Before the Christchurch City Council In the matter of the Resource Management Act 1991 and In the matter of an application by Brent Falvey for a land use consent to erect a dwelling with attached garage and associated curtilage on 9021 Rothesay Road RMA 92031024 Legal submissions on behalf of Brent Falvey Introduction 1. 9021 Rothesay Road (site) is a 599m² section that was subdivided in 1924. The history of the zoning of the site is perhaps best described as one of lost opportunities, with the reason those opportunities were lost one of circumstance rather than design. 1 2. The end result has been that this privately owned, suburban residential sized lot came, anomalously in the Applicant s view, to be zoned rural. That zoning was then embedded in the operative Christchurch City Plan (City Plan) and, as a result of the identification of Aston Drive and Rothesay Road 2 as the extent of urban zoning as at 2013 when the Land Use Recovery Plan (LURP) became operative, and changes were made to the Canterbury Regional Policy Statement (CRPS). 3. However, while zoned rural, there has existed the ability to apply for a noncomplying resource consent to develop the site, which has led to this application. 4. The proposal is described in detail in the application, the section 42A report (officers report), and in the planning and landscape evidence provided on behalf of Mr Falvey (Applicant). It has been the subject of further modifications in light of comments contained in the officers report and submissions (having been publicly notified 3 ) making the descriptions in the Applicant s evidence the most current. Nature of the application: what it is, and what it isn t 5. This is an application to build a family home on the site. 1 The possibility that previous rezoning opportunities were lost on account of non-notification of the landowners have been communicated to the applicant, Mr Falvey. 2 Rothesay Rd is an extension of Aston Drive adjacent to the site. 3 Section 95 notification decision on RMA92031024 dated 19 November 2015.
2 6. It involves providing access over an existing public (paper) road, while maintaining and enhancing current public access to Waimairi Beach and Bottle Lake Forest, including continued access for emergency vehicles. It involves connecting to existing services, with no impact on the capacity of those services, to meet the current or permitted future demands in this part of Christchurch. 7. This is not an application to subdivide rural land. It is not an application to develop public land, in particular, the site is not part of Bottle Lake Forest or the CMA 4. It is not an application that will restrict access to the beach or the forest. It will not require any new, publicly funded, infrastructure. 8. The proposal will impact on views that some people currently have through the undeveloped site, but not, due to the limited scale of the proposal, in a way that detracts from the nature of the rural or coastal landscape itself. Case for the Applicant 9. The Applicant s case is that: 9.1. Placed in context, this is an application of limited scale to build a dwelling that, with the proposed mitigation, will have minimal adverse effects on the environment. Effects on views are considered minor, particularly when the permitted baseline is applied; 9.2. The application overall is not contrary, in the sense of being repugnant, to the objectives and policies of the relevant plans, which have been targeted at maintaining rural character and open space, and limiting the extension of urban activities into rural areas, in order to avoid adverse effects on the recovery of Christchurch from the Canterbury earthquakes and on available, as well as planned, public infrastructure; 9.3. Granting the application is not inconsistent with LURP. This is especially so now that CRPS changes are formally no longer part of the LURP and Appendix 4 (showing inter alia the infrastructure boundary and the existing urban area) is now shown in the LURP as indicative only 5 ; 9.4. The context of the proposed activity includes an uncommon (if not unique) set of facts that constitute a true exception for rural zoned land and raises no precedent issues that could undermine the planning framework; 9.5. The proposed activity represents the only reasonable productive land use for this site; and 9.6. The purpose of sustainable management would be better met by granting rather than refusing the application. 4 We note Ms Dovey s comment about proximity to the CMA but do not agree with her conclusions. In any event as a non-complying (and therefore fully discretionary consent), if proximity to the CMA is considered an issue, it can be considered by the Commissioner. 5 See: Gazette Notice 2016-go2032 dated 14 April 2016.
3 Legal framework 10. As set out in the application, the proposal is for a non-complying activity. This means that consent may only be granted under section 104 of the Resource Management Act (RMA or the Act), if the decision-maker is satisfied that it passes either of the tests in section 104D. 11. And as a non-complying activity, under section 104B, the decision-maker may grant or refuse consent. A decision to grant consent may be made subject to any conditions the decision-maker considers appropriate under section 108 of the Act. 12. The matters for which regard is to be had under section 104 are subject to Part 2 of the Act, including section 5: the purpose of the Act. Issues 13. The issues to be considered by the decision-maker, and addressed below, may be summarized as follows: 13.1. The consequences of the non-complying activity status of the proposal; 13.2. The considerations under section 104: 13.2.1. The actual and potential effects of the proposal, including any beneficial effects; 13.2.2. The relevant objectives and policies and the weight to be given to the operative City Plan and the Christchurch Replacement District Plan (CRDP); 13.2.3. Having regard to the CRPS, and the current position regarding inconsistency with the LURP; 13.2.4. Any other matters: precedent/integrity effects; the age of the lot; legitimate expectation; alternative sites and, non-compliant viewing locations; and 13.2.5. The section 104(2) permitted baseline and reasonable use; 13.3. Comments on the submitters evidence; 13.4. The requirements of the section 104D gateway tests and whether either or both are met by the proposal; and 13.5. Part 2 of the Act. Non-complying activity status 14. It is common ground that the application is for a non-complying activity under the operative Christchurch City Plan 6. 6 And is likely to remain so under the CRDP.
4 15. While classification as a non-complying activity means that certain aspects of Part 6 of the RMA (in particular section 104D) are brought into play, it does not, in and of itself mean there is a presumption for or against an application for resource consent. Any such application needs to be considered on its merits 7 and, subject to meeting the relevant tests, may be granted or refused. 16. However, what non-complying status will mean is that it is unlikely that there will be much (if any) direct support for the application in the policies and objectives of the relevant planning instruments 8. It is for this reason that the tests under section 104D exist. 17. The first test under section 104D(1)(a) requires that the adverse effects of the activity on the environment be no more than minor, with minor being a comparative word that does not suggest no, or only minimal adverse effects (i.e. de minimis effects that can be ignored). Whether effects are minor is also affected by any mitigation that can be offered and the application of the permitted baseline where one exists. Beneficial effects are not part of this assessment. Ultimately, whether effects will be minor is a question of fact and degree. 18. The second test under section 104D(1)(b) is whether the activity is contrary to the relevant objectives and policies of the relevant plan or proposed plan. 19. It is well established that contrary to, requires a finding that the application is opposed to in nature, different to, or opposite to the outcomes sought in the relevant objective and policy framework 9. The Courts have also held that being contrary to objectives and policies means that a proposal is repugnant to those objectives and policies taken as a whole 10. In addition, the following principles can be taken from case law: 19.1. When assessing whether a non-complying activity is contrary to the objectives and policies of a district plan, the task is to carry out a fair appraisal of the objectives and policies read as a whole 11. This requires more than just isolating out one or two policies with which the activity is contrary; 19.2. Where policies are general and have wider-ranging topics, the question is whether the activity is, in principle, contrary to the objectives and policies 12. There may be situations where the plan provisions that an activity is found contrary to are considered so central to the plan, read as a whole, that non-compliance with that objective or policy is sufficient but 7 Fleetwing Farms Ltd v Marlborough District Council [1997] NZRMA 385 (Court of Appeal), and Arrigato Investments Ltd v Auckland Regional Council [2002] NZRMA 481 (Court of Appeal). 8 Arrigato, ibid. 9 NZ Rail Ltd v Marlborough District Council [1994] NZRMA 70 (High Court). 10 For example, in Waiheke Marinas Limited [2015] NZEnvC 218 at paragraph [584]. 11 Dye v Auckland Regional Council [2002] 1NZLR 337 at [25] (Court of Appeal). 12 Kuku Mara Partnership Ltd v Marlborough District Council, Decision EnvC W025/02.
5 it is rare for a consent authority to base its decision either way on a single objective or policy 13 ; 19.3. This approach remains relevant though the decision in King Salmon 14 confirms that there can be bottom lines created by clear and directive policies, at least in respect of activities proposed in areas of outstanding natural landscape and in the context of plan changes that must give effect to the New Zealand Coastal Policy Statement. The application of bottom lines, to resource consent decisions where such considerations are absent, has not yet featured 15 in Environment Court decisions subsequent to King Salmon; 19.4. Concerns about the implementation of the District Plan in an even-handed manner may be dispelled where a non-complying activity is granted in unusual circumstances outside the generality of cases, and if the relevant objectives and policies are not offended 16. As an example, in Hitchon v Christchurch City Council 17, the proposal was not contrary to the relevant objectives and policies of the plan, as adverse effects could be mitigated, and the uniqueness of the site meant that there was no threat to the overall integrity of the plan. 20. One further question that arises in considering non-complying activities is whether the section 104D tests are, as their description gateway tests suggests, to be considered at the outset of the consent enquiry or just prior to making any final decision. While the High Court in Queenstown Central Ltd v Queenstown Lakes DC 18 found that the section 104D assessment should occur prior to considering section 104(1), the Environment Court 19 (citing Court of Appeal authority) has expressed support for the view that, essentially, the decision-maker retains a discretion on the approach to take. Except in situations where the answer is abundantly clear, it seems sensible to consider the effects and relevant plan provisions fully before coming to any conclusions under section 104D. 21. Fundamentally, whichever approach is taken, at least one of the tests needs to be passed before consent can be granted. These submissions address the application of gateway/threshold tests after identifying the effects (including whether there is any permitted baseline: see section 104D(2)) and considering the relevant plans and policy statements. The Applicant s position is that both tests are passed and that consent not only can but should be granted. 13 Akaroa Civic Trust v Christchurch City Council [2010] NZEnvC 110. 14 Environmental Defence Society v New Zealand King Salmon Company Ltd. 15 Based on a search of current case law. 16 Design 4 Ltd v Queenstown Lakes District Council [1992] 2 NZRMA 161 (PT). 17 Decision EnvC C115/92. This dealt with an apartment proposal on Rossall Street at Carlton Mill Corner as it approaches Rhodes Street (when travelling towards the city). The Court considered that the small size of the site (371m 2 ) and its unusually long street boundary due to its location on the bend at the point where Rossall Street becomes Carlton Mill Road were sufficiently unusual factors to make the proposal unique and overcome any threat to integrity issues. 18 [2013] NZHC 815, [2013] NZRMA 239. 19 Cookson Road Character Preservation Soc Inc v Rotorua DC [2301] NZEnvC 194.
6 Section 104 22. Under section 104 a decision-maker must have regard to the matters set out in subsection (1) (as relevant). The words have regard to mean 20 : no more than they say. The [decision-maker] may not ignore the statement. It must be given genuine attention and thought, and such weight as the tribunal considers appropriate. But having done that the [decision-maker] is entitled to conclude it is not of sufficient significance either alone or together with other matters to outweigh other contrary considerations which it must take into account in accordance with the statutory function. 23. The meaning of those words can be contrasted to the requirement when preparing a District Plan to give effect to higher order policy statements. The report to the Minister on the review of the LURP noted that have regard to is considered a more flexible test than to be not inconsistent with 21 when it observed: There will be greater flexibility to address these matters on a case-by-case basis through resource consent applications if Recommendation 1 is accepted. Decisionmakers on applications will be required to 'have regard' to the CRPS, rather than not be inconsistent with' it. This will provide decision-makers with some flexibility to grant a resource consent application in appropriate circumstances where an activity may have been inconsistent with Figure 4 of the LURP but otherwise meets the relevant tests of the RMA. 24. Recommendation 1 (removal for the CRPS from the LURP and making Figure 4 indicative only ) has been accepted under the Gazette notice of 14 April 2016 22. The Applicant says that this application was not inconsistent with the LURP in any event. Actual and potential effects on the environment 25. In considering actual and potential effects, benefits can also be considered (except in relation to any permitted baseline). In the case of this application, the proposed landscaping of the paper road to enable access can be seen as a benefit. It will formalize the beach access from Aston Drive and reintroduce some indigenous vegetation. The willingness of the Applicant to volunteer a condition in respect of the landscaping (which will also be subject to Council approval) means there are no issues with the enforceability of a condition in that respect 23 and it being relied on for mitigation. 26. Another aspect of the application that may be considered a neutral effect is that the proposal would still retain the perceived edge to the residential land at Waimairi Beach (as confirmed in Mr Rough s evidence at 7.1). 20 New Zealand Co-operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 at p. 612. 21 Land Use Recovery Plan Review - Decision Report with Recommendations, page 22, paragraph 121. 22 2016-go2023. 23 Augier v Secretary of State for the Environment (1978) 38 P & CR 219 (QBD); Frasers Papamoa Ltd v Tauranga City Council (2009) 15 ELRNZ 279, [2010] 2 NZLR 202, [2010] NZRMA 29 (High Court).
7 27. The Applicant says (despite some alternative views in Ms Dovey s evidence for Mr Pinnell) that there are no potential adverse effects in respect of: access; servicing; reverse sensitivity (fire hazard); ground levels (flood hazard); or, cultural or conservation values. 28. If there is a concern for Mr Pinnell in the plantings proposed for the landscaping of the paper road, Mr Falvey would have no issue amending those plans (subject to Council approval) to avoid any interference with his gate onto the paper road. Landscape effects 29. Central to the consideration of effects for this proposal is the effects on the landscape, in particular the rural character of the landscape and its open nature. From reading the officers report and evidence for Mr Pinnell, it is clear that whether these effects are considered adverse and more than minor in nature is the essential question for considering both the acceptability of those effects, and whether the application is contrary to the objectives and policies. 30. The Applicant relies on the conclusions reached by Mr Rough in respect of these landscape effects. A fundamental point that can be made about the landscape effects appears to be that while the proposal will have an impact on some views of the landscape of the rural and coastal areas from specific locations (i.e. potential amenity effects), the proposal will not create any fundamental change to those landscapes themselves. 31. In other words, the construction of a dwelling on this 599m² site on the fringe of the rural area, adjacent to the residentially zoned land at Waimairi Beach, will not make the remaining rural land or dunes of the coastal environment any less rural or open. It seems likely, as the Applicant s evidence observes, that if one was to identify where to locate a dwelling at this location to best minimize the effects on open space and rural character, 9021 Rothesay Road could well be the ideal site. 32. However, as Mr Rough explains, there will be effects on the properties he identifies in terms of the views of the dwelling and the inhabitants view of the landscape. It is noted that while there is no absolute property in a view 24, it has been held that reliance on planning provisions that might protect a view including site density 25, bulk and location rules is a legitimate consideration. But, as the Environment Court noted, although particular regard 26 must be had to the maintenance and enhancement of amenity values, that is not the same as saying there is a right to a view. Nevertheless, there have been cases 27 where reductions in views have been considered a more than minor adverse effect on visual amenity. 24 As confirmed in Meridian Energy Limited [2013] NZEnvC 59 at paragraph [112] citing Anderson v East Coast Bays City Council (1981) 8NZPTA 35, page 37 (HC) 25 Smith Chilcott Ltd & C M Martinez v Auckland City Council [2001] NZRMA 108 (HC) 26 Section 7(c) and (f) the maintenance and enhancement of amenity values and the quality of the environment. 27 Such as Jill Corson and Ciaran Keogh v Taupo District Council, unreported, Environment Court, Judge Whiting, A61/2002: a case that involved a subdivision application in a uniform 4ha rural residential area where the cumulative intensification effects, the effects of extensive plantings on views of Lake Taupo and plan integrity effects saw the application declined.
8 33. In relation to the proposal: 33.1. The Applicant has little option in terms of bulk and location for the dwelling and has attempted to mitigate the visual impact of the dwelling through plantings, use of building material (cedar), and a colour palette to blend the dwelling into what is a changing view; 33.2. While considered adjacent to the properties under the City Plan, the proposed dwelling is separated from the existing houses by the paper road, which will itself reduce some of the impact on views; 33.3. In any event, the views of the site can be changed as a result of the implementation of activities permitted under the plan (fencing and amenity planting on the site 28 ); 33.4. The nature of the environment around the site, in particular towards the forest, is constantly changing and will in time be less open, while still rural. As the forest grows, any purported dominance of the site will reduce; and 33.5. As noted above, whether the actual or potential impact on views will be such that they represent a more than minor amenity affect will be a matter of fact and degree. Mr Rough has assessed the impact on the views in his evidence and has concluded that the effect on the visual amenity from those houses will be no more than minor for the purpose of section 104D. 34. It is noted that the positions of the planners and landscape architects for the Council and Mr Pinnell appear to virtually discount the presence of the existing housing development, including the submitters dwellings. In other words they effectively turn their backs on the existing urban environment and appear to treat the rurally zoned land as completely divorced from the context of this location. They have also dismissed the permitted baseline (see below). As a consequence, the Applicant says that Mr Rough s conclusions should be preferred. Plan objectives and policies 35. Mr Walsh has considered the relevant objectives and policies in his planning evidence. He concludes 29 that the application generally accords with the relevant objectives and policies. This conclusion differs to that reached by the Council planning officer and Ms Dovey. The principal reason for the differences of opinion appears to stem from the acceptance of the contrasting views of the landscape experts. This emphasizes the importance of the opinions given on the visual and landscape effects in the assessment of the objectives and policies. 36. In passing, it is unfortunate that Mr Head s involvement was not known earlier to the Applicant. If it had been then the opportunity for discussions or conferencing, which occurred informally between Mr Rough and Ms Dray, could have been 28 It is noted that Mr Head in his evidence considers such activities fanciful. The Applicant disagrees: see discussion of the permitted baseline below. 29 At paragraph 121.
9 arranged to see whether the differences of expert opinion could have been narrowed. 37. In any event, the relevant objectives and policies from both the operative City Plan and the CRDP are identified in the evidence of Mr Walsh and the officers report, which Ms Dovey endorses. It is noted that it appears that the officers report has relied on the notified version of the CRDP objectives and policies which were amended by the Council in the process. Mr Walsh has included the version of the relevant objectives and policies that regard is to be had to from the rebuttal version of the Council s proposal 30. 38. However, Mr Walsh does note that the potential for the Independent Hearing Panel (IHP), which has significant latitude in respect of scope, to further revise those provisions cannot be discounted. Therefore, he concludes that the objectives and policies of the operative City Plan should be given significantly more weight. 39. But under either set of objectives and policies the essential features are the need to maintain the rural character of the land and coastal environment, to not impede the productive uses of the rural land, and to maintain open space. 40. When viewed in the round, in respect of either version of the policies and objectives, the proposal does not offend those goals and therefore cannot be contrary to them. The rural character and open space nature of the surrounding countryside is not eroded by the construction of a dwelling on a 599m² site at the very extremity of the zone. Similarly, the character of the coastal environment will be unaltered by a minor development on its periphery, and which extends no further into that environment than the adjacent urban residential development. The productive rural land is not affected by the development of this small site for which, on its own, there is no productive rural use. 41. Taking two relevant policies of the CRPD as examples, Policy 17.1.1.2 of the proposed CRDP recognizes the varying nature of rural character and amenity values across the district which will be affected by existing or permitted uses. It then identifies elements from which desired amenity of the rural zone is derived. Of the elements identified, the Applicant says that this proposal will not: diminish the dominance of the landscape by openness and vegetation; affect the separation of residential building on neighbouring [rural] properties; or impact on natural landforms or any particular natural character elements. In addition, the proposed dwelling it will, over time integrate well into its setting. 42. Policy 17.1.1.5 in respect of density and the distribution of residential units. The proposal will: have no effect on the working function of the rural environment; clearly supports a consolidated urban form; avoids the creation of a new site; avoids reverse sensitivity effects; and, will retain the openness of the surrounding environment. And since it does not involve subdivision but will retain the impression of the urban edge it will avoid any expectation of further land use change of the surrounding rural land for urban uses. There is clearly no possibility for amalgamation by the landowner since the surrounding land is all publicly owned. 30 As an appendix: TCW3.
10 43. The reality is that the effect of this proposed development on the objectives in either the operative City Plan, proposed CRDP or operative CRDP, will be minimal and are unlikely to be adverse to the extent that it would warrant refusing the application. This is particularly so as granting consent would have no adverse precedent or plan integrity effects (see below). Higher order instruments 44. The CRPS and NZCPS must be had regard to in respect of this application under section 104(1)(b). A decision on a resource consent must also not be inconsistent with the LURP 31. NZCPS 45. Ms Dovey suggests that the New Zealand Coastal Policy Statement (NZCPS) requires close consideration and highlights Objective 2 of the NZCPS that she says is relevant. Mr Walsh s view is that the requirement for the CRPS, City Plan and CRDP to give effect to the NZCPS means that it does not need to be considered separately. 46. The need to separately consider specific objectives in higher order documents was also considered in King Salmon, where Arnold J observed that as the hierarchy under the RMA moves from the general to the specific such consideration is likely to be unnecessary and possibly unhelpful where the lower order instrument must give effect to the higher order instrument 32. In that decision, the effect was that the NZCPS could be interpreted without reference back to Part 2 of the Act. 47. This mirrors the approach identified in Suburban Estates 33 where the Environment Court concluded that the CRPS provisions in question were subsumed in the City Plan provisions. This position was reached when the requirement in section 75 of the RMA was that the plan could not be inconsistent with the CRPS (rather than give effect to it), which the Supreme Court confirmed in King Salmon is a lower standard. Accordingly, Mr Walsh s approach is appropriate in the context of this proposal. 48. In any event, and having particular regard to the NZCPS, the development of this small site which extends no closer to the coastal environment than any of the other dwellings at Waimairi Beach (and not as close as some) would cause no adverse effects on that environment. Meanwhile, part of the proposal is the offer to improve the standard of the public access over Rothesay Road, so there are positive aspects to the proposal in terms of the access provisions in the NZCPS, as Ms Dovey acknowledges. The enhancement of the access to the coastal environment also includes re-introducing some indigenous vegetation. 49. Again, when considered in the round, without any specific requirement to give effect to the NZCPS as would be the case if this were a plan change application, 31 See: section 23 CERA Act; Section 60 Greater Christchurch Regeneration Act 2016. 32 King Salmon (ibid) at paragraph [90]. 33 Suburban Estates Ltd v Christchurch City Council, unreported, Environment Court, Judge Jackson, C217/01.
11 the argument that this proposal somehow offends that national policy statement seems somewhat far-fetched. LURP 50. Consistency with the LURP has now been much simplified. The changes to the LURP 34 means that there is no requirement for the proposal not to be inconsistent with the CRPS. The CRPS must still be had regard to but to the extent that its principle purpose was to provide direction to the Territorial Authorities within Greater Christchurch in the preparation of plans, its expression is now subsumed in the Strategic Directions Chapter of the CRDP (see below). 51. In considering consistency with the LURP, that document must be considered in the round, with inconsistency being a question of scale and degree to be judged in the circumstances of the case 35. This raises the question: is the development of a single dwelling on an existing lot with no precedent effects (see below) and no impact on recovery or infrastructure at variance, discordant, incompatible or incongruous 36 with the LURP and its purpose? The Applicant says it never was and certainly is not now. CRPS 52. With respect to the CRPS, it is not sufficient to say that simply because constructing a dwelling can be considered an urban activity, it offends its objectives and policies. The aspect of the application that makes it an urban activity is the lot size: but while the failure to meet the density requirement makes this a non-complying activity (hence the consent application), dwellings still form part of the rural zone. 53. Therefore, and consistent with the approach in Yaldhurst Football Academy 37, which the Commissioner will recall, it is possible to identify where on the continuum of urban activities this proposal sits. It is clear that residential subdivisions and commercial or business centres sit at one end of the continuum and are the types of urban activity that the CRPS seeks to contain within the existing urban area or in identified Greenfield development areas. However, a single dwelling on a preexisting lot that will make no demand on additional or unplanned infrastructure and is situated adjacent to existing houses, must tend towards the other end of the spectrum, though not perhaps quite as far as a recreational activity. 54. Accordingly, simply identifying an activity as urban cannot automatically disqualify a proposal as offending the CRPS 38, which through Chapter 6 (inserted by the LURP) seeks to give effect to an urban form and to avoid urban development outside the defined area in order to provide certainty for the long term planning and funding 34 Above at footnote 22. 35 Re Canterbury Cricket Association Incorporated [2013] NZEnvC 184. 36 See the discussion of what not inconsistent with means in the Environment Court decision of Norwest Community Action Group Incorporated v Transpower New Zealand Limited (A113/01). 37 RMA92023228, applicant Slava Meyn. 38 Or inconsistent with it, which was the key question being asked in Yaldhurst Football Academy on the basis that the CRPS was considered to be part of the LURP.
12 for strategic, network and social infrastructure 39. offend those goals, it is unlikely to offend the CRPS. Where a proposal does not 55. This approach is consistent with a purposive approach to the interpretation of the CRPS as is required under the Interpretation Act. It also ameliorates to some extent the possible tension that is created by the use of avoid in the CRPS. Avoid has always been used in the RMA in the sense of the adverse effects of activities 40. However, it is now appearing in respect of an activity (or class of activity) per se. Since, it is understood, activities based plans are being touted as the way forward, such semantic issues will need to be addressed otherwise, as is being found in applying the CRPS, the use of avoid is being heralded as tantamount to creating prohibited activities, which cannot be correct as that class of activity already exists. 56. In Ms Dovey s evidence, she quotes from the decision of the IHP on the CRDP (Decision number 17, Proposal 14). That decision related to a range of requests to rezone rural land for urban activities including subdivision. Mr Falvey also submitted to rezone the site as is indicated in Mr Walsh s evidence. While recognising the different legal test applied to the IHP decision, Ms Dovey relies on the IHP statement in respect of the inconsistency of the rezoning requests with the LURP, as also effectively disqualifying this resource consent application. 57. The recognition of the different legal test is important, as a decision to rezone land to make it urban was considered beyond the IHP s ability. But also important was that, because of the decision as to rezoning, the merits of any particular proposal or location were not considered. Nor, because of the bright line nature of the IHP s decision, was the question of whether constructing a dwelling on land already subdivided to residential lot size, with no productive rural use, is properly considered a greenfield urban development. No re-zonings were considered as the IHP considered the scope did not exist to do so. 58. Considered in the proper context and its specific circumstances, and owing to: the limited scale of the proposal; the absence of any infrastructure effects; and, its anomalous nature which does not give rise to adverse precedent or integrity effects (discussed below), the Applicant says that granting this consent would not offend the CRPS. City Plan and operative parts of the CRDP 59. As noted above, Mr Walsh has considered, along with the other planners, the relevant City Plan and CRDP provisions that relate to this application. Again, as a non-complying activity it should be no surprise that outright support for this proposal is absent. The inability to obtain a rezoning, also noted above, is not considered relevant to this proposal for a resource consent. 60. While there may be peripheral aspects of the application that may be subject to marginally different approaches under the City Plan and CRPS, on the crucial issue 39 From the Yaldhurst Football Academy decision at paragraph 138. 40 See: section 5(2)(c), RMA. Also noted in King Salmon (ibid) at paragraph [92].
13 of landscape effects and the relevant objectives and policies, there appears little difference in the values that the plans seek to preserve. 61. However, as the Strategic Directions Chapter of the CRDP is operative it does need to be considered. 62. As an initial observation, it is noted that in respect of urban activity outside the existing areas, the wording of the objective is that [the plan] provides for urban activities only within existing urban areas. And, with reference to the IHP decision on residential zones, that is exactly what has occurred. Urban activities have not been provided for outside the prescribed area. But that does not mean that such activities are automatically prohibited. As far as the Applicant is aware any application to develop undersized rural lots is expected to remain a noncomplying activity. Though as the relevant rules in the CRDP have no legal effect until the IHP decision on the rural zone is issued, consent is currently only required under the operative City Plan 63. It must also be noted that it seems a stretch to say that an objective aimed at a strategic level of development can be assumed to have contemplated an anomalous situation such as this one. It also refers to providing housing development opportunities particularly but not solely, within existing urban areas, identifies greenfield priority areas and brownfield sites. 64. In any event, the Applicant says that the proposed activity: 64.1. Will be attractive to residents and visitors; 64.2. Will have no adverse effects on the protection and management of areas of special character and amenity value; 64.3. Will improve (or at least not diminish) connectivity with the coastline; 64.4. Will promote the effective use of existing infrastructure; and 64.5. Will have no impact on infrastructure funding issues. 65. Therefore, with respect to the Strategic Directions Chapter and the other operative chapters of the CRDP identified by Mr Walsh (Natural hazards and Transport), the proposal complies with, and is therefore certainly not contrary to, those provisions. Having regard to other matters Plan Integrity/Precedent 66. It is well understood that, while there is no strict precedent effect from decisions under the RMA due to the multifarious nature of resource consent application, there is an expectation that consent authorities will treat like with like when considering the exercise of its discretion. This has been termed a precedent effect. 67. While such precedent effects have been recognised as a potentially relevant matter under section 104(1)(c), the Courts have consistently urged caution when
14 considering such effects. The leading case remains the decision of the Court of Appeal in Dye v Auckland Regional Council [2001] NZRMA 513. At paragraph [52] it held: "The granting of a resource consent has no precedent effect in the strict sense. It is obviously necessary to have consistency in the application of legal principles, because all resource consent applications must be decided in accordance with a correct understanding of those principles but a consent authority is not formally bound by a previous decision of the same or another authority. Indeed in factual terms no two applications are ever likely to be the same; albeit one may be similar to another. The most that can be said is that the granting of one consent may well have an influence on how another application should be dealt with. The extent of that influence will obviously depend on the extent of the similarities. (Our underlining) 68. The expectation of like with like treatment can also mean that a decision that would lead the public to doubt whether the plan is being applied in an appropriately consistent manner could cast doubt on the integrity of the planning process. 69. These concepts have long been understood to be a legitimate consideration for decision-makers as other matters under section 104(1)(c). In addition, where an application for consent can be considered a true exception to the rules, including zones (another method, like rules), then the chance of a precedent effect or undermining the plan s integrity is obviated. 70. In this case, the situation in respect of this site is an anomaly. It was subdivided in about 1928 and has existed as a privately owned residential sized lot ever since. It is surrounded by public land owned by the Council including the paper road (that the Council effectively holds on trust for the public generally 41 ). And the application itself will not create adverse effects that would be more than minor or be contrary to the relevant objectives and policies, or inconsistent with the LURP. 71. The result is that, should this application be granted, it will not create an adverse precedent for granting approvals to urban activities because there is little, if any, chance that the circumstances of the application can be replicated. 72. The reference above to adverse precedent is another aspect of potential precedent effects. In other words, any such effect created must also be an adverse effect for any planning issue to arise. For example, if there were another lot that had been existing as long as this one, would have no adverse effects that were more than minor and was held not to be contrary to the objectives and policies of the relevant plan, then it would be entitled to expect that it could be granted consent. 73. Of course as a non-complying activity, any subsequent activity must also be considered on its own merits. 41 Hence the need for any road stopping to be conducted through a public process under the 10 th Schedule of the Local Government Act 1974.
15 74. And while precedent effects and cumulative effects are different, an activity that would be likely to lead to cumulative effects (in an opening the floodgates sense) could be considered an adverse precedent. Though the proof of the contention would need to be compelling. This application is no thin edge of the wedge. It can be easily confined to its facts and specific location. 75. Finally on precedent effects, the changes now made to the LURP with Appendix 4 now being indicative only supports the Applicant s view that this application cannot be seen as a serious challenge to the urban planning framework for Christchurch, even when the CRPS is had regard to. The age of the lot 76. As recorded at the outset, the site has existed as a lot since it was subdivided in 1924. That confirms that a residential use of the site was contemplated and was provided for over 90 years ago. The Applicant says that this is a relevant matter that the Commissioner can factor into the assessment of whether this application should be granted. Legitimate expectation 77. The submissions from immediate neighbours suggest that their argument against the proposal relies to some extent on the notion of legitimate expectation. Legitimate expectation is an element of natural justice and is usually encountered in judicial review proceedings. As such, it is usually related more to expectations as to process rather than outcomes. 78. And while the concept of legitimate expectation has been applied in some resource management situations, it is somewhat fraught as it very much depends on: the facts of a situation; the fact that the planning environment is always subject to the potential for change; and, that it will often involve an assessment of competing expectations. 79. For example in the case of this proposal, the notion has been expressed as a means of preserving a view, which as noted earlier there can be no property in (i.e. it can t be owned ). It is also said to come from the expectation of the application of the plan. But in that case the plan allows for a resource consent application to be made and also provides a permitted baseline that will affect views. In other words, the idea that the neighbours are entitled to no change in their outlook ever - is not supported by an assessment of the relevant plan provisions. 80. A further aspect is whether, as a landowner in a residential subdivision that borders rural land, there is an entitlement to an expectation of perpetual rural amenity as opposed to an expectation that residential amenity, at least, will be maintained? As Mr Walsh comments in his evidence, the views from neighbouring properties will, in his opinion, continue to represent a high level of residential amenity. 81. There must also be consideration of the countervailing and equally legitimate expectation of a landowner that they will be able to put their land to a reasonable
16 use 42. Where that involves a residentially sized lot, surely one potential outcome is the development of a dwelling. 82. Finally, in terms of having carried out due diligence in the purchase of neighbouring properties, it will surely have been noted that a privately owned parcel of land did exist on the opposite side of Rothesay Road, which was entitled to be used for permitted purposes. 83. Therefore while one may desire that our surroundings never change, it remains something that can occur, and was never prohibited in respect of this site. Alternative sites 84. The existence of undeveloped sites at Waimairi Beach is also raised in submissions, the implication being that the Applicant should have considered alternative sites for the dwelling. Consideration of alternative is required when an activity is likely to have significant adverse effects. This proposal will not have significant adverse effects, so no such assessment was called for. Again, this is an application to develop an existing undersized rural lot, not to create an undersized lot by way of subdivision. Non-compliant viewing points? 85. Finally, and for completeness, one aspect of the visual effects of this proposal that is commented on in passing in the Applicant s evidence 43 is the fact that the houses to the south of the paper road (Rothesay Road) appear to be within the setback from roads required under the plan (a requirement that also applies to paper roads). While such non-compliances do not disqualify the neighbours from submitting and raising their concerns, they could very well have the practical consequence of altering the views of the site. As such it can be considered another matter for the Commissioner to consider should it be considered relevant to the decision. Permitted baseline and reasonable use 86. It has not been contested that the proposed activity is the only reasonable productive use for this site. There is nevertheless a permitted baseline for this site. That consists of the ability to fence the site and to plant trees either as a shelter belt of trees along its internal boundary or for amenity purposes. If either were to occur there would be an impact on views of the site and beyond. 87. Section 104(2) provides the statutory basis for the existence of a discretionary permitted baseline as follows (relevantly): When forming an opinion for the purposes of subsection 1(a), a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect. 42 An expectation protected, to some extent, under section 85 of the RMA. 43 Evidence of Mr Walsh at paragraph 83.
17 88. As described in Mr Walsh s evidence, there is a proposal to fence the site if consent is refused. Ms Dovey doubts whether that would be likely on account of the cost and Mr Head dismisses the possibility as fanciful 44. The Applicant strongly disagrees. 89. Firstly, fencing one s private property to prevent it being used as a public thoroughfare is hardly a fanciful notion. And, secondly, it is clear that the absence of any demarcation of this site has coloured how it has been viewed and treated in the past by the Council and by the public, including the neighbours. 90. In addition, if visual effects were deemed to be the reason why this application could not succeed, and especially if that reasoning was based on declining to exercise the discretion to disregard the effects on views from the permitted baseline, establishing that baseline as an existing state and matter of fact would become a logical first step before making a new application. 91. At the same time, an inability to secure consent for a dwelling, if that was held to be the only possible outcome in accordance with the current planning framework, could be taken as confirmation that the land has been rendered incapable of any reasonable use and opening the way for an application to the Environment Court under section 85 of the Act. 92. However, that outcome is not the landowner s preference. They would rather receive a fair value for the land as a developable asset. Therefore, if consent was to be refused they would wait until they can establish the permitted baseline as a matter of fact, or the planning environment becomes more enabling, perhaps as a further result of the changes now made to the LURP, and apply again for resource consent. Comments on the submitters evidence 93. Specific comments on parts of the evidence have already been made above. However, two aspects of Ms Dovey s evidence require further comment. 94. The first, that has come as a surprise, is the implication that Mr Falvey would, as part of this proposal and the arrangement for access over the paper road, need to fully form the paper road to the roading standards for local roads. 95. The application is clear, access is being sought over the paper road, and the indications from the Council have been that if the resource consent is granted permission for access will be forthcoming subject to conditions, including that public access must not be hindered and that the paper road receives some landscaping treatment. The landscape proposal is part of Mr Rough s evidence as is the plan for the access-way that will only be gated to the extent that the Council wishes to prevent vehicular traffic (other than emergency vehicles) using it, as the Council currently does on the roadside at the start of Rothesay Road. 44 Section 104(2) makes no mention of whether the permitted effect must not be fanciful but whether or not an activity is fanciful has been considered relevant to whether the decision-maker exercises the discretion to apply the permitted baseline.
18 96. There is no further requirement to create a full road here so the comments about the effects that might cause can have little relevance. But, as recorded above, if there are particular changes to the landscaping plan that would be sought by Mr Pinnell (or any other neighbor), Mr Falvey would happily consider those and incorporate them subject to the Council s approval. 97. The second matter relates to comments over the means of providing the setback between the dwelling and the plantation forest. As Mr Walsh notes, Mr Falvey has purchased the 12 trees that lie within that setback. This means the setback is provided for in this rotation of tree planting. It also means that when the next rotation occurs those trees will not be part of the existing forestry and cannot be re -planted as of right. In other words there is no issue requiring an additional condition of consent. Section 104D 98. The Applicant says that the scale and effects of the proposal and the consequent impact on the relevant objectives and policies has been somewhat exaggerated by those parties opposed to the application. 99. This is a proposal of limited scale. Adverse effects are effectively limited to visual effects. Once effects that are permitted under the plan are disregarded, the visual effects of the proposed activity are no more than minor. The findings as to visual effects also qualify the extent to which the proposal can be considered contrary to the relevant objectives and policies of the plans. The Applicant says that the proposal is not contrary to those relevant objectives and policies. 100. Therefore, having considered the effects of the proposal and its relationship with the relevant objectives and policies, if the Commissioner was otherwise minded to grant the consent, he would not be prevented from doing so by virtue of a failure to pass either of the gateway tests. Part 2 Section 6 101. The nature of the surrounding rural landscape of this site borders the coastal environment and can be considered part of it. However, as the site has been affected by the plantation forest and by human activity related to access to the coastal environment, its natural state has been somewhat compromised. But, in any event, the placing of a dwelling on this pre-existing site is not considered an inappropriate use or development. Again the scale of the proposal limits its effects. 102. The area is not an outstanding natural landscape and the site does not contain significant indigenous vegetation nor is it a significant habitat for indigenous fauna. 103. The proposal includes an offer to enhance the public access to the coastal environment.
19 104. It will not impact on customary values or the relationship of Maori with Waimairi Beach. Section 7 105. The proposal reflects an efficient use of a site that has no other productive use. 106. The proposal will have an effect on amenity values, but will maintain in the sense of not impinging on the amenity and open space of the surrounding rural land and coastal environment. 107. The quality of the environment will not be diminished by this proposal. Section 5 108. This proposal will provide for the economic wellbeing of the landowner and Applicant, will have no impact on the potential of the area to meet the future needs of the community, have no impact on life supporting capacity, and adequately mitigates any adverse effects. 109. The purpose of the Act will be better achieved by granting consent to this proposal. A J Schulte Counsel for Brent Falvey Date: 18 April 2016