SCHWEDER AND ANOR V FRANKLIN DISTRICT COUNCIL HC AK CIV 2007-404-003613

SCHWEDER AND ANOR V FRANKLIN DISTRICT COUNCIL HC AK CIV 2007-404-003613 13 February 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-003613UNDER the Resource Management Act 1991 IN THE MATTER OF of an appeal pursuant to s299 of the Act BETWEEN KARL SCHWEDER First Appellant AND FLYNN BROTHERS LIMITED Second Appellant AND FRANKLIN DISTRICT COUNCIL Respondent Hearing: 11 October 2007 Appearances: J D McBride and N B Goodger for Appellants H J Ash and B S Carruthers for Respondent Judgment: 13 February 2008JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 13 February 2008 at 1.00 p.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Bell Gully, PO Box 4199, Auckland Simpson Grierson, Private Bag 92518, Auckland[1] This is an appeal against a decision of the Environment Court on references to it about the contents of the respondent's district plan. The appellants allege that in determining the references, the Court erred by failing to give reasons for material aspects of its decision that will adversely affect their ability to develop their land in an appropriate way. They seek that the Environment Court's decision of 1 June 2007, by which it approved the relevant district plan provisions, be quashed and that the matter be referred back to the Environment Court for further proceedings.Background[2] The matter has a considerable history, although the full detail of it need not be set out. For present purposes, the starting point can be taken as the decision of the Environment Court (differently constituted from the Court whose decision is now subject to appeal) made on 15 October 1997, on references to the respondent's proposed district plan. The three appellants then before the Court included Mr Schweder and two other appellants who were parties to the present proceedings. [3] At issue, amongst other things, were the provisions of the respondent's proposed district plan applicable on Pukekohe Hill, an area rising to the south from the town of Pukekohe and zoned General Rural. In the Pukekohe Hill's Special Policy Area, some land uses, which are permitted activities in the General Rural zone, would become restricted discretionary or discretionary activities. Such activities would include dwelling houses on rural lots. Farming, horticulture and forestry would remain as permitted activities. [4] Consistently with the stance he has subsequently maintained, Mr Schweder (and the other appellants) then sought that the extent of the Pukekohe Hill Special Policy Area be reduced so that it applied only to the upper slopes of the hill. [5] Two policy justifications for the Pukekohe Hill Special Policy Area were advanced by the respondent. The first was the high visual values of Pukekohe Hill; and the second was the quality of the soils, recognising the need to protect them from urban expansion. The Environment Court found that the first of these justifications had not been established on the evidence. In relation to the second, it said, at page 8:The other reason, the high visual landscape quality of the hill, would not be effectively protected by the proposed provisions. We found ourselves persuaded by Mr Putt's analysis of the provisions that they do not have the coherence which should be found in district rules which pass the test formulated in Nugent Consultants v Auckland City Council. In particular, we find that the policy area controls on single dwelling houses and accessory buildings are not consistent with leaving farming, horticulture and forestry uncontrolled. Any of those activities could affect the present landscape character of Pukekohe Hill as much, if not more, than farm sheds or single dwelling houses on rural lots.[6] In the result, the Court directed the respondent to review the Special Policy Area provisions in the proposed district plan, in the light of the observations that the Court had made. The appeals were adjourned to enable the review to take place. [7] Apparently after some discussions between the parties, the Court, on 17 September 1999, made an order by consent. The order was essentially in two parts. By the first, the respondent was directed to amend the proposed district plan by reducing the extent of the Pukekohe Hill Special Policy Area, confining it to the area bounded by Jellicoe Road, Upper Queen Street, Bayly Road and Hilltop Road. Broadly, this applied the area to the upper slopes of Pukekohe Hill visible from in and around the town of Pukekohe. [8] By the second, the appeals were adjourned indefinitely while the following steps were ordered to be undertaken:(a) As a first step the Franklin District Council (FDC) will: (i) Identify up to three potential development options with [sic] the Tutaenui (North Pukekohe Hill) Catchment with a mix of rural, rural-residential and residential activities to be agreed as appropriate options with the parties to these proceedings. (ii) FDC will then model the stormwater management implications of these options, utilising stormwater management work it has already completed for Pukekohe. (iii) Report the results to the appellants and the Auckland Regional Council no later than 1 December 1999. (iv) FDC will report to the Court by 17 December 1999. (b) No later than 31 January 2000 and taking into account the results of the stormwater management investigation FDC is then to commence preparation of a structure plan (following the procedure in Rule 39 of the Proposed Plan) and of a Plan Change providing forappropriate residential, rural-residential and rural activities within the Tutaenui Catchment. (c) The FDC is to complete the Structure Plan on or before 30 September 2000. (d) The FDC is to publicly notify a Plan Change for the catchment on or before 30 September 2000. (e) After 31 January 2000 the FDC is to report at six-weekly intervals to the Court on progress with completion of the Structure Plan and the Plan Change.[9] On 30 November 1999, the Court made an order consenting to the respondent approving its proposed district plan, except as it related to the Tutaenui (North Pukekohe Hill) Catchment, as depicted on a map attached to the order. That catchment included the land affected by the references before the Court. Next, on 29 October 2000, the respondent publicly notified variation 6 to the proposed district plan and plan change 7 to the operative district plan, both of which provided in identical terms for the North Pukekohe Hill Structure Plan. This was described in the following terms at [5] of the Environment Court's decision of 11 August 2006 (which formed the basis of its decision of 1 June 2007, the subject of the present appeal) as follows:The philosophy underlying the NHSP was to allow some urban subdivision to take place, while at the same time retaining the open space character of the upper parts of the Hill, through gradational zoning up its slopes. Under that gradated zoning, the four areas still in issue would be zoned Rural- Residential which, as notified, would allow subdivision down to 1 ha. Following the submissions process, the Decisions Version of the NPHSP contained a number of changes including, most relevantly, a reduction of the minimum subdivision size to 5,000 m2.[10] As that passage indicates, the submissions process resulted in further changes to the proposed district plan provisions. Other parties then filed reference appeals, so that there were, in all, nine appeals, including the three that dated from 1995, before the Court when it embarked on the hearing of the references on 24 July 2006. By then however, a substantial measure of agreement between many of the parties had been achieved, and only Mr Schweder and three other appellants actually participated in the hearing. Interestingly, they did not include the second appellant in the present appeal, Flynn Brothers Limited. At paragraph [1] of its decision of 11 August 2006, the Environment Court observed:"As is apparent from the Intitulement, these reference appeals are of considerable antiquity, some dating back as far as 1995. Many issues originally raised have been resolved, and all but four of the persons and organisations named as appellants have had their concerns dealt with, one way or the other. The four appellants participating in this hearing were Kana Holdings Limited, J & H Bhula, Karl H Schweder, and N M and L O V Chick. Broadly stated, the issue of concern for them is the density to which they may develop, for residential use, land owned by them on Pukekohe Hill, immediately to the south of Pukekohe town."The Environment Court decision of 11 August 2006[11] At [6] to [8] of its decision, the Environment Court described the position that had been reached by agreement between the parties prior to the hearing in the following way:[6] Further reference appeals were lodged against the Decisions Version. The Council's consultants recommended changes, as did those for some of the appellants, and the NPHSP was further refined. What the Council now puts forward, and what all appellants except the four named in para.[1] accept, is the version contained in Attachment F to the evidence of Mr Peter Reaburn, the Council's consultant planner, and in Diagram 54C, attached to the evidence of Ms Mary Buckland, the Council's consultant landscape architect. [7] The Rural-Residential Zone has become the Special Rural Residential 1 Zone, and it includes all four pieces of land remaining in issue. A number of subdivision alternatives would now be possible. As a restricted discretionary activity subdivision to an average lot size of 5000m2, with an absolute minimum of 2500m2, would be possible if planting and infrastructure is in accordance with the NPHSP. If neighbouring owners are able to collaborate, and gain approval of a Development Area as a restricted discretionary activity, subdivision to an average of 3500m2 would be possible as a controlled activity, and site sizes smaller than 2500m2 would be possible as a discretionary activity. [8] These appellants are not content with that outcome. Three of them seek Special Residential zoning, enabling subdivision down to lot sizes of 1000m2 . Mr and Mrs Chick seek a one-off provision for their land, with the exact mechanism still to be settled upon, to enable five lots to be created, giving an average lot size of the order of 2100m2."[12] The Court then gave an overview of the proposed district plan provisions, noting that of the remaining appellants, only Mr Schweder raised any issue concerning the appropriateness of the objectives and policies contained in the version of the plan change that had been proffered by the Council following the discussions between the parties. It said, at [10]:[10] We now consider the appropriateness of what we must say are lengthy and repetitive objectives and policies before moving to consider whether the Special Residential zoning of the land sought by three appellants achieves the objectives, or implements the policies, of the proposed plan change in line with Suburban Estates Ltd v Christchurch City Council(C217/01). We are mindful that no change is sought to the objectives and policies now put forward by the Council and accepted by two of the appellants before us, and the other appellants who have already opted to accept the Special Rural Residential 1 zoning. The only appellant who still had concerns about the provisions of the proposed change was Mr Schweder, although his planning consultant, Mr Putt, did not share them. Mr Putt did not see any need for any change to the provisions before us, but preferred that any refinement occur after a period of working with them.[13] The Court then set out proposed district plan objectives and policies for Pukekohe Hill and the structure plan area. Following that, the Court mentioned that Mr Cavanagh QC, then counsel for Mr Schweder and for Mr and Mrs Chick, had questioned the adequacy of the steps taken by the Council to comply with its obligations under section 32 of the Resource Management Act. The Court observed at [13]:That required, in its pre-2003 form, an evaluation of the appropriateness of what is proposed to achieve the purpose of the Act and of achieving the relevant function, taking into account benefits, costs and alternatives. That proposition did illicit an express s32 report, dated 12 September 2000 and it incorporated, by reference, other documents also. We are conscious that things have moved on in the intervening six years, but when one considers all the briefs and reports that have been prepared, and all the suggestions and counter-suggestions that have passed between the parties and their respective consultants, there can be no realistic issue that the substance of s32 has been complied with.[14] The Court reviewed the particular areas of land that each of the appellants sought to have rezoned. It found that the zoning which the appellants sought for the Kana/Bhula land, and the Chick land was appropriate. Insofar as Mr Schweder's land was concerned, its relevant findings were that: (a) The owners of land immediately to the north (that is, further down the slopes of Pukekohe Hill towards the town) were in agreement with the proposed rural-residential zoning for their land and did not wish it to be rezoned with the Special Residential zoning that Mr Schweder was seeking for his land. Nothing was known of the views of owners of other rural-residential land downhill from the immediately adjacent properties. The Court thought that,to exceed to Mr Schweder's request that his land be zoned so as to allow subdivision down to 1,000m 2 would be to create an area of relatively high density land surrounded by land zoned rural-residential permitting less intense subdivision. (b) Mr Schweder's land was in a different position to that of land owned by the other appellants. In particular, at [31], the Court said:There are three main factors which differentiated from the Chick proposal. First, the Chick land is must less prominent when looking towards the Hill from viewpoints in and around the Town. Secondly, the Chick proposal is for five lots in a ribbon running down the Hill, rather than, say, a cluster of 21 residences in a typically suburban formation. Thirdly, the Chick lot sizes are twice the size of the Schweder proposal and therefore much more consistent with the pattern of development to surround them.(c) The Schweder land was "distinctly visible" from in and around the town of Pukekohe. [15] The Court's conclusions were expressed as follows at [35] to [36]:[35] We conclude that more intensive residential development would effectively be an island and incongruous in its rural residential surrounds. Even if the intervening properties lower down the hill had sought the Special Residential zoning, the effect would be a wedge of residential development going well above the level of development proposed on the west side of Anzac Road. The existence of a covenanted piece of bush and some houses on the intervening land do not mean the area should have a residential rather than rural residential zoning, contrary to the view put to us by Mr Scott. As we see it, quite the reverse is true. [36] Development to Special Residential density certainly permit Mr Schweder to maximise his return from the land. But that does not, in our clear view, overcome the adverse effects that such development would have on amenity values and the quality of the environment. Those values and quality are what is sought to be protected by the objectives and policies and the intent of the Structure Plan with its rural residential transition between the residential urban interface and the rural and open areas towards the summit of the Hill.[16] At this point, the Court turned to relevant provisions of Part 2 of the Act. Addressing first section 7(aa) (the "ethic of stewardship"), the Court held that continued use of the affected land for its present uses would not be good stewardship. Using it for residential purposes, given its quality and the benefits that would flow from that would be good stewardship. The Court then discussed section7(c) (maintenance and enhancement of amenity values) and section 7(f) (maintenance and enhancement of the quality of the environment). It observed:In this case, these two factors are virtually synonymous and can be dealt with together. The amenity values of the slopes of the Hill, i.e. the natural or physical qualities and characteristics that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes have been identified as the backdrop they give to the Town and surrounding areas, particularly the open character of the summit and upper slopes. The NPHSP seeks to at least maintain those amenity values, and the quality of the effect of the environment, which we regard as being the visual catchment on, and looking into, the northern slopes of the Hill. Developing the Kana/Bhula and Chick land as discussed will not impair amenity values, or that environment. A high density development of the Schweder land will impair both.[17] With respect to section 7(g) (any finite characteristics of natural and physical resources), the Court said:"All land resources are finite, in an absolute sense. This land resource, with the qualities that have been identified, should be developed in a way that takes advantage of those attributes, balanced against other factors such as amenity values."[18] As far as section 6 is concerned, the Court was not sure that Pukekohe Hill could properly be described an "outstanding natural feature and/or landscape". However, assuming that to be the case, the rezoning of the Schweder land would be quite "inappropriate". [19] Next, in terms of section 5, the Court noted that it required an overall balancing in respect of each of the appeals before it, of all of the factors so as to decide what outcome would best achieve the purpose of the Act. In that respect, the Court concluded that allowing the requested levels of development of the Kana/Bhula and Chick land would enable the respective owners to provide for their economic wellbeing, and would contribute to the economic and social wellbeing of the community. With respect to the land covered by those appeals, such outcomes could readily be achieved while avoiding, remedying or mitigating any adverse effects on the environment. However, in the case of the Schweder land: the adverse effects of residential scale development on amenity will be significant and cannot, in our view, be avoided, remedied or mitigated. In the case of that land the balance tips the other way .[20] The final substantive paragraph in the decision ([43]) was headed "Result", and is of central importance to the present appeal. It reads as follows:"In respect of the Kana/Bhula and Chick pieces of land, we are rather attracted to the Scott Concept Plans as giving practical expression to what those land owners wished to do, but at this stage, we do not wish to be overly prescriptive indicating the on-the-ground outcome. For the moment, we simply direct the Council to modify and amend the proposed Structure Plan to accord with the views we have expressed. In that regard, we have considered the suggestions made by Mr Schweder about the Structure Plan provisions, and we think that some of his points have merit. We attach as an Appendix a series of notes taken from his material which might be considered in the course of finalising the Plan's terms. The final shape of the Plan Change/Variation is to be submitted for approval after appropriate discussion between the affected parties. The parties will also need to consider whether stormwater issues are resolved, we ask that that be done by 15 September 2006."[21] Finally, the issues raised on the appeal require reference to the Appendix mentioned in [43] of the decision. The Appendix reads as follows:Appendix: We consider Mr Schweder's views could usefully taken account of in considering the following:• The reference on page 16 to Pukekohe North East should be to North Pukekohe Hill• Some confusion in the text of 23.9.1.2 as to the parts that relate to the SPA and the NPHSP Area• The inclusion of the general location of the proposed stormwater interception system (in line with Policy 5 of Objective 54.8.3.1)• Suggestions for Objective 54.8.3.2 and its associated policies with respect to low impact design• The option of connecting to a public sewerage system in the Rural and Rural Residential 1 zones in 54.8.7.6 points 2 and 3, and 54.8.7.7 point 3, recognising this would have to be available and acceptable to the Council, and noting that the option of connecting to a public sewerage system would be in keeping with the final paragraph on p8 of Mr Reaburn's Annexure F• A mismatch between Objective 17.2.7 and the Anticipated Results, with the latter referring to upper and mid slopes and the former only to supper slopes• Policy 1 of Objective 54.8.3.2 (page 34) refers to 'minimum site size of 1000m2 (net average) in the Special residential Zone'. Does this mean the average of all the minimum lot sizes in the Special Residential Zone(there will be one such for each approved subdivision) must exceed 1000m2 . Hence the first subdivision could have a minimum site size of 500m2 by assuming later developers would be required to have a minimum lot size that will raise the average. With this interpretation there is no minimum average size for an individual subdivision. Is this intended? The same comments apply to the figure of 3500m2 in the next line• 'Meters' should read 'metres' on page 46Subsequent procedures[22] Following receipt of the Court's decision, there was a process that began when the Council provided a revised version of the plan change to the other parties of 11 September 2006. A letter from the Council's solicitors to the Court explained that there had been some delays in preparing a revised diagram showing the Development Areas now authorised by the Environment Court's decision, and seeking an extension of the timetable within which the parties could respond to the Court as envisaged by [43] of the decision. [23] For various reasons not material here, further extensions were sought and granted. The parties met and drafting work was carried out by the Council and forwarded to the parties. In a memorandum dated 23 February 2007, counsel for the respondent explained that it had not been possible to reach agreement with Mr Schweder and a further extension from the Court was sought and granted. On 19 March 2007, the Council filed a further amendment advising that little if any progress had been made towards achieving a final settlement. [24] There was further correspondence between the parties and the Court in March and April 2007 following which a minute was issued by the presiding judge on 4 May 2007. That minute was in the following terms:[1] The Court's decision of 11 August 2006 (W000/2066) requested the parties to confer about the final form of the Structure Plan, and suggested that some of the matters raised by Mr Schweder in evidence might usefully be considered in doing that. [2] I understand that the essentials of the Structure Plan are agreed, but that discussions about the incidental or detail matters have stalled. [3] We did not regard those matters as essential in resolving the real issues, and it is long past time that the appeal was finalised. I ask thatMs Ash forward the Structure Plan, as it now stands, for approval by the Court.[25] The minute led to what counsel for the respondent described as a "flurry of memoranda and material being submitted to the Court". Counsel for other parties filed a joint memorandum dated 8 May 2007 to which was attached a version of the proposed district plan provisions that had been prepared by their planning consultant, Mr Putt. Then, on 9 May 2007, Mr Schweder filed a detailed memorandum outlining his understanding of the steps taken since the Court's decision, remaining issues of concern, and expressing his hope that the matter would be capable of resolution by discussion between the parties. [26] On 10 May 2007, the respondent filed its memorandum, as it had been directed by the Court. [27] On 24 May 2007, Mr McBride filed a memorandum on behalf of Flynn Brothers Limited, hitherto represented by other counsel. In that memorandum, Mr McBride recorded that his client supported the views expressed by Mr Schweder and that it opposed many of the amendments proposed by the Council. An opportunity to be heard was sought by Flynn Brothers Limited before the provisions of the Structure Plan were finalised. [28] Then, on 1 June 2007 the Court issued the decision which is the subject of the present appeal.Environment Court decision of 1 June 2007[29] The Court's decision was comparatively brief. It was in the following terms:Introduction[1] In our decision of 11 August 2006 (W066/2006) we made various findings about the proposals for residential redevelopment of some of the north-facing slopes of Pukekohe Hill. Somewhat optimistically, as it has turned out, we asked the parties to confer about the final shape of a Structure Plan, and to report to the Court on that by 15 September 2006. The parties still cannot agree on the terms of such a Plan. One of the issues that seems to be causing difficulty is compliance with the Appendix to our substantive decision. The Appendix was plainly no more than a list of suggestions arising from the evidence of one of the appellants which we thought mighthelp the discussions. Plainly it has not, but there was and is no suggestion that it needs to be complied with. [2] We are not assisted by recitations of complaints from the parties about the alleged intransigence of the others. The short point is that if the parties are still so far from agreement after nearly 10 months, it is plainly time that the Court resolved the matter, and we do so on the basis that it is obviously not possible to concoct a version of the Plan which in some fashion reserves to one party the option to later seek consequential amendments. [3] We have read the memoranda lodged, including that lodged by Mr Schweder personally. The version of the Structure Plan, being Variation 6 and Plan Change 7, prepared by the Council and attached to Ms Ash's memorandum of 10 May 2007 includes amendments arising out of our substantive decision, and further amendments suggested by the appellants and agreed to by the Council, whether the Council considered them essential or not. [4] We consider that to be a perfectly satisfactory document, and not to be improved by the voluminous further material put forward by other parties.Order[5] The Council is directed to amend its District Plan in accordance with the version of the Structure Plan prepared by the Council, noted as Version May 10 2007 and attached to this decision, save of course that the notedExplanations may be omitted.[30] It is to be observed that, by the reasons it gave, the Court did not add to the reasoning that had led it to the conclusions expressed in its previous decision of 11 August 2006.The appellants' argument[31] The notice of appeal alleged that the Environment Court had erred in approving the version of the plan change that had been submitted by the Council by its memorandum of 10 May 2007, by failing to comply with the principles of natural justice or to act in a way that was otherwise procedurally fair. Further allegations were that the respondent had failed adequately to consult the appellants and other affected parties regarding its version of the plan change prior to submitting it to the Environment Court and that the Environment Court had failed, contrary to an alleged obligation to do so under section 293 of the Resource Management Act, to hold a hearing to consider the plan change before confirming it.[32] Although these issues were addressed by the counsel for the parties in their written submissions filed in advance of the hearing in this Court, as the argument developed, the appellants effectively abandoned these allegations in favour of another issue that had been raised in the notices of appeal. This was the contention that the Environment Court had erred by failing to give reasons for its decision to approve the plan change on 1 June 2007. Mr McBride confirmed in written submissions in reply that this was the sole issue requiring determination by the Court. [33] This change in the emphasis of the appellants' argument reflected to some extent views that the Court expressed during the hearing. There had clearly been consultation by the Council with the other parties about the wording of the new version of the plan change. The case was also not one in which the Environment Court had purported to exercise any powers under section 293 of the Act, but had rather been acting throughout under Part 1 of Schedule 1 to the Resource Management Act. Be that as it may, the appellants' submissions in reply focused solely on the issue of whether adequate reasons had been given in either of the Court's decisions before the Court's rejection of Mr Schweder's concerns. [34] Mr McBride characterised those concerns as: a) "The conflation" of the Special Policy Area and the rest of Pukekohe Hill; b) the unworkable requirement to promote or maintain open space in the Special Rural Residential 1 Zone, as against Mr Schweder's preferred approach of "low impact design"; c) site coverage by impervious services; and d) connection to the public infrastructure, including the stormwater system.[35] Mr McBride referred to the list of bullet points that the Environment Court had attached as the appendix to its decision of 11 August 2006, and maintained that bullet points 2, 4 and 6 related to "unresolved core issues" that had been raised in Mr Schweder's evidence to the Environment Court. Because the Court at [43] had directed that there be appropriate discussion between the parties before submission of the plan change/variation in its "final shape", Mr McBride contented that it necessarily followed that the formal approval of the plan change had been left for a later date. [36] For the respondent, Ms Ash identified in her submissions 23 changes that had been sought by Mr Schweder in his memorandum of 9 May 2007, maintaining that the majority of the requested changes were simply an attempt to relitigate the matters of concern to Mr Schweder. Only three of the requested changes had related to the amendments drafted by the Council following the issue of the Court's decision of 11 August 2006, and a small number had sought amendments to provisions that Mr Schweder had not previously identified as requiring amendment. [37] Nevertheless, Mr McBride contended that there was no evidence that the Environment Court took any of Mr Schweder's key concerns into account in reaching its decision of 1 June 2007. He pointed out that there was no mention in the 1 June 2007 decision, or that of 11 August 2006, of Mr Schweder's submission that the Special Policy Area had been effectively extended to his property, notwithstanding the earlier consent order limiting its boundaries. Nor was there any mention in either decision of Mr Schweder's contention that references to "open space" should be replaced by references to "low impact design", a point that followed from his concerns that the Special Policy Area objectives had been "conflated" with the Structure Plan objectives. [38] As to the bullet points in the appendix to the 11 August 2006 decision, they had not been expressed so as to be a comprehensive list of Mr Schweder's concerns, nor had there been a discussion of the context of the bullet points and why they might represent concerns that he had. In effect, Mr McBride argued there had been no discussion of the merits of Mr Schweder's main concerns, and no decision as to whether or not the Court agreed with the appellants' views. In the circumstances, ithad been wrong for the Court to state in its minute of 4 May 2007 that the "outstanding matters were not essential to resolving the real issues" (Mr McBride's paraphrase) when the 11 August 2006 decision had made no such suggestion. There was, he submitted, no explanation as to why concerns previously said to have "merit" had become "non-essential" by May 2007. [39] Mr McBride argued in relation to the second of the bullet points in the appendix to the 11 August decision that while the Council had, in the final version of the plan change, amended the text of paragraph 23.9.1.2 to distinguish between the Special Policy Area and the North Pukekohe Hill Structure Plan Area, Mr Schweder's concern was that the confusion permeated throughout the entire document, creating inconsistencies and contradictions and he referred to other provisions that had been highlighted by Mr Schweder in the version of the plan change that he had put before the Environment Court with his memorandum of 9 May 2007. [40] With respect to the fourth of the bullet points in the appendix, in relation to objective 54.8.3.2 and its associated policies, it had been Mr Schweder's contention that the objective should refer to the promotion of low impact design, rather than open space, a view consistent with his argument that there needed to be a distinction drawn between the Special Policy Area and northern slopes of the hill. [41] With respect to the sixth of the bullet points in the appendix, summarised by the Court as a "mismatch between objective 17.2.7 and the Anticipated Results", Mr McBride accepted that the Council had resolved that inconsistency by amending the plan change text to refer to "northern slopes" instead of "upper slopes". However, he maintained that as a consequence of that change, all of the northern slopes of the hill, including the appellants' properties, were now said to have "significant heritage and amenity values". This was inconsistent with what the Environment Court has ordered in 1999. [42] Overall, Mr McBride contended that the Environment Court had not dealt with the detail of the points made in Mr Schweder's memorandum of 9 May 2007. He submitted that if it was addressing Mr Schweder's evidence from the hearing inJuly 2006, together with the views expressed in his 9 May 2007 memorandum, then the Court needed to say so in its decision of 1 June 2007, and it should also have given reasons for its decision to reject his concerns. [43] In making these submissions, Mr McBride relied on the observation of the Court of Appeal in Lewis v Wilson & Horton Limited [2000] 3 NZLR 546 at [80] that:It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful.[44] He also referred to Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 in which, at [70], Ronald Young J quoted from de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th Edition, 1995) at para 9-049:It is clear that the reasons given must be intelligible and must adequately meet the substance of the arguments advanced. However, it is still difficult to state precisely the standard of reasoning the court will demand. Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises. The courts have not attempted to define a uniform standard or threshold which the reasons must satisfy. For example, it may be unrealistic to require a tribunal faced with conflicting evidence on a matter that is essentially one of opinion, to state much more than that on the basis of what it has heard and of its own expertise it prefers one view to the other or that it finds neither wholly satisfactory and therefore adopts its own. On the other hand, the reasons must generally state the tribunal's material finding of fact (and, if the facts were disputed at the hearing, their evidential support), and meet the substance of the principal arguments that the tribunal was required to consider. In short, the reasons must show that the decision maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, as the case may be, won.[45] At [71], Ronald Young J noted that that passage from de Smith, Woolf and Jowell had been cited with approval by Henry L J delivering the judgment of the Court of Appeal in Flannery v Halifax Estate Agencies Limited [2000] 1 All ER 373. In that case, there was a negligence claim against valuers of the property purchased by the plaintiffs. The claim had been dismissed in the County Court, the judge stating he preferred the evidence of the valuer's expert witness. The Court of Appeal allowed the appeal. At page 378, Henry L J observed:The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases. This is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.[46] Mr McBride submitted that, in the present case, the appellants had been deprived of a properly reasoned decision explaining why the provisions in the plan change had been approved by the Environment Court, notwithstanding their objections. The result of the process, from the appellants' point of view, was that their properties had been characterised by the approved plan change as having significant heritage and amenity values requiring protection, as well as special landscape values. Whilst that might be true of land in the Pukekohe Hill Special Policy Area, it was not applicable to the appellants' properties. Further, it was not appropriate for open space to be promoted in the context of subdivision of the appellants' properties. That was effectively another Special Policy Area objective which should not apply to properties in the rural-residential 1 zone. Further, the site coverage provisions which had been provided were no different from those in the rural zone and, inappropriately, no opportunity had been afforded to connect to reticulated infrastructure. [47] By failing to give reasons for its rejection of these concerns, the Environment Court had made a material error or law.Discussion[48] It is to be noted that the argument on the appeal to this Court has not been directed to establishing any error by the Environment Court in the decision that it made concerning the zoning of Mr Schweder's land. At the same time, it should be mentioned that Flynn Brothers Limited had not challenged the zoning of its land, being content with what was proposed in the amended version of the plan change that was before the Environment Court at the outset of the hearing that lead to the decision of 11 August 2006. [49] I think it is plain that the zoning issue was in fact finally determined by that decision. To the extent that the 11 August 2006 decision required further procedures, that was in the nature of fine tuning of the objectives, policies and rules which were to apply with respect to the land of the appellants who participated in the hearing in the Environment Court in a substantive way. But the zoning of their land was established by the Court in the 11 August 2006 decision and there was no appeal from that decision. It is apparent also from what the Court said at [43] of its 11 August 2006 decision and the appendix that was attached to it, that the Court envisaged that there would be some drafting changes to the plan provisions that were identified in the appendix. Apart from the correction of thoroughly minor matters such as typographical errors, the apparent purpose of the changes that the Court envisaged was to ensure that the proposed structure plan and its associated provisions were in accord with the views that the Court had already expressed in its decision. Its reference at [43] to the "suggestions made by Mr Schweder" was expressed "in that regard". [50] I also consider that it is implicit in the Court's decision that it was in agreement with the appropriateness of the proposed policies and objectives of the proposed district plan provisions as set out in the version of the plan change proffered by the Council, with the agreement of most of the parties to the nine reference appeals, at the outset of the hearing. Certainly, the Court quoted those policies and objectives which it considered most significant to the outcome of the present appeals at [11] and [12] of its decision, without any suggestion that the policies were inappropriate. That the Court thought those policies and objectives tobe appropriate is implicit also in the comparatively detailed discussion later in the judgment about the merits of the different zonings sought by the appellants before their individual properties. In each case, the rezoning proposals were evaluated against the objectives and policies proposed in the plan change and the proposed rezoning was either accepted (in the case of the land owned by Kana Holdings Limited, J & H Bhula and Mr and Mrs Chick) or rejected (in the case of Mr Schweder's land) accordingly. [51] I accept that in [10] of the 11 August 2006 decision, which I have earlier set out, the Court said that it was intending to consider the appropriateness of the "lengthy and repetitive objectives and policies" (some of which it then quoted), but that it never in fact expressed an explicit conclusion on that issue. Nevertheless, if the decision is read as a whole, I am in no doubt that the Court considered that the objectives and policies were appropriate. Apart from the matters that I have already referred to, the Court's discussion of the relevant matters arising for consideration under Part 2 of the Resource Management Act supports that conclusion. Again, I have already mentioned that part of the Court's decision earlier in this judgment. Here, however, I refer again to the Environment Court's expressly stated view that the amenity values of the slopes of the Pukekohe Hill consisted in the backdrop it gave to the town and surrounding areas, and in particular, the open character of the summit and upper slopes. The quality of the affected environment was to be seen in terms of the "visual catchment on, and looking into, the northern slopes of the Hill". It was the qualities of the hill as a whole which appeared to have formed the contextual background to the Court's conclusions that the re-zoning which Mr Schweder had sought for his property should not proceed:In the case of the Schweder land however, the adverse effects of residential scale development on amenity will be significant and cannot, in our view, be avoided, remedied or mitigated.[52] In summary, Mr Schweder's issues with the drafting of the proposed plan provisions, apart from zoning, centred on his perception that the provisions had adopted too restrictive and protective a stance in respect of the slopes of Pukekohe Hill, below Jellicoe Road, in the vicinity of his land. That concern arose in part from the wording of the objectives and policies mentioned in the appendix to theEnvironment Court's decision, but as Mr McBride pointed out in argument, the concerns were in fact wider than had been summarised by the Court in the appendix. [53] In fact, as Ms Ash submitted, the amended version of the plan that was prepared by the Council following the Court's 11 August 2006 decision, dealt with many of the issues that Mr Schweder had raised in relation to the provisions mentioned in the appendix. With respect to the second bullet point, Ms Ash pointed out that virtually all of the changes that Mr Schweder had sought within paragraph 23.9.1.2 had been agreed to by the Council. The further provisions to which Mr McBride made reference were in different parts of the proposed new district plan provisions. [54] With respect to the fourth bullet point, Ms Ash pointed out that the version of the plan change submitted with her memorandum of 12 May 2007, reference had been made to guidelines to assist in the preparation of development area plans and site development plans, which guidelines would include suggested methods for low impact design. She explained that Council's preference had been to deal with the matter in that way, rather than to alter the basic objective of promoting an open space landscape character for the middle and upper slopes of the hill. Mr Schweder's approach, by contrast, had used the expression "low impact design" with reference to subdivision and development within the Structure Plan Area, retaining "open space landscape character" only for reference to the upper slopes of the hill. [55] He had suggested changes to the policies which supported the basic objective in accordance with his changed wording for the objective. While the Council's approach did not go nearly so far as Mr Schweder would have wanted, it is not without significance that one of the policies which the Council maintained throughout the process, but which Mr Schweder sought to have removed and replaced with a different wording, was that:development generally be graduated from more intensive at the bottom of the Pukekohe Hill to less intensive at the top of Pukekohe Hill, with particular attention being given when averaging site sizes to provide for the largest sites in those areas which are most visible from public places, including views to the Hill from the north.[56] That policy had been in the plan at least since the outset of the hearing before the Environment Court in July 2006 and was part of the general policy framework that the Court clearly intended to approve. Further, as Ms Ash pointed out, Mr Schweder in his memorandum of 9 May 2007 clearly drew to the Court's attention his preferred wording for this provision. [57] As to the sixth bullet point, in which the Court referred to the "mismatch" between objective 17.2.7 and the "Anticipated Results", Ms Ash maintained that this point too had been dealt with appropriately in the Council's redraft of the plan change provisions. This has been done by making it plain that the objective stated in 17.2.7 was protection of the significant heritage amenity values of the summit of Pukekohe Hill and protection of the northern slopes of Pukekohe Hill from inappropriate development. Thus, there was in fact a match between the objective and the anticipated results, the latter also referring to the protection of the heritage and amenity values of the summit on one hand, while on the other, referring to management of the mid and upper slopes of Pukekohe Hill so as, amongst other things, to create a visual and landscape character which respects existing amenity values and ensures retention of "an open space quality and character". [58] As I have noted, it was Mr McBride's submission that the wording chosen by the Council had extended the heritage and amenity values of the summit to the entire area of the slopes of the hill. I do not consider that that is the correct interpretation of the wording that the Council has used. Lest in future there should be any doubt about the meaning of the objective, I hold that the reference to significant heritage and amenity values relates to the summit of Pukekohe Hill. Those significant heritage and amenity values are to be protected. Also to be protected are the northern slopes of Pukekohe Hill. In that case, the protection is to be from inappropriate development. [59] Mr McBride is clearly correct when he submits that the Environment Court did not deal with the detail of the points made in Mr Schweder's memorandum submitted to the Court on 9 May 2007. The question, however, is whether the Court was obliged to do so. Having dealt with the appropriate zoning provisions for the land, having by necessary implication supported the general policy thrust of theCouncil's objectives and policies for Pukekohe Hill, what was to flow from the Environment Court's decision of 11 August 2006 were essentially I think matters of detail. Some comparatively major surgery to the structure plan was necessary to cope with the rezoning that the Court directed in respect of the land of the other appellants. Leaving that issue on one side, I have reached the view that it was not the Court's intention that Mr Schweder's concerns, summarised in the appendix, had to be included in the proposed plan change. That I think is plain from the wording that the Court used to refer to the matters in the appendix, namely as matters which "might be considered" in the course of finalising the plan's terms. [60] The process that was subsequently followed, including the submission by a number of parties of memoranda dealing with the detailed drafting of the district plan provisions, was not one that required the Court to deal in detail with reasons for accepting or rejecting different drafting approaches taken by the parties. On the view I take, it is also not correct to suggest that Mr Schweder's concerns were not dealt with on the merits. Essentially, that occurred in the Court's decision of 11 August 2006 which can only properly be read as concluding that although the highest amenity values attached to the area of Pukekohe Hill south of Jellicoe Road, the area to the north, including the appellants' property, was also important in terms of its visual quality and amenity. That was essentially why the Court felt able to say, as it did in its decision of 1 June 2007, that the documents submitted by the Council with Ms Ash's memorandum of 10 May 2007 was a "perfectly satisfactory document, and not to be improved by the voluminous further material put forward by other parties."Outcome[61] In substance, the decision which the Environment Court made on 11 August 2006 dealt with the main issues between the parties by deciding on the zoning of the land and relying on the major elements of the proposed policy framework, as well as the provisions of Part 2 of the Act for its analysis of the appropriate outcome. What was to follow was essentially a matter of fine tuning which did not require a descent into the details of reasons for preferences for particular drafting approaches in the district plan provisions that were finally to be approved.[62] In the result, I do not consider that the appellant has demonstrated that the Environment Court erred in law in the respects alleged. The appeal is therefore dismissed. [63] The respondent is entitled to costs. If costs cannot be agreed, I will receive memoranda on the subject on the basis that the matters should be treated as within Category 2 and band B.