TE RŪNANGA O NGĀTI AWA v WHAKATĀNE DISTRICT COUNCIL [2022] NZHC 819

TE RŪNANGA O NGĀTI AWA v WHAKATĀNE DISTRICT COUNCIL [2022] NZHC 819 [26 April 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2021-463-66[2022] NZHC 819UNDER the Resource Management Act 1991IN THE MATTER OF an appeal under section 299 of the ResourceManagement Act 1991BETWEEN TE RŪNANGA O NGĀTI AWAAppellantAND WHAKATĀNE DISTRICT COUNCILRespondent(continue over page)Hearing: 17 November 2021(Undertaken via VMR during COVID-19 Alert Level 3)Appearances: H K Irwin-Easthope and K J Tarawhiti for appellantA M B Green and M S Jones for respondentV J Hamm and L C Murphy for applicant for consentN R Coates and A O Houia-Ashwell for section 301 partyJudgment: 26 April 2022JUDGMENT OF HARLAND JThis judgment was delivered by me on 26 April 2022, at 3:30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar Date..Counsel/Solicitors:Whāia Legal, WellingtonBrookfields Lawyers, AucklandHolland Beckett, TaurangaKāhui Legal, WellingtonMMS GP LIMITEDApplicant for consentCAROLINE TAKOTOHIWI (ONBEHALF OF NGĀI TAIWHAKAEA)Section 301 partyIntroduction[1] On 4 March 2021, the Whakatāne District Council (the Council) grantedresource consent to MMS GP Limited (MMS) to develop land now owned by it at77 Bunyan Road, Coastlands/Ōpihi, which is of enduring and significant ancestralvalue to Te Rūnanga o Ngāti Awa and Ngāi Taiwhakaea (the Ngāti Awa parties). Theseparties (and one other) appealed the Council's decision to the Environment Court. TheEnvironment Court decided that as a result of amendments made to the ResourceManagement Act 1991 (RMA) at the time, the Ngāti Awa parties did not have the rightto appeal the Council's decision.1[2] The Ngāti Awa parties have appealed the Environment Court's decision to thisCourt.The basis for the appeal[3] Under s 299 of the RMA, the right to appeal a decision of the EnvironmentCourt is limited to an appeal on a question of law. In this appeal, I am asked todetermine whether the Environment Court's interpretation of s 120(1A)(c) of the RMA(now repealed) was correct. A question of statutory interpretation is clearly a questionof law that is able to be appealed to this Court.[4] For reasons I develop later in this judgment, the Environment Court wasrequired to determine whether the consented activity in the Lifestyle and RetirementPrecinct part of the development was a "residential activity" as defined under the RMAbecause, if it was, the right to appeal would only be available if the residential activitywas a non-complying activity and it was common ground that it was not.[5] The Environment Court determined that the consented activity was aresidential activity and therefore concluded it had no jurisdiction to consider ordetermine the three appeals brought to it by the Ngāti Awa parties.1 Manukorihi Tarau – Ngāti Taiwhakaea v Whakatāne District Council [2021] NZEnvC 108(Environment Court decision).[6] In this appeal, the Ngāti Awa parties submit that the Environment Court erredin law in determining that the Court was precluded under section 120(1A)(c)2 of theRMA from considering or determining the three appeals,3 including by:(a) applying an erroneous approach to the interpretation of "residentialactivity" as defined under the RMA (including at paragraphs [24], [25],[27], [28], [30], [33], [36], [38] and [40]);(b) concluding that the consented activity is a residential activity within themeaning of section 95A(6) of the RMA as at 30 September 2020 (atparagraph [42]);(c) determining that section 120(1A)(c) of the RMA as at 30 September2020 precludes a right of appeal against the Whakatāne DistrictCouncil's decision granting resource consent for the consented activityand therefore the Court has no jurisdiction to consider or determine thethree appeals (at paragraph [43]).[7] The appellant asks the Court to allow the appeal and to refer it back to theEnvironment Court to hear the substantive appeals against the resource consentsgranted by the Council.4Background[8] The background was set out in the Environment Court's decision as follows:5[6] The subject property is an area of land of approximately 27 ha at77 Bunyan Road, Coastlands, within a larger block of approximately 40.5 ha.The block is known variously as the Ōpihi block or the Piripai block. Theblock lies to the north of Whakatāne between the Orini Stream and theWhakatāne River and the sea. To the east is the Ōpihi Whanaungakore urupā,which is a place of great significance to tāngata whenua and which, togetherwith the broader areas surrounding it, is considered by the appellants in theseproceedings to be ancestral land of significant cultural value.2 As the RMA stood between 19 October 2017 and 30 September 2020 (as section 120(1A) (c) wasrepealed on 1 October 2020).3 The three appeals were brought by Te Rūnanga o Ngāti Awa, Manukorihi Tarau on behalf of NgāiTaiwhakaea and Cletus Maanu Paul on behalf of Ōpihi Whanaungakore Trustees.4 Consequential relief and costs are also sought.5 Environment Court decision, above n 1.[7] The land has been the subject of previous proceedings before theEnvironment Court. In 2002 the Court heard two appeals against the grant ofland use consents by the Council to an application by the Council to subdividethe land for residential, reserve and marae purposes and to an application byTe Rūnanga o Ngāti Awa to build a marae on part of the eastern side of theblock.6 The Court confirmed the Council's decisions. In the course of itsdecision, the Court considered the application of the Act, and in particularss 6(e), 7(a) and 8, and the approach that ought to be taken to the assessmentof tāngata whenua evidence according to a 'rule of reason' approach.7[8] In 2016 the land was the subject of four appeals from decisions of theCouncil on submissions on the proposed Whakatāne District Plan.8 Theprincipal issue before the Court, remaining after settlement of other issues,was whether the land should be zoned to enable its subdivision anddevelopment for residential purposes in accordance with a proposed structureplan. The Court confirmed the appropriateness of such a structure plan in itsinterim decision and, in its final decision, confirmed the terms of the ŌpihiStructure Plan.[9] The block has now been subdivided to create the subject property andseveral reserves around it. On the seacoast immediately to the north is a localpurpose reserve for coastal protection. Immediately to the south on theBunyan Road frontage is a local purpose reserve as a landscape buffer. In thesouthwestern corner is a small local purpose reserve for a pumping station. Tothe west is existing residential development known as Coastlands.Immediately to the east is a lot identified as a buffer to the ŌpihiWhanaungakore urupā, which is on another block further to the east.[10] The subject property is zoned Residential in the operative DistrictPlan and is also subject to the Ōpihi Structure Plan. Dwellings, includingmultiple dwellings per lot, are provided for as permitted, controlled orrestricted discretionary activities. Retirement villages excluding or includinga hospital are provided for as controlled or restricted discretionary activities.The purpose of the Ōpihi Structure Plan, as identified in Strategic Policy 5 ofthe District Plan, is to enable the development of residential land. StrategicPolicy 8 is to provide for a wide range of housing opportunities including,among other things, retirement-style development in the Residential Zones.[9] In July 2019, MMS GP Limited (MMS) applied for resource consent tosubdivide and develop the land in stages in the main for residential activities. Therewere various iterations to the subdivision and land use application, at least one ofwhich was made following receipt of cultural impact assessments. Anotheramendment deleted an area proposed to be zoned for mixed use which includedcommercial activities such as neighbourhood convenience, retail and café activities.6 Ngāti Hokopu ki Hokowhitu v Whakatāne District Council (2002) 9 ELRNZ 111 (EnvC).7 At [53].8 Trustees of Ōpihi Whanaungakore v Whakatāne District Council [2016] NZEnvC 035 (interimdecision) and [2016] NZEnvC 067 (final decision).[10] Eventually the application sought to create 240 residential allotments with 13access lots, seven road lots and eight reserve lots, as well as a large lot ofapproximately 8.8 ha for a proposed retirement village. The latter is referred to as aLifestyle and Retirement Precinct. Under the relevant plan, the subdivision wasrequired to be considered as a restricted discretionary activity.9[11] In October 2020, the Council appointed Independent Hearing Commissionersto hear and decide the applications.10[12] A hearing was held in February 2021 and the Commissioners issued their reportand decision in respect of it on 4 March 2021. They granted the application subject toconditions.[13] The decision contains a section entitled "Māori values". Although it is theCommissioners' interpretation of the issues presented to it, what is evident from theirreport is that the Ngāti Awa parties have been resolute in their opposition to residentialdevelopment at Ōpihi from at least the turn of the 20th century which, as theCommissioners noted, was based primarily on their traditional status as tāngatawhenua in the Whakatāne district.11 It is also clear from the Commissioners' decisionthat the lot proposed for the retirement village was a significant part of their oppositionto the application because of its proximity to the Ōpihiwhanaungakore Urupā nearby.Although a buffer is provided between the Ōpihiwhanaungakore Urupā and thedevelopment, in the Ngāti Awa parties' view, this was not sufficient to mitigate theeffects they consider they will experience if the development proceeds.9 Environment Court decision, above n 1, at [11].10 Under ss 100A–101, 104C, 108, 220 and 221 of the RMA.11 At [55], CBD page 1098.[14] Condition 4 of the land use consent relates specifically to the Lifestyle andRetirement Precinct.12 For the purposes of this appeal, the relevant parts of condition4 are now reproduced:GeneralLifestyle and Retirement Precinct activities shall comply with the relevantResidential Zone rules of the operative District Plan unless otherwise providedfor below:ActivitiesLifestyle and Retirement Precinct activities may include:1. Dwellings for the purpose of housing people predominantly in theirretirement.2. Services and facilities for the care and benefit of the residents.3. Activities pavilions and/ or other recreational facilities or meetingplaces for the use of residents of that complex and visitors of residents.Detailed Design PlanA Detailed Design Plan for the Lifestyle and Retirement Precinct developmentshall be submitted with supporting plans and other documentation forapproval by the Council or delegate prior to any application for buildingconsent. The detailed design plan shall demonstrate compliance with thestandards as set out above.Advice Note: Development Contributions will be assessed at the time of thesubmission of the Detailed Design Plan taking into account the policiesapplicable at that time and the nature and scale of the activity.[15] Three appeals from the Council's decision were filed in the Environment Courtby the Ngāti Awa parties. Copies of these appeals were not provided as part of theCommon Bundle and no party considered that I should refer to them as part of thisappeal, however, I was advised that the appeals focus on the part of the subdivisionproposed for a retirement village and in particular the activities outlined as 2 and 3 incondition 4, not 1 which permits dwellings for the purpose of housing peoplepredominantly in their retirement.12 Tab 18 Common Bundle of Documents 1041220 (page 1106).[16] The Environment Court decided that it had to determine whether it had thejurisdiction to hear the appeals as a preliminary issue. This required it to interpretss 95A(6) and 120(1A)(c) of the RMA.The amendments to the right to appeal to the Environment Court[17] The Environment Court is a creature of statute. It is established under the RMAand its powers are also set out in the RMA. The right to appeal a decision to theEnvironment Court is provided by s 120 of the RMA. This section remained largelyunamended as to substance until 18 October 2017 when by virtue of the ResourceLegislation Amendment Act 2017,13 the right to appeal against the decision of aconsent authority on an application was restricted.14 Because the application forresource consent in this case was lodged between 19 October 2017 and 1 October2020, the provisions of s 120 as amended by the Resource Legislation AmendmentAct 2017 apply to the appeals filed in the Environment Court by the Ngāti Awa parties.[18] Two new subsections, (1A) and (1B) were inserted into s 120 of the RMA,however only subs (1A) is relevant this appeal. It provides:120 Right to appeal(1) Any 1 or more of the following persons may appeal to theEnvironment Court in accordance with section 121 against the wholeor any part of a decision of a consent authority on an application for aresource consent, or an application for a change of consent conditions,or on a review of consent conditions:(a) the applicant or consent holder:(b) any person who made a submission on the application orreview of consent conditions:(c) in relation to a coastal permit for a restricted coastal activity,the Minister of Conservation.(1A) However, there is no right of appeal under this section against thewhole or any part of a decision of a consent authority referred to insubsection (1) to the extent that the decision relates to 1 or more ofthe following, but no other activities:13 2017 No 15.14 This section has now been repealed and replaced by ss 33 and 37(1) of the Resource ManagementAmendment Act 2020, which came into force on 1 October 2020.(a) a boundary activity, unless the boundary activity is a non-complying activity:(b) a subdivision, unless the subdivision is a non-complyingactivity:(c) a residential activity as defined in section 95A(6), unlessthe residential activity is a non-complying activity.(emphasis added)[19] During the same period, s 95A(6) of the RMA defined "residential activity" as: an activity that requires resource consent under a regional or district planand that is associated with the construction, alteration, or use of 1 or moredwelling houses on land that, under a district plan, is intended to be usedsolely or principally for residential purposes.(emphasis added)[20] The term "dwellinghouse" in s 2 of the RMA provided:dwellinghouse means any building, whether permanent or temporary, that isoccupied, in whole or in part, as a residence; and includes any structure oroutdoor living area that is accessory to, and used wholly or principally forthe purposes of, the residence; but does not include the land upon which theresidence is sited.(emphasis added)[21] As outlined above, if the activities referred to as 2 and 3 in condition 4 of theconsent are not residential activities, they would be non-complying activities. As theEnvironment Judge noted, on the basis that the activity status of all activities formingpart of the retirement village should be bundled together, the whole proposal wouldthen fall to be considered as a non-complying activity and would provide the NgātiAwa parties with a right to appeal to the Environment Court.15 Given that appeals tothe Environment Court are appeals de novo, this would mean all aspects of theproposal, including cultural issues could be reconsidered by the Court.15 At [21].The Environment Court decision[22] After setting out the issues in contention, the background and the statutoryprovisions applicable, the Environment Judge considered the general principles thatapply to provisions that seek to oust the Court's jurisdiction. He then identified thatthe issue he was required to focus on was how the proposed retirement village activityshould properly be considered in light of the statutory definition of "residentialactivity". He undertook this interpretation exercise with reference to HawkesburyAvenue, Somme Street and Browns Road Residents Association Inc v MerivaleRetirement Village Ltd,16 Mackenzie District Council v Glacier and Southern LakesHelicopters Ltd.17 He evaluated the statutory provisions in light of the principlesestablished in those cases.[23] The Environment Judge concluded that the activity that had been consentedwas a residential activity within the meaning of s 95A(6) and because under the planit was in accordance with s 120(1A)(c), the Environment Court had no jurisdiction toconsider or determine the three appeals by the Ngāti Awa parties. Although invited tostrike out the appeals, the Environment Judge did not do so pending the outcome ofthis appeal.Legal principles[24] Section 120(1A)(c) is an ouster clause. Also known as a privative clause, thisis a statutory provision which restricts the supervisory jurisdiction of the Court overexecutive government decision making by preventing those affected by such decisionsfrom appealing or bringing judicial review proceedings against them.[25] The Court of Appeal has held, adopting the reasoning of the House of Lords inAnisminic Ltd v Foreign Compensation Commission, that ouster clauses will not applyto "an error on a question of law which the authority is not empowered to decideconclusively".18 The true question is whether the clause exhibits Parliament's16 Hawkesbury Avenue, Somme Street and Browns Road Residents Association Inc v MerivaleRetirement Village Ltd HC Christchurch AP139/98, 3 July 1998.17 Mackenzie District Council v Glacier and Southern Lakes Helicopters Ltd [1997] NZRMA 569(EnvC).18 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 133; citing Anisminic Ltd vForeign Compensation Commission [1969] 2 AC 147 (HL).intention to give the decision maker the power to determine questions of lawconclusively:19It would be surprising if the legislature were to give a quintessentiallyadministrative officer, however senior power to determine materialquestions of law conclusively; ...[26] Because ouster clauses purport to limit the Court's ordinary supervisory roleover government power, they should be interpreted narrowly.20 There is a presumptionthat Parliament does not intend to exclude judicial review for error of law, though thiscan be rebutted by clear statutory language.21Did the Environment Judge correctly conclude that he did not have jurisdictionto hear the Ngāti Awa parties' appeals?[27] A key aspect of the appeal is whether the consented activity is a "residentialactivity" under s 95A(6) of the RMA.The Environment Court's analysis[28] The Environment Judge outlined the Ngāti Awa parties' argument in para [17]of his decision. He said:[17] The appellants presented submissions focussing on the definition of"residential activity" in s 95A(6) of the Act and the related definition of"dwellinghouse" in s 2. Their central argument is based on the application ofthose definitions to the terms of the resource consent in relation to the lifestyleand retirement precinct. It is that while the dwellings to be occupied byinhabitants of the retirement village are residential activities on land intendedto be used for residential purposes, the services and facilities included in theproposed activities of the retirement village go beyond being "associatedwith" the use of the dwellinghouses, are not "accessory to" such activity andare not used "for the purposes of" the residences. On a strict reading of thestatutory provisions against the terms of the resource consent, theysubmit that the only activities for which a right of appeal is not ousted bys 120(1A)(c) are those directly associated with the use of one or moredwellinghouses. On that basis they argue that the resource consent goesbeyond the ambit of s 120(1A)(c) of the Act and so the ouster ofjurisdiction for an appeal does not apply. The evaluation of this argumentis the focus of this decision.(Emphasis added.)19 At [136].20 Kaur v Ministry of Business, Innovation and Employment [2012] NZHC 3563 at [71].21 Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 2595 at [38] and [39].[29] The Ngāti Awa parties' argument was that the service and associated facilitiescomponent of the retirement village were not sufficiently associated with theresidential part of it and as such, the ouster of the right to appeal did not apply to theirappeals.[30] The Environment Judge then considered how the proposed retirement village,as it was described in the land use consent, aligned with the statutory definition of"residential activity".22 Having noted that in respect of the retirement village as partof the proposal, the applications for consent did not include a great deal of detail, heobserved that although the consent refers to a Comprehensive Development Plan inrespect of the lot for the retirement village, the word "comprehensive" appeared to bein the sense of "overall" rather than "detailed".23 He noted that the plans did not giveany indication about how the retirement village might be laid out or how its variousfacilities might relate to its proposed dwellings.24[31] The Environment Judge then analysed the meaning of associated with,accessory to and for the purposes of, being the phrases contained in s 95A(6) and inthe definition of "dwellinghouse" in s 2 of the RMA he had been asked to interpret.[32] He first referred to s 5 of the Interpretation Act 1999, noting that the meaningof an enactment must be ascertained from its text and in light of its purpose. Withreference to the meanings of the phrases referred to, he said they were phrasesconsisting of "ordinary words in ordinary use". He said:[23] In their context in the Act, they connote relationships betweenactivities or structures. In this case, the particular relationships are thosewhich arise out of residential activities. It follows that the main purpose ofthe phrases should be understood in terms of a resource management contextand residential purposes. Further, it appears to be uncontentious that thepurpose of the enactment of ss 95A(6) and 120(1A)(c) of the Act in 2017 wasto promote residential activity by reducing consenting costs.[33] Section 5 was a useful and appropriate place to start, and the EnvironmentJudge's reference to the phrases in terms of a resource management context andresidential purpose was the correct framework to apply.22 At [20].23 At [12].24 At [13] and [14].[34] The Environment Judge then turned his attention to the meaning of "associatedwith". He decided that the ordinary meaning of this phrase, as it is used in s 95A(6),and when considered with reference to the case law, meant "being connected" or"joined in function (with)". He did not consider the phrase to have the same meaningas "ancillary to" and he said it "did not convey the idea of subordinate use". 25[35] The Environment Judge then considered the meaning of "accessory to" usedin the definition of "dwellinghouse" in s 2 of the RMA. Unsurprisingly, he found it tobe "something that is incidental to another structure or activity". 26[36] The Environment Judge next, considered the phrase "for the purposes of" usedin the definition of "dwellinghouse". He said:27[27] Close attention to the purpose of the structure or area may be asurer guide to the nature of the association than the use of a dictionary becausesuch a purposive approach guides one's sense of the context, whereas relianceon a definition carries the risk of fixing the boundaries of meaning too rigidly.[37] Having considered the purposive approaches taken by the High Court inHawkesbury Avenue and the Environment Court in Mackenzie District Council, butparticularly with reference to the former which involved deciding, following anappropriate statutory interpretation exercise, that a rest home was a residential activity,the Environment Judge then went on to apply the statutory interpretation principlesarticulated in those cases to the facts of this case.[38] While noting that there was no issue between the parties that occupation of adwellinghouse in a retirement village is a residential activity,28 the Environment Judgenext asked whether the element of the resource consent allowing "services andfacilities for the care and benefit of the residents" expanded that residential character.He determined that it did not, because the central purpose of such services andfacilities must be "for the residents".2925 The case law referred to by the Judge was Manukau City Council v Trustees of Mangere LawnCemetery (1991) 15 NZTPA 58 (HC).26 At [25].27 At [27].28 At [34].29 At [36].[39] The Environment Judge then identified examples of activities within thedefinition that could be envisaged as "services and facilities for the care and benefitof the residents" such as rubbish collection, kitchen, dining and healthcare facilities,but he accepted that other activities would require closer analysis. Using"hairdressing" as an example, he noted that such services could be provided on-site toresidents who may otherwise have difficulty in travelling to obtain such serviceselsewhere, and he said this would be "for the purposes of" or "association with",however, establishing a stand-alone hairdressing salon would not.30[40] Accepting that other personal services such as this might arise, theEnvironment Judge nonetheless did not consider it "necessary to attempt to draw abright line".31 He noted that the area zoned in the original proposal for mixed useincluded commercial activities which he said, "demonstrated how associatedcommercial activity could clearly go beyond being a residential activity", but, he said,"the removal of that zoning addressed that issue." He said, "the retirement villagecannot be used as cover for the reintroduction of such activities."32 By this, Iapprehend he meant that on the facts of this case, because of this background, theprospect of commercial activities developing on site that were not primarily providinga service to residents would not arise.[41] The Environment Judge accepted that the part of the resource consent allowing"activities pavilions and other recreational facilities or meeting places for the use ofresidents of that complex and visitors of residents" had the potential to go beyond theprovision of services and facilities for the care and benefit of the residents. However,he decided, adopting a purposive approach, that the scope to do so was not greatbecause of the primary limitation that use of such facilities is restricted to residentsand their visitors.33[42] In respect of this part of the resource consent, the Environment Judge againconsidered that a bright line was unnecessary and might cause its own problems. Heobserved that recreational facilities on a domestic scale are an ordinary part of30 At [38].31 At [39].32 At [39].33 At [40].residential activities and provided swimming pools, tennis courts, games rooms and,workshops as examples of such activities. And he noted that such facilities could behoused in separate buildings or pavilions. By way of analogy, he therefore concludedthat a retirement village could include such facilities for its residents and their visitorswithout (I infer) losing its residential character.34[43] For these reasons, the Environment Judge concluded that the activities outlinedin condition 4 as 2 and 3 were residential activities within the meaning of s 95A(6) ofthe RMA.The Ngāti Awa parties' submissions[44] The Ngāti Awa parties agree with the Environment Judge that definitions inplans cannot affect the statutory definition central to the preliminary issue ofjurisdiction. They contend, however, that despite recognising this, the EnvironmentJudge nonetheless went on to do the opposite. This is because, they submit, theEnvironment Judge considered and ultimately determined the nature of thejurisdictional bar by reference to what is in the contemplation of a retirement villagebased on definitions from planning documents that had been examined through thecase law. The Ngāti Awa parties contend that the Environment Judge's analysiswrongly focused on whether or not activities are "associated with" a retirement village,rather than whether the activities are "associated with" a dwellinghouse for thepurpose of residence.[45] The Ngāti Awa parties submit that in determining whether the jurisdictionalbar to an appeal applies under s 120(1A) of the RMA, it is necessary to consider allaspects of the application against the definition of "residential activity" in s 95A(6)and determine whether all the activities sought by MMS are "associated with theconstruction, alteration or use of one or more dwellinghouses" or, in turn, a subdivisionconsent (other than non-complying). It was submitted that this is particularly the casebecause the emphasis in s 120(1A) in relation to the jurisdictional bar only applies todecisions that relate to those activities that are listed "but no other activities". Counsel34 At [41].submitted that this requires the Court to carefully consider what is included in theproposed retirement village.[46] In support of this argument, counsel referred to the evidence called before theIndependent Commissioners about the proposed retirement village, which was limitedas to detail. I was referred to the evidence of Mr McDonald, a director of MMS35indicating that the establishment of a retirement village was central to the Council'saspiration for the site and formed part of the obligations MMS had as purchasers ofthe land. However, counsel noted that as at 29 January 2021, no retirement operatorhad been appointed and therefore limited information had been provided at the Councilhearing about what may be included. Counsel also referred to the s 42A report andthe Council's decision and submitted that neither describe in detail the non-residentialaspects of the retirement village.36 As outlined above, the Environment Judgespecifically referred to the limited detail about the retirement village in his decision,but he did not consider it limited his ability to interpret condition 4 as required and inrelation to the provisions of the RMA.[47] The lack of information about the nature of the retirement village supports, itwas submitted, the need for caution to be applied in considering the jurisdictional barin this case.[48] The Ngāti Awa parties submitted that the "activities pavilions", "recreationalfacilities", "meeting places" and "care services and facilities" provided in the Lifestyleand Retirement Precinct are not associated with "the construction, alteration or use ofone or more dwellinghouses" as required under s 95A(6) in order for them to becategorised as a residential activity for the purposes of the jurisdictional bar.[49] Counsel then sought to distinguish Hawkesbury and Mackenzie DistrictCouncil as both were decided prior to the introduction of the Interpretation Act 1999.It was submitted that both relate to the proper interpretation of a district plan, ratherthan what is contemplated in the context of a jurisdictional bar. It was submitted thatif the jurisdictional bar was to be interpreted by whether or not the activity was enabled35 Common bundle 201.0001.36 Vol 104 CBD, P 0882.by the District Plan, then a wide ambit of activities would be captured by s 120(1A)(c)and, ultimately, inappropriately restrict natural justice beyond that which had beenintended by Parliament.[50] Counsel next referred to the context for the Resource Legislation AmendmentAct 2017 which it was submitted sought to respond to a housing supply andaffordability crisis.37 It was submitted that a retirement village, such as the one beforethe Court, was not the type of housing infrastructure in contemplation of Parliamentat the time s 120(1A) was promulgated and then enacted.[51] Overall, counsel submitted that the other activities and services of theretirement village "tip the application over" for the purpose of the jurisdictional bar.[52] Agreeing with the Judge that the natural and ordinary meaning of "associated"is "being connected" or "joined in function",38 counsel submitted that the natural andordinary meaning of "associated with" must be informed by the words of ss 95A(6)and 120(1A) of the RMA and the definition of "dwellinghouse". In other words, theassociated activity must be connected or joined in function to any building that isoccupied as a residence, including any structure or outdoor living area that is accessoryto and used wholly or principally for the purpose of residents. By way of comparison,counsel submitted that "activities pavilions", "recreational facilities", "meetingplaces" and/or "care services and facilities" are not connected or joined with adwellinghouse or the purpose of residence. To take that approach, counsel submitted,would mean that any structure in the vicinity of a housing development would qualifyas "associated with" the dwellinghouse.[53] Further, if the gateway to s 120(1A) is to be merely ancillary to theconstruction, alteration or use of one or more dwellinghouses, counsel submitted thatall manner of other activities could be considered to be associated withdwellinghouses, thereby restricting appeals against a wide category of activities.37 Reference was made to Hansard where the first and second reading of the Resource LegislationAmendment Bill specifically stated that it was focused on addressing long-term issues aroundhousing and particularly enabling housing infrastructure.38 Manukau City Council v Trustees of Mangere Lawn Cemetery, above n 27.The Council's submissions[54] In terms of the meaning of "associated with", the Council also agreed that theEnvironment Judge correctly interpreted this phrase by finding that it means "beingconnected" or "joined in function". It was submitted that the Lifestyle and RetirementPrecinct activities would not only be paid for by the residents and managed by thevillage operators, but more importantly, they are necessary to provide the proper careand benefit for elderly residents. In this regard, the Council adopted the EnvironmentJudge's finding that "the sufficient association or connection involves the inter-relationship of functions, management and financial considerations rather thandifferences in the processes used".39[55] In relation to the argument about whether the activity is associated with theconstruction, alteration, or use of a "dwellinghouse", counsel for the Councilexplained that the construction and alteration activities for the Lifestyle andRetirement Precinct are defined by land use consent conditions 3 and 4 and theComprehensive Development Plan (CDP) – Development Controls.40 In addition tothe conditions of consent, counsel submitted that the CDP and the Structure Planprovisions apply and the development is also subject to the relevant residential zonerules in the District Plan.41 As a result of these measures, counsel submitted the scale,character and intensity of the development is adequately delineated, I infer, to requirethe activities noted as 2 and 3 in condition 4 to be appropriately "residential".[56] It was further submitted that "dwellings for the purpose of housing peoplepredominately in their retirement" clearly come within the definition of"dwellinghouse" in s 2 of the RMA. For this reason alone, counsel submitted thats 95A(6), which requires the activity to be associated with the construction, alterationor use of one or more dwellinghouses, has been satisfied. However, it was furthersubmitted that the Environment Judge had gone further and examined whether theproposed lifestyle and retirement precinct activities could be included in the definition39 Environment Court decision, above n 1, at [24].40 Common bundle page 101.010041 Common bundle page 104.1221of "dwellinghouse" as structures that are "accessory to", and used wholly andprincipally "for the purposes of" a residence.42[57] Ultimately, the Council submitted that the Environment Judge correctlyadopted a purposive and contextual approach to his interpretation of the relevantdefinitions, correctly focused his interpretation on the definitions of "residentialactivity" and "dwellinghouse" as defined by the RMA and interpreted them in thecontext of their association with the proposed lifestyle and retirement precinctactivities. It was submitted that this was the correct approach to take and no error oflaw was made.[58] With reference to the Ngāti Awa parties' submission that the EnvironmentJudge erred by relying on case law which focused on plan provisions, the Councilsubmitted that reference in the decision to the cases was simply in relation to mattersof general principle to assist the Court with the interpretative exercise. It wassubmitted that there could be no error of law in referring to those cases for thatpurpose.MMS submissions[59] MMS adopted the same approach as that taken by the Council. In relation tothe activities referred to in condition 4 of the land use consent, MMS submitted thatthe consented activities are clearly limited to dwellings, or by the express reference to"residents", to activities associated with the dwellings within the retirement village.[60] MMS also submitted that:(a) the approach adopted by the Environment Court was entirelyconventional, it did not refer to irrelevant factors such as the DistrictPlan and further, the language of the statute was sufficiently clear topermit ouster of the Environment Court's jurisdiction;42 Environment Court decision, above n 1, at [25] and [26].(b) the Environment Court adopted an approach of identifying the plain,ordinary meaning of the words, having regard to the purpose andscheme of the RMA and evaluated the consented activity against theplain ordinary meaning of the words; and(c) the Environment Court's discussion of Hawkesbury did not detractfrom the interpretative exercise undertaken.Discussion[61] The Environment Judge was correct to start with the statutory definitions. Thekey is the definition of "dwellinghouse" which includes "any structure that isaccessory to, and used wholly or principally for the purposes of, the residence". TheEnvironment Judge analysed this definition in relation to the CDP provisionsapplicable to the Lifestyle and Retirement Precinct. Given that the "services andfacilities", "activities pavilions and/or other recreational facilities or meeting places"are defined respectively as "for the care and benefit of the residents", and "for theresidents of that complex and visitors of residents", it is hard to see how any activitybeyond that which relates to the purpose of residence could be permitted. Arguably,within the definition of "precinct" therefore the reference to "facilities", "pavilions"and "other recreational facilities or meeting places" would come within the definitionof dwellinghouse.[62] For the same reasons, the Judge was right not to put much weight on the limiteddetail about services and facilities.[63] In my view although the Environment Judge correctly concluded that thelimitation for the activities in the Lifestyle and Retirement Precinct to "residents andvisitors of the residents" meant that the definition of "residential activity" unders 95A(6) of the RMA applied to them, I do not agree that he determined these termswith reference to the retirement village rather than dwellinghouses. The activitiesnoted as 2 and 3 in condition 4 specifically limit them to the care, benefit or use ofresidents or their visitors. Importantly, services and facilities are limited to "the careand benefit of residents" only, but "activities pavilions and/or other recreationalfacilities or meeting places" can be used by residents and their visitors. By linkingthese activities to residents, the purpose of the activities is, in my view, inextricablylinked to the definition of "dwellinghouse" and thereby to the definition of "residentialactivity" in s 95A(b).[64] Further, I am not persuaded that the Environment Judge misapplied the caseswhen he undertook his interpretative exercise. It is clear that it was the reasoning inthe cases that he considered helpful, particularly in relation to the Hawkesbury Avenuecase where he specifically said that the Court's reasoning had been helpful given thepurposive way in which it had undertaken the interpretive exercise. In my view, theprocess adopted by the Environment Judge was orthodox, namely, he identified theplain ordinary meaning of the words, and had regard to the purpose and scheme of theRMA.[65] As to the submission by the Ngāti Awa parties that s 120(1A) was introducedto respond to a housing supply and affordability crisis that is not applicable toretirement villages, I agree with MMS that argument cannot be sustained.Fundamentally, retirement villages house people and therefore assist with housingsupply and affordability either by housing older people or freeing up housing stock forthe market as older people move into retirement villages. I take this matter no furtherbecause it is not something which appears to have been argued before the EnvironmentJudge.[66] It is well established that Courts with supervisory jurisdiction will not lightlyaccept the ouster of their jurisdiction. However, if Parliament speaks clearly about itsintention to oust the jurisdiction of the Court, that must be respected.43[67] As to whether a special approach ought to be taken because s 120(1A) is anouster provision, I agree that caution must be taken, however, it is caution in relationto the clarity about which Parliament has spoken of its intention to oust the jurisdictionof the Court, rather than the fact itself of ouster. In my view, the intention ofParliament as expressed in s 120(1A) is clear. It only intended to allow parties toappeal decisions concerning residential activities where those activities were assessedas non-complying activities.43 Bulk Gas Users Group v Attorney-General, above n 19, at 133.[68] Having reached the conclusion that ouster was intended, the Court shouldapproach the question of how broadly that ouster extends in a conventional way,namely, by reference to the purpose and scheme of the legislation. This is the approachthe Environment Judge adopted.[69] Even if I am wrong about this, in my view, the ouster here is not of the samekind as that which appears in decisions such as Bulk Gas. That case concerned limitsto the High Court's constitutional role of supervising the lawfulness of executivedecision-making. The importance of this role is recognised by the New Zealand Billof Rights Act 1990, which includes the right of those affected by the decisions ofpublic authorities to apply for judicial review.44 The Environment Court is created andits powers are strictly delineated by the RMA. The RMA grants the right to a full denovo hearing on issues of fact and law, but did not, at the time, extend that right todecisions relating to all residential activities. I agree with counsel for MMS that thegeneral scepticism about ouster revealed in the cases is less applicable in thesecircumstances.[70] As well, the scheme provided under ss 95A and 120(1A) has applied in relationto the standing of parties to appeal notification decisions to the Environment Court forsome time now. The reference to this well-known definition further clarifies thepurpose of the ouster.[71] I conclude that the ouster of the Environment Court's jurisdiction to hearcertain appeals was clearly outlined in the amendments to s 120 which, although nowrepealed, were in force at the time the Environment Court was contemplating the NgātiAwa appeals. Given the conclusion I have reached that the Environment Judge madeno error of law interpreting the provisions of s 95A(6) as they apply to this consent;he was correct to conclude that the Ngāti Awa parties had no right to appeal to theEnvironment Court.Result[72] The appeal is dismissed.44 New Zealand Bill of Rights Act 1990, s 27(2).[73] I appreciate this decision will be disappointing to the Ngāti Awa parties. It isa decision that has required a clinical approach to the interpretation of statutoryprovisions. In other words, it has nothing to do with the merits or otherwise of theappeals sought to be argued before the Environment Court. The provisions in issuehave now been repealed but that will be cold comfort to the Ngāti Awa parties as theyhave lost the opportunity to advance the matters they wished to argue before theEnvironment Court.[74] It has been important for me to express clearly the nature of the decision beforethe Court. A party who does not feel they have been afforded an opportunity to havethe full ambit of their argument advanced in an appropriate forum will often feelaggrieved. Our system of democracy, however, provides that laws made in Parliamentare supreme with the question of their interpretation remaining a matter for the Courts.In this case, both the Environment Court and this Court on appeal have determinedthat the limitation on the right to appeal applicable at the time means that theEnvironment Court is not empowered to address the merits of the parties' respectivepositions on the substance of the matters in issue between them.[75] The appeal having been dismissed, the question of costs arises. If costs cannotbe agreed, the Council and MMS are to file and serve a memorandum (not exceedingthree pages) in relation to costs within 14 days of the date of receipt of this judgment.The Ngāti Awa parties are to file any memorandum in reply (not exceeding threepages) no later than 14 days thereafter. Costs will be dealt with on the papers unlessthe Court considers upon reading the memoranda that a further hearing is required.____________________Harland J