Thumb Point Station Ltd v Auckland Council  NZHC 1035
The various entities that own Man O’War farm on Waiheke Island (“Thumb Point“) appealed to the High Court against the Environment Court’s rejection of its appeal on the Hauraki Gulf Islands (“HGI Plan“) section of the proposed Auckland Council District Plan (notified in 2006).
Thumb Point sought to amend the subdivision rules by reducing the minimum lot size from 25ha to 15ha in areas designated as Landform 5 (described as “productive land”) under the HGI Plan, aside from those areas within Landform 5 which were identified as Outstanding Natural Landscapes. Thumb Point also sought to expand the assessment criteria to allow consideration of any proposed active re-vegetation, where productive working land was converted to native bush.
Thumb Point had argued before the Environment Court that this represented the most appropriate method for achieving the objectives and policies of the HGI Plan, as a minimum lot size of 25 ha is too small for pastoral farming and too large for horticulture, and is consequently inefficient in terms of s 32 of the Resource Management Act (“RMA“).
The Environment Court declined Thumb Point’s proposal, concluding:
Section 32 RMA is constructed in imperative terms (“must”). [Thumb Point] has drawn too long a bow in its submissions on the point. It is questionable whether the evaluations required by the section have been undertaken, but even if they have, we cannot be satisfied that the provisions advanced by [Thumb Point] are the most appropriate way to achieve the plan objectives as analysed by us above.
We cannot find in favour of [Thumb Point] on issue 1. We simply observe that if in future there are to be proposals to loosen density controls in this part of Waiheke, it might be desirable if they take the form of a comprehensive suite of objectives, policies and methods. Naturally, we can make no prediction about the likelihood of such proposals.
The issues raised on appeal by Thumb Point were:
(a) The Court was wrong to apply section 32 of the RMA as a limit to the Court’s jurisdiction.
(b) The Court misapplied the objectives of the HGI Plan in rejecting Thumb Point’s proposal.
The Council opposed these propositions, and also argued that Thumb Point’s appeal involved revisiting the merits of the matter, rather than being on a question of law.
High Court decision
The Court considered that Thumb Point’s appeal raised three main questions, which are discussed in turn:
(a) Did the Environment Court have jurisdiction to consider Thumb Point’s proposal as to subdivision in areas designated as Landform 5?
(b) If the Court had jurisdiction, did it refuse to exercise that jurisdiction and consider Thumb Point’s proposal?
(c) Did the Court err in the way it decided Thumb Point’s appeal?
Did the Environment Court have jurisdiction to consider Thumb Point’s proposal?
This question arose because of a failure to comply with the section 32 process. The High Court held that the Environment Court must have the power to determine the most appropriate method of achieving the objectives of the HGI Plan, pursuant to section 290(1) of the RMA. The appeal could be determined, regardless of whether the section 32 process had been complied with. The Environment Court should not take an overly jurisdictional approach to an appeal, but should consider the merits.
Did the Environment Court consider Thumb Point’s proposal?
This question related to the Environment Court’s use of the phrase, “we cannot find in favour of [Thumb Point] on issue 1″.
Thumb Point submitted that in saying “cannot”, the Environment Court was making a finding that it was barred by section 32 of the RMA from considering the real issue under appeal – namely whether Thumb Point’s proposal was the most appropriate way to achieve the objectives of the HGI Plan.
The High Court did not accept that submission. While it noted that the words used where “perhaps awkward phraseology,” it considered that such terms were commonplace in a situation where a court’s conclusion is that a test has not been satisfied. The High Court was satisfied that in saying that it “cannot find in favour of” Thumb Point, the Environment Court was saying that it was not finding in favour of Thumb Point, because it was not satisfied that its proposal was the most appropriate way to meet the objectives of the HGI Plan. As such, the High Court was not persuaded that the Environment Court treated section 32(3) as being a limit on its jurisdiction.
Did the Environment Court make an error of law in rejecting Thumb Point’s proposal?
Finally, Thumb Point submitted that the Environment Court had committed an error of law when determining the appeal, in that it incorrectly assessed the relationships between the different objectives of the HGI Plan. In particular, it submitted that the Environment Court had wrongly interpreted Objective 220.127.116.11 (which sought to achieve positive environmental benefits from subdivision and development including planting and protection of significant environmental features, heritage features, and other notable landscape features”) as applying only to existing vegetation.
The High Court considered this argument could be effectively reduced to one issue:
The Environment Court concluded that the objectives of the HGI Plan related to protecting the landscapes on Waiheke as they are at present. Thumb Point submitted that the objectives should instead be interpreted as intending to preserve and improve the naturalness of the landscape in every case.
The High Court found that the protection of the areas designated as Landform 5 is intended to preserve the unique character of those areas as productive land, being working farms. As such, the intent of the Objective is to preserve an environment which, while not entirely natural, is used for a particular purpose, in a certain way, and has a certain character.
Accordingly, the High Court considered that in order to give effect to the objective, development which undermines the particular character of Landform 5 has been limited. While Thumb Point’s proposal may lead to a landscape which has more vegetation (and may be closer to the historical nature of the land), this is not consistent with the objectives of the HGI Plan.
The High Court was not persuaded that the Environment Court was wrong to reject Thumb Point’s interpretation of Objective 18.104.22.168, and dismissed Thumb Point’s appeal.