SOROKA v WAIKATO DISTRICT COUNCIL [2023] NZCA 510

SOROKA v WAIKATO DISTRICT COUNCIL [2023] NZCA 510 [20 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA575/2021[2023] NZCA 510BETWEEN GLENN MICHAEL SOROKA ASTRUSTEE OF THE PAKAU TRUSTAppellantAND WAIKATO DISTRICT COUNCILRespondentHearing: 8 May 2023Court: Mallon, Moore and Fitzgerald JJCounsel: R B Enright and J C Dawson for AppellantP Moodley and E S Greensmith-West for RespondentJudgment: 20 October 2023 at 4 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on aband A basis and usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Table of contentsIntroduction [1]Conservation Lots [14]Environmental Lots [21]The application [42]Application consideration [54]Waikato District Council [54]Auckland Council [65]July 2012 resource consent [70]Subsequent events [77]Assessment on appeal [85]Resource consent to crystalise TRLRs? [85]Maximum of 20 TRLRs? [100]Result [120]Introduction[1] This appeal concerns a regime under the former Franklin District Council'sDistrict Plan that created subdivision lot rights if a landowner protected significantnative flora and fauna by way of covenant. The initial scheme under theFranklin District Plan was for subdivision lots, called Conservation Lots, to be createdon the land on which the covenant was registered. They allowed development on theland that contained the area to be protected.[2] At the relevant time, the Franklin District Council had notified Plan Change 14that proposed changes to the subdivision rules in the Franklin District Plan. Once theplan change became operative, Environmental Lots would replace Conservation Lots.These lots could either be utilised on the same land that would have the protected area(as was the case with Conservation Lots) or transferred to other sites (which was notthe case with Conservations Lots). The ability to transfer lots to other sites was toenable development on other sites in areas that were suitable for development so as toaccommodate the Franklin District's growing population, while preserving andenhancing the natural features of the protected area.[3] Environmental Lots to be transferred off the site with the protected area werereferred to as "transferrable rural lot rights" or TRLRs. Where TRLRs were utilised,the land which gave rise to the Environmental Lots was referred to as the donorproperty, and the land on which the subdivision would be carried out utilising theTRLRs was referred to as the receiver property.[4] The appellant is a trustee of the Pakau Trust. Mr Soroka, on behalf of thePakau Trust, is the registered proprietor of land referred to as the Klondyke Block.The Klondyke Block is an approximately 220 ha rolling block of land covered innative bush that lies to the west of Port Waikato. The bush consists of maturepodocarp-broadleaf and kānuka forest that include rimu, miro, tawa, kohekohe,kānuka and taraire as well as populations of threatened bird and plant species such askūkupa and king fern.[5] Mr Soroka wished to utilise the TRLR regime under Plan Change 14 byregistering a covenant with the Queen Elizabeth II National Trust (the QEII covenant)over most of the Klondyke Block in return for subdivision opportunities.In April 2012 he made an application to this effect (the April 2012 application). Thescope of his application is in dispute. However, it is not in dispute that he proposed toconserve approximately 204 ha of indigenous flora and fauna on the Klondyke Blockin return for Conservation Lots or Environmental Lots, 13 of which would be utilisedfor a subdivision to be carried out in two stages on separate land at Chamberlain Road,Bombay, Auckland (the Chamberlain Road property).[6] At this time, the Franklin District Council had been disestablished andabsorbed into the amalgamated Auckland, Waikato and Hauraki districts but itsplanning instruments remained operative.1 The Klondyke Block was within theformer jurisdiction of the Franklin District Council. Following amalgamation, it wassubject to the jurisdiction of the Waikato District Council. The Chamberlain Roadproperty, on which the 13 TRLRs would be utilised, was within the jurisdiction of theAuckland Council. Mr Soroka's April 2012 application was accordingly made to boththe Waikato District Council and Auckland Council.[7] In July 2012 a resource consent was granted to Mr Soroka in a combineddecision of the Waikato District Council and Auckland Council (the July 2012resource consent). The decision granting consent described the application as one to:covenant approximately 204 ha of the Klondyke Block; undertake a TRLR subdivision1 See Local Government (Auckland Council) Act 2009, s 2; and Local Government (AucklandTransitional Provisions) Act 2010, s 78(5). This remained the position until the Auckland UnitaryPlan became operative-in-part in November 2016.for 13 lots to be created at the Chamberlain Road property; and to carry out earthworksat the Chamberlain Road property. The conditions of consent covered these threeaspects of the application.[8] Mr Soroka registered the QEII covenant over the Klondyke Block in February2013 and he proceeded with the 13 lot subdivision at the Chamberlain Road propertypursuant to the July 2012 resource consent. A dispute arose between Mr Soroka andthe Waikato District Council over whether, having registered the QEII covenant inaccordance with the consent granted, he had further existing TRLR entitlements thatcould be utilised for further subdivisions (subject to the granting of a resource consentfor subdivision at the receiver sites).[9] This dispute arose in the context of the Waikato District Council andAuckland Council having publicly notified Variation 13 to Plan Change 14 to prohibitthe transfer of TRLRs across territorial boundaries. Mr Soroka filed an appeal toVariation 13 in April 2015. Mr Soroka's appeal was resolved by a consent order ofthe Environment Court that amended Variation 13. This amendment stated thatMr Soroka had 14 Environmental Lots remaining as at 12 November 2015 pursuantto the July 2012 resource consent and permitted their utilisation in the AucklandCouncil's environment enhancement overlay area (the area that he had specificallysought the exception would apply to).2[10] Mr Soroka later received resource consents for subdivisions in theamalgamated Auckland region by which stage he had utilised a total of 29 TRLRs(inclusive of the original 13 utilised at the Chamberlain Road property and the 14referred to in the Environmental Court consent order).3 Subsequently, he filedproceedings in the High Court. He claimed that, having registered the QEII covenantpursuant to the 2012 July resource consent, he was entitled to 64 TRLRs under therelevant planning rules of which he had utilised 29. He sought declarations to thiseffect and an order requiring the Waikato District Council consent to the transfer fromthe Klondyke Block of 35 TRLRs to new receiver properties which he accepted wouldthemselves need to obtain a resource consent.2 As a restricted discretionary activity under Variation 13 as amended.3 It is unclear how the remaining two TRLRs were utilised.[11] His claim was unsuccessful in the High Court.4 Hinton J accepted the WaikatoDistrict Council's position that: the creation of TRLRs required a resource consentfor the donor property (as well as a resource consent for the subdivision on the receiversite);5 and the application for which the resource consent was granted was anapplication for 29 TRLRs and the Waikato District Council had no power to grantmore than was applied for.6[12] Mr Soroka now appeals to this Court. The principal issues on appeal, asaccepted by the parties are:(a) whether a resource consent was required for the crystallisation ofTRLRs in respect of the Klondyke Block; and(b) whether there was a maximum limit of 20 TRLRs under the relevantplanning rules.[13] It is accepted by the parties that both of these matters must be established inMr Soroka's favour for the declarations and order he seeks to be granted.Conservation Lots[14] The Franklin District Plan was the operative plan at the relevant time. Itprovided for Conservation Lots. These allowed on-site subdivision in exchange forthe protection of qualifying indigenous flora and fauna. This was in the context of theFranklin District Council's policy goal to protect significant indigenous flora andfauna — a matter of national importance under the Resource Management Act 1991(the RMA).7[15] Rule 22 of the Franklin District Plan concerned subdivision in Rural, Wetlandand Forest Conservation Zones. Conservation Lots in these zones were "Discretionary(Restricted Assessment)" activities requiring a resource consent.8 As a Discretionary4 Soroka v Waikato District Council [2020] NZHC 2191.5 At [44]–[59]. The necessity for a resource consent on the receiver property was not in dispute.6 At [60]–[77].7 Resource Management Act 1991 [RMA], s 6(c).8 Franklin District Plan 2000, r 22.3.(Restricted Assessment) activity, the Council's discretion in determining whether togrant a consent was restricted to specified matters.9 The specified matters were theperformance standards in r 22.9, the general performance standards in r 22.6, theassessment criteria in r 22.9, and the general assessment criteria in r 22.7.[16] The performance standards in r 22.9:(a) required an area of at least 5,000 m2 of native bush, or of naturalbiological or scientific significance, to be defined on the applicationplan and nominated for protection;10(b) required that the nominated area be protected in perpetuity;11(c) set out the number of Conservation Lots permitted as follows:124. The subdivision of Conservation Lots is permitted on thefollowing basis:Total Area of Feature Protected Number of Lots that can be created(excluding balance lot)0.5 ha to 8.9 hectares 19.0 – 15 hectares 2- and so on, on the basis of 1 extra lot for every 6 hectares ofbush/feature protected.In all cases the whole of the bush, feature or area worthy ofprotection on the property must be made subject to legal andphysical protection at the time of consent and no area of bushor other feature can be left out or divided for the purposes ofobtaining additional lots.(d) required that an area of at least 2,500 m2, exclusive of the area beingprotected, be available to accommodate a dwelling and associatedeffluent disposal fields;139 RMA, ss 77B and 87A(3)(a).10 Franklin District Plan, r 22.9A.2.11 Rule 22.9.A.3.12 Rule 22.9.A.1.13 Rule 22.9.A.5.(e) required that the house site of the lot be on the property that containedthe area to be protected but could be distant from the area to beprotected, and the area to be protected could remain within the balancelot rather than be within the Conservation Lot.14[17] The performance standards in r 22.9 also incorporated the general performancestandards set out in r 22.6.15 These:(a) required that all new lots have access to a formed legal road;16(b) set private way standards where access from the road to one or morelots was by way of right of way, common access lot or similar;17(c) required that all new lots have an area of at least 2,500 m2 and containa safe and stable building platform with sufficient land for effluentdisposal fields;18(d) required that all new lots be sited or designed so as to be capable ofbeing served by an effective stormwater system, as outlined in thegeneral assessment criteria in r 22.7;19 and(e) required prior consent from Transit New Zealand if any form of accesswas to be provided from a state highway.20[18] The assessment criteria in r 22.9 were:(a) the significance of the area to be protected.21 This was to be assessedwith reference to the extent to which the native bush to be protectedmet various criteria concerning its size and shape, canopy shape, range14 Rule 22.9.A.6. That latter requirement makes it clear that the Conservation Lots are thesubdivision lots created by taking the necessary steps to protect an area of land on the sameproperty. The created subdivision lots need not themselves have any protected conservation areas— the area of protection may be on the balance of the land.15 Rule 22.9.A.1.16 Rule 22.6.1.17 Rule 22.6.2.18 Rule 22.6.3.19 Rule 22.6.4.20 Rule 22.6.5. Transit New Zealand is now part of Waka Kotahi | NZ Transport Agency.21 Rule 22.9.B.2.of native species, percentage of mature native trees, landscape feature,threatened indigenous species and habitat features;(b) whether the size of the proposed Conservation Lots might adverselyaffect the usability of the balance lot;22(c) in assessing the location and appropriateness of the Conservation Lots,the effect a dwelling might have on the protected feature;23 and(d) where the area to be protected was not part of the proposedConservation Lots, the extent to which the proposal would reduce theaccessibility and versatility of land and soil resources on the propertyor an adjoining property, result in development complementary to thelandscape features of the area, compromise the coastal environment orother features, or be out of character with the surroundingenvironment.24[19] The assessment criteria in r 22.9 also incorporated the general assessmentcriteria set out in r 22.7.25 This provided that the subdivision proposal was to beassessed against relevant matters specified in the RMA and further matters set out inr 22.7. Those matters covered:(a) the location of boundaries in accordance with the topography of thearea to assist the fencing, stock control and land management anddevelopment of any new lot;26(b) having boundaries designed to protect the land from erosion,inundation, falling debris or subsidence;27(c) safe and stable vehicular access to the identified building site;2822 Rule 22.9.B.3.23 Rule 22.9.B.4.24 Rule 22.9.B.5.25 Rule 22.9.B.1.26 Rule 22.7.1.27 Rule 22.7.2.28 Rule 22.7.3.(d) the effect the subdivision and subsequent development would have ona range of matters including the roading network, areas of native bushor of other natural significance on the property or on adjacentproperties;29(e) whether the subdivision would require power and telephone services;30(f) the efficacy of the stormwater disposal system as required by r 22.6;31(g) where access from the road to the lot was not by right of way, havingsufficient frontage with safe ingress and egress;32 and(h) if the application did not comply with r 22.6, whether non-compliancewould not undermine the rule or have any adverse effect.33[20] In short, Conservation Lots were regarded as a form of subdivision thatrequired a resource consent. They envisaged a protected area either on one of the newConservation Lots or on the balance land. Whether a resource consent was grantedwas dependent on an assessment of the size and features of the protected area, the sizeof the proposed new Conservation Lots, the effect of development on the newConservation Lots on the protected area and the surrounding rural area and whetherthe Conservation Lots met general subdivision requirements such as access, boundaryand stormwater disposal requirements. That is, it was an assessment that consideredmatters relating to the protected area and the development on the Conservation Lots.Environmental Lots[21] Plan Change 14 was publicly notified in 2003 although it did not becomeoperative until 2014. Plan Change 14 commenced with an introduction to the issuesin the Franklin District and identified objectives and policies for zones and areas in29 Rule 22.7.4.30 Rule 22.7.5.31 Rule 22.7.6.32 Rule 22.7.7.33 Rule 22.7.8.the district.34 It explained that development to meet the district's growing populationwas encouraged or more limited depending on the character of the zone and area. TheKlondyke Block was within the Rural Zone.[22] Part 17A of the plan change contained the "umbrella" strategic objectives thatapplied in all rural and coastal areas and villages, regardless of the particular"management areas".35 They included:363. To preserve and enhance remaining indigenous ecological resourcesand enhance their contribution to biodiversity, landscape and amenityvalues.10. To provide for sustainable growth in appropriate villages throughzoning, structure planning and/or concept planning and appropriatesubdivision and land use controls.11. To provide limited and directed opportunities for living in rural andcoastal areas through the rural growth management hierarchy:a) Predominantly withini. the dedicated rural countryside living zone andii. the identified rural environmental enhancementoverlay area; andb) Outside the areas identified in a) above, more limited andsmall-scale opportunities for subdivision where significantenvironmental benefits are gained through the protection,enhancement, and/or restoration of the natural, physical andcultural environment, and where adverse effects on ruralcharacter and amenity are avoided, remedied or mitigated.12. To provide directed opportunities for living in the rural and coastalzones by avoiding adverse effects on the productive use of versatileland and mineral resources, through a rural environmentalenhancement overlay, adjustment of lot boundaries and TransferableRural Lot Rights.34 Plan Change 14 to the Franklin District Plan 2003 [Plan Change 14], pt 16.1.35 Management areas are discussed at [26] below.36 Plan Change 14, pt 17A.[23] Plan Change 14, in a section on Rural and Coastal Zones, provided a furtherexplanation of the more limited opportunities for subdivision outside of the dedicatedRural Countryside Living Zone and Environmental Enhancement Overlay Area.37 Itexplained that rural growth was relatively low outside the Northern Zone and hadoccurred in an ad hoc fashion with little regard for environmental effects or existingsettlement patterns.38 Without alternative options to the development of existingvacant lots in the northern area, there was a strong possibility that these vacant lotswould continue to be used with little regard for location and cumulative effects,adversely affecting the rural character and amenity of that area and impacting on thefunctioning of rural activities.39 Encouragement needed to be given "to arationalisation of such lots and their redistribution to locations where effects can bebetter addressed".40[24] This explanation went on to say:41It is also recognised that there has also been limited success in gainingsignificant environmental enhancement from incentives for rural subdivisionbased around enhancement or conservation lots. Such lots have added to awide dispersal of countryside living lots while only partially addressingthreats to indigenous vegetation and habitats. The northern area is deficientin indigenous vegetation. This is also an area where significant degradationto both indigenous vegetation and riparian margins has occurred. It is in thisarea where the need for enhancement is greatest.There is therefore a need to provide for directed but limited levels of growthwithin the rural and coastal area. This should only occur where there is a clearsignificant environmental gain and where such provision is managed in anintegrated manner while avoiding, remedying or mitigating adverse effects. Itshould not undermine the role of villages or the hierarchical approach togrowth management in the District. In addition the impacts of thedevelopment of vacant lots through redistribution, needs to be addressed inconjunction with such a provision.[25] Objectives and policies for coastal and rural amenity and character were thenset out.42 The objectives included "avoid[ing] or minimis[ing] the effects of activities37 Rule 17C.1.38 Rule 17C.1.39 Rule 17C.1.40 Rule 17C.1.41 Rule 17C.1.42 Rule 17C.3.2.2.on outstanding natural features and significant habitats".43 A method to give effect tothis was by "encouraging protection of natural features through environmental lots".44[26] To achieve the key rural and coastal objectives and recognise the diversity ofthe area, pt 17E established six rural "management areas" and three coastal"management areas".45 The Klondyke Block was in a rural management area called"Southern Rural". An identified issue in this area was "[s]parse ecological resourcesand some degraded waterbodies" and "opportunities for protection and enhancementare critical".46 The objective for this management area was "[t]o promote economicgrowth through land investment and stewardship opportunities".47[27] Plan Change 14 brought in a new pt 22, "Subdivision: Rural and CoastalAreas", to replace pt 22 in the Franklin District Plan, "Subdivision: Rural". Rule 22.1set out general requirements that applied to various zones, including the Rural Zone.There were also particular requirements that applied to Environmental Lots (r 22.11),for TRLRs within the same management area (r 22.18) and for TRLRs betweendifferent management areas (r 22.19).[28] Rule 22.1.2 provided that, subject to the provisions of the RMA, thesubdivision of land for any purpose could only proceed following the grant of aresource consent and compliance with any conditions of the consent.48 Amongst otherthings, r 22.1.2 also contained machinery rules about application forms and expertreports.4943 Rule 17C.3.2.2.44 Rule 17C.3.2.4.4.45 Rule 17E.46 Rule 17E.5.2.47 Both the affidavit of Nicolas Williamson and the Judge in Soroka v Waikato District Council,above n 4, at [20], refer to a further objective: "[t]o provide for rural activities and countrysideliving with environmental protection, enhancement or restoration". The version of Plan Change14 we were provided with does not include that objective so far as we can see. We are uncertainwhether this was an objective in an earlier or later version of Plan Change 14. Whether it was anadditional objective does not alter our assessment of the issues in this case.48 Plan Change 14, r 22.1.2(a).49 Rule 22.1.2(c).[29] Rules 22.2 to 22.5 provided which activities within various zones, includingwithin the Rural Zone, were controlled, restricted discretionary, discretionary, ornon-complying activities:(a) Environmental Lots, under r 22.11, and TRLRs within the samemanagement area, under r 22.18, were restricted discretionaryactivities.50 Restricted discretionary activities required a resourceconsent, which could be granted or refused, and applications were to beassessed in terms of the matters set out in rr 22.7, 22.8 and 22.9, as wellas any specific matters in the relevant rules, and conditions of consentwould be restricted to those matters.(b) TRLRs between management areas under r 22.19 were discretionaryactivities.51 Discretionary activities also required a resource consent,which could be granted or refused. They were to be assessed in termsof the matters set out in rr 22.7, 22.9 and 53, "and where appropriate,the matters specified in the relevant rule including those applying toRestricted Discretionary Activities".[30] Rule 22.11 provided particular rules for Environmental Lots. It contained anote recording that a new lot could be created off the property in another location usingthe TRLR subdivision option in rr 22.18 and 22.19.[31] Rule 22.11.1.1 set out specific performance criteria for Environmental Lots.These were:(a) Compliance with the general performance standards in r 22.7.1(including requiring that lots have physical and legal access to a formedlegal road and a minimum specified frontage to a formed legal road).5250 Rules 22.3.1 and 22.3.2.51 Rule 22.4.52 Rule 22.11.1.1(a).(b) Protection and certification of features in accordance with rr 22.11.6.1and 22.11.6.2:(i) Rule 22.11.6.1 required legal protection in perpetuity of thecertified area and stock proof fencing;(ii) Rule 22.11.6.2 required a report from a qualified ecologist or asimilar certifying assessment of the vegetation in accordancewith the criteria and details of the attributes of the area.(c) A minimum area for a new lot of 4,000 m2 and a maximum area of8,000 m2 exclusive of the protected area.53(d) Identification of potential building platforms "on the new Lot andparent Lot".54(e) The "total maximum lots (either lots on site or lot entitlements)resulting from any subdivision or combination of subdivisions" were tobe in accordance with rr 22.11.2, 22.18 and 22.19.55(f) Registration of a consent notice on all new certificates of title toprohibit any further subdivision.56[32] Rule 22.11.1.2 set out the assessment criteria for all Environmental Lots. Itrequired that "[e]ach subdivision for the creation of Environmental Lots, shall beassessed against the following matters", which included:(a) the assessment criteria set out in r 22.9 (these covered similar mattersas the general assessment criteria for Conservation Lots);5753 Rule 22.11.1.1(c).54 Rule 22.11.1.1(d).55 As we discuss later, r 22.11.2 concerned the creation of Environmental Lots, r 22.18 concernedTRLRs within management areas and r 22.19 concerned TRLRs between management areas.56 Rule 22.11.1.1(f).57 Rule 22.11.2(a). This is discussed at [19] above.(b) the location and distance from the natural features and siting of buildingareas and lots;58(c) the effect that a dwelling, human habitation and domestic animalswould have on the protected feature;59(d) the effect any dwellings or the creation of new lots would have onaccessibility and versatile soils;60(e) whether the resulting development would be in harmony with andwould not detract from the landscape sensitivity and natural and ruralcharacter of the area;61(f) the type of fencing for protection;62(g) the assessment of ecology, natural or cultural features, or landscapecertification;63(h) whether the lots created were of a size to retain or enhance theversatility of the balance of the area and avoid unnecessaryfragmentation;64(i) the significance of the area being protected;65 and(j) other matters that are not relevant for present purposes.[33] Rule 22.11.2 set out further specific performance standards (r 22.11.2.1) andfurther specific assessment criteria (r 22.11.2.2) for the creation of EnvironmentalLots. Most relevantly, r 22.11.2.2 provided criteria for assessing whether the protected58 Rule 22.11.2(b).59 Rule 22.11.2(c).60 Rule 22.11.2(d).61 Rule 22.11.2(e).62 Rule 22.11.2(f).63 Rule 22.11.2(g).64 Rule 22.11.2(j).65 Rule 22.11.2(l).area was of "Critical", "High" or "Moderate" biodiversity significance. These criteriathen determined, under r 22.11.2.1, the minimum size of each Environmental Lot andthe maximum number of Environmental Lots created.66[34] As noted, r 22.18 concerned TRLRs within the same management area. Itbegan with an explanation and a note as follows:Explanation:[T]here are many properties in the District which have several titles not yetdeveloped. In some areas these titles are on land that is highly valuable forrural production as the soil is very versatile or are held in large propertyholdings which rely on large land areas and accessibility. The existing titles,if developed, would introduce further rural residential living with an increasein reverse sensitivity issues, greater conflict and greater irreversiblefragmentation.Through the transfer titles system landowners are offered another option forthe use of these titles. Many landowners would like to realise the financialbenefits of selling vacant titles, and with no other option may eventually sellthese titles in their current form and location. The ability to transfer titlesprovides an opportunity for people living on VERSATILE SOILS andproductive agricultural units to gain better land management and use of goodsoil while still benefiting from the fragmentation and selling of land. The transfer of titles to more environmentally sustainable locations enablesthe vacant lots to be used for countryside living opportunities. It is consideredthat the effects of transfer of titles within the same Management Area can beavoided, remedied or mitigated when appropriate performance standards andassessment criteria are met. It is likely that the transfer of titles within thesame Management Area will have little or no adverse effect given that theManagement Areas have been defined based on an assessment of the naturaland physical resources at a local level.Note:The TRANSFERABLE RURAL LOT RIGHT can be used for EnvironmentalLots created under Rule 22.11.[35] The idea, therefore, was to avoid owners of productive land held in more thanone title seeking to develop that land by giving them the opportunity to develop vacantland that was more suitable for development through the transfer of "titles" (that is lotrights) to that vacant land. In this context, those titles (also referred to as lots) werethe Environmental Lots created under r 22.11. The specific performance standards66 Set out at [100] below.and specific assessment criteria for TRLRs set out in the rule were intended to avoidany adverse effects from TRLRs.[36] The specific performance standards for TRLRs utilised within the samemanagement area were set out in r 22.18.1 and included:(a) a requirement that TRLRs be used where both the lots to be subdivided(receiver lots) and the sites to be amalgamated (donor lots) compliedwith r 50;67(b) maximum lot number and size requirements;68(c) a requirement that TRLRs be used on land with equivalent "versatilesoil";69(d) a requirement that each transferred new title meets the subdivisionstandards for the zone the title was transferred to;70 and(e) a requirement that all subdivisions comply with rr 22.7.2 (concerningnon-complying activities) and 22.7.3 (requiring that the total maximumnumber of lots created on any rural lot resulting from any subdivisionor combination of subdivisions be in accordance with the maximumnumbers in rr 22.11.2 and 22.18, but also providing that theserestrictions did not apply to subdivision with the Hunua and SouthernRural management areas).71[37] Rule 22.18.2 set out the specific assessment criteria for TRLRs within the samemanagement areas. These criteria, in context, concerned an assessment of the receiverlot, as they related to: the boundaries of the lots; avoiding, remedying or mitigatingadverse impacts on rural amenity, landscape and topography through lot design andbuilding sites; and registering building sites against the title.67 Rule 22.18.1(a)(i).68 Rule 22.18.1(c). Discussed at [112] below.69 Rule 22.18.1(d).70 Rule 22.18.1(e).71 Rule 22.18.1(h). See at [107] below.[38] As noted, r 22.19 concerned TRLRs between identified management areas.This rule also began with an explanation and a note in the same terms as r 22.18,72except that: the penultimate sentence referred to transfers between identifiedmanagement areas (instead of within the same management area); and the last sentencewas replaced with the following:However, the transfer of titles between identified Management Areas willrequire a more rigorous assessment given the effects of this activity may bemore significant.[39] That is, TRLRs used between identified management areas would avoidadverse effects by meeting the specific performance standards and specific assessmentcriteria in r 22.19, and these standards and criteria were intended to be more rigorousthan with TRLRs transferred within the same management area. However, in commonwith the specific performance standards for within the same management area TRLRsin r 22.18, there were requirements in the specific performance standards in r 22.19.1that included:(a) a requirement that TRLRs be used where both the lots to be subdivided(receiving lots) and the sites to be amalgamated (donor lots) compliedwith r 50;73(b) maximum lot number and size requirements;74(c) a requirement that TRLRs be used on land with the equivalent"versatile soil";75 and(d) a requirement that each transferred new title meet the subdivisionstandards for the zone the title was transferred to.76[40] They also identified the management areas where TRLRs could be used. Thisincluded transferring lots into the Rural Zone of the Hunua Rural and Southern Rural72 Above at [34].73 Rule 22.19.1(a)(i).74 Rule 22.19.1(d). Set out at [112]–[113].75 Rule 22.19.1(e).76 Rule 22.19.1(f).management areas. The standards also required that a condition be placed on thesubdivision consent utilising the TRLRs requiring that the amalgamation of the titlesfrom which the TRLRs emanated be carried out in accordance with the RMA. Ther 22.19.2 specific assessment criteria covered the same matters as those underr 22.18.2 and similarly related to the receiver land.[41] In short, the creation of Environmental Lots was regarded as a type ofsubdivision that required a resource consent. Whether a resource consent was granteddepended on the Council receiving certification of the protected area, the protectionof that area, and an assessment of the attributes of the land on which the EnvironmentalLots were to be created that made it suitable for development (for example, access andsize). Environmental Lots could be utilised for subdivision on-site or transferredoff-site within the same management area or to another identified management area(relevantly the Rural Zones in Hunua Rural and Southern Rural management areas)depending on the size and number of lots, and a versatility of soils comparison, as wellas matters relating to the development on the receiver land.The application[42] Mr Soroka's application was dated 17 April 2012. It was addressed to both theWaikato District Council and Auckland Council and headed "Remnant Native BushConservation & Transferable Rural Lot Right Subdivision Application".77 Theapplication explained that it related to two properties:(a) a 220 ha rural property owned by Mr Soroka within the jurisdiction ofthe Waikato District Council in the former Franklin District (theKlondyke Block); and(b) a 25 ha property then used for small scale dry-stock grazing located inBombay within the Auckland Council's jurisdiction and within theformer Franklin District (the Chamberlain Road property).77 Emphasis omitted.[43] The proposal in the opening section of the application was stated as follows:The proposal is to conserve approximately 204ha of native bush on theapplicant's Klondyke Road property and use the Conservation Lot subdivisionrules of the District Plan to create 29 lot entitlements. There is an existingtrack on the property which will remain to provide access through theprotected bush for ongoing weed and pest control, we have left this trackoutside of the calculated area to be conserved.It is proposed to transfer 13 of the 29 entitlements to the Chamberlain Roadproperty using the Transferable Rural Lot Right subdivision rule of ProposedPlan Change 14 (PC14). The area of bush conservation on the applicant'sproperty at Klondyke Road is shown on the plan Further lots will betransferred to other properties in separate applications which are to followsoon.The subdivision application will be completed in two stages as follows:The subdivision application will be completed in two stages as follows:- Stage One will be to create five new lots - Stage Two will be to create eight new lots The layout of the subdivision on the Receiver property is shown on the plans for Stage One and for Stage Two [44] The application went on to explain that, as the application was based upon thegeneration of lot entitlements under the Waikato District Council's jurisdiction and thetransfer of 13 lots to land in the Auckland Council's jurisdiction, the application haddiscussed the "District plan requirements separately".[45] The application first discussed Conservation Lots under the Franklin DistrictPlan. The application noted Conservation Lots were "Discretionary (RA) Activities"under r 22.3 of the Franklin District Plan. The application set out why the proposedLots complied with the applicable performance standards and assessment criteria. Itnoted that several of the provisions were not applicable because it was not proposedto carry out subdivision on the Klondyke Block. Although the proposal was to protect204 ha, the application noted that 29 lots were calculated under r 22.9 of the FranklinDistrict Plan on the basis of 175 ha of protected area. This was because an ecologicalassessment had found only 175 ha of the 204 ha area of qualifying conservationvalue.7878 See [16(c)] above.[46] The application then discussed the Environmental Lots under "Proposed PlanChange 14". It noted that Environmental Lots were a restricted discretionary activityunder r 22.3 of Plan Change 14. The application then addressed each of the specificperformance criteria under r 22.11.1. This included noting that:(a) Rule 22.11.2 set the maximum number of Environmental Lots to 20,with any further lot entitlements needing to be transferred off-site andthis was complied with because there was no proposal to create any lotson the Klondyke Block.79(b) Rule 22.18 was not applicable.(c) While r 22.19 set the maximum TRLRs able to be created on any lot at2, this was overruled by r 22.7.3.3.80[47] The application went on to say that, because the applicant was using only 13of the 29 new Environmental Lots and "the remaining lot entitlements will betransferred to other properties in separate applications which [were] to follow soon",the applicant requested the Council register an encumbrance that 13 lots had beenutilised in terms of r 22.9 (the Conservation Lot rules) of the Franklin District Planand r 22.11 (the Environmental Lot rules) of Plan Change 14 and that:These Encumbrances may be discharged and substituted with newencumbrances to reflect any other entitlements utilised in future subdivisionapplications under the provisions of any District Plan or Plan Changedocument rules in the future. We request [the] Council to make theseEncumbrances a condition of the consent.[48] The application then addressed the assessment criteria under r 22.11.1.1, thespecial performance standards under r 22.11.1.2 and the protection and certificationrequirements under r 22.11.6.81 In the discussion of r 22.11.2, it said:A total of 64 additional allotments are provided for under this rule inaccordance with Table 2. We are proposing to use only 13 of theseEnvironment Lot entitlements for this application and further lots will be79 See [100] below.80 See [107] below.81 See [31]–[32] above.transferred to other properties in separate applications which are to followsoon. [49] The application next discussed that TRLRs between identified managementareas under "Proposed Plan Change 14" were a discretionary activity. However, as"there were no provisions to transfer lots under the Operative District Plan", theapplication would need to be considered as a non-complying activity. The applicationwent on to demonstrate compliance with the specific performance criteria in r 22.19.1and the specific assessment criteria in r 22.19.2 of Plan Change 14.82[50] This included noting that the donor and receiver properties were both classifiedas rural and that the receiving lot was within the Hunua Rural management area (anidentified management area under r 22.19) and that the receiver property contained noversatile soil (as per an expert report provided with the application). It also discussedsuch matters as the layout of the boundaries, the position of the proposed lots and theposition of house sites on the receiver property. Other relevant rules were alsodiscussed.[51] The application concluded:The proposal will result in the physical protection of approximately204 hectares of native bush on the Donor property. The transfer of the 13 development rights approved through protection of theabovementioned ecologically significant feature[s] will remove the dwellingrights away from this significant natural area and will instead be created in anarea better able to accommodate them. While the Waikato District Plan (Franklin Section) and the Auckland CouncilPlan (Franklin Section) does not make provision for [TRLRs] betweennon-contiguous parcels of land, the proposal is generally consistent with theprovisions for the [TRLRs] between properties falling within identifiedManagement Areas of Rural plan change (Plan Change 14) It is considered that the subdivision of the Receiver property will have a lessthan minor impact upon the landscape values of the area The proposal is not contrary to the objectives and policies of the Rural ZoneThe proposal is consistent with the objectives for the sustainability of thenatural and physical environment 82 See [40] above.We believe that this application demonstrates a high degree of compliancewith both the Operative District Plan and Plan Change 14 rules and as such,we recommend it to Council for approval without delay.[52] The application has been described as confusing because it referred toConservation Lots and using TRLRs for them but in other places it referred toEnvironmental Lots. The explanation for this, however, appears to be the applicant'sunderstanding of the status of Plan Change 14. Read as a whole, the applicant'sapparent understanding was that the Council would assess the application under theoperative Franklin District Plan. In the applicant's view, this meant the applicationneeded to demonstrate that its proposal met the requirements for the creation ofConservation Lots. However, because the applicant did not intend to utilise theConservation Lots on the Klondyke Block, and was instead seeking to use the TRLRregime in Plan Change 14 that was not yet operative for a development off-site, itunderstood that this aspect would be a non-complying activity. It considered that thisproposal should be approved because it met the TRLR requirements under the, as yetinoperative, Plan Change 14.[53] The accurate legal position was that the Franklin District Plan was operativeand Plan Change 14 had legal effect but was not operative.83 When considering anapplication for a resource consent, the consent authority must have regard to both "aplan or proposed plan".84 A proposed plan includes a plan change such as PlanChange 14. When a plan and a proposed plan are inconsistent, it is not possible togive full effect to both and it is a matter for the decision-maker to assess the weightthat should be given to one over the other. There are a number of established principlesgoverning the extent to which a proposed plan should prevail over an operative planor vice versa.85 The assessment will depend on the circumstances and may include thestage at which the proposed plan is towards becoming operative and whether theproposed plan represents a significant shift in policy.8683 RMA, ss 86B and 86F. Section 86B provides when a rule in a proposed plan has legal effect.Section 86F provides when a rule must be treated as operative.84 RMA, s 104(1)(b)(vi).85 Hanton v Auckland City Council [1994] NZRMA 289 (PT); and Burton v Auckland City Council[1994] NZRMA 544 (HC) at 552–553.86 Keystone Ridge Ltd v Auckland City Council HC Auckland AP24/01, 3 April 2001 at [16]–[17].Application considerationWaikato District Council[54] The Waikato District Council considered the application from the perspectiveof the donor site only because the donor site was within its jurisdiction whereas thereceiver site was within the Auckland Council's territorial area. This was noted in a"District Plan Assessment" report dated 3 July 2012 that was prepared byEmma Ensor, a planner at the Waikato District Council.[55] From the perspective of the donor site, Ms Ensor considered the proposalseparately under the Franklin District Plan and Plan Change 14.87 This meant that sheconsidered the proposal as Conservation Lots and as Environmental Lots. She alsoconsidered the TRLRs under r 22.19 but only as to donor site matters.[56] In the District Plan Assessment report, Ms Ensor described the application asone seeking consent: to undertake a subdivision of the donor site (Klondyke Road, Port Waikato)creating thirteen (13) conservation Lots and then transferring all those Lots toChamberlain Road, Bombay (receiver site).[57] She described the "creation of thirteen (13) conservations lots" as beingprovided for in both the Franklin District Plan and Plan Change 14. That is, like theapplicant, she saw the description of Conservation Lots as effectively also referring toEnvironmental Lots.[58] Her assessment under the Franklin District Plan was that, althoughConservation Lots were restricted discretionary activities, the proposal did not complywith all requirements under r 22.9 for Conservation Lots.[59] This was because an area of at least 2,500 m2 on the donor site, exclusive ofthe area being protected to accommodate a dwelling and associated effluent disposalfields, was not part of the proposal as the majority of the donor site was to be87 Ms Ensor described Plan Change 14 as being only "Part Operative and still subject to appealsbeing resolved by the Environment Court". For that reason, she said the application needed to beconsidered under both the rules of the Franklin District Plan and Plan Change 14.protected.88 The proposal also did not comply with requirement concerning thelocation of the house site relative to the protected area because all 13 ConservationLots were to be transferred off the donor site to a receiver site.89 In other respects, theproposal complied with the relevant rules in relation to the donor site or the rules wereinapplicable.90 This included accepting, from the ecologist's report, that 175 ha of the205 ha area to be protected was "reasonably significant" with the remainder of "somesignificance". The proposal therefore needed to be assessed as a non-complyingactivity pursuant to r 22.5.[60] Ms Ensor's assessment under Plan Change 14 noted that the proposal for theEnvironmental Lots did not meet r 22.11.1.1(c) (requiring that the new lot have aminimum area of 4,000 m2 and a maximum area of 8,000 m2 exclusive of the protectedarea) nor r 22.11.1(1)(e) (concerning the total maximum number of lots) which meantthese aspects needed to be considered as a discretionary activity under r 22.4.1. Shealso considered that the proposal did not comply with r 22.19, concerning TRLRsbetween identified management areas, because it did not comply with r 22.19.1(a)(i)(which provided that "both the lots to be subdivided (receiving lots) and the sites tobe amalgamated (donor lots) comply with 'Rural Lot' in rule 50"). She consideredthat meant this aspect needed to be considered as a non-complying activity withr 22.5.4. The assessment explained that r 22.19.1(a)(i) was not met because the donorlots were not on a separate certificate of title. In all other respects, the proposalcomplied or potentially complied with the Environmental Lot rules in Plan Change 14.[61] Ms Ensor also prepared a "Confirmation on Conservation Lot / EnvironmentalLot Entitlements and Proposed Consent Conditions" report dated 3 July 2012.Ms Ensor's evidence explained that the purpose of this report was to provideinformation to the Auckland Council on whether the Waikato District Councilconsidered the native bush/indigenous vegetation features on the donor site were both88 As required by r 22.6.5 and incorporated by r 22.9.1 of Plan Change 14.89 As required by r 22.9.6.90 For example, in relation to r 22.7 incorporated by r 22.9(b)(1) of Plan Change 14, she commentedthat the donor lot will not have safe vehicular access to an identified building sit for each of theConservation Lots, as the proposal was to transfer all of those lots off the donor site and notprovide any building platforms. Similarly, it would not have an effect on the roading network inthe locality of the donor site, and it would not require the provision of access to power and phoneservices.of appropriate quality and area sufficient to create the 13 Conservation Lots for whichthe subdivision consent was sought.[62] This report was therefore focussed on the number of Conservation Lotentitlements under the Franklin District Plan, and the number of Environmental Lotentitlements under Plan Change 14 for the subdivision proposal before her, based onthe 175 ha of the area to be protected which possessed the qualifying ecologicalfeatures. Her assessment was that the protected area that had those qualifying features(175 ha) was sufficient to create 13 Conservation Lot entitlements under the FranklinDistrict Plan and 13 Environmental Lot entitlements under Plan Change 14 for the13 lot proposal.[63] The appendix to her report also set out recommended conditions for theAuckland Council if it granted the subdivision consent. The recommendations forconditions concerned covenant boundaries, fencing the feature, a fencing plan, ananimal, pest and weed eradication programme and legal conditions. It also includedan encumbrance to be registered on the donor property, which was to record:91Thirteen Conservation/Environmental Lot entitlements from the protection ofnative vegetation (totalling 175 hectares) on Lot 8 DPS 91607(CT SA72B/974) have been utilised as a result of a subdivision (WaikatoDistrict Council Reference SUB0162/12) in terms of Rule 22.9 (ConservationLot) of the Waikato District Plan (Franklin Section) and Rule 22.11(Environmental Lot) of Plan Change 14 to the Waikato District Plan (FranklinSection): Rural Plan Change.[64] A note was included stating:Note: This Encumbrance may be discharged and substituted with a newencumbrance to reflect any other entitlements created by subdivision consentand/or other provisions of any District Plan document rules in the future.Auckland Council[65] Christopher Oliphant, a resource consent team leader at the Auckland Council,also considered the application. His report discussed whether the application requirednotification and its status under the Franklin District Plan and Plan Change 14.91 Emphasis omitted.[66] His report described the application as being for a "subdivision resourceconsent to undertake a Transferrable Rural Lot subdivision". He noted that itproposed protecting 204 ha of land on the Klondyke Block and "[i]nstead of creatingthese thirteen lots at Klondyke Road, the proposal is to transfer the thirteen lotentitlements to a title of 25.1418 hectares" in another area for which Mr Soroka hadan agreement to purchase. His report also described the proposed stage one and stagetwo subdivision.[67] His report noted that the donor and receiver properties were zoned Rural underthe operative District Plan. He concluded that the proposal was a non-complyingactivity under the District Plan because the Conservation Lots would be "created on adifferent property from that which contains the bush feature" and because the DistrictPlan did not provide for the transfer of titles between properties.[68] His report also concluded that the proposal was a non-complying activity underPlan Change 14 because:The donor property is located in the Southern Rural Management Area, whilethe receiver property is located in the Hunua Rural Management Area.• Rule 22.3 of Plan Change 14 provides for the creation of EnvironmentalLots as a Restricted Discretionary Activity, provided compliance withRule 22.11.1.• Rule 22.4 of Plan Change 14 provides for the transfer of Rural Lot Rightsbetween identified Management Areas as a Discretionary Activity,provided compliance with Rule 22.19.1.The proposal does not comply with the maximum number of lots which canbe transferred between identified Management Areas, thus the proposal fallsto be considered as a Non-Complying Activity pursuant to Rule 22.5 of PlanChange 14.[69] His report considered whether there were adverse effects of the proposal ateither the donor or receiver sites. He concluded that adverse effects would be no morethan minor, written approval had been obtained from persons considered to beadversely affected and no additional persons were considered to be adversely affected.July 2012 resource consent[70] The decision of the Auckland Council and the Waikato District Council wasgiven on 27 July 2012. The decision described the application as one:(a) to covenant approximately 204 ha of mature remnant native bush onthe Klondyke Block;(b) to undertake a TRLR subdivision for 13 lots to be created at theChamberlain Road property; and(c) for a land resource consent for approximately 5,000 m3 of earthworksover an area of 8,000 m2 at the receiver property.[71] The decision then went on to explain the reasons why a resource consent wasrequired. They were:(a) The District Plan provided for Conservation Lot subdivisionscomplying with performance standards in r 22.9 as a restricteddiscretionary activity. As the lots to be created would be created on adifferent property from that containing the bush feature, the proposalwas considered as a non-complying activity under r 22.5 of theDistrict Plan.(b) The operative District Plan did not provide for the transfer of titlesbetween properties. This was therefore considered as a non-complyingactivity under r 22.5 of the District Plan.(c) The earthworks in the Rural Zone were a restricted discretionaryactivity under the District Plan.(d) Plan Change 14 provided for the creation of Environmental Lots as arestricted discretionary activity subject to compliance with r 22.11.1.(e) Plan Change 14 provided for the transfer of Rural Lot Rights betweenidentified management areas as a discretionary activity, subject tocompliance with r 22.19.1. The proposal did not comply with themaximum number of lots that could be transferred between identifiedmanagement areas and so the proposal fell to be considered as anon-complying activity pursuant to r 22.5 of Plan Change 14.[72] The decision granted consent to the non-complying activity because:(a) The proposal would result in the protection of approximately 204 ha ofmature remnant native bush on the Klondike Block and this native bushfeature was considered worthy of protection under the District Plan forthe creation of Conservation Lots.(b) The bush feature met the relevant performance standards and was ingeneral accordance with the assessment criteria for the creation ofEnvironmental Lots under rr 22.11.1 and 22.11.2 of Plan Change 14.(c) The transfer of the 13 development rights approved through theprotection of the feature would remove the potential dwelling rightsaway from the valuable natural area and would instead be created in anarea better able to accommodate them.(d) The proposal did not generate any more than minor adverse effectsupon the environment.(e) The proposal was considered to be substantially consistent with theprovisions for TRLRs between identified management areas inPlan Change 14.(f) The proposal to have the approximately 204 ha of mature remnantnative protected was consistent with the objectives and associatedpolicies of the District Plan. It was also consistent with PlanChange 14.(g) The proposal was also consistent with the objectives of Plan Change 14to avoid the wide dispersal of lots throughout the rural and coastal areasof the former Franklin District and it avoided effects upon theproductive use of versatile land and mineral resources.(h) The proposal involved adverse effects on the environment that were nomore than minor and were not contrary to the objectives and policies ofthe District Plan.[73] The resource consent granted by the decision was subject to various conditions.There were conditions for stage one.92 There were separate conditions for stage two.93They included an encumbrance in terms similar to that recommended by Ms Ensorfrom the Waikato District Council, except that it recorded that five (rather than 13)Conservation/Environmental Lot entitlements had been utilised. The note to theencumbrance was different and said:94Note: This Encumbrance may be discharged and substituted with a newencumbrance to reflect any other entitlements created by Stage Twoof this subdivision consent and/or other provisions of any District Plandocument rules in the future.[74] The conditions for stage two were also included. This included anencumbrance and a note as recommended by Ms Ensor. The encumbrance to beregistered on the Klondyke Block stated:Thirteen Conservation/Environmental Lot entitlements from the protection ofnative vegetation (totalling 175 hectares) have been utilised as a result of asubdivision [the 2012 April application] in terms of Rule 22.9 (ConservationLot) of the Waikato District Plan (Franklin Section) and Rule 22.11(Environmental Lot) of Plan Change 14 to the Waikato District Plan (FranklinSection): Rural Plan Change.[75] The note stated:Note: This Encumbrance may be discharged and substituted with a newencumbrance to reflect any other entitlements created by othersubdivision consents and/or provisions of any District Plan documentrules in the future.92 Described as "Lots 1, 2, 3, 4, 14, 100 (road to vest), 101 (amalgamation lot), 109 (balance lot) andConservation Covenant".93 Described as "Lots 5, 6, 7".94 Emphasis omitted.[76] The resource consent also contained "Advice Notes". These included thefollowing:7. In respect of the property at Klondyke Road, Port Waikato, theapplicant has indicated that they may seek to generate additionalConservation Lot entitlements and transfer these off the site as part offuture applications. In this respect it is noted that any additionalsubdivision entitlements would need to be assessed as part of anyfuture application, on its merits, and based on the Waikato DistrictPlan rules that prevail at the time of that application being made. Noguarantee is given as to the potential number of lots (if any) whichmay be utilised in association with making such an application orapplications.Subsequent events[77] Subsequently, Mr Soroka sought confirmation from the Waikato DistrictCouncil that he had 29 entitlements as a result of the April 2012 application. TheWaikato District Council's position was that, although the protected feature hadqualified for 29 subdivision "rights" under the Franklin District Plan, anEnvironmental Lot entitlement was not "created" by the application. Rather, anEnvironmental Lot was a subdivision of land and was "created" when it was shown asan Environmental Lot subdivision either in situ (that is on the land that also containedthe protected area) or at a receiver property. The correspondence from the WaikatoDistrict Council also commentated that the protected feature would qualify for59 "rights" under Plan Change 14 but that Table 2 of r 22.11 restricted the maximumnumber of lots on any lot to 20 and this would mean that the remaining 39 could betransferred from the donor site. The correspondence also noted that this was subjectto an appeal and so the eventual maximum number was not certain.[78] This correspondence took place in the context of Variation 13, referred to aboveat [9], having been notified. As mentioned above, this ultimately led to confirmationthat Mr Soroka had 14 unutilised Environmental Lots as a result of the July 2012resource consent.95 The Environment Court consent order amended Variation 13 toPlan Change 14 by introducing an amendment to pt 22B of Plan Change 14 that95 We infer that two further lots, in addition to the 13-lot subdivision originally consented, had beenutilised by this time.applied to the July 2012 resource consent granted to Mr Soroka.96 The amendmentprovided as follows:For Soroka:Add to Part 22B, 22B.3 Restricted Discretionary Activities as 22B.3.4Cthe following:22B.3.4C A transfer of any remaining environmental lots resulting fromSubdivision Consent S12035 (application lodged on 20 April2012, affecting Lot B DPS 91607 CFR SA 728/974 atKlondyke Road, Port Waikato and consented by AucklandCouncil on 30 July 2012), to a receiver RURAL LOT Insidethe ENVIRONMENTAL ENHANCEMENT OVERLAYAREA (EEOA) in the Auckland Council's jurisdiction, inaccordance with Rules 22B.12.3 and 22B.7.For the purposes of this rule:i. a subdivision plan is required only for the receiverproperty and not the donor property; andii. the terms "lot/lots", "RURAL LOT(S)" and"TRANSFERABLE RURAL LOT RIGHT" in• the performance standards in Rules 22B.7and 22B.12.1• the restricted matters of discretion in Rule22B.88.• the assessment criteria in Rule 22B.9• the specific performance standards in Rule22B.12.4.1• the Part 50 definitionsare treated as applying to the remaining environmental lotsresulting from Subdivision Consent S12035.Note: For the avoidance of doubt, 14 environmental lotsexisted as at 12/11/2015.For Soroka :Add to Part 22B, 22B.6 Prohibited Activities as 22B.6.3 the following22B.6 PROHIBITED ACTIVITIES3. Any transfer of a RURAL LOT (donor lot) to a specified receiverRURAL LOT that does not fall within the definition ofTRANSFERABLE RURAL LOT RIGHT because the donor lot and96 A similar amendment was made for another party in relation to a resource consent granted ataround the same time as that granted to Mr Soroka.the specified receiver RURAL LOT are not located within Auckland,except as provided for in Rules 22B.3.4A, 22B.3.4B and 22B.3.4C.[79] The explanatory text to Part 22B.6 was added as follows:Except as provided for in Rules 22.B.3.4A, 22.B.3.4B and 22B.3.4C andsubject to compliance with the relevant performance standards, TransferableRural Lot Rights across territorial boundaries do not achieve the objectivesand policies of the district plan, which seek to manage growth in the ruralzones and avoid the wide dispersal of lots. They involve a high level of costand complexity due to the involvement of two territorial authorities as consentauthorities, and uncertainty in the processing and monitoring of consents.[80] The effect of this consent order was that Mr Soroka was able to utilise a further14 Environmental Lots, arising from the April 2012 application and the July 2012resource consent, for subdivisions on receiver land that was inside the EnvironmentalEnhancement Overlay Area in the Auckland Council's jurisdiction. To do so, heneeded a subdivision consent for the receiver property only. Mr Soroka proceeded toutilise these 14 Environmental Lots in this way. This meant that, in total, he hadutilised 29 TRLRs.[81] At some point, Mr Soroka considered that he was entitled to 64 TRLRs (ratherthan 29) under Plan Change 14. We have not been referred to details about how andwhen this position came about. Whereas 29 entitlements was the number of TRLRsthat the protected area at the Klondyke Block gave rise to under the Conservation Lotregime in the then-operative Franklin District Plan, 64 was the number of entitlementsthat Mr Soroka calculated arose under the Environmental Lot regime in PlanChange 14.[82] Mr Soroka issued this proceeding in the High Court claiming an entitlement of64 TRLRs, less the 29 he had already utilised. He now accepts that the correct numberis 59. This is the potential number of Environmental Lots under Plan Change 14 thatthe Waikato District Council calculated arose from the protected area of 175 ha atKlondyke Block.97 However, its position is also that this calculation was subject to a97 Protected area of high biodiversity significance assessed as 175 hectares. The first lot requires0.5 ha. This would leave 174.5 ha remaining. That would create 58 lots of 3 ha each leaving0.5 ha remaining.maximum of 20 lots. It also took the view that the number of Environmental Lotscreated depended on the scope of the application and the resource consent granted.[83] It is unclear to us how Mr Soroka could claim an entitlement to59 Environmental Lots, arising from his April 2012 application in view of theEnvironment Court consent order that recorded his entitlement. It is also contrary tothe position he took in correspondence with the Waikato District Council prior to theconsent order when he was seeking confirmation of 29 entitlements. In theHigh Court, the Judge noted the apparent change in Mr Soroka's position subsequentto that correspondence and the consent order.98 The Judge was also of the view thatMr Soroka's arguments in this proceeding should have been the subject of an appealto the Environment Court when the resource consent was granted rather than ventilatedin a High Court application for declaratory relief.99[84] The Judge did not press the jurisdiction point because the Waikato DistrictCouncil had proceeded on the basis that the Court did have jurisdiction.100 It seemsthat this was because the parties agreed that the declaratory relief sought in thisproceeding was relevant to a related proceeding against the Waikato District Councilthat alleges misfeasance and seeks compensation. Counsel confirmed at the hearingof the appeal that no jurisdiction point is pursued. We therefore take the point nofurther and consider the issues the parties have agreed are raised in this appeal.Assessment on appealResource consent to crystalise TRLRs?[85] Mr Soroka contends that a resource consent was not required to create59 TRLRs under the rules. Rather, once the preconditions for identification andprotection were met, the Waikato District Council had no discretion as to the numberof lots that arose from the donor site. It was simply a mathematical exercise under therules of Plan Change 14. This reflected the fact that no titles were ever created on the98 Soroka v Waikato District Council, above n 4, at [81]–[82].99 At [82]–[83] citing Graham v Auckland Council [2013] NZHC 833 at [62].100 At [83].donor property and therefore no "use" was made of the donor property for which aresource consent could be required under the RMA.101[86] The Judge rejected the submission that no resource consent was required forthe following reasons:(a) The performance standards under Plan Change 14 to createEnvironmental Lots did not require a resource consent.102 Thesestandards required the registration of the QEII covenant (which was nota "use" of the land) and physical activities to protect the bush (whichwas a permitted activity).103(b) However, the essential concept of an Environmental Lot or aConservation Lot was that the property owner obtained consent tosubdivide and erect dwellings on land, thereby creating an environmentsuited to lifestyle living while largely preserving the ecologicallysignificant features of the land.104(c) While Environmental Lots could be transferred to other properties, theyfirst had to be created on the donor property.105 TRLRs could not beobtained independently of Environmental Lots.106(d) This meant that Mr Soroka was first required to satisfy the WaikatoDistrict Council that the donor land was suitable for subdivision unders 106 of the RMA.107[87] For the reasons we go on to explain, we agree with the Judge that, before anyTRLR entitlements could arise, the Waikato District Council first needed to besatisfied that Environmental Lots should be created. We consider that, in a case where101 RMA, ss 9–11.102 Soroka v Waikato District Council, above n 4, at [52].103 At [52].104 At [54].105 At [54].106 At [55].107 At [56]. Section 106 of the RMA concerns the power of a consent authority to determine anapplication for a subdivision consent.all Environmental Lots were to be transferred off-site, the Council needed to besatisfied that they should be created on the receiver site. We do not agree withMr Soroka that this meant he had an entitlement to a specific number of EnvironmentalLots regardless of what he sought in his resource consent application. In any event,we consider the maximum Environmental Lots available to Mr Soroka was 20 and, inreceiving 29 Environmental Lots, he exceeded his maximum entitlement under PlanChange 14.[88] We start with the scheme for subdivisions under Plan Change 14. It providedfor subdivisions in the Rural Zone under r 22. The scheme of r 22 was to providegeneral requirements as well as "particular sets of Rules for particular subdivisiontypes".108 Environmental Lots, TRLRs within the same management area, and TRLRsbetween different management areas were each treated as particular types ofsubdivision under this rule. Consistent with this, r 22.3 separately itemisedEnvironmental Lots, TRLRs within the same management area and TRLRs betweendifferent management areas as to whether they were restricted discretionary activitiesor discretionary activities.109 They each had their own rules setting out the specificperformance standards and assessment criteria that applied to them.110[89] Although TRLRs were treated as a particular type of subdivision, TRLRs couldonly be obtained via the rules for Environmental Lots. That is apparent from:(a) The explanation under r 22.11 (the rule under which EnvironmentalLots could be created) that noted a "new lot can be created off theproperty in another location using the [TRLR] subdivision optionsunder Rules 22.18 and 22.19". Similarly, the explanations underrr 22.18 and 22.9 contained a note that "the [TRLR] can be used forEnvironmental Lots created under Rule 22.11".(b) The fact that the TRLR rules under rr 22.18 and 22.19 were not aboutcreating any lots. Rather they were about the suitability of the receiver108 Plan Change 14, r 22.1.3(a).109 Refer above at [27].110 Refer above at [31]–[40].site for utilising the Environmental Lots created under r 22.11.111 Theperformance standards and assessment criteria that were directed towhether the subdivision development should be approved were foundin r 22.11.[90] The scheme was, therefore, that the Council first needed to be satisfied thatEnvironmental Lots should be created by assessing the specific performance standardsand specific assessment criteria under rr 22.11.1 and 22.11.2 before the lots could beutilised for TRLRs. That was an assessment that included the requirements for:certification that the protected area met the criteria of critical, high or moderatebiodiversity significance; an assessment of the rules as to the number ofEnvironmental Lots the protected area would give rise to; as well as an assessment ofwhether the proposed subdivision met the specified standards and assessment criteria.[91] In other words, no Environmental Lots were created without the Council beingsatisfied about both the protected area and the proposed subdivision. There was nomechanism under the rules that provided for a determination of a hypothetical yield ofEnvironmental Lots able to be accessed in the future as and when a suitablesubdivision proposal was made. We accept that protecting of native bush via theQEII covenant was not a "use" of the land that required a resource consent. Thescheme, however, was to encourage this by allowing subdivision development via thecreation of Environmental Lots if the Council was satisfied that the performancestandards and assessment criteria were met.[92] In this way, the Council retained control over whether Environmental Lotswere created and how they were used through the resource consent process. Councilsatisfaction about the protected area was part and parcel of any decision on whether toconsent to an application to create and use Environmental Lots. Whether the proposalwas to use the Environmental Lots in situ, or partly in situ or partly transferred off-site,or entirely off-site, the proposal was a subdivision proposal within the meaning ofs 218 of the RMA.111 Rule 22.18.1(a) and r 22.19.1(b) of Plan Change 14 were partly directed to the donor site in thatthey required that the donor site comply with "rural lot" defined in r 50 and have no dwellingpresent.[93] The Waikato District Council contended a key step in the proposal for utilisingTRLRs was obtaining a resource consent for the subdivision of the donor property aswell as a resource consent for the subsequent transfer of lots. It says that, if a personwished to obtain Environmental Lots for later use, it was necessary to have a resourceconsent to create in situ lots and certificates of title for them would be the correct wayto ensure a lot entitlement for a later transfer.[94] This was essentially the view accepted in the High Court. The Judge said:[54] There was simply no mechanism under the District Plan or PlanChange 14 to, in a single step, identify land that would be managed inaccordance with the performance standards for the creation of anenvironmental lot and, as a result, "crystallise" an entitlement to develop otherland.[55] TRLRs are not, put another way, a right capable of being obtainedor used independently of the environmental lots which they are used totransfer. It is not possible as Mr Gray put it in his submissions, for a personto "seek recognition of their entitlement to TRLRs on the donor property".[56] [A]s part of Mr Soroka's application for consent to the creation ofthe environmental lots on Klondyke Road, he was required to satisfy theWaikato Council as the territorial authority that the land satisfied therequirements found in s 106 of the [RMA] as to the suitability of the land tosubdivision.[57] [W]hether he in fact ever intended to use the subdivision consentembodied in the application for the creation of lots on the Klondyke Roadproperty, he was required to obtain that consent before applying (which as ithappens, he did simultaneously in the case of 13 of these lots) to use TRLRsto develop other properties.[95] We do not agree with the Waikato District Council, where Environmental Lotswere to be utilised off-site, that two resource consents were needed, one to create theEnvironmental Lots in situ and another to transfer them off-site. Creating hypotheticalEnvironmental Lots in situ would not qualify as a use of land under the RMA.However, we do agree that, in order to create Environmental Lots, whether to beutilised in situ or as TRLRs, a resource consent was necessary. Whether it was granteddepended on Council satisfaction that a protected area met the necessary requirementsand that a subdivision proposal to utilise them either in situ or off-site or a combinationof this met the performance standards and assessment criteria. In other words, theresource consent for Environmental Lots would focus on where the lots were to beutilised and satisfaction that the number of Environmental Lots were available fromthe protected area.[96] This reflects how the Waikato District Council and Auckland Councilapproached their task. As Ms Ensor said in her evidence, the application was to createand transfer 13 Environmental Lots at that time, and that is what she assessed. Shedid not assess whether 29 or 64 (or 59) Environmental Lots should be created becausethere was no proposal that enabled her to do so. To the extent she satisfied herself thatthe donor site was hypothetically large enough to create 13 lots in situ, this was at ahigh level. For example, in relation to the requirement in r 22.7.1 for the lots to havephysical and legal access to a formed road, she said:112Thirteen lots could be created within the donor property which could meetthese requirements. However, this has not been shown in respect of the donorsite as it is proposed to transfer all thirteen lots off the donor site.[97] Her report to the Auckland Council was focussed on confirming that theprotected features were sufficient to create 13 Environmental Lots.113 She did reporther assessment that the proposal did not comply with r 22.11.1.1(c) because the donorsite did not have 4,000 m2 exclusive of the area to be protected available toaccommodate 13 new lots. As she noted, non-compliance with r 22.11.1.1(c) meantthe proposal was a discretionary activity rather than a restricted discretionaryactivity.114 It is not clear from the combined decision of the Waikato District Counciland Auckland Council that the consenting authorities agreed with this view as thedecision did not specifically address whether the proposal did or did not comply withthis rule.112 A similar approach was taken to other r 22.7.1 general performance standards for subdivisions inPlan Change 14.113 Ms Ensor's "Confirmation on Conservation Lot/Entitlement Lot Entitlements and ProposedConsent Conditions" report referred to above at [61]–[64].114 We consider it is debatable whether r 22.11.1.1(c) of Plan Change 14 applied to the donor sitewhen the proposal was to create the Environmental Lots off-site utilising the TRLR regime. Thewording in r 22.11.1.1(c) was that "the new lot shall have a minimum area of 4,000 m2 and amaximum area of 8,000 m2 exclusive of the area to be protected". While that is capable of beingread as a requirement in relation to the donor site, read in context it was also capable of relatingto wherever it was that the new lot was to be created (bearing in mind that the explanation inr 22.11 was that "a new lot can be created off the property in another location").[98] The combined decision did, however, focus on the protection of the area atKlondyke Block and that the transfer of 13 development rights away from theKlondyke Block would enable a development in an area better able to accommodatethem. It did not focus on whether 13-lot subdivisions could take place on theKlondyke Block. It approved conditions relating to a 13-lot subdivision at the receiversites. They included a recognition of the number of lots utilised from the protectedarea via an encumbrance that could be discharged and replaced with anotherencumbrance if further entitlements were "created by other subdivision consents". Itnoted that Mr Soroka might seek to "generate additional Conservation Lotentitlement" but "these would need to be assessed as part of any future application"and there were no guarantees about this.[99] In short, the consenting authorities tied the creation of Environmental Lots towhether there was a subdivision proposal to utilise them. It assessed that proposal onthe basis of a subdivision on the site they would be utilised, which in this case was notthe donor site. The consenting authorities' approach was correct. As discussed above,resource consent was necessary to create the Environmental Lots on the site on whichthey were to be utilised.115Maximum of 20 TRLRs?[100] Mr Soroka's contention that there is an "entitlement" to Environmental Lotsonce an area is protected, irrespective of any proposal to utilise all those entitlements,relies on the words, "[t]he Lot entitlement shall be as follows", found inr 22.11.2.1(b).116 Rule 22.11.2.1 provided:1. SPECIFIC PERFORMANCE STANDARDSThe creation of Environmental Lots under this rule shall meet the followingstandards:a) The features are to be protected and certified in accordance with22.11.6.1 and 22.11.6.2.b) The Lot entitlement shall be as follows:115 At [95] above.116 Emphasis added.Table 1 – For all Management Areas except Hunua Rural and SouthernRural Management AreasBiodiversitySignificanceMinimumSize ofNaturalFeature(s) for1 LotMinimumAdditionalArea ofNaturalFeature(s) foreachAdditionalLotMaximumNumber ofLots on AnyLotMaximumnumber of LotEntitlementsLotEntitlements inexcess ofMaximumNumber of Lotson any RURALLOT must betransferredoffsiteCRITICAL 0.5 ha 2.0 ha220HIGH 0.5 ha 3.0 haMODERATE 1.0 ha 7.0 ha 10orTable 2 – For Hunua Rural and Southern Rural Management AreasBiodiversitySignificanceMinimum Size ofNaturalFeature(s) for 1LotMinimum additionalarea of NaturalFeature(s) for eachAdditional LotMaximum Number ofLots on any LotCRITICAL 0.5 ha 2.0 ha20HIGH 0.5 ha 3.0 haMODERATE 1.0 ha 7.0 ha 10c) Provided that where any lot contains a natural feature of moderate,high or critical conservation value those features are protected in theirentirety regardless of the number of additional lots created. d) For the avoidance of doubt additional Lot entitlements created usingthe provisions of Rule 22.11.2.1(b) Table 1 shall be transferred off theproperty to another location using the TRANSFERABLE RURALLOT RIGHT subdivision provisions specified in Part 22.17, or Part22.18 or Part 22.19.[101] Mr Soroka contends that, because the Klondyke Block is in the Southern Ruralmanagement area, once he was granted a resource consent on his April 2012application, it gave rise to the entitlements set for "high" in Table 2 above. Under thatformula, namely one Environmental Lot for 0.5 ha and one Environmental Lot forevery additional 3 ha of the protected area, he says he had 59 entitlements (regardlessof the number of lots he proposed to utilise in his application for subdivision for whichthe resource consent was granted).[102] We consider that Table 1 and Table 2 were about the number of EnvironmentalLots that could be given consent (that is the number of subdivision lots to be utilisedin situ or elsewhere) in return for protecting an area. As the creation of EnvironmentalLots required resource consent, it was necessary to apply for them and, until consentwas granted for them, they did not exist. In practice, if the protected area was largeenough to give rise to more Environmental Lots than those for which the originalapplication was made, later development proposals seeking resource consent couldseek to create further Environmental Lots as a result of having protected the area.[103] We are unaware if Mr Soroka ever made an application for consent for furtherEnvironmental Lots (beyond the 29 he did apply for and utilise) to be utilised asTRLRs under rr 22.18 or 22.19 in relation to any specific development on any receiversites while Plan Change 14 was operative.[104] In short, we disagree that Mr Soroka had an entitlement to 59 EnvironmentalLots arising from his April 2012 application and the QEII covenant registered as acondition of the resource consent granted. To create any further Environmental Lots,he needs to apply for them with a development proposal that would be assessed underrr 22.11, 22.18 and 22.19 as applicable.[105] In any event, a total of 59 Environmental Lots would have been more than themaximum total yield available under Table 2. We agree with the Waikato DistrictCouncil that the maximum yield under Table 2 was 20 Environmental Lots for aprotected area in the Southern Rural management area of critical or high biodiversitysignificance (as the Klondyke Block was assessed to be) or 10 if of moderatebiodiversity significance.[106] Mr Soroka disagrees with that interpretation. He says the fourth column inTable 2 headed "Maximum Number of Lots on any Lot" related to the number ofEnvironmental Lots that could be created in situ. He contends that it corresponded tothe fourth column in Table 1 that used the same words and that, unlike Table 1, therewas no fifth column headed "Maximum number of Lot entitlements" in Table 2. Weagree that Mr Soroka's interpretation appears available if Table 1 and Table 2 arecompared without the context of the rules as a whole. It is, however, necessary toconsider r 22.11.2 in the context of the rules as a whole.[107] The starting point is r 22.7.3. It provided:22.7.3 TOTAL MAXIMUM NUMBER OF LOTS CREATED ON ANYRURAL LOT RESULTING FROM ANY SUBDIVISION ORCOMBINATION OF SUBDIVISIONS 1. The total maximum number of additional lots may be created on anyRURAL LOT as [sic] result of any one or a combination of thefollowing subdivision provisions (whether undertaken concurrently orsequentially) • Rule 22.11.1 (Remnant Indigenous Vegetation and Wetlands andHabitats of Indigenous Fauna)• Rule 22.18 (Transferable Rural Lot Right Within the SameManagement Area)[Council Resolution of 23.8.08)on lots existing at 30 September 2003 shall not exceed two lots.2. Any lot created as a result of the above provisions or a combinationof such provisions shall not be eligible for any further subdivision.3. Subdivision within the Hunua Rural Management Area and SouthernRural Management Area shall not be subject to the requirements ofclause 1 and 2 above.[108] This rule therefore complemented the fourth column of Table 1 in r 22.11.2(b).That is, there was a two-lot maximum on any rural lot in management areas other thanin the Hunua and Southern Rural management areas as shown in the column in thefourth column of that table entitled "Maximum Number of Lots on any Lot". Therewas no such column in Table 2 of r 22.11.2(b) because that related to the Hunua andSouthern Rural management areas which were excluded from the limit imposed inr 22.7.3. This meant that for Environmental Lots created on land in the Southern Ruralmanagement area (as was the case with the Klondyke Block), 20 lots could be createdon any rural lot in situ.[109] In our view, 20 lots were also the maximum number of lots available fortransfer off-site under Table 2. That is, "Maximum Number of Lots on any Lot" in thefifth column of Table 2 referred to the total development rights generated fromprotecting the area, irrespective of where they were developed. This becomes apparentwhen Table 2 is read with r 22.11.1.1(e) which applied to all Environmental Lots. Itprovided:117The total maximum number of lots (either lots on site or lot entitlements)resulting from any subdivision or combination of subdivisions shall be inaccordance with:• Rule 22.11.2 • Rule 22.18 • Rule 22.19 [110] Rule 22.11.1.1(e) was therefore about the "total maximum" number of lotswhether on-site or off-site, and whether utilised in a single subdivision developmentor several subdivision developments. This maximum was determined by r 22.11.2 andrr 22.18 or 22.19 if applicable.[111] Rule 22.11.2 contained Tables 1 and 2 which provided "maximum" numbersof lots. The only column in Table 2 with a maximum number was the last column thatreferred to a maximum number of 20 or 10. Table 1 had the complication that therewas also an on-site maximum of two if the Environmental Lots were created inmanagement areas other than the Hunua Rural and Southern Rural areas. The fourthcolumn in Table 1 dealt with that maximum. The fifth column in Table 1 wasnecessary to provide for the overall total maximum yield of Environmental Lots of 20and 10 (as with Hunua and Southern) and to make it clear that, to utilise them, it wasnecessary to transfer them off-site under rr 22.18 or 22.19. Table 2 did not need thatcolumn because it was not subject to the two-lot restriction in those areas, and it was117 Emphasis added.not necessary to confirm that Environmental Lots in those areas could be transferredoff-site, as that was already provided for under rr 22.18 and 22.19.[112] In whichever management area the Environmental Lots were created, r 22.18(TRLRs within the same management area) and r 22.19 (TRLRs between identifiedmanagement areas) also contained "maximum" lot numbers (in identical terms in eachrule) as follows:The following Maximum Lot Number and Lot Size requirements apply: Receiver RURAL LOTSizeMaximum Lot Size ofNew Lots CreatedMaximum Number OfTransferable Lots To AnyOne RURAL LOT0.0 – 4.0 ha 8000m2 1> 4.0 ha 8000m2 2*Note: No Lot shall be larger than the Balance Lot.[113] This two-lot maximum in r 22.19 was why the 2012 resource consent grantedto Mr Soroka noted that the proposal was a non-complying activity rather than adiscretionary activity under Plan Change 14.[114] The interpretation we take of Table 2 is consistent with the views of theHearings Panel in considering a submission from the Auckland Council in relation toPlan Change 14. The Auckland Council supported the concept of Environmental Lotsbut sought further information concerning the number and size of lots to ascertain theimpact of them.[115] The Hearings Panel considered that Plan Change 14 as notified created toomany opportunities for countryside living within the rural and coastal area. One ofthe reasons for this was the Environmental Lot provisions combined with theopportunity to transfer titles across the district. This was not considered to beconsistent with the policies and objectives of sustainably managing growth andpromoting consolidation of growth around existing settlements. The level ofdevelopment would be likely to create adverse effects.[116] The Hearings Panel considered that the approach needed to be rationalised.This included rationalising the existing provisions and specifying a maximum overalldevelopment that could be acquired through subdivision. It considered it was"necessary that this maximum level [was] specified in each type of EnvironmentalLots". This was even though it was recognised that the theoretical yield would beaffected by the availability of lots for development, their location relative to demandand difficulties achieving the required performance standards. The Hearings Panelnoted that a "significant concern [was] the overall amount of lots that can be createdon any site from the use of a combination of the Environmental Lot and Transfer Lotsubdivisions".[117] It concluded:The Hearings Panel considered it necessary to introduce and clearly definea total overall maximum number of lots that can occur on any site as a resultof any one or a combination of subdivision methods. The maximum level isalso specified in relation to each type of Environmental lots with thetransfer off-site of excessive lots resulting from the protection of larger areasof indigenous vegetation and wetlands other than in the Southern RuralManagement Area and the Hunua Rural Management Area. In these areas itis considered the particular nature of the environment is generally such that itcan absorb the maximum amounts without adverse cumulative effects. [118] We consider the Hearings Panel intended there would be a per-site maximumas well as an overall maximum number of Environmental Lots created from aprotected area. The headings in Table 1 and Table 2 were intended to reflect theHearings Panel's recommendations. While the wording could have been clearer, theoverall maximum number of Environmental Lots regardless of the location of the sitefrom which they were created (through the protection of the qualifying area on thesite) was 20 or 10 (depending on whether the biodiversity significance was assessedas critical, or high, or moderate). The difference between the two tables was whetherthat maximum of 20 or 10 could be utilised in situ or whether anything in excess oftwo and up to the maximum of 20 or 10 had to be utilised off-site (and subject to themaximums in rr 22.18 and 22.19).[119] It follows that we do not accept that Mr Soroka is entitled to the declaratoryrelief he seeks irrespective of whether it is appropriate as a matter of discretion to grantit.Result[120] The appeal is dismissed.[121] The appellant must pay the respondent costs for a standard appeal on a band Abasis and usual disbursements. We certify for second counsel.Solicitors:Hucker & Associates, Auckland for AppellantBrookfields Lawyers, Auckland for Respondent