Case Law

Gavin H Wallace Ltd & Ors v Auckland Council [2012] NZEnvC 120

Author: Bronwyn Carruthers, Partner and Brigid Kelly, Senior Solicitor
Number: NZEnvC 120
Court: Environment Court
Party: Gavin H Wallace Ltd & Ors v Auckland Council

The Environment Court has reversed the decisions by the former Manukau City Council (“MCC“) and Auckland Regional Council (“ARC“) on three planning instruments that effectively “locked-up” an area of land at the end of the Ihumatao Peninsula from future urban development.  The subject land was to the west of Auckland International Airport and neighboured the Otuataua Stonefields Historic Reserve (“Stonefields reserve“).  The challenges to the Councils’ decisions were focussed on one underlying issue – whether the sensitive landscape and heritage characteristics of the subject land are such that the land should be forever protected from any form of urban development. 

This case concerned the last of the appeals against the MCC’s Plan Change 14 (“PC14“) and the ARC’s Change 13 to the Auckland Regional Policy Statement (“Change 13“), which gave effect to PC14 by amending Auckland’s Metropolitan Urban Limit (“MUL“).  Three landowners whose rural-zoned land on the Ihumatao Peninsula was not included in the land to be rezoned by PC14 and was therefore left out of the MUL, appealed against the continued restrictive rural zoning and sought to have their land included within the MUL (together the “appellants“).  The Auckland Council (as successor to MCC and ARC) and two Maori appellants opposed any urban development on the subject land, and therefore any extension of the MUL, on the basis that the subject land had significant historical, cultural and heritage values which warranted protection. 

The third planning instrument which was the subject of this appeal was the Notice of Requirement (“NoR“) issued by the MCC on 18 October 2007 over the appellants’ land.  The NoR was for “Otuataua Stonefields Passive Public Open Space and Landscape Protection Purposes”, which was in effect for a planned extension of the existing Stonefields reserve.  It was common ground between the parties that there was a close relationship between Change 13, PC14 and the NoR.  Accordingly, the Court considered the appeals against all three of these instruments together.

The Court was required to determine three major issues:

    1)         The location of the MUL line;

            2)         The appropriate zoning of the appellants’ land; and

            3)         Whether the NoR should be approved or cancelled.

However, at its heart, the resolution of the appeals on all three instruments rested on the overarching question of whether it was appropriate to effectively “lock-up” the subject land through the three planning instruments and prevent its use for urban forms of development. This issue arose because of the significant heritage, cultural, archaeological and landscape values associated with the subject land.  There was no dispute as to the importance of the historical and heritage associations of the subject land.  Culturally, local iwi have strong associations with the subject land and there are sites on the land which are of special significance, including waahi tapu.  There was also no dispute about the open rural character and amenity of the subject land or about the landscape values of the land forming the “coastal edge” to the Manukau Harbour.

What was in dispute was the extent to which the acknowledged landscape, cultural and heritage values should prevent any prospect of the land being developed for urban purposes.  The basis of the Councils’ original decisions on the three planning instruments was that, with this three-pronged suite of planning techniques, protection from all urban development on the subject land was the most appropriate way to protect the neighbouring Stonefields reserve, protect Maori associations with the land, and protect the land’s heritage and landscape values.

The Environment Court disagreed.  The witnesses for the Council and the Maori appellants in support were too narrowly and intensely focussed on the subject land’s heritage, cultural, archaeological and landscape values.  Other potential land use scenarios were not adequately analysed during the original decision-making process.  Accordingly, upon hearing all the evidence, the Court held that sympathetic development which protects specific heritage, cultural and historic values, and which does not detract from the Stonefields reserve, could be undertaken under the right planning regime.  Such a regime would reflect the fact that the Ihumatao Peninsula is a dynamic, living environment.

The Court was satisfied that such a finding was in accordance with the single purpose of the Resource Management Act 1991 (“RMA“) – sustainable management.  The protection afforded by section 6 of the RMA had been overstated by the Council witnesses.  The Court reiterated that the protection in section 6 is only from inappropriate subdivision, use and development, not from any development whatsoever. 

In relation to cultural concerns, the Court held that the protection of Maori relationships in the area under section 6(e) was already largely provided for by the neighbouring Stonefields reserve.  The evidence established that the majority of identified archaeological and Maori spiritual sites are located on the Stonefields reserve.  Those that are located on the subject land are more widely dispersed, and therefore could be catered for by sensitive, cautious development.   The Court also took the opportunity to remind the Council and the Maori appellants that the strong directions in section 6 relating to Maori cultural heritage are not a “total veto” on development.  Those directions only require decision-makers to recognise and provide for protection of these concerns from inappropriate development.

Future urban development of the subject land could therefore satisfy the relevant directions contained in Part 2 of the RMA.  Importantly, this would, unlike a total development exclusion approach, enable the appellants to provide for their social and economic well-being in accordance with section 5.  The current use of the subject land as farms is uneconomic with no viability for the foreseeable future.  To lock the land up might indeed provide for Maori and heritage values, but it would not provide for the economic needs and well-being of the owners.  By allowing sensitive, constrained urban development, an appropriate balance could be struck between protection of heritage, cultural and landscape values and allowing the landowners to put their land to an economic use. 

Given the Court’s finding that sensitive urban development, appropriately constrained, would better give effect to the sustainable management purpose of the Act, it was inevitable that it would in turn hold that the MUL should be shifted so as to encompass the subject land.  Keeping the land outside the MUL would not enable that sensitive urban development to occur.  The Court also agreed with the appellants that the MUL in its proposed location created an anomaly in landscape management terms, as it did not relate to the physical constraints in the landscape, such as a coastal edge, mountain range or prominent ridge.  Because of this, the Court was also concerned that the MUL was “unstable” given the difference in property values which would result by allowing development on one side of the line and not on the other.  As property values rise, those on the wrong side of the line will inevitably seek to have the line shifted.   Auckland Council was therefore directed, under section 293 of the Act, to prepare in consultation with the parties a change to the Auckland Regional Policy Statement which shifts the MUL to the coastal edge, which is the most defensible line for the MUL in this area.

In terms of the zoning of the land, not all of the appellants had expressly sought a zoning change in their notices of appeal.  All parties agreed that if the Court found that the current rural zoning was inappropriate for the subject land then a direction could be made by the Court under section 293 for the Council to prepare an appropriate plan change.  Given that the Court directed the MUL to be shifted to encompass the subject land, it is not surprising that it also found that the current rural zoning was inappropriate.  The more appropriate zoning was a “Future Development Zone”, which under the Auckland District Plan – Manukau Section is a “holding zone” that flags the potential for land to be developed for more intensive purposes but which requires a structure plan to first be prepared as the basis for a subsequent plan change and specific zoning provisions.  The Court was satisfied that a Future Development zoning could both adequately recognise the particular values of the land and provide for more appropriate future development.  The Council was therefore directed under section 293 to prepare a plan change, in consultation with the parties, on this basis.

Moving to the NoR, the Court was not satisfied under section 171(1) that the NoR was reasonably necessary to meet the Council’s objective to protect the cultural, heritage and landscape values of the subject land and the neighbouring Stonefields reserve.  The Stonefields reserve does not require a total protective buffer from neighbouring development, as it could be adequately protected by sensitive neighbouring development that recognises and provides for its values.  In terms of the subject land, the Court reiterated its earlier findings in relation to its Part 2 assessment that the Council had overemphasised the need to protect and preserve the cultural, heritage and landscape characteristics of the land.  It was not reasonably necessary to “lock-up” the subject land from all urban development in order to protect those characteristics, given that a Future Development zone could provide that protection while at the same time enable the landowners to derive an economic benefit from their land.  Because of this, the Court cancelled the NoR as it affected the subject land. 

Comment

This case again demonstrates the Environment Court’s reluctance to confirm an overly restrictive planning regime on privately-held land where the private landowners are firmly opposed to that regime.  The Court placed significant emphasis on the impact the three planning instruments, if confirmed, would have on the property values of the subject land.  The RMA requires the Court to strike an appropriate balance between providing for private landowner’s economic well-being, and recognising and protecting broader considerations, including historical and Maori heritage from inappropriate development.  The balance was struck by the Court in this case by directing the Council to shift the MUL and prepare a plan change which would enable sensitive, cautious urban development to occur on the subject land following a structure planning process.