HAINES HOUSE HAULAGE NORTHLAND LTD v WHANGAREI DISTRICT COUNCIL [2020] NZHC 525

HAINES HOUSE HAULAGE NORTHLAND LTD v WHANGAREI DISTRICT COUNCIL [2020] NZHC 525[17 March 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2019-488-69[2020] NZHC 525IN THE MATTER of the Local Government Act 2002 and theResource Management Act 1991BETWEEN HAINES HOUSE HAULAGENORTHLAND LIMITEDAppellantAND WHANGAREI DISTRICT COUNCILRespondentHearing: 27 February 2020Appearances: AGW Webb for the AppellantG Mathias for the RespondentJ Baguley for A Waldron (s 274 party)Judgment: 17 March 2020JUDGMENT OF GORDON JThis judgment was delivered by meon 17 March 2020 at 11.00 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: WRMK Lawyers, WhangareiThomson Wilson, WhangareiAtlas Legal Ltd, KerikeriCounsel: A Webb, AucklandIntroduction[1] The appellant, Haines House Haulage Northland Limited (HHH) applied to therespondent, the Whangarei District Council (the Council) for a land use consent tostore relocatable houses on a site north of Whangarei between Piano Hill Road andState Highway 1. The site was intended to operate as an overflow yard for houses thatcould not be accommodated at HHH's main yard, approximately one kilometre awayon State Highway 1.[2] The Council's reporting officer recommended a grant of consent. The Councilappointed a Commissioner to hear the application. Consent was refused for reasonsessentially related to visual impacts and visual amenity values.[3] HHH appealed to the Environment Court. For the purposes of the appeal HHHcommissioned a further landscaping report and a vegetation management plan. In itsInterim Decision, dated 22 March 2019 (Interim Decision) the Court concluded thatthe appeal might be allowed and consent granted if the Court "can be satisfied as tothe activities allowed and [sic] suitable conditions to achieve rural character andamenity and avoid derogating from urban consolidation".1[4] The Court issued its Final Decision on 25 July 2019 (Final Decision)dismissing the appeal and refusing the resource consent.2[5] HHH now appeals on questions of law. The appeal is expressed to be againstthe Final Decision, but the appeal grounds necessarily encompass alleged errors of lawin the Interim Decision.The land area and ownership[6] The registered proprietor of Lot 1 DP 483749 and the adjacent Lot 2DP 356529 is Titoki Farms Ltd (Titoki). I will refer to these two lots as Lot 1 andLot 2 respectively. While Lot 1 and Lot 2 are on the same certificate of title, they are1 Haines House Haulage Northland Ltd v Whangarei District Council [2019] NZEnvC 49 at [105].2 Haines House Haulage Northland Ltd v Whangarei District Council [2019] NZEnvC 124.separate parcels of land. (This is relevant to one of the key issues in the appeal). Theapplication for resource consent was only in respect of Lot 2, not Lot 1.[7] Mr Haines is the sole director of both Titoki and HHH.[8] The registered proprietor of Lot 2 DP 483749 (the Waldron Land) is AimeeWaldron, the s 274 party. There is a dwelling house on the Waldron land. Thelocations of Lot 1, Lot 2 and the Waldron Land are shown on annexure B to the InterimDecision. A copy of that document is also annexed to this judgment. At some stageprior to HHH applying for resource consent, Lot 1 had been subdivided from theWaldron land (hence the common DP number as between Lot 1 and the Waldron land).[9] A resource consent had previously been granted to Halls Brown ContractingLtd on 11 April 2014 to store contracting equipment, metal and rock, screening oftopsoil and storage and delivery of firewood on Lot 2. That consent was current at thetime HHH made its application for resource consent and had not been surrendered atthe time of the hearing in the Environment Court.3[10] There is an office/staff amenities building located on Lot 2 near the frontage toPiano Hill Road and a shed is located in the centre of the lot. Much of the remainderof Lot 2 has bare or gravel surfaces where the various other activities were undertakenunder the previous resource consent. As part of its proposal, HHH said it intended tomake minor internal conversions to the existing buildings on the application site toprovide a small office/workshop area together with small-scale improvements to theexisting gravel surfaced area to cater for storage, vehicle manoeuvring and vehicleparking.The District Plan[11] At the time the application for resource consent was filed through to thecommencement of the hearing in the Environment Court the "old" Whangarei DistrictPlan was operative. Under that plan, Lot 2 was in the Countryside Environment Zoneand the activity proposed was a restricted discretionary activity.3 At [29].[12] In a process that was running in parallel with the progress of the applicationand appeal in this case, the Council was conducting Plan Change 85, A-D. The planchange process was well advanced by the time the appeal was filed in the EnvironmentCourt, but the final form of the rural provisions of the new Whangarei District Plan(the Plan) had still not been settled. However, on the second day of the hearing in theEnvironment Court, a Judge of that Court signed a consent order making those ruralprovisions in the Plan operative. This meant (and there was no dispute on this issue)that the "old" plan had no effect as from that date and the application for resourceconsent and appeal would now be determined under the Plan. The Environment Courtproceeded in that way.[13] The activity for which consent was sought on Lot 2 is a discretionary activityunder the Plan. A dwelling house on Lot 1 is a permitted activity. This is relevant forreasons that will become apparent shortly.The decisions and related events[14] The appeal hearing before the Environment Court was held in Whangarei inDecember 2018. The Council's planning witness supported the proposal, subject tosome conditions. The appeal was opposed by Ms Waldron, who presented expertplanning and landscape architecture evidence. On 11 January 2019, the Court issueda minute seeking clarification as to the ownership of Lot 1 and whether Lot 1 and Lot 2were in a common certificate of title. The minute also included the followingquestions:C. There is no evidence, on the file, showing that the application relatedto Lot 1 DP 483749. This is supported by reference to the previousconsent issued to Paul (sic) Brown Contracting Limited 2014 that onlyrelated to Lot 2 DP 356529.D. There is no evidence that the applications filed included works on thehouses stored on the property or any activities at all in relation to Lot1 DP 483749. The red line delineating the application site appears torelate only to Lot 2 DP 356529.[15] This information was provided by way of memorandum from Mr Webbcounsel for HHH on 18 January 2019. The information regarding ownership and titleswas as recorded in [6], [7] and the first part of [8] above. In answer to question C inthe Court's minute, the memorandum made it clear that the application did not relateto Lot 1, and that the application had always only been in respect of Lot 2. Referencewas made to various documents which were consistent with that position. Thememorandum continued:12. In other words, consent is only sought for activities which are notpermitted on Lot 2 DP 356529. Only permitted activities areanticipated to occur on Lot 1 DP 483749.[16] In answer to question D, counsel's memorandum states:13. As above, it is not anticipated to store houses on Lot 1 DP 483749 orto undertake works on the houses within that land area.[17] The memorandum concluded by saying that the memorandum had beencirculated to the other parties for comment and the parties agreed that it could be filedin that form.[18] On 24 January 2019, in other words before the Interim Decision issued, HHHmoved a dwelling house onto Lot 1 and began works to establish the placement of thehouse and foundations. The house had not been completely installed by the time ofthe Interim Decision.4[19] The Court issued the Interim Decision on 22 March 2019. It concluded, asnoted above, that the appeal might be allowed and consent granted if the Court couldbe satisfied as to the activities allowed and if there were suitable conditions to achieverural character and amenity to avoid derogating from urban consolidation.[20] A pertinent feature of the Interim Decision was the Court's indication thatthere should be no structures on Lot 1 in order that it retain rural character and amenity.The Court said, in particular, there should be no sheds or any manager's house on Lot1.5 The Court considered that any such building would create an adverse effect on therural character of the environment if the application for the activity on Lot 2 weregranted. In other words the resource consent could only be granted so long as no4 Mr Webb, counsel for HHH, became aware of the house being moved onto the site after it hadoccurred.5 At [78].buildings were placed on Lot 1. I come back to this issue as it is a core part of theappeal.[21] The house remained on Lot 1 after the Interim Decision issued and workcontinued to permanently establish it on Lot 1. A building consent was issued by theCouncil for the house on 9 May 2019.[22] One of the directions in the Interim Decision required HHH to provide furtherdraft consent wording (with particulars of activities) and conditions and landscapingplans incorporating the Interim Decision.6 In accordance with that direction, theparties negotiated and on 25 June 2019 counsel for HHH filed a memorandumannexing a revised set of conditions and an Amended Landscape Plan (ALP). TheCouncil agreed with all of the proposed conditions. That agreement was recorded inthe memorandum. There were issues in relation to the ALP and the Vegetation Planfrom the perspective of Ms Waldron's witness, Ms Woodhouse. Ms Waldron alsodisagreed with some of the proposed conditions. That disagreement was noted andcommented on in the memorandum.[23] The existence of the house now on Lot 1 was recorded in the memorandum.The Court was advised that HHH moved the house onto Lot 1 on 24 January 2019.The memorandum records that in the intervening period HHH had sought a buildingconsent for the house, which had been granted and further that the house was notlocated directly in front of the Waldron's house (which had been the case in a landscapeplan before the Environment Court at the hearing) but was off to the side. As aconsequence of the house on Lot 1, the draft conditions annexed to Mr Webb'smemorandum and which were agreed to by the Council, included the followingconditions:7. The registered proprietor of Lot 1 DP 483749 (Lot 1) shall registeragainst the Title of Lot 1 a covenant in favour of the WhangareiDistrict Council pursuant to s 108(2)(d) of the RMA prohibiting theuse of Lot 1 in conjunction for any activities authorised by thisconsent. .6 At [106](a).8. The land immediately adjacent to the south eastern boundary of thesite [i.e. Lot 2] is described as Lot 1. No activities shall be permittedon Lot 1 except:(a) Grazing of cattle, horses or sheep; and(b) 1 dwelling and associated landscape planting as permittedactivities as shown on the Landscape Plan [which wasannexed to the draft conditions].[24] In other words, HHH indicated it would accept a condition that restrictedotherwise permitted activities on Lot 1 to those permitted activities set out in 8(a) and(b) above. The ALP annexed to the draft conditions showed mitigation plantingaround the house on Lot 1.[25] As noted above, while all of the draft conditions were agreed as between HHHand the Council, the Waldrons disagreed with some of those conditions. Of relevance,the Waldrons objected to draft condition (b). Their position was that Lot 1 should belimited to the grazing of cattle, horses or sheep.[26] Ms Baguley, for Ms Waldron, filed her own memorandum on 4 July 2019responding to the draft conditions proposed by HHH. She referred to the presence ofthe house on Lot 1 and the works undertaken on the house after the Interim Decisionissued. Ms Baguley submitted that the presence of a manager's house and a sleepouton Lot 1 would mean that the activity would spill into Lot 1. The submission wasmade that the house was not a permitted activity if it were to be used as part of thehouse storage operations. Ms Baguley also submitted that the new position of themanager's house and potential adverse effects arising from it had not been the subjectof evidence and testing by the Court. She urged the Court to issue its decision onconsent conditions prohibiting activity on Lot 1 as originally envisaged (meaningremoval of the house and sleepout) or to exercise its discretion to decline consent.[27] Ms Baguley also provided a response to the proposed draft conditions in hermemorandum.[28] There was then a further memorandum from Mr Webb on 10 July 2015. Thememorandum stated that "The s 274 party has misconceived the position regard themanager's house". It goes on to say that the manager's house on Lot 1 was only evermentioned in the context of being able to provide some further security for the s 274party in response to Ms Waldron's allegation that there were "squatters" at the currentyard (denied by HHH). The memorandum reiterated that the application was only inrespect of Lot 2; HHH was not seeking consent to undertake any activities on Lot 1pursuant to the consent; and that placement of the house on Lot 1 was a permittedactivity.[29] The Environment Court issued the Final Decision on 25 July 2019 decliningconsent. In summary, the Court determined that due to the placement of the dwellinghouse on Lot 1 the Court was not satisfied this lot could be used to mitigate the effectsof the activity on the amalgamated title of Lot 1 and Lot 2. The Court held that in suchcircumstances a condition of consent could not be imposed preventing the constructionof a building or other structures on the site given this had already occurred. In itsdecision, the Court acknowledged and accepted that the dwelling house could beplaced on Lot 1 but said:[12] In these circumstances the Interim Decision requirements cannot befulfilled given that the applicant has acted precipitously while the decisionwas pending and later notwithstanding the clear terms of the Interim Decision.[30] The Court said it was not satisfied that the adverse effects of the activity in therural zone could otherwise be avoided. It said it was also concerned about whetherHHH would comply with conditions of consent given that it had installed a house onLot 1 while the decision was pending and having regard to its work in relation to thehouse after the Interim Decision.Grounds of appeal[31] There are five alleged errors of law:First alleged error[32] The Court failed to take into account relevant matters:(a) The Rural Area provisions in the Plan (in the Interim Decision);(b) The Amended Landscape Plan (in the Final Decision).Second alleged error[33] The Court took into account irrelevant matters. HHH says these were bothlegal and factual errors:(a) Factual: The Court relied on two mistaken facts in refusing the appeal:that Lot 1 was to be utilised as part of the storage area for buildings onLot 2; and HHH did not give a specific time when the house was movedonto Lot 1.(b) Legal: Lot 1 was outside the scope of the application and the Court hadno jurisdiction to impose any conditions on Lot 1 without the consentof the owner. Even if the Court did have jurisdiction to impose acondition on Lot 1, any condition preventing permitted activities is sounreasonable that it would have been unlawful.Third alleged error[34] The Court came to a conclusion which, on the evidence, it could not reasonablyhave come to.Fourth alleged error[35] The Final Decision was so unreasonable that no reasonable Court would havemade that decision.Fifth alleged error[36] The Final Decision declining consent for the activity was a breach of naturaljustice.Position of other parties[37] Mr Mathias, appearing for the Council, indicated that the Council adopted aneutral position: it neither supported nor opposed the appeal. Mr Mathias madesubmissions for the assistance of the Court.[38] Ms Baguley appeared on behalf of Ms Waldron, who opposed the appeal.Approach to appeals from the Environment Court[39] Under s 299 of the Resource Management Act 1991 (RMA) an appeal from adecision of the Environment Court may only be brought on a question of law. Section299(1) provides:299 Appeal to High Court on question of law(1) A party to a proceeding before the Environment Court underthis Act or any other enactment may appeal on a question oflaw to the High Court against any decision, report, orrecommendation of the Environment Court made in theproceeding.[40] The nature of a question of law was considered by the Supreme Court inBryson v Three Foot Six Ltd in the context of a similar provision in the EmploymentRelations Act 2000 as follows:7[25] An appeal cannot, however, be said to be on a question of law wherethe fact-finding Court has merely applied law which it has correctlyunderstood to the facts of an individual case. It is for the Court to weigh therelevant facts in the light of the applicable law. Provided that the Court hasnot overlooked any relevant matter or taken account of some matter which isirrelevant to the proper application of the law, the conclusion is a matter forthe fact-finding Court, unless it is clearly insupportable.[26] An ultimate conclusion of a fact-finding body can sometimes be soinsupportable – so clearly untenable – as to amount to an error of law: properapplication of the law requires a different answer. That will be the positiononly in the rare case in which there has been, in the well-known words of LordRadcliffe in Edwards v Bairstow, a state of affairs "in which there is noevidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in which thetrue and only reasonable conclusion contradicts the determination". 7 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.[41] In the context of appeals under s 299 of the RMA, this Court has said that theEnvironment Court may have made an error of law if it:8(a) applied a wrong legal test; or(b) came to a conclusion without evidence or one to which, on theevidence, it could not reasonably have come; or(c) took into account matters which it should not have taken into account;or(d) failed to take into account matters which it should have taken intoaccount.[42] Further, as was said by Wylie J in Transpower New Zealand Ltd, v AucklandCouncil:9[54] It is also trite law that this Court must resist attempts by litigants touse an appeal limited to a question of law as an occasion for revisiting thefactual merits of the case under the guise of a question of law.[43] Any error of law found must materially affect the result of the EnvironmentCourt's decision before the High Court should grant relief.10[44] I proceed on the basis of the principles set out above.First alleged error – failure to take account of relevant mattersRural area provisions[45] The plan has a general Rural Area (RA) section which applies to all rural areasoutside the identified urban areas. The Description and Expectations part of the RAsection states that to address the diverse and varied issues and outcomes associated8 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.9 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [54]. That appeal wasunder s 158 of the Local Government (Auckland Transitional Provisions) Act 2010. Wylie J heldat [53] that the same principles apply to appeals under that Act.10 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.with the RA, five different Environments apply. Lot 2 (and Lot 1) is in the RuralProduction Environment (RPE).[46] Mr Webb submits that the Court did not consider any of the RA provisions andthus erred by confining its considerations only to the provisions for the RPE.[47] The Guidance Note at RA.1.4 states:1. The following shall form the basis for resource consent applicationsin the RA:(a) The objectives, policies and provisions for the Rural Area;(b) The objectives, policies and provisions for Environments [i.e.this includes the RPE](emphasis added)[48] Guidance Note 1.4 in the RPE has a similar provision as follows:1. The following shall form the basis for resource consent application inthe RPE:(a) The objectives, policies and provisions for the RuralProduction Environment;(b) The objectives, policies and provisions for the Rural Area inthe District Plan.(emphasis added)[49] Mr Mathias accepts that the Court did not consider the RA provisions.[50] Mr Webb submits that this failure on the part of the Court to consider the RAprovisions was material. His argument proceeds by reference to further key RAprovisions.[51] The Eligibility Rules in the Rural Area Land Use Performance Standards(RA.2.1) state:2. Any activity not requiring consent as a discretionary or non-complying activity is a permitted activity.[52] Then in the discretionary activities (RA.2.3) there is the following activity:(d) Outdoor areas of storage or stockpiles that:(i) Exceed the building height, setbacks and height in relation toboundary rules for the Environment they are located in(except within Quarrying Resource Areas).[53] I make it clear at this point that Mr Webb did not submit that the activity in thiscase is a permitted activity,11 but rather, he submits, it is only the commercial elementof the proposal that requires consent. The focus in the RA provision is on whether theactivity meets the standards in the RA discretionary criteria. In other words, it is notthe private or commercial nature in itself of the outdoor storage activity that matters;the focus is on the effects that are created if the standards are not met.[54] By contrast, the RPE section does not mention areas of outdoor storage as anactivity at all. Rather, it places controls on commercial or industrial activities. Thereis thus a tension, Mr Webb submits, between the RA and RPE provisions. The RPElimits commercial activities in the RPE that are otherwise permitted in all rural zonesjust because they are commercial – in other words without further consideration ofeffects.[55] If the activity is a commercial or industrial activity, it changes from permittedto discretionary in the RPE. Policy RPE.1.3.2 then requires an assessment of effectsand a separate consideration of linkages between commercial activities and ruralresources and rural communities to determine consistency with the Plan.[56] However, Mr Webb submits that given Policy RA.1.4 requires that theobjectives, policies and provisions of the RA "shall form the basis for resource consentapplications", the starting point, or the "basis" for an assessment, is that the activity ofoutdoor storage is otherwise permitted in the RA. Secondly and even moreimportantly, if the activity is permitted then the effects from the activity must formpart of the rural character of the RA.11 In RPE.1.4.2 the rules of the chapter relating to the RPE "apply to any site or portion of the sitemapped as in the RPE". "Commercial and Industrial Activities" are a discretionary activity.[57] Mr Webb submits that because the RA provisions were not considered at all,neither of those two factors was considered by the Court and the Court had the wrongstarting point. In terms of the assessment of effects on rural character and amenityrequired by Policy RPE.1.3.2, and given the activity (outdoor storage) was otherwisepermitted in the RA, the Court was only required to determine whether the fact theactivity was "commercial" created any additional effects on rural character whichwould change the position. This assessment was not carried out by the Court.Discussion (Rural Area provisions)[58] Rather than determining whether the fact that the activity was "commercial"created any additional effects on rural character, the Court instead, operating under theRPE provisions, sought to determine whether the activity was a rural activity. Itconducted a detailed analysis but ultimately found the provisions of RPE.1.3.2confusing and difficult to reconcile. It had difficulty aligning the activity againstPolicy RPE.1.3.2 and could not completely resolve the conflict which it found withinthat policy.12[59] Having carried out its analysis the Court concluded that:[62] It is clear to us that the primary intent of the PC85 provisions overallin relation to the RPE is to avoid subdivision and fragmentation of rural land.Beyond that, it seeks to protect productive land, rural character and amenity,and encourage consolidation within the city (urban areas). However, itacknowledges that commercial and industrial activity should be provided inlimited circumstances and on the recommendation of the HearingCommissioners this is enabled as a discretionary as opposed to a non-complying activity. From the Court's point of view, the difficulty isascertaining from the meaning of the words set out what those circumstancesarea..[69] In any event our primary conclusion is that one must look at theseprovisions holistically.[70] We conclude that the Plan sets its face firmly against fragmentation ofland and subdivision, and the use of land for residential purposes. As tocommercial and industrial use, we conclude that a broader consideration of allthe criteria is required to reach a balanced view on the overall production ofrural productive land, rural character and amenity, and the encouragement ofconsolidation.12 At [61].[60] In other words, it was the effects on rural character that were for determination.That in turn would enable a decision about consistency with the Plan. That then bringsthe analysis back to the RA provisions. I accept Mr Webb's submission that a failureon the part of the Court to consider the RA provisions was material because, if it haddone so, it would have provided a different starting point. I also accept Mr Webb'ssubmission as to that starting point, namely the Court was required to focus on whetheranything about the commercial nature of the proposal (as an outdoor area for storage)meant that it was not appropriate in a rural zone. In other words, what was it aboutthe commercial nature of the activity that would create different effects?[61] If that had been recognised by the Court, it would have been open to the Courtto consider the permitted baseline and so disregard any adverse effect of an outdoorstorage activity on the environment (which does not arise from its commercial nature).[62] Section 104(1) and (2) of the RMA relevantly provide:104 Consideration of applications(1) When considering an application for a resource consent and anysubmissions received, the consent authority must, subject to Part 2,have regard to–(a) any actual and potential effects on the environment ofallowing the activity; and(ab) any measure proposed or agreed to by the applicant for thepurpose of ensuring positive effects on the environment tooffset or compensate for any adverse effects on theenvironment that will or may result from allowing theactivity; and(2) may disregard an adverse effect of the activity on the environmentif the plan permits an activity with that effect.[63] In Auckland Regional Council v Living Earth Ltd, the Court of Appeal said:13[47] Section 104(2) involves a partial codification of the permitted baselinetest that emerged from the decisions of this Court in Bayley v Manukau CityCouncil [1999] 1 NZLR 568, Smith Chilcott Ltd v Auckland City Council[2001] 3 NZLR 473 and Arrigato Investments Ltd v Auckland RegionalCouncil [2002] 1 NZLR 324. Under those judgments, consent authorities13 Auckland Regional Council v Living Earth Ltd [2008] NZCA 349.were required to apply the permitted baseline test, whereas under s 104(2), itsapplication is expressed to be discretionary.[64] In this case the Court had a statutory obligation to consider the RA provisions.14There is a clear direction in both Guidance Notes that the objectives, policies andprovisions for the RA must be considered in resource consent applications in the RPE.As can be seen from the Living Earth decision referred to above, the Court did nothave an obligation to apply the permitted baseline test but, at least, it needed toconsider it.[65] In fairness to the Environment Court it should be noted that none of the partiesreferred the Court to the RA provisions. The focus in counsel's submissions and inthe expert evidence (which had mainly addressed the provisions in the "old" plan) wason the RPE provisions. Nevertheless, the RPE provisions, which were annexed to theInterim Decision, contain Guidance Note 1.4 referred to in [48] above, which statesthat the objectives, policies and provisions for the RA in the District Plan shall formthe basis for resource consent applications in the RPE.[66] I therefore conclude that the Court erred in failing to consider the RAprovisions in the Plan and that, for the reasons set out in [60] to [64] above, the failureto do so was material.Amended landscape plan[67] The need to mitigate any adverse effects of the activity was clearly animportant issue for the Court. The Interim Decision makes it clear that the effects onrural character were a critical issue,15 and HHH was directed to file "landscaping plansincorporating this decision".16[68] Prior to filing the ALP, which had been drafted with the intention of respondingto the Court's comments in the Interim Decision, Mr Webb forwarded the ALP tocounsel for the respondent and to Ms Baguley. Mr Webb accepts that he receivedcomments from Ms Woodhouse, the landscape expert engaged by Ms Waldron, but14 Resource Management Act, s 76(2).15 See for example at [65].16 At [106](a).was later unable to locate those comments. There was then a series ofmiscommunications between Mr Webb and Ms Baguley. The upshot was that the ALPwas filed without the addition of the comments from Ms Woodhouse. However, in thememorandum filed on 10 July 2019 it was recorded on behalf of HHH in relation tolandscaping:14. As above, the changes to Mr Farrow's [witness for HHH] planincorporating the house on Lot 1 proposed by Ms Woodhouse areacceptable to the appellant.15. The appellant maintains they are not necessary, nor do they derogatefrom the outcomes of the planting plan. Therefore, it is moreconvenient at this stage for the appellant to simply agree to them.16. Those changes are now incorporated into the vegetation managementplan. An updated copy is annexed marked "B".18. If the Court directs that Ms Woodhouse's suggestion to the plantingplan also be included, then a new planting plan would be prepared aswell. Unfortunately, that has not been possible to do by now.[69] The ALP and associated submissions was new material as requested by theCourt. I accept Mr Webb's submission that the evidence was therefore relevant.However, the Court did not assess the evidence when coming to its conclusion in theFinal Decision that the effects of the activity for which consent was sought could notbe appropriately mitigated.[70] There are no reasons given by the Court on whether the ALP mitigated whatthe Court considered (in the Interim Decision) were the adverse effects on ruralcharacter from having a house on Lot 1. The ALP was not mentioned in the FinalDecision. Further, the location of the house was in a different place on Lot 1 from thelocation discussed in the hearing.[71] The Court based its Final Decision on the existence of the house on Lot 1.However, as a dwelling house is a permitted use on Lot 1 then its effects are part ofthe rural character. This is another reason why it was important for the Court toconsider the ALP.[72] I consider the Court was required to review the ALP (along with the conditionsand other material provided after the Interim Decision). It did not do so. It wouldhave been open to the Court to either accept or reject the ALP. But the failure toconsider it amounted to a failure to take into account relevant considerations.[73] I accept that the failure to consider the ALP is a material error. The ALP wasdirectly relevant to a core issue: effects on rural character.Second alleged error of law – taking into account irrelevant mattersFactual mistakes[74] The notice of appeal alleges two factual errors. In his submissions Mr Webbsubmits that the Court made three factual mistakes in the Final Decision. First, theCourt proceeded on the basis that Lot 1 was to be utilised as part of the storage areafor buildings on Lot 2.[75] In the Interim Decision, the Court stated that the application had expanded intoLot 1, and further said that the application could not be expanded in that way.17 TheCourt continued in the following paragraph:[31] We are satisfied that the application related only to storage ofbuildings on the hard stand area marked on A together with the use of the twoexisting buildings marked A and B, and upgrading of the hard-standing areato provide for manoeuvrability and parking. What is quite clear is that it madeno connection to Lot 1 DP 483749 and to do so now is beyond scope.[76] In the Final Decision, the Court referred to the presence of the house on Lot 1and said that this " clearly established the Court's concerns as to incrementalism inrespect of the use of both properties jointly."18 The Court continued by referring to alandscape plan which was produced as an exhibit at the hearing (and which wasannexed to the Interim Decision as "C") and says:19 and that part of Lot 1 was to be utilised as part of the storage area forbuildings on Lot 2.17 At [30].18 At [11].19 At [11].[77] Mr Webb submits first, that Exhibit C to the Interim Decision does not in factshow a storage area for buildings on Lot 1; and secondly, that it was made clear to theCourt at the hearing that consent was only sought for activities on Lot 2.[78] As Mr Webb's first submission, I accept that, on its face, Exhibit C does notshow a storage area for buildings on Lot 1.[79] In terms of Mr Webb's second submission, I note the following:(a) The application for resource consent was for activities on Lot 2;(b) In Mr Webb's memorandum to the Court of 18 January 2019, inresponse to the Court's minute referred to in [14] above it is stated:12. In other words, consent is only sought for activities which arenot permitted on Lot 2 DP 356529. Only permitted activitiesare anticipated to occur on Lot 1 DP 483749.(c) In the hearing the Judge asked the planning witness for HHH aboutnon-compliance and "creep". The Court observed:Well, one way in which the Court controls it [i.e. non-compliance and creep] is by requiring the consent notice to beput on the titles saying that Lot 1 wouldn't be utilised.(d) In the proposed conditions filed by HHH after the Interim Decision andas agreed to by all parties, there was condition 7 (which is referred toin [23] above but which is set out again for completeness):7. The registered proprietor of Lot 1 DP 483749 (Lot 1) shallregister against the title of Lot 1 a covenant in favour of theWhangarei District Council pursuant to s 108(2)(d) of theRMA prohibiting the use of Lot 1 in conjunction for anyactivities authorised by this consent.[80] I therefore agree with Mr Webb that the Court made a factual error in statingthat Lot 1 was to be utilised as part of the storage area for buildings on Lot 2. Thaterror was material given the Court's concern about the retention of open space.[81] The second alleged factual error relates to whether there was any linkagebetween the house on Lot 1 with the activity on Lot 2 for which consent was sought.[82] Ms Baguley submits that the dwelling on Lot 1 was part of the activity forwhich consent was sought and that the dwelling and outdoor storage activity on Lot 2were "intrinsically linked".[83] Mr Webb takes issue with that, submitting first that the dwelling on Lot 1 wasnever part of the resource consent application. He says there was always a proposalto have a house on Lot 1 and that there was a suggestion at one stage that a managercould live there because of security concerns raised by the s 274 party. This concernultimately dissolved and was not addressed in the final proposed conditions.[84] He submits that even if there was a link to the activity on Lot 2 (in the sensethat the house was for a manager), which by the time of the Final Decision there wasnot, it still would not have required consent. Its status as a permitted activity arosefrom the fact that it was a single dwelling on Lot 1. Mr Webb submits that thepermitted activity status had nothing to do with whether it was a manager's house ornot.[85] It is necessary to comment on HHH moving a house onto Lot 1 after the hearingbut before the Interim Decision. The Court said in the Interim Decision:[27] The placement of a manager's residence, as clear from the evidencepresented to us, has no particular purpose in mitigating visual effects for theWaldrons. In fact it places a building adjacent to the Waldron boundary in ahighly visible position in low lying land for no discernible reason. We notethat the landscape architect for the applicant acknowledged that the visualimpacts of the proposed residence on the Waldron's outlook were moresignificant than those from the activity yard.[86] As can be seen from the above paragraph, the presence of a house on Lot 1 wasan issue at the hearing. The issue of whether the application site was confined to Lot2 or included Lot 1 was also an issue at the hearing.[87] In my view, even though HHH adopted the position that the house was not partof the application and was thus a permitted use, and even though, when the house wasput on the site, it was located in a different position from that shown in the plans beforethe Court, HHH was unwise to move the house onto Lot 1, given the various issuesthat were live before the Court.[88] After the Interim Decision, HHH then continued to work on the house so thatit was permanently installed by the time of the Final Decision. Even though HHHclearly took the view that the house was a permitted use and also submits in this Courtthat the Court did not have the legal ability to impose a condition prohibiting a houseon Lot 1, it was again unwise for HHH to continue to work on installing the house.On the other hand, through counsel, HHH liaised with both the Council andMs Waldron regarding conditions and landscaping. The Council also granted abuilding consent.[89] I turn then to the Final Decision. Essentially the Court's reason for decliningconsent was because a house had been located on Lot 1. The Court said:[12] In these circumstances the interim decision requirements cannot befulfilled given that the applicant has acted precipitously while the decisionwas pending and later notwithstanding the clear terms of the interim decision.[90] The Court continued:[14] We acknowledge and accept that the building can be placed on thisLot 1. However, the activity requiring resource consent cannot be grantedconsent if that activity prevents the mitigation required. Our reasons includenot only those of legal principle but the inability to provide conditions thatcould satisfy us that the effects of the activity itself could be sufficientlycontained within the lots and that Lot 1 DP 483749 could be free of buildingsand utilised as rural pastural land to effectively manage the effects ofconducting the activity on the rest of the amalgamated site.[91] Mr Webb submits that the meaning of the above paragraph is unclear. Hesubmits it seems the Court is saying that "that activity" which prevents the mitigationis the house on Lot 1, because that has been the Court's concern all along. Mr Webbcontinues, if that is right, then the Court is also saying that the house is part of theactivity requiring consent. Mr Webb submits that is wrong. He continues that theconsequence of this is that the Court seems to be saying that consent cannot be grantedfor the activity on Lot 2, because that activity also requires a house on Lot 1, but theCourt will not allow that. Mr Webb concludes that if this is the case, then the Courtrefused consent by taking into account an irrelevant matter which was material to itsdecision.[92] I agree with Mr Webb that what the Court is saying is not entirely clear. Astrictly grammatical reading of the second sentence would mean "that activity"preventing mitigation is the activity requiring resource consent. It must therefore bethe case that two distinct activities are referred to in the second sentence. There is "theactivity requiring resource consent" and "that activity". The latter appears to refer tothe placing of a house on Lot 1. Interpreted in this way, the Court seems to be sayingthat while a house can be built on Lot 1, because the effects of the activity requiringconsent on Lot 2 will not be adequately mitigated, the activity requiring resourceconsent cannot be granted consent. On that interpretation, then, the Court is sayingthat the house on Lot 1 precludes effective mitigation even though it is a permittedactivity and outside of the scope of the application for resource consent. It also impliesthat the Court would have been able to impose a condition that there be no house onLot 1 because it was part of an amalgamated site.[93] Whether the Court could in fact impose such a condition is the subject of aseparate alleged error of law which I consider in the next part of this judgment. Basedon my analysis of the paragraph in the Court's judgment under discussion, I do notaccept Mr Webb's submission that the Court was saying the house on Lot 1 was in factpart of the activity for which consent was sought. There is no factual error as Mr Webbsuggests.[94] For completeness, I refer to the third alleged factual error: that the Court erredwhen it said that " Mr Webb does not give a specific time when the building wasplaced on the site".20 That statement is incorrect. The date was referred to in MrWebb's memorandum of 25 June 2019 annexing the proposed consent conditions.However, I do not consider that error was material.20 At [7].Legal mistake/error of law[95] Mr Webb submits that the Court made an error of law in determining that ithad jurisdiction to impose conditions on Lot 1 in relation to the activity, because Lot1 was on the same certificate of title as Lot 2.21 In doing so, the Court took into accountan irrelevant matter.[96] Mr Webb submits that because Lot 1 is outside the scope of the applicationthen the Court had no jurisdiction to impose a condition over the use of Lot 1, foractivities on Lot 2. The only way such a condition could be imposed is if the ownerof Lot 1 had given a clear and unequivocal undertaking to be bound by the condition.22And that did not occur.[97] Mr Mathias takes issue with this part of HHH's appeal. He refers to thedefinition of "site" in the Plan and submits that, having regard to the definition, Lot 1and Lot 2 are part of the one site. He submits the Court was therefore able to imposea condition on Lot 1 that there should be no structures on Lot 1 in order to retain ruralcharacter and amenity (as it indicated it intended to do).23[98] Mr Mathias submits the only argument available to HHH is whether thecondition that there be no structures on Lot 1 is reasonable in the Newbury24 sense.Mr Mathias is supported in his submissions in relation to the definition of "site" in thePlan by Ms Baguley. Mr Webb does not accept their interpretation.[99] Ms Baguley also submits that as mitigation planting was proposed on Lot 1,this lot must therefore have been part of the application site.[100] Mr Webb responds by submitting that the mitigation planting in the applicationwas only located in Lot 2. The mitigation planting on Lot 1 was introduced at a laterdate to address Ms Waldron's concerns. Further, as it was offered by HHH and relatedto land over which it had control,25 that planting could be secured by conditions of21 Interim Decision at [31].22 Section 108AA(1)/an Augier condition.23 At [78].24 Newbury District Council v Secretary of State for the Environment [1981] AC 578 (HL).25 Although I note HHH was not in fact the registered proprietor.consent on a s 108AA RMA/Augier basis. Mr Webb continues that the limited basison which the landscape conditions in relation to Lot 1 might be imposed does not makethat lot part of the application site for any other purpose. It does not permit the Courtto treat Lot 1 as part of the site for all other purposes.Discussion[101] In the Interim Decision the Court expressed its view first that the application" cannot be expanded to include HHH-owned Lot 1 DP483749".26 The Court wenton to say:27[31] What is quite clear is that it made no connection to Lot 1 DP483749 and to do so now is beyond scope. This also means that the area shownon the maps, such as C, as "lay by" cannot be included because it is not withinthe application site. We later conclude the Court can impose conditionsappropriate to Lot 1 DP 483749 if it is in the same Certificate of Title as theapplication site.[102] As can be seen from the above paragraph, notwithstanding the Court's viewthat the application could not be expanded into Lot 1 (which Mr Webb says was neversought), the Court nevertheless considered it could impose conditions appropriate toLot 1 as it is in the same certificate of title.[103] Without providing any further reasoning, the Court later said:[78] Further there should be no structures on Lot 1 in order that it retainrural character and amenity. In particular there should be no sheds or anymanager's house. In this way the intensity of the use on Lot 2 is balanced bythe retention of the open potential nature of Lot 1 (and an area around Lot 2).This physically and visually contains the activity.[83] However, we conclude that Lot 1 DP 483749 would need to be subjectto a condition (as it is in the same title and ownership) that it be maintainedfor grazing only for the term of the consent, to maintain the rural opennesssought in Policy 1.3.1A. This buffer is required to ameliorate the visual impacttowards the Waldron house and shed from SH1. Although this would restrictsome potential activities.26 At [30].27 At [31].[88] We conclude that the visual effect in the period during which plantingis being established can be appropriately mitigated by retaining an open space"belt" around the activity. This would open space throughout Lot 1 and onthe eastern side of Lot 2 beyond the storage area. With a condition preventingstructures on Lot 1 483749 this open space belt should encapsulate the activity.[104] Can it be said that Lot 1 and Lot 2 are part of the one "site", thus giving theCourt the jurisdiction to impose a condition that there be no structure, such as a house,on Lot 1 (in the absence of the consent of the owner of that lot)? The definition of"site" in the Plan is as follows:Site means an area of land or volume of space, shown on a plan with definedboundaries, and includes:(1)(a) land which is:(i) comprised in a single allotment or other legallydefined parcel of land and held in a single certificateof title, or(ii) comprised in a single allotment or legally definedparcel of land for which separate title cannot be issuedwithout further consent of the Council: or(b) an area of land which is comprised of two or more adjoiningcertificates of title where such titles are(i) subject to a condition imposed under S.80 of theBuilding Act 2004; or(ii) held together in such a way that they cannot be dealtwith separately without the prior consent of theCouncil.[105] The general definition of a "site" is set out in the first sentence. This definition"includes" the scenarios which follow. The use of the word "includes" means the listis not exhaustive but are examples or illustrations of possible circumstances whichsatisfy the general definition. I work through each of the parts of the definition below.[106] The general definition has three parts:(a) An area of land or volume of space;(b) Shown on a plan;(c) With defined boundaries.[107] Lot 1 and Lot 2 are, together, an area of land or volume of space. That part ofthe definition is satisfied.[108] The question of whether they are shown on a plan is a more difficult one. Thegeneral definition is vague. It refers only to a plan. Other parts of the definition followspecify statutory instruments such as certificates of title or unit plans. The generaldefinition of site does not refer to a survey plan or a registered survey plan. In contrast,an "allotment", which is relevant to determining whether Lot 1 and Lot 2 are sites, isdefined in part as "a continuous area whose boundaries are shown separately on asurvey plan." The definition refers elsewhere to land (or building) shown on a surveyplan. These are references to instruments under the Land Transfer Act.[109] The definition of "site" is much less specific. It just refers to a plan. However,I am of the view, in light of the rest of the definition, and given the definition of"allotment", that the reference to "plan" in the definition of "site" should be construednarrowly to mean a survey plan rather than simply any diagram or image. This means,therefore, that the aerial photograph included in the application (and other similardiagrams in the evidence) does not satisfy this part of the definition.[110] On this construction of the word "plan" in the definition of "site", the two plansattached to the title for the property do satisfy the definition. These plans areDP 356529 and DP 483749. As noted above, Lot 1 is shown on DP 483749 and Lot 2is shown on DP 356529. Both plans are annexed to record of title 683963 becauseeach of the parcels is shown separately in the two plans.[111] This is where the last part of the definition is relevant. Lot 1 and Lot 2 are anarea of land and they are shown in both plans. The last part of the definition is thatthe area is shown on a plan with defined boundaries. In DP 356529 the boundaries ofLot 2 are clearly shown. However, the boundaries of Lot 1 are those prior to thesubdivision of the allotment so the south-eastern boundary of Lot 1 on DP 483749 isnot shown. DP 483749 does show the boundaries of Lot 1 but does not show theboundaries of Lot 2. This part of the definition is therefore not satisfied so Lot 1 andLot 2 are not, for the purposes of the Plan, a "site."[112] While this disposes of the issue , I am also of the view that none of the specificexamples is satisfied either.[113] I work through each part as follows:1(a)(i)[114] I do not consider this part of the definition applies. Although Lots 1 and 2 areheld in a single certificate of title, they are not comprised in a single allotment."Allotment" is defined in the Plan, in part, as "[a]ny parcel of land under the LandTransfer Act 1952 that is a continuous area and whose boundaries are shown separatelyon a survey plan." There are two lots within the Identifier 683963, one being Lot 1and the other being Lot 2.1(a)(ii)[115] As I understand their submissions, it is this part of the definition thatMr Mathias and Ms Baguley particularly rely on. It has two parts. The first part "landcomprised in a single allotment" does not apply. Lot 1 and Lot 2 are not landcomprised in a single allotment. They are separate lots, as an "allotment" is definedin the Plan.[116] Turning to the second part of the definition, the question is whether Lot 1 andLot 2 together are land " comprised in a single legally defined parcel of land forwhich separate title cannot be issued without further consent of the Council". If thedefinition is read as a "single legally defined parcel of land", which I consider is thecorrect plain reading, then the condition is not satisfied because Lot 1 and Lot 2 arenot a single legally defined parcel of land. The land in one title is legally defined astwo parcels of land with distinct boundaries.[117] However, even if that part of the definition is construed as "a legally definedparcel of land" (as opposed to a single legally defined parcel of land), the condition isnot satisfied either. An entry on the certificate of title for Lot 1 and Lot 2 is relevanthere. That entry reads:Subject to Section 241(2) and Sections 242(1) and (2) Resource ManagementAct 1991 (affects DP483749).[118] The effect of that entry is that the separate parcels of land included in the recordof title, i.e. Lot 1 and Lot 2, are not able to be disposed of individually or held underseparate records of title except with the approval of the territorial authority.28Ms Baguley submits that because separate titles cannot be issued for each of Lot 1 and2 without the consent of the Council, then this part of the definition is satisfied. I donot accept that submission. The word in the definition is title not titles. Lots 1 and 2taken together are not a legally defined parcel of land for which separate title cannotbe issued without the consent of the Council. They are already together in a certificateof title.[119] In other words, Lot 2 is a single allotment. As the record of title 683963 issubject to s 241(2) of the RMA, it cannot be held in a separate record of title withoutthe approval of the Council. Lot 2, on its own, meets the definition of site. In thesame way so does Lot 1. They are each separately a "site" but together they are notone site.1(b)[120] This part of the definition does not apply. Lot 1 and Lot 2 are not comprisedof two or more adjoining certificates of title. They are in one record of title.[121] Therefore, in terms of the definition in the Plan, Lot 1 is a site and Lot 2 is alsoa (separate) site.[122] To conclude: Lot 1 and Lot 2 are not part of the one site. The fact that theyare on the same certificate of title does not provide a legal basis for the Court to impose28 There is a second entry on the certificate of title: Consent notice pursuant to s 221 ResourceManagement Act 1991 – 20.4.2016 at 4.28 pm (affects Lot 1 DP 483749). The Court was providedwith a copy of that consent notice. It requires the registered proprietor, at the time of lodgementof any application for a building consent, to provide a report as identified within the condition asthe property is located within a flood susceptible area. It is not relevant for present purposes.a condition on Lot 1 (where the condition is not offered by the applicant) in relationto an activity on Lot 2.[123] Even if I am wrong in my conclusion above, and the Court did have jurisdictionto impose a condition on Lot 1, the condition must nevertheless be reasonable underthe Newbury test. The requirement under that test is that the condition must not be sounreasonable that a reasonable planning authority, duly appreciating its statutoryduties, could not have approved it. In this case the house was a permitted activity onLot 1. It was not part of the activity on Lot 2.[124] Can a condition be imposed on a permitted activity? North Canterbury ClayTarget Assoc Inc v Waimakariri District Council, while not directly on point, providessome assistance. In that case, the Court of Appeal addresses points of law in relationto the certificate of compliance regime. The Act provides for a consent authority toissue a certificate of compliance for an activity that is a permitted activity. As theactivity is permitted, a resource consent is not required. The Court of Appeal statesthe Act treats the certificate as a resource consent subject to any conditions specifiedin the relevant plan.29[125] Certificates of compliance are therefore closely connected with the category ofactivities which are permitted. Most importantly, the Court of Appeal notes acertificate of compliance "cannot be qualified" by attaching conditions (other thanthose provided for in the plan). Either the activity is permitted, or it is not.30 Thus, aterritorial authority has no discretion to impose conditions or other controls on apermitted activity. Neither does a Court.31 The applicant offered a landscapingcondition on Lot 1. But offering that particular condition does not make the whole ofLot 1 part of the application site for all purposes.[126] Therefore, to impose a condition prohibiting an activity which is permitted isunreasonable in the Newbury sense. It was thus not a condition which the Court could29 North Canterbury Clay Target Asso Inc v Waimakariri District Council [2016] NZCA 305 at [1].30 At [29].31 Marlborough District Council v Zindia Ltd [2019] NZHC 2765, at [66](d).lawfully impose (assuming that it did have jurisdiction over Lot 1 for the purpose ofimposing conditions).[127] Either way, the error was material. The presence of the house on Lot 1 was thereason the Court refused consent.Third alleged error of law[128] The third alleged error is that the Court came to a conclusion which, on theevidence, it could not reasonably have come to. It is said to be based on a lack ofevidence.[129] Mr Webb did not make any separate submissions on the third error of law. Hisposition was simply that the foundation for the error was contained in his submissionsfor the first two errors of law.[130] Because of the basis on which the Court made the Final Decision, there was nodiscussion of: the ALS; the draft conditions agreed between HHH and the Council;Ms Baguley's memorandum of 4 July 2019 in relation to the proposed draftconditions; and, Mr Webb's memorandum of 10 July 2019 responding to the proposalsin Ms Baguley's memorandum and in documents annexed to that memorandum.[131] Effectively HHH is asking this Court to review all of the evidence and make adecision on the evidence. In other words this Court is asked to make a decision on thefactual merits of the case under the guise of a question of law.[132] That is not a proper use of an appeal on a question of law. I therefore do notintend to address the third alleged error of law.Fourth alleged error of law[133] The fourth alleged error is that the Final Decision was so unreasonable that noreasonable Court would have made it. I have determined that the Court did not havejurisdiction to impose a condition that there be no house on Lot 1. The essential reasonfor refusing consent and dismissing the appeal was that HHH had moved a house ontoLot 1. A condition that HHH could not do so would not have been lawful. It followsthat the decision was unreasonable.Fifth alleged error of law[134] HHH says there was a breach of natural justice. No further submissions aremade. Instead HHH relies on its submissions for the first and second alleged errors oflaw.[135] Section 27(1) of the New Zealand Bill of Rights Act 1990 provides:27 Right to justice(1) Every person has the right to the observance of the principles ofnatural justice by any tribunal or other public authority which has thepower to make a determination in respect of that person's rights,obligations, or interests protected or recognised by law.[136] In Udompun v Minister of Immigration,32 Heath J concluded:33[143] Both the terminology employed in s 27(1) of the Bill of Rights andthe general purpose of the provision suggest that the object is to ensure thosewho exercise public authorities (whether acting judicially or administratively)exercise their functions in a manner which can be assessed, objectively, as"fair" to those who may be affected by their decisions.[137] On appeal, the Court of Appeal disagreed with a number of the conclusionsreached by Heath J.34 However, the Court of Appeal did not comment specifically onthe above passage.[138] In a decision the following year in Henderson v Director, Land TransportSafety Authority of Palmerston North,35 Gendall J said that natural justice simplymeans "fair play in action" so that natural justice in any particular case is to bedetermined by the overall requirements of fairness. The Court of Appeal dismissed an32 Udompun v Minister of Immigration (2003) 7 HRNZ 238 (HC).33 At [143].34 Attorney-General v Udompun [2005] 3 NZLR 204 (CA).35 Henderson v Director, Land Transport Safety Authority of Palmerston North HC WellingtonCIV-2004-485-736, 17 June 2004 at [36].appeal from the judgment of the High Court and did not express a contrary view inrelation to the passage I have quoted.36[139] The manner in which the Court approached its Final Decision meant that it didnot consider the evidence which it had requested or counsel's submissions in theirmemoranda on that evidence. In my view the overall requirement of fairness meantthat the Court should have considered the evidence, including the ALP, before makingits final decision. As a result, the process was unfair.[140] There was therefore a breach of natural justice in failing to consider relevantevidence. For reasons already discussed in relation to the ALP, that breach wasmaterial.Questions of law[141] I answer the questions of law in the notice of appeal as follows:(a) Did the Court err in law in failing to take into account relevantconsiderations?Answer: Yes.(b) Did the Court err in law by taking into account irrelevantconsiderations?Answer: Yes (one irrelevant consideration).(c) Did the Court err in law by reaching a conclusion which, on theevidence, it could not reasonably have come to?Answer: For the reasons given in [130] to [132], the Court does notanswer this question.36 Henderson v Director of Land Transport New Zealand [2006] NZAR 629 (CA).(d) Did the Court err in law by reaching conclusions that no reasonableCourt could have reached?Answer: Yes.(e) As the result of the foregoing, was there a breach of natural justice?Answer: Yes.Result[142] The appeal is allowed. The Final Decision is set aside. The matter is remittedto the Environment Court for further consideration.Costs[143] I reserve the question of costs. If the parties are able to agree costs, counselshould file a joint memorandum within 20 working days of the date of this judgment.If costs cannot be agreed, HHH should file and serve its memorandum within10 working days of the date for the joint memorandum. The Council and Ms Waldronare to file their replies within a further 10 working days. Costs memoranda should notexceed four pages (excluding any attachments).[144] I will then determine costs on the papers.___________________________________Gordon JANNEXURE