HAREWOOD GRAVELS COMPANY LIMITED v CHRISTCHURCH CITY COUNCIL & ANOR [2018] NZHC 3118

HAREWOOD GRAVELS COMPANY LIMITED v CHRISTCHURCH CITY COUNCIL & ANOR [2018]NZHC 3118 [30 November 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-409-891[2018] NZHC 3118BETWEEN HAREWOOD GRAVELS COMPANYLIMITEDAppellantAND CHRISTCHURCH CITY COUNCILFirst RespondentAND YALDHURST QUARRIES JOINTACTION GROUPSecond RespondentHearing: 26, 27 and 28 March 2018Appearances: E J Chapman, J M Appleyard and J A Robinson for AppellantB K Pizzey for First RespondentM R G Christensen for Second RespondentJudgment: 30 November 2018JUDGMENT OF NICHOLAS DAVIDSON JTABLE OF CONTENTSA. INTRODUCTION [1]The setting for this appeal [3]HGL's appeal to this Court [12]JAG [17]Christchurch City Council [24]B. ENVIRONMENT COURT DECISION [26]Status of the activity [31]Key definitions [33]Preliminary legal issues [37]Christchurch District Plan [39]Strategic Directions of the District Plan [40]Noise [56]Traffic [57]Threshold of effects [59]The receiving environment [63]Landform and soil [64]Vegetation [65]Views [66]Existing land uses [67]Local road network and environment [68]Noise environment [70]Dust environment [73]Benefits of proposed quarry [75]Rural amenity and character [76]The District Plan [82]Rehabilitation [90]Cumulative effect of quarrying [91]Noise [93]Methodology [98]The additive noise from HGL Quarry traffic [104]Change to existing noise environment – effect on rural amenity [106]Dust [119]Traffic [130]Vibration [136]Evaluation of the proposal [137]D. OBSERVATIONS ABOUT THE ENVIRONMENT COURTDECISION, AND THE LAW [148]Errors of law [150]E. SEVEN QUESTIONS OF LAW [156]First Question of Law: Did the Court err in its interpretation of themeaning of "rural character" and therefore further err in itsinterpretation of the evidence before it? [159]Submissions for HGL [159]Submissions for the Christchurch City Council [181]Submissions for JAG [185]Discussion [187]Second Question of Law: Did the Court incorrectly apply the DistrictPlan Rules as they relate to noise, to apply to noise from traffic on apublic road? [190]Submissions for HGL [190]Submissions for the Council [195]Submissions for JAG [200]Discussion [202]Third Question of Law: Did the Court impose a requirement on evidenceof experts which went beyond the role of an expert, assessing the effectsof a proposal? [203]Submissions for HGL [203]Submissions for the Council [212]Submissions for JAG [225]Discussion [226]Fourth Question of Law: Did the Court incorrectly interpret therehabilitation Rules of the District Plan? [232]Submissions HGL [232]Submissions for JAG [238]Discussion [239]Fifth Question of Law: Did the Court err in its finding that it hadinsufficient evidence to determine whether the application was contraryto the Objectives and Policies of the District Plan and thus whether itcould pass the s 104D gateway test? [242]Submissions for HGL [242]Submissions for JAG [247]Discussion [253]Sixth Question of Law: Did the Court come to a conclusion withoutevidence, or a conclusion which on the evidence it could not reasonablyhave reached, when determining that a 3dB increase arising from trafficnoise from the Transport Zone was a "significant adverse effect"? [262]Submissions for HGL [262]Submissions for the Council [279]Submissions for JAG [283]Discussion [284]The Second and Sixth Questions of Law - Summary [289]First noise error (sixth error of law) [290]Second noise error (second error of law) [291]Third noise error (second error of law) [294]Fourth noise error (second error of law) [296]Fifth noise error (second error of law) [298]Sixth noise error (sixth error of law) [300]Seventh Question of Law: Did the Court err in its elevation of theimportance of "avoidance" over other approaches contemplated by theDistrict Plan, which resulted in the incorrect interpretation of theObjectives and Policies? [301]Submissions for HGL [301]Submissions for JAG [306]Discussion [311]F. CONCLUSION [315]Relief [321]The future [323]G. DISPOSITION [327](Note: "emphasis added" means for this Judgment).A. INTRODUCTION[1] Harewood Gravels Company Limited ("HGL") appeals against the Decisionof the Environment Court ("the Court") dated 10 October 2017 ("the Decision").1The Court allowed an appeal by Yaldhurst Quarries Joint Action Group ("JAG") anddeclined land use consent granted by the Christchurch City Council ("the Council")to establish a quarry near Christchurch Airport (RMA 92030745).[2] The appeal is brought under s 299 of the Resource Management Act 1992("RMA" or "the Act"). HGL alleges seven material errors of law made by the Courtand seeks an order that the Court be directed to reconsider its Decision without sucherror/s.The setting for this appeal[3] HGL applied to the Canterbury Regional Council ("the Regional Council")and the Council for resource consents to establish and operate a quarry at21 Conservators Road, Christchurch, west of Christchurch International Airport, on ano-exit rural road, with access to Pound Road via Savills Road. Some longstandingquarry operations are located in the area. The proposed quarry site is depicted in theSchedule to this judgment.[4] HGL is a joint venture of Road Metals Limited and Isaac Construction Limitedand already operates a quarry site at McLeans Island Road which has a limited life.The proposed site is for medium and long-term quarry operations, with a land useconsent life of 30 years. It was a contentious submission for HGL that it operatesa quarry site and " this is a replacement quarry". That made issues aboutcumulative effects invalid according to Mr Chapman, co-counsel with Ms Appleyardfor HGL. He went so far as to say "It's simply one quarry closing down its operationat one point, re-opening around the corner". Pressed further, he said the Court talkedabout seven quarries in the zone, but the number would remain six and there wouldcontinue to be six when the existing HGL quarry is worked out. He acknowledged,1 Yaldhurst Quarries Joint Action Group v Christchurch City Council [2017] NZEnvC 165.however, the effects would be different: "New people, new access ways. There aredifferent effects".[5] Mr Christensen, counsel for JAG, says there are seven existing and consentedquarries on the map (see the Schedule), and this would be the eighth until HGLterminates operations at its existing quarry. The Court said this:[80] 250m or so north of the formed section of Conservators Rd is thesouthern boundary of one of four existing quarries, aligned on anapproximately 3 kilometres east-west axis, and fronting McLeans Island Rd.these are owned by Fulton Hogan Limited, KB Contracting and QuarriesLimited, Harewood Gravels and Isaac Construction. To the west ofConservators Road and adjoining the subject site is a recent quarry developedby SOL Quarries Limited. It has a light vehicle access to Conservators Rdand heavy goods vehicle (HGV) access to guys Rd, located some 700m fromthe nearest existing dwelling.[81] To the north and East of Savills Rd adjacent to number 25, there is arecently consented quarry owned by Frews Quarry Limited. At the time of thehearing it was yet to commence production although an access to Savills Roadis formed and preliminary site works have been completed. On the southernside of Savills Rd opposite (in part) Frews Quarry has the disused GrantBrothers Quarry, now operated as a cleanfill site.[6] There are thus six quarries in use or consented, and one cleanfill site. Thisproposed HGL quarry would be the seventh, but one day, not yet fixed, it will endoperations at its existing quarry.[7] The consents required for quarrying include City Council land use consent andRegional Council consents to discharge contaminants to air and land. Consents weregranted by Independent Commissioners appointed by the Regional Council and theCouncil in a decision dated 13 July 2016 ("the Commissioners' Decision"). Thisproposed quarrying activity is non-complying under the Christchurch District Plan("District Plan") because it exceeds the relevant noise standard at the site's southernboundary, although the contiguous land is not noise sensitive. The site is within theRural Waimakariri Zone where quarrying is a discretionary activity if located250 metres or more from a residential zone.2 As such, the consent authority, here theCouncil, must, subject to Part 2 RMA, have regard to any actual and potential effectson the environment of allowing the activity, relevant provisions of the Canterbury2 Christchurch District Plan, Chapter 17, Rule 17.5.1.4.Regional Policy Statement, the Christchurch District Plan, and any other matter theconsent authority considers relevant and reasonably necessary to determinethe application.[8] The Regional Council consents allow for discharge to air from fugitive dustemissions associated with excavation of the quarry floor and processing on the site.Dust mitigation plans are conditions of consent and include controls on quarryingrelating to wind speed, monitoring obligations and directions, to cease operations ata certain level and to operate under a quarry Dust Management Plan. This is unlikethe quarry operated by HGL at the moment where there are no dust managementconditions, no groundwater testing, and no rehabilitation of the kind required in theconsent granted for this HGL proposal by the Hearing Commissioners.[9] No permitted baseline considerations apply. The JAG appeal to theEnvironment Court was primarily concerned with effects on the rural character ofthe area and the amenity values that derive from that character.[10] The Environment Court's approach was expressed as follows:3[13] The effects of the proposal when considered in isolation may wellappear of no great moment. The primary issue for determination is whetherthe cumulative effects of the proposal achieve the objectives of the DistrictPlan and thereby promote the sustainable management of natural and physicalresources.[11] The Court held that HGL had not met either threshold test for a non-complyingactivity under s 104D RMA, nor would it have granted consent under s 104 RMA.HGL's appeal to this Court[12] HGL says this appeal mainly involves "interpretation errors" which separatelyand cumulatively resulted in the Decision to allow the appeal and to decline/revokethe consent. Counsel say that this is the first case which involves quarry activities inRural Zones to come before the High Court, and involves a significant challenge tothe reasoning and conclusions of the Court, based on well-established principles.3 Yaldhurst Quarries Joint Action Group, above n 1.[13] The boundaries of the Rural Quarry Zone have not changed under the DistrictPlan, but the activity status of a quarry is in some circumstances now discretionaryrather than non-complying. Quarrying comes within the definition of a "ruralproductive activity". The District Plan has adopted Objectives and Policies for theseven Rural Zones, which seek to foster such activities, but to limit their effects withinthe Zone. Mr Chapman, one of three counsel for HGL, puts the questions of lawbroadly as whether the Environment Court's interpretation of the law was correct inlight of the Plan, the expert and neighbour evidence, and whether the ultimate Decisionmade by the Court to decline consent was correct at law.[14] Mr Chapman's submission is that the District Plan has "changed the emphasis"with regard to quarrying outside the Rural Quarry Zone, so that it is just as mucha rural productive activity as sheep and beef farming, and this has put quarrying "onthe same platform" and "effectively lowered the bar" by making it discretionary.Mr Chapman made much of the fact that there is one Strategic Objective relating to theRural Zone (discussed further), directed to productive and diverse activity to enablethe rural environment primarily for rural productive activities and other activitieswhich use the rural resource efficiently and contribute positively to the economy.As Mr Chapman puts it, " it's the money-making zone". That submission isqualified to the extent that the contribution of rural land to maintaining values in thenatural environment must be brought to account. Mr Chapman says that there is noresidential use mentioned in the Objectives, but in any event, the amenity values whichthe District Plan seeks to support, maintain and enhance, are not restricted to residentsin an area, and rural productive activities and those involved in such activities alsoenjoy amenity values.[15] Mr Chapman says that maintenance of local rural amenity values requires morethan one house being affected, and the area is fully developed for that permitted ruralresidential activity given the number of houses on lots around the quarry site. Hesubmits that maintaining rural amenity value is maintaining that which is present inthe locality, and these values are not pristine, not what they were ten years ago, andthey should be assessed having regard to the environment in which the quarry isworking. He says that is why amenity value should be viewed on a "locality" basis,rather than "one house".[16] He says that this appeal also seeks to clarify the point at which the effects of arural productive activity become too great for residents in a locality within the RuralZone to absorb, so as to merit the decline of consent.JAG[17] JAG is made up of 10 persons who own and occupy properties in the locality,and who are concerned with the cumulative adverse effects of quarrying on theirhealth, and the amenity of the area. JAG appealed the Commissioners' Decision togrant land use consent, but not the consents granted by the Regional Council. After asix day hearing in the Environment Court, JAG was successful.[18] JAG, through counsel Mr Christensen, adopts the submissions made for theCouncil by Mr Pizzey as to the principles which apply on appeal from Decisions ofthe Environment Court, on the first, second, third and sixth (of seven) questions oflaw. JAG otherwise largely focuses its submissions on the fourth, fifth and seventhquestions of law. Mr Christensen submits that the appeal as a whole is simply achallenge to the merits of the Environment Court's Decision on the extensive evidencebefore it, and none of the alleged errors are errors of law, if they are errors at all.[19] Mr Christensen said JAG made submissions to the Environment Court that theexpert evidence had essentially missed the point about the cumulative effects onthe residents' rural amenity, especially as to noise and dust nuisance. The residents'position is that the rural amenity and character of the area has already changed becauseof quarrying activities, to their detriment, on their evidence, including a higher levelof noise, dust, and heavy traffic than would be the case with permitted rural activity.They accept that well managed quarries are rural activities and that is why they cameto a settlement in their opposition to the application made by Frews Quarry Limited("Frews") to establish its quarry.[20] JAG's position is that it is not "normal" in terms of the Rural Zoning to haveseveral quarries which effectively surround them, each additional quarry adding to thecumulative effects and the subjective feeling, to them, that the environment haschanged, no longer reflecting the rural amenity they submit is intended by the Plan.[21] The JAG residents say that it is wrong to take each element of dust, noise,traffic et cetera and assess that against a Rule or other provision in the District Plan orto make a general finding that effects can be reasonably minimised. Each individualelement may have no more than a minor adverse effect, but the overall adverse effectmay be more than minor, looking holistically at the proposal and cumulative effectsfrom existing and consented quarries. One quarry may have no more than a minoreffect but cumulatively the effects may compound.[22] In essence, Mr Christensen's submission is that amenity values in the ruralenvironment, here for residential use, will or may be able to hold in the face ofdevelopment to a certain point, but there is a degree or intensity of development atsome point which will or may "break the camel's back". The City Plan does not sayquarries are acceptable in all locations in a rural area, because if that were the case,the Quarry Zone provisions would apply across the Rural Zones.[23] At the heart of JAG's case is the proposition that it is not enough for theproposed quarry to meet relevant permitted activity noise standards, safe trafficmovements, and dust minimisation, so that the Court then has "no choice but to grantconsent". The Court has a discretion to decline consent or impose conditions withinpermitted activity standards, stricter than might be the case if HGL was the only quarryin the area. A singular point made for the JAG residents is that there will be moreoperational crushing and heavy traffic noise to a point where for two at least of theresidents, the effects from noise will be significantly adverse.Christchurch City Council[24] The Council, through counsel Mr Pizzey, submits that the expert evidence ledby the Council to assist the Environment Court broadly supported the Decision to grantconsent, but it put its case in a way that led the Court to characterise the Council'sposition on appeal as neutral. The Council contests alleged errors of law one, two,three and six, and remains neutral and abides the judgment of the Court in relation toalleged errors of law four, five and seven.[25] Mr Pizzey describes HGL's case under Questions One, Two, three, and Six asa straightforward challenge to the merits of the Environment Court's Decision,particularly the application of its own planning expertise, and its conclusions on theevidence. He challenges HGL's characterisation of the Court's Decision and says thatthe appeal is said to be brought to clarify when the effects of a rural productive activitybecome too much for residents to absorb, so as to merit the decline of consent, andthis is simply a challenge to the merits of the Court's findings on the evidence. TheHigh Court, he submits, is being asked to substitute its own judgment based onthe evidence, over that of a specialist Court. Otherwise, he submits that it is by nomeans established that any of the alleged errors materially affected the Court'sDecision, even if error is established in one or more respects.B. ENVIRONMENT COURT DECISION[26] The Decision of the Environment Court was delivered on 10 October 2017after a hearing in two tranches in March and May that year. It is not possible to dojustice to the Decision, or to fully comprehend the questions for this judgment, withouta full understanding of the Court's reasons and the evidence before it. It is easy to'pick at' a Decision when alleging an error of law which involves evidence, but it isusually wrong to do so unless there is an obvious error of principle. The reasons ofthe Court, and the evidence available to it, will only emerge when the contextualsetting before the Court is thoroughly understood.[27] First, it must be said that the Court carefully explained the approach which ittook to reach its Decision, including cumulative effect, and considered "PreliminaryLegal Issues" over some 48 paragraphs.[28] The Court concluded that HGL had not discharged its onus to satisfy the Courtthat it met either of the threshold tests under s 104D of the RMA:[313] Given the scale and intensity of localised effects, particularly thesignificant adverse effect of noise amenity, we are not satisfied that (it) wouldbe a consentable proposal under ss 104 and 104B of the Act.[314] While the proposed use and development of the land supports anactivity that has the potential to contribute positively to the economy and thewellbeing of the District, the evidence is not sufficient to conclude the sameactivity will also support and maintain the function, character and amenityvalues of the rural environment generally (objective 17.2.1.1). Given this, weare not satisfied the proposal promotes sustainable management of natural andphysical resources and uphold the appeal declining the application forresource consent.[315] As an aside, the court acknowledges the impact on residents of thedevelopment of quarrying in this area and their felt sense of frustration, and attimes, helplessness, when responding to the applications in respect of whichthey were notified and their efforts to 'police' the compliance by neighbouringquarries with the conditions of their consents. Despite that, the residentsconducted the proceedings in a measured and responsible manner.[29] The Court's Decision was reached in substantial part on an evidential basis asto the scale and intensity of localised effects, including but not confined to noise. Thefindings are in part challenged on appeal as not available on the evidence, andthe Court is also alleged to have erred in interpreting and applying the District Plan,and the way it addressed the threshold tests under s 104D.[30] Adopting headings used by the Environment Court, I track and summarise theDecision with occasional comment, before addressing the alleged errors of law.Status of the activity[31] The site is within the Rural Waimakariri Zone and quarrying is a discretionaryactivity 250m or more from a residential zone. It is non-complying because theproposal exceeds the relevant noise standard at the site's southern boundary by morethan 10 dB where the predicted noise level is 76 dB LAeq.[32] Being non-complying, s 104D RMA provides that the activity may only beconsented if the consent authority is satisfied that either (relevantly):(a) the adverse effects of the activity on the environment (other than anyeffect to which section 104(3)(a)(ii) applies) will be minor; or(b) the application is for an activity that will not be contrary to theobjectives and policies of the relevant plan.Key definitions[33] The appeal was primarily concerned with cumulative effects of the proposedquarry on the rural character of the area and the amenity values that derive from that.Amenity values are those natural or physical qualities and characteristics of an areathat contribute to people's appreciation of its pleasantness, aesthetic coherence, andcultural and recreational attributes. The primary issue for determination was whetherthe cumulative effects achieve the Objectives of the District Plan and thereby promotesustainable management of natural and physical resources.[34] The Court referred to the wide meaning of the term 'effects', which includeseffects positive and adverse, temporary and permanent, past, present and future, andcumulative over time or in combination. Effects are regardless of scale, intensity,duration, or frequency, and include a potential effect of high probability, and potentialeffect of low probability with a high potential impact.[35] The term "cumulative effect" is significant in the Court's reasoning, explainedin this way:4[17] In Dye v Auckland Regional Council the Court of Appealdifferentiating a cumulative effect from a potential effect, appeared to confinethe former to the effect of the activity itself on the environment. The followingpassage is often quoted but it is worth setting out again in the context of thisdiscussion:The definition of effect includes "any cumulative effect which arisesover time or in combination with other effects". The first thing whichshould be noted is that a cumulative effect is not the same as apotential effect. This is self evident from the inclusion of potentialeffects separately within the definition. A cumulative effect isconcerned with things that will occur rather than with somethingwhich may occur, that being the connotation of a potential effect. Thismeaning is reinforced by the use of the qualifying words "which arisesover time or in combination with other effects". The concept ofcumulative effect arising over time is one of a gradual built up ofconsequences. The concept of combination with other effects is oneof effect A combining with effects B and C to create an overallcomposite effect D. All of these are effects which are going to happenas a result of the activity which is under consideration That concept [cumulative effect] is confined to the effect of theactivity itself on the environment.[36] The Court referred to His Honour Judge Thompson where he said:5[51] There is a passage in the Court of Appeal's judgment inDye v Auckland Regional Council [2001] NZRMA 513 which, taken literally,4 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [38] – [39].5 Outstanding Landscape Protection Society Incorporated v Hastings District Council [2008]NZRMA 8 (EnvC).appears to hold that cumulative effect can only be one that arises from theproposed activity: All of these are effects which are going to happen asa result of the activity which is under consideration. [para [38]]. Theconsequence of that would be that only adverse effects emanating from theproposal itself could be brought to account. There could be no cumulativeeffects [properly so called] created by combining existing or permitted effectswith effects arising from the proposal. In turn, that would mean that so longas the adverse effects of the proposed activity are not of themselves more thanminor a consent authority could never say This site has reached saturationpoint; it can take no more.[52] That interpretation would, we think, be contrary to the plain meaningof effects in s 3 and contrary to the purpose of the Act, as set out in s 5 – thesustainable management of natural and physical resources. If a consentauthority could never refuse consent on the basis that the current proposal isthe straw that will break the camel's back, sustainable managementis immediately imperilled. It is to be remembered that all else in the Act issubservient to, and a means to, that overarching purpose.[53] Logically, it is an unavoidable conclusion that what must beconsidered is the impact of any adverse effects of the proposal on theenvironment. That environment is to be taken as it exists or, followingHawthorn, as it can be expected to be, with whatever strengths or frailties itmay already have, which make it more, or less, able to absorb the effects ofthe proposal without a breach of the environment bottom line – the principleof sustainable management.Preliminary legal issues[37] The Court explained its decision-making steps and, given the legal challengeon this appeal to the sequence of consideration by the Court, this explanation is set outin full:[24] The key decision-making steps under ss 104, 104B and 104D wereoutlined in Blueskin Energy Limited as follows:6Key decision-making steps under ss 104, 104B and 104D[26] The High Court decision of R J Davidson is binding on us andin response our approach to decision making on this appeal follows:(a) decide whether the proposal passes one or both of thethreshold tests in s 104D;(b) if it passes, consider the application and submissions,subject to Part 2, having regard to s 104(1):• the actual and potential effects of the activityon the environment;6 Blueskin Energy Limited v Dunedin City Council [2017] NZ EnvC 150.• any relevant plan; and• any other relevant consideration(c) decide the weight that should be given to the mattersin subsections 104(1)(a), (b) and (c); and(d) having regard to effects in the context of properlyweighted objectives and policies under s 104(1) andany other relevant consideration, arrive at a judgmentwhether the proposal promotes the sustainablemanagement of natural and physical resources anddecide to grant or decline consent accordingly(s 104B).[27] We have kept separate the decision-making process underss 104 and 104D. While the content of the sections are similar, quitedifferent considerations apply.[28] We do not suggest this approach should be applied asa formula to decision making; the facts of the case may lend itself toa different structure. Other provisions of the Act may apply and willalso need to be taken into account."Subject to Part 2"[29] It appears, following the High Court decision ofR J Davidson, that s 104(1) provides for the consideration of Part 2 ina particular way. The consent authority may have recourse to Part 2when considering the application and submissions under s 104(1); butnot afterwards as a separate exercise as per the "overall judgmentapproach". We suggest [an] inherent risk under the overalljudgment approach is that the decision-maker may take into accountan irrelevant matter – or more likely fail to take into account a relevantmatter – including in particular the weighted findings unders 104(1)(a), (b) and (c).[30] The circumstances where there may be recourse to Part 2 iswhere there is invalidity, incomplete coverage or uncertainty ofmeaning within the planning instruments. There is no need forrecourse under Part 2 directly where that policy direction is providedin the higher order instruments; following Southland Fish & GameNew Zealand v Southland District Council & Ors and InfinityInvestment Group Holdings Ltd v Canterbury Regional Council.[31] The exercise of any decision-making discretion is to beundertaken in a principled manner and for the purpose the discretionwas conferred. Unless the context clearly indicates otherwise, underthe RMA this will be for the purpose of promoting the sustainablemanagement of natural and physical resources; per SouthlandFish & Game New Zealand v Southland District Council & Ors.[32] Assuming the application for a non-complying activity passesone of the threshold tests under s 104D, the decision whether or not togrant consent is made under s 104B, taking into consideration thematters in s 104(1)(a), (b) and (c). Like s 104(1), s 104B does notdraw any distinction between an application for a discretionaryactivity and an application for a non-complying activity. The decisionwhether to exercise discretion and grant (or refuse) consentnecessarily entails a judgment that is informed having regard to thematters under s 104.The weighting exercise[33] The weighting of findings is critical to the determination ofthis appeal. The High Court in Stirling v Christchurch City Councilmade the following observation regarding weighting of findings unders 104(1): s 104(1) adopts an open-ended approach to the weight thatis to be attached to the relevant matters. All that is required isthat the decision-maker "shall have regard" to each of them.There is no statutory threshold or requirement for theprovisions of a plan that are relevant to be approached in aparticular way.[34] Stirling v Christchurch City Council precedes the High Courtdecision of R J Davidson and the interpretation of "have regard to" ins 104 is now more nuanced. The direction "must, subject to Part 2,have regard to" includes having regard to any indication of the weightgiven to the relevant consideration in the planning instrument. Wherethere is no coverage of the relevant effect under any plan or policystatement then Part 2 may provide guidance on the weight. Weconsider this approach is consistent with Stirling where theHigh Court held an effect may be proven but receives little weight ifthat is justified by policy considerations.Weight given to facts and effects and any other considerations[35] We will determine the facts, including making predictionsabout the future effects of the proposal. How much weight is given tothis evidence depends on a variety of factors including any policydirection on the fact or effect in issue and the materiality of them tothe determination of the case.[37] Occasionally there may be conflict between differentprovisions within a plan or as between different policy statements orplans – but before the court will come to this conclusion there mustbe a "thoroughgoing attempt to find a way to reconcile them";per King Salmon at [131]. [footnotes omitted][38] The Environment Court did not consider higher order planning instrumentsbecause the District Plan has given effect to them.Christchurch District Plan[39] The Court described best practice when interpreting and applying planninginstruments, recognising that District Plans may contain different but overlappingways to achieve stated Objectives. Objectives and Policies inform, build upon, andsometimes constrain one other, so best practice begins with an understanding of thewhole planning context. The purpose of an overview is to understand the relationshipbetween different provisions of the District Plan, and whether they align with andsupport each other to achieve the integrated management of natural and physicalresources.Strategic Directions of the District Plan[40] The Court addressed the Strategic Directions for Christchurch, in ChapterThree of the District Plan, which provide the context for other chapters to articulatehow Decisions about resource use and values are to be made, and outcomes intendedfor the Christchurch District. Chapter three has primacy over other Objectives andPolicies, which must be expressed and achieved to be consistent with its direction.[41] Strategic Directions are given effect to by the Objectives and Policies, whichare to be interpreted accordingly. There are 17 Objectives, two of which haveoverarching application. One of these is Objective 3.3.1 which provides for theexpedited recovery and future enhancement of Christchurch as a dynamic, prosperousand internationally competitive city, in a manner that:a. i. Meets the community's immediate and longer term needs forhousing, economic development, community facilities,infrastructure, transport, and social and cultural wellbeing;andii. Fosters investment certainty; andiii. Sustains the important qualifies and values of the naturalenvironment.[42] The Court set out other Objectives which give strategic direction toChristchurch.Objective 3.2.5(a)The critical importance of business and economic prosperity to Christchurch'srecovery and to community wellbeing and resilience is recognised and a rangeof opportunities for business activities to establish and prosper.Objective 3.3.14(a) the location of activities is controlled, primarily by zoning, to minimiseconflicts between incompatible activities; and(b) conflicts between incompatible activities are avoided where there may besignificant adverse effects on the health; safety and amenity of people andcommunities.Objective 3.3.16(a) a range of opportunities is enabled in the rural environment, primarilyfor rural productive activities, and also for other activities which usethe rural resource efficiently and contribute positively to the economy.(b) the contribution of rural land to maintaining the values of the naturaland cultural environment, including Ngai Tahu values, is recognised.[43] The Court said that Objective 3.3.15 is relevant only in a peripheral way, but itbecame rather more than that on this appeal. It recognises a temporary transitionalperiod of activity after the earthquakes and this HGL consent would be in force duringthat transition and beyond, up to 30 years.3.3.15 Objective - Temporary recovery activitiesa. Temporary construction and related activities (includinginfrastructure recovery), and temporarily displaced activities, as aconsequence of the Canterbury earthquakes are enabled by:i. Permitting a range of temporary construction and relatedactivities and housing, accommodation, business, servicesand community facilities, recognising the temporary andlocalised nature of such activities, and the need to manage anysignificant adverse effects; andii. Providing an additional transitional period for considerationof temporary construction and related activities andtemporarily displaced activities, taking into account:A. the need for the activity to remain for a longer period;andB. the effects on the surrounding community andenvironment; andC. any implications for the recovery of those areas of thedistrict where the activity is anticipated to be located;andiii. Accommodating the adverse effects associated with therecovery of transport and infrastructure networks recognising:A. the temporary and localised nature of the effects ofthese activities; andB. the long-term benefits to community wellbeing; andC. the need to manage and reduce adverse effects; andiv. Recognising the importance of aggregate extraction,associated processing (including concrete manufacturing) andtransportation of extracted and processed product to supportrecovery.[44] The seven Rural Zones in the District Plan have a common single Objective,and a common set of Policies, bar two (Rural Banks Peninsula and the location andmanagement of quarrying activity and aggregates-processing activity). The Court saidoutcomes for Rural Zones are not clearly stated as Chapter Three directs, and theRules, not the Objectives and Policies, have been used to drive the outcomes. Thatled the Court to say:7This begs the question as to what are the sustainable management outcomesfor any given zone when a proposal is not permitted under the relevant zone?[45] The Court recognised this Objective for all Rural Zones:Objective 17.2.1.1 – The rural environment:Subdivision, use and development of rural land that:i. Supports, maintains and, where appropriate, enhances the function,character and amenity of the rural environment, and in particular, thepotential contribution of rural productive activities to the economy andwellbeing of the district; [46] The Objective is to be achieved through 13 Policies, and related Policiesdealing with noise and traffic. The Court identified the relevant Policy suite asfollows:87 At [35].8 At [37].(a) overall outcomes for activities on rural land (Policies 17.2.2.1 and17.2.2.2);(b) fact finding (Policy 17.2.2.3); and(c) attainment of specific outcomes identified (Policies 17.2.2.4, 17.2.2.10,17.2.2.12 and 17.2.2.13).[47] A range of activities on rural land is enabled. Rural productive activityincludes quarrying, but the Court said that this "is not, however, an open-endedarrangement to establish these activities in the rural zones."9[48] Adverse effects on rural character and amenity values are to be avoided,remedied or mitigated under Policy 17.2.2.2, which is to be interpreted in light of theoverarching Objective for the rural environment and the Strategic Directions. Thispassage of the Decision is instructive:10If the adverse effects are not avoided or remedied (we suggest preferably inthe first instance), the Policy is tolerant of activities with adverse effects wherethe activity, circumscribed by any conditions mitigating effects, supports andmaintains the function, character and amenity values of the rural environment.[49] The Court treated amenity values as those of people and communities,consistent with Strategic Objective 3.3.14, which with supporting Policies isconcerned with localised effects on neighbouring land owners and the wider effect onthe community. The District Plan recognises the "obvious but important point" thatrural character and amenity values vary across the district given different combinationsof natural and physical resources, and that variation is to be recognised underPolicy 17.2.2.3(a).[50] Two important paragraphs for this judgment are as follows:[41] Whether the proposal does support and maintain the function,character and amenity of the rural environment (objective 17.2.1.1) dependson the combination of natural and physical resources present. On the onehand, decision-makers are to recognise the elements which characterise an9 At [28].10 At [38]area as rural, from which desired amenity is derived, include thepredominance of:b. i. a landscape dominated by openness and vegetation;ii. the significant visual separation between residential buildingson neighbouring properties;iii. where appropriate, buildings integrated into a predominantlynatural setting; andiv. natural character elements of waterways, water bodies,indigenous vegetation and natural landforms, including thecoastal environment where relevant.[42] On the other, decision-makers are to recognise rural productiveactivities produce noticeable noise, odour, dust and traffic consistent witha rural working environment; quarrying is one of these activities that isspecifically mentioned.[51] The Court went on to say that the same Policies are concerned not only withmore pleasant aspects of the countryside and country life, but with the reality that ruralproductive activities may generate adverse effects, which, while less pleasant, areconsistent with a rural working environment under Policy 17.2.2.3(b) and (c), and bothare to be recognised. The Court put it this way:11A key issue in this proceeding is whether the adverse effects of the proposedquarry, either considered by itself or together with the other quarries in thelocality, are consistent with this particular rural working environment.[52] Quarrying is defined as a rural productive activity, but that does not mean it isnecessarily appropriate at this location. Policy 17.2.2.4(a)(ii) provides that thedecision-maker must ensure that the nature, scale and intensity of use and developmentrecognise different natural and physical resources, and the character and amenityvalues of rural land and other rural productive activities. The Court considered thePolicy to be strangely worded, but at heart, it relates to the interaction betweenproposed rural productive activities and the receiving environment, which means theenquiry is whether the activity will support, maintain and, where appropriate, enhancethe function and amenity of the rural environment. Here, that means the existing11 At [44].character and amenity experienced and enjoyed by the JAG residents and the widercommunity.[53] The Court noted that incompatible activities are to be adequately separatedfrom new quarrying under Policy 17.2.2.10(b), and such activities include thehabitation in dwellings along Conservators and Savills Roads. The adequacy of suchseparation is for the decision-maker.[54] The Court said that access to, and the processing of, aggregate is important forthe recovery and development of the District, but subject to constraints on newquarrying where it is outside the Rural Quarry Zone. Such new quarries may only beestablished in certain circumstances under Policy 17.2.2.12(a)(ii). The attainment ofthese outcomes is a major determinator of the Objective for the rural environment anda new quarry is provided for only where the activity relevantly:(a) Avoids areas of outstanding or significant landscape, ecological,cultural or historic heritage values;(b) Avoids or mitigates effects on activities sensitive to quarryingactivities;(c) Internalises adverse environmental effects as far as practicable usingindustry best practice and management plans, including monitoring andself-reporting;(d) Manages noise, vibration, access and lighting to maintain local ruralamenity values;(e) Avoids or mitigates any effects on surface water bodies and theirmargins; and(f) Ensures the siting and scale of buildings and visual screening maintainslocal rural amenity values and character.[55] While not determinative in itself, the Court said that under Policy 17.2.2.13 allnew proposals for quarrying activities must have a site rehabilitation plan and a finalrehabilitated landform must be appropriate, relative to the end use.Noise[56] The Court said the Objective for the rural environment is attained in partthrough managing adverse effects of noise. The broad objective was recognised to bethat the adverse noise effects on amenity values and the health of people incommunities are managed to levels consistent with the anticipated outcomes for thereceiving environment. That is achieved by limitation on sound levels and locationand duration of noisy activities under Objective 6.1.2.1 and Policy 6.1.2.1.1. Thequarry will not operate at night.Traffic[57] The Objective for an integrated transport system requires that it be safe andefficient for all transport modes and that it support the safety, health and liveability ofcommunities by maximising the integration of land use. This is a high trafficgenerating activity so the Policy requires such activities to manage their adverseeffects on the transport system in their location and design so as not to compromisethe safe, efficient and effective transport system. Policy 7.2.1.2 applies. Thetransportation needs of people and freight are to be enabled at the same time asmanaging adverse effects from the transport system under Objective 7.2.2.[58] The Court referred to the importance of Policy 7.2.2.3, "Effect on adjacent landuser to the Transport Zone". The Policy directs the management of adverse effectswithin the Transport Zone, so that the effects are consistent with the amenity valuesand activity of adjacent land users, whilst providing for the transport network, inparticular the strategic transport network, to function efficiently and safely.Threshold of effects[59] The Court referred to the Council's submission that the Strategic Directionsestablish a threshold of effects on rural character and amenity to be avoided, at thelevel of significant adverse effect. The implementation of Objectives and Policies isnot concerned only to avoid significant adverse effects, although counsel for theCouncil referred to Objective 3.3.14 and the Strategic Direction to avoid conflictbetween incompatible activities where there may be significant adverse effects on thehealth, safety and amenity of people and communities. This interpretation was not putto the planning witnesses. The Court said that Objective 3.3.14 refers to avoidancewhich means "not allowing" or "preventing the occurrence of", and the Objectives andPolicies are to be interpreted and implemented to achieve that Strategic Direction.Conflicts between incompatible activities are to be avoided where there may besignificant adverse effects on the health, safety and amenity of people andcommunities. The Court said the Council's interpretation raises the issue whetherObjectives and Policies are to be interpreted and implemented in a way that ispermissive of adverse effects which are "not significant adverse effects". The Court'sshort answer to this very important question was "That depends on what the DistrictPlan says".[60] Objective 3.3.16 provides another and overlapping direction to recognise thecontribution of rural land to maintaining the values of the natural and culturalenvironment, including Ngai Tahu values, and it overlaps with Objective 3.3.14.Putting these together, the Court said:12Both directions are to achieve the overarching objective that, inter alia,Christchurch "sustains the important qualities and values of the naturalenvironment." (Objective 3.3.1)[61] The inter-relationship of Objectives must be recognised and the Court referredto Gendall J's observation that:13 depending on the circumstances [there may be] more than one objectivehaving different, and overlapping, ways of achieving sustainable managementof natural and physical resources (the purpose of the Act). But objectivescannot be looked at in isolation, because "the extent" of each may dependupon inter relationships.12 At [62].13 Rational Transport Society Inc v New Zealand Transport Agency [2012] NZRMA 298 (HC)at [46].[62] The Court said that Objective 17.2.1.1 for the rural environment enablesdevelopment of rural land, but decision-makers must bring to account Policy 17.2.2.2to ensure activities avoid significant adverse effects on an area of important naturalresources, and avoid, remedy, or mitigate other adverse effects on rural character andamenity values. The Court then said, again important to this judgment:[67] The City Council does not address these key policies and in particular,the distinction made between "significant adverse effects" and "other effects"in policy 17.2.2.2. Under the City Council's interpretation "othereffects" means "all other significant adverse effects". The City Council doesnot address these distinctions and whether they are material to theinterpretation and implementation of the District Plan.[68] If an activity gives rise to an adverse effect which, as proposed to bemitigated, does not support and maintain the function, character and amenityvalues of the rural environment (objective 17.2.1.1) are these effects to beenabled through the granting of consent? Under the City Council'sinterpretation, the answer to this is "yes".[69] The better interpretation, and the one that fits with the strategicdirections as a whole (including, in particular, objectives 3.3.1, 3.3.14 and3.3.16), and the implementing objectives and policies, is that, regardless ofscale, decision-makers are to avoid "significant adverse effects" on health,safety and amenity of people and communities (objective 3.3.14) and for all"other adverse effects", evaluate the activity in light of the intended outcomesfor the rural environment. Where an effect cannot be avoided or remedied inthe first instance, then the enquiry is whether the activity as proposed to bemitigated will support and maintain the function, character and amenityvalues of the rural environment. If not, the activity will not achieve therelevant objective of the District Plan. (emphasis added)The receiving environment[63] The area under consideration is that around the intersection of Conservators,Savills, and Guys Roads, approximately 2.4 kms north of Yaldhurst Village, onChristchurch's north-western periphery. The Court said the rural character derivesfrom natural and physical resources, and includes the existing and future environment.The future environment includes activities permitted under the District Plan or underresource consents granted, and those which it seems likely will be implemented.Landform and soil[64] The landform is predominantly flat with subtle variations including terracesalong the southern boundary of the subject site, and to the south and north suppressedlinear undulations formed by the Waimakariri River braids and 2-3m high bundsaround the boundaries of existing quarries provide visual screening. The Courtaccepted that soils underlying at least some of the JAG properties are likely to beWaimakariri loam.Vegetation[65] The vegetation is, in the main, pasture. North of the HGL site is a ready lawncultivation business, and there are exotic shelterbelts and plantations for timberproduction. On the southern boundary is the area owned by the Regional Council withdryland plains native vegetation, a Significant Landscape Area under the District Plan.There is also land between the end of Conservators Road and quarries onMcLeans Island Road, the McLeans Grassland Park.Views[66] From public roads, there is a range of views, including dwellings and structuresaccessory to farming. There are long views to the foothills to the west. Short distanceviews are interrupted by shelterbelts, although generally only on one side of the road.Road entrances provide relatively uninterrupted views. Emerging features in the areaare elements of non-farming rural productive activities, including buildings, signage,secure fences, gates and engineered accesses, bunds and screen planting.Existing land uses[67] The JAG residents own or occupy small holdings in a "pocket" which frontsSavills and Conservators Roads, north of Yaldhurst Village, with access viaGuys Road. The Village has a school with other amenities used by the residents, andthere are 11 households on Conservators Road. The potential for additional dwellingsis limited by the subdivision pattern and minimum site areas permitted. In the main,the residents' sites are less than the 20 hectares for a permitted activity, and used fora mix of rural productive activities, mainly pastoral.Local road network and environment[68] The local road network and environment was described in evidence by a JointWitness Statement which said (emphasis added):(c) Savills, Conservators and Guys Roads are classified as local roadswhose function is "almost entirely for access purposes and [not]intended to act as through routes for motor vehicles"; and(d) the daily traffic volumes carried by Conservators, Guys andSavills Roads are reportedly "very low such that the trafficenvironment can be considered to be very 'quiet'. The trafficengineers agreed that because afternoon peaks exceed those in themorning, the former should be used for assessment purposes.[69] The SOL and Frews consent conditions reflect in the receiving environment,and allow SOL 300 Heavy Goods Vehicle ("HGV") movements per day offGuys Road and 30 Light Vehicles ("LV") movements off Conservators Road. Frewsis allowed 328 HGV movements off Guys Rd, and 84 LV movements off Savills Road.The junction of Pound and Savills Roads is critical for HGL road network effects. TheSOL and Frew consents have road upgrading conditions. The Environment Courtvisited the site and saw that the local roads generally have wide mown grass vergeseither side of the carriageway. The JAG residents told the Court they value the roadsas part of the environment, for cycling, horse riding, running and walking safely,including with dogs, with a high level of amenity, "at least until recently". The JAGresidents' behavioural response has changed, given their concerns for their own safety.Noise environment[70] There was expert evidence that this locality is no longer a secluded rural areaand amenity is already affected by ambient noise generated by traffic on local roads,some industrial noise, and airport operations. HGL provided the Court withinformation from Marshall Day Acoustics of noise surveys in the area, over severalyears, which include data for the subject site, at or near 70 Conservators Road and15 Savills Road. At 0100 hours, the ambient noise level would generally be around41 dB LAeq without aircraft noise. The daytime ambient level will typically be between45 and 50 dB LAeq.[71] Mr Camp gave expert acoustic evidence for HGL, and the residents gave theirlay evidence of existing noise levels of the SOL quarry traffic's use of Savills Road.They said that between 7:00am - 9:00am and 4:00pm - 6:00pm the sound from "Everyheavy truck [that] 'hurtles by [is said to be] loud, intrusive and [to] vibrate [her] homelike a mini earthquake'".[72] The Court referred to expert evidence from Dr Taylor:[95] In Dr Taylor's social assessment he had explored with residents theirconcerns about the potential change to their existing amenity, if consent weregranted. His evidence, supported by the direct evidence inquiry, showed theresidents to be concerned about an environment in which they need to shutwindows during the day; face restrictions on outdoor activities; andexperience disturbed sleep, particularly on Saturdays. Noise received infrequent, short, intensive "bursts" – such as the banging and clanking ofmachinery and acceleration/deceleration of vehicles – was viewed as anespecially adverse element.Dust environment[73] The receiving environment is already impacted from dust sources, farm andforestry activities, the Waimakariri River bed, the possibility of dust from the SOL andFrew Quarries, and other quarry and cleanfill operations further afield. Elevated dustlevels can be expected, especially in summer. The JAG residents gave evidence thatthe haul roads are the biggest source of quarry dust and there was evidence of dustintrusion which had effected the health of one resident. The Court said, "for her, themost frustrating part, has been the 'the denial of experts and operators that [dust]would be a problem'".14[74] The Court referred to Dr Taylor's inquiry as follows:[105] Dr Taylor's social assessment inquiry showed that residentsunderstand rural Canterbury can be dusty at times, but they experiencemultiple adverse effects in the local environment associated with quarrying,crushing, vehicle movements and dirt piles, including poorly vegetated bunds,(primary elements of concern being dust on roads and dust entering houses,resulting in negative ambience, additional cleaning and health effects). In thisregard Dr Taylor's evidence very largely traversed similar aspects of theenvironment to those described by individual witnesses for the appellants, butincluded specific examples like:(a) driving to school and back (past Grants Brothers site on Savills Rd)and the car being covered in dust in one trip;(b) cars having to be washed every 2-3 days with dust present on thedriveway and clothes;14 At [103].(c) dust on house exteriors causing increased washing;(d) dust causing people to close windows even on hot days; and(d) dust noticed on an outdoor swimming pool.[footnotes omitted]Benefits of proposed quarry[75] The Commissioners' Decision did not refer to positive effects in an evaluativeway, but the Court recognised the evidence of a large predicted shortfall of aggregatebased on that currently available, and 2041 demand forecasts. The proposed quarrywill assist with the rebuild of Christchurch, and contribute to other large projectsaround the city. This site is said to be marginal for other commercial purposes, givenits size, but viable as a quarry project. The aggregate is of good quality, clean, andeasy to work with. The proposed quarry would provide about eight per cent of theanticipated shortfall in aggregate supply to 2041, a positive benefit to be consideredalongside actual or potential adverse effects. The Court recognised other supplyoptions could be available. It considered this site to be relatively small and overall thebenefits of the proposal were given no more than moderate weight.Rural amenity and character[76] The Court said:[115] "Amenity values" are those natural and physical qualities andcharacteristics of an area that contribute to peoples' appreciation of itspleasantness, aesthetic coherence, cultural and recreational attributes.15[77] The Court said visual amenity is important, as is the effect on amenity of anychange in background levels of noise, dust, vibration and increase in volume of HGVmovements. Change per se does not constitute an adverse effect on rural character oramenity. To test the scale and intensity of effects and change, the baseline environmentmust be established.[78] The Court set out its approach to assessing the 'values' evidence as follows:15 Resource Management Act 1991, s 2.[117] With that in mind, our approach when assessing "values" evidence, isto:(a) identify the values of people and communities. Based on the topicsabove this will include the attributes and characteristics of the existinglandscape, soundscape and air quality that are valued by them. [Weexpect the experts will explain how they ascertained the values ofpeople and communities];(b) ascertain whether the District Plan identifies any valued attributes orcharacteristics for the relevant zone, landscape or more broadly thereceiving environment. These elements may also be identified fromother documentation such as a Conservation Management Strategy;(c) determine whether the amenity values are reasonably held. In thatregard we expect the experts to objectively test the basis of the valuesthat are derived from the environment. This is necessary because theresidents' views on their existing amenity is subjective and influencedby personal feelings or opinions, including the strength of theirattachment to this place; (emphasis added)(d) assess whether the proposal gives rise to adverse effect on the relevantattribute or characteristic;(e) if it does, then to consider whether, in this case, rural character ismaintained and second, whether there are any consequential effectson the existing amenity values; and(f) finally, to assess those effects in light of the outcomes for the relevantresources and values under the District Plans.[79] The Commissioners concluded that all amenity related effects, including thosegenerated by bunds and shelterbelts, could be avoided or mitigated to the point ofbeing minor or less than minor, so they were satisfied the application was consistentwith the general Rural Objectives and Policies. The Court evaluated the residents'amenity values. When they purchased their properties some 10-15 years ago, thepredominant land uses were pastoral and horticultural, dissected by fences and hedges,with stop banks close to the river. There was a sense of open space and the ruraloutlook was valued. Traffic levels were lower but from time to time there was noiseand dust from farming activities and the Airport, although the land was not underflightpaths. Conservators Road is not a through road and traffic is mainly local.[80] The existing environment encompasses that as it may be modified bythe effects of consented activities including consents not yet fully expressed. Theresidents described the character of the area having changed since the Canterburyearthquakes, and the recent expansion of quarrying, over the last three to four years.[81] Expert opinion is that the effects on residents will be minor, but the residentsdisagree and are concerned about the rural character of the area, and adverse effectson the amenity they have enjoyed, and that the effects will intensify if consent isconfirmed. The Court did not know whether all the changes described by them are aconsequence solely of quarry activities, but it found the residents to be clear in theirevidence that the effects of quarry operations on them are adverse, and the quarryassociated activities mean they are no longer able to occupy and use their environmentas they once used to do.The District Plan[82] The particular character of the area is not described in the District Plan. TheCourt made a comprehensive assessment of the existing landscape based on theevidence of landscape experts. It was not aware if the experts made any inquiries ofthe residents or the community generally as to the qualities and characteristics thatcontribute to their appreciation of the area. The proposed quarry site is pastoral andits level of naturalness moderate, but that would reduce to moderately low duringquarry operations. Even after rehabilitation there would be a large depression evidentin the landform.[83] Temporary bunds would look artificial but not anomalous, far enough awayfrom existing dwellings so as not to dominate, but there would be views into the siteoff Conservators Road, and of trucks coming and going. Expert witness Mr Craig'sevidence was that there is no difference in the rural character of a Quarry Zone and aRural Zone, because under the District Plan quarrying can occur in both, and in RuralZones a quarry is a "productive" activity. There are many quarries in the area whichmake up the existing environment, so he said there should be no 'surprise' to residentsif this quarry is established. He thought the factors which contribute to landscapecharacter would remain unchanged.[84] Ms Smetham, a landscape architect, accepted that as with other ruralproductive activities, noise, odour, dust and traffic would be noticeable to residents,but these elements are well established already. She said the 'openness' will remain,commensurate with rural character, with visual screening.[85] Ms Smetham asked whether the addition of this quarry passed the thresholdtest of acceptable effects on rural character and visual amenity, but she did not, in theCourt's view, address where the threshold lies. The 'environment' should not belimited by Policy 17.2.2.3, which as a fact-finding provision does not say anythingabout the stated outcomes for the area. The sustainable management outcomes aredescribed in Policies 17.2.2.1 and 17.2.2.2.[86] The Court thought Ms Smetham had a narrow brief and did not inquire intoamenity values of the residents to allow her to reach a conclusion where the thresholdof acceptable effects lies. Both her evidence and that of Ms Dray, who did not havethe opportunity to provide a full brief of evidence, was treated cautiously.[87] Ms Dray, a senior landscape architect with the Court, was called by theresidents. She distinguished landscape and visual effects, the former reflectingchange, and the latter seen from various vantage points. Her view was that thecapacity of the landscape to absorb change is tested by this proposal, and thatthe legibility of the landscape may be affected to a degree that may well not bereversible if there is not enough cleanfill to restore the site. If so, the cumulative effecton landscape character and visual amenity would be more than minor, given the viewsof other quarries.[88] The Court said Mr Craig's evidence that the generic rural character of the areaas he understood it would not change overlooked the fact that quarries within the RuralZone are discretionary activities and the application is for an activity otherwisenon-complying. The Court identified errors in the interpretation that Objective17.2.1.1 and Policies are implemented solely through building density and subdivisionRules. The Court thus found errors in the way the expert evidence had beenapproached, and found that the rural character of the area still depends on pastoralfarming, shelterbelts and hedgerows, and more recently bunding, and that there is stilla degree of open spaciousness which residents value. Such errors in the landscapeassessment proved inimical to assessment of the cumulative effect of use anddevelopment of up to 300 ha for quarrying. The scale and intensity of quarryingactivity had not been recognised, nor the resulting effect on amenity of residents.Bunding will foreclose the view to a degree and reinforce the perception that quarryingis becoming a predominant activity and the Court said this will shift the rural characterof the area towards one underpinned by quarrying and not pastoral activity. Thechange in rural character will otherwise have a moderate adverse effect on the visualamenity west of Conservators Road, adjacent to the site along the road. The bundingwould become the visually dominant element, but there would also be views of thevehicles entering and leaving the site which would have a moderate adverse effect onthe existing amenity of the residents.[89] Of importance to this judgment, the Court said:[149] We did not find it helpful to consider the rural character of this areadifferentiating between a generic character (based on built form) and a specificcharacter (land use and landcover). We doubt attributes and characteristics ofany given landscape should be compartmentalised in this way as theseelements interact and inform the whole of the landscape. Further, we couldnot find support for this approach under the District Plan.Findings[152] Ordinarily we would expect the quality of the landscape – includingone modified by farming activity – to contribute to peoples' appreciation ofits pleasantness or aesthetic coherence. This is so even though ruralproductive activities can have effects which, in other contexts, may beconsidered adverse.[153] The rural character of this area depends on pastoral farming, and onthe shelterbelts and hedgerows which crosshatch the landscape resulting in ahaphazard pattern of lines. As Ms Smetham says, this has created a series ofopen and closed views. The view towards this pastoral landscape is anamenity that is valued by the residents. While the views are broken byshelterbelts, hedgerows and, more recently, by bunds the landscape'sparticular rural character nevertheless retains a degree of open spaciousnesswhich residents also value.Visual effect and effect on visual amenity[154] The visual effect of the proposed quarry (being the change in thecomposition of the view) is sensitive to the location of the viewer. We haveconsidered the scale and magnitude of the proposal's visual effects by itself;cumulatively with other quarries in the area and together with the existingshelterbelt on the eastern side of Conservators Rd.[155] Bearing in mind that the purpose of the bund is to exclude views intothe quarry, the bund and shelterbelt will reduce the visual amenity that derivesfrom the contribution this site makes to the pastoral landscape. There areextensive views afforded of the landscape along Conservators Rd andGuys Rd although towards the intersection these views are interrupted by aninternal shelterbelt. The foreclosing of the view will reduce the openness ofthe landscape and reinforce the perception that quarrying is or is becoming apredominant activity. This will shift rural character of the area towards onethat is underpinned by quarrying, not pastoral, activity.[156] This change in rural character will have a moderate adverse effect onthe visual amenity west of Conservators Rd. The bunds will reducethe present-day visual amenity afforded by the open pastoral character of thegenerally expensive views of the landscape. This will be so from Guys Rdlooking towards the north and from Conservators Rd across the site.Rehabilitation[90] There was no Quarry Rehabilitation Plan before the Court, although HGL'sstated intent is to restore the land after quarrying ceases. The Court said theCommissioners gave the prospect of a shallow basin from a partially restored site scantconsideration. The end use was not developed in evidence, and is addressed underQuestion Four.Cumulative effect of quarrying[91] Again, and of importance to this judgment, the Court said it had insufficientevidence to conclude that the cumulative visual effect of quarries has changed the ruralcharacter of this locality as a whole. The Court otherwise agreed that quarrying is nowthe predominant rural productive activity in the locality, gradually enclosing the ruralland behind bunds. The Court's conclusion was that the proposal would have anadverse effect on visual amenity which would reduce the visual permeability of thelandscape and the attribute of open "spaciousness" valued by residents and anticipatedunder the District Plan. It said the bunds and shelterbelts would look like the site of aquarry. The cumulative visual effect of bunding and shelterbelts, in the contextof other quarries, means there will be an adverse effect on landscape and visualamenity and these effects too may have reached a tipping point.[92] Also important to this judgment, the Court said the landscape evidence was solimited that it reached no settled view on the cumulative effect of the proposal and thecapacity of the landscape to accommodate further change without altering orcompromising its existing character and the values which attach to the same. Itconcluded, with emphasis added for this judgment:[164] On the final issue we have insufficient evidence to make a finding onthe effect on landform of this proposal considered by itself or together withother quarrying activities in the area that have ceased. This depends on theintended end use of the neighbouring quarrying activities and whether, as inthis case, what is proposed is to partially fill in the pit and oversow the top soilwith grass.Noise[93] Noise was assessed against that from the quarry, traffic associated with thequarry, and cumulatively with other noise sources. The JAG residents described theirconcerns about noise, including the effect on wildlife being driven off, being unableto sleep beyond 7:30am on a weekday, loud and intrusive noise from heavy trucks, thenoise from crushers and the loading of trucks (that from a crusher was likened to a jarfull of marbles being shaken), and braking and accelerating trucks as they go throughthe Guys Road/Savills Road intersection. There was evidence of residents changingbedrooms given the noise from the road and some people it was said had left the areabecause of quarrying. Their concern is that noise effects will intensify as Frews andSOL quarries become fully operational.[94] Two noise experts were called, Mr Camp for HGL and Dr Trevathan for theCouncil.[95] The daytime noise Standard under the then Operative City Plan is occasionallyexceeded by 3 dB in the vicinity of the Savills and Conservators Roads residences.The Commissioners found this to be "no more than minor" and therefore acceptable.The cumulative effect of noise from HGVs from the proposed quarry, and the SOLquarry was considered. The Commissioners were satisfied this would not exceed50 dB, and that any adverse traffic effects would be minor, although it was not clearwhether this was at the façade or the notional boundary of potentially affecteddwellings.[96] The Objective for the rural environment would be attained, in part, throughmanaging the adverse effects of noise, and there is the broad Objective that adversenoise effects are managed to levels consistent with anticipated outcomes for thereceiving environment. That means limits on sound levels and the location andduration of noisy activities. The quarry is a daytime operation only. The Objective foran integrated traffic system under Policy 7.2.1 includes all transport modes being safeand efficient, and that they support safe, healthy and liveable communities bymaximising integration with land use. This quarry would be a high traffic generatingactivity so the Objective is to be achieved by the Policy which requires managementof adverse effects. It is also to provide patterns of development that optimise use ofthe existing transport system, and to mitigate other adverse transport effects such asthose on communities and the amenity and surrounding environment underPolicy 7.2.1.2. Described by the Court as important, Policy 7.2.2.3 reads:Policy 7.2.2.3 – Effect on adjacent land uses to the Transport Zonea. Manage the adverse effect(s) of an activity within the Transport zoneso that the effects of the activity are consistent with the amenity valuesand activity of adjacent land uses, whilst providing for the transportnetwork, in particular the strategic transport network to functionefficiently and safely.[97] The Court set out the noise issues raised by the appeal as follows:(a) what is the existing noise environment?(b) what levels of noise will be generated by HGL on-site operations?(c) what is the additive noise from HGL quarry traffic?(d) given the above, to what extent will HGL operations change theexisting noise environment and what is the effect of any change on ruralamenity?Methodology[98] The Court addressed the methodology adopted by the experts to address noiseeffects. Mr Camp said that predicted noise levels were based on a very conservativeworst-case scenario, but the Court said there was no evidence initially provided toverify the predictions contained in the Marshall Day noise report. However, the Courtsaid:[175] We consider the methodology adopted in the report to be appropriate,and generally in accordance with the provisions of NZS 6802. We accept thatthe predicted noise levels are likely to be conservative as actual numbers ofheavy vehicle movements will be less than the numbers used in the predictionsfor the majority of the time. This, however, is only one consideration in termsof overall noise effect.[99] The local noise environment is complex but "regrettably" the expert evidencedid not allow the Court to easily understand the significance of the effect of change tothe noise environment arising from the HGL quarry operations, and the effect ofchange was fundamental to its Decision and the focus of its evaluation.[100] The experts did not always specify the measuring points used which the Courtfound "most unhelpful when evaluating their evidence." The Court used the notionalboundary of existing dwellings, not the facade. However, it understood there to bea concurrence between the District Plan and the noise experts that 50 dB at a notionaldwelling's boundary would be reasonable and not give rise to effects of concern, nomore than minor adverse effects. Generally, the Court agreed, subject toconsideration of the cumulative effects of different sources of noise.[101] The Court discussed the present 'ambient noise' using the noise reportdefinition:[182] As is evident from the residents' description of their receivingenvironment, the expert evidence and from our site visit, this rural area hasmultiple sources of noise. Apart from the quarries, other noise sources includenon-quarry light and heavy vehicles on Conservators, Savills and guys Roads,distant industrial noise, distant traffic noise (primarily Pound Rd), light, jetand turboprop aircraft from the airport in the air and on the ground andhelicopters.[102] The Court heard expert and lay evidence, made a site visit, and recognised thatthe rural area has multiple sources of noise. The ambient noise levels in theConservators Road/Savills Road area are close to, or exceed, the 50 dB levelanticipated in the District Plan for significant periods during the day, withoutcontribution from the proposed quarry. With traffic noise included, the existingambient level could be 55 dB on Conservators Road, and at the southern boundary of15-25 Savills Road, including SOL, likely to be at least 55 dB, possibly 58 dB – 63 dB,depending on which noise expert is correct.[103] Noise from the on-site operation of HGL was found to be reasonable.The additive noise from HGL Quarry traffic[104] Traffic volumes will approximately double on Savills Road, and Mr Camppredicts a 3 dB increase there, and similar at 40 Conservators Road. The Courtconsidered actual noise levels would likely be less as the number of HGV movementswould be fewer than that predicted for most of the time, but the Court said that this "isonly one consideration in terms of overall noise effect". It found the local noiseenvironment to be "complex" and while the experts were in general agreement, theyappeared to differ on noise levels at the notional boundaries of 15 and 25 Savills Road.The Court preferred Mr Camp's 3 dB increase generally.[105] Of consequence, the Court said that while regrettable, the expert evidence wasnot presented in a way that enabled it to easily understand the significance of the effectof change to the noise environment that would result from the HGL quarry and theeffect of change is fundamental to its Decision and the focus of its evaluation.Change to existing noise environment – effect on rural amenity[106] The notional boundary of a residential dwelling was held to be the measuringpoint for assessment as the District Plan Standard is based on that. The Court foundthat the experts did not always specify the measuring points used which was "mostunhelpful". The existing ambient noise levels at the locality of theConservators/Savills/Guy Road intersection are at or above District Plan Standards,so the experts agreed.[107] The Court said the key issue, based on the consensus between experts, was notwhether HGL would comply with the Noise Standard in the Plan at the notionalboundary of the neighbouring residential dwellings, but whether HGL noise with allnoise sources changes the ambient noise levels, and the effect on amenity of any suchchange. Then, the characteristics of noise from heavy vehicles had to be considered,and whether in combination with the increased volume (number) of vehicles on theroad this would have an effect on existing rural amenity.[108] Mr Camp said there were no Rules that apply to traffic noise, so he looked atthe effects of traffic noise by addressing the change in the existing traffic noiseenvironment, and ignored where the noise is measured, because the effect of trafficnoise will be a function of the increase in traffic, more or less, which would result ina "minor change" in noise levels. Because the ambient noise level means people arelikely to use their residential properties outside away from the road, and other activitiesnearest the road, then if the noise associated with quarry vehicles does not exceed55 dB at the facade dwellings during peak hour, the effects would be only minor. Theaverage levels will remain below 50 dB and at peak hours below 55 dB. So, the noiseeffects from HGVs would be minor for the 15 and 25 Savills Road dwellings, west ofFrews Quarry.[109] Overall traffic noise levels would remain below accepted guidance on trafficnoise such as NZS 6806:2010, Acoustics – Road Traffic Noise – New and AlteredRoads. Mr Camp said, however, that this Standard does not apply to smaller roadslike Savills Road and "So we just accept that traffic can be a bit noisier without havingthe same adverse effect than in a quarry (sic)". The Court noted this. While therewould likely be a noticeable increase in traffic on the local road network, Mr Campwas satisfied the change in traffic noise level would be acceptable and the residentswould not be adversely affected.[110] The Court then brought to account Rule 6.1.5.2.1 which reads:Any activity that generates noise shall meet a noise limit of 50 dB in "All ruralzones, except Quarry Rural Zone, assessed at any point within a notionalboundary" between 7 a.m. and 10 pm.[111] This was offered by HGL as a condition for on-site quarrying operations at thenotional boundary of existing dwellings.[112] Rule 6.1.4.2(a)(i) provides that these noise limits do not apply to traffic noisewithin a Transport Zone, which includes roads. Rule 6.1.4.2(a) requires that noise beassessed in accordance with NZS 6802:2008 "Acoustics – environmental noise –except the provisions in NZS 6802 referring to special audible characteristics will notbe applied". Advice Note One, however, provides that although these noise sourcesare exempted from meeting the Rules, any potential and actual adverse effect shouldbe considered for any discretionary and non-complying activity and Policy 7.2.2.3(a)is relevant:(a) Manage the adverse effect(s) of an activity within the Transport Zoneso that the effects of the activity are consistent with the amenity,values and activity of adjacent land uses, whilst providing for thetransport network, in particular the strategic transport network tofunction efficiently and safely.[113] Notwithstanding Rule 6.1.4.2(a)(i), the Court said it was required to considerthe effects of traffic noise as part of its assessment under ss 104(1)(a) and 104(1)(b)of the Act. Mr Camp referred to the noise report which concluded that a noise limit of50 dB at existing dwellings is appropriate to ensure no more than minor adverseeffects, being the residential amenity value recommended by the World HealthOrganisation and 5 dB below the upper day time limit recommended by NZS 6802.Dr Trevathan said that having considered the source, nature and level of the noise, theeffects would be "no more than minor" at a level of 50 dB. The Court generally agreedthat such level at the boundary would not give rise to effects of concern, subject toconsideration of the cumulative effects of noise.[114] It is important to understand the Court's reasoning in full, as follows:[205] As set out above the applicable noise limit for the zone is 50 dB at thenotional boundary of existing dwellings. This is less than the "generally notto be exceeded" guideline value of 55 dB in NZS 6802 as a "guideline for thereasonable protection of health and amenity associated with the use of landfor residential purposes". We note that section 8.6.1 of the Standardidentifies that " communities may wish to make these more or less stringentto suit their particular circumstances". This indicates to us that whenconsidering the anticipated noise outcome in the context of "the function,character and amenity values of the rural environment" referred to inobjective 17.2.1.1(a)(i), there is an expectation that noise levels in the localityare sufficiently important to require them to be managed at a level of 5 dB lessthan that recommended in the relevant New Zealand Standard.[206] We accept the evidence of both noise experts that noise from theon-site operations considered both individually and cumulatively withthe SOL and Frews quarries, can comply with the relevant district plan, withtwo exceptions, which we do not consider will result in adverse effects onsensitive receivers. The exceedances of noise limits at the site boundary(at the site access and on land to the south of the site) are not material to ourdecision. However, the evidence is that the proposed quarry will increaseambient sound levels to some extent.[207] In terms of the wider environment, the proposed quarry will introducenew noise sources into the local environment which, while not beingunreasonable in themselves, will add to existing noise and detract fromexisting amenity values. Taking an holistic view, the existing residentialproperties within a few hundred metres of theSavills/Guys/Conservators Road intersection will be affected by noise frommost points of the compass, with some sources having different characteristicsto other existing noise sources in the locality.[208] We explored the significance of a 3 dB increase in traffic noise levelswith Mr Camp. He said that a 2 or 3 dB change was minor but that 5 dB isnoticeable. We are aware that this is a subjective matter, where different noiseexperts can have different views, and that from our own experience, a changein noise of less than 3 dB is imperceptible to most people, but that a change of3 to 5 dB is usually noticeable. For the purposes of our determinations, wehave considered a 3 dB change will be noticeable to most people. The factthat noise is audible or even noticeable does not mean the effect of noise isnecessarily adverse. Whether it is adverse in this case requires carefulconsideration of its characteristics and overall cumulative effect.[209] The permitted noise standard in the District Plan provides guidanceon the noise setting within the rural environment. Give this, we foundMr Camp's evidence that " we just accept that traffic can be a bit noisierwithout having the same adverse effect than in a quarry" to be of littleassistance. It is clear to us that future cumulative noise levels at the notionalboundaries of some dwellings affected by HGL traffic noise will, at times, bein excess of the District Plan standard and could reach 55 dB at the dwellingfacades based on the evidence of Dr Trevathan.[115] Then, important to this judgment, the Court said:[208] We explored the significance of a 3 dB increase in traffic noise levelswith Mr Camp. He said that a 2 or 3 dB change was minor but that 5 dB isnoticeable. We are aware that this is a subjective matter, where different noiseexperts can have different views, and that from our own experience, a changein noise of less than 3 dB is imperceptible to most people, but that a change of3 to 5 dB is usually noticeable. For the purposes of our determinations, wehave considered a 3 dB change will be noticeable to most people. The factthat noise is audible or even noticeable does not mean the effect of noise isnecessarily adverse. Whether it is adverse in this case requires carefulconsideration of its characteristics and overall cumulative effect.[116] Then the Court expressed an inherent reservation about the predicted levels ofnoise as follows:[210] While we were told the predicted levels are unlikely to be reached,there is nothing in the application or the proposed conditions to prevent this.These noise levels could occur at any time over the next 30 years, meaningthere is no certainty as to when they will occur or for how long at a time. Theproximity of the properties at 15 and 25 Savills Rd to its intersection withGuys Rd and Conservators Rd, and to the entrance to Frews Quarry, will resultin a distinctly different noise environment in terms of noise characteristicsfrom accelerating and decelerating trucks compared to the noise environmentnow.[117] The Court was required to consider the effects of traffic noise against ss104(1)(a) and (b) of the Act, and it made this fine-grained analysis of the evidence:[211] We are satisfied from the evidence that the increase in noise will benoticeable and will have an adverse effect on local residents, particularly thenoise from increased heavy vehicles. This noise will not be experienced as adistant hum that fades into the background, as in the case of traffic on PoundRd for example, but will occur in very close proximity to, at least, two existingdwellings in particular, and will be noticeable by people moving about andoccupying the area in general. The noise will be variable as a result of the needto decelerate and accelerate into and out of the Savills/Guys/Conservators Rdintersection, meaning it will be less likely to be perceived as part of thebackground noise. We could not satisfy ourselves that the noise measurementsincluded deceleration and acceleration of heavy goods vehicles or even thatexperts had turned their minds to the potential that traffic noise would havethis characteristic.[212] We consider these effects will be significant in terms of any remainingrural amenity, particular when the effects of increased traffic numbersthemselves are taken into account, and will not maintain aural amenity of thearea, and is a matter to which we give significant weight.[118] Also of importance to this judgment:[213] We have noted that the noise environment in the locality of theHarewood Gravels sit is relatively complex, with a number of differentexisting noise sources, some of which have only been introduced within thelast five or so years. Noise is perceived and responded to differently bydifferent people and can be affected significantly by wind direction.Predictions as to the effects of noise are often made by experts based solelyon compliance with a specified noise limit from which consideration of trafficnoise is sometimes excluded, with no guidelines for assessing traffic noise inthis proceeding. There is often little if any consideration of the effects of noisecharacteristics or variability, as in this case.[214] We found the scant information provided in the applicant's originalnoise evidence and Mr Camp's reliance on documents that were not before uswas frustrating. In saying that he may have been briefed on the basis that hisnoise assessment was accepted by the residents (or at least they were notcalling opposing evidence). Even so, there still needs to be a sufficientevidential context so that the court may understand the basis for and anysignificance of the noise predictions (emphasis added).Dust[119] The Commissioners found that adverse dust effects could be adequatelyavoided and mitigated.[120] The Court addressed a preliminary legal issue as to whether, as a matter ofjurisdiction, it can consider the amenity effects of dust on an application for a land useconsent. HGL says the effects of dust were comprehensively addressed in the airdischarge permit granted by the Regional Council, and that was not appealed, so theeffect of dust on air quality was not for the Environment Court.[121] Dust gives rise to a range of effects, not just contaminants, which may have adeleterious effect on human health and the amenity associated with clean air. TheCouncil submitted, and the Court agreed, that there is overlapping jurisdiction underthe RMA as to the effects of dust. Section 31 RMA provides jurisdiction to managethe effects of dust on amenity, both visual and nuisance, a significant issue in this case.[122] The territorial authority has jurisdiction under s 31 RMA to address the effectsof emissions from the use and development of land and associated natural and physicalresources, aside from their quality as a contaminant. The Court was not, however,concerned with the discharge of contaminants as such. "Contaminant" for RegionalCouncil purposes, includes:16 any substance (including gases, odorous compounds, liquids, solids, andmicro-organisms) or energy (excluding noise) or heat, that either by itself orin combination with the same, similar, or other substances, energy, or heat –(a) When discharged into water, changes or is likely to change thephysical, chemical, or biological condition of water; or(b) When discharged onto or into land or into air, changes or is likely tochange the physical, chemical, or biological condition of the land orair onto or into which it is discharged.[123] The Court found no binding authority as to the effects of dust being or notbeing brought to account on a land use consent application, other than as acontaminant. The Commissioners imposed conditions on the land use consent toaddress the amenity effect of dust emissions, and this was not appealed by HGL. TheCourt saw no jurisdictional barrier to its consideration of the effects of dust and I agreethere is none. There is plainly overlapping jurisdiction and to put aside dust effectsbecause they are addressed as contaminants, for different purposes, is not a credibleproposition. Dust effects relevant in this context are or may be entirely different tothose of dust as a contaminant. The Court went on to find that there was nocomprehensive description of the existing dust environment near the proposed quarry,so there was not sufficient evidence to establish the background level of dust.16 Canterbury Land and Water Regional Plan, vol 1, at 36.[124] The Court considered expert evidence before it turned to the evidence of theresidents in the receiving environment. It treated the latter, as to existing amenity, assubjective, before saying that for expert evidence to be persuasive, the levels ofbackground dust, the effect on amenity relative to background levels, and the change(if any) in dust emissions brought about by the proposal must be brought to account.[125] Mr Chilton gave expert evidence for HGL about the main sources of dust andits generic effects, without providing locality-specific detail, but set out the results ofqualitative assessment of frequency, intensity, duration, offensiveness and locationof dust effects, with six sensitive receivers with potential to be exposed to higherfrequency and duration dust events. This evidence did not refer to the residents'description of the level and effects of dust. Mr Chilton concluded that, withconditions, the adverse effects on air quality would be "no more than minor" andcumulative effects would be the same.[126] Mr McCauley, the principal consents planner for the Council, addressedcumulative effects, and setback distances, and concluded that the shelterbelts andbunds conditioned by the consent were adequate as a wider dust mitigation response,and the effects of dust discharge were primarily those of nuisance. The respirableparticle matter from the discharge site would generally have negligible effect, but it isotherwise generally impossible for a quarry site to internalise dust so some sort of"acceptable" level of impact will occur. He said the proposed conditions of consentwere the best practicable option.[127] The Court was critical of the scope of this evidence.[230] We record that neither the assessment of effects on the environment,nor the evidence of the applicant or the respondent, provides a comprehensivedescription of existing dust environment near the proposed HGL quarry.We do not consider the identification of sensitive receptors (i.e. residents) andsources of dust in the locality sufficient I this case to establish the backgroundlevel of dust.[231] Second, we were left with considerable uncertainty as to the time thatwill be required to rehabilitate each stage after quarrying is completed.Condition 11 of ECan consent CRC 15162 requires that "[c]leanfill shall bedeposited to ensure there is, in total, not less than three metres of clean filland/or undisturbed material above the highest recorded groundwater levelbefore rehabilitation commences". In response to questions from the court,Mr Dixon, the General Manager of Isaac Construction Ltd, a partner in thisventure, stated that the time required to place clean fill in each stage would be"entirely down to demand". He acknowledged he did not know how long itwould take but could be "a year or six months" or it could take ten years.In contrast, Mr Francis, a Director of Harewood Gravels Ltd, said that " theunknown factor for us is how much cleanfill will be coming back tothe quarry" and that a period of six months to two years might be needed tocleanfill a stage.[128] The Court was left uncertain about the time required to rehabilitate each stageof operations after quarrying. It would depend on the demand for aggregate, verymuch a guess between months and years. There could be up to 12 hectares of exposedearthworks and the Court considered the possibility that five to ten hectares would bein that state for extended periods of times:[237] Fourth, the dust control measures proposed for the HGL site areparticularly important in terms of our assessment of effects on theenvironment. A range of measures was proposed by the applicant at the timeof application and, as the application process has progressed, significantfurther controls were either required by the City Council hearingcommissioners or offered by the applicant, including:(a) the 150m of the access road nearest to Conservators Rd will be sealed;(b) a vehicle speed limit of 15 km/hour will apply on unsealed traffickedroutes within the site and they will be sprayed with water as necessary,using a water cart kept permanently on site;(c) the mobile crusher will be located no closer than either 250m or 500mto the curtilages of residential properties on Conservators Rd subjectto our findings on the health risk of respirable silica;(d) an automated water sprinkler system will apply water to all exposedsoil surfaces located within 250m of any dwelling beyond the propertyboundary under specified hydrological conditions when there wouldbe an increased risk of dust affecting residential properties; and(e) all activities (except dust mitigation measures) will be ceased within250m of an inhabited dwelling not on the site in the event thatmonitored dust concentrations exceed defined trigger levels.[129] The experts did not, it seemed to the Court, engage with the residents' evidenceor perspective that their amenity is adversely impacted by quarrying activity already.The baseline environment was not established. A desktop analysis was made at twodwellings between 70m and 217m from the site. The Court said it was important thatthe expert evidence addressed whether the residents' experience of dust was "normal",and there was no suggestion they exaggerated when they described dust billowing upfrom the quarries in a northwest wind, plumes of dust behind trucks, snow like depositsof dust on pine trees adjacent to quarries, gritty deposits inside household cupboards,and the frequent soiling of clean surfaces, cars, window ledges and washing.It recognised the expert prediction that at two nearby dwellings the dust effects wouldbe no more than minor, and that the dust from two other quarries was not contributingappreciably to background dust levels, but said:[247] We are satisfied from the residents' evidence that there has been amarked increase in dust, including dust on roads, following the developmentof quarrying. We assume the receiving environment has changed even thoughthe existing quarries are assumed to be complying with conditions of theirresource consent. What we do not know is the experts' opinions on whetherthis is the level of emission anticipated in a receiving environment wherequarrying activity is taking place; are these the effects of dust which, in theiropinion, are "no more than minor" and if so, will the additive dust emissionsbe acceptable for this rural environment?[248] Were there no other sources of dust emissions from quarrying in thisrea, we would be inclined to the view that the conditions as proposed to beamended by the applicant would likely maintain amenity. In saying that wehave reservations as to whether dust suppression measures are adequatelydeveloped for up to 12 hectares of earthworks. Given that there are multiplesources of dust in the area, we have reached the view that we have insufficientevidence to reach a firm conclusion on the additive effect of dust from thisproposed quarry. With large areas of exposed earthworks, it is probable thatthe residents will be exposed to a range of dust effects ranging from minor toadverse (the latter depending on wind strength and direction).Traffic[130] The Commissioners concluded that the level of HGV movements associatedwith the proposed quarry would not cause unacceptable levels of effect. Thecumulative transportation effects were assessed on the basis that all three quarries,SOL, Frews and HGL, will operate at fully consented capacity, although that isunlikely to occur.[131] The experts largely agreed that the design requirements under the City CouncilStandards were met and exceeded the provisions of NZS 4404:2010. The trafficvolumes on Conservators Road, Northern Guys Road and Savills Road, prior to SOL,Frews or HGL quarries becoming operational, were very low and the trafficenvironment was very quiet. The critical Pound Road and Staples Road intersectionis able to accommodate the maximum cumulative levels of traffic.[132] JAG gave evidence of the effects of traffic, and expert evidence was given inaddition to the joint experts' statement. In the end, the Court was satisfied that theroad upgrading required under the consent conditions meant that the future roadnetworks would meet the Council Design Standards and the requirements ofNZS 4404:2010. The safe and efficient use of the transport network would not becompromised and Policy 7.2.1.2 of the District Plan would be satisfied, as tomanagement of adverse effects on local roads from high trip generating activity.[133] The Court focused on community concerns about safety of pedestrians, cyclistsand horse riders, recognising the risks of very loose metal, but the evidence did notextend to allow the Court to assess the significance of this. Those issues seemed tothe Court inconclusive. The Court said it expected a traffic expert to be aware of theconsequences of road design choices on noise levels, particularly where the noisecould have potentially significant adverse effects on existing dwellings.[134] Expert evidence was that the primary source of noise would be braking asvehicles went from Conservators Road onto Savills Road, and from Savills Road toturn right onto Conservators Road. There would be the noise of acceleration anddeceleration, the noisiest vehicle activity, but expert evidence did not address whetherthe difference would be sufficiently significant to be noticeable or different to someonelistening to it, nor the distance at which there might be a significant change. Again, theevidence was found wanting.[135] The Court referred to a very significant increase from about 10 to about210 HGV vehicle movements per day, and at 15 to 25 Savills Road, approximatelydoubling of HGV movements affecting the two properties. At Conservators Road, thatwould increase from an average of less than one per hour to one every two to threeminutes. Those passing 15 and 25 Savills Road would increase from one every fourminutes to one every one and a half to two minutes.Vibration[136] Had it been minded to grant consent, the Court would have required furtherevidence as to vibration effects to explore whether it was possible to remediate thevibration described in evidence. There was evidence for JAG residents about vibrationfrom HGVs at Savills Road, and that evidence was preferred based on their concernthat there may be an effect on the structural integrity of their homes, and such effectswould likely increase if consent were to be granted. The Court would have requiredfurther evidence about the effects of vibration and possible remediation, so again theevidence was found wanting.Evaluation of the proposal[137] As above, the Court found the evidence fell short on quite a number of issues,precluding findings which were necessary before deciding whether consent could begranted.[138] The Court found that the proposed activity does not satisfy the first limb ofs 104D(1)(a) RMA as it was not satisfied that the effects of the proposed quarry wouldbe minor. Where the Court could properly reach a view of "additive" effect, suchwould be "more than minor", and the effect of traffic noise on residents at 15 and25 Savills Road would be significant. This is telling as a very clear finding of fact,and the evidence in the context identified fell short of what the Court required for itsjudicial deliberation.[139] It could not reach a view whether the additive dust effect would be minorwithout a baseline assessment of the existing dust environment. While HGL proffereda condition that there would be no visual dust emissions beyond the boundary ofthe site, the Court was not satisfied such would secure the required outcome. Theconditions were designed to minimise emissions, not prevent them. There would bevisible dust emissions, but the baseline was not well described enough in evidence fora judgment about the scale and significance of additive dust effects.[140] The cumulative effect on rural character and in particular visual amenity wasfound to include adverse visual effect on residents in the locality and adverse effect onvisual amenity. The 'sandwiching' of residents on Conservators Road and SavillsRoad between quarries with bunding and shelterbelts, with views into the quarries atthe access ways, and the number of HGVs entering and exiting the site, would havea moderate adverse visual effect. This is a clear factual finding.[141] The more difficult question was whether the proposed quarry in the context of300 acres consented for quarrying would maintain the rural character of the area. Thequarry is not contiguous with others, separated by the McLeans Grasslands Park.The threshold of what are acceptable/not acceptable visual effects is hard to determinewithout a study to determine the level of quarry activity acceptable within the Zoneand the Court said it did not have reliable evidence to reach a conclusion about thatand thus said:[287] Consequently, we have inadequate evidence to determine thesignificance of the additive effect on visual amenity. We record our findingsthat the issue of the cumulative effects on the rural character of the landscapewere not properly canvassed by Mr Craig whose evidence proceeded on thebasis that if no new buildings are proposed then the "generic" rural characterof the area will not change. This is regardless of the nature, scale and intensityof the cumulative quarrying activities in the area. Indeed, he saw no differencein the rural character of a quarry zone and any other rural zone because underthe District Plan quarrying can occur in both.[142] The Court turned to s 104D(1)(b) as to whether the application was contrary tothe Objectives and Policies of the District Plan. It said HGL had not discharged itspersuasive burden of providing evidence so that the Court, with any level ofconfidence, could reliably make predictions about the future dust environment andrural character. It was therefore unable to determine whether the application wascontrary to the Objectives and Policies. Again, this is telling, as the evidence fellshort of allowing the Court to determine the future dust environment and ruralcharacter and whether the appeal was contrary to the Objectives and Policies. This isproperly and necessarily addressed with reference to evidence.[143] The Court thought about requiring further evidence about dust and cumulativevisual effects, but decided against that, having considered the appeal under s 104,including the benefits of the proposal, and under s 104B. It decided that consentshould be refused because of the scale of localised effects, including but not limited toa significant adverse effect arising from road noise. Critically, the Court was notsatisfied the evidence established to the required standard that the use anddevelopment of rural land would support and maintain the amenity values of the ruralenvironment. It recognised quarrying as a rural productive activity most suitablylocated on rural land, but went on to stress the character and amenity of the receivingenvironment:[290] We recognise quarrying is a rural productive activity that is mostsuitably located on rural land. Even so, every decision-maker is to "ensure"the nature, scale and intensity of this activity recognise the character andamenity values of the receiving environment (policy 17.2.2.4). This could beachieved, in part, by ensuring an adequate separation distance between thequarrying activity and incompatible activities (policy 17.2.2.10). If separationdistance means the set-back from a sensitive activity, then a separationdistance was not proposed. Rather the applicant proffered conditions tomanage the adverse effects of dust on residents living within 250m of the site.We are not satisfied that the applicant has demonstrated that the "separationdistance" is adequate to address the cumulative effect of off-site dustemissions at least to the standard which we can conclude that the characterand amenity of the rural environment will be supported and maintained(objective 17.2.1.1(a)(i)). This finding is important in that, a related policy(17.2.2.12(a)(ii)(B)) is enabling of new quarrying outside of the Rural QuarryZone only where the activity avoids or mitigates effects on activities sensitiveto quarrying activities. And, only where the activity "manages noise,vibration, access to maintain local rural amenity values"(policy 17.2.2.12(a)(ii)(D)). We are not satisfied the proposal does achievethese provisions, and this is a finding which we give significant weight.[144] The Court considered the rehabilitation proposal and the Quarry ManagementPlan. A Draft Rehabilitation Plan was not provided but rehabilitation was addressedby a Draft Cleanfill Management Plan. The aim of HGL is to return the quarry backto productive farmland as much as possible, which was taken to mean some pastoraluse. Rehabilitation to support pastoral farming would meet Policy 17.2.2.13(a), but itwas not provided for in any proposed condition. The Court considered that a SiteRehabilitation Plan should be provided when the application for consent is lodged,under Policy 17.2.2.13(b). A Management Plan condition would be required and theCourt was not satisfied that the Policy would be achieved.[145] The Court was satisfied there would be moderate adverse visual effects on ruralcharacter and associated visual amenity. It suggested that offsetting the site entrancewith bunds may reduce that effect, but this suggestion was not taken up. Overall, thelandscape evidence did not persuade the Court that the cumulative effects would besuch that rural character and visual amenity would be maintained. It said:[303] this required a fine-grained analysis of the landscape to evaluatethe cumulative visual effect on rural character and on derived amenity valuesof what would be the seventh quarry in this locality.[146] As to noise, the Court said:[306] The evidence on existing ambient noise levels at the notionalboundaries of residential properties was unclear at best and did not providecertainty of what levels will be with the SOL and Frews quarries operating. Itis clear that it approaches or exceeds 55 dB at times and will increase byaround 3 dB as a result of the HGL quarry. The combined noise level, althoughagain unclear, could approach 60 dB at times, although not as a normalcondition. Overlapping with our findings for rural environment above, onbalance we were not satisfied that the proposal would achieve the objective of"managing the effects from the transport system" (objective 7.2.2). theweighting on this matter is adequately provided for under the ruralenvironment findings.[307] Likewise, the separate provisions addressing noise, which againoverlap with the rural environment. We have found the noise effects ofaccelerating and decelerating trucks entering and leaving theConservators/Savills/Guys Road intersection, and possibly enteringthe leaving Frews Quarry are likely to significantly affect the ability ofaffected residents to enjoy their local environment, but was not addressed inevidence by the noise experts.[309] The above effects are not at a level consistent with existing amenityvalues and adjacent land use (policy 7.2.2.3). that being the case, we find theobjective 7.2.2 is not achieved.[310] Somewhat perversely given the context of this appeal, the relevantObjective talks about the need to manage the effects of noise to "levelsconsistent with the anticipated outcomes for the receiving environment"(objective 6.1.2.1). The District Plan does not describe the outcomes eitherfor the Waimakariri rural zone or for any particular receiving environment.We have assessed the additive effect of noise relative to the receivingenvironment keeping in mind this is a rural zone and it is anticipated that, tosome extent, rural productive activities will generate noise. We specificallyconsidered the noise from the mobile crusher as residents report hearingcrusher noise in their environment. We are satisfied that if the mobile crusherwas located no closer than 250m and certainly if located at 500m, which weunderstand to be practicable, while the noise may be audible its level,frequency and duration would be acceptable within this rural environment.[311] While there are several contributing sources of noise within thereceiving environment, the additive effect is one of up to 400 HCV/d or arolling average of 250 HGV/d. This would be to take noise levels beyond thatwhich we can say that noise is being managed relative to the receivingenvironment. To this extent, the objective (6.1.2.1) is not achieved.[147] In the end, the Court found that HGL had not discharged its persuasive burdenof satisfying the Court that it had met either threshold test under s 104D. Given thescale and intensity of localised effects, particularly the significant adverse effect ofnoise, it was not satisfied this is a consentable proposal. It recognised the potentialof the proposal to contribute to the economy and wellbeing of the District, but therewas insufficient evidence to conclude the activity would support and maintain thefunction, character and amenity values of the rural environment generally. It was nottherefore satisfied the proposal promotes sustainable management of natural andphysical resources. It therefore allowed the appeal, declining the application forresource consent.D. OBSERVATIONS ABOUT THE ENVIRONMENT COURT DECISION,AND THE LAW[148] Part C to this judgment does not do full justice to the Court's reasoning but isintended to identify the intensity and detail of the Court's reasoning on the evidencebefore it. The errors alleged by the appellant, addressed under the 'Seven Questionsof Law' in Part E of this judgment, inevitably focus on selected parts of the Decision.Together they comprehend interpretation of the District Plan, the correct legalapproach to expert evidence, s 104D of the Act, and issues which are otherwiseevidential, where errors of law are alleged under well-established principles.[149] What cannot be gainsaid is that the Court reached quite a number ofconclusions adverse to the application on the facts, and on the quality or adequacy ofthe evidence, which are simply not amenable to challenge on appeal unless error isestablished as discussed under 'The Law' in this Part D. The reason this is importantis because if any error of law is established, there is in these circumstances little pointin this Court sending the appeal back to the Environment Court for reconsideration onidentified errors, to be corrected in terms of this judgment. This is addressed under'Conclusion', Part F to this judgment. As the Conclusion records, even with an erroror errors of law identified and the subject of direction by this judgment, a furtherhearing in the Environment Court would not "cure" the other obstacles to consent.From these observations, the point to be taken is that a number of findings about thequality of evidence, and other factual findings are not capable of being disturbed onthis appeal.Errors of law[150] The principles are well established for a s 299 RMA appeal, and were thesubject of a concise and helpful memorandum filed by counsel for HGL.[151] The fact-finding court must correctly understand and apply the law to the facts.Provided it has not overlooked any relevant matter or taken into account any matterwhich is irrelevant, the conclusion is for the fact-finding court, unless it is clearlyunsupportable.17[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 Baistow, 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 whichthe true and only reasonable conclusion contradicts the determination".Lord Radcliffe preferred the last of these three phases but he said that eachpropounded of the same test.[152] In Friends of Pakiri Beach v Auckland Regional Council,18 the categories oferror of law set out in Countdown Properties (Northlands) Limited v DunedinCity Council19 discussed. Three of those categories require the appeal court toconsider the evidence before the deciding Court or Tribunal. The fact that HGL referson this appeal to evidence in detail does not mean it cannot establish an error of law,but subject to the established and limited principles referred to, it is entirely for theEnvironment Court to reach conclusions on the facts and the weight to be given to anyevidence and such conclusions. On appeal, the fact that this court may have reacheda different conclusion is irrelevant.[153] The judgment of Asher J in Friends of Pakiri Beach is also instructive for itsconcise but comprehensive exposition of the specialist role of the Environment Court.His Honour referred to Salmon J in Green McCahill Properties Ltd v The AucklandRegional Council:20Mr Bartlett for the appellants warned against the danger of accepting anEnvironment Court decision just because it was an expert Tribunal. It would,of course, be inappropriate to do so. Its expertise cannot save decisions whichdo not meet the principles set out above. However, it is important to bear inmind that the Court is required constantly to make decisions relating toplanning practice, it is constantly required to assess and make decisions17 Bryson v Three Foot Six Limited [2005] NZSC 34, 3 NZLR 721.18 Friends of Pakiri Beach v Auckland Regional Council [2009] NZRMA 285 (HC).19 Countdown Properties (Northlands) Limited v Dunedin City Council [1994] NZRMA 145 at 153.20 Friend of Pakiri Beach, above n 18, at [28], quoting Green McCahill Properties Ltd v TheAuckland Regional Council, HC Auckland 4/97, 18 August 1997.relating to conflicting expert opinion. Members of the Court are able tocontribute to the formation of a judgment as a result of experience gained inother professional disciplines. These considerations and the fact that the Courtis constantly exposed to litigation arising from the application of the ResourceManagement Act, justifies the respect which this Court and the Court ofAppeal has customarily accorded its decisions.[154] In this case, the central question is whether there is evidence on which theEnvironment Court could, in terms of these principles, properly reach its Decision. Ifthere is evidence on which the Court could reach its various factual conclusions thenthat is an end to it.21[155] Mr Pizzey for the Council refers to the latitude given the Environment Courtmaking findings of fact within its own expertise.22 An error of law, if established, nolonger automatically leads to relief but only if it materially affects the Decision.23 TheHigh Court will not superimpose its evidential opinion over that of a Court withspecialist expertise, nor will it interfere with the weight the Court attached tocompeting considerations. Further, it will not usually superimpose its opinion on theapplication of planning principles to the facts of the case, nor whether the particularproposal is consistent with or contrary to the Objectives and Policies of the DistrictPlan, where that is a matter for judgment.E. SEVEN QUESTIONS OF LAW[156] Seven errors of law are alleged by HGL, formulated as questions. They relatein part to alleged interpretation errors made by the Environment Court, which HGLsays separately and cumulatively resulted in the Court declining consent. Somequestions break down into sub-questions, particularly as to noise effects.[157] The range of Objectives and Policies for the Rural Zone seeks to foster RuralProductive activities, including quarrying, and to limit the effects of those activitieswithin the zone. HGL says that the Environment Court's interpretation and applicationof the law was in error, and that the appeal:21 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC).22 Countdown Properties (Northlands) Ltd, above n 19 at 12.23 Royal Forest & Bird Protection Society Inc v WA Habgood Ltd (1987) 12 NZTPA 76 at 81. seeks to clarify the point at which the effects of a rural productive activitybecome too great for residents within the zone to absorb so as to merit thedecline of consent.[158] This is a mixed question of fact and law. The factual issues are framed by thecorrect interpretation and application of the Act and the District Plan. The review ofthe Court's Decision, Part C to this judgment, demonstrates its close factual analysisand evaluation, and its obvious and reasoned dissatisfaction with HGL's evidence inseveral important respects.First Question of Law: Did the Court err in its interpretation of the meaning of"rural character" and therefore further err in its interpretation of the evidencebefore it?Submissions for HGL[159] Mr Chapman placed emphasis on various Objectives and Policies in theDistrict Plan:3.3.1 Objective – Enabling recovery and facilitating the futureenhancement of the districta. The expedited recovery and future enhancement of Christchurch as adynamic, prosperous and internationally competitive city, in a mannerthat:i. Meets the community's immediate and longer term needs forhousing, economic development, community facilities,infrastructure, transport, and social and cultural wellbeing;andii. Fosters investment certainty; andiii. Sustains the important qualities and values of the naturalenvironment.[160] While it would not seem obviously apposite to this appeal, Mr Chapman refersto Objective 3.3.7:3.3.7 Objective – Urban growth, form and designa. A well-integrated pattern of development and infrastructure, aconsolidated urban form, and a high quality urban environment that:i. Is attractive to residents, business and visitors; andii. Has its areas of special character and amenity value identifiedand their specifically recognised values appropriatelymanaged; and[161] Mr Chapman says that in the urban area residents are "top of the pile" and thatshould be borne in mind when looking at Strategic Objectives in the rural environment.The Christchurch (Replacement) District Plan allocated no further land to quarrying,but made it a rural productive activity, discretionary in Rural Zones. Quarrying outsidethe Quarry Zone is not non-complying as such, but (to repeat) Mr Chapman submitsthere is a change in emphasis in the District Plan, that quarrying is just as much a ruralproductive activity "as sheep and beef [farming] are". He says this outcome in thePlan must be seen in the context of the quarry industry seeking an expansion ofquarrying into the 'rural productive' category.[162] The District Plan contemplates "conflicts between incompatible activities",and when such conflicts are to be avoided.3.3.14 Objective – Incompatible Activitiesa. The location of activities is controlled, primarily by zoning, tominimise conflicts between incompatible activities; andb. Conflicts between incompatible activities are avoided where theremay be significant adverse effects on the health, safety and amenityof people and communities.[163] Zoning aside, and recognising the need to avoid conflict between incompatibleactivities in these circumstances, Mr Chapman says Objective 3.3.16 is probably mostrelevant to this appeal, as it points to the 'primacy' of rural productive activities.3.3.16 Objective - A productive and diverse rural environmenta. A range of opportunities is enabled in the rural environment, primarilyfor rural productive activities, and also for other activities which usethe rural resource efficiently and contribute positively to the economy.b. The contribution of rural land to maintaining the values of the naturaland cultural environment, including Ngai Tahu values, is recognised.[164] He submits rural productive activities are "number one in terms of theObjective", being productive uses that contribute efficiently and positively tothe economy. Mr Chapman also refers to Objective 17.2.1.1:17.2.1.1 Objective – The rural environmenta. Subdivision, use and development of rural land that:i. supports, maintains and, where appropriate, enhances thefunction, character and amenity values of the ruralenvironment and, in particular, the potential contribution ofrural productive activities to the economy and wellbeingof the Christchurch District;ii. avoids significant, and remedies or mitigates other reversesensitivity effects on rural productive activities and naturalhazard mitigation works;iii. maintains a contrast to the urban environment; and [165] He submits there is a clear emphasis in the Plan that the use and developmentof rural land should support, maintain and where appropriate enhance the function,character and amenity values of the rural environment, and in particular the potentialcontribution of rural productive activities to the economy and wellbeing of theChristchurch District. There is no reference to "residential use" in the Objectives, and'amenity values' are informed by other Policies. The range of such activities isassociated with economic development:17.2.2.1 Policy – Range of activities on rural landa. Provide for the economic development potential of rural land byenabling a range of activities that:i. have a direct relationship with, or are dependent on, the ruralresource, rural productive activity or sea-based aquaculture;ii. have a functional, technical or operational necessity for a rurallocation; oriii. recognise the historic and contemporary relationship ofNgai Tahu with land and water resources; andiv. represent an efficient use of natural resources.17.2.2.2 Policy – Effects of activities utilising the rural resourcea. Ensure that activities utilising the rural resource avoid significantadverse effects on areas of important natural resources and avoid,remedy or mitigate other adverse effects on rural character andamenity values.[166] The range and variation of activity in rural areas is an important part of HGL'scase, as rural productive activities are to be recognised for effects which are noticeableto residents and visitors, in the context of rural character and amenity:17.2.2.3 Policy – Contributing elements to rural character andamenity valuesa. Recognise that rural character and amenity values vary across theChristchurch District resulting from the combination of natural andphysical resources present, including the location and extent ofestablished and permitted activities.b. Recognise that the elements that characterise an area as rural, fromwhich desired amenity is derived, include the predominance of:i. a landscape dominated by openness and vegetation;ii. significant visual separation between residential buildings onneighbouring properties;iii. where appropriate, buildings integrated into a predominantlynatural setting; andiv. natural character elements of waterways, water bodies,indigenous vegetation and natural landforms, including thecoastal environment where relevant.c. Recognise that rural productive activities in rural areas can producenoise, odour, dust and traffic consistent with a rural workingenvironment, including farming, plantation forestry and quarryingactivities, that may be noticeable to residents and visitors in ruralareas.[167] The importance of locally sourced aggregate is emphasised, but outside theRural Quarry Zone only in circumstances which are protective of certain values.17.2.2.12 Policy – Location and management of quarryingactivity and aggregate processing activitya. Enable access to, and processing of, locally sourced aggregateresources to provide for the recovery, development, ongoingmaintenance and growth needs of the district by: (emphasis added)i. providing for the continuation of quarrying activity in theRural Quarry Zone; andii. providing for new quarrying activity in rural zones other thanthe Rural Quarry Zone only where the activity:A. avoids areas of outstanding or significant landscape,ecological, cultural or historic heritage values;B. avoids or mitigates effects on activities sensitive toquarrying activities, including residential activitiesand education activities;C. internalises adverse environmental effects as far aspracticable using industry best practice andmanagement plans, including monitoringand self-reporting;D. manages noise, vibration, access and lighting tomaintain local rural amenity values;E. avoids or mitigates any effects on surface waterbodies and their margins; andF. ensures the siting and scale of buildings and visualscreening maintains local rural amenity values andcharacter.[168] These Objectives and Policies help form Mr Chapman's submission that theCourt failed to understand and apply the District Plan. The Court said the thresholdtests in s 104D had not been satisfied because HGL had not discharged its burden ofproof on the evidence, so the Court could not determine whether the application wascontrary to Objectives and Policies. Mr Chapman says the Court adopted the wrongbenchmark in assessing the evidence and if the Court had used the Objectives andPolicies to inform its views relating to rural character then HGL would have manifestlydischarged its burden of proof, as the District Plan directs decision-makers to the factthat there will (the Policy reads 'can') be adverse effects from rural productiveactivities in the Rural Zone. Mr Chapman makes a bold submission that the Courtsaid the District Plan provided no guidance about rural character, so it simply made upits own mind about that.[169] The Court said it did not find it helpful to consider the rural character of thearea by differentiating between a generic character based on built form and a specificcharacter (land use and land cover). It said:2424 At [149].We doubt attributes and characteristics of any given landscape should becompartmentalised in this way as these elements interact and inform the wholeof the landscape. Further, we could not find support for this approach underthe District Plan.[170] Mr Chapman says at that point the Court:Unbolts itself, unhinges itself from what the Plan directs it to [do], and I saythat there is plenty of guidance specifically in that one policy relating to ruralcharacter but also in policies which ensure that the rural environment is to bea contrast to the urban environment and an acknowledgement that the flat landarea surrounding Christchurch, ensuring that that flat land is available for ruralproductive activities.[171] The error of law is thus said to be the way the Court determined 'ruralcharacter', and the 'amenity' derived from it. Mr Chapman says rural character shouldhere and now reflect quarrying as a significant feature, which in turn reflects therural/urban divide, and such an interpretation is consistent with case law such asRobinson v Waitakere City Council, where the relevant planning document included adefinition of "rural character" which reflected "the overwhelming feeling of opencountryside, a sense of productive activity and of managed nature", in contrast withbuildings and structures.25 "Rural character" in the Auckland Regional PolicyStatement refers to the: 26distinctive combination of qualities which make an area "rural" rather than"urban". These include the dominance in the landscape of natural vegetationand primary production regimes and the absence or subservience of manmadestructures [172] I do not derive assistance from these references as this appeal is concerned withthe Christchurch District Plan, which has its own definitional structure. However,I recognise the submission for HGL is that they provide an example of how theelements which constitute 'rural' character contrast with what one might find in aRural Zone. If there is anything to be taken from these references, it is thatsub-paragraph (b) to Policy 17.2.2.3 specifically addresses elements which contributeto rural character from which the desired amenity is derived, which is no more thanidentifying the attractive characteristics of a rural area, which provide for desiredamenity.25 Robinson v Waitakere City Council (EnvC Auckland A002/09, 22 January 2009, at [136].26 Bell v Rodney District Council [2003] NZRMA 559 at [52].[173] As to "amenity values", he says the Court wrongly narrowed its considerationto focus on residents' amenity values and skewed the meaning of that expression inspite of evidence from HGL as to why this land is attractive for a rural productiveactivity. This is in my view a stretch of what is 'attractive' aesthetically to that whichhas 'attraction' for other reasons. He says those operating rural productive activities"are people too". When the Court referred to various elements of amenity, particularlyvisual permeability and open spaciousness, he says it wrongly narrowed its lensbecause the starting point should have been to define 'rural character' with referenceto the number of quarries in the area, and the current characteristics of the area, andin so doing the Court has not had enough regard to the District Plan.[174] Mr Chapman refers to Policy 17.2.2.12 sub-clause F and says this does notmean maintenance of local rural amenity values and character should be "pristine",but should be assessed in the environment where this quarry is to work. It is not just'one dwelling' to be recognised but the locality. Mr Chapman says that whenaddressing noise and rural amenity, the Court "concertinaed" what it regards as therural character and amenity issues, associated with the quarry, sometimes narrowlybased on a community of two or three residents, and sometimes broadly, to the area orlocality which includes all the quarries. He says that the Policies direct attention tothe overall locality, not to one particular house or group of houses, when it comesto managing noise. He submits that as quarries relocate, effects do not demonstrablychange in the wider locality.[175] He submits that the Court began its assessment and evaluation of ruralcharacter by looking at the past, not what the locality or area looked like at the time ofthe hearing. The Court recognised how quickly the character of the area had changedsince the Canterbury earthquakes, particularly by the expansion of quarries, and theimpact this has had on the rural character of the area. He says the correct starting pointis not to be found by "harking back to earlier days", when the rural character of thisarea depended on pastoral farming, shelterbelts and hedgerows which cross-hatchedthe landscape. By such thinking he says the Court over-inflated the degree of changewhich would be brought about by HGL's quarry activity, as the locality is alreadymuch changed. In short, he says the Court did not evaluate rural character as at thetime of the application, nor with appropriate reference to the Objectives and Policies.[176] In a straightforward manner, Mr Chapman says rural character is "Warts andall. It is the good, the ugly and it's the neutral", and that: " ugly forms part of ruralcharacter". As the Court noted, the Plan does not identify the attributes of thelandscape which give it its particular character and Policy 17.2.2.3, referred to above,provides guidance on rural character and amenity.27 Mr Craig gave expert evidencethat the site of the proposed HGL quarry has "abundant open space comprisingpaddocks, hedgerows, various trees", over 28 hectares, and it is "very definitely ruralin character". Any structure on the site would be placed in a predominantly naturalsetting. However, the 'naturalness' of a site depends on its degree of modification andMr Chapman says a farm is highly modified, so consideration of the "natural characterelements of waterways, water bodies, indigenous vegetation and natural landforms" isnot relevant to this site or any landscape in the district. He submits that once theelements of rural character are identified, the Policy directs that the amenity of an areais derived from those natural and physical qualities and characteristics of the area thatcontribute to people's appreciation of its pleasantness, aesthetic coherence, andcultural and recreational attributes. There is always a subjective element in evaluationbecause 'pleasantness' is the experience seen and felt in different ways by differentobservers and Mr Chapman says no one expert witness or group of such can (orshould) dominate the assessment. The Court identified the values of people andcommunities under the heading "the residents' amenity values" and the values of"people and communities" should not be confined as it gives a false impression of thearea. The Court did not bring to account the 'values' of active farmers (many of whomare not residents), quarry operators, the diverse range of rural businesses, the RegionalCouncil as a landowner in the area, and the rural community to the west ofChristchurch Airport. All these make up the "people and communities" by whomeffects will be felt in the environment, and Mr Chapman says the Court thus wronglynarrowed its lens and considered the amenity values of rural residential inhabitants inthe main.[177] Dr Taylor, who gave evidence for the residents, interviewed six households,three of whose representatives gave evidence. Mr Chapman says this produced askewed view of the expectations of all those living and working within the zone. He27 At [126].accepts that the experience of surrounding landowners is important when assessingamenity, but submits guidance must first come from the District Plan rather than thesubjective views of 'members of the public'. The Plan specifically contemplateseffects adverse to amenity such as noise, dust and traffic, which lawfully arise in therural environment, in which quarries are expressly contemplated, so that expectationmust be kept in mind. Hence, when the Court determined rural character withoutreference to these other recognised elements, Mr Chapman submits the Court fell intoerror.[178] He puts it another way. While the District Plan refers to "rural character andamenity" together, they are different. "Amenity values" are the characteristics whichcontribute to the appreciation of an area's "pleasantness", but "rural character" is notto be evaluated through "rose tinted glasses", as the adverse effects of noise, odour,dust, traffic, and quarrying, are expressly recognised in the Policy. He submits theCourt has in error "bundled together" rural character and amenity values as one, andfocused only on those elements of rural character which contribute positively towardsamenity. He refers to paragraph [153] where the Court said "the rural character" ofthe area depends on "pastoral farming, and on the shelterbelts and hedgerows whichcrosshatch the landscape." Mr Chapman says the Court has not taken into account theprevalence of gravel in this area, are the numerous other quarries in the vicinity,including those in the McLeans Island Rural Quarry zone. His submission is thatpastoral farming and shelterbelts now "live with" quarrying activities, usuallyscreened by pastured bunds, and the assessment of rural character and from that,amenity, must bring to account the environment as it is, not what people, in particularthe residents, wish it to be, or how it was before quarrying was established. He putsit neatly this way:The Court's idyllic view of pastoral farming and shelterbelts does not takeinto account these effects which are legitimately arising from authorisedactivities in the area.[179] The result is that the Court focused on a group of residents rather than the muchbroader matrix of "peoples and communities" which the Plan envisages andMr Chapman says the Court did not give credence to anyone other than the residentsin determining amenity value. For example, the evidence of Mr Francis is relevant asto the difficulty in finding a site in Christchurch suitable for rural productive activity,as is the evidence of Mr Craig as to all the other persons and activities in the area,including quarries, golf clubs, and Ready Lawn, all of which are part of rural amenity.Mr Chapman submits that while the Court referred to "communities" it did not bringthis broader community to account.[180] In short, Mr Chapman submits that the Court made an error of law wheninterpreting "rural character", and therefore in its evaluation of the evidence. Hesubmits that the correct interpretation of "rural character" and "amenity" is to be foundby first recognising Policy 17.2.2.3, and the express recognition of variation in ruralcharacter and amenity values across the Christchurch District which derives from acombination of natural and physical resources and established and permitted(including consented) activities. There is no "one size fits all" approach todetermining rural character and Mr Chapman says that the variation is the product ofthe resources present in any given area. He submits sub-paragraph (b) of Policy17.2.2.3 means that the desired amenity comes from elements which characterise anarea as rural, and this in turn is derived from the predominance of the elements listed,and these qualities overall reflect the "inherent difference" between rural and urbanareas. Sub-paragraph (c) recognises that in the rural working environment, includingquarrying sites, there may be effects noticeable to neighbours and visitors, in that ruralarea, and this makes it clear that there are effects which "may be noticeable". Thatmeans they should be "lived with", given the express recognition of rural productiveactivities in the Rural Zone.Submissions for the Christchurch City Council[181] Mr Pizzey responds to the HGL submission that the Court bundled togetherand equated rural character and 'positive' amenity, and wrongly considered only theamenity values of rural residential inhabitants, and not, for example, business owners.He says that the Court reflected on the evidence it heard and simply described thatevidence rather than fell into an error of law as Mr Chapman submits. HGL did notcall evidence of the amenity values as experienced, for example, by business owners,including quarry operators, so Mr Pizzey says this first question alleges error of lawwithout evidential foundation, and has instead been raised as a submission. That isnot of course fatal in itself to establishing error of law.[182] HGL also says that the Court erred in saying the District Plan does not identifyattributes of the landscape which give this area its particular character, when thoseattributes are set out in Policy 17.2.2.3. Mr Pizzey responds that the Court's steppedassessment of "values" was not to assess rural character 'per se'. When it referred to"the area" it was talking about that in which the residents live, before it referredto Policy 17.2.2.3 as relevant to rural characteristics and amenity values at a generallevel.[183] The notice of appeal pleads that the Court disregarded the evidence and thegeophysical attributes provided for in the District Plan in coming to its understandingof rural character, and it did not assess the Plan's provisions which relate to landscapecharacter. Mr Pizzey says, to the contrary, that the Court began by looking at theoverall planning context, the Objectives, Policies and Strategy, and only then did itturn to the Rural Zone Objectives and Policies when considering whether HGL haddischarged its persuasive burden of establishing the activity was not contrary to thoseObjectives and Policies.[184] Through its reasoning in paras [29]-[33], [45]-[49], [284]-[290] of the DecisionMr Pizzey says the Court did exactly what HGL says it did not. The ruralcharacteristics set out in Policy 17.2.2.3(b) simply provide a framework for factualassessment, not a definition, and the Court had to recognise these characteristics,without having to give effect to or achieve them, rather giving them weight as it sawfit. Mr Pizzey says that HGL is saying that the Court did not give the factors recordedin the Policy as much weight as HGL thinks it should have done and that is a meritsbased argument, not an error of law.Submissions for JAG[185] Mr Christensen agrees with the submissions for the Council by Mr Pizzey.He submits that HGL seems to suggest the Court was describing the rural parts of theCanterbury Plains in general at para [153] of its Decision, but that is wrong becausethere it was plainly discussing the area around the proposed quarry and around theresidents' properties. Further, the Court manifestly did not simply focus on thoseparts of rural character which contribute positively towards amenity. He points outthe Court made this plain at para [152] of its Decision when it said it would expect thequality of the landscape, including that modified by farming activity, to contribute topeople's appreciation of its pleasantness, or coherence, even though rural productiveactivities can have effects which may be considered adverse.[186] Mr Christensen says the Court has no 'gilded view' of pastoral farming andshelterbelts, but instead expressly recognised the existence of quarries and theireffects, and that they are already impacting on rural character and amenity. He doesnot quite put it this way, but he is close to saying that HGL seems to suggest there isno threshold above which additional effects from new quarrying would beunacceptable, because quarrying is a productive rural activity and therefore consistentwith the amenity and character of the rural area in general, and this part in particular.If that is right, the entire Rural Zone could become a quarry, or a series of quarries,and he submits with the force of logic that cannot be the intention of the Plan. Outsidethe Rural Quarry Zone, quarrying is a discretionary activity, and non-complying inthis case. Mr Christensen submits the entire Rural Zone cannot become a "de factoquarry zone". I consider this submission is correct as a matter of principle. The Planmakes it plain that it is not such.Discussion[187] I do not find the Court erred in its interpretation of rural character and amenityvalues under the Plan as a matter of law so as to err in evaluation of the evidence, nordiscretely in that evaluation. The Plan recognises a range and variation in ruralcharacter and amenity values, based on natural and physical resources, and the locationand extent of established and permitted activity. It recognises contributing elementsto rural character and amenity values. There is however still such a thing as ruralcharacter across this range and variation, in openness, vegetation and separation.These qualities or characteristics are not made redundant by the scale and proximityof effects established and consented but not otherwise permitted in the Rural Zone.The reality is that effects derive from the overall natural, modified and workingenvironment. They are part of the "to be expected" mix and some effects may be'noticeable' to residents and visitors. They 'go with the territory' but they do so in thecontext of the Policy which marks out that rural character is a desired amenity, not'Arcadian', but not (yet) lost to the erosive effects of other activities which are locatedin and to be expected in such zones and they are now expected to locate, at all costs.The Court has made no error of law in its recognition of this and placed no undueemphasis on these 'traditionally' rural qualities. Indeed, it made a balanced andthorough appraisal of the area's complex rural character, including effects less thanArcadian. The Plan does not require that outcomes and effects of rural productiveactivities must predominate so as to dictate the Court's consideration of rural characterfor those who live there. Quarrying is after all a discretionary activity in the RuralZones. It must, however, recognise that the District Plan provides that, up to a point,adverse effects of rural productive activities will be felt.[188] I agree with Mr Christensen that the Court has not taken a pre-quarry Arcadianstarting point, but clearly and expressly considered the environment at the date of thehearing. The receiving environment is described throughout the Decision as includingthe existing quarries. The District Plan does not identify characteristics which givethis area its particular character, but rather characteristics of rural areas generally, andthat is why the Court undertook a comprehensive assessment of the rural landscape.As it said:28This necessarily entails a comprehensive assessment of the existing landscapeand so we turn next to the evidence of the landscape experts.[189] There is thus no error of law as this First Question alleges. The Courtrecognised the discretionary nature of quarrying in the Rural Zone, and the variationin the landscape and activity components for assessment of rural character andamenity. The HGL submission is in effect that the rural character and amenity ismodified to a degree that means these elements which characterise an area is rural,from which desired amenity is derived, have been lost. The District Plan says no suchthing. These elements go with others derived from the natural and physical resources,together with the location and extent of established and permitted activities. Residentshere live with sometimes noticeable adverse effects of rural productive activities, but28 At [128].as I have found, and as the District Plan makes clear, not at all costs. This was adifficult evaluative exercise which the Court in my judgment addressed correctly inlaw, and there is no error disclosed in this First Question.Second Question of Law: Did the Court incorrectly apply the District Plan Rules asthey relate to noise, to apply to noise from traffic on a public road?Submissions for HGL[190] Ms Appleyard explains that this question is one part of several alleged errorsof law as to noise, in conjunction with Question six. It breaks down into the sixsub-questions addressed after the Discussion section of Question Six.[191] HGL accepts that traffic noise from public roads may be brought to account inthe assessment of effects, but says the Court went too far, and incorrectly appliedDistrict Plan Rules as they relate to traffic noise within the Transport Zone, which isquite separate from the Rural Zone. The exclusion of such traffic noise fromconsideration under Rule 6.1.4.2 is because even quiet roads often experience noiselevels which exceed those in the adjacent zone, particularly as they affect houses closeto the road boundary.[192] This application of the Rules in the Transport Zone is submitted to be in error,either in bringing to account an irrelevant factor, or misinterpreting the Plan.[193] Dr Trevathan gave evidence that before quarrying was established in theimmediate area, the noise of traffic would have been 58 dB at the houses closest tothe Conservators/Savills Road corner. Acoustic engineers say that traditionallyoperational and traffic noise involve different acoustic assessment frameworks. The50 dB limit imposed on activities within the Rural Zone was contrasted by the Courtwith the 55 dB guideline in the New Zealand Standard. The Court concluded that theanticipated noise outcome in the context of the values described inObjective 17.2.1.1(a)(i) (the function, character, and amenity values in the ruralenvironment) means that noise levels must be managed to a level less than thatrecommended in the Standard. The 50 dB limit in the Rural Zone is already exceededby local traffic on the road, so the Court thought any exceedance of 50 dB isinconsistent with expectations in the District Plan, and contrary to the specificexclusion of traffic noise in Transport Zones.[194] HGL's submission is that the Court incorrectly and "unrealistically" drew onthe Rural Zone noise limits from those of vehicles travelling on public roads in theTransport Zone, and thereby conflated the magnitude of change in noise levels beyondthe expectations of the District Plan. Ms Appleyard says this means a precedent hasbeen created for activity involving increased traffic movements by reference toa neighbouring zone's noise Rules. This is not of precedent effect. It is a question ofwhether such are relevant in any given case.Submissions for the Council[195] Mr Pizzey's response is that the Court did not apply the District Plan Rules fornoise from traffic on a public road, rather the Court demonstrably understood thedistinction between Rules and effects. He submits that HGL misconstrues the Court'sreasoning, in particular the distinction between Rules and effects, which can properlybe considered. Put simply, he says the key issue is whether the Court was entitled tohave regard to the noise effects of road traffic, and submits that it was so entitled.[196] Mr Pizzey says the Court properly considered the extent to which HGL's onsiteoperations and vehicle movements would change the existing noise environment, thenthe effect of any such change on rural amenity. The Court heard expert evidence andaccepted that noise from onsite HGL activity would not result in a breach of noiseRules (with two exceptions which do not affect sensitive receivers), and plainlyaccepted that noise limits in the Rules do not apply to roads so as to dictate theconclusion. He submits the Court was entitled to have regard to adverse effects fromwhatever source, including the noise of traffic generated by the proposed activity. Thefact that limits apply or do not elsewhere is no bar to considering the effects of noisefrom that source. It is conceivable that a Plan could prevent a decision-makerconsidering effects from any particular source, but this Plan does not do so. He saysthe opposite is the case as Advice Note One states that the adverse effects of noise oftraffic on roads is relevant when considering discretionary and non-complyingactivities. The Advice Note makes it clear that there is no legal constraint whenconsidering noise effects and all effects of the proposed activity are relevantwhen considering discretionary and non-complying activities. The Court referred tothe Advice Note, and Mr Pizzey says that cannot be an error of law, as the Advice Noteis relevant to the Plan's interpretation.[197] Mr Pizzey submits that Policy 7.2.2.3(a), which the Court referred to as beingrelevant to its consideration of effects, is directed to management of adverse effects ofactivity within the Transport Zone, to ensure consistency with amenity values andactivity of adjacent land uses, while providing for the transport network to functionefficiently and safely. That too he submits is relevant, and does not mean noise Ruleswere simply being applied to HGL's activities on the roads. The Court was concernedwith the effects which HGL-generated activity would have on the existingenvironment, and that includes the noise of traffic on roads.[198] Counsel says the Court stepped through a sequence of reasons and the startingpoint was consideration of the level of noise that could reasonably be expected in thereceiving environment. It was entitled to use Rules in the District Plan to guidethe assessment of effects, and it did not apply the Rule as a limit. The District PlanRule for noise in the Rural Zone is 50 dB, and NZS 6806 relates to noise from roads.The 'generally not to be exceeded' guideline of 55 dB is not the noise from roads. TheCourt said that because the District Plan sets a permitted noise standard of 5 dB belowthe Standard for this zone, that indicates values which the District Plan is seeking toprotect. Objective 17.2.1.1(a)(i) seeks to support and maintain the function, characterand amenity values of the rural environment and there is an expectation that the noiselevels in the locality are sufficiently important to require them to be managed at a levelof 5 dB less than recommended in NZS 6806.[199] Mr Pizzey thus says the Court did not make the error alleged, as the Rule is aguide to the rural environment which the District Plan seeks to maintain. The Courtthought this was a necessary consideration because the Objectives and Policies do notstate the outcomes sought for Rural Zones, leaving it to the Rules to drive outcomesfor different Rural Zones. That approach reflects the specialist expertise of the Court,and it is not for the High Court to upset on appeal.Submissions for JAG[200] The JAG residents adopt the submissions for the Council and say that the Courtlooked for the outcomes sought for Rural Zones, as the Objectives and Policies do notprovide these. The noise Rule of 50 dB is based on values which the District Plandirects should be maintained, a measure which the Court recognised as less than theNew Zealand Standard. Mr Christensen also says the Court did not simply take thenoise level from the Transport Zone and apply it, but was entitled to have regard to it.The Court nowhere said the Rural Zone noise standard has to apply to traffic noise,nor did the Court think it was simply applying the Rule, but found what it considersto be an acceptable noise level at houses in the Rural Zone. The Court was focusedon the sort of amenity anticipated in the Rural Zone.[201] The permitted noise standard in the District Plan simply provides guidance inthe rural environment, so when Mr Camp said that 'his' experts accepted traffic canbe a "bit noisier" without having the same adverse effect as a quarry, that was of littleassistance. Future cumulative noise levels at the notional boundaries of somedwellings affected by HGL traffic noise would at times be in excess of the Standardand could reach 55 dB at some dwelling facades, based on the evidence ofDr Trevathan. Mr Christensen says the local area is subject to high levels of noise,higher than the District Plan provides as permitted levels, and this is relevant tocumulative effects, the capacity of the receiving environment, and the availableamenity to 'absorb' the additional noise.Discussion[202] HGL's submission on the second question of law seeks to isolate the referencein the Plan to noise within the Transport Zone, and to say the Court simply and wronglyapplied it. However, in submissions HGL counsel explained that it was not submittingthat it was irrelevant to consider Rules applicable to the Transport Zone in the contextof effects in a neighbouring zone. As the argument developed the relevance andapplication of Rules in relation to noise in the Transport Zone is submitted to havebeen misplaced, so as to constitute an error of law. However, nowhere in thesubmissions, nor in the Court's Decision, does the reference to the Rules applicable inthe Transport Zone miscarry for the purpose of this second question. Rather, the Courtbrought the Rules to account as relevant, and I do not read the Court's Decision asgoing further than that. The Court's reference to the Rules was simply part of itsevidential evaluation of cumulative noise and its effect on amenity. That was for theCourt to weigh up. It did not dictate the Court's Decision. The second error of law isnot made out.Third Question of Law: Did the Court impose a requirement on evidence of expertswhich went beyond the role of an expert, assessing the effects of a proposal?Submissions for HGL[203] Mr Chapman says that this question is directed to the Court's approach tolandscape issues, and to a lesser extent the effects of dust on amenity. It relates to theCourt's criticism of expert witnesses in their approach to the evaluation of landscape.It crosses with aspects of Question One.[204] Mr Chapman begins with the Court's statement that the District Plan does notidentify the attributes of the landscape which give this area its particular character.29That is submitted to be at odds with the evidence of Mr Craig and Ms Smetham whoanalysed the District Plan by reference to Rules which are designed to protect openspace, and put limitations on the built environment and activities that the District Plancontemplates in the Rural Zone, together with Objectives and Policies which influencelandscape outcomes in the zone. Mr Chapman submits that the Court instead beganwith a blank slate to assess landscape and rural character, whereas Mr Craig andMs Smetham approached the issue correctly constrained by the District Plan.[205] Mr Chapman submits Objective 17.2.1.1(a)(i),(ii),(iii) and Policies 17.2.2.1,17.2.2.3(a),(b),(c), and 17.2.2.12 have application, and articulate functional aspects ofthe Rural Zone, its contrast with the urban environment, and the varied nature of thezone. The Objectives and Policies are generally listed in a sequence from 'broad' to'specific', and Objective 17.2.1.1, the first listed, is to enhance the function, characterand amenity values of the rural environment, and reinforce the potential of ruralproductive activities on the economy. So, Mr Chapman says, change is clearlyanticipated in the Rural Zone. Variation across the environment is identified in Policy29 At [126].17.2.2.3, already discussed, with reference to established and permitted activities. Thelist of relevant considerations begins with the concept of openness and vegetation, butthis does not guarantee vistas, nor preclude undulation in the landscape. The referenceto vegetation, Mr Chapman says is to rehabilitation of quarry sites.[206] Policy 17.2.2.12 is headed to show it is about management of quarry activity,and Mr Chapman submits the outcome directed for quarries is just that, managementof effects, and not elimination of effects on rural character and landscape. Mr Craigtook this as guidance, a starting point for evaluation, whereas the Court's startingpoint, the 'blank slate', is submitted to be at odds with the Policy.[207] The Court thought the landscape experts had a difficult job on their hands,given the change in landscape over the previous few years. Mr Chapman says itadopted a starting point based on historical landscape, which led to the conclusion thatrural character depends on pastoral farming, shelterbelts and hedgerows whichcross-hatch the landscape. He says effects should be assessed against the current stateof the landscape, with consents granted, and activities permitted by the District Plan.He says that is not a difficult task, and is the correct approach, and the Court erred innot recognising the landscape as so modified.[208] The landscape experts did not ask residents about the factors they thinkcontribute to their appreciation of the area, and the Court thought that meant they didnot engage with the residents' views that their amenity was adversely affected by thequarrying activity. Mr Chapman says that Mr Craig gave evidence before theCommissioners, and therefore heard or "should be taken to have heard" the residents'evidence and submissions. This is not an inference available, but in any event doesnot meet the concern of the Court, as to understanding the amenity in the locality, asit is experienced.[209] Mr Chapman submits an expert should only provide an expert opinion, notmake "an overall broad judgment". However, the Court can, if it chooses to do so,accept the evidence of a witness on the 'ultimate issue' under s 25(4)(A) of theEvidence Act 2006, where it is of substantial help to the Court as the trier of fact andlaw. The evidence is not determinative to the extent the expert in effect becomes thedecision-maker. There can be no delegation of decision-making to the expert.[210] Mr Chapman says the upshot of the Court's reasoning is that Mr Craig shouldhave 'conferenced' residents' views, then adjusted his own conclusions to be more"rounded" in drawing his conclusions. That is submitted to put him in the role ofdecision-maker, to assess the merits and reliability of opinion evidence, and decidewhat weight to give the information derived. I pre-empt the Discussion which followsto say this is not what the Court said, nor do I infer that is what it meant. Mr Chapman,however, correctly refers to the Court's statement in Port Gore MarineFarms v Marlborough District Council, that:30So individual perceptions of the effect of a proposal on their future amenitieswill usually not be a sufficient guide to reasonableness of the effects, peopledo tend to resist change simply because it is different to what they know.Essentially, the test for effects on amenities is one of reasonableness incontext, usually be better informed by reference to the District Plan.[211] He submits that the notion that an expert should 'conference' with neighboursand lay persons is novel, and would constitute an 'absurd compromise' by experts.The 2014 Practice Note for the Environment Court sets out a protocol for expertwitness conferences, and outside of their specialist expertise, others will notparticipate unless directed by the Court. Landscape is a key element in the Court'sdecision-making so criticism of the experts' approach and the Court's disregard of theDistrict Plan's provisions for landscape are submitted to have led to an outcome whichMr Chapman submits is in error.Submissions for the Council[212] Mr Pizzey says that criticism of the landscape architects for not ascertainingthe views of the residents and bringing them to overall account is not in error, becausethe Court's reasoning in paragraphs [130], [148] and [151] of the Decision does notcarry the implication alleged by HGL.30 Port Gore Marine Farms v Marlborough District Council [2012] NZEnvC 72 at [213].[213] The three landscape architects had provided a report under s 42 RMA to theCommissioners. The Court said it was not aware whether the experts made inquiry ofthe residents or the community generally as to the qualities and characteristics thatcontribute to their appreciation of the area.[214] Mr Craig's view was that there is no difference in the rural character of a quarryin a Rural Zone or in the Rural Quarry Zone because under the District Plan quarryingcan occur in both.31 His conclusion was referred to by the Court, that:32the factors contributing to the landscape character will remain unchangedeven though there is an increase in the proportion of quarrying relative to otheractivities in the area.[215] That issue of change is however entirely for the Court, a question of evaluatingthe evidence.[216] Ms Smetham's opinion was that the residents' amenity is derived from thearea's rural character, aesthetic coherence and pleasant outlook, but the amenity isvariable because of diverse outlook and land cover in the zone. The effects of thisproposal on rural amenity would be moderate, including where there would be viewsinto and over the site. The Court discussed Ms Smetham's evidence, saying that shehad a narrow brief, to consider the evidence of Mr Craig and Ms Dray and to focus ontheir differences without a "longwinded assessment of her own". The Court thensaid:33Had she undertaken a full assessment of the rural character and made inquiryinto the residents' amenity values she may have arrived at a conclusion onwhere the threshold of acceptable effects lies. We think it prudent in thecircumstances to treat her evidence with caution, as we do with Ms Dray whohas not had the opportunity to provide a full brief of evidence or to considerthe proposal under the District Plan.[217] Ms Dray differed from Mr Craig and Ms Smetham in her short report tabledbefore the Commissioners. The Court said it regretted it did not have from her a fullbrief of evidence. She referred to the submissions made by residents and theirconcerns about a significant change to rural character and amenity because of31 At [134].32 At [135].33 At [151].cumulative traffic, noise, dust and visual effects. The Court said she had "helpfully"distinguished landscape effects from visual effects. The former are those that bringabout change to the landscape and the latter are those that can be seen arising from theproposal or from various vantage points.[218] Ms Dray considered that the capacity of the landscape to absorb change wouldbe 'tested' by the HGL proposal, and its legibility is affected to a degree that may wellbe irreversible if there is not enough cleanfill to restore the site, in which case thecumulative adverse effect on landscape character would be more than minor. She alsosaid views into the site would have adverse effects on visual amenity that:34 are minor but, when considered together with the views of the otherquarries, there is an adverse effect on landscape and visual amenity and theseeffects may have reached a tipping point.[219] Mr Pizzey refers to para [148] of the Decision where the Court disagreed withMr Craig for equating "openness" with "built space". "Openness" characterises thislandscape and the fact that this proposal does not increase the built space does notnecessarily mean the openness of landscape is retained. The Court said that Mr Craigdid not consider whether enclosing the pastoral view by bunding and shelterbeltswould have an effect on the visual amenity of the residents.35[220] He submits the Court does not say that landscape architects as experts mustundertake an "overall broad judgment", although they are not precluded from doingso. The Court is entitled to criticise an expert, accept or reject their evidence andexpress views about evidence that may have assisted the Court further. It is not boundto accept all or part of the evidence of any witness, lay or expert, but should weigh andconsider it with all other evidence. It is entitled to bring to account an absence ofevidence on matters which it considers relevant.[221] Rather than imposing an unlawful or unreasonable requirement on the expertsas HGL submits, Mr Pizzey says the Court's reasoning under "Rural character andamenity" shows how it carefully assessed "values" evidence. It said experts need tobegin with assessing the degree of adverse effects against a baseline environment.34 At [142].35 At [148].This involves the experts first identifying what it is that people in communities valueabout their existing environment, and explaining how the experts ascertained thosevalues. Secondly, experts need to ascertain whether the District Plan and otherdocuments identify such attributes, and in that context, make an objective assessmentwhether those values identified are reasonably held. Finally, they need to assessadverse effects of the proposal on those values, considering whether values aremaintained, and assessing effects in light of the anticipated outcomes of the DistrictPlan. HGL does not challenge that guidance to experts when giving "values"evidence.[222] When the Court referred to the residents' description of past amenity values, itexpressly acknowledged that the existing environment includes consented quarries,and asked itself whether the District Plan identifies landscape attributes that give thisarea its particular character, before evaluating the landscape evidence from the experts.At para [130], which HGL says represents an error of law, Mr Pizzey says the Courtsimply said it was not aware if the landscape experts made enquiry of the residents orcommunity generally as to the qualities and characteristics that contribute to theirappreciation of the area. Mr Pizzey says there is no error of law in that, as there wasno evidence of such inquiry having been made. The reasonable inference is that theCourt thought the experts should have made such an inquiry as it was a step in therequired sequence of considerations which it set out, to understand the amenity as it isexperienced.[223] When the Court considered the expert landscape evidence it included that forHGL. However, it was correct in treating the relevant Objectives and Policies ofthe District Plan not as a code so as to preclude other factors being considered. TheCourt considered there was an error in the methodology used by Mr Craig because heerroneously equated "openness" with "built space", as he said if there were no morebuildings then enclosing a pastoral view with a bund and shelterbelts would not havean adverse effect on "openness". The Court did not accept this evidence and thatcannot be an error of law, Mr Pizzey submits. It was entirely open to the Court toevaluate bunding and shelterbelts in the context of amenity.[224] The third passage of the Decision relied on for HGL is at para [151] where theCourt evaluated the evidence of Ms Smetham and said had she undertaken a fullassessment of rural character and made enquiry of residents about amenity values, shemay have arrived at a conclusion as to where the threshold of acceptable effects lies,and without that the Court treated her evidence with caution. None of this meanslandscape experts must articulate the views of residents and reach an overall judgment.The Court simply said that in assessing values, there must be a first step involvingidentification of what people value and an objective assessment of those values, whichMr Pizzey says is unremarkable because the issue is the impact of the proposal on theamenity values of residents. The landscape architects did not adequately articulate thisfirst step in their evidence and the Court simply made a finding on the adequacy oftheir evidence, in an orthodox way.Submissions for JAG[225] JAG adopts the submissions on behalf of the Council.Discussion[226] The criticism of the Court's approach to the evidence of the landscape expertsis in my view entirely misplaced. The Court said that the experts did not (so far as itknew) engage with the residents' views that their amenity is adversely impacted byquarrying activity taking place in the locality. That is simply to point to the need foran understanding of the experience and concerns about amenity including ruralcharacter of those affected, and for those elements to be objectively brought toaccount, recognising their inherent subjectivity. What better evidence in the first placeis there than that of those who experience and live with the effects, provided theirevidence is objectively assessed against the provisions of the District Plan and otherexpert evidence? The Court was not in error in observing the need for this fundamentalstep. A querulous and unreasonable stance taken by a resident will never prevail, buttheir living experience, not overstated, must be prime evidence. It is easy to dismissor minimise the views of affected persons as subjective, yet theirs are the experiencesof the very effects and amenity with which the Court is concerned.[227] The Court did not suggest that there should have been "conferencing" whichHGL submits is an inference to be drawn from the Decision, nor did the Court undothe effect of Port Gore Marine Farms.36 The Court at para [151] made its positionquite clear, as it was entitled to, that inquiry of the residents' amenity values as theyexperienced them may have assisted in determining where the threshold of acceptableeffects lies. The Court complimented Ms Smetham on putting herself the question:37whether the addition of this quarry would result in the breach of a thresholdof acceptable effects on rural character and visual amenity.[228] That "good question" was not, however, followed up by evidence of where thethreshold lies, and it appeared to the Court that the environment had been consideredas if limited by Policy 17.2.2.3. It is probable this was misinterpreted as sayingsomething about the stated outcomes for the area, whereas the sustainablemanagement outcomes are set out in Policies 17.2.2.1 and 17.2.2.2. Policy 17.2.2.3 isa fact-finding provision.[229] I conclude that the Court's approach to landscape is unimpeachable onthe evidence before it. The quality of the landscape, including that modified byfarming and other activities, can be expected to contribute to people's appreciation ofits pleasantness and aesthetic coherence, even though rural productive activities haveeffects which may be considered adverse. The rural character of the area depends insubstantial part on pastoral farming, and on other physical elements of the landscape,but in this locality, there are now open and enclosed views. The view towards pastorallandscape is an amenity valued by residents and although broken up by shelterbelts,hedgerows and more recently by bunds, the rural character nevertheless retainsa degree of open spaciousness which residents value. Such a finding is entirely forthe Court based on the landscape evidence, in the context of the Plan.[230] This links to Question One. The Court did not have to treat the character andquality of the landscape and its contribution to people's appreciation of pleasantnessor aesthetic coherence as devalued or degraded to such a degree that the provisions ofthe District Plan that allow rural productive activity should somehow take precedence,36 At [150].37 At [150].or to lower the bar in assessing amenity based on character and quality of thelandscape. If it were otherwise the mere fact of effects which erode the character andquality of the landscape would dictate more of the same. That cannot be right. In myjudgment, the Court assessed the threshold of effects against which to assess the issuefor this third question, and did so in a careful, evaluative way. It was entitled to lookfor more evidence from experts of prime evidential material relevant to thesequestions, from the residents.[231] The third alleged error of law is not made out.Fourth Question of Law: Did the Court incorrectly interpret the rehabilitationRules of the District Plan?Submissions for HGL[232] Mr Chapman's submissions begin by making the reasonable assumption thatthe Court intended to refer to Policy 17.2.2.13(b) rather than 17.1.1.13(b), as the latterdoes not appear in the District Plan. Policy 17.2.2.13(b) requires proposals for newquarrying activities to demonstrate "through a rehabilitation plan" the objectives,methodology and timescales for achieving site rehabilitation and appropriate end use.The Court took this to mean such a plan should have been included with theapplication, but Decisions by the Independent Hearings Panel on the rural chapters ofthe District Plan had not been made by then, so the Policy did not exist when theapplication was lodged.[233] HGL submits the Court incorrectly interpreted the Policy to mean therehabilitation plan must be produced when the application is made, and saysthe application needs only make it clear what the rehabilitation plans are, to assurethe decision-maker that the eventual rehabilitation will meet the requirements of thePolicy.[234] Section 75(1)(c) RMA provides that Rules are to implement Policies, and onlyone Rule seems to apply, 17.8.3.14, which requires a rehabilitation plan to besubmitted for certification for new quarries prior to commencement of quarryingactivities. This is submitted for HGL to be sensible, to reflect conditions imposed bythe Council and the Regional Council, to provide one cohesive document. Thesubmission for HGL is that it simply has to establish that the requirements of the Policyare met through the application, which forms part of the consent, and profferedconditions.[235] Mr Chapman says that HGL was "effectively between the devil and the deepblue sea" in terms of its evidence about rehabilitation because it held a consent torehabilitate from the Regional Council, to control issues of groundwater, cleanfill andthe depth of fill to ensure pasture cover. HGL could have gone into more detail inrelation to those consents, but they were already before the Court.[236] The Court held the Policy would not be met because there was no stated enduse beyond pasture, and no expert evidence whether the rehabilitated end use wouldin fact provide for pastoral use, nor any assurance that the site would be rehabilitatedto enable subsequent use of the land for permitted or consented activities. HGLsubmits the Court erred when making these findings given the evidence it had beforeit, and the 'commonly accepted position' in Canterbury as to quarry rehabilitation.Mr Francis for HGL said the ultimate goal was to return the site to productive farmlandas far as possible, so for the Court to conclude there is no stated end use beyondplanting grass is incorrect. Mr Dixon in evidence for HGL made the same point,saying the stages behind and in front of the pit would have sheep in them, and the landonce quarried and rehabilitated would do as well, so this would be a "gradual pit thatmoves along". The end use will be farmland and rehabilitation will achieve that. TheCourt was critical that there was no expert evidence to establish that the rehabilitatedland could be used for pastoral purposes, but there was no challenge to the statedintention to rehabilitate to that end. Mr Dixon and Mr Francis represent majorcompanies in the aggregate industry, and are familiar with this type of rehabilitation.Mr Bligh said the topsoil proposed to be used would be suitable and he had seen itsapplication work. As a matter of law, the end use of the land is controlled by RegionalCouncil Rules relating to land use for farming activity.[237] Mr Chapman submits that the Court's overall uncertainty with the proposalwas in part the result of the incorrect interpretation of Policies, and led to error in thereasoning for the second limb of the s 104D threshold tests.Submissions for JAG[238] Mr Christensen says when a rehabilitation plan should be provided to theconsent authority was not critical to the Court's Decision, and the issue is whetherthe HGL proposal meets Policy 17.2.2.13. He says that the Court made its findingsabout rehabilitation based on the evidence and the commonly accepted position inCanterbury, so there was relevant evidence before it. HGL's evidence simply did notsatisfy the Court that the Policy would be met. The two witnesses referred to insupport by Mr Chapman are quarry operators, not experts in rehabilitation, and theywere not treated as such at the hearing, nor was Mr Bligh. Thus, the Court's findingof fact that no expert evidence was led about rehabilitation is just that, a finding thatthe evidence was inadequate, and that finding is not amenable to challenge as an errorof law.Discussion[239] The Court on the evidence concluded that the site would "at least" be partiallyrestored after quarrying is finished. However, Ms Dray held concerns about thecumulative visual effect of a series of shallow basins from partially restored siteswithin this locality. This is a matter of fact and involved findings which were availableto the Court, and relevant to its Decision.[240] It seems clear that whenever a rehabilitation plan is filed, it must be availableto the Court and thus other parties whenever it is relevant to the envisaged outcomefor landscape, addressed in terms of effects including cumulative effects. This is notautomatically a 'residual' or 'washup' provision simply to be addressed after theDecision is made. The Court held a real concern about the physical resource availableto cleanfill the quarry and that is an evidential issue properly of concern as tolandscape. I accept that a Decision with conditions allows a more informedrehabilitation plan, and that may be a staged consideration for the decision-maker.Here, however, the evidence was insufficient for the Court to assess effects. The 'gap'could have been closed evidentially, but was not. I add that sometimes a rehabilitationplan may be a matter of detail and not an "effects" issue. That would mean therehabilitation Plan could be settled and approved after the Decision, because it is notrelevant as to effects.[241] There is no error of law in terms of this fourth question.Fifth Question of Law: Did the Court err in its finding that it had insufficientevidence to determine whether the application was contrary to the Objectives andPolicies of the District Plan and thus whether it could pass the s 104D gateway test?Submissions for HGL[242] While this looks like a straightforward challenge to evidential findings,Mr Chapman and Ms Appleyard submit that the Court erroneously undertook thethreshold tests under s 104D at the end of the judgment rather than at the beginning.They say the sequence for the decision-making begins with the 'gateway' or'threshold' tests under s 104D and these must be addressed before turning to therelevant considerations under s 104(1), as the threshold tests under s 104D are a"sieving process for non-complying activities" and the High Court has endorsed theproposition that it is important when applying regulatory statutes that the rightquestion is asked at the right time.38[243] This submission is based on the three-step sequence, set out in Baker Boyssequence:39(i) to identify relevant s 104 matters for consideration;(ii) to consider whether the application meets either threshold test unders 104D; and(iii) to determine the application by weighing matters under s 104.[244] The Court sought further evidence about discharge to air of respirablecrystalline silica, but that was the only evidential issue further explored, so thethreshold tests were applied on all the evidence given at the appeal hearing.Ms Appleyard and Mr Chapman submit that the Court "confused" its gatewayconsiderations with weighing evidence under s 104(1). They say the s 104D test is a38 Queenstown Central Ltd v Queenstown Lakes DC [2013] NZHC 815 at [21].39 Baker Boys Ltd v Christchurch City Council [1998] NZRMA 433 (EnvC)."broad or high-level filter"40 and should not require complex evaluation involving forexample the reliability of expert evidence. Further, for a non-complying activity, it isnot necessary to garner direct support from the provisions of the District Plan as thetest is whether the proposal is contrary to its Objectives and Policies.41 Here, theapplication is submitted to find direct support for quarries in the Rural Zone as ruralproductive activities. Objective 17.2.1.1 is submitted to have been ignored, and theCourt has instead focused on parts of Objective 17.2.2.12 which address the locationand management of quarrying activities, which counsel submit are to beaccommodated within this zone. This leads to the submission that the Court has set"too high a bar, evidentially" in evaluating the gateway tests.[245] This submission is deceptively simple but involves some fundamentalpropositions as to the way s 104D should be addressed, evidentially.[246] Counsel submit that the Court 'ignored' planning witnesses called for theCouncil and HGL, and that the evidential burden on HGL to raise issues for evaluationwas discharged. They submit that the reliability of evidence in relation to conditionsof consent is for s 104 evaluation, not s 104D, and by embarking on what is submittedto be a too fine grained and otherwise erroneous evaluation of the evidence, HGL hasbeen 'prejudiced' in the s 104D Decision. They say the Court's judgment wascoloured by its conclusions on the evidence from the outset, and that the Court shouldhave requested further information if it harboured doubts about the gateway test onany issue. Because of what is submitted to be a 'false start' in the evaluation unders 104D, Ms Appleyard and Mr Chapman submit the application should go back to theCourt for reconsideration.Submissions for JAG[247] Mr Christensen submits that the Court has proceeded in an unremarkable andorthodox way in consideration of s 104D and s 104(1), first addressing whether theeffects of the proposal are minor, then whether the proposal is contrary to theObjectives and Policies of the District Plan.40 Foster v Rodney District Council [2010] NZRMA 159 at [24].41 Arrigato Investments Limited v Auckland RC [2001] NZRMA 481 (CA).[248] He submits that the Court did not expressly or in effect embark on a s 104(1)analysis first, rather it focused on the threshold test for a non-complying activity.There was no detailed analysis under s 104(1) because the Court did not get that far,but it is relevant that it would have declined consent in the exercise of its overalldiscretion under s 104 had there been a jurisprudential foundation to do so. Hence,Mr Christensen strongly contests the submission that there was 'confusion' in theCourt's approach to s 104D, and he submits that the Court's decision-makingdemonstrably proceeded through the following sequence:(a) What is the state of the receiving environment?(b) What are the effects (including additive and cumulative effects) of theproposal?(c) What changes will those effects introduce in terms of rural characterand rural amenity?(d) Are those effects minor?(e) Is the proposal contrary to the Objective and Policies of the DistrictPlan?[249] Mr Christensen submits the 'real challenge' raised by HGL is to the Court'sthoroughness in considering the s 104D threshold tests, and (paradoxically) what isreally being said by HGL is that the Court should have been 'more superficial' in itsanalysis. He says that it is for the Court in any given case to determine the extent offorensic enquiry is needed for the purpose of s 104D, which may include the extentand cogency of the evidence presented, and in several respects the Court here foundthat HGL failed to meet its evidential burden.[250] He further submits that the Court did not narrow its evaluation of Objectivesand Policies relating to quarrying in the rural environment, because it patently did sothoroughly, demonstrated in paras [36] – [49] of its Decision. It recognised quarryingas a rural productive activity but that does not mean it is necessarily appropriate at anyparticular location. The proposal is to be assessed on the evidence, the Objectives andPolicies, the Plan as a whole, and the Act. That submission cannot be gainsaid.[251] He lays considerable emphasis on the Court's reference toPolicy 17.2.2.12(a)(ii) which provides that outside the Rural Quarry Zone (as here), anew quarry may only be established where it:(a) avoids areas of outstanding or significant landscape, ecological,cultural or historic heritage value;(b) avoids or mitigates effects on activities sensitive to quarrying activities;(c) internalises adverse environmental effects as far as practicable usingindustry best practice and management plans, including monitoring andself-reporting;(d) manages noise, vibration, access and lighting to maintain local ruralamenity values;(e) avoids or mitigates any effects on surface water bodies and theirmargins; and(f) ensures the siting and scale of buildings and visual screening maintainslocal rural amenity values and character.[252] The Court said that the attainment of these outcomes is a major 'determinator'in meeting Objectives for the rural environment.42 Mr Christensen says that is not aninappropriate narrowing of the Court's evaluation, but rather focuses on its mostrelevant provisions. To the submission that HGL has been prejudiced by the s 104Ddetermination as to effects, based on the evidence, Mr Christensen says that cannot bethe case because the Court concluded that some effects would be more than minor andwould not meet the relevant Objectives and Policies. That is not 'prejudicial', butsimply contrary to the position for HGL. Further, he submits the Court was clearly42 At [48].not satisfied that the HGL had discharged its burden to persuade the Court that thethreshold tests were met, and as he puts it " that was the end of the matter". TheCourt did not have to allow the appellant the opportunity to "bolster or patch up itscase" on further evidence as seems to be suggested for HGL. It did think aboutrequiring further evidence on dust and cumulative visual effects, but decided againstthat because it decided it would have declined consent under s 104, for unrelatedreasons.43Discussion[253] There is a superficially attractive element to HGL's submissions on this FifthQuestion, as the non-complying status is based on a seemingly benign exceedance ofnoise levels from the HGL site at one boundary which is not noise sensitive. That isperhaps more an observation about the second leg of s 104D, but does not in any wayaddress the first leg, as to the degree of effects.[254] Section 104D does not require that the Court approach the threshold tests in a"sieving" or more limited way, as a gateway to the considerations under s 104. It hasoften been applied in that way, prior to the fine-grained and more extensive analysisrequired under s 104. The Act does not point to any limitation in the decision-maker'sconsideration of s 104D, but in this case the reason the activity is non-complying is oflittle weight when it comes to consideration of effects. In my view, here the Courtmade a detailed examination of effects, all of which would be addressed under s 104as well (with others), and it was entitled to do so. The notion that the Court is boundin some way to reduce or minimise its considerations under s 104D is in my viewwrong in law. The Court may approach s 104D as it did.[255] The 'evaluation' which began at para [282] of the Decision addressed thequestion exactly as s 104D requires, as to whether the Court was satisfied the effectsof the proposed quarry would be minor. Sometimes that will allow a short courseconclusion before moving to s 104, but whether that course is available is for the Court(the decision-maker).43 At [288].[256] Policy 17.2.3.12(a)(ii) has a rigorous quality in that a quarry may only beconsented in a Rural Zone with specified outcomes. It is instructive for the answer tothis Question that the Court first addressed the evidence on which it could properlyreach a view as to the level of additive effect, and where in each case it would be "morethan minor". This was a multifaceted exercise as to the traffic noise on residents at15 and 25 Savills Road, where the effects would be significant. The Court could noteven reach a view as to whether the additive dust effect would be minor, in the absenceof a baseline assessment of the existing dust environment. As to the profferedcondition that there would be no visible dust emissions beyond the boundary of thesite, the Court was not satisfied such would secure the necessary outcome. Conditionsare meant to minimise dust emissions, not prevent their occurrence, and the Court heldon the evidence that it was likely there would be visible dust emissions from the site.However, the baseline dust environment was not sufficiently well described to makea judgment about the scale and significance of additive (cumulative) effect.[257] The same point was made as to the evidence about the cumulative effect onrural character and, in particular, visual amenity derived from that rural character. TheCourt was entitled to decide that for residents in the locality the quarry would have anadverse effect on visual amenity, with its descriptive reference to residents being"sandwiched" between the quarries with extensive bunding and shelterbelts, viewsinto the quarries and the number of heavy goods vehicles entering and existing thesite.[258] The Court found it more difficult to determine whether consenting this quarry,given its location in context with the other quarries, would maintain the rural characterof the area. It agreed with Ms Dray who said that it is difficult to declare where thethreshold lies as to acceptable visual effects is without a study to determine the levelof quarrying acceptable within the zone. The Court made a straightforward evidentialfinding: "We do not have reliable evidence to reach any conclusion about where thisthreshold may lie".44 All this led to the Court finding that it had inadequate evidenceto determine the significance of additive effect on visual amenity. The Court plainlyrejected the evidence that if no new buildings were proposed the "generic" rural44 At [286].character of the area would not change regardless of the nature, scale and intensity ofcumulative quarrying activities in the area. The Court seems to have been scepticalabout evidence that there was no difference in the rural character of a quarry zone andany other Rural Zone because quarrying can occur in both. In my judgment thatproposition is a non-sequitur. In the Rural Zone quarrying is a discretionary activityand whether an applicant gains consent will reflect, with other things, the variablecharacter of the Rural Zone in which it is proposed to be situated.[259] The findings about the future dust environment and rural character meant theCourt could not determine whether the application was contrary to the Objectives andPolicies of the District Plan or otherwise. However, on the evidence, the Court wasnot satisfied that the use and development of rural land would support and maintainthe rural amenities in the rural environment. It said this, with specific reference toquarrying as a rural productive activity most suitably located on rural land:[290] We recognise quarrying is a rural productive activity that is mostsuitably located on rural land. Even so, every decision-maker is to "ensure"the nature, scale and intensity of this activity recognise the character andamenity values of the receiving environment (policy 17.2.2.4). This could beachieved, in part, by ensuring an adequate separation distance between thequarrying activity and incompatible activities (policy 17.2.2.10). If separationdistance means the set-back from a sensitive activity, then a separationdistance was not proposed. Rather the applicant proferred conditions tomanage the adverse effects of dust on residents living within 250m of the site.We are not satisfied that the applicant has demonstrated that the "separationdistance" is adequate to address the cumulative effect of off-site dustemissions at least to the standard which we can conclude that the characterand amenity of the rural environment will be supported and maintained(objective 17.2.1.1(a)(a)). This finding is important in that, a relatedpolicy (17.2.2.12(a)(ii)(B)) is enabling of new quarrying outside of the RuralQuarry Zone only where the activity avoids or mitigates effects on activitiessensitive to quarrying activities. And, only where the activity "manages noise,vibration, access to maintain local rural amenity values" (policy17.2.2.12(a)(ii)(D)). We are not satisfied the proposal does not achieve theseprovisions, and this is a finding which we give significant weight.[260] I conclude that the Court made no error in its considerations under s 104D ofthe Act, but rather in a thorough way stepped through separate and cumulative effectson the evidence and District Plan considerations required under s 104D. In somecases, the conclusion was of effects more than minor. However, in several importantinstances, the Court simply did not have the evidence it needed, and without that thefirst threshold test of s 104D cannot be satisfied, and by the same reasoning nor canthe second threshold test.[261] The fifth error of law is not made out.Sixth Question of Law: Did the Court come to a conclusion without evidence, or aconclusion which on the evidence it could not reasonably have reached, whendetermining that a 3dB increase arising from traffic noise from the Transport Zonewas a "significant adverse effect"?Submissions for HGL[262] This question is associated with the second question and the effects of noise,including change in the receiving environment. It breaks down further into six allegederrors, set out below. The sixth question is, however, addressed as first put for HGL.[263] Ms Appleyard submits that the Court focused on the effect of change whichwould be brought about by HGL operations which it described as "fundamental to ourdecision and is the focus of our evaluation".45 In itself, that is correct, but the HGLchallenge is aimed at a specific element of the increase in noise, and evidence of theeffect of that change. Expert evidence was compared, given on a "worst case" scenariobased on maximum traffic numbers to and from the HGL and SOL quarries, andmaximum gravel extraction. Mr Camp anticipated a 3 dB increase, Dr Trevathan a2 dB increase. The Court concluded that there would be at most, a 3 dB increase innoise level as a result of the HGL quarry operations. This is a discrete finding,reasoned without bringing to account the frequency, intervals, and characteristics ofnoise, all of which are relevant to cumulative effects.[264] The Court considered what effect the characteristics of noise from heavyvehicles with the 3 dB increase would have on rural amenity. While it was not satisfiedwith the evidence as to the noise effects of acceleration and deceleration at theConservators Road/Savills Road corner, the Court concluded:[212] We consider these effects will be significant in terms of any remainingrural amenity, particularly when the effects of increased traffic numbers45 At [177].themselves are taken into account, and will not maintain aural rural amenityof the area, and is a matter to which we give significant weight.[265] It is obvious that the impact of a 3 dB increase was an important element in theCourt's reasoning. In that, Ms Appleyard submits that the Court came to a conclusionon the evidence that it could not reasonably have come to, or alternatively that therewas no evidence that a 3 dB increase in noise is 'noticeable'. The noise expertswere called by HGL on the one hand, and the Council on the other. There was nonoise evidence for JAG. Therefore, Ms Appleyard submits that the experts essentiallyagreed with each other, but the Court came to its own conclusion which she submitswas not founded on the evidence, as the noise experts agreed the increase in noise was3 dB, and only of minor effect.[266] The evidence before the Court was closely analysed by counsel for HGL. Theevidence of a 3 dB 'change" in level was given in evidence in the Marshall Day NoiseReport and described there as "just acceptable". Mr Camp's evidence when questionedby the Court was that this is a minor change from an objective point of view, but hiscompany, Marshall Day, has a "Table" which says, "Up to 2 or 3 dB change is minor,and 5 is noticeable, and 7 or 8 is significant". Mr Camp said a 3 dB change is"relatively small". Dr Trevathan said that it is "just audible" and 5 dB "clearlynoticeable".[267] Counsel submit that the Court did not put to Dr Trevathan and Mr Camp anyquestions derived from the Court's "own experience" of a 3 dB increase beingnoticeable to test that against the available expert evidence. So, as Dr Trevathan andMr Camp said it is not until the change gets to 5 dB that it is "noticeable", the Courtreached a different conclusion without evidence and only an amorphous reference toits own experience. This is the foundation for the error of law alleged.[268] By contrast, the residents gave evidence about their subjective experience ofthe existing environment and Ms Appleyard submits the existing noise environment isrepresented by the combination of noise from activities permitted by the District Planand authorised by resource consent. The existing environment is about 52 dB, a levelthe Plan writer and decision-makers consider is consistent with rural amenity.Ms Appleyard submits that the residents called no evidence about the change broughtabout by consent and so did not address the question set by the Court for itself:"To what extent would HGL operations change the existing environment, and what isthe effect of any change on rural amenity?".[269] In summary, it is submitted the Court by necessary inference must havebrought to account evidence given in other cases to allow it to decide there will beadverse effects, and that they would be significant. Ms Appleyard concentrates on theCourt saying, "we are aware that this is a subjective matter where different noiseexperts can have different views", yet the Court expressly reached the view, based onits own experience, that a change in noise of 3 dB to 5 dB is usually noticeable, andless than 3 dB is imperceptible to most people.[270] Then, the Court moved from the increase in noise being 'noticeable' to whetherit would be adverse, and to what extent, to be measured with the characteristics ofnoise and the overall cumulative effect. Mr Camp and Dr Trevathan said that a 3 dBincrease would result in a level of 55 dB at dwelling facades, and that seems to havebeen be accepted by the Court at para [209]. Dr Trevathan said that effect is "minor",and Mr Camp said that level is "acceptable" and that the amenity of residents wouldnot be adversely effected. The Court, however at para [211], was satisfied from theevidence that the increase would not only be noticeable, but adverse. There isa suggestion that the Court may have reached its conclusion based on the District PlanStandard, which does not apply to road noise. If the District Plan Rules are to betreated as guidance, then counsel submits there are other District Plan Rules which theCourt did not consider: 6.1.4.2, 6.1.6.2.4, 6.1.6.2.5, 6.1.6.2.8, 6.1.7.1.1, and6.1.7.2.1.[271] Ms Appleyard says the Court simply put aside the expert evidence, saying thatas a change in noise level is subjective, different experts can have different views andtook a "holistic view", saying that some noise sources would have differentcharacteristics compared to others. She submits that these "different characteristics"cannot be found in the evidence. Ms Appleyard says there is nothing in the evidencewhich allowed the Court to conclude noise generated by this proposal may bedifferentiated from the existing sound environment. Dr Trevathan said there wouldbe no sound effects with special audible characteristics, although Mr Camp said thatall noise sources have 'character' in some respects, because they sound different toother sources.[272] Ms Appleyard accepts that the Court may look at adverse effects of noise, butsays the District Plan does not guide what is acceptable or not. The experts said itwould be acceptable, but the Court used an irrelevant Rule as a guide (Question Two).The Advice Note properly records that while specified noise sources are exempt fromthe Rules, any potential and actual adverse effects should be considered for anydiscretionary or non-complying activity, and that is why HGL called Mr Camp to giveevidence about the acceptability of a 3 dB increase in noise.[273] Ms Appleyard says the applicable noise limit for the zone is 50 dB, which isfor activities within the Rural Zone, less than the guideline value that the District Planwriters could have adopted.[274] Ms Appleyard then refers to the Court's conclusion that noise effects, whichdid not include acceleration and deceleration around theConservators Road/Savills Road corner, would be significant in terms of remainingrural amenity, particularly when the effects of increased traffic noise were taken intoaccount. This would not maintain the rural amenity of the area, and the Court gavethis significant weight. Ms Appleyard submits that this conclusion cannot stand, andamounts to an error of law, because a 3 dB increase is not "significant" and the noiseexpert said the traffic noise does not containing any special characteristics whenconsidering amenity effects.[275] The 3 dB increase in noise levels was said by the experts to be the maximumor "worst case" increase in noise levels resulting from the HGL quarry and itsassociated traffic. The experts considered what is a "significant" increase, and this iswhere the tripartite distinction between 2 dB to 3 dB as "minor", 5 dB as "noticeable",and anything above 7 dB is "significant" was brought to account. This evidence, andthis range, was not tested in cross-examination nor in questions from the Court soMr Camp said the change in noise level would be minor and acceptable andDr Trevathan much the same. Both those conclusions were reached in a "worst case"setting as opposed to the actuality of operating levels on any given day.[276] HGL's case is thus that the Court disregarded this evidence, instead referringto evidence of change in noise levels as something subjective about which expertsdiffered. The Court is said to have erred because there was clear evidence by Mr Campof what is a "noticeable" change and what is not, and the Court, without being able todraw on relevant evidence of residents in this regard, had no basis to reach itsconclusion. The Court went even further to conclude that the increase in noise wouldbe "significant" because, looked at overall, some noises would have differentcharacteristics compared to those already in the locality.[277] Ms Appleyard submits that the noise sources are known and apart fromacceleration/deceleration, the only evidence from a noise engineer concerned enginebraking, which she submits would not be a significant issue, and therefore there is noevidence to demonstrate the noise from the HGL operations or differentiate it from theexisting sound environment. Neither Dr Trevathan nor Mr Camp thought that therewould be "special audible characteristics", as all noise sources have character in somerespects because they sound different to other sources.[278] Hence, in these two identified respects, Ms Appleyard submits that the Courtsimply could not reach the conclusion of significant change in the aural amenity of thearea. There is nothing to demonstrate what the "special characteristics" are. Withoutsuch evidence, a simple finding of a 3 dB increase being "significant" would blockconsideration of s 104D effects under the first threshold test.Submissions for the Council[279] Mr Pizzey's submission is that the Court heard (and accepted) the evidence ofthe experts that there would be a 3 dB increase, not that the adverse effects of suchincrease on the neighbours in this environment would be minor. The Court did notagree with that, and made its own finding of fact based on what it heard from theexperts and from the residents themselves, that the adverse effect of a 3 dB increasewas not minor, but significant.[280] Mr Pizzey says the Court's starting position was to evaluate the existingenvironment and the values which the community attaches to that environment.Therefore, the evidence of residents about the noise as they experience it was relevant,and from that point the Court brought to account the evidence of the experts about theincreased noise from traffic, above 3 dB. He says "It's [the Court] simply taking adifferent approach to the opinion evidence that it had heard from the noise experts".He says that HGL is challenging the Court's exercise of its specialist jurisdiction inevaluating the evidence of acoustic experts, and that of neighbours. The Court mustdecide whether the effects of the proposed activity are consistent or inconsistent withthe District Plans, Objectives and Policies, and that too is for this specialist Court.Aligned with that, Mr Pizzey submits the Court's evaluation of the significance ofeffects in this locality, with these neighbours and with this history, is essentially for it,not for this Court to revisit.[281] He emphasises that the Court found the noise increase in the environmentwould be about 3 dB and looked at the effect of that change not in isolation, but byconsidering noise characteristics and overall cumulative effect.46 It held that thesignificance of such change is subjective and experts will have different views, butthe Court's own experience is that the 3 dB/5 dB range is "usually noticeable" or"noticeable to most people". The Court found as a fact this degree of change wouldbe noticeable and, while that does not make it unreasonable of itself, the cumulativeadverse effect would (or could) be significant. That was not the evidence ofDr Trevathan for the Council nor Mr Camp for HGL, but the Court was entitled toreach this conclusion, so Mr Pizzey submits. He submits there are "highly sensitisedresidents" who have to face demonstrably cumulative effects in a rapidly changingenvironment, and such cumulative effects are at the heart of the Court's assessment.[282] He submits the Court does not need expert evidence and can reach thisconclusion for this locality, when deciding effects on these residents and neighbours.That is not an error of law as it is simply based on the Court's assessment of theexisting environment and the values given in evidence by residents.Submissions for JAG[283] Mr Christensen says the residents' position is that the level of amenity isalready compromised by existing activities. The existing environment has only46 At [208].a certain capacity to absorb additional effects and the 3 dB increase in the context ofan "already compromised amenity" is significant. The Court found a noticeableincrease and that meant there would be a significant effect on the amenity of theresidents.Discussion[284] There is a proper challenge about the evidence available to the Court as to a3 dB increase being noticeable, but whether that was an available finding or not, thatsays nothing about the characteristics of the noise so as to differentiate it from other,present and permitted noise, including from consented sources. The Court went a stepfurther, and drew on its own experience, without elaboration, as to when it considersan increase in noise will be noticeable to the "highly sensitised" residents, then as tothe significance of that.[285] I have read the material before the Court and had regard to submissions andconclude this sixth question comes down to whether the Court can reach into itsspecialist knowledge, without reference to other cases which included evidence of theeffect of change in noise levels, to find that the increase in noise would be noticeable,and then determine the significance of that in an additive or cumulative sense withreference to noise characteristics, and frequency.[286] It is difficult, if not impossible, for those reading any judgment, to comprehendhow a tribunal or court has reached a conclusion that is based on unstated reasons.It was open to the Court to regard the residents as highly sensitised, and not to dismissthat sensitivity as lacking objectivity. They live with significant change to theirenvironment already. The imposition of objective considerations or conclusions overthe evidence of sensitised individuals is cold comfort to them, and in my view ignoreswhat is a proper consideration under the RMA of people being highly sensitised fora reason. If their response is more the product of an 'over sensitivity' rather thana reasonable sensitivity, that will be brought to account.[287] In supplementary submissions, Mr Christensen said that while Mr Camp'sevidence was that a 3 dB increase is "minor", Dr Trevathan said it was "audible". TheCourt said it is "noticeable", consistent with its own understanding, so this 3 dBincrease is a "noticeable addition of noise", and that is why the Court said it requiredcareful consideration of its characteristics for the overall cumulative effect. I find thatlatter finding is in itself correct. The effect of such increase itself may not besignificant but, in the overall context, may be telling. The Court said that meetinga 50 dB noise standard is generally reasonable, subject to consideration of thecumulative nature of different sources of noise. Here, there are multiple sources ofnoise, and changes in the ambient noise levels from all sources is important whenconsidering amenity, in particular new noise sources, which add to existing noise andmay detract from existing amenity values. The 'capacity' of existing amenity puts incontext the additional noise if it is "noticeable". Where another noise environment isnot already "full", an additional 3 dB may not result in a significant adverse effect onamenity.[288] Here, without reference to other cases in its experience, from which the Courthas reached a conclusion as to what change in noise level is "noticeable", I considerthe evidence falls short. It is simply not available to the Court, and so constitutes anerror of law. It is, however, one important facet of a much more complex question ofnoise effects and does not of itself dictate the outcome for this judgment.The Second and Sixth Questions of Law - Summary[289] For completeness, I refer to HGL's breakdown of noise submissions alreadyaddressed. Counsel for HGL submit that there are six separate errors of law withinQuestions Two and Six, relating to the Court's reasoning at paras [25] and[208] - [212] of the Decision. The errors are submitted to compound to an overallpicture which makes the Court's findings on noise, and thus rural character andamenity, unsafe. The latter findings do not depend on, but are influenced by the noisefindings.First noise error (sixth error of law)[290] This has been addressed, that a 3 dB change would be 'noticeable' by relyingon "different experts" and the Court's "own experience", as not open to the Court onthe evidence. Counsel for HGL say that Mr Pizzey has attempted to reconcileDr Trevathan's evidence, with which Mr Camp agreed, that a change of 5 dB isnoticeable, as the same thing as saying a change of 3 dB to 5 dB is noticeable. A 3 dBincrease is equivalent to a doubling of the noise, and an increase from 500 trucks to900 trucks results in 2.5 dB to 3 dB increase, as Mr Camp says. While I have foundthat the Court did not have any sufficient evidence on which it could reacha conclusion that a 3 dB increase in noise is noticeable, the notion of such an increasein truck numbers, whether at regular or broken intervals throughout a whole workingday, with the characteristics of truck noise, including braking and acceleration,immediately identifies particular characteristics of the noise which are relevant effects.The error of law in the Decision lies only in the extension of the finding that a 5 dBchange in noise level is noticeable to that at 3 dB.Second noise error (second error of law)[291] The Court at para [205], said that the applicable noise limit for the zone was5 dB at the notional boundary of existing dwellings. Then at para [209] it said:It is clear to us that future cumulative noise levels at the notional boundariesof some dwellings affected by HGL traffic noise will, at times, be in excess ofthe District Plan standard and could reach 55 dB at the dwelling facades basedon the evidence of Dr Trevathan.[292] A 50 dB expected amenity led to the conclusion that 55 dB was too high, butcounsel for HGL submits the Rule is not the noise limit for the zone, but a permittednoise level for an individual activity in any Rural Zone and any residential zoneoutside the CBD without a cap on the number of properties or activities that can eachreach a 50 dB level. The permitted noise levels combine to create a number higherthan 50 dB, an outcome therefore expressly authorised by the permitted activity Rulesin the District Plan. Other permitted activities add to this, some higher than 50 dB,including the airport and roads, which have no limit. Airport activity and roads arenot at capacity and any number of new permitted activities, each creating 50 dB, couldjoin the zone. So, the Court's conclusion that District Plan Standards are beingexceeded is not correct as a matter of interpretation or fact, as there is no District PlanStandard about the level of cumulative noise in the zone. The Court must have regardto the impact of the permitted activities, exercised to their maximum permitted level(and with all other effects which accumulate). The Court made an express finding thatnoise could reach 55 dB at the dwelling facades, based on the evidence ofDr Trevathan, and HGL's submission is that the Court wrongly used that in the contextof a 50 dB expected amenity being permitted in the Rural Zone. Permitted noise levelswill combine to a number higher than 50 dB.[293] However, the Court was entitled to reason what it considers to be the point atwhich the noise at the notional boundary of existing dwellings would be impacted bythe permitted activity. This is but one component of noise effects with which theCourt was concerned, and it was entitled to reach judgment as to this. It hadthe evidence to do so, and there was no error in law in bringing to account the 50 dBexpected amenity.Third noise error (second error of law)[294] Mr Pizzey's submission is that the Court did not know the outcomes expectedfor the Rural Zones, but thought the Rules 'pointed' to these outcomes. While notaccepting the Court reasoned in this way this, counsel for HGL say that approach iswrong in law because the District Plan must state Objectives and Policies, and theRules are the method for implementing the Policies. The Objectives and Policiesexpress outcomes, and Rules are not an expression of the outcome themselves. TheRule relating to traffic on roads is a complete noise exemption and HGL's counselsubmit the Plan writers intended roads to be completely unregulated, unlike otheractivities.[295] The Court used the Rules, in what it found to be the absence of Objectives andPolicies, to find its way to expected outcomes, in effect by implication. Thesubmission that the Plan writers intended roads to be completely unregulated goesonly so far. The Court's Decision and this judgment are concerned with the effects ofthe proposal, one effect of which is that from traffic and whether permitted or not.There are effects, to be weighed for degree, and brought to account cumulatively withother effects. I consider the submission that the Court's evaluation should not includethe noise of traffic on roads, with a noise exemption, does not sit well with thefundamental purpose of the Act to achieve sustainable environmental outcomes. It isa technical and limited approach which constrains that fundamental task.Fourth noise error (second error of law)[296] If, HGL says, the Court was in principle entitled to take into account permittedactivity Rules, it has taken into account an irrelevant factor as the Rules do not applyto roads. Alternatively, it has failed to take into account relevant factors such as otherpermitted activity Rules in Chapter Six. If the Court wants to take into account a Rulewhich is expressly not relevant to road traffic noise, counsel submit it needs to explainwhy the Rule is relevant, and why it was the only relevant Rule in Chapter Six. HGLsays the Court failed to explain why overseas and New Zealand Standards set out byDr Trevathan and Mr Camp were not relevant, or were disregarded. There is somemerit in this submission where the expert evidence, including that of Standards, wasnot 'explained away' as irrelevant.[297] However, the Court was entitled to bring to account its own conclusions withregard to whether the 55 dB noise level was appropriate in this case, having regard tocumulative effects. It was entitled to disregard elements of the expert evidence if itchose and it clearly did so, with the observation above. It is not, however, decisive forthis judgment.Fifth noise error (second error of law)[298] HGL counsel submit the Court's approach undermines the separate zoning ofroads into a Transport Zone and their specific exemption from the Rules in ChapterSix. The notion that roads, including the State Highway, would have to meet a limitof 50 dB in the adjoining Rural Zone, or residential zone where it passes an individualdwelling, is submitted in error.[299] The Court did not conclude that roads, including the State Highway, wouldhave to meet a limit of 50 dB in the adjoining Rural Zone or residential where it passesan individual dwelling. The Court referred to the Transport Zone. That is at far as itwent. It had to determine noise effects and that was at least a relevant consideration.Sixth noise error (sixth error of law)[300] Mr Pizzey says the noise experts gave evidence about the level of change onlyand did not assess effects on amenity, so the Court was entitled to use its ownexperience as to what would be a significant adverse effect. Counsel for HGL say thatMr Camp and Dr Trevathan gave evidence about effects, so when the Court said it wassatisfied there were adverse effects "from the evidence", there was no such evidenceexcept that of the residents. That is relevant, and of weight as the Court decides. TheCourt in my view had ample evidence from which to derive and reach a conclusionabout adverse effects on amenity as the review of its Decision in Part C to thisjudgment demonstrates.Seventh Question of Law: Did the Court err in its elevation of the importance of"avoidance" over other approaches contemplated by the District Plan, whichresulted in the incorrect interpretation of the Objectives and Policies?Submissions for HGL[301] This question is based on the Supreme Court judgment in King Salmon.47 Theword "avoid" means "not allowing" or "prevent the occurrence of", but that judgmentwas given in the context of the New Zealand Coastal Policy Statement (CPS) whichcontemplates only the avoidance of effects. Here, HGL correctly submits adverseeffects may be avoided, remedied or mitigated, and says those words should be readconjunctively and of equal importance.48 Mr Chapman submits that "avoid" in thiscontext should not mean "only avoid" and a 'remedy' or 'mitigation' are of "equalmerit". HGL submits the Court did not give equal weight and consideration to thesefactors and Mr Chapman refers to the judgment when it reads:49If the effects are not avoided or remedied (we suggest preferably in the firstinstance), the policy is tolerant of activities with adverse effects where theactivity, circumscribed by any conditions mitigating effects, supports andmaintains the function, character and amenity of the rural environment.47 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38,[2014] 1 NZCR 593.48 Winstone Aggregates Ltd v Papakura District Council EnvC Auckland A049/2002,26 February 2002 at [25].49 At [38].[302] Here, the Court expressly recognised a degree of tolerance of activities withadverse effects but Mr Chapman says the Court concluded that avoidance of effectswas preferable to a remedy or mitigation (the Court referred to both avoidance andremedy as 'preferences'), and should have recognised that where adverse effects aremitigated the District Plan will tolerate quarry activities. The law does not requirepriority to be given to avoidance, so "reasonable internalisation" means that if an effectcannot be avoided, then it must be remedied or mitigated through conditions ofconsent. In that sense "internalising" does not mean "internalise at all costs".50 Theheart of this alleged error is that the Court is submitted to have preferred 'completeinternalisation', even though the District Plan accepts that conditions might remedy ormitigate effects, and this 'error' coloured all further consideration by the Court.[303] It is then submitted that for the Court to take the view that Objective 17.2.1.1and Policies 17.2.2.1 and 17.2.2.2 only tolerate activities for which adverse effectscan be mitigated is an "overly negative framework", not supported by the wording ofthe District Plan. The use and development of rural land supports, in particular, thepotential contribution of rural productive activities to the economy and wellbeing ofthe Christchurch District, and provides for economic development of rural land byenabling a range of activities, while ensuring that adverse effects on rural characterand amenity values are avoided, remedied or mitigated.[304] HGL submits the terms "support" and "provide for" therefore signify a muchhigher level of support for rural development than the term "tolerate" chosen by theCourt. Mr Chapman says the Court's approach derives from its understanding ofthe Objective and Policy framework. This shaped its assessment of the evidence and,where that was finely balanced, it treated Objectives and Policies as merely 'tolerating'quarry activity and, cumulatively, this resulted in a Decision inherently based on aperception of the District Plan's opposition to quarry development. This is said to beof significance as the District Plan has one set of Objectives and Policies for all sevenRural Zones. A Decision had been taken during the District Plan Review process notto zone a larger area as Rural Quarry Zone, despite the shortage of available landwithin that zone. The effect of the Decision is submitted to be that all adverse effects50 Winston Aggregates, above n 49.from a quarry are to be avoided in the first instance or, as a less preferred approach,mitigated to such a level that the District Plan can tolerate them. This will carrybeyond quarrying to intensive farming which is a "legitimate activity in the RuralZone".[305] In short, the submission is that the Court erred by elevating "avoid" over"remedy" and "mitigate", which submission I do not accept in itself, and further erredin its failure to understand that the Objectives and Policies could tolerate developmentsuch as quarrying in some instances.Submissions for JAG[306] Mr Christiansen for JAG submits HGL's case boils down to a submission thatthe Court erroneously elevated the importance of avoidance over mitigation andminimisation of effects, and it uses paragraph [38] of the Decision to found itschallenge. Mr Christensen says that reference is to Policy 17.2.2.2, which is relevantto the description and analysis of the Objectives and Policies relating to the ruralenvironment reflected in paragraphs [35]-[49] and [68]-[69] of the Decision.Mr Christiansen submits, contrary to the HGL submission, that the Court expresslyrecognised Policy 17.2.2.2 is to be interpreted in light of the overarching Objective forthe rural environment (Objective 17.2.1) and the Strategic Directions for the district.51[307] He refers to this passage in the judgment:[56] regardless of scale, decision-makers are to avoid "significantadverse effects" on health, safety and amenity of people and communities(objective 3.3.14) and for all "other adverse effects", evaluate the activity inlight of the outcomes for the rural environment. Where an effect cannot beavoided or remedied in the first instance, then the enquiry is whether theactivity as proposed to be mitigated will support and maintain the function,character and amenity values of the rural environment. If not, the activity willnot achieve the relevant objective of the District Plan.[308] He submits that the Court's observations in para [38] about Policy 17.2.2.2 areconsistent with this passage, which expresses what is known as the "mitigationhierarchy" so that effects should first be reasonably avoided or remedied, but any effect51 At [38].should be reasonably mitigated or minimised. Reasonable avoidance and reasonablemitigation depend on the context, and relevant Plan provisions.[309] Discussed above, this quarry is said for HGL to be the sixth in this area, on asite which does not have reasonable set-backs from neighbouring houses. Unless theHGL quarry in use is discontinued, it is the seventh, with the eighth now beingcleanfilled. The Court is entitled to decide whether the effects of this quarry on top ofthe effects from existing quarries and other noise sources can be adequately controlledby conditions. The Court did not anywhere, it is submitted, equate avoidance of effectswith internalisation as HGL contends. Internalisation is not feasible because it wouldmean no noise beyond the boundary, no trucks entering or leaving the site, the quarryand the bunds not being able to be seen, and so on. When the Court concluded theeffects of this quarry could not be adequately controlled by conditions despitesuggestions by the appellant how this could be done, declining the application in itsentirety was appropriate, and the only way to achieve sustainable management ofnatural and physical resources. There is no evidence that discontinuance of HGL'scurrent quarry operations will mitigate the effects with which the Court wasconcerned.[310] As to precedent, the Decision is site specific. Somewhat tongue in cheek,Mr Christiansen says if there is any precedent it might be that where there is anapplication for a quarry outside the rural quarry zone, non-complying, the 'eighthquarry' in a particular locality, on a site too small to have appropriate set-backs toaddress dust and noise, which results in significant adverse noise effects fromadditional trucks, then consent is unlikely to be granted.Discussion[311] At para [69] of the Decision, the Court referred to an effect being avoided orremedied, and whether it may be mitigated to support and maintain the function,character and amenity values of the rural environment. A range of conditions was putbefore the Court, against which to consider such an outcome, the product of adverseeffects being avoided, remedied or mitigated.[312] As Mr Christiansen submits, quarrying is contemplated in a rural area, but therural environment logically will have only a certain capacity to absorb development.That environment should not by progressive impact and effect lose its character andamenity by the erosion of that caused by consented activities. The fact that a quarryis "generally acceptable" does not mean all quarries are acceptable in all locations.The Court made an assessment that this proposal goes too far in terms of adverseeffects and this is a nuanced and complex evidential exercise, entirely open to theCourt. This seventh question involves consideration of potential responses inthe decision-making, to avoid, to remedy, or to mitigate. The Court did not look foravoidance at all costs but worked its way through the measures of avoidance, remedyand mitigation. It was not slanted to avoidance, and the result was for the Court todecide on its assessment of the degree of adverse effect.[313] Given the findings of the Court, and with the clear recognition of deficienciesin evidence, across several important considerations, cumulative effects were such thatavoidance was properly for consideration. Because this is a 'tipping point' case, evenwith conditions of consent proffered, the Court was entitled to conclude that a remedyor mitigation was either not available or insufficient. The Court has not treatedavoidance as other than its preferred outcome, and it has recognised remedial andmitigating measures available. It has thus not turned a Nelsonian eye to consideravoidance only, or placed unwarranted emphasis on avoidance.[314] No error of law is disclosed in this Seventh Question.F. CONCLUSION[315] One error of law has been made out, the Court's finding of the 3 dB noiseincrease being 'noticeable', as the evidence does not support such a finding.[316] The Court had to evaluate a fast changing environment, which reflectedsocietal upheaval in Christchurch from the earthquake sequence, the rebuild of muchof the city and its infrastructure, and the rapid evolution of the new District Plan forChristchurch by the rapid and expert process of the Hearings Panel. Christchurch andits surrounds changed in a stroke when the earthquake sequence began, andparticularly following that of 22 February 2011. The earthquakes and aftershocksplaced unimagined stress on Christchurch's inhabitants, infrastructure, andenvironment. Part of the response was the need for aggregate on a large scale, and thatin turn led to pressure on infrastructure, including roads.[317] The product of these factors is rapid change in the landscape and intensity ofactivity, particularly in the traditional quarry areas. In the demand for new quarriesevidence of the rapid evolution of effects on residents over a very short period isentirely to be expected, with the residents' telling accounts of noise, dust, vibrationand intrusion into their residential lives. The Court was rightly careful to evaluate theposition of the residents and their protection from cumulative adverse effects. Theoverall effect on JAG residents is irrefutably adverse in several respects as thingsstand, without the effects of this proposed HGL quarry. That is why the Court wascritical of landscape evidence which did not seek to understand the values still enjoyedby these residents. The Court in my view correctly took a precautionary approachwhen identifying many relevant elements of effect where the evidence fell short, eitherbecause it was not provided, not adequately provided, or simply did not persuade theCourt. This was entirely for the Court. There are no obvious remedial or mitigatingsteps available to the residents in practical terms after consent is put into effect otherthan to shift the axis of their home lives, for example, by certain confined parts of theirproperties to mitigate effects, or leaving the area.[318] The Court did not rely on how many quarries there are, or will be, butcumulative effects in this area, and there is no evidential basis to assess the effects onthese residents on this appeal if and when HGL's existing quarry closes. This is not a'numbers' game but pluses and minuses of influencing activities will count, when theeffects of such are relevant.[319] As to noise, and apart from the 3 dB increase being 'noticeable',Mr Christiansen said that Dr Trevathan and Mr Camp treated 50 dB noise levels as aproxy for acceptable effects which are "no more than minor", but Dr Trevathanaccepted that at 50 dB people may be only "reasonably annoyed". The concept of"reasonable annoyance" is quaint and irresolute. In the context of noise which isomni-present in daylight hours, or almost so, a "reasonably annoyed" resident wouldreflect, in my view, a more than minor effect. The residents provide evidence of abaseline of annoyance against which to measure expert evidence. While subjective,this was clearly relevant.[320] Mr Christensen referred to his submissions in the Environment Court that theapproach of HGL and Council witnesses seems to assume the City Plan provides thatquarries are appropriate on this site, and this restricted the Court's consideration howthe effects can be addressed. He refers to Policy 17.1.1.12. Anticipated amenity inthe Rural Zone will vary and, for example, on the Port Hills and Banks Peninsula,amenity values will generally be higher than on the plains, and where an activity isproposed determines the way in which intensive agricultural, industrial and quarryingactivities will impact on rural amenity. That expectation does not include, as oneresident said, "daily gritty dust throughout my home". This is a case in which"no change" may be what is needed to maintain amenity and meet the Policy. Thatwas in essence the residents' case, that there should be "no more change". The Courthas agreed, on the evidence before it, while plainly dissatisfied with a good deal ofHGL evidence across several important effects-based issues.Relief[321] The one error of law found on appeal is in the conclusion that an increase innoise of 3 dB would be 'noticeable', as it is not founded on expert evidence, and theCourt has done no more than refer broadly to its own experience. On an issue ofconsequence to this Decision, and where there is expert evidence, the Court must haveevidence from some quarter to allow that conclusion, and not simply resort withoutexplanation to its own experience. There is no doubt the Court was drawing onsomething in this regard, and as such it needed to explain the experience on which itrelied.[322] That finding of error does not, however, dispose of the several other issuesregarding noise, in particular its characteristics, repetition, intervals, and frequency,and the overall accumulation of noise and other effects where the evidence plainly fellshort. For that reason, this judgment does not respond to the error by sending theapplication back to the Environment Court. I decline to do so because the finding oferror would not usefully be sent back for reconsideration on a directed basis, wheresuch a degree of dissatisfaction was held by the Court with the way expert evidencewas approached, the insufficiency of evidence, and with other findings of effectswhich would militate against consent being granted, for example, dust, vibration,effects on amenity. These and others presently stand in the way of consent.The future[323] This judgment on appeal recognises that the correct pathway to quarry consentin the Bund zones is newly tested. There is no error in the pathway taken by the Court.There is no principle whereby the sacrifice of a few for the 'greater good', is asustainable environmental outcome. The Court recognised the importance ofquarrying to the economy when it came to its Decision.[324] This judgment is by no means the end of the line for HGL for this site, if it isable to mount a fresh case addressing the material deficiencies in the evidence whichthe Environment Court identified. The bigger hurdle in front of HGL is that thejudgment of the Environment Court represents a recognition that there is a point atwhich the accumulation of effects may go too far, to be more than minor even withmitigation, and to be contrary to the Objectives and Policies in the District Plan.[325] The Environment Court has signposted clearly where the evidence fell shortacross several fundamental elements of effect. In some cases, it was for want ofevidence, in others it was not satisfied the persuasive burden on HGL was discharged.The evidential shortfall is now plain to HGL, and automatically extends to the sumtotal of these evidential deficits, in determining cumulative effects. These should notbe overridden for the clear economic benefits of the consent that HGL seeks for itself,and for the community. There may be other alternatives. The stakes are high, no doubtfor HGL in a commercial sense, but unquestionably for the residents who have seen,felt and live with the advance of quarrying activities around them. The descriptionthat the residents are becoming "sandwiched" between quarries resonates for thisjudgment.[326] There are obvious commercial outcomes which HGL and interested parties,including GAG residents, may wish to pursue. But for one element as to noise, theDecision of the Environment Court represents a commendably thorough and correctapproach to a multifaceted set of required considerations. In the end, the Court hassimply reached a conclusion based on the evidence that this consent, having regard toall relevant and no irrelevant considerations, and in its evaluation of the accumulationof effects constitutes a step too far on what is known, and otherwise that there isinsufficient evidence in several critical respects on which the Court might have beenable to reach another conclusion.G. DISPOSITION[327] The appeal is dismissed.[328] Costs are reserved. If sought, memoranda should be filed promptly and aconference arranged through the Registry.Nicholas Davidson JSolicitors:Duncan Cotterill, ChristchurchChapman Tripp, ChristchurchChristchurch City CouncilNatural Resources Law Limited, ChristchurchSCHEDULE