160] Both the Council and AVCS argue that this new argument cannot now be raisedbut that if there is any residual discretion to entertain it, such should not be exercisedbecause there was no error of law on the part of the Environment Court.[161] As to whether the argument can be taken at all, the Council refers to two HighCourt decisions—Ngati Maru Iwi Authority v Auckland City Council and WymondleyAgainst The Motorway Action Group Incorporated v Transit New Zealand.86 AVCSin turn refers to further authority that, although directed to s 293 of the RMA and thusnot specifically relevant to this appeal, nevertheless emphasises that the EnvironmentCourt is not entitled to shed itself of its appellate role and step into a planning role.87[162] Both Ngati Maru and Wymondley refer to the following paragraph from theEnglish Court of Appeal's decision in Pittalis v Grant:88The stance which an appellate court should take towards a point not raised atthe trial is in general well settled . It is perhaps best stated in Ex p Firth, reCowburn (1882) 19 Ch D 419 at 429, [1881-5] All ER Rep 987 at 991 perJessel MR:" the rule is that, if a point was not taken before the tribunal whichhears the evidence, and evidence could have been adduced which byany possibility would prevent the point from succeeding, it cannot betaken afterwards. You are bound to take the point in the first instance,so as to enable the other party to give evidence".Even if the point is a pure point of law, the appellate court retains a discretionto exclude it. But where we can be confident, first, that the other party hashad opportunity enough to meet it, second, that he has not acted to hisdetriment on the faith of the earlier omission to raise it and, third, that he canbe adequately protected in costs, our usual practice is to allow a pure point oflaw not raised below to be taken in this court. Otherwise, in the name of doing86 Ngati Maru Iwi Authority v Auckland City Council HC Auckland AP 18/02 7 June 2002 at [65],[66] and [69]; and Wymondley Against The Motorway Action Group Incorporated v Transit NewZealand [2004] NZRMA 162 (HC).87 Canterbury Regional Council v Apple Fields Ltd [2003] NZRMA 508(HC) at [45]; and FederatedFarmers of NZ Inc v MacKenzie District Council [2014] NZHC 2616 at [156]–[157].88 Pittalis v Grant [1989] 2 All ER 622 at [626]–[627].justice to the other party, we might, through visiting the sins of the adviser onthe client, do an injustice to the party who seeks to raise it.[163] In Ngati Maru the Court raised (obiter) the question of whether the discretionto entertain a new argument on a pure point of law applied only to general appeals,unlike those from the Environment Court to the High Court, which are limited to errorof law. Nevertheless (in the absence of argument) it proceeded on the basis that therewas such a discretion.[164] Ms Ash urges me to limit the principal to general appeals on the basis that insuch context "the appellate Court may stand in the place of the Court of first instanceand "remake" findings of fact or law or both. She says, "[i]n short evidence may berevisited through general appeals but may not be revisited in appeals to points of law".But that in my view ignores what are in any event, the limits of the jurisdiction—toconsider a pure point of law not earlier raised. If that defines the jurisdiction then itseems to me the general appeal/appeal on point of law distinction becomes irrelevantbecause the appellate court is never going to be invited to "re-make" findings of factif the relevant point is allowed to be taken.[165] Of course Ms Ash is correct that, were the Environment Court found to be inerror of law by not going on to consider, in the context of s 32 of the RMA, an optionwhich no party had advanced during the course of the hearing, then inevitably thematter would have to be referred back to the Environment Court for further factualfindings. And she is also in my view correct that this appears contrary to one of thepurposes of limiting appeals on points of law—to encourage finality. But that is not areason to confine the principal in Pittalis to general appeals only.[166] What it does bring into focus, however, is her next point; that the principle inPittalis is limited to "pure points of law", whereas the question of whether the optionof bringing "just" the quarry land within the RUB and applying a FUZ was a"reasonably practicable" one under s 32(1)(b)(i) of the RMA involves findings of fact.[167] Such findings of fact are recorded at [197] in terms:The reasonably practicable options for achieving the relevant objectives andpolicies in relation to location of the RUB are:(i) the Council's decision ("the status quo"); and(ii) the relief sought by the appellant [the SFT] ("thecounterfactual").[168] In my view:(i) Given that these were the only alternatives being advancedbefore the Environment Court (each in turn supported by expertevidence), the finding that these were the reasonably practicableoptions is not one to which the Environment Court could notreasonably have come or which was reached without anyevidential foundation.(ii) Nor can it realistically be suggested that the EnvironmentCourt's conclusions in respect of the identified reasonablypracticable options were based on some erroneous belief thatthe quarry land was within either the ONF boundaries or coastalenvironment. The Court attached to its decision a plan showingthe coastal environment that clearly excluded the quarry andspecifically acknowledged that "the former quarry (adjacent toSH 20) is not within the ONF, nor is SH 20 itself".89(iii) Likewise, the submission that the Environment Court failed totake into account a relevant consideration, namely that theSpecial Purpose—Quarry zone, permitted a number ofindustrial type activities as of right and that "urbanisation mayhave been more appropriate" is belied by the Court's discussion,at [164] to [168], about permitted activities within the zone andthe acknowledgment at [439] of the "development potential ofthe rehabilitated quarry in its own zone".[169] Clearly therefore the appellants face significant challenges in terms of thesubstantive arguments raised in [9] of the Amended Notice of Appeal. That of itself89 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [180].is a relevant consideration in terms of any ultimate discretion which might survivePittalis. So too are the considerations that animated Doogue J in Ngati Maru. Havingobserved that the argument being advanced had neither been raised in the EnvironmentCourt, nor in the notice of appeal, nor even in the written submissions exchanged inadvance of the hearing before him (all of which equally apply in this case),90 hisHonour said:91This course is to be deprecated. The Environment Court is a specialist tribunaland this Court has not had the benefit of its concluded views on this importantaspect of its jurisdiction. If I had found this ground of appeal made out, Iwould have refused the Iwi Authority relief as it could have involved freshevidence before the Environment Court in respect of a point never previouslyraised. The original hearing took four weeks and there was adequateopportunity to raise the point then when, if it had been upheld, it might havebeen met by other evidence.[170] Ultimately the underlying question for this Court is whether an appeal on apoint of law is properly brought against a decision which identified as the "reasonablypracticable options" those put to the decision-maker. I do not consider theEnvironment Court had an obligation to go outside that framework. Indeed, if it haddone so it may have been open to the criticism that it had based its decision on findingsuntested by submission and quite possibly unsupported in the evidence. Its appellateas opposed to planning role reinforces this conclusion.[171] I do not therefore consider this ground of appeal made out. It would beinappropriate, however, to go further and comment on the merits of any proposal tonow include "just" the quarry lands within the RUB. That may well be the basis of afuture application, the merits of which are not a matter for this Court.Mana whenua issues[172] The SFT argues92 that the Environment Court erred in determining how todischarge its obligations under:90 The argument that the Environment Court did not consider the option of bringing "just" the quarryland within the RUB was only fully developed by Mr Webb in reply at which point the requirementfor an amended notice of appeal was identified.91 Ngati Maru Iwi Authority v Auckland City Council HC Auckland AP 18/02, 7 June 2002 at [65].92 Amended Notice of Appeal dated 21 November 2018 at [4(a)].(a) section 6(e) of the RMA to recognise and provide for the relationshipsof Māori and their culture and traditions with their ancestral lands,water, sites, wāhi tapu and other taonga as a matter of nationalimportance;(b) section 7 of the RMA to have particular regard to, inter alia,kaitiakitanga and the ethic of stewardship;(c) section 8 of the RMA to take into account the principles of the Treatyof Waitangi (Te Tiriti o Waitangi); and(d) RPS Chapter B6 Manu Whenua.[173] It says that the Environment Court failed to consider how the proposals toinclude the lands within the RUB would have better served these requirements.[174] The Gocks in turn say that the Environment Court failed to take into accountrelevant matters and in particular how the proposal to include land within the RUBwould "provide a pathway through structure planning in consultation with TangataWhenua for Tangata Whenua themselves to recognise and provide for the matters inss 6(e), 7 and 8 of the Act".[175] As developed in written submissions and during the course of oral argument,the submissions had two essential strands:(a) that the Environment Court inappropriately regarded itself as havinghad "some limit on its jurisdiction (that it could only do what ManaWhenua wanted) in determining the most appropriate use of the land"(that is that it regarded Mana Whenua as having something akin to vetorights); and(b) that it misinterpreted Mana Whenua evidence, conflating concepts ofkaitiakitanga and mauri, reached conclusions in relation to mauri whichwere not supported in the evidence and concluded that Mana Whenuawere inflexibly opposed to relocation of the RUB when the essence ofkaitiakitanga was consultation and this could be best achieved througha FUZ and structure planning.[176] The Environment Court's discussion of these issues occurs at [526] to [532] ofits decision under the heading "Recognising and Protecting the Mana Whenua" andsubheading "Chapter B5 (sic) of the AUP".93 It identifies what it calls the"counterfactual" for transfer of 60 per cent of Crater Hill to the Council and/orTe Ākitai as legal owners94 and for the creation of significant public open space andlegal access strips on Pūkaki Peninsula. It refers to counsel for the SFT's submissionthat the Crater Hill proposal was a "generous one" and his further argument that a"moratorium on development of land of this status on the basis of Te Ākitai'spreference would have far reaching and unfair consequences". In that respect theCourt said:[531] We do not accept that the Council's position is a moratorium – itlimits residential (and some industrial) development but retains existing uses.The submission also misses a fundamental aspect of mana whenua which isthat it is for the tangata whenua or a Mana Whenua Group (defined asdiscussed earlier) to decide how their kaitiakitanga should be exercised. If TeĀkitai decide they consider the mauri of the area requires maintenance of allthe land on Te Kapua Kohuara and Pūkaki Peninsula in its current condition(subject to zoning and existing use privileges the land owners have) ratherthan 60% ownership of Crater Hill plus open space (and legal access strips)on Pūkaki Peninsula, it is not for the Auckland Council or this court tocontradict them (at least in the circumstances similar to this proceeding). Thatposition is consistent with the holistic character inherent in the Māori worldview (and expressed in policy B6.3.2(4)(a) and B6.3.2(6)(a). Recognising TeĀkitai's position is also a matter which section 8 of the RMA requires us totake account of. That is a procedural matter which can rarely be particularisedin a plan.[532] Crater Hill and Pūkaki Peninsula are part of a cultural dimension tothe area which is very important. The importance lies not only in theindividual sites (both identified and as yet unlocated) but in the area as a wholeas identified as sub-precinct H in the Puhinui Structure Plan. This case isreally the last gasp for Te Ākitai and their Mana Whenua: if they cannot retainthe sub-precinct with the current land use zoning that is inherently far moresympathetic to the mauri of the land that would be the case with residential orlight industrial development over significant portions,95 they will lose thecultural dimensions of this area (i.e. their cultural landscape) as a whole. Weconclude that maintaining` the status quo RUB is essential for sustaining theexisting quality of naturalness, and thereby the mauri of the small remainingundeveloped parts of Te Ākitai's rohe.93 It should read "Chapter B6".94 Mr Webb says the precise figure is 62 per cent.95 N H Denny evidence-in-chief at 9.2 [Environment Court document 9].[177] Mr Webb takes particular issue with the Court's observation that, in relation towhat Te Ākitai "decide they consider the mauri of the area requires it is not forAuckland Council or this Court to contradict them (at least in the circumstances of thisproceeding)". He refers to a settled line of authority including Minhinnick v TheMinister of Corrections,96 Watercare Services Ltd v Minhinnick,97 Gavin H WallaceLtd & Ors v Auckland Council,98 which establishes that the RMA does not confer onTangata Whenua or Kaitiaki a power of veto over use or development of natural andphysical resources in their area. That is for the stated reason that the Court acts asarbiter for the community as a whole so that although Māori views are important theywill not in every case prevail.[178] Neither Ms Ash nor Mr Enright take issue with that principal (which I considerdemonstrably correct and appropriately reaffirmed). However, they say that neither inits terms nor context does [531] elevate Te Ākitai's views to veto status. They placeparticular emphasis on the fact that [531] recognises that Te Ākitai's position is onethat the Environment Court says it is required to "take account of" and contrast thatwith any suggestion that its views were binding on the Court. And they refer tosubsequent references at [533], [536] and [538] either again to "taking account" ofcompeting considerations or to "standing back and looking at all relevantconsiderations" as reinforcing this submission.[179] In my view they are correct in their assessment of how the Environment Courtapproached the issue. In terms of s 75(3) of the RMA the Court was, of course, obligedto give effect to all relevant provisions of the RPS. Mr Webb does not contendotherwise. And B6.2.2(1)(e) provided that opportunities be given to Mana Whenua toparticipate in the sustainable management of natural and physical resources in a waywhich:(e) recognises Mana Whenua as specialists in the tikanga of their hapū oriwi and as being best placed to convey their relationship with theirancestral lands, water, sites, waihi tapu and other taonga.96 Minhinnick v The Minister of Corrections EnvC A043/2004, 6 April 2004 at [135].97 Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 (CA) at 124 –125.98 Gavin H Wallace Ltd & Ors v Auckland Council [2012] NZEnvC 120.[180] Considered in its context that is all [531] says — Te Ākitai were themselvesbest placed to decide how their kaitiakitanga should be exercised and how best themauri of the area is maintained—an uncontroversial proposition within the context notonly of B6.2.2(1)(e) but the common law also, since it has long recognised that culturalnorms are appropriately defined in terms of the indigenous persons affected.99[181] Nor can the Environment Court be criticised for having had particular regardto the impact of moving the RUB on the "holistic nature of the Mana Whenua worldview", "the exercise of kaitiakitanga" or the "mauri" of the area, when that is preciselywhat it was "require[ed]" to do under RPS Policy B6.3.2(6)(a), (b) and (c). However,none of that dictated a particular outcome. It was still open to the Environment Court(as it did in Wallace, where the metropolitan urban limit was likewise in issue), toarrive at a result which was inconsistent with the mana whenua position.100 In thiscase it did not do so but that was a result reached after assessment of the evidence andin light of all relevant RMA and RPS provisions. I do not consider it the result of amisdirected belief in a Mana Whenua veto.[182] Mr Webb says, however, that the Environment Court's assessment of"Te Ākitai values" was insufficiently nuanced, and that on close analysis Te Ākitaiwitnesses Mr Denny and Ms Wilson recognised that the mauri of the land had alreadybeen compromised and that the exercise of kaitiakitanga could be adequately protectedthrough a structure planning process. Within the context of an appeal to this Courtthat must necessarily reduce to a question of whether the Environment Court'sconclusions about whether relocation of the RUB aligned with Te Ākitai culturalvalues was one to which it could not reasonably have come101—a difficult thresholdto cross.[183] The starting point is Te Ākitai's evidence-in-chief. In that respect Mr Dennysaid at [4.4] that Te Ākitai "opposes the proposed extension of the Rural UrbanBoundary . as it diminishes the value and significance that Te Ākitai Waiohua placeon the region". At [9.2] he said that developing the quarry into a mixed housing99 See Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 at 880; and Takamore v Clarke[2012] NZSC 116, [2013] 2 NZLR 733.100 Gavin H Wallace Ltd & Ors v Auckland Council [2012] NZEnvC 120.101 Or potentially failed to take into account relevant matters or took into account irrelevant matters.suburban zone did not "help restore the mauri of the quarry or form of the maunga"and at [10.1] he said that Te Ākitai "fully supports Auckland Council's decision to notextend the Rural Urban Boundary" and that this was "essential to respect thesignificant values the area has to Te Ākitai Waihua and to protect and preserve sites ofparticular significance and the broader cultural landscape".[184] Ms Wilson in turn said that Te Ākitai sought "protection of its culturallysignificant sites" (at [3.2]), that Te Ākitai had "significant concerns about what issought in the appeal" and that it "supported Council's decision".[185] However, Mr Webb emphasises several other aspects of the evidence. Firstly,he says that in her brief of evidence Ms Wilson commented favourably on the PuhinuiStructure Plan and, through its associated processes, recognition of Te Ākitai askaitiaki of the Puhinui area. He then particularly emphasises her description of theability to act as a contributor to policy and decision making as giving "life to the notionof kaitiakitanga". He submits that it is not a proper exercise of kaitiakitanga to dictateland use and relying on Minhinnick v Minister of Corrections says that the conceptdoes not extend to ownership, authority, control or aboriginal title over an area. 102 Hesays the only proper exercise of kaitiakitanga is to ensure Mana Whenua involvementin decision making which is precisely what would occur in the context of structureplanning.[186] That in my view is too narrow an approach. The ability to contribute may "givelife" to kaitiakitanga, but it does not define it. Indeed s 2 of the RMA defines theconcept in much wider terms as meaning: the exercise of guardianship by the tangata whenua of an area in accordancewith tikanga Maori in relation to natural and physical resources; and includesthe ethic of stewardship.[187] In my view there can be little real dispute that Te Ākitai's evidencecontemplated that the exercise of guardianship and stewardship of both PūkakiPeninsula and Crater Hill required maintenance of what the Environment Court called102 Minhinnick v The Minister of Corrections NZEnvC A043/2004, 6 April 2004 at [133]."the status quo". Mr Denny's evidence was that to do so was "essential" to respectand protect cultural values.[188] Next Mr Webb emphasises the cross-examination of Mr Denny where heconfirmed that Te Ākitai feedback in relation to the Puhinui masterplan process hadbeen positive and his acknowledgment that "potentially" structure planning in relationto the Puhinuui Peninsula might deliver some benefits, for example the establishmentof māra kai gardens. However, this and his further acknowledgment that theestablishment of such gardens was "possible" represents an inadequate framework onwhich to now construct an argument that the Environment Court reached conclusionson Te Ākitai's evidence which were not reasonably open to it. The evidence is simplytoo slight.[189] Of course Mr Webb is correct when he says that, where elsewhere in hisevidence Mr Denny spoke about the importance of "preserving the life supporting soilsof the region . for growing māra kai gardens", he was expressing an idea which wasmore wishful thinking than reality given that the Peninsula is not (predominantly) inMāori ownership and that either purchase or lease would be necessary before his visioncould be realised. And Mr Webb may be correct that such prospect is more likelyadvanced through relocation of the RUB and a structure planning process. But thiswas one facet only of Te Ākitai evidence which also recognised the importance ofpreserving life supporting soils generally for farming and where appropriatesafeguarding urupā.[190] Mr Webb further submits that the decision contains a "finding of fact againstthe weight of evidence (that the mauri of the land "requires" maintenance of the landin its current condition) which is also an error of law". Although that pitches the testfor error of law too low (assessments of the weight of evidence being matters for theEnvironment Court,) he goes on to submit that there was no evidence to support suchfinding.[191] While not defined in the RMA, "mauri" is defined in the Māori-English,English-Maori Dictionary Te Aka as follows:(noun) life principle, life force, vital essence, special nature, a material symbolof a life principle, source of emotions – the essential quality and vitality of abeing or entity. Also used for a physical object, individual, ecosystem or socialgroup in which the essence is located.[192] The concept is also defined in Chapter N Glossary of Māori Terms in the AUPas "life force", and in RPS Policy B6.5.2(2)(a) as "life force and life-supportingcapacity", and it is referred to in Objective B6.3.1(2) and Polices B6.3.2(4)(c) and6(c).[193] The mauri of Crater Hill was addressed in Mr Denny's evidence-in-chief asfollows:Te Ākitai Waiohua wish to preserve the mauri of Ngā Kapua Kohuora byprotecting the remaining form of the crater, restoring the modified sections ofthe crater to its former natural form and safeguarding the crater lake, lavacaves and, where identified, urupā. It also includes preserving the "lifesupporting" soils of the crater and protecting access to the former wakaportage.[194] In relation to Pūkaki Peninsula he said:The mauri of Pūkaki peninsula and the sites Waituarua and Ngatonatona havebeen affected mainly by modern farming and ploughing. Te Ākitai Waiohuahope to preserve the mauri of Pūkaki peninsula and the sites Waituarua andNgatonatona by protecting the existing coastline to the Pūkaki and WaokauriCreeks, acknowledging and preserving the life supporting soils of the regionfor farming or growing māra kai gardens and, where appropriate, safeguardingurupā.[195] Mr Webb seizes on the first sentence in this second statement and says that,because on Mr Denny's own admission the mauri of the peninsula has been affectedby European farming practices (a comment which Mr Webb is critical of theEnvironment Court for not even referring to), the best prospect of it being rehabilitatedis through a structure planning process, which may, for example, deliver māra kaigardens.[196] Again I consider this inappropriately reads down Mr Denny's evidence, whichincludes the preservation of "life supporting soils" for farming as part of themaintenance of the mauri of the area. The Environment Court's conclusion that thestatus quo is "inherently far more sympathetic to the mauri of the land that (sic) wouldbe the case with residential or light industrial development" was one therefore forwhich there was evidential support.103 It also borders on the self-evident thaturbanisation of the Peninsula must further erode its "vital essence" or "special nature"to Te Ākitai.[197] Mr Webb also submits that the Environment Court conflated the concepts ofkaitiakitanga and mauri. However, I accept the Council's submission that in anydiscussion about how best "guardianship" or "stewardship" of the lands is recognised,concepts of mauri will inevitable feature. That much must follow from the ChapterB6.5.2(2) definition of mauri to include the "life-supporting capacity of the place".[198] Finally, the appellants submit that the Environment Court erred by failing totake into account the evidence of Council's planning witness, Ms Trenouth, which MrWebb submitted "clearly stated that on Pūkaki Peninsula a FUZ with structureplanning could have given effect to RPS provisions including cultural issues".[199] That puts the position too highly. Ms Trenouth did acknowledge that a FUZand subsequent structure planning could address the identification and protection ofspecific sites of cultural and historic heritage in accordance with the policies inChapter B6.5.2(1) and (7). But her overall conclusion was that the likely outcome offuture structure planning on the Peninsula would be a Light Industry zone,104 and thatthis would have "significant impact on Mana Whenua values". This result was notone which she identified as capable of mitigation in the same way. And I agree withMs Ash that, having regard to the principles established in Contact Energy Limited vWaikato Regional Council, it was unnecessary for the Environment Court to recordMs Trenouth's position in relation to the specific cultural sites.105[200] For these reasons I do not consider the Environment Court erred in law eitherin its assessment of Te Ākitai's position in relation to the appeal, the reasons for itsposition or the implications of its opposition in terms, inter alia, of B6.3.2(6).103 At [532].104 For the reason that the Airport Noise Overlay covered approximately half of the subject arearestricting or prohibiting residential development and the balance (inevitably accessed through abusiness/industrial area) was subject to noise mitigation requirements which would affect theeconomies of residential development.105 Contact Energy Limited v Waikato Regional Council (2007) 14 ELRNZ 128 (HC) at [65]. Namelythat there is no obligation on the part of the Environment Court to record every finding on everypiece of evidence or to record every part of it.[201] Significantly, however, when the Environment Court came to consider106 itsfinal result in relation to the Pūkaki Peninsula it was the identification of elite soils inthat location (and the ONF on Crater Hill) which was regarded as the "onecharacteristic of each site" which by itself outweighs the positive characteristics of thecounterfactual". The need to recognise and protect Te Ākitai's values in respect ofboth sites was regarded as supporting that status quo position. It is possible thereforethat, having found the Environment Court to have been in error in its construction ofRPS Chapter B.2.2.2(2)(j), Mana Whenua objections are not decisive in terms ofoutcome and that relief (whether by reference back or otherwise) remains appropriate.Result[202] To summarise, I have dealt with the appeal points in the following ways:(a) Section 148 of the LGATPA—Scope. The Environment Court did noterr in determining it had jurisdiction to reinstate the RUB as defined inthe PAUP.(b) Elite and prime soils. The Environment Court erred in the properconstruction of B2.2.2(2)(j): and in its assessment of whether therelevant areas containing premium soils were significant for theirability to sustain food production. These errors were material.(c) Outstanding natural features. The Environment Court erred in somerespects, but not in a material way. This ground of appeal fails.(d) Structure Plan Guidelines. This ground of appeal fails.(e) The Special Purpose Quarry Zoned lands. This ground of appeal fails.(f) Manu Whenua issues. This ground of appeal fails, but see mycomments in [201] above.106 Self Family Trust v Auckland Council [2018] NZEnvC 49, [2018] NZRMA 323 at [533].[203] I allow the appeals in the respects indicated and dismiss them where likewiseindicated.[204] As to relief, I consider that appropriately the subject of further submission afterthe parties have had an opportunity to consider the implications of this judgment.[205] I set the matter down for a telephone conference before me on 25 March 2019at 9.00 am when the parties can advise how they consider the matter appropriatelyadvanced and whether hearing time will be required.__________________________Muir J