MOUNT FIELD LIMITED V QUEENSTOWN-LAKES DISTRICT COUNCIL HC INV CIV 2007-425-0700

MOUNT FIELD LIMITED V QUEENSTOWN-LAKES DISTRICT COUNCIL HC INV CIV 2007-425-0700 31 October 2008IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CIV 2007-425-0700UNDER The Resource Management Act 1991 IN THE MATTER OF an appeal under s 299 of the Act BETWEEN MOUNT FIELD LIMITED Appellant AND QUEENSTOWN-LAKES DISTRICT COUNCIL Respondent Hearing: 3 June 2008 Counsel: R J Somerville QC and R H Ibbotson for Appellant J E Macdonald for Respondent Judgment: 31 October 2008JUDGMENT OF HEATH JThis judgment was delivered by me on 31 October 2008 at 2.00pm pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy RegistrarSolicitors: Preston Russell Law, Queenstown Macalister Todd Phillips, QueenstownContents Introduction [1]Background [6]The issues [15]The Environment Court's decision [18]Competing submissions [22]Analysis(a) The interpretation point [26](b) The "existing use" point [53]Result [59]Introduction[1] Mount Field Limited owns a high country property in Central Otago, situated between Mt Dewar and Coronet Peak. It is known as Mt Dewar Station. For many years, the land was farmed in conjunction with an adjoining property, known as Coronet Peak Station. An old internal boundary fence ran between the two properties. During the period when the two stations were farmed together there was no incentive to repair or replace the existing fence. However, a problem arose as a result of the inability of staff employed by either Station to keep stock secure and to prevent escape. A new fence was built to solve the problem. [2] After the fence had been erected, the Queenstown-Lakes District Council (the Council) received a complaint. Following some investigations, it decided that a resource consent should have been sought before the fence was erected. The Council contended that the works required to erect the fence were "earthworks" (as defined in the Council's Partially Operative Proposed District Plan (the Proposed District Plan)) and required a resource consent. [3] Having reached that view, the Council applied to the Environment Court for an enforcement order. The Council sought orders requiring Mount Field to restore the land to its original contour, to remove any earth or fill that had been deposited by the works and to re-vegetate areas of earth that had been exposed. [4] Mount Field responded by making its own application to the Environment Court for a declaration that no resource consent was necessary. Mount Field'sapplication was dismissed by the Environment Court (Judge Dwyer, Commissioner Manning and Commissioner Mills) in a judgment given on 15 November 2007. The Court held that "earthworks" had been carried out and that a resource consent was required. [5] Mount Field appeals against that decision on two points of law: a) Did the Environment Court err in its interpretation of the term "earthworks" in the Proposed District Plan? b) Did the Environment Court err in holding that the works undertaken to replace the existing boundary fence were not part of an "existing use" under s 10 of the Resource Management Act 1991 (the Act)?Background[6] The need for a sound boundary fence became apparent when the two stations were operated as discrete commercial enterprises. In many places, the old fence was beyond repair. Over half of it "was completely smothered in hawthorn, briar and wilding pines". In some places, the growth was so dense that the fence was not visible. In other sections, mature pine trees had been felled into a gully, flattening the fence line completely. [7] Mr Davenport has farmed the Mt Dewar Station for five years or so. His evidence is that only since the new boundary fence has been completed has he felt confident that Mount Field's stock is safe and stock on the neighbouring property will not stray. Mr Davenport explained that in one year, while the old boundary fence remained standing, 700 merino sheep were acquired by Mount Field. When the sheep were mustered for shearing five months later, 350 of those sheep were missing and 330 sheep from the neighbouring property were found within the mob. The following year, over 400 sheep were returned to the neighbouring property. [8] The new fence runs along the boundary of the two properties and extends over almost two kilometres. The fence line was cleared with machinery. A benchedarea was constructed to facilitate erection of the fence. The bench was created by cutting from the up-slope side and filling to the down-slope side. Generally, up- slope cuts were formed at an approximate angle of four degrees vertical to one degree horizontal. [9] Mr Hadley, a civil and structural engineer, deposed that "cuts of this nature are accepted treatments to low risk structures and offer adequate moderate short and medium term stability". He also deposed that similar "cut angles" had been used in nearby Skipper's Canyon (for an adjacent mountain bike track) and in Skipper's Road. [10] Construction of the new fence line began in the summer of 2005 and was completed in late summer 2006. Work was virtually halted through the winter, primarily due to snowfalls. The construction method employed was explained by Mr Hadley:8 I have inspected [the] length of the fence line construction from vantage points on the Skippers Road and have walked the lower sections (approximately 300m in length) from the base of Long Gully. 9 I am advised that the requirements for the fence line were assessed by the Farm Manager in terms of stock control specific to the conditions in the Skippers Canyon environment. This involved "sizing the fence" to allow for stock jumping from higher grounds and mounting the fence due to snow accumulation. I am advised that for stock control purposes it was determined that the fence was to be constructed centrally on a bench approximately 3m wide. I understand the approximate 1.5m wide bench each side of the fence limits the possibility of stock jumping the fence from an elevated position due to topography and snow accumulation. 10 As stated previously I am not a farming expert, however I am involved in the provision of engineering services on large stations elsewhere in the lower South Island. It is my observation that fencing work on these properties typically involves clearance of an "easement line" or corridor for the fence construction. This clearance work routinely involves vegetation removal and earthworks and I have witnessed this work in the field. Accordingly, the creation of the bench does not strike me as unusual. I also note that in the course of providing services on these properties I have never been instructed to consider design or consent matters which might relate to fencing. Fencing has always been considered "non structural" in terms any work being considered. Fencing activities have always been considered the strict domain of the resident farming experts with no need for specialist consultant input.[11] The Mt Dewar Station falls within the Rural General Zone. That zone comprises the majority of rural lands within the Council's jurisdiction, including alpine areas and National Parks. The purpose of the Rural General Zone includes protection and enhancement of nature, conservation and landscape values, as well as sustaining the life supporting capacity of soil and vegetation. [12] After the fence line had been completed, the Council received a complaint about the extent of benching works which had been undertaken. The complaint was made by the New Zealand Historic Places Trust. The Trust was concerned about an archaeological site, within the Skipper's Pack Track. The track passes from Skipper's Saddle down to the eastern slope of Long Gully, towards Mt Aurum Station and the Branches Station. [13] A Council enforcement officer (Mr Dent) visited Mt Dewar Station on 9 May 2006. Mr Dent deposed that, on undertaking his site visit, he observed a single track which was in two parts. The first part of the track was designed to gain access from the bottom of Long Gully to the main benched alignment containing the newly erected fence line. The second part, to which he refers as the main track, is the benched alignment containing the new fence line. [14] As a result of Mr Dent's inspections and subsequent inquiries, the Council formed the view that construction work had been undertaken contrary to the terms of the Proposed District Plan. The Council's concern is the disturbance of an area of land that is classified as of Outstanding Natural Landscape. The disturbance is said to arise from the benching works and the track used to get machinery to the building sites. The Council contends that an intended disturbance of that scale required a resource consent to safeguard views, outlook, character, dominance and amenity.The issues[15] Two issues arise on Mount Field's appeal. [16] The first concerns the definition of the term "earthworks" in the Proposed District Plan. The definition excludes from its scope "the cultivation of land and thedigging of holes for offal pits and the erection of posts or poles or the planting of trees". The question is whether the benching work undertaken fell outside the definition of "earthworks". If it did, no resource consent was required to construct the fence. I refer to this issue as the "interpretation point". [17] The second issue is whether the previous boundary fence was a "use lawfully established before" the district plan "became operative or the proposed plan was notified" and the effects of the use after works had been undertaken, were "the same or similar in character, intensity, and scale to those which existed" before the Proposed District Plan was notified: s 10(a) of the Act. I refer to this issue as the "existing use point".The Environment Court's decision[18] On the interpretation point, the Environment Court, applying Nanden v Wellington City Council [2000] NZRMA 562 (HC) and Brownlee v Christchurch City Council [2001] NZRMA 539 (Env C), rejected the proposition that, because one aspect of works undertaken (erection of a fence) was permitted, it was absurd or anomalous that another aspect (the earthworks) required a resource consent. [19] The Court relied on a concession from expert witnesses called by Mount Field that, if Mount Field had wished to undertake benching works to establish a new access track disturbing the same volumes of material as were involved in the fencing construction, a resource consent would have been required for that track. The Court concluded:It seems to us anomalous and absurd that identical works with identical effects could be undertaken for the purpose of establishing a fence and yet no resource consent would be required. (at para [30])The Environment Court did not place weight on any "expectation" of high country landowners that such fencelines could be built without a resource consent. It held that any such "expectations" must be "reasonably informed".[20] On the existing use point, the Court considered that evidence was required to demonstrate how the existing fence had been erected before issues of existing use rights could be considered. It said:[36] What is in contention is whether or not the earthworks undertaken to create the bench for the new fence to be erected on have existing use rights. There is no evidence in the affidavits of Mr Davenport or any other witness to establish what, if any, earthworks were involved in erection of the original fence. What evidence as there is indicates that the original boundary fence followed the lie of the land without any excavations. Even if it was accepted that there were some earthworks undertaken to enable initial establishment of the fence (and there is no proof of that at all), and if we uncritically accepted the proposition that the undertaking of such earthworks on one occasion 70 or more years ago created an existing use right today, there is simply no evidence to establish that the current benching works are of the same or similar character, intensity and scale as those which were originally undertaken. Mr Somerville appeared to accept on behalf of Mount Field that the original fence was put in following the lie of the land and without the advantage of equipment such as diggers for the creation of the bench. [37] We did not understand counsel to dispute that the onus of establishing the case for existing use rights lay with Mount Field, which asserted their existence. That onus has not been met in this case. Such evidence as there is overwhelmingly points to the contrary, namely that there was no substantial earthworks undertaken at the time of the original fencing.[21] Helpfully, the Environment Court summarised its conclusions as follows:[40] For the reasons set out above we draw the following relevant conclusions in these proceedings:• The fence established by Mount Field on its land at Long Gully near Queenstown is a structure permitted by the [Proposed] District Plan.• The benching works undertaken by Mount Field to enable establishment of the fence constitute earthworks as defined in the [Proposed] District Plan.• The earthworks undertaken do not fall into the exclusion from the definition contained in the [Proposed] District Plan.• In addition to being a permitted structure under the [Proposed] District Plan the fence also constitutes an existing use for the purposes of s 10 [of the Act].• The benching works undertaken by Mount Field to enable the replacement or renewal of the fence cannot be demonstrated to have existing use rights pursuant to s 10 [of the Act].• The benching works undertaken require resource consent. .Competing submissions[22] Mr Somerville QC, for Mount Field, submitted that the erection of a typical high country fence is specifically excluded from the definition of earthworks. He contended that the Environment Court erred in holding the exclusion did not apply because "benching" was not specifically mentioned in the exclusionary words. The definition of "earthworks" is set out at para [26] below. [23] On the existing use issue, Mr Somerville submitted that the new fence, erected to replace the old fence, was an existing land use and, therefore, came within s 10. He submitted that a purposive interpretation of s 10 is required. He also argued that the method of preparing the ground for an existing use cannot negate the existing land use to which s 10 refers. Mr Somerville emphasised the Act's focus on land use. [24] Ms Macdonald, for the Council, submitted that the Environment Court was right to hold that the benching work fell outside of the exclusion contained in the definition of "earthworks" in the Proposed District Plan. She submitted that it is only the "digging of holes" that is excluded; other work associated with the erection of a fence, such as benching, fall outside the specific terms of the exclusion. [25] On the existing use question, Ms Macdonald supported the Court's decision that there was no existing use right. Ms Macdonald submitted the Environment Court was right to find there was no evidence as to what, if any, earthworks were involved in the erection of the original fence. Therefore, it was open to the Court to find that the burden of proving an existing use right had not been discharged by Mount Field.Analysis(a) The interpretation point[26] The term "earthworks" is defined in the Proposed District Plan as follows:Earthworks means the disturbance of land surfaces by the removal or depositing of material, excavation, filling or the formation of roads, banks, and tracks. Excludes the cultivation of land and the digging of holes for offal pits and the erection of posts or poles or the planting of trees. (my emphasis)[27] Ms Macdonald helpfully produced submissions to the Council and its decision of August 1998 on Parts 1, 2 and 3 of the Proposed District Plan. [28] Central Electric Ltd made submissions on the definition of "earthworks". It contended that the definition needed to exclude "pole erection" from its ambit. The company suggested that the exclusion to the definition be amended so that "posts or poles or the planting of trees" did not require a resource consent. Another submissions was made by Powernet Ltd. It supported Central Electric Ltd's submission, contending that "pole erection" ought to be excluded from the definition. [29] I set out below are the relevant portion of the Council's record of submissions made and its decision:2.18 Section 2.2 Definitions 'Earthworks' 2.18.1 T Burdon [1252/2] requests that the definition be amended to include offal pits.Central Electric Limited [1304/5] [6213\5] states that the definition of "earthworks" needs to ensure that pole erection is excluded from its meaning. It requests that the definition of earthworks be amended in section 2.2 by adding the following at the end of the last line: "posts or poles or the planting of trees".Powernet Limited [6213\5] supports this submission as it would be inappropriate for pole erection to be included in the definition of earthworks.Federated Farmers Otago [1531\4], [6432\4], [6444\4] considers that the definition should exclude offal pits and holes dug to plan trees or fence posts. It requests an amendment to the definition to exclude offal pits and holes dug to plant trees or fence posts.Bob Pringle [6432\4] supports the submission given the need to account for the needs of rural people.Upper Clutha Rural Landowners/Ratepayers [6444\4] supports this submission and considers there should be less intervention of farming operations.ConsiderationThe Hearing Committee considered that it was appropriate for the suggested amendments for exclusion of poles and offal pits from this definition to be approved as the matters raised for exclusion are relatively minor. It is noted that an exclusion for the planing of trees and the erection of posts is already present in this definition.Decision 2\2.18.1That the submissions of T Burdon [1252\2], Central Electric Limited [1304\5] & Federated Farmers Otago [1531\4] and further submissionsPowernet Limited [6213\5], Bob Pringle [6432\4] & Upper Clutha Rural Landowners/Ratepayers [64444\4] be accepted by amending the definition of Earthworks as follows:" digging of holes for offal pits and the erection of posts or poles or the planting of trees". Reason for Decision i. The matters raised for exclusion are relatively minor. (the Council's emphasis)[30] There are contradictory aspects to the Council's decision to incorporate "offal pits" and "poles" within the exclusions. On the one hand, the Council accepted submissions that amendments should be made because they were "relatively minor". Yet, the submissions of Central Electric Ltd and Powernet Ltd were designed to exclude "pole erection" from the definition, something of greater consequence. [31] As with the construction of a fence, the insertion of a power pole into the ground will be easier to achieve, without disturbance of adjacent land, in low lying areas. But the same problem with digging holes exists in the high country where mechanical assistance is required to dig (or drill) the relevant holes. While there was some material before the Environment Court to suggest that, in high country areas, power poles could be lowered by helicopter, it is difficult to see how holes could be dug to allow the poles to be inserted without undertaking benching work of the type carried out on Mt Dewar Station to erect the new fence. In the case of a fence, it is the benching work required to facilitate the digging of the holes, not the actual placement of the fence posts into the ground, that creates the possibility of inappropriate or unnecessary disturbance of land.[32] Given the nature of the submissions made by Central Electric Ltd and Powernet Ltd, there was little point in the Council authorising digging of holes for power "poles", if the works required to dig them required a resource consent. [33] Mr Hadley provides some support for that proposition. After explaining his understanding of the construction method used (see para [10] above) Mr Hadley addressed alternative construction options:15. In reviewing the fence construction I have considered the alternative options available based on the premise that the fence sizing and need for the 3m bench as reported by the Farm Manager is correct. I note that this premise is supported by my own anecdotal observations of recent fence construction methods on other large rural properties I have visited in a professional capacity. 16. To ensure that earthworks are minimised it seems that the only viable option would have been to conduct a specific earthworks design on the fence alignment much as you would for a road. This specific design would have necessitated detailed topographic survey of the entire fence route and modelling to confirm cut and fill heights. Longitudinal grades would have needed to be optimised to minimise the cut depth into small ridges and spurs. Correspondingly, straining tensions would need to be analysed and hold down requirements in sag or valley points determined. These hold down requirements would have typically involved the use of concrete anchor blocks surrounding fence posts. Accordingly, the construction of hold down points would have created additional disturbance. In my experience I have never received instructions to conduct such detailed work on a live stock fence. In my opinion such extensive work on what might be considered a benign feature such as a fence seems unnecessary, unwarranted and without perspective.[34] Mr Hadley also considered the nature of the work required to comply with the proposed enforcement order:19. The need to bench any restorative fills will result in yet further earthworks and an increase in the area of earthworks disturbance beyond that which exists at present. This brings into question the value of undertaking such restorative works. Additionally, the material will not be able to be replaced until ground conditions are suitable. To place and compact soils requires an appropriate moisture content. It is likely that climatic conditions will prevent the commencement of any effective earthworks until late 2007 at which time soils may be sufficiently dry to allow handling and compaction.[35] When two farming properties are contiguous, it is part of the ordinary course of each farmer's business to erect a suitable internal boundary fence to prevent stockfrom straying from one property onto another. Indeed, one farmer may call upon the other to contribute to the cost of erecting a fence and strict time limits are imposed for a response: see, for example, ss 9-22 Fencing Act 1978. The question is whether the Environment Court was right to interpret the exclusion to the term "earthworks" in a manner that prevented a high country farmer from erecting a sound stock fence, without first seeking a resource consent. [36] My starting point is William Young J's judgment in Nanden v Wellington City Council. His Honour discussed the approach to interpretation of a district plan, saying:[48] The fundamental issues of policy associated with which meaning should be adopted are as follows:– 1. It is desirable for an interpretation to be adopted which avoids absurdity or anomalous outcomes. 2. It is also desirable for an interpretation to be adopted which is likely to be consistent with the expectations of property owners. 3. Practicality of administration by City Council officers is also an important consideration. In particular, it is unlikely that the City Council would deliberately adopt a rule which meant that the lawfulness or otherwise of proposed houses or renovations could only be assessed after lengthy historical research had been carried out.[37] In Brownlee v Christchurch City Council, Judge Jackson (at [25]-[36]) considered, in more detail, the criteria for interpretation. In summarising his approach, Judge Jackson said:[25] In my opinion the relevant factors to consider in interpretation of a plan prepared under [the Act] include: (1) the text of the relevant provision in the plan; (2) the purpose of the provision; (3) the context and scheme of the plan; (4) the history of the plan; (5) the purpose and scheme of the [Act] being the statute under which the plan is prepared and under which it operates; (6) any other permissible guides to meaning (including the common law principles or presumptions of statutory interpretation).[38] In interpreting the definition of "earthworks", a farmer's need to secure his or her stock must be considered against the possibility that a contested hearing of a resource consent application could hinder the ability to farm effectively for some time or, indeed, to respond to a notice from a neighbour under the Fencing Act 1978 in the timely manner prescribed. The undoubted desirability of maintaining the outstanding natural landscape that the Proposed District Plan seeks to protect must be weighed in the same balance. [39] Properties within the Rural General Zone are not homogenous. Some (such as Mount Field's) are in alpine areas, while others are on lower lying lands. However, the terms of the Proposed District Plan, as they apply to "earthworks", must be enforced consistently across the range of properties covered by the Proposed District Plan. [40] A low country farmer within the Rural General Zone may be able to dig a hole to build a fence without a resource consent. On the Council's interpretation, a high country farmer, required to drill into rock to "dig" the hole into which the posts are placed, requires a resource consent. On the face of it, that creates an inconsistency in the application of the "earthworks" rule to different types of farmers within the same zone. Applying category one of William Young J's judgment inNanden, the interpretation favoured by the Council leads to "anomalous outcomes". [41] Similarly, for the reasons set out in para [35] above, the interpretation favoured by the Council is inconsistent "with the expectations of property owners", discussed in Nanden. [42] Having taken both Nanden and Brownlee into account, the Environment Court answered submissions based on anomalous outcomes and inconsistency with expectation of property owners as follows:[30] We agree that it is desirable to adopt an interpretation of the Rule which avoids absurdity or an anomalous outcome We do not accept the proposal that because one aspect of the works undertaken (establishment of the fence) is permitted it is an absurdity oranomaly that another aspect (the earthworks) requires a resource consent. This is the same situation as we have previously discussed in paragraphs 21- 27 of this decision. It is clear from the evidence of Messrs White and Vivian that if Mount Field wished to undertake benching works to establish a new access track disturbing the same volumes of material as are involved in this instance, then a resource consent would be required for the access track. It seems to us anomalous and absurd that identical works with identical effects could be undertaken for the purpose of establishing a fence and yet no resource consent would be required. [31] Insofar as the expectation of high country landowners is concerned we consider that this can only be taken so far. In our view the expectations of landowners must be reasonably informed expectations. In this case the Mount Field land is situated within the Rural General Zone of the District Plan. Mr Vivian identified that the District Plan has the following zone purpose for the Rural General Zone:The purpose of the Rural General Zone is to manage activities so they can be carried out in a way that:- protects and enhances nature conservation and landscape values;- sustains the life supporting capacity of the soil and vegetation;- maintains acceptable living and working conditions and amenity for residents of and visitors to the Zone; and- ensures a wide range of outdoor recreational opportunities remain viable within the zone. The zone is characterised by farming activities and a diversification to activities such as horticulture and viticulture. The zone includes the majority of rural lands including alpine areas and national parks.[32] Accordingly, although the District Plan recognises that the Rural General Zone is characterised by farming activities, it seeks that those activities are managed in a way which (inter alia) protects and enhances nature conservation and landscape values. Under those circumstances it is not unexpected that the District Plan will contain controls on activities such as earthworks which have the potential to adversely impact on nature conservation and landscape values as the benching works allegedly do in this instance. It should be noted that the District Plan does not require resource consent for all earthworks. It is only when trigger levels in respect of such matters as area and volume of earthworks are met that resource consents are required. [33] Mr Somerville advised us that this is a test case. In our view we do not have sufficient information before us to adequately assess the wider implications of this decision in terms of impact on normal farming or fencing practices. What we can say as a matter of principle is that it is not unreasonable that activities which require high volumes of land disturbancemight be subject to some form of control under the District Plan. (my emphasis)[43] The critical finding of the Environment Court was that, as a matter of principle, it was not unreasonable that a territorial authority regulate activities which require high volumes of land disturbance, particularly when such activities occur in an area subject to zoning requirements to protect and enhance nature, conservation and landscape values: at [28] and [31]. Was that approach correct? [44] Using the approach to interpretation favoured in Nanden and Brownlee, the definition of "earthworks" has two component parts. The first provides a definition of what constitutes "earthworks". The second excludes from that definition certain activities. See para [26] above. [45] On a natural reading, the exclusionary words permit a farmer operating on land within the relevant zone to erect posts, for the purpose of fencing. In the same way, power companies are allowed to erect poles designed to transmit electricity from one place to another. There is a strong argument to suggest that a farmer should be entitled to undertake work reasonably necessary to enable the fence to be constructed. After all, an internal boundary fence can only be erected in one place, on the boundary of the two relevant properties: cf ss 8 (encroachment) and 22 (placement of fence on the boundary) of the Fencing Act 1978. [46] The 1998 amendments to the definition of "earthworks" add support to that interpretation. While it may be problematic to characterise the erection of "poles" for the purpose of transmitting electricity as "relatively minor" (see the Council's decision set out in [29] above), there is no doubt, from the submissions made to Council, that it was well aware of the purpose for which both Central Electric Ltd and Powernet Ltd sought the additional exclusion. To put "poles" into the ground also requires work to be undertaken that is reasonably necessary to produce holes into which the poles are inserted. [47] It would be anomalous for the exclusion to be interpreted in a manner which gave farmers in low lying areas greater freedom to erect an internal boundary fence than those operating in the high country. All farm owners have a reasonableexpectation that they may erect internal boundary fences to prevent stock from straying from one property to another. The Fencing Act requirements are universal in their application. In that sense, the interpretation I favour can be seen as consistent with the "informed" expectations of property owners. [48] For those reasons, I disagree, respectfully, with the reasons given by the Environment Court for holding that the fence line could not be erected without a resource consent. In my view, the proper interpretation of the "earthworks definition" allows a farmer operating within the Rural General Zone to erect an internal boundary fence and to do all work reasonably necessary to undertake that task without a resource consent. [49] It is important that I give some guidance on what I mean by the phrase "reasonably necessary". First, this is not a carte blanche to enable a farmer to do whatever he or she wants to do to erect a fence. What is "reasonably necessary" will be determined by reference to the minimum disturbance to the adjacent land that can be achieved to construct the fence. Second, what is "reasonably necessary" will be assessed by reference to the need for the middle of the fence to be on the boundary line with the posts required to erect it being placed "on the boundary line or as near thereto as practicable": s 22 of the Fencing Act. [50] It will be a matter for individual farmers to take advice from professionals and, where appropriate, to confer with Council officials to establish what earthworks are reasonably necessary to construct the fence. If works were not (objectively) reasonably necessary, the farmer runs the risk of an application to the Environment Court for an enforcement order to remedy any breach of the Proposed District Plan. An enforcement order could properly be sought if unnecessary earthworks were carried out. Unnecessary works may give rise to concerns about the protection and enhancement of nature, conservation and landscape values which the Council can legitimately act to enforce. Inevitably, whether work is "reasonably necessary" will turn on an evaluation of relevant expert evidence, having regard to the nature of the land.[51] It is impracticable for me to embark upon a consideration of whether the works undertaken by Mount Field were or were not reasonably necessary to erect the fence. There is some evidence that they were reasonably necessary (eg Mr Hadley) but there is other evidence (eg Mr White and Mr Vivian) to which the Environment Court referred that might suggest the degree of earthworks went too far. [52] For that reason, I propose to remit the proceeding to the Environment Court to reconsider its judgment in light of the interpretation of the term "earthworks" I have set out in this judgment.(b) The "existing use" point[53] I can deal with the "existing use" point shortly. [54] The Environment Court's conclusions on the "existing use" point are set out in para [20] above. The Court did not consider there was any evidence to establish what earthworks were involved in the erection of the original fence. Indeed, the Court held that such "evidence as there is indicates that the original boundary fence followed the lie of the land without any excavations": at [36] of its decision. [55] In the absence of evidence to establish that the benching works undertaken to erect the new fence were "of the same or similar character, intensity and scale as those originally undertaken", the Court was not prepared to hold that Mount Field had established any existing use rights, the onus being on Mount Field to do so. [56] Section 10(1) of the Act provides:Certain existing uses in relation to land protected(1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if— (a) Either— (i) The use was lawfully established before the rule became operative or the proposed plan was notified; and(ii) The effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified: (b) Or— (i) The use was lawfully established by way of a designation; and (ii) The effects of the use are the same or similar in character, intensity, and scale to those which existed before the designation was removed. (my emphasis)[57] The relevant "use" is the ability to carry out earthworks in order to erect the fence. It is not the ability to "use" the fence for a particular purpose, once erected. The focus is on the land, not the structure erected. [58] For that reason, the Environment Court was right to hold that there was no evidence of what, or the degree of, earthworks that were required to erect the original fence. Any proved existing use related solely to the use of a fence. In my view, the reasoning of the Environment Court on this issue is correct and its decision cannot be impugned.Result[59] For the reasons given: a) The question set out at para [5](a) above is answered "yes". b) The question set out in para [5](b) above is "no". [60] I hold that Mount Field was entitled to carry out all earthworks reasonably necessary to enable it to construct the fence in issue. An enforcement order may only be sought in respect of any earthworks that were not reasonably necessary to perform that task. [61] The appeal is allowed. The proceeding is remitted to the Environment Court for it to reconsider whether the declarations sought by Mount Field should be granted, having regard to the interpretation of the term "earthworks" set out in paras[48] and [50] above. It is for the Environment Court to determine whether it wishes to hear further evidence and the procedure to be followed at any further hearing. [62] Mount Field is entitled to costs. Costs are awarded on a 2B basis, together with reasonable disbursements. Costs and disbursements shall be fixed by the Registrar. I certify for second counsel. [63] I thank counsel for their assistance. __________________________ P R Heath J Delivered at 2.00pm on 31 October 2008