ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NZ INC V KAPITI COAST DISTRICT COUNCIL AND ANOR CA CA695/07

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NZ INC V KAPITI COAST DISTRICT COUNCIL AND ANOR CA CA695/07 12 March 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA695/07 [2009] NZCA 73BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED Appellant AND KAPITI COAST DISTRICT COUNCIL First Respondent AND KOTUKU PARKS LIMITED Second Respondent Hearing: 13 November 2008 Court: Chambers, Robertson and Baragwanath JJ Counsel: T J Castle, P T Beverley, and T J Ryan for Appellant J G A Winchester and M J McDermott for First Respondent J S Kos QC and J L Verbiesen for Second Respondent Judgment: 12 March 2009 at 3 pmJUDGMENT OF THE COURT A The appeal is dismissed. B No order as to costs. REASONS OF THE COURT(Given by Chambers J)Table of ContentsPara NoA subdivision at Waikanae [1]Issues on the appeal [7]What is the correct interpretation of s 94A(c)?The statutory framework [12]The argument in the High Court [15]The argument in this court [17]Our assessment [20]Did the council incorrectly treat DOC's approval when making its s 93 decision? [30]Result [41]A subdivision at Waikanae[1] In 1985, Kotuku Parks Ltd, the second respondent, began a staged subdivision on land it owned at Waikanae on the Kapiti Coast. As part of the overall plan, a large tract of land, which encompassed part of the Waikanae estuary, was in 1987 given as a reserve. It became the Waikanae River Estuary Scenic Reserve and has been administered by the Department of Conservation (DOC). [2] In 1998, Kotuku applied for resource consent to subdivide part of its remaining land – some 3.1 ha – into 31 residential allotments. This was Stage 4 of the overall subdivision plan. The Kapiti Coast District Council, the first respondent and the local authority with responsibility for the area, granted a resource consent, but subsequently the Environment Court quashed that decision. [3] In 2004, Kotuku applied again for a resource consent. This application differed significantly from the 1998 application. It proposed subdivision of only 2.1 ha (which were part of the 3.1 ha involved in the 1998 application), but this time only 10 residential allotments were proposed. Kotuku sought to have the application dealt with under the Resource Management Act 1991 on a non-notified basis. While the council was considering this application, the Royal Forest and Bird Protection Society of New Zealand Inc, the appellant, found out about the application. Forest and Bird considered the subdivision should not be approved, at least in its current form. Further, the society thought the application should be publicly notified, as the 1998 application had been. [4] In January 2006, DOC, in its capacity as the administrator of the scenic reserve, gave written approval to the subdivision application for the purposes of s 94of the Resource Management Act. Section 94 is part of the group of sections (ss 93-95) dealing with whether an application for a resource consent should be publicly notified. Under s 94A(c), a consent authority (in this case, the Kapiti Coast District Council) is obliged, when making the decision whether to notify, to "disregard any effect on a person who has given written approval to the application". [5] On 7 September 2006, the council decided Kotuku's application would proceed on a non-notified basis. On 25 September, it granted the application. [6] In March the following year, Forest and Bird applied in the High Court for judicial review of the council's decision not to notify. In November, Simon France J dismissed the application: HC WN CIV 2007-485-635 21 November 2007. Forest and Bird appealed.Issues on the appeal[7] In the High Court, Forest and Bird took a number of points, none of which was successful. In this court, however, Mr Castle, for Forest and Bird, advised that "the sole issue [was] the correct interpretation of s 94A(c) of the RMA". He submitted that the council had been wrong, in deciding whether to publicly notify the application, to put to one side the impact of the subdivision on the reserve given DOC's written approval under s 94A(c). Simon France J found the council had been right to do so: at [113]. [8] For the reasons which follow, we hold that Simon France J's interpretation of s 94A(c), which was supported by Mr Winchester for the council and Mr Kos QC for Kotuku, was not right. Our interpretation of the section is perhaps more nuanced than Mr Castle's, but substantially in line with what he advocated. [9] Having reached that conclusion, we were not convinced, however, that Forest and Bird should necessarily win on this appeal. It seemed to us distinctly arguable that the council planners, who, under delegated authority, had determined that Kotuku's application should proceed on a non-notified basis, had not in fact "put to one side the impact of the subdivision on the reserve" when determining whether ornot to notify. That is to say, there seemed to us something of a mismatch between the approach they had in fact adopted and Mr Winchester's submissions on the law. [10] We decided to call for further submissions on this issue. In a minute, we explained to counsel our provisional view on what had been the sole issue on this appeal. We went on:Simon France J observed that, if consideration had to be given to impacts on the reserve, "the process was inadequate": at [113]. He does not explain why as it was not relevant on his interpretation of s 94A(c). We have some difficulty with His Honour's obiter dicta in this regard. It currently seems to us distinctly arguable that the planners in this case did properly consider the effects on the reserve in line with the nuanced, purposive approach we have adopted. We are conscious, however, that this is not a matter on which counsel addressed us.[11] We are grateful to counsel for the further submissions filed. The need to call for those submissions has delayed this judgment to a degree.What is the correct interpretation of s 94A(c)?The statutory framework[12] Once a consent authority has received an application for a resource consent, it must first determine whether the application is to be publicly notified. That decision is easy where the applicant has requested public notification, as in that event notification is mandatory: s 94C(1). Kotuku did not request such notification. Where no such request is made, the consent authority must undertake a preliminary analysis of the effects of what is proposed. If satisfied the adverse effects of the activity will be minor, public notification is not required: s 93(1). If not so satisfied, public notification is required. For convenience, we set out s 93:93 When public notification of consent applications is required(1) A consent authority must notify an application for a resource consent unless- (a) the application is for a controlled activity; or(b) the consent authority is satisfied that the adverse effects of the activity on the environment will be minor. (2) If subsection (1) applies, the consent authority must notify the application by- (a) publicly notifying it in the prescribed form; and (b) serving notice of it on every person prescribed in regulations.[13] Section 94A sets out some particular considerations the consent authority must not take into account when forming its opinion of the adverse effects of the activity:94A Forming opinion as to whether adverse effects are minor or more than minorWhen forming an opinion, for the purpose of section 93, as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority- (a) may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect; and (b) for a restricted discretionary activity, must disregard an adverse effect of the activity on the environment that does not relate to a matter specified in the plan or proposed plan as a matter for which discretion is restricted for the activity; and (c) must disregard any effect on a person who has given written approval to the application.[14] The crucial statutory provision, for present purposes, is para (c). DOC had given written approval to the application. The council accordingly, when forming its opinion of the adverse effects of the activity, disregarded effects on DOC. The question is whether this paragraph also requires the council to disregard effects on DOC's land, namely the reserve. Should the council in effect pretend the reserve does not exist?The argument in the High Court[15] Simon France J summarised the issue in this way:[95] The issue is the scope of paragraph (c). Is it open to a landowner to sign off on all adverse impacts on a site, regardless of their significance? If so, the effect of a written consent is to prohibit the decision-maker frommaking its own assessment of whether the wider costs of the proposal on the environment are too great.[16] He then, with some reluctance, answered the question he had formulated as follows:[112] All that said, and with what might be argued to be a lack of interpretative creativity, I conclude that the words mean what they say. They are plain on their face, and it is difficult to ignore that Parliament, having once removed them, specifically and quite quickly put them back in. No attempt was made to limit their obvious effect. [113] I therefore consider the Council was right to put to one side the impacts on the Reserve. Section 94A(c) required the decision-maker to accept DOC's consent on its face. I note for completeness, that there can be no doubt that if consideration had to be given to these impacts the process was inadequate. That is to be expected given the Council's view that it was obligated not to consider these adverse impacts.The argument in this court[17] Mr Castle, picking up on the judge's view "that the words mean what they say", submitted that indeed "the wording of the section is plain". But, he said, the High Court had adopted an interpretation which "was inconsistent with that plain meaning". He submitted that, while the paragraph required the council to disregard the effects of the proposal on "a person" (that is, DOC), it did not mandate disregard of "the environment" owned or administered by that person. Thus, the council should have taken into account the effects of the subdivision on the reserve. [18] Mr Winchester drew a sharp distinction between the "notification stage" and the "merits assessment". At the notification stage, "person" in s 94A(c) is "equivalent to the 'environment' ". That is to say, in determining whether to notify an application, the council must disregard the effects on the environment/land of any person who has given approval to the proposal. (This was effectively the conclusion to which Simon France J had come.) [19] The next stage was the merits assessment under s 104. This required, Mr Winchester said, "a different and considerably broader test". At first blush, that seems unlikely, given that the wording of s 94A(c) and of s 104(3)(b) is effectively the same. (Section 104(3)(b) prohibits consent authorities, when consideringwhether to grant a resource consent, from having "regard to any effect on a person who has given written approval to the application".) But, Mr Winchester explained, s 104 was expressly "subject to Part 2". Part 2 includes ss 5-8. Section 6 relates to matters of national importance and includes recognising and providing for the protection of outstanding natural features and landscapes from inappropriate subdivision, use and development (s6(b)) and the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna (s 6(c)). Because Part 2 was overriding, Mr Winchester argued s 104(3)(b) did "not necessarily limit the application of s 5 or s 6". He added:If a proposal was fundamentally in conflict with Part 2 or did not recognise and provide for a matter of national importance in s 6, consent could be declined.Our assessment[20] In our view, neither Mr Castle's argument nor Mr Winchester's is wholly right. We begin with why we cannot accept Mr Winchester's. [21] Mr Winchester draws a sharp distinction between the notification phase and the merits assessment. Clearly the two assessments are different and sequential. But Mr Winchester's argument proceeds on the assumption that the notification phase has only one focus: who is within "the effects envelope" (to use his expression)? You exclude from the effects envelope, he says, everyone who has given approval and "the environment" (land) for which they are responsible. In our view, however, what ss 93-95 (Mr Winchester's "notification phase") are concerned with is two- fold: (a) a preliminary assessment of the adverse effects of the proposal; and (b) who should be notified about it. [22] It would be wrong to suggest that that first function is or should be carried out without regard to the considerations set out in Part 2. It must involve such considerations, as the consent authority has to form a view as to whether the adverseeffects of the proposal will be minor or more than minor. In that sense, it is a first cut at a merits assessment. [23] Mr Winchester recognised that he could not propound an interpretation which would allow neighbouring landowners, whose approvals may have been won by substantial payments by the developer, to dictate whether a development would proceed. His solution was to rely on the words "subject to Part 2" in s 104(1). This would mitigate the effects of his interpretation of s 104(3)(b), namely that "person equals land". We do not accept that for the following reasons. [24] First, the initial merits assessment required by s 93 must be as much subject to Part 2 as the definitive merits assessment required by s 104. It would make no sense to assess effects one way (ie with blinkers on) for the purposes of s 93 and differently for the purposes of s 104. [25] Secondly, we can see no point in adopting an interpretation of s 104(3)(b) which necessitates use of the Part 2 override in order to reach a sensible result. In this regard, we note that, while s 104(1) is expressly subject to Part 2, s 104(3) itself is not. Further, the interpretation of s 104(3)(b) and s 94A(c) must be the same. Mr Winchester, in order to prevent his interpretation of s 94A(c) leading to an unreasonable result, has to fall back on s 94C(2), which allows consent authorities to publicly notify applications where they consider "special circumstances" to exist. Surely a better approach is to achieve an interpretation of s 94A(c) and s 104(3)(b) which makes sense in its own right. [26] Sections 94A(c) and 104(3)(b) require a purposive – necessarily nuanced – approach. In the great majority of cases, a neighbour's consent will mean that that neighbour's land can effectively be ignored, both in the s 93 assessment of effects and at the s 104 stage. Take the case where A is planning to build a wall of his house a little over plan height restrictions. A's neighbour, B, consents. The overheight wall has no other environmental effects. In those circumstances, the consent authority can ignore the effect on B's land. B's consent effectively "binds" any future owners of the land. If B considers the effects minimal, then so be it. The consent authority need have no concern.[27] At other times, however, a particular piece of land may be of such importance in terms of Part 2 that it would be inappropriate to treat the current owner or administrator of it as the sole arbiter of the effects on that piece of land. In those circumstances, if that owner or administrator consents, his or her consent would mean that the consent authority could disregard effects personal to that owner or administrator, but could not disregard the wider effects, including effects to the land as it may be used or viewed by others, including the general public. [28] This conclusion is similar to, though perhaps not identical with, the approach advocated by Mr Castle. It is clear that the reserve in the present case is land in the second category. The reserve is of great significance to the Waikanae environment and extensively used and admired by the public. In these circumstances, DOC's approval, while relevant, does not mean the council should have ignored the reserve and the subdivision's impact on it when making the s 93 and s 104 assessments. [29] In summary, therefore, we do not accept Simon France J's view that s 94A(c) means that "a landowner [can] sign off on all adverse impacts on a site, regardless of their significance", a "sign-off" which the consent authority must respect. Sometimes that may be the practical effect, but all merits assessments – and the s 93(1) assessment is a "first cut" merits assessment – must be undertaken in accordance with the Act, and in particular with the purpose and principles set out in Part 2 of the Act.Did the council incorrectly treat DOC's approval when making its s 93 decision?[30] We now turn to the second issue. Simon France J considered that if, contrary to his view, s 94A(c) required the council to consider impacts on the reserve, then "the process was inadequate": at [113]. He did not explain why as it was not relevant on his interpretation of s 94A(c). [31] Before us, Mr Castle strongly supported the judge's observation. Messrs Winchester and Kos submitted the judge had been wrong. Because we donot have the benefit of the judge's reasoning, we have had to evaluate this aspect for ourselves. [32] We have concluded that the council's planners evaluated Kotuku's application in accordance with our interpretation of s 94A(c). These are our reasons. [33] The first point to note is that Kotuku's land was in a residential zone. The proposed residential lots ranged in size from 1060 m 2 to 3340 m 2 , considerably in excess of the 450 m 2 minimum lot size required for controlled activity subdivision in the residential zone. The only reason the proposal was a discretionary activity rather than a controlled activity proposal was that, during the course of development, earthworks involving 13,000 m3 of cut and fill will be required. Kotuku proposed that these earthworks be undertaken in accordance with an earthworks management plan which had been submitted and approved in principle by the council's subdivision engineers. [34] The council's planning officers, who had delegated authority to make all relevant decisions in this case, prepared a detailed report for the purpose of the determination they were required to make under s 93(1). They concluded the effects of the proposal were minor and that there were no special circumstances justifying public notification in terms of s 94C(2). In these reasons for judgment, we do not attempt to summarise the planners' reasoning, as it is largely irrelevant for present purposes. We highlight only matters they mentioned which are currently relevant. It is clear from the report that the council's officers did consider the presence of the reserve in reaching their conclusion. They noted it was "identified in the District plan as an ecological area (E81) as well as an outstanding landscape". They further observed that much of the reserve fell within the Coastal Marine Area, but noted there was "a buffer area with an Open Space zoning" between Kotuku's land and the Coastal Marine Area. [35] The planners carefully considered the Environment Court's decision on the earlier application. They noted that Kotuku had significantly modified the subdivision proposal to take into account the court's concerns about the earlier proposal, and in particular its effect on the reserve. In this regard, the new proposalsignificantly reduced the number of lots, reduced the earthworks required from 75,000 m 3 to 13,000 m3 , inserted a planting and buffer zone between the development and the reserve, provided for a dog-proof fence along the legal boundary of the reserve, and proposed a covenant against keeping cats. It was also significant, the planners thought, that Kotuku proposed an additional reserves contribution, providing for access around the lake and from Takahe Drive to the reserve. [36] In addition, the planners noted that the Environment Court had specifically said that its rejection of the 1998 subdivision proposal did not mean "no residential use of the site should be permitted". That observation was not surprising given the land's zoning. The earthworks – the only discretionary activity – were an almost inevitable consequence of a residential subdivision. Their effects were "less than minor", as they would be "temporary in nature, of short duration, and largely physically removed from adjoining residential properties". [37] Following the council's conclusion that the proposal could be non-notified, the same planners considered the application itself. In doing so, they were bound, by s 104(3)(b), not to "have regard to any effect on a person who has given written approval to the application". But that did not mean they totally ignored the reserve or pretended it did not exist. On the contrary, the planners, while noting DOC's consent and its effect, expressly considered "the potential visual effect of the subdivision on the DOC reserve". This was their conclusion:35. Visual Impact and LandscapingThe Landscape and Visual Assessment by Boffa Miskell that accompanies the application explains in depth the measures undertaken to ensure that the ten new dwellings will by and large integrate into the landscape and not be visually obtrusive when viewed from the beach. Building platforms have been identified and all new buildings will have a maximum height of 4.5m. Kotuku Parks Ltd will administer building covenants that will control colour and material selection. All building will be single storey. An extensive planting programme incorporating the use of 2245 native species will be initiated and that given that earthworks and actual development will be in the order of five years time, planting will be well established. 36. The focus of the landscape planting plan is on the five beach front lots adjoining the Waikanae Estuary Scientific Reserve. Theplanting areas are outside the areas that will be earthworked and have been set back three metres from the reserve boundary. The boundary fence is currently under construction and the form has been agreed in consultation with DoC. The fence is a 1.8m high chain link dog proof structure – an open wire mesh fence being preferable from a landscape and visual perspective. 37. Boundary fencing on the lots adjoining Lake Ngarara will be low and generally for boundary definition purposes only. It is envisaged that planting along this boundary will provide appropriate levels of privacy and security for these properties. Two Kanuka trees were previously identified by Tim Park – Council's Former Biodiversty Co-ordinator, and these will be protected. 38. The landscaping mitigation proposals outlined in the Boffa Miskell Landscape and Visual Assessment will assist in integrating the proposed development of this residentially zoned site into the wider estuarine setting in a manner that is considered to be both sensitive and appropriate.[38] These considerations were then reflected in a number of conditions to which the planners made the consent subject. These in themselves demonstrate that the planners did consider effects on the reserve. It could not possibly be said they had, because of DOC's approval, ignored the reserve, let alone pretended it did not exist. [39] No doubt, at least subconsciously, the planners took some comfort from the fact that DOC had consented to the proposal. DOC is, of course, a governmental entity with statutory responsibilities over the reserve. It would be hardly likely to consent to a proposal if it considered it would adversely affect the reserve. There would have been nothing wrong with the planners weighing that approval as a factor in their determinations, but at the end of the day they recognised the proposal required their assessment. While they disregarded the effects on DOC, they did not disregard the effects on the reserve itself. In the circumstances of this case, that was the correct approach. [40] One final comment. Forest and Bird interpreted our minute requesting further submissions as if we were opening up the merits of the council's notification and resource consent decisions. The merits have never been in issue on this appeal. All we wanted to explore was whether it was right to say the planners had ignored the reserve when considering whether the adverse effects of the activity on the environment would be minor. It seemed to us, from the material before us, that theyhad not ignored the effects on the reserve, a provisional view which has now been confirmed by the helpful supplementary submissions filed on the respondents' behalf.Result[41] Although Mr Castle succeeded in persuading us that Simon France J had adopted the wrong interpretation of s 94A(c), Forest and Bird must fail in its application for review and on this appeal because of our finding on the second issue. As it turns out, the planners had approached the decision whether to notify in conformity with the interpretation of s 94A(c) which has found favour with us. [42] We make no order as to costs. Honours were shared. The respondents won, in the sense that the appeal has been dismissed. On the other hand, Forest and Bird did have a measure of success on the issue it brought to this court.Solicitors: Buddle Findlay, Wellington, for Appellant Simpson Grierson, Wellington, for First Respondent Shanahan Law, Wellington, for Second Respondent