WHANGAPOUA BEACH COMMUNITY ASSOCIATION v THAMES-COROMANDEL DISTRICT COUNCIL [2023] NZHC 2899

WHANGAPOUA BEACH COMMUNITY ASSOCIATION v THAMES-COROMANDEL DISTRICT COUNCIL[2023] NZHC 2899 [18 October 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2021-419-000315[2023] NZHC 2899UNDER the Resource Management Act 1991IN THE MATTER OF an appeal under ss 299 and 300 of the Actand further appeal under s 305 of the ActBETWEEN WHANGAPOUA BEACHCOMMUNITY ASSOCIATIONAppellantPRESERVE NEW CHUMS FOREVERYONE INCORPORATEDFurther AppellantAND THAMES-COROMANDELDISTRICT COUNCILRespondent(continued)Hearing: 26–28 June 2023(Heard at Auckland)(final submissions received 6 October 2023)Appearances: J M Savage for AppellantR B Enright for Further AppellantA M B Green and R H Ashton for RespondentJ Beresford for First Interested PartyR J Hollyman KC and L C Ford for Second Interested PartyS H Gepp for Third Interested PartyJudgment: 18 October 2023JUDGMENT OF EDWARDS JThis judgment was delivered by me on 18 October 2023 at 3.00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarAND ROSS and DEIDRE MEARFirst Interested PartyNORTHERN LAND PROPERTYLIMITEDSecond Interested PartyTHE NEW ZEALANDCOASTAL TRUSTThird Interested PartyTABLE OF CONTENTSBackground [5]The land [5]The proposed Plan [7]Structure Plan and submissions [13]Council's decision and appeals lodged [15]Section 293 process [19]Environment Court appeal hearing [25]Environment Court decision [29]Approach on appeal [43]Questions of law [47]Questions 1 and 2: jurisdiction and breach of natural justice [48]Legal principles [51]Did the Court have jurisdiction in relation to the Natural Characteroverlays? [58]Was the error regarding jurisdiction in relation to the Natural Characteroverlays material? [74]Did the Court have jurisdiction in relation to the Outstanding NaturalFeatures and Landscapes overlay? [80]Question 3: failure to give effect to New Zealand Coastal Policy Statement [86]Questions 4 and 5: application of Waikato Regional Policy Statement [95]Question 6: reliance on calculations of theoretical development potential [101]Question 7: error approving proposed house site 21 [104]Result [111][1] The land the subject of this appeal borders Wainuiototo Bay andNew Chums Beach on the Coromandel Peninsula. The area is renowned for itsisolated and unspoiled nature.[2] In an interim decision dated 18 November 2021, the Environment Courtdirected Thames-Coromandel District Council (Council) to include a "Structure Plan"in its proposed District Plan in relation to this land.1 The Structure Plan coverssubdivision and residential use of properties within the plan area.[3] The Whangapoua Beach Ratepayers' Association (now Whangapoua BeachCommunity Association) (WBCA) and Preserve New Chum for EveryoneIncorporated (PNC4E) appeal the Environment Court's interim decision. Theychallenge the Environment Court's decision that it did not have jurisdiction to alterplanning maps. They also say that the Court failed to give effect to provisions in theNew Zealand Coastal Policy Statement and Waikato Regional Policy Statement.Finally, they appeal in relation to the Environment Court's approach to the number ofapproved house sites, and its approval of the location of house site 21.[4] New Zealand Coastal Trust supports the appeal in relation to house site 21.The other parties oppose the appeal and support the Environment Court's decision.BackgroundThe land[5] The land is zoned rural in the proposed Plan. It presently comprises 11 titlesranging in size from 506 square metres to just over 105 hectares. Most of those titlesare owned by the second interested party (Northern Land). The balance is owned byGault Nominees Ltd, the directors of which are the first interested party to this appeal(the Mears).[6] The features of the land were described by the Environment Court as follows:[8] The land has been part of a farming property known for some time asTe Pungapunga Station, taking its name from the river that runs along its1 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180.southern boundary down to the estuary behind Whangapoua. Its road accessis from Te Punga Road with the entrance about a kilometre west ofWhangapoua. It includes New Chums Beach, a broad sandy beach just over akilometre long on Wainuiototo Bay. This is said to be the last sandy beach onthe Coromandel Peninsula that has not had its hinterland developed forresidential purposes.[9] The land is generally located in two catchments:(a) To the north, the New Chums or Wainuiototo catchment oftwo streams that flow to Wainuiototo Bay near the northernend of New Chums Beach; and(b) To the south, part of the Pungapunga catchment comprisingthe land on the northern side of the Pungapunga River andextending past its mouth to Motuto Point [sic].[10] The land is generally hilly, with a steep escarpment immediatelybehind New Chums Beach rising between 40 and 90 metres high. Thisescarpment and the northern and southern parts of the New Chums catchmentare covered in mostly native bush, with the central area of the catchmentcovered in a mix of bush, overgrown pasture and weeds. The land in thePungapunga catchment is a similar mixture and is where the farm buildings,the homestead and three other houses are located.[11] The title to the land within the structure plan area adjacent to much ofNew Chums Beach extends to mean high water springs (MHWS). There is aCrown esplanade reserve, the New Chums Recreation Reserve, at the northernend of the beach extending just past Motukopu Island. There is another Crownesplanade reserve at the southern end of the beach extending aroundMotutu Point, where it adjoins a Council esplanade reserve that continuesalong the shore to the Pungapunga estuary.[12] The land to the north and west of the structure plan area is a mixtureof native and exotic forest with a quarry to the southwest. Little reference wasmade in the case to this land.[13] The high ground on the small peninsula to Motutu Point is privatelyowned by persons who are not involved in this proceeding. It is subject to aQueen Elizabeth II National Trust Open Space Covenant which provides formembers of the public to have freedom of entry and access to the land withthe prior permission of the owner. A pathway crosses the peninsula enabling,whether with permission or not, pedestrian access between Whangapoua andNew Chums Beach.The proposed Plan[7] The appeal arises out of the Council's promulgation of a new District Plan inDecember 2013. A variation to the proposed plan was publicly notified inNovember 2015 (Variation 1). The proposed District Plan and Variation 1 are referredto together as the "proposed Plan" in this judgment.[8] In preparing a proposed plan, a council must recognise and provide for thematters in Part 2 of the Resource Management Act 1991 (RMA), which includes thematters of national importance stated in s 6. Those relevant to this case include: thepreservation of the natural character of the coastal environment from inappropriatesubdivision use and development and the protection of outstanding natural featuresand landscapes from the same. Significant indigenous vegetation must also beprotected.2[9] A council is also required to give effect to the New Zealand Coastal PolicyStatement, and, in this case, the Waikato Regional Policy Statement.3 Both policystatements include provisions requiring the protection of the coastal environment andpreservation of the natural character of the coastal environment, including protectionof natural features and landscape values.[10] The Council was obliged to prepare its proposed Plan in accordance with therelevant clauses in Schedule 1 of the RMA. Counsel for the Mears helpfully set outthe various steps involved which I reproduce below (with some minor amendment):(a) The Council will notify a proposed district plan.(b) The public will then have opportunities to submit on the plan and makefurther submissions on the submissions of other parties.(c) The Council will issue its decision on the contents of the plan.(d) Submitters may then appeal to the Environment Court.(e) Interested parties may join an appeal pursuant to s 274 of the RMA.[11] The proposed Plan included several mapping "overlays" which identify andprotect areas that have coastal, natural character, or landscape features. These overlaysare marked out on planning maps and include:2 Resource Management Act 1991 [RMA], s 6(a), (b) and (c).3 Section 75(3).(a) The Coastal Environment Line, which delineates the extent of thelandward side of the coastal environment.(b) The Natural Character overlay which applies to areas that haveidentified natural character values. There are two subcategories of theNatural Character overlay:(i) Areas of Outstanding Natural Character; and(ii) Areas with High Natural Character.(c) Outstanding Natural Features and Landscapes. This overlay identifiesareas with outstanding landscape values.[12] The Natural Character and Outstanding Natural Features and Landscapesoverlays are the subject of this appeal.Structure Plan and submissions[13] Northern Land sought the inclusion of a Structure Plan in the proposed Plan.A Structure Plan sets out planning provisions for the use, development and protectionof the subject land. The proposed Structure Plan in this case comprises objectives,policies and rules governing subdivision and other activity and governs the numberand location of proposed house sites in the area.[14] Northern Land also made submissions seeking changes to the NaturalCharacter and Outstanding Natural Features and Landscapes overlays. WBCA andPCN4E made submissions which, in broad terms, opposed provisions enabling futuredevelopment of the New Chums Beach area.Council's decision and appeals lodged[15] The Council's decision regarding the proposed Plan was issued in April 2016.In essence, it declined to incorporate a Structure Plan, and held that therecommendations of the council planner should be implemented in relation to thevarious overlays.[16] Northern Land filed an appeal with the Environment Court on 13 June 2016.Part of the relief sought in the notice of appeal was the removal or redefinition of theOutstanding Natural Features and Landscapes and the High Natural Character (asubcategory of Natural Character) overlays.[17] Both appellants joined Northern Land's appeal to the Environment Courtpursuant to s 274 of the RMA:(a) WBCA opposed Northern Land's appeal on the basis that, amongstother things, it would remove adequate protection for importantfeatures and coastal areas which would facilitate excessive,inappropriate subdivision and development.(b) PNC4E opposed on the basis that the relief sought would decrease thesize of the Outstanding Natural Features and Landscapes, NaturalCharacter overlays and Coastal Environment Line mapping overlays inthe area.[18] Neither appellant sought an extension of the relevant mapped overlays.Section 293 process[19] In the meantime, during hearings on its proposed Plan, the Council decidedthat amendments should be made to the Coastal Environment Line and the NaturalCharacter overlays. Those amendments were considered necessary to give effect tothe RMA, New Zealand Coastal Policy Statement and the Waikato Regional PolicyStatement.[20] Rather than notify the required changes as a variation, the Council invokeds 293 of the RMA. That section empowers the Environment Court to order a changeto a proposed plan after hearing an appeal or an inquiry into the provisions of that plan.The Court may direct the local authority to prepare changes to address mattersidentified by the Court, consult parties and other persons about the changes, andsubmit the changes to the Court for confirmation.[21] On 24 May 2018, the Environment Court issued its decision in Vernon vThames-Coromandel District Council, confirming the use of the s 293 procedure toaddress matters relating to the Coastal Environment Line and the Natural Characteroverlays.4[22] The Court directed the Council to notify potentially affected parties of theproposed amendments, except where property affected was already the subject of anappeal. The parties to the Northern Land appeal were exempted from notificationrequirements. Parties who were notified were entitled to make submissions on theproposed amendments, and to join an existing appeal as a s 274 party.[23] The Council's proposed amendments were notified on 15 June 2018, withlandowners able to make submissions until 13 July 2018. There then followed aprocess in which the parties to the various appeals (including the Northern Landappeal) and submitters who were recently notified attempted to resolve outstandingmapping issues.[24] No agreement was reached in the Northern Land appeal. That issues relatingto the Natural Character overlays remained outstanding was confirmed in memorandafiled with the Court on 8 and 25 March 2019. The 8 March 2019 memorandum alsoidentified one outstanding issue in the Northern Land appeal in relation to the mappingof the Outstanding Natural Features and Landscapes areas.Environment Court appeal hearing[25] The appeal before the Environment Court was heard between 8 and 12 April2019. Closing submissions were received on 9 July 2019.[26] The appellants and the Council called expert evidence relevant to the NaturalCharacter and Outstanding Natural Features and Landscapes overlays. That evidencewas admitted in the usual way, and the experts were cross-examined including bycounsel for Northern Land. They were also questioned by the Court. Submissionswere also made by the appellants on the extent of these mapping overlays. None of4 Vernon v Thames-Coromandel District Council [2018] NZEnvC 76.the parties, nor the Court, raised any issue about the relevance of this evidence, northe Court's jurisdiction to determine the issues raised by it.[27] At some point in time (it is not clear to me when), Northern Land decided notto pursue the appeal in relation to the Outstanding Natural Features and Landscapesand High Natural Character mapping, although it does not appear to have formallysought a withdrawal of this part of its appeal.[28] After the hearing, but before the decision was issued, the Court issued itsdecision in Environmental Defence Society Incorporated v Thames CoromandelDistrict Council.5 This decision, dated 13 January 2020, was between different partiesand concerned different land. However, the Court stated that it would be giving itsdecision in relation to New Chums Beach/Wainuiototo separately as it raised issuesconcerning the Natural Character overlays and a proposed Structure Plan for thedevelopment of the land.6Environment Court decision[29] The Environment Court delivered the decision under appeal on 18 November2021, approximately two and a half years after the hearing.7 It is an interim decisionbut is 81 pages long (including annexures) and includes a comprehensive summary ofrelevant planning provisions and evidence.[30] At the outset of the judgment, the Environment Court identified the main issuesin the case as concerning the number and location of building platforms in theproposed Structure Plan area and the Structure Plan provisions. The issues involvedassessments of the landscape and the natural character of the area, its relationship withthe beach, coastal environment, other neighbouring areas, the cultural heritage of thearea and the "effects of human activity on those things".85 Environmental Defence Society Incorporated v Thames Coromandel District Council [2020]NZEnvC 1.6 At [5].7 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180.8 At [2].[31] The Court noted that the issues between the parties were confined to theStructure Plan layout and the number and location of house sites. Northern Landproposed a Structure Plan for 25 house sites (including five already constructed as pera consent granted on 24 November 2006). The Council, PNC4E and WBCA soughtfewer (between one and 10) houses but did not nominate a particular number.[32] The Court's reasoning on the mapping of the relevant overlays is set out in fulllater on in this judgment. For present purposes it is sufficient to note that the Courtconsidered it did not have jurisdiction to alter the planning maps as sought by theappellants.[33] After reviewing the relevant provisions of the New Zealand Coastal PolicyStatement and the Waikato Regional Policy Statement, the Court concluded that thekey policy directives and s 6(a) and (b) of the RMA pointed towards protecting thenatural character and outstanding landscape areas from development.9[34] The Court noted that achievement of the policy directives was "practicallyenabled by the existing landform, particularly the high, steep escarpment behind thebeach and the enclosed form of the bay".10 The most direct method to achieve thedirectives, therefore, was to avoid changes in the landform and minimise the visibilityof changes to the land as viewed from the beach and on the inshore waters ofWainuiototo Bay to the fullest extent reasonably practicable.11[35] However, the importance of protecting New Chums Beach andWainuiototo Bay did not, in the Environment Court's view, entail achieving completeinvisibility of all development of the hinterland when viewed from all locations onNew Chums Beach or Wainuiototo Bay.12 Noting that a boundary between the area ofdevelopment and the area to be protected is important, the Environment Courtobserved that that boundary must include not only a line between the areas but alsocontrols on bulk (especially height) on the development site.13 The northern side of9 At [137].10 At [137].11 At [138].12 At [139].13 At [140].the Pungapunga River did not demonstrate similar outstanding natural landscape orcharacter values in the opinion of the Court and did not therefore require the samedegree of protection from development.14[36] The Court then turned to consider the level of development in the area, usingthe existing proposed Plan provisions as a counterfactual.15 The Court identified theproposed locations which were proximate to the escarpment, high on the hinterland,or along the river, as presenting particular issues. Those issues included whether thelocation itself may be objectionable or problematic or whether particular issues of bulkor design might create an objection or other problem.16[37] The Environment Court then reviewed the proposed Structure Plan site by site.The Court found that the number of sites and potential houses that could be added inthe Pungapunga catchment area of the Structure Plan was not likely to be as significantas the potential scale of individual buildings, and the way in which principal andaccessory buildings were placed on each site.17 The Environment Court then set outthe criteria and controls in the Structure Plan which should be reviewed and ifnecessary amended to address these issues.18[38] In relation to the New Chums catchment, the principal issues related to theproximity of house sites 15, 16, 17 and 21. The Environment Court noted that housesite 21 was close to the stream and in a location that would almost certainly be visiblefrom the northern part of New Chums Beach through the gap created by the stream.19Protection of adverse effects was to be achieved through design controls whichincluded a "no visibility" standard. An exception to this standard was reserved forhouse site 21 due to the limited extent of the view that would occur.2014 At [141].15 At [145].16 At [147].17 At [165].18 At [166].19 At [170].20 At [172].[39] Other controls were identified by the Environment Court, and it set out itscomments on the text of the draft set of Structure Plan provisions which were attachedto the decision.[40] The Environment Court's findings were summarised as follows:[177] For the reasons set out in this interim decision, we have concludedthat the design and detail of the location of individual houses is moreimportant to the preservation of the natural character of the coastalenvironment and the protection of the outstanding natural landscape thanwhether the absolute number of such houses is set at or below 25. Matters ofdesign and detailed location depend very much on the particular context foreach site. Some locations, such as [House Sites] 15, 16 and 17, presentparticular problems which require a clear limit on what the effect of anyparticular design and location may be. In those cases, requiring the design ofany house on those sites not to be visible from the beach or the waters within50 m of MLWS is the appropriate standard. In the case of [House Site] 21, astandard of invisibility from the beach may not be achievable but the effect ofa house in that location is unlikely to be as significant as from a more elevateand central location.[178] In the Pungapunga catchment we conclude that differentconsiderations are more important and that there is little value in minimisingthe visibility of the houses simply to minimise the sense of change in the viewspresently obtained from locations in Whangapoua. But the consequence ofthat is that design and benching into the landform will likely be moreimportant because the houses will be visible.[179] We have included our comments about the provisions of the StructurePlan and in particular the required contents of the management plans to beprovided in relation to proposals for subdivision and development to guide thenext stage of the hearing.[180] We therefore issue this decision as an interim one. We have addressedthe overall scale of the proposed Structure Plan and the layout of house sites.We have also set out certain further matters which we consider should eitherbe added to the provisions or amended in order to ensure that the adverseeffects of development in this sensitive location are properly addressed by anapplicant for consent, properly assessed by the consent authority and able tobe properly commented on by any affected persons.[41] The appeal was allowed to the extent that the Council was directed to amendthe proposed Plan to include the Structure Plan, but subject to amendments to the textto include further criteria and controls as set out in the Court's decision. A secondstage was envisaged.[42] WBCA lodged its appeal on 9 December 2021. PNC4E filed its appeal thefollowing month. In a minute dated 15 December 2022, the Environment Courtdetermined that this appeal should be heard and determined before delivery of the finaldecision.Approach on appeal[43] The appeal is brought pursuant to s 299 of the Resource Management Act 1991(RMA). That section limits appeals to questions of law.[44] The High Court will only interfere with decisions of the Environment Court ifit has applied a wrong legal test, or if it has come to a conclusion without evidence orone to which, on the evidence, it could not reasonably have come, or if it has takeninto consideration matters which it ought not to have taken into account, or if it hasfailed to take into consideration matters which it ought to have taken into account.21[45] The scheme of the RMA confers fact-finding and policy-making power on theEnvironment Court.22 The weight given to the relevant facts is for theEnvironment Court.23 The failure to refer to a matter of fact or of law is not, of itself,an error of law.24 In Friends of Pakiri Beach v Auckland Regional Council, theHigh Court cautioned that a court must not persuade itself that because it might havereached a different conclusion, the decision of the Environment Court must bewrong.25[46] Any error of law must materially affect the result of the Court's decision beforethe High Court will grant relief.26Questions of law[47] The questions of law raised by each appeal overlap. They were revised andconsolidated into the following:2721 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145.22 Estate Homes Ltd v Waitakere City Council [2006] NZRMA 308 (CA).23 Stark v Auckland Regional Council [1994] CNZLR 614; and Friends of Pakiri Beach v AucklandRegional Council [2009] NZRMA 285 (HC).24 Contact Energy Ltd v Waikato Regional Council [2007] 14 ELRNZ 128 (HC) at 64.25 Friends of Pakiri Beach v Auckland Regional Council [2009] NZRMA 285 (HC).26 Hutt City Council v Mico Wakefield [1995] NZRMA 169.27 PNC4E filed an amended notice of appeal on 27 June 2023. These questions reflect thatamendment and memorandum submitted in support.(a) Did the Court wrongly conclude that it lacked jurisdiction to considerthe extent and location of Natural Character and ONFL overlays?(b) Did the Court breach natural justice in concluding that it so lackedjurisdiction without inviting the parties to make submissions onjurisdiction?(c) Did the Court err in its approach to the New Zealand Coastal PolicyStatement?(d) Did the Court, as a consequence of not addressing the location andextent of the Natural Character overlays, fail to properly address theWaikato Regional Policy Statement provisions protective of areas ofnatural character?(e) Did the Court err in failing to analyse the proposed provisions of theStructure Plan against Development Principle (c) for Rural ResidentialDevelopment in the Waikato Regional Policy Statement?(f) Did the Court err in relying on calculations of theoretical developmentpotential under other proposed Plan provisions and as a result fail toproperly address whether the number of 25 house sites proposed wasappropriate?(g) Did the Court err in approving proposed house site (and associated lot)21?28Questions 1 and 2: jurisdiction and breach of natural justice[48] The first two questions on appeal concern the Environment Court's decisionthat it did not have jurisdiction to alter the planning maps. The first question concerns28 The appeal by PNC4E in relation to house sites 15, 16 and 17 was abandoned. PNC4E adoptedthe submissions of The New Zealand Coastal Trust in relation to house site 21. A further point ofappeal relating to the assessment of the expert evidence of Robert Scott was also abandoned byPNC4E.the Court's jurisdiction. The second question alleges that the Court's approach was abreach of natural justice. Both questions are addressed together.[49] The Environment Court's reasons for determining it did not have jurisdictionare as follows:[86] We accept that it is important to identify places and areas correctly inany land use planning process. It is certainly a principle of good planning toidentify relevant constraints prior to considering what the most appropriatedevelopment and use provisions may be. That is the essence of spatialplanning, in the ordinary sense of those words. A rational approach to suchidentification is to start generally and move to address particular matters in anorder which builds on the information that has been gathered and avoids, asfar as practicable, unnecessary repetition in the process.[87] In terms of those very general principles, we think it is usuallyappropriate for persons engaged in making a plan to identify matters forprotection and areas or other resources which ought to be protected beforeopportunities for use and development are chosen. In that way the provisionsof Part 2 of the Act can properly be promoted, recognised and provided for,had particular regard to and taken into account at points in time when decision-makers can truly act in accordance with them. Put another way, it is often verydifficult to reverse decisions to make areas or other resources available fordevelopment, and retrospective attempts to address the requirements of Part 2of the Act are generally less successful than plans which make provision forthem at the outset.[88] As well as acting with those general principles in mind, it is alsonecessary under the RMA to prepare plans in accordance with the procedurein Schedule 1 and with the case law in relation to those provisions, includingthe rules about scope. In particular, the provisions of a proposed Plan cannotbe altered except within the scope of a submission on those provisions or of avariation to them notified in accordance with Schedule 1.[89] This appeal by Northern Land is based on its submission seeking astructure plan. The participation of PNC4E in this appeal is based on its furthersubmission in opposition to Northern Land's submission. Other parties in thisproceeding are similarly present to address their support of or opposition toNorthern Land's proposal based on their submissions or further submissions.[90] As lodged, the notice of appeal by Northern Land sought some reliefin terms of clarification of the mapping of its land, including removing orredefining the mapping of [Outstanding Natural Features and Landscapes] and[High Natural Character] areas, but this relief was not pursued at the hearingof the appeal. There is nothing before us to show that the location of the[Outstanding Natural Features and Landscapes] in the vicinity of the subjectland was the subject of any submission to extend it. There appears to havebeen submissions seeking to retain the notified extent.[91] The location of the [Coastal Environment Line] and the extent of theareas of [Outstanding Natural Character] and [High Natural Character] werethe subject of a further process under s 293 of the RMA, including notificationof a revised [Coastal Environment Line] and the receipt and hearing ofsubmissions on that revised line. There is nothing before us to show that therewas any submission to extend the area of the coastal environment in thelocation of the proposed Structure Plan area.[92] In terms of our jurisdiction, therefore, and notwithstanding theabsence of any jurisdictional issue being raised by the Council or other partieswith the submissions of counsel for PNC4E in relation to the mapping of theseareas, we do not consider that we have jurisdiction to alter the planning mapsas sought.[50] WBCA challenges the Environment Court's decision in relation to the NaturalCharacter overlays (the Outstanding Natural Character and High Natural Characterareas). PNC4E challenges the Environment Court's decision in relation to theOutstanding Natural Features and Landscapes overlay. Different considerations applyto each challenge because the Natural Character overlays were the subject of the s 293process, but the Outstanding Natural Features and Landscapes overlay was not.Legal principles[51] The Environment Court's jurisdiction is ordinarily confined by the scope of theappeal. The decision in Transit New Zealand v Pearson concerned different statutoryprovisions, but the explanation for the constraints imposed on appeal rights in theRMA context nevertheless remains relevant.29 William Young J said:30There is a real difference between appeals as between courts of generaljurisdiction and resource management appeals. Resource managementappeals form part of a process which involves extensive public participationwith associated notice and service requirements. People who have beeninvolved in a particular process may well decide whether or not to continue tobe involved in a subsequent reference or appeal in light of what is put in issuein the notice of appeal or reference. There is obviously a risk of prejudice ifan appellant or referrer can change the scope of the proceedings to arguematters which go beyond those signalled in the relevant originating document.Further, there are some practical advantages and certainty for those who areinvolved under the Resource Management Act. A party who has obtained aresource consent but is concerned about the conditions may wish to be able toappeal in relation to the conditions without thereby opening for re-litigationthe question whether the resource consent should, itself, have been granted.[52] Dunningham J cited Pearson with approval in the recent case of Gertrude'sSaddlery Limited v Queenstown Lakes District Council.31 That case also concerned a29 Transit New Zealand v Pearson [2002] NZRMA 318 (HC).30 At [55].31 Gertrude's Saddlery Limited v Queenstown Lakes District Council [2020] NZHC 3387.proposed plan change. The Judge recorded the reasons for constraints on appealsinvolving proposed plan changes as follows:[27] There are logical reasons for these constraints. The RMA process forpreparing, changing and reviewing plans, as set out in sch 1 to the RMA, isdesigned to:(a) progressively refine the disputed issues as the proposed plangoes through the submission and appeal process; and(b) promote the principles of procedural fairness and naturaljustice by ensuring potentially affected parties know whatchanges to the proposed plan are sought so they can choose toparticipate in decisions being made on that issue.[28] It is for these reasons that an appellant in such proceedings cannotpursue an outcome on appeal that falls outside the scope of their originalsubmission. It is also why s 274 parties are constrained to supporting oropposing the appeal (and giving reasons for that support or opposition), andconfining their evidence to matters that are within the scope of the appeal. Theintention is that the addition of the s 274 party will not result in changes to theplan that could not have been anticipated from the appeal itself. If a submitteron a plan reviews the appeals which are lodged and is satisfied that none ofthem seek relief which concerns the submitter, the submitter need not concernthemselves with the s 274 notices as those parties cannot seek relief beyondthe scope of the appeal.(footnote omitted).[53] Gertrude's Saddlery has some similarities to the present case in that it involvedmapping lines identifying Outstanding Natural Features and Landscapes. The appeallodged included a challenge to these mapping lines, but there was no site-specific reliefsought in relation to the area in which the s 274 party in that case was interested.Dunningham J found that the relief sought by the appellant was focused and did notinclude a challenge to the Outstanding Natural Features and Landscapes mapping linewhich was what the s 274 party sought to challenge. Accordingly, the s 274 party'srelief was outside the scope of the appeal.[54] As noted by Dunningham J in the quoted passage above, the rights of thosejoining an appeal under s 274 of the RMA are also confined. Only certain parties mayjoin a proceeding under s 274, and that party must give a notice stating whether itsupports or opposes the proceedings and the reason for that support or opposition.3232 RMA, s 274(2) and (3)(b).Furthermore, a s 274 party must not call evidence unless it is on "matters within thescope of the appeal".33[55] It follows that defining the scope of an appeal is an important step indetermining the Court's jurisdiction. That is necessarily a fact specific exercise.Whether an amendment to a proposed plan falls within scope should be approached ina "realistic and workable fashion, rather than from the perspective of legal nicety".34[56] Section 293 of the RMA provides the Environment Court with a specificjurisdiction to order changes to proposed policy statements and plans. That sectionprovides:293 Environment Court may order change to proposed policystatements and plans(1) After hearing an appeal against, or an inquiry into, the provisions ofany proposed policy statement or plan that is before the EnvironmentCourt, the Court may direct the local authority to—(a) prepare changes to the proposed policy statement or plan toaddress any matters identified by the Court:(b) consult the parties and other persons that the Court directsabout the changes:(c) submit the changes to the Court for confirmation.(2) The Court—(a) must state its reasons for giving a direction under subsection(1); and(b) may give directions under subsection 1 relating to a matterthat it directs to be addressed.(3) Subsection (4) applies if the Environment Court finds that a proposedpolicy statement or plan that is before the Court departs from—(a) a national policy statement:(b) the New Zealand coastal policy statement:(ba) a national planning standard:33 Section 274(4) and (4A).34 Gertrude's Saddlery Limited v Queenstown Lakes District Council [2020] NZHC 3387 at [74].See also Royal Forest & Bird Protection Society Inc v Southland District Council [1997] NZRMA408 (HC) at 413.(c) a relevant regional policy statement:(d) a relevant regional plan:(e) a water conservation order.(4) The Environment Court may allow a departure to remain if itconsiders that it is of minor significance and does not affect thegeneral intent and purpose of the proposed policy statement or plan.(5) In subsections (3) and (4), departs and departure mean that aproposed policy statement or plan—(a) does not give effect to a national policy statement, aNew Zealand coastal policy statement, a national planningstandard, or a relevant regional policy statement; or(b) is inconsistent with a relevant regional plan or waterconservation order.[57] In Canterbury Regional Council v Apple Fields Ltd, this Court confirmed thats 293 provides a mechanism for the grant of relief beyond the scope of the appeal.35This case concerned an earlier version of s 293, but the scope of theEnvironment Court's statutory power remains the same. However, the power is notunlimited and is to be used cautiously and sparingly.36Did the Court have jurisdiction in relation to the Natural Character overlays?[58] With those considerations in mind, I turn to consider the scope of appeal inrelation to the Natural Character overlays, that is, the Outstanding Natural Characterand High Natural Character areas.[59] The starting point is Northern Land's appeal. The mapping of the High NaturalCharacter areas was a feature of Northern Land's appeal. Despite the open languageused in the Notice of Appeal ("clarification" and "remove or redefine"), I accept thatwhat was being sought was a removal or reduction of the High Natural Character area.Importantly, both WBCA and PCN4E simply opposed the appeal and did not seek anexpansion of either the Outstanding Natural Character or High Natural Characteroverlays.35 Canterbury Regional Council v Apple Fields Ltd [2003] NZRMA 508 (HC) at [23].36 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council [2014]NZHC 2616, [2015] NZRMA 52 at [121].[60] As outlined above, s 293 of the RMA gives the Environment Court power toorder changes to proposed plans. The power is engaged "after hearing an appeal"against the provisions of a proposed plan. The power allows the Court to direct thelocal authority (in this case the Council) to prepare changes to a proposed plan; toconsult about the proposed changes; and to submit the changes to the Court forconfirmation. The object of the power is to ensure that a proposed plan gives effect tohigher order planning documents. For that reason, it is not limited by the scope of theappeal.[61] In this case, the s 293 process started with a request from the Council. TheCouncil had undertaken a review of the Natural Character overlay and CoastalEnvironment Line and concluded that they should both be amended to give effect tothe New Zealand Coastal Policy Statement. Rather than promulgating anothervariation to the proposed Plan, the Council requested the Court utilise its s 293 powersand sought directions on a proposed process of notification and consultation.[62] The Court acceded to the Council's request in Vernon. The Court noted thatwhile it had not heard all appeals in full it was nevertheless satisfied that the CoastalEnvironment Line and the Natural Character overlays in the proposed Plan "may wellnot give effect" to the regional and national coastal policy statements. On that basis,it decided that the power was available under s 293.[63] The Court then made directions regarding notification and consultation. TheCourt directed the Council to notify "potentially affected parties" being all landownersaffected by the change, except where the property was "already the subject of anappeal". The "potentially affected parties" were directed to file submissions with theCouncil by a certain date either supporting or opposing the proposed amendments.Those who had made submissions were to be given an opportunity to join the existingappeals as parties under s 274 of the Act.[64] The Court did not make express directions about how existing parties to theappeal (such as the appellants), who were not formally notified, would engage withthe Council's proposed changes. The Council submits that existing parties could havemade submissions in response to the public notification process. That is technicallycorrect. But that would only lead to an existing party being offered an opportunity tojoin an existing appeal as a s 274 party. That would be somewhat redundant in theappellants' case given they were already s 274 parties to the appeal.[65] The decision in Vernon was also silent about how submissions on the Council'sproposed changes, once received, would be addressed. It is at least implicit thatsubmissions would be made in the extant appeals and the Court would then make itsfinal decision confirming (or otherwise) the proposed changes to the Natural Characteroverlays and the Coastal Environment Line. That approach is consistent with theopening words of s 293 ("[a]fter hearing an appeal") and makes sense of the Court'sdirection that those who made submissions on the proposed changes would be offeredan opportunity to join an existing appeal as a s 274 party.[66] In the absence of any directions to the contrary, I consider it was reasonablefor the appellants to assume that they would make submissions on the Council'sproposed changes at the hearing of Northern Land's appeal and the Court's finaldecision on the proposed location of the Coastal Environment Line and NaturalCharacter overlays would then be made.[67] That is consistent with the way the parties and Court conducted themselves inrelation to the appeal. Memoranda filed after the Vernon decision updating the Courton progress identified the mapping of the Natural Character overlays as being anoutstanding issue in the appeal. At the hearing of the appeal, experts were called togive evidence about these overlays. The experts were cross-examined by counsel,including counsel for Northern Land. They were also questioned by the Court. Noneof the parties, nor the Court, raised any issue about the relevance of that evidence, northe Court's jurisdiction to determine the issues raised by it. It also appears from theEnvironment Court's observations in its subsequent decision in EnvironmentalDefence Society Incorporated v Thames Coromandel District Council, that even afterthe hearing, it still considered that issues concerning the Natural Character overlayswere to be resolved in the Northern Land appeal.3737 Environmental Defence Society Incorporated v Thames Coromandel District Council [2020]NZEnvC 1.[68] The Court's power under s 293 was not limited by the scope of the existingappeal. That is, it was not confined to the matters raised by Northern Land in its appealdocument. The Court retained the power to direct and confirm changes to the proposedPlan to ensure they were consistent with the national and regional policy statements.The practical effect of the Vernon decision therefore was to broaden the scope of theappeal insofar as it related to the Coastal Environment Line and Natural Characteroverlays.[69] That conclusion does not cut across the policy reasons underpinning the limitsto the Environment Court's appellate jurisdiction. That is because all those affectedby the Council's proposed changes had been notified, given an opportunity to makesubmissions, and to join an appeal. This was not a case where other potentiallyaffected parties may have been denied an opportunity to make submissions on a newmatter raised for the first time on appeal.[70] Moreover, the statutory jurisdiction in s 293 distinguishes this case from theothers relied on by Northern Land and the Mears.38 Those cases involved issues whichwere clearly outside the scope of the appeal. In this case the s 293 process had theeffect of giving the Environment Court jurisdiction in relation to the CoastalEnvironment Line and Natural Character overlays beyond the scope of appeal.[71] It is important to emphasise that this analysis flows from the effect of theVernon decision rather than the availability of the s 293 process generally. While theCourt always retains the power to utilise the s 293 process, I did not understand theappellants to be taking this point on appeal. That is, they were not contending that thes 293 process could be triggered for a second time. To that extent, the respondents'supplementary submissions on s 293 and Northern Land's objection during WBRA'sreply submissions appear to be based on a misconception of the appellants' case. Thejurisdiction to amend the Coastal Environment Line and Natural Character overlaysstems from the Court's decision to utilise s 293 in Vernon with the substantive decisionto be made after hearing the Northern Land appeal.38 Director-General of Conservation v Northland Regional Council [2010] NZEnvC 169;Transit New Zealand v Pearson [2002] NZRMA 318 (HC); and West Coast Regional Council vRoyal Forest and Bird Protection Society of New Zealand [2007] NZRMA 32 (HC).[72] To sum up, I consider the Court had jurisdiction under s 293 to either confirmthe Council's changes to the mapping of the Coastal Environment Line and the NaturalCharacter overlays, or to direct changes to be made to give effect to the New ZealandCoastal Policy Statement and the Waikato Regional Policy Statement. TheEnvironment Court's conclusion to the contrary was an error of law.[73] This conclusion makes it unnecessary to directly address the second questionon appeal concerning natural justice. However, I observe that the effect of the Vernondecision and the use of s 293 added complexity to the jurisdiction issue. Given theparties had not raised any issue about jurisdiction, and two and half years had passedsince the hearing, I consider principles of natural justice required the parties to beafforded an opportunity to be heard on the issue prior to a decision being made.Was the error regarding jurisdiction in relation to the Natural Character overlaysmaterial?[74] A finding that the Environment Court erred in relation to jurisdiction is not theend of the matter. Any error of law must be material to justify allowing the appeal.[75] As the respondents point out, the Court said that it had taken the evidence ofthe appellants' experts into account in assessing the appropriateness of theStructure Plan.39 That suggests the evidence was considered irrespective of thejurisdictional conclusion reached by the Court. Indeed, the Court specifically referredto the evidence of the landscape witnesses who gave evidence relating to theNatural Character overlays.[76] While it is clear that the Court had regard to this evidence, it is far from clearthat it made a determination on the location of the Natural Character overlays. TheCourt's conclusions on this issue were as follows:[104] We have previously concluded that we are not able to alter themapping of these areas. In simple terms, it is plain that the quality of naturalcharacter behind the escarpment of the beach is less than that exhibited by theescarpment and the headlands themselves. How much less is moot, becausewe consider that the critical answers in this case do not lie in arguments aboutmapping of natural character and the quality of the various areas, but instead39 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180 at [93].in the extent of potential impact of any future development behind theescarpment.[77] This conclusion stands in contrast to the Court's decision in relation to theCoastal Environment Line where the Court concluded that even if it had jurisdiction,it would "not make any determination to change the location of the line based on theevidence presented to us". In other words, the error regarding jurisdiction did notprevent the Court from determining, in fact, the location of the Coastal EnvironmentLine.[78] However, the Court did not express the same conclusion in relation to theNatural Character overlays. Rather, it decided that the question was moot because thecritical answers did not depend on the mapping but on the extent of potential impactof any future development behind the escarpment. The failure to first identify theextent of the Natural Character overlays is at odds with the accepted approach todetermining whether effect has been given to Part 2 of the RMA and the national andregional policy statements. The Environment Court described that approach as firstrequiring the identification of areas which ought to be protected before assessing theappropriateness of the proposed development or use. In this way the Court couldensure that the provisions of Part 2 of the RMA were properly promoted, recognisedand provided for and were taken into account.40[79] The Court did not follow this approach and did not determine the location ofthe Natural Character overlays. For the reasons explained in relation to the third andfourth questions on appeal, this gives rise to a risk that not all areas of NaturalCharacter were identified. That, in turn, impacts on the assessment of the adverseeffects of the proposed development the subject of the Structure Plan on those areas,and whether the Structure Plan gives effect to the New Zealand Coastal PolicyStatement and the Waikato Regional Policy Statement. I consider those consequencesare sufficiently material to warrant allowing the appeal on the first question of law.40 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180 at [86]and [87] reproduced at [49] of this judgment.Did the Court have jurisdiction in relation to the Outstanding Natural Features andLandscapes overlay?[80] The mapping of Outstanding Natural Features and Landscapes falls into aseparate category. The Outstanding Natural Features and Landscapes overlay wasmentioned in Northern Land's notice of appeal but was not the subject of the s 293process nor the Vernon decision.[81] As previously stated, despite the broad language, I consider Northern Land'snotice of appeal must be construed as seeking a removal or reduction of theOutstanding Natural Features and Landscapes overlay. The appellants opposed thatrelief but they did not seek the expansion of the Outstanding Natural Features andLandscapes overlay. Accordingly, the question on appeal before theEnvironment Court was whether the Outstanding Natural Features and Landscapesoverlay should remain as proposed or be reduced.[82] It is true that all parties appear to have proceeded on the basis that the mappingof the overlays was generally in issue. A memorandum filed prior to the hearingrecorded that the Outstanding Natural Features and Landscapes issues remainedunresolved. There was no objection to the evidence at the hearing and no indicationthat a jurisdictional issue might be raised. It may have been preferable for theEnvironment Court to seek further submissions from the parties on jurisdiction beforemaking a final decision on this issue.[83] However, that cannot confer jurisdiction on the Court where there was none.The scope of the appeal was limited to removing or reducing the Outstanding NaturalFeatures and Landscapes overlay. It did not include extensions to that overlay. TheEnvironment Court was correct to find it did not have jurisdiction in relation to theOutstanding Natural Features and Landscapes overlay.[84] Even if I am wrong in that conclusion, I would not have allowed the appeal onthis point. That is because the Environment Court appears to have confirmed theidentification of the Outstanding Natural Features and Landscapes areas in itsdecision:[108] Again, we have little difficulty in accepting that New Chums Beach/Wainuiototo, including the Motutu headland, is an outstanding naturallandscape. The wide beach is set between the headlands and below theescarpment in a way that results in an ideal combination of elements. Weaccordingly accept that the area identified as [having Outstanding NaturalFeatures and Landscapes] in the proposed Plan is to be treated as having thatstatus, with the consequences that flow from that identification. The detail ismoot in this case, principally because there is no proposal to undertakedevelopment of the structure plan area in any area identified as [havingOutstanding Natural Features and Landscapes].[85] Although it did not expressly reject the appellants' arguments regarding themapping of these areas, I consider this paragraph suggests that the Environment Courtturned its mind to the identification of the Outstanding Natural Features andLandscapes and accepted that the area identified had that status. Read in the contextof the decision as a whole, this is sufficient to suggest that any jurisdictional error onthe part of the Court did not preclude it from making the required substantiveassessments in relation to the Outstanding Natural Features and Landscapes.Therefore, insofar as it relates to the Outstanding Natural Features and Landscapesoverlay, the appeal must be dismissed.Question 3: failure to give effect to New Zealand Coastal Policy Statement[86] PNC4E says that the Environment Court failed to "give effect"41 to provisionsof the New Zealand Coastal Policy Statement.[87] There are two aspects to this challenge. First, PNC4E says theEnvironment Court failed to give effect to those policies of the New Zealand CoastalPolicy Statement relating to cultural values. Second, it says the failure to identify theNatural Character and Outstanding Natural Features and Landscapes attributes of thearea meant that effect was not given to the relevant objectives and policies of theNew Zealand Coastal Policy Statement.[88] As counsel for the Council point out, the Environment Court identified allobjectives and policies of the New Zealand Coastal Policy Statement as relevant.42 It41 This is the requirement in s 75(3) of the RMA. In Environmental Defence Society Inc vThe New Zealand King Salmon Co Ltd [2014] 1 NZLR 593, [2014] NZSC 38 at [77], theSupreme Court said that "give effect to" means to implement. It is a strong directive creating afirm obligation on the part of those subject to it.42 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180 at [15].made specific reference to Objectives 1 and 2 and Policy 1 of the New Zealand CoastalPolicy Statement and set those provisions out in its judgment. The Court alsoidentified other policies (7, 11, 13,14, 15, 19 and 24) as being particularly relevant inthis case. The Court said that it took from these provisions "a requirement to identifythe coastal environment for the purposes of sustaining its ecosystems and preservingits natural character".43[89] It is true that the Court did not specifically refer to New Zealand Coastal PolicyStatement or Waikato Regional Policy Statement objectives and policies relating tothe Treaty of Waitangi and the relationship of Māori with the land. But it is evidentthat the Environment Court considered whether the Structure Plan gave effect to theseprovisions through direct consideration of ss 6(e), 7(a) and (aa) and 8 of the RMA.44The Court referred to evidence given on behalf of Ngāti Hei and Ngāti Huarere, acultural impact assessment, and the cultural matters addressed in the Structure Plan.The Court concluded that the mauri of the environment would be affected but that theStructure Plan offered mitigation through restricting development to a limited area andproviding for relatively low intensity.45[90] Based on this evidence, I am satisfied that the Court gave effect to thoseobjectives and policies relating to the Treaty of Waitangi and the relationship oftangata whenua to the land.[91] The second aspect to this question on appeal concerns the identification ofareas of Natural Character and Outstanding Natural Features and Landscapes.[92] The relevant objectives and policies of the New Zealand Coastal PolicyStatement include requirements that the Natural Character and Outstanding NaturalLandscapes and Features areas are preserved and protected from inappropriatedevelopment. This is to be achieved by, amongst other things, avoiding adverse (and43 At [18].44 At [128]–[135].45 At [135].significant adverse) effects and remedying or mitigating other effects in the area byidentifying and assessing the relevant areas.46[93] It is clear that the Environment Court was aware of the requirement to identifythe coastal environment,47 and took into account the appellants' evidence in decidingwhether there was compliance with ss 72–76 of the RMA.48 The Court considered theappropriateness of the development, and the nature of the effects in the area,particularly the visual effects. Those determinations fall within the province of theEnvironment Court, and it is not for this Court to second-guess the merits of thosedecisions. If there was no change to the Natural Character areas identified in the mapsthere could be no error in the approach taken by the Court.[94] However, as I have found, the Court did not make a decision about theidentification and mapping of the Natural Character areas. This meant it did not go onto consider whether there were Natural Character areas beyond those already mapped.That step was necessary to be able to assess whether the proposed development in thearea was "inappropriate" and whether adverse effects were being "avoided" asrequired by Policies 13 and 15. That determination needed to be made in order toensure that the Structure Plan gave effect to the relevant policies of the New ZealandCoastal Policy Statement. To this limited extent the appeal under this question isallowed.Questions 4 and 5: application of Waikato Regional Policy Statement[95] Questions 4 and 5 are directed at compliance with the Waikato Regional PolicyStatement and are addressed together for that reason.[96] WBCA, which lead the submissions on these grounds of appeal, submits that,as a consequence of its decision on jurisdiction, the Environment Court did notconsider the location and extent of the Natural Character overlays and did not thereforeproperly address or consider whether the Structure Plan gave effect to the provisions46 See for example Objective 2 and Policies 13 and 15 of the New Zealand Coastal Policy Statement.See also Environmental Defence Society v NZ King Salmon [2014] 1 NZLR 593, [2014] NZSC 38at [96]–[102] and [132] with respect to the interpretation and effect of Policies 13 and 15.47 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180 at [18].48 At [93].of the Waikato Regional Policy Statement. Nor did the Court analyse or specificallyaddress the relevant development principles set out in section 6A of the WaikatoRegional Policy Statement.[97] It is apparent that the Court was aware of the relevant policies and principlesof the Waikato Regional Policy Statement. It set out some of those provisions in itsdecision and summarised their effect as follows:[40] We take from these numerous provisions of the [Waikato RegionalPolicy Statement] a directive requirement, as expressed in ImplementationMethod 4.1.8, to map the landward extent of the coastal environment of thedistrict in order to achieve the four elements of Objective 3.7 in an integratedway. The complexity of that objective is demonstrated by the great range ofconsiderations listed in other policies. The [Waikato Regional PolicyStatement] does not appear to set out any ranking or prioritisation of thosematters or give any other indication of a strategic direction in relation to thecoastal environment.[41] We also identify in these provisions an approach that treats potentialdevelopment on a broadly discretionary basis. The most directiverequirements of Policy 6.2 relating to development in the coastal environmentare to avoid adverse effects on areas of outstanding natural character orlandscape qualities, to avoid increasing natural hazard risks from erosion andinundation and to avoid coastal ribbon development. Beyond that,development is contemplated on the basis of its appropriateness in the contextof the numerous other matters listed in Policy 6.2 and in the related policiesfor protection of natural resources and informed by the developmentprinciples.[98] As with the third ground of appeal, if there was no change to the NaturalCharacter overlays, then the Court's decision would be unimpeachable under thishead. It is evident from the above paragraphs that the Court was alive to the relevantprovisions of the Waikato Regional Policy Statement, and how they may apply in thiscase. The Court took into account the impact of adverse effects and the nature of thedevelopment. This Court will not interfere with that factual determination, and it mustbe presumed that the decision on the Structure Plan gave effect to the provisions of theWaikato Regional Policy Statement.[99] However, the conclusions in relation to the Natural Character overlays in theearlier questions apply equally in this context. The Court's consideration is likely tohave been skewed by the failure to first identify Natural Character areas and assess theimpact of the adverse effects on those areas. That taints the assessment of whether theproposals give effect to relevant policies of the Waikato Regional Policy Statement,and it may also lead to a different assessment of the principles specific to rural-residential development. Specifically, it could lead to a different assessment ofwhether development should be avoided and how visual effects should be minimised.[100] The appeal under this head is only allowed to the extent it relates to theidentification and location of the Natural Character overlays and the consequenceswhich may flow from that decision.Question 6: reliance on calculations of theoretical development potential[101] WBCA submits that the Court's apparent reliance on a theoretical number ofsites that may (or may not) be possible under other provisions of the proposed Plan asa guide to the assessment of the number of sites in the Structure Plan had no statutorybasis and was in error.[102] I am satisfied that the Environment Court was entitled to undertake thehypothetical analysis. The context for the appeal was the Council's decision to declineto include the Structure Plan in the proposed Plan. The Environment Court was facedwith deciding whether to include the Structure Plan, or whether the decisions versionof the proposed Plan would continue to apply. The Environment Court was alsorequired, under s 32 of the RMA to take into account alternatives.49 Considering thepotential number of sites allowed under the proposed Plan was relevant to thatexercise. The position under the proposed Plan (without the inclusion of the StructurePlan) was the only other reasonably practicable option.50[103] I consider that the Court was justified in considering the counterfactual of whatmight be achieved under the rural zone provisions that would otherwise apply to theland had the Environment Court upheld the Council's decision not to include aStructure Plan. There was no error in its approach.49 Oceana Gold (New Zealand) Ltd v Otago Regional Council [2020] NZHC 436 citingFederated Farmers of New Zealand (Inc) v Mackenzie District Council (No 11) [2017] NZEnvC53 at [457].50 See RMA, s 32(1)(b)(i).Question 7: error approving proposed house site 21[104] House sites 15, 16, 17 and 21 were located in the Wainuiototo catchment. TheCourt identified the principal issue in relation to this catchment as being the proximityof sites 15, 16, and 17 to the top of the escarpment, and the location of site 21 closerto the stream and the gap between the northern end of the escarpment and the reservearea.51 The Court determined that house site 21 would almost certainly be visible fromthe northern part of the beach through the gap created by the stream.52[105] The Court identified the key resource management issue for development inthe Wainuiototo catchment as the extent to which it may create effects on the Beachand the Bay. The Court considered this concern should be addressed by designstandards, including visibility requirements and said:[172] In our judgment, this concern should be raised at the forefront of thedesign standards for the consents required for lots, house sites and buildings.It should be expressed in terms of ensuring that here will be no visibilitybetween a potential building in this catchment and the beach or the waters ofthe bay to a distance of 50 m from [mean low water mark]. We expect thatthere will need to be an exception for any building on House Site 21 whichmight be justified by the limited extent of the view that would occur. We donot consider that any exception should be made for House Site 15: if the designproblem is insoluble in that location, then the site will have to be relocated toa lower and less exposed position. In the same way, if it were found to beimpossible to design houses for sites 16 and 17 which were not visible fromthe beach and water, then the sites could be shifted westward until that wasachieved.[106] As recorded in the above passage, the Court suggested that there could be anexception to the invisibility standard for house site 21 because invisibility might notbe achievable for that particular house site.53 That exception was justified by thelimited extent of the view that would occur. A similar exception was not provided forthe other house sites despite the Court acknowledging that the invisibility standardmight not also be achievable in those sites.54[107] Counsel for the New Zealand Coastal Trust (who took the lead on this question)submits that by exempting house 21 from the invisibility standard the51 Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180 at [167].52 At [170].53 At [177].54 At [172].Environment Court erred in law by approving a Structure Plan for inclusion in theproposed Plan which would not "give effect to" the New Zealand Coastal PolicyStatement as required by s 73(3)(b) of the RMA. She submits that the requirement toavoid adverse effects as set in Policies 13 and 15 of the New Zealand Coastal PolicyStatement was an environmental bottom line that must be applied.55[108] Counsel for the Mears submits that the challenge under this ground amounts toa challenge to the merits of the Environment Court's decision. I agree. It is clear thatthe Environment Court had regard for the particular values affected by each house site.It concluded that there should be no exceptions as to the non-visibility in relation tohouse sites 15, 16 and 17. Its conclusions in relation to house site 21 were becauseprotecting the areas of special significance did not require achieving completeinvisibility of all development when viewed from all locations on the beach, and therewould only be limited views of this house from the beach.[109] That approach is consistent with the Supreme Court's approach inKing Salmon that the existence of minor or transitory effects can be acceptable in thecontext of a directive to avoid adverse effects.56 Although not said so expressly, Iconsider the Environment Court's decision that the limited view justified an exceptionfor house site 21 must be interpreted as finding that the adverse effects from this housesite were minor. That involves a factual assessment which the Environment Court,with its specialist skills, is uniquely placed to make. This Court should be slow tointerfere with that assessment.[110] Accordingly, I find no error of law in relation to the final ground of appeal.Result[111] The appeal is allowed:55 In Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] 1 NZLR593, [2014] NZSC 38, the Supreme Court held that Policies 13 and 15 were environmental bottomlines.56 At [144]–[145].(a) in relation to question 1 as it relates to the jurisdiction to alter the mapsof the Natural Character areas; and(b) in relation to the questions 3 and 4 insofar as those questions relate tothe identification of Natural Character areas beyond those in the mapsconsidered by the Court; and(c) to the extent a reconsideration of whether the Structure Plan gives effectto the New Zealand Coastal Policy Statement and Waikato RegionalPolicy Statement (including the number and location of the house sites)is required as a result of the Court's subsequent re-consideration of thematters in (a) and (b) above.[112] The remaining grounds of appeal are dismissed.[113] The Court's decision is quashed to the extent raised in [111] and remitted tothe Court for determination of the mapping and identification of the Natural Characterareas and, if necessary, the matters raised in [111](c)].[114] The appellants are the successful parties in the appeal and are entitled to anaward of costs. The parties are encouraged to agree quantum, failing whichmemoranda in support of costs shall be filed 15 working days after delivery of thisjudgment, and memoranda in reply shall be filed five working days thereafter.Memoranda shall be no longer than five pages in length._________________Edwards JCounsel/Solicitors:J M Savage, AucklandAnderson Creagh Lai, AucklandR B Enright, AucklandRichard Allen Law Associates Ltd, AucklandBrookfields, AucklandBeresford Law, AucklandR J Hollyman KC, AucklandAtkins Holm Majury Ltd, AucklandS R Gepp, AucklandBell Gully, Auckland