SOROKA v WAIKATO DISTRICT COUNCIL [2021] NZHC 2191

SOROKA v WAIKATO DISTRICT COUNCIL [2021] NZHC 2191 [25 August 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2018-419-000179CIV-2018-419-000187[2021] NZHC 2191BETWEEN GLENN MICHAEL SOROKA andLOUISE CLAIRE MEREDITH as trusteesof the PAKAU TRUSTPlaintiffsAND WAIKATO DISTRICT COUNCILDefendantHearing: 12 and 13 October 2020 (further submissions filed 9 February,1 March and 17 March 2021)Counsel: BD Gray QC and JC Dawson for the PlaintiffsP Moodley and RK Smith for the DefendantJudgment: 25 August 2021JUDGMENT OF HINTON JThis judgment was delivered by me on Wednesday, 25 August 2021 at 12 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Council:Turner Hopkins, Auckland.Brookfields Lawyers, Auckland.BD Gray QC, Auckland.JC Dawson, Whangarei.[1] This is a most unusual case at least in terms of the matters that come beforethis Court.[2] The plaintiffs seek the following declarations under the Declaratory JudgmentsAct 1908:(a) That by 22 February 2013 they were entitled to 64 Transferable RuralLot Rights (TRLRs) in respect of land at Klondyke Road, Port Waikato;(b) Having received 29, they remain entitled to a further 35 TRLRs; and(c) An order requiring the defendant (Waikato Council) to consent to thetransfer from Klondyke Road of 35 TRLRs to new receiving propertieswhich will themselves need to obtain resource consent.Background[3] The first-named plaintiff, Mr Soroka, is the registered proprietor of about 220hectares of undulating largely bush-clad land on Klondyke Road, west ofPort Waikato.1 He says he holds the land on trust for the Pakau Trust. The otherplaintiff, Ms Meredith, is the other trustee of that trust, but is not a registered proprietorof the land. Mr Soroka is the effective plaintiff and I refer to him as such.[4] Until 2009, the land was within the Franklin District. Since the creation of theamalgamated Auckland Council in 2010, and the collateral adjustment of theboundaries of the Auckland region, the land has been part of Waikato Council'sterritorial area.2 It is not in dispute that this proceeding nonetheless falls to beconsidered in terms of the Franklin Operative District Plan and (Proposed) PlanChange 14 to that plan.[5] Back on 17 April 2012 Mr Soroka made a resource consent application toWaikato Council and Auckland Council in respect of the Klondyke Road property1 Formally, Lot 8 DPS 91607 comprising Certificate of Title CFR in Titles SA72B/974.2 See Local Government (Auckland Council) Act 2009, s 2 and Part 2.pursuant to the Franklin Operative District Plan. The opening section of theapplication says: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.[6] The Waikato Council and Auckland Council granted the April 2012 applicationon 31 July 2012, subject to conditions.[7] Since 31 July 2012, as a result of the April 2012 and subsequent resourceconsent applications being granted, a total of 29 lot entitlements have been transferredusing TRLRs from Klondyke Road to other properties, and on 22 February 2013 theplaintiffs made a deed of covenant with the Queen Elizabeth II National Trust toprotect, maintain and enhance the open space values of 190.89 hectares of the land.Conservation lots, environmental lots, and TRLRs[8] 204 hectares of the Klondyke Road property are covered in indigenous bush ofwhich it seems 175 hectares was assessed as having some ecological value. Accordingto Mr Soroka, the bush is comprised of mature podocarp-broadleaf forest such as rimu,miro, tawa, and kohekohe, and contains populations of threatened plant species suchas kukupa and king fern.[9] Under the various district plans in force across New Zealand, rules wereintroduced to incentivise the owners of land containing ecologically significantfeatures, such as remnant native bush, to protect those features from development.[10] Set out below are the key provisions in the district plan applicable to theKlondyke Road property, that being rural land within the former Franklin District.Conservation lots[11] Under the Franklin Operative District Plan, a person could apply to subdividerural land containing native bush or land of biological or scientific significance into"rural-residential" conservation lots, on which a dwelling could be erected, providedthe natural feature was physically and legally protected from further encroachment ordestruction. In practice, this required the erection of adequate fencing to protect thebush in question from wandering livestock and the execution of specified covenantsto protect the bush in perpetuity.[12] The creation of such lots, as a restricted discretionary activity for the purposesof the Resource Management Act 1991 (RMA), required a subdivision resourceconsent application be made to, and approved by, the territorial authority.Conservation lots proved a popular way for rural property owners to subdivide theirland, as they allowed for an allotment of given size to be divided into more parcelsthan under the general rural subdivision rules.[13] Significantly, there was no provision under the applicable district plan for thetransfer of conservation lot development rights to other properties. They could becreated and utilised only on the property in respect of which they were created.Environmental lots and TRLRs[14] Introduced under Plan Change 14 to the Franklin Operative District Plan, thecreation of environmental lots was intended to provide an opportunity for subdivisionof rural land while promoting the restoration, enhancement, and protection of land ofsignificant natural and cultural value, including remnant indigenous vegetation. Aswith conservation lots, this was achieved by the landowner providing legal andphysical protection to the significant natural features of their land against furtherencroachment or destruction. In effect the rules for environmental lots replaced theconservation lot subdivision approach.[15] Whether environmental lots could be created in respect of a given property wasassessed against the criteria set out in r 22.11.1.2 of Plan Change 14. The number oflots able to be created in respect of a property of a given size, and in respect of a givenamount of protected vegetation, was determined according to r 22.11.2.[16] To this end, r 22.11.2.1 contained two "Lot Entitlement Tables". Table 2provided the formula for properties situated in the Hunua Rural and Southern RuralManagement Areas within the former Franklin District, whereas Table 1 provided theformula for properties situated in other Management Areas.[17] The Klondyke Road property was situated within the Southern RuralManagement Area, such that Table 2 applied. Both Tables 1 and 2 are set out below:Table 1 – For all Management Areas except Hunua Rural and Southern RuralManagement AreasBiodiversitySignificanceMinimumSize ofNaturalFeature(s)for 1 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 ha 7.0 ha 10Table 2- For Hunua Rural and Southern Rural Management AreasBiodiversitySignificanceMinimum Sizeof NaturalFeature(s) for 1LotMinimum AdditionalArea of NaturalFeature(s) for EachAdditional LotMaximum Numberof Lots on Any LotCRITICAL 0.5 ha 2.0 ha20HIGH 0.5 ha 3.0 haMODERATE 1 ha 7.0 ha 10[18] These tables were prefaced with the words "The Lot entitlement shall be asfollows".[19] The existence of discrete formulae in respect of different Management Areasreflected the differing resource management objects operative in respect of eachManagement Area.[20] The Southern Rural Management Area was identified in Plan Change 14 as anarea in which countryside living could be encouraged. In particular, r 17.2.5.3 ofPlan Change 14 specified the objectives for this area as being "to provide for ruralactivities and countryside living with environmental protection, enhancement orrestoration", and promoting economic growth by promoting "land investment andstewardship opportunity". Conversely, in other Management Areas, lifestyledevelopment and subdivision was discouraged in favour of development in targetedgrowth areas and in and around extant villages and settlements.[21] As noted in the explanation prefacing r 22.11.2 of Plan Change 14, the potentialadverse ecological effects of an excessive number of lots being created in a protectedarea "are minimised by requiring the transfer of excessive lots beyond a specifiedmaximum to other sites."[22] This transfer of lot entitlements was achieved by the "mechanism" of TRLRsprovided for in rr 22.17, 22.18, and 22.19 of Plan Change 14 – in conjunction with therequirements of r 22.11.2.[23] Different rules applied to TRLRs between properties within the sameManagement Area (to which r 22.18 applied) and to TRLRs between differentManagement Areas (to which r 22.19 applied). In summary, as the explanation tor 22.19 put it, "a more rigorous assessment" was required of a proposed transfer ofTRLRs between different Management Areas than within the same area, "given thatthe effects of this activity may be more significant", on account of the differingcharacter of and objects for each Management Area.[24] The net result was that where a landowner protected significant environmentalfeatures on one property by creating environmental lots, forfeiting the developmentpotential and incurring the opportunity cost of doing so, they could gain the ability touse TRLRs to, in substance, transfer that development potential to other land. Thiswas in distinction to conservation lots, which were non-transferable.The resource consent application[25] Against this background Mr Soroka made his application on 17 April 2012addressed to both the Waikato Council and Auckland Council. This was covered by aletter headed "Remnant Native Bush Conservation & Transferable Rural Lot RightSubdivision Application".[26] As the effect of the application is disputed, it is necessary to set out its wordingat some length. In summary, as set out in the application, Mr Soroka's proposal wasto: conserve approximately 204ha of native bush on the applicant's KlondykeRoad property and use the Conservation Lot subdivision rules of the DistrictPlan to create 29 lot entitlements.It is proposed to transfer 13 of the 29 entitlements to the Chamberlain Roadproperty using the Transferable Rural Lot Right subdivision of Proposed PlanChange 14 (PC14). Further lots will be transferred to other properties inseparate applications which are to follow soon.The subdivision application will be completed in two stages as follows:- Stage One will be to create five new lots along with a Road to Vest lot a lot to transfer to the adjoining owner and the balance land - Stage Two will be create eight new lots along with a Road to Vest Lot a lot to transfer to the adjoining owner and the balance land [27] The application was addressed to both Councils as the Chamberlain Roadproperty referred to is situated at Bombay and so was, prior to 2010, also part of theFranklin District but was, by 17 April 2012, part of the Auckland Council territorialarea. It is not in dispute that, as of 17 April 2012, it was possible to employ TRLRs totransfer development rights in the form of environmental lots from properties formerlywithin Franklin District on one side of the new boundary between the Waikato andAuckland Council territorial areas to properties also formerly within Franklin Districton the other side of that boundary.[28] For the purposes of rr 22.18 and 22.19, the proposed use of TRLRs to transferenvironmental lots between the Klondyke Road and Chamberlain Road properties wasa transfer between two Management Areas, such that r 22.19 applied.[29] The application continued:3.0 OPERATIVE DISTRICT PLAN PROVISIONS3.1 Conservation Lot right subdivisions are Discretionary (RA) Activitiespursuant to the provisions of Rule 22.3.3.2 The rules for Conservation Lot rights are contained in Rule 22.9 andwe address the requirements as follows:3.3 Conservation Lots Performance Standards – Rule 22.9A3.3.1 No new lots are proposed at Klondyke Road, so this assessment is notrequired in this section of the application.3.3.4 We have calculated the area of bush to be placed under conservationat 204 ha however the ecological assessment found only 175ha of thisis worthy for the creation of additional allotments under the OperativeDistrict Plan rules. We acknowledge that the ecologist still considersthe additional 29 hectares as being worthy of protection and hasthe potential to meet the Operative District Plan rules in the future.Using the formula provided by Rule 22.9(4), 175 ha of protected bushreturns a maximum of 29 new Conservation Lots. We are currentlyproposing to use 13 of these entitlements and transfer them to aReceiver property at Chamberlain Road The new ConservationLots are shown as Lots 1 to 8 and 10 to 14 on the Subdivision ConsentPlans. The remainder of the lot entitlements will be transferred to theother properties in separate applications which are to follow soon.4.0 ASSESSMENT OF PROPOSED PLAN CHANGE 144.1 Environmental Lot right subdivisions should be assessed as RestrictedDiscretionary Activities pursuant to the provisions of Rule 22.3 ofproposed Plan Change 14.4.2 The rules for Environmental Lots are contained in Rule 22.11 and weaddress these requirements as follows:4.3 Specific Performance Standards for all Lots – Rule 22.11.1.(1)4.3.1 Rule 22.11.1.1 sets out the Specific Performance Standards and weaddress these as follows:(a) No new lots are proposed at Klondyke Road, so this assessment is notrequired in this section of the application.(f) No new lots are proposed at Klondyke Road however, we are onlyusing 13 of the total of 29 new Environmental Lot entitlements forthis application and the remaining lot entitlements will be transferredto other properties in separate applications which are to follow soon.As such, we request Council register on the title of [the KlondykeRoad property] an Encumbrance for each stage stating the following:Stage One:Five Conservation/Environmental Lot entitlements Stage Two:Thirteen Conservation/Environmental Lot entitlements ... 4.5 Specific Performance Standards – Rule 22.11.2(1)4.5.1 The creation of environmental lots shall meet the requirements of thisrule as follows:(a) Please refer to [the ecologist's report].(b) There are three distinct areas of bush that form the total areato be placed under conservation as follows:- Area A is approximately 42 hectares and has a BiodiversitySignificance of High allowing for the creation of 14additional allotments.-Area B is approximately 133 hectares and has a BiodiversitySignificance of High allowing for the creation of 45additional allotments.- Area C is approximately 29 hectares and has a BiodiversitySignificance of Moderate allowing for the creation of 5additional allotments.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 willbe transferred to other properties in separate applications which are tofollow soon. The new Conservation Lots are shown as Lots 1 to 8 and10 to 14 Subdivision Consent Plans.Transferable Rural Lot Right Subdivision – Auckland Council JurisdictionAs discussed above, it is proposed that 13 of the conservation lot entitlementsproduced from the legal protection of the bush on the Klondyke Road propertywill be transferred off site to a receiver property at Bombay.5.0 DISTRICT PLAN PROVISIONS5.1 Proposed Plan Change 14 provides for this application to TransferRural Lot Rights between identified management areas to beprocessed as a Discretionary Activity pursuant to the provisions ofRule 22.4. However there are no provisions to transfer lots under theOperative District Plan therefore the application falls to a Non-Complying Activity being the highest applicable status under theprovisions of the Operative District Plan.5.2 Discretionary Activities are required to be assessed in terms of theircompliance with Rules 22.7, 22.9, and 53 of the Plan and we commenton these below. The rules for Transferable Rural Lot Rights betweenidentified management areas are contained in Rule 22.19 [30] The balance of the application is not presently relevant, with the exception oftwo paragraphs found in the concluding section of the application:The transfer of the 13 development rights approved through the protection ofthe abovementioned ecologically significant feature 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 Auckland Council Plan(Franklin Section) does not make any provision for the transfer of Rural LotRights between non-contiguous parcels of plan, the proposal is generallyconsistent with the provisions for the transfer of Rural Lot Rights betweenproperties falling within identified Management Areas of Rural plan change(Plan Change 14) The Councils' decision on Mr Soroka's resource consent application[31] The Auckland Council and Waikato Council gave their joint decision grantingMr Soroka's application of 17 April 2012 on 31 July 2012. The grant of resourceconsent reads, so far as is presently relevant, as follows:NON-COMPLYING ACTIVITY RESOURCE CONSENTAPPLICATION UNDER THE RESOURCE MANAGEMENT ACT 1991An application has been made by Glenn Michael Soroka to:- covenant approximately 204 hectares of mature remnant native bush atKlondyke Road, Port Waikato (Waikato District);- undertake a Transferrable Rural Lot subdivision for 13 lots to be createdat Chamberlain Road, Bombay (Auckland); and- land resource consent is required for approximately 5,000m3 ofearthworks This requires resource consent for the following reasons:Auckland Council District Plan (Franklin Section) and the WaikatoDistrict Plan (Franklin Section)• Both District Plans provide for Conservation Lot subdivisions as aRestricted Discretionary Activity, but as the lots to be created under thisrule will be created on a different property from that which contains thebush feature, thus the proposal falls to be considered as a Non-ComplyingActivity • The operative District Plans do not provide for the transfer of titlesbetween properties and the proposal falls to be considered as a Non-Complying Activity Auckland Council District Plan (Franklin Section, Plan Change 14) andthe Waikato District Plan (Franklin Section, Plan Change 14)• 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 complywith the maximum number of lots which can be transferred betweenidentified Management Areas, thus the proposal falls to be considered asa Non-Complying Activity pursuant to Rule 22.5 of Plan Change 14.Subdivision Resource ConsentPursuant to the Resource Management Act 1991, this Non-ComplyingActivity application is granted for the following reasons:(a) The proposal will result in the legal and physical protection ofapproximately 204 ha of mature remnant native bush. This native bushfeature is considered worthy of protection and meets the standards set outin Rule 22.9 for the creation of the thirteen Conservation Lots proposedas part of this application.(b) Furthermore, portions of the native bush feature meets the relevantperformance standards and is in general accordance with the AssessmentCriteria for the creation of Environmental Lots under Rules 22.11.1 and22.11.2 of the same document.(c) The transfer of the thirteen development rights approved through theprotection of the abovementioned ecologically significant feature willremove the potential dwelling rights away from this valuable natural areaand will instead be created in an area better able to accommodate them.v. The proposal is considered to be substantially consistent with theprovisions for Transferable Rural Lot Rights Between IdentifiedManagement Areas of the Waikato District Plan (Franklin Section PlanChange 14) and the Auckland Council District Plan (Franklin Section PlanChange 14).[32] With one exception, the balance of the decision is dedicated to setting out inexhaustive detail (as it seems is customary) the conditions on which consent to thecreation and transfer of the thirteen development rights was granted, and to grantingand establishing the conditions of the grant of consent for the earthworks. Thisexception is found in the "Advice Notes" at the close of the document, one of whichreads:7. In respect of the property at Klondyke Road, Port Waikato, the applicanthas indicated that they may seek to generate additional Conservation Lotentitlements and transfer these off the site as part of future applications. Inthis respect it is noted that any additional subdivision entitlements wouldneed to be assessed as part of any future application, on its merits, andbased on the Waikato District Plan rules that prevail at the time of thatapplication being made. No guarantee is given as to the potential numberof lots (if any) which may be utilised in association with making such anapplication or applications.Subsequent events[33] On 22 February 2013, an open space covenant in favour of theQueen Elizabeth II National Trust was registered on the record of title for theKlondyke Road property. The effect of this covenant was to legally protect the bushon the property in perpetuity. It is not in dispute that the bush has subsequently beengiven adequate physical protection against destruction by wandering livestock andwildlife, satisfying the conditions of the 2012 grant of resource consent.[34] At around the time of Mr Soroka's April 2012 application, the Waikato Councilhad been questioning the legal basis and resource management justification for "cross-border" TRLR applications such as between the Klondyke Road and Bombayproperties. Regardless, they granted the application. However at the same time, inJuly 2012, the Waikato Council and Auckland Council publicly notified Variation 13to Plan Change 14 to their respective plans for the former Franklin District. Thepurpose of this, in summary, was to prevent future transfers of environmental lotsbetween properties in the former Franklin District across the boundary between theAuckland Council and Waikato Council areas. That variation did not immediatelyenter into force, being subject to the determination of a panel of Independent HearingCommissioners, who gave their decision on 11 February 2015, and then an appealagainst that determination by Mr Soroka to the Environment Court.[35] While those processes were underway, Mr Soroka transferred two additionallots to properties within Auckland Council's territorial area following applicationsmade by him to Auckland Council; one in September 2012 and another in January2013. That is, a total of 15 lots had been transferred by him by January 2013.[36] In October 2015, Mr Soroka, the Waikato Council, and Auckland Councilagreed that Mr Soroka could transfer 14 further lots to properties within the AucklandCouncil territorial area after Variation 13 came into effect if he withdrew his appealagainst Variation 13. A consent order issued from the Environment Court on11 November 2015 setting out the provisions to be added to Plan Change 14 as part ofVariation 13. In material part, this provided:Add [as r] 22B.3.4C [of Plan Change 14] the following:A transfer of any remaining environmental lots resulting from SubdivisionConsent S12035 (application lodged on 20 April 2012 and consented byAuckland Council on 30 July 2012), to a receiver RURAL LOT inaccordance with Rules 22B.12.3 and 228.7.Note: For the avoidance of doubt, 14 environmental lots existed as at11/11/2015.The argument[37] Mr Soroka's counsel Mr Gray QC says that in terms of the relevant formula inthe Franklin Scheme, the plaintiffs' land generated an entitlement to 64 TRLRs. Hethen says as a first argument that once Mr Soroka established in 2012 that the bush onthe Klondyke Road property was deserving of protection and would receive legal andphysical protection, which the Waikato Council accepted in granting his application,he received a mandatory entitlement, without any discretion on the Council's part, to64 TRLRs. Mr Soroka's entitlement "crystallised" on the grant of resource consent inJuly 2012 and from then his TRLRs could be utilised on different receiver propertiesto achieve a subdivision of those properties. Mr Gray says Mr Soroka needed nofurther recognition, or approval, of entitlement to TRLRs from the Waikato Councilwhen seeking subdivision consents on receiver properties. All Mr Soroka required isthat he had sufficient unutilised TRLRs left. Therefore he is entitled to a declarationto that effect.[38] Further on this point, Mr Gray submits that no resource consent was or isrequired for the generation of TRLRs at the Klondyke Road property as "the donorproperty" from which the TRLRs are to be transferred. Before an activity is governedby the RMA, Mr Gray submits, there must be either a subdivision of the land or theuse of the land, and Mr Soroka's granting of the necessary covenant over the land isneither, such that the Act does not apply.[39] As a second argument, Mr Gray submits that, even if resource consent wasrequired the application was in fact for 64 TRLRs and in any event the WaikatoCouncil was required to correctly assess the application and apply the provisions ofthe Operative District Plan and Plan Change 14, the result of which would have beento "approve [Mr Soroka's] full entitlement to TRLRs, regardless of any errors ormisconceptions in the Original Application." The result again, he submits, would havebeen that Mr Soroka was "entitled to 64 TRLRs". On that basis he seeks a declarationon the same terms.[40] In reply, Mr Moodley, who appears for the Waikato Council, submits:(a) That before Mr Soroka could employ TRLRs to transfer developmentrights from the Klondyke Road property to other properties, he wasrequired to demonstrate that an environmental lot could be created onthe donor property. That required the grant of resource consent to thecreation of those lots.(b) On a proper construction of his resource consent application Mr Sorokain fact applied for the creation of 29 environmental lots on theKlondyke Road property, which rural subdivision rights weretransferred to other locations. He was granted his applications in full.He submits the Waikato Council was not asked to assess whether(because this would have fallen outside the scope of the application)the remnant vegetation on the property warranted the creation of 64,that is an additional 35, environmental lots.(c) The Waikato Council were not required and had no power to grant morethan was applied for.(d) In any event, under Table 2 of r 22.11.1.1(b) of Plan Change 14, themaximum entitlement to environmental lots in respect of theKlondyke Road property was not 64 lots, nor even the 29 for whichconsent was granted, but 20 lots.[41] In summary, Mr Moodley says that Mr Soroka is now asking the Court to makea declaration as to the existence of rights as a consequence of a resource consentapplication that was never made, and was therefore never decided, and is asking for aresult that could never, applying Plan Change 14, have resulted. He says there is nobasis for Mr Soroka to seek the orders he does.Questions to be answered[42] Counsel agree I should address the following questions:(a) Was resource consent required at the Klondyke Road site? If it was Iwould not be able to make a declaration in terms of the first argument.(b) Did the plaintiffs in fact apply for "64 TRLRs"?(c) In any event, was the Waikato Council obliged to properly assess theapplication and "grant" 64 TRLRs on the strength of a correctapplication of the formula and the covenant that had been given?[43] This leaves the question of the correct application of the formula for fixing lotentitlements to the end, if it is reached.Was resource consent required at the Klondyke Road site?[44] As counsel agree, logically, the first question arising from the above is whetherMr Soroka would be obliged to apply for resource consent in respect of the creationof lots at the "donor" Klondyke Road property as a preparatory step before lots couldthen be transferred to other properties.[45] Mr Gray for Mr Soroka says that no subdivision or land use activity occurredat the Klondyke Road property, such that no resource consent is required. He submitsthat Mr Soroka never intended to actually develop the land at Klondyke Road with thedevelopment rights generated, but rather to transfer a portion of the rights generatedto another property and "bank", as he put it, the rest until he later applied to transferthose rights to other properties; an activity, he accepts, that would require resourceconsent. So far as the "donor property" is concerned however, once the lots fortransfer were created, Mr Gray says no consent is required for the transfer.[46] This submission is based on the provisions of the Act that create a need forresource consent. Two are of relevance. The first is s 9(3)(a), which provides:(3) No person may use land in a manner that contravenes a district ruleunless the use—(a) is expressly allowed by a resource consent;3[47] Mr Gray submits the creation of lots on the donor property is not a "use ofland" for the purposes of s 9(3)(a), such that no activity would occur on the propertythat would contravene the district rule, and therefore no consent is required.[48] "Use", for the purposes of s 9, is defined in s 2(1) of the Act, so far as ispresently relevant, to mean:(i) alter, demolish, erect, extend, place, reconstruct, remove, or use astructure or part of a structure in, on, under, or over land:(ii) drill, excavate, or tunnel land or disturb land in a similar way:(iii) damage, destroy, or disturb the habitats of plants or animals in, on, orunder land:(iv) deposit a substance in, on, or under land:(v) any other use of land; [49] The Court of Appeal in Smith v Auckland City Council emphasised that a broadinterpretation of the concept of "use" is required to accord with the purposes of the3 Sections 9(3)(b) and (c) go on to provide that land may be used in a manner contrary to a districtrule if that use is permitted by ss 10 or 10A, which are not presently relevant.RMA.4 Equally however, it has been accepted that the definition of "use" is limitedto physical and so-called "dynamic" occupational uses of the land.5[50] The second section that is relevant for present purposes is s 11, which provides,inter alia, that no person may subdivide land, within the meaning of s 218, unless thesubdivision is expressly allowed by a rule in a district plan or a resource consent.6Section 218 provides, so far as is relevant:218 Meaning of subdivision of land(1) In this Act, the term subdivision of land means—(a) the division of an allotment—(i) by an application to the Registrar-General of Land for the issueof a separate record of title for any part of the allotment; or(ii) by the disposition by way of sale or offer for sale of the feesimple to part of the allotment; or(iii) by a lease of part of the allotment which, including renewals, isor could be for a term of more than 35 years; or(iv) by the grant of a company lease or cross lease in respect of anypart of the allotment; or(v) by the deposit of a unit plan, or an application to the Registrar-General of Land for the issue of a separate record of title forany part of a unit on a unit plan; or(b) an application to the Registrar-General of Land for the issue of aseparate record of title in circumstances where the issue of thatrecord of title is prohibited by section 226,—and the term subdivide land has a corresponding meaning.(2) In this Act, the term allotment means—(a) any parcel of land under the Land Transfer Act 2017 that is acontinuous area and whose boundaries are shown separately on asurvey plan, whether or not—4 Smith v Auckland City Council [1996] NZRMA 276 (CA).5 Re Anzani Investments Ltd EnvC Auckland A76/00, 14 June 2000 at 3-4; Re Auckland Council[2016] NZEnvC 56 at [152].6 Resource Management Act 1991, s 11(1)(a).[51] Finally, I note for completeness that s 87 of the Act defines "resource consent"to mean, inter alia, a consent to do something that would otherwise contravene s 9(which is called a land use consent) or s 11 (which is called a subdivision consent).7[52] I agree with Mr Gray that, so far as the activities required of Mr Soroka to meetthe performance standards set out under Plan Change 14 for the creation ofenvironmental lots are concerned, no resource consent would have been required. Inparticular, the registration of the open space covenant in favour of theQueen Elizabeth II National Trust would not require resource consent, not being aphysical or dynamic use of the land. As to the physical activities required to protectthe natural bush – fencing, weeding, and best management plans – Mr Tollemache, anexpert planner retained by the Waikato Council, agreed under cross-examination thatthese are permitted activities under the District Plan. I agree these activities fall withinthe definition of forestry given in r 23.1 of the District Plan and are therefore permittedactivities on the Klondyke Road property as a property within the Rural Zone.[53] The difficulty with Mr Soroka's case however is that it is not possible for thepurposes of the Act and the District Plan, contrary to Mr Gray's essential submission,to accept that what Mr Soroka was doing was giving a covenant over theKlondyke Road property and undertaking conservation work on that land to"crystallise" an entitlement available to him as of right to use and/or subdivide otherland. That would be to ignore entirely the actual language and scheme of the relevantportions of the Operative District Plan and Plan Change 14.[54] As emerges from my potted summary of those provisions above, the essentialconcept of an environmental lot or conservation lot was that the property ownerobtained consent to the subdivision and erection of dwellings on land, thereby creatingan environment suited to lifestyle living while largely preserving the ecologicallysignificant features of the land. While environmental lots could, pursuantto rr 22.17 – 22.19, be transferred to other properties using the mechanism providedby TRLRs, before they could be transferred, it was clear that they first had to be createdon the "donor property", then transferred. There was simply no mechanism under the7 Resource Management Act, s 87(a)–(b).District Plan or Plan Change 14 to, in a single legal step, identify land that would bemanaged in accordance with the performance standards for the creation of anenvironmental lot and, as a result, "crystallise" an entitlement to develop other landusing TRLRs.[55] I accept that, in substance, applications to do both of these things could bemade and approved simultaneously, such that in fact the "donor property" would neverbe developed, and that TRLRs could immediately be used and transferred to anotherproperty. That does not obviate the fact, however, that before the TRLR could betransferred, a development right capable of then being transferred pursuant to rr 22.18and 22.19 had to be obtained. TRLRs are not, put another way, a right capable ofbeing obtained or used independently of the environmental lots which they are usedto transfer. It is not possible as Mr Gray put it in his submissions, for a person to "seekrecognition of their entitlement to TRLRs on the donor property".[56] Also, significantly, while I accept it may always have been the case thatMr Soroka never intended to develop the Klondyke Road property, the aboveconclusion is reinforced by the fact that Mr Soroka in fact, for at least some time in2012 and 2013, "held" in respect of Klondyke Road, lot rights that he had not used.As follows, he could have applied to use those rights, as Mr Tollemache put it, "insitu", to develop Klondyke Road. That clearly would have been a use of the land and,moreover, would have involved the subdivision of the land. As Mr Moodley notes, aspart of Mr Soroka's application for consent to the creation of the environmental lotson Klondyke Road, he was required to satisfy the Waikato Council as the territorialauthority that the land satisfied the requirements found in s 106 of the Act as to thesuitability of the land to subdivision.[57] The short point is that regardless of whether Mr Soroka ever intended to "use"for the purposes of s 9, or subdivide, the Klondyke Road property, as a step in theprocess of effecting the use of TRLRs with which he was primarily concerned, he wasrequired to obtain resource consent to the subdivision and use of the property. Whetherhe in fact ever intended to use the subdivision consent embodied in the application forthe creation of lots on the Klondyke Road property, he was required to obtain thatconsent before applying (which, as it happens, he did simultaneously in the case of 13of those lots) to use TRLRs to develop other properties.[58] Accordingly, for the above reasons, Mr Soroka was required to obtain resourceconsent in respect of the Klondyke Road property for the creation of anyenvironmental lots capable of transfer using TRLRs.[59] The plaintiffs' first argument therefore fails. The grant by the Waikato (andAuckland) Council of the April 2012 resource consent application and the plaintiffs'covenant over the Klondyke Road property does not crystallise any entitlement to anymore lots (assuming that existed).Whether the 2012 application was for 64 TRLRs[60] Both parties agree that, having arrived at that conclusion in respect of the firstissue arising, the second issue that arises is whether Mr Soroka in fact applied in 2012for 64 environmental lots capable of transfer as 64 TRLRs, rather than for 29 lots, inwhich case he seeks a declaration on that footing.[61] On its face the application was at most for the creation of 29 lots. As notedearlier, the opening section of the application says:The proposal is to conserve approximately 204ha of native bush and usethe Conservation Lot subdivision rules of the District Plan to create 29 lotentitlements.It is proposed to transfer 13 of the 29 entitlements to (emphasis added)[62] The remainder of the application refers to 29 entitlements. There is onereference only to "64 allotments" which emerges somewhat curiously at clause 4.5.1of the application, already set out above.[63] Mr Gray submits that the original application clearly asserted that "64 TRLRswere due". I do not agree that clause 4.5.1 even says that much. It reads as a straycomment, not to be given any weight. It does not change the fact the application wasfor 29 environmental lots (or arguably only for 13 lots but that is an unnecessaryargument). Relevant in this context is that there were many flaws in the terminologyof the application.[64] Mr Moodley says that applications for consent should be interpretedobjectively. He refers to Gillies Waiheke Ltd v Auckland City Council, where theCourt of Appeal stated that the approach to the interpretation of a consent and itsaccompanying conditions is an objective one.8 Mr Moodley submits the sameapproach applies to the interpretation of an application for consent. On an objectivereading of the application, Mr Moodley submits, it clearly sought consent for thecreation of 29 TRLRs.[65] I agree. In fact I see little need to even have resort to Gillies Waiheke Ltd vAuckland City Council.[66] Mr Moodley submits further that this objective reading is supported by theactions of the parties after the Councils released their decision to transfer 13 TRLRs.[67] The Councils' decision granting the subdivision application subject to thelengthy conditions of consent, referred to the application as being to covenantapproximately 204 ha of mature remnant native bush at the Klondyke Road property;to undertake a transferable rural lot subdivision for 13 lots to be created at the receivingproperty in Bombay, and to land resource consent being required for earthworks atBombay. The Councils' decision at no point referred to the application being for 64lots.[68] Subsequent communications between the parties, and their lawyers, repeatedlyreferenced the plaintiffs' belief that they had 29 lot entitlements. An email fromMr Soroka's lawyer on 9 October 2012 stated "a chain of correspondence, concludingwith yours of 29 August confirms a total entitlement of 29 lots. ... Please simplyconfirm that the entitlement which you have already assessed stands at 29 lots". Anemail from Mr Soroka stated "taking into account the tables above, 175 ha is sufficientfor 29 environmental lot entitlements not 13".8 Gillies Waiheke Ltd v Auckland City Council [2004] NZRMA 385, at [23].[69] In April 2015, when Mr Soroka appealed the Commissioner's decision onVariation 13 to the Environment Court, the notice of appeal stated that he "was notappealing the finding [by the Councils] that he had 14 remaining lots available totransfer". He only sought confirmation that he could transfer 14 additional lots (for atotal of 29 lots, as two additional lot entitlements had issued in the intervening period).The subsequent joint memorandum of the parties and the consent orders issued by theEnvironment Court make it very plain there were at most 14 additional lot entitlementsfor a total of 29.[70] To conclude, I consider that on any reading of the application, it is clearMr Soroka's application sought consent at most for the creation of 29 lot entitlements.Any alternative interpretation would ignore the clear wording of the application. Itwould also run entirely contrary to Mr Soroka's own conduct for some years after theapplication.Should the Waikato Council nonetheless have treated the application as being for64 environmental lots?[71] Mr Gray submits that regardless of what was applied for, the Council wasrequired to properly understand the proposal and assess it correctly which he sayswould mean that Mr Soroka was entitled to 64 TRLRs. He says that once the Councilwas satisfied as to the significance of the bush, it was obligated to properly calculate"the plaintiffs' TRLR entitlement" on the basis of the words "shall be" in r 22.11.2.1of Plan Change 14.[72] In support of his submission, Mr Gray points to s 104(5) of the RMA whichstates:A consent authority may grant a resource consent on the basis that the activityis a controlled activity, a restricted discretionary activity, a discretionaryactivity, or a non-complying activity, regardless of what type of activity theapplication was expressed to be for.[73] Mr Gray otherwise cites no authority in support of what seems an unlikelyproposition, especially when viewed in the context of a case such as this.[74] On its face s 104(5) of the RMA does not apply here. Even if it did, it isdiscretionary and does not impose an obligation on the Council. The authoritiesclearly convey that the position is the opposite to that contended by Mr Soroka.Principal Planning Judge Sheppard made it plain in Affco v Far North District Council(No 2) that the onus is on an applicant to describe what is proposed in a subdivisionapplication with sufficient particularity to enable the defendant to undertake thefunctions required of it under the Act and it is for the applicant to provide whateverinformation is required for the defendant to understand the nature of the proposedactivity and the effects on the environment.9 It is not for the defendant, its planners oradvisers to have to engage in "detailed investigations" to assess the application.10[75] The point is also answered as Mr Moodley says by reference toHood v Dunedin City Council.11 In Hood, the applicants sought a declarationconcerning a consent order issued by the Council in relation to the location of adwelling specified in the consent order. In the decision, the Environment Courtconsidered the scope of a resource consent and noted that a resource consent is limitedby the terms of its application. It concluded that a resource consent that goes beyondwhat is sought in the application would be ultra vires.12[76] The Waikato Council was not under any duty of investigation to Mr Soroka. Italso could not grant resource consent beyond what was sought in the relevantapplication. To do so would have been ultra vires. The Council say that Mr Sorokain fact had no entitlement in terms of the formula to 64 environmental lots but even ifMr Soroka had been "entitled to 64 TRLRs" as Mr Gray puts it, the Council could atmost only grant what was sought in the application.[77] I therefore find the Waikato Council should not have treated the application asan application for 64 environmental lots, or for the use of 64 TRLRs.9 Affco v Far North District Council (No 2) [1994] NZRMA 224 at 234.10 At 235.11 Hood v Dunedin City Council [2017] NZEnvC 42, at [36]. See also Sutton v Mole (1992) 2NZRMA 41 at 46.12 At [36].Was there a bargain between the parties?[78] Initially Mr Soroka's argument focused on the subdivision application decisionand covenant constituting a bargain or contract between the parties, guaranteeing him64 lots to which he now claims entitlement.[79] It was not clear whether he was still pursuing that argument in those terms inoral closing submissions but for the sake of completeness I record that I agree withMr Moodley that such an argument is unsupported by the facts and wrong as a matterof law. Mr Soroka received all of the lot entitlements he requested despite theCouncils' initial consent expressly pointing out he might not. As to the law, it sufficesto refer to Mawhinney v Taiapa Developments Ltd where Master Kennedy-Grant saidin respect of a similar argument from Mr Mawhinney:13[7] The plaintiffs allege that the second defendant is a party to four contractswith the plaintiffs....[14] I am satisfied, in the absence of authority favouring the arguableexistence of a contract in circumstances such as are pleaded by the plaintiffs... the plaintiffs' cause of action in contract is untenable and should be struckout....[20] In essence, the plaintiffs are alleging that the statutory regime governingresource management applications constitutes a contract between the relevantauthorities and the public and that the plaintiffs, as members of the public, areentitled to the benefit of that contract....[22] I find that this cause of action also is untenable, if only (and ignoring anyother reasons that might be advanced against its acceptance as an arguablehypothesis) because such a concept is unnecessary and, also, unworkable. Itis unnecessary because adequate protection is provided for the supposedbeneficiaries of such a contract under the law relating to breach of statutoryduty, negligence and misfeasance in public office. It is unworkable because,if there is a single contract to which all members of the affected public areequal parties, how is the contract to be enforced when the legitimate interestsof affected members of the public may conflict.13 Mawhinney v Taiapa Developments Ltd HC Auckland, CP 29-SD99, 7 March 2001.Conclusion[80] The net effect of my findings is that Mr Soroka would have had to apply forfurther resource consent to obtain any further lots or to be able to use any furtherTRLRs to which he considered himself entitled. He had no extant right to use furtherTRLRs on any of the bases argued before me. He therefore is not able to obtain anyof the remedies he seeks in this proceeding.[81] I note that Mr Soroka is not now able to apply for resource consent as aconsequence of Variation 13. But he would have known that back in 2015 when heresolved his appeal against that Variation, and it seems maximised what he thenclaimed as his rights. It is only more recently that he has claimed he is "entitled" tomore.[82] Because of the answer to the first three questions, I do not need to address thepoint as to how many TRLRs might have been available for use under relevantprovisions of the old Variation 14. That point is academic. As noted, the Council saysit was a maximum of 20. It says it erroneously granted consent for 29, to Mr Soroka'sconsiderable benefit. Mr Soroka now claims it was 64. That question should havebeen addressed to the Council in 2012 and to the Environment Court if Mr Soroka wasunhappy with the answer rather than via this rearguard action. It is not a questionsuited to this Court.[83] I similarly consider that the second and third questions raised by Mr Soroka,which I have answered, as to what application he made to the Council and how theCouncil should have responded, were issues that should have been raised on appeal tothe Environment Court in 2012. And further that this proceeding should have beenfiled in the Environment Court. I agree with Ellis J's view in Graham v AucklandCouncil that declarations related to RMA matters should be heard in the EnvironmentCourt, that being a forum far better suited to ventilating and determining such issuesthan this Court.14 However, having received fulsome submissions from counsel onthese points and in light of Mr Moodley having accepted in the first instance that this14 Graham v Auckland Council [2013] NZHC 833 at [62].Court had jurisdiction to consider the application (bar the final order sought) I decidednot to press these matters further.[84] Finally, I heard evidence from planners for both parties, mainly as to theirinterpretation of the maximum number of lots that could be transferred pursuant toTable 2 of r 22.11.2 and otherwise to explain the history and purpose of the variousresource management rules. Little if anything turns on that evidence in the endbecause I have not needed to delve into the Table 2 point and the planners were not farapart on the more general issues. I do record though that, for the reasons set out inMr Moodley's submissions, I was not satisfied that there was any "ledger" of TRLRentitlements such as Mr Williamson suggested on behalf of Mr Soroka, or that even ifthere had been, there was any relevant "ledger" entry for Mr Soroka's land.Orders[85] For all of the above reasons, the plaintiffs' claim fails and I decline to grant thedeclarations and order sought.[86] The defendant is entitled to costs. If the parties are unable to agree on costs,then counsel for the defendant is to file a memorandum within three weeks from thedate of judgment, with counsel for the plaintiffs having two weeks to respond.Memoranda are not to exceed five pages.________________________________Hinton J