IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CIV-2021-419-000315
[2023] NZHC 2899	

UNDER	the Resource Management Act 1991	
IN THE MATTER OF	an appeal under ss 299 and 300 of the Act and further appeal under s 305 of the Act	
BETWEEN	WHANGAPOUA BEACH COMMUNITY ASSOCIATION
Appellant

PRESERVE NEW CHUMS FOR EVERYONE INCORPORATED
Further Appellant	
AND	THAMES-COROMANDEL DISTRICT COUNCIL
Respondent

(continued)	

Hearing:	26–28 June 2023
(Heard at Auckland)
(final submissions received 6 October 2023)	
Appearances:	J M Savage for Appellant
R B Enright for Further Appellant
A M B Green and R H Ashton for Respondent J Beresford for First Interested Party
R J Hollyman KC and L C Ford for Second Interested Party S H Gepp for Third Interested Party	
Judgment:	18 October 2023	

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 18 October 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

WHANGAPOUA BEACH COMMUNITY ASSOCIATION v THAMES-COROMANDEL DISTRICT COUNCIL [2023] NZHC 2899 [18 October 2023]

AND	ROSS and DEIDRE MEAR
First Interested Party

NORTHERN LAND PROPERTY LIMITED
Second Interested Party

THE NEW ZEALAND COASTAL TRUST
Third Interested Party

TABLE OF CONTENTS

Background	[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 Character
overlays?	[58]
Was the error regarding jurisdiction in relation to the Natural Character
overlays material?	[74]
Did the Court have jurisdiction in relation to the Outstanding Natural
Features 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   and   New Chums Beach on the Coromandel Peninsula. The area is renowned for its isolated and unspoiled nature.

[2]	In an interim decision dated 18 November 2021, the Environment Court directed Thames-Coromandel District Council (Council) to include a “Structure Plan” in its proposed District Plan in relation to this land.1 The Structure Plan covers subdivision and residential use of properties within the plan area.

[3]	The Whangapoua Beach Ratepayers’ Association (now Whangapoua Beach Community Association) (WBCA) and Preserve New Chum for Everyone Incorporated (PNC4E) appeal the Environment Court’s interim decision. They challenge the Environment Court’s decision that it did not have jurisdiction to alter planning maps. They also say that the Court failed to give effect to provisions in the New Zealand Coastal Policy Statement and Waikato Regional Policy Statement. Finally, they appeal in relation to the Environment Court’s approach to the number of approved 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.

Background

The land

[5]	The land is zoned rural in the proposed Plan. It presently comprises 11 titles ranging in size from 506 square metres to just over 105 hectares. Most of those titles are owned by the second interested party (Northern Land). The balance is owned by Gault 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 as Te Pungapunga Station, taking its name from the river that runs along its

1	Northern Land Property Ltd v Thames-Coromandel District Council [2021] NZEnvC 180.

southern boundary down to the estuary behind Whangapoua. Its road access is from Te Punga Road with the entrance about a kilometre west of Whangapoua. It includes New Chums Beach, a broad sandy beach just over a kilometre long on Wainuiototo Bay. This is said to be the last sandy beach on the Coromandel Peninsula that has not had its hinterland developed for residential purposes.

[9]	The land is generally located in two catchments:

(a)	To the north, the New Chums or Wainuiototo catchment of two streams that flow to Wainuiototo Bay near the northern end of New Chums Beach; and

(b)	To the south, part of the Pungapunga catchment comprising the land on the northern side of the Pungapunga River and extending past its mouth to Motuto Point [sic].

[10]	The land is generally hilly, with a steep escarpment immediately behind New Chums Beach rising between 40 and 90 metres high. This escarpment and the northern and southern parts of the New Chums catchment are covered in mostly native bush, with the central area of the catchment covered in a mix of bush, overgrown pasture and weeds. The land in the Pungapunga 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 of New Chums Beach extends to mean high water springs (MHWS). There is a Crown esplanade reserve, the New Chums Recreation Reserve, at the northern end of the beach extending just past Motukopu Island. There is another Crown esplanade reserve at the southern end of the beach  extending  around  Motutu Point, where it adjoins a Council esplanade reserve that continues along the shore to the Pungapunga estuary.

[12]	The land to the north and west of the structure plan area is a mixture of native and exotic forest with a quarry to the southwest. Little reference was made in the case to this land.

[13]	The high ground on the small peninsula to Motutu Point is privately owned by persons who are not involved in this proceeding. It is subject to a Queen Elizabeth II National Trust Open Space Covenant which provides for members of the public to have freedom of entry and access to the land with the prior permission of the owner. A pathway crosses the peninsula enabling, whether with permission or not, pedestrian access between Whangapoua and New Chums Beach.

The proposed Plan

[7]	The appeal arises out of the Council’s promulgation of a new District Plan in December 2013. A variation to the proposed plan was publicly notified in  November 2015 (Variation 1). The proposed District Plan and Variation 1 are referred to together as the “proposed Plan” in this judgment.

[8]	In preparing a proposed plan, a council must recognise and provide for the matters in Part 2 of the Resource Management Act 1991 (RMA), which includes the matters of national importance stated in s 6. Those relevant to this case include: the preservation of the natural character of the coastal environment from inappropriate subdivision use and development and the protection of outstanding natural features and landscapes from the same. Significant indigenous vegetation must also be protected.2

[9]	A council is also required to give effect to the New Zealand Coastal Policy Statement, and, in this case, the Waikato Regional Policy Statement.3 Both policy statements include provisions requiring the protection of the coastal environment and preservation of the natural character of the coastal environment, including protection of natural features and landscape values.

[10]	The Council was obliged to prepare its proposed Plan in accordance with the relevant clauses in Schedule 1 of the RMA. Counsel for the Mears helpfully set out the 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 make further 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 and protect areas that have coastal, natural character, or landscape features. These overlays are 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 the landward side of the coastal environment.

(b)	The Natural Character overlay which applies to areas that have identified natural character values. There are two subcategories of the Natural Character overlay:

(i)	Areas of Outstanding Natural Character; and

(ii)	Areas with High Natural Character.

(c)	Outstanding Natural Features and Landscapes. This overlay identifies areas with outstanding landscape values.

[12]	The Natural Character and Outstanding Natural Features and Landscapes overlays 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 protection of the subject land. The proposed Structure Plan in this case comprises objectives, policies and rules governing subdivision and other activity and governs the number and location of proposed house sites in the area.

[14]	Northern Land also made submissions seeking changes to the Natural Character and Outstanding Natural Features and Landscapes overlays. WBCA and PCN4E made submissions which, in broad terms, opposed provisions enabling future development 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 the recommendations of the council planner should be implemented in relation to the various 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 the Outstanding Natural Features and Landscapes and the High Natural Character (a subcategory of Natural Character) overlays.

[17]	Both appellants joined Northern Land’s appeal to the Environment Court pursuant to s 274 of the RMA:

(a)	WBCA opposed Northern Land’s appeal on the basis that, amongst other things, it would remove adequate protection for important features and coastal areas which would facilitate excessive, inappropriate subdivision and development.

(b)	PNC4E opposed on the basis that the relief sought would decrease the size of the Outstanding Natural Features and Landscapes, Natural Character overlays and Coastal Environment Line mapping overlays in the 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 decided that amendments should be made to the Coastal Environment Line and the Natural Character overlays. Those amendments were considered necessary to give effect to the RMA, New Zealand Coastal Policy Statement and the Waikato Regional Policy Statement.

[20]	Rather than notify the required changes as a variation, the Council  invoked   s 293 of the RMA. That section empowers the Environment Court to order a change to 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 matters identified by the Court, consult parties and other persons about the changes, and submit the changes to the Court for confirmation.

[21]	On 24 May 2018, the Environment Court issued its decision in Vernon v Thames-Coromandel District Council, confirming the use of the s 293 procedure to address matters relating to the Coastal Environment Line and the Natural Character overlays.4

[22]	The Court directed the Council to notify potentially affected parties of the proposed amendments, except where property affected was already the subject of an appeal. The parties to the Northern Land appeal were exempted from notification requirements. Parties who were notified were entitled to make submissions on the proposed amendments, and to join an existing appeal as a s 274 party.

[23]	The Council’s proposed amendments were notified on 15 June 2018, with landowners able to make submissions until 13 July 2018. There then followed a process in which the parties to the various appeals (including the Northern Land appeal) and submitters who were recently notified attempted to resolve outstanding mapping issues.

[24]	No agreement was reached in the Northern Land appeal. That issues relating to the Natural Character overlays remained outstanding was confirmed in memoranda filed with the Court on 8 and 25 March 2019. The 8 March 2019 memorandum also identified one outstanding issue in the Northern Land appeal in relation to the mapping of the Outstanding Natural Features and Landscapes areas.

Environment Court appeal hearing

[25]	The appeal before the Environment Court was heard between 8 and 12 April 2019. Closing submissions were received on 9 July 2019.

[26]	The appellants and the Council called expert evidence relevant to the Natural Character and Outstanding Natural Features and Landscapes overlays. That evidence was admitted in the usual way, and the experts were cross-examined including by counsel for Northern Land. They were also questioned by the Court. Submissions were also made by the appellants on the extent of these mapping overlays. None of

4	Vernon v Thames-Coromandel District Council [2018] NZEnvC 76.

the parties, nor the Court, raised any issue about the relevance of this evidence, nor the 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 not to pursue the appeal in relation to the Outstanding Natural Features and Landscapes and High Natural Character mapping, although it does not appear to have formally sought a withdrawal of this part of its appeal.

[28]	After the hearing, but before the decision was issued, the Court issued its decision in Environmental Defence Society Incorporated v Thames Coromandel District Council.5 This decision, dated 13 January 2020, was between different parties and concerned different land. However, the Court stated that it would be giving its decision in relation to New Chums Beach/Wainuiototo separately as it raised issues concerning the Natural Character overlays and a proposed Structure Plan for the development of the land.6

Environment Court decision

[29]	The Environment Court delivered the decision under appeal on 18 November 2021, approximately two and a half years after the hearing.7 It is an interim decision but is 81 pages long (including annexures) and includes a comprehensive summary of relevant planning provisions and evidence.

[30]	At the outset of the judgment, the Environment Court identified the main issues in the case as concerning the number and location of building platforms in the proposed Structure Plan area and the Structure Plan provisions. The issues involved assessments of the landscape and the natural character of the area, its relationship with the beach, coastal environment, other neighbouring areas, the cultural heritage of the area and the “effects of human activity on those things”.8

5	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 the Structure Plan layout and the number and location of house sites. Northern Land proposed a Structure Plan for 25 house sites (including five already constructed as per a consent granted on 24 November 2006). The Council, PNC4E and WBCA sought fewer (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 full later on in this judgment. For present purposes it is sufficient to note that the Court considered it did not have jurisdiction to alter the planning maps as sought by the appellants.

[33]	After reviewing the relevant provisions of the New Zealand Coastal Policy Statement and the Waikato Regional Policy Statement, the Court concluded that the key policy directives and s 6(a) and (b) of the RMA pointed towards protecting the natural character and outstanding landscape areas from development.9

[34]	The Court noted that achievement of the policy directives was “practically enabled by the existing landform, particularly the high, steep escarpment behind the beach and the enclosed form of the bay”.10 The most direct method to achieve the directives, therefore, was to avoid changes in the landform and minimise the visibility of changes to the land as viewed from the beach and on the inshore waters of Wainuiototo Bay to the fullest extent reasonably practicable.11

[35]	However, the importance of protecting  New  Chums  Beach  and Wainuiototo Bay did not, in the Environment Court’s view, entail achieving complete invisibility of all development of the hinterland when viewed from all locations on New Chums Beach or Wainuiototo Bay.12 Noting that a boundary between the area of development and the area to be protected is important, the Environment Court observed that that boundary must include not only a line between the areas but also controls on bulk (especially height) on the development site.13 The northern side of

9	At [137].
10	At [137].
11	At [138].
12	At [139].
13	At [140].

the Pungapunga River did not demonstrate similar outstanding natural landscape or character values in the opinion of the Court and did not therefore require the same degree of protection from development.14

[36]	The Court then turned to consider the level of development in the area, using the existing proposed Plan provisions as a counterfactual.15 The Court identified the proposed locations which were proximate to the escarpment, high on the hinterland, or along the river, as presenting particular issues. Those issues included whether the location itself may be objectionable or problematic or whether particular issues of bulk or 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 in the Pungapunga catchment area of the Structure Plan was not likely to be as significant as the potential scale of individual buildings, and the way in which principal and accessory buildings were placed on each site.17 The Environment Court then set out the criteria and controls in the Structure Plan which should be reviewed and if necessary amended to address these issues.18

[38]	In relation to the New Chums catchment, the principal issues related to the proximity of house sites 15, 16, 17 and 21. The Environment Court noted that house site 21 was close to the stream and in a location that would almost certainly be visible from the northern part of New Chums Beach through the gap created by the stream.19 Protection of adverse effects was to be achieved through design controls which included a “no visibility” standard. An exception to this standard was reserved for house site 21 due to the limited extent of the view that would occur.20

14	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 its comments on the text of the draft set of Structure Plan provisions which were attached to the decision.

[40]	The Environment Court’s findings were summarised as follows:

[177]	For the reasons set out in this interim decision, we have concluded that the design and detail of the location of individual houses is more important to the preservation of the natural character of the coastal environment and the protection of the outstanding natural landscape than whether the absolute number of such houses is set at or below 25. Matters of design and detailed location depend very much on the particular context for each site. Some locations, such as [House Sites] 15, 16 and 17, present particular problems which require a clear limit on what the effect of any particular design and location may be. In those cases, requiring the design of any house on those sites not to be visible from the beach or the waters within 50 m of MLWS is the appropriate standard. In the case of [House Site] 21, a standard of invisibility from the beach may not be achievable but the effect of a house in that location is unlikely to be as significant as from a more elevate and central location.

[178]	In the Pungapunga catchment we conclude that different considerations are more important and that there is little value in minimising the visibility of the houses simply to minimise the sense of change in the views presently obtained from locations in Whangapoua. But the consequence of that is that design and benching into the landform will likely be more important because the houses will be visible.

[179]	We have included our comments about the provisions of the Structure Plan and in particular the required contents of the management plans to be provided in relation to proposals for subdivision and development to guide the next stage of the hearing.

[180]	We therefore issue this decision as an interim one. We have addressed the 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 either be added to the provisions or amended in order to ensure that the adverse effects of development in this sensitive location are properly addressed by an applicant for consent, properly assessed by the consent authority and able to be properly commented on by any affected persons.

[41]	The appeal was allowed to the extent that the Council was directed to amend the proposed Plan to include the Structure Plan, but subject to amendments to the text to include further criteria and controls as set out in the Court’s decision. A second stage was envisaged.

[42]	WBCA lodged its appeal on 9 December 2021. PNC4E filed its appeal the following month. In a minute dated 15 December 2022, the Environment Court

determined that this appeal should be heard and determined before delivery of the final decision.

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 if it has applied a wrong legal test, or if it has come to a conclusion without evidence or one to which, on the evidence, it could not reasonably have come, or if it has taken into consideration matters which it ought not to have taken into account, or if it has failed 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 the Environment Court.22 The weight given to the relevant facts  is  for  the  Environment 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, the   High Court cautioned that a court must not persuade itself that because it might have reached a different conclusion, the decision of the Environment Court must be wrong.25

[46]	Any error of law must materially affect the result of the Court’s decision before the High Court will grant relief.26

Questions of law

[47]	The questions of law raised by each appeal overlap. They were revised and consolidated into the following:27

21	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 Auckland Regional 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 that amendment and memorandum submitted in support.

(a)	Did the Court wrongly conclude that it lacked jurisdiction to consider the extent and location of Natural Character and ONFL overlays?

(b)	Did the Court breach natural justice in concluding that it so lacked jurisdiction without inviting the parties to make submissions on jurisdiction?

(c)	Did the Court err in its approach to the New Zealand Coastal Policy Statement?

(d)	Did the Court, as a consequence of not addressing the location and extent of the Natural Character overlays, fail to properly address the Waikato Regional Policy Statement provisions protective of areas of natural character?

(e)	Did the Court err in failing to analyse the proposed provisions of the Structure Plan against Development Principle (c) for Rural Residential Development in the Waikato Regional Policy Statement?

(f)	Did the Court err in relying on calculations of theoretical development potential under other proposed Plan provisions and as a result fail to properly address whether the number of 25 house sites proposed was appropriate?

(g)	Did the Court err in approving proposed house site (and associated lot) 21?28

Questions 1 and 2: jurisdiction and breach of natural justice

[48]	The first two questions on appeal concern the Environment Court’s decision that it did not have jurisdiction to alter the planning maps. The first question concerns

28  The appeal by PNC4E in relation to house sites 15, 16 and 17  was abandoned.  PNC4E adopted  the submissions of The New Zealand Coastal Trust in relation to house site 21. A further point of appeal relating to the assessment of the expert evidence of Robert Scott was also abandoned by PNC4E.

the Court’s jurisdiction. The second question alleges that the Court’s approach was a breach of natural justice. Both questions are addressed together.

[49]	The Environment Court’s reasons for determining it did not have jurisdiction are as follows:

[86]	We accept that it is important to identify places and areas correctly in any land use planning process. It is certainly a principle of good planning to identify relevant constraints prior to considering what the most appropriate development and use provisions may be. That is the essence of spatial planning, in the ordinary sense of those words. A rational approach to such identification is to start generally and move to address particular matters in an order which builds on the information that has been gathered and avoids, as far as practicable, unnecessary repetition in the process.

[87]	In terms of those very general principles, we think it is usually appropriate for persons engaged in making a plan to identify matters for protection and areas or other resources which ought to be protected before opportunities for use and development are chosen. In that way the provisions of 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 very difficult to reverse decisions to make areas or other resources available for development, and retrospective attempts to address the requirements of Part 2 of the Act are generally less successful than plans which make provision for them at the outset.

[88]	As well as acting with those general principles in mind, it is also necessary under the RMA to prepare plans in accordance with the procedure in Schedule 1 and with the case law in relation to those provisions, including the rules about scope. In particular, the provisions of a proposed Plan cannot be altered except within the scope of a submission on those provisions or of a variation to them notified in accordance with Schedule 1.

[89]	This appeal by Northern Land is based on its submission seeking a structure plan. The participation of PNC4E in this appeal is based on its further submission in opposition to Northern Land’s submission. Other parties in this proceeding are similarly present to address their support of or opposition to Northern Land’s proposal based on their submissions or further submissions.

[90]	As lodged, the notice of appeal by Northern Land sought some relief in terms of clarification of the mapping of its land, including removing or redefining the mapping of [Outstanding Natural Features and Landscapes] and [High Natural Character] areas, but this relief was not pursued at the hearing of the appeal. There is nothing before us to show that the location of the [Outstanding Natural Features and Landscapes] in the vicinity of the subject land was the subject of any submission to extend it. There appears to have been submissions seeking to retain the notified extent.

[91]	The location of the [Coastal Environment Line] and the extent of the areas of [Outstanding Natural Character] and [High Natural Character] were the subject of a further process under s 293 of the RMA, including notification

of a revised [Coastal Environment Line] and the receipt and hearing of submissions on that revised line. There is nothing before us to show that there was any submission to extend the area of the coastal environment in the location of the proposed Structure Plan area.

[92]	In terms of our jurisdiction, therefore, and notwithstanding the absence of any jurisdictional issue being raised by the Council or other parties with the submissions of counsel for PNC4E in relation to the mapping of these areas, we do not consider that we have jurisdiction to alter the planning maps as sought.

[50]	WBCA challenges the Environment Court’s decision in relation to the Natural Character overlays (the Outstanding Natural Character and High Natural Character areas). PNC4E challenges the Environment Court’s decision in relation to the Outstanding Natural Features and Landscapes overlay. Different considerations apply to each challenge because the Natural Character overlays were the subject of the s 293 process, 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 the appeal. The decision in Transit New Zealand v Pearson concerned different statutory provisions, but the explanation for the constraints imposed on appeal rights in the RMA context nevertheless remains relevant.29 William Young J said:30
There is a real difference between appeals as between courts of general jurisdiction and resource management appeals. Resource management appeals form part of a process which involves extensive public participation with associated notice and service requirements. People who have been involved in a particular process may well decide whether or not to continue to be involved in a subsequent reference or appeal in light of what is put in issue in the notice of appeal or reference. There is obviously a risk of prejudice if an appellant or referrer can change the scope of the proceedings to argue matters which go beyond those signalled in the relevant originating document. Further, there are some practical advantages and certainty for those who are involved under the Resource Management Act. A party who has obtained a resource consent but is concerned about the conditions may wish to be able to appeal in relation to the conditions without thereby opening for re-litigation the question whether the resource consent should, itself, have been granted.

[52]	Dunningham J cited Pearson with approval in the recent case of Gertrude’s Saddlery Limited v Queenstown Lakes District Council.31 That case also concerned a

29	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 appeals involving proposed plan changes as follows:

[27]	There are logical reasons for these constraints. The RMA process for preparing, changing and reviewing plans, as set out in sch 1 to the RMA, is designed to:

(a)	progressively refine the disputed issues as the proposed plan goes through the submission and appeal process; and

(b)	promote the principles of procedural fairness and natural justice by ensuring potentially affected parties know what changes to the proposed plan are sought so they can choose to participate in decisions being made on that issue.

[28]	It is for these reasons that an appellant in such proceedings cannot pursue an outcome on appeal that falls outside the scope of their original submission. It is also why s 274 parties are constrained to supporting or opposing the appeal (and giving reasons for that support or opposition), and confining their evidence to matters that are within the scope of the appeal. The intention is that the addition of the s 274 party will not result in changes to the plan that could not have been anticipated from the appeal itself. If a submitter on a plan reviews the appeals which are lodged and is satisfied that none of them seek relief which concerns the submitter, the submitter need not concern themselves with the s 274 notices as those parties cannot seek relief beyond the scope of the appeal.

(footnote omitted).

[53]	Gertrude’s Saddlery has some similarities to the present case in that it involved mapping lines identifying Outstanding Natural Features and Landscapes. The appeal lodged included a challenge to these mapping lines, but there was no site-specific relief sought 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 not include a challenge to the Outstanding Natural Features and Landscapes mapping line which was what the s 274 party sought to challenge. Accordingly, the s 274 party’s relief was outside the scope of the appeal.

[54]	As noted by Dunningham J in the quoted passage above, the rights of those joining an appeal under s 274 of the RMA are also confined. Only certain parties may join a proceeding under s 274, and that party must give a notice stating whether it supports or opposes the proceedings and the reason for that support or opposition.32

32	RMA, s 274(2) and (3)(b).

Furthermore, a s 274 party must not call evidence unless it is on “matters within the scope of the appeal”.33

[55]	It follows that defining the scope of an appeal is an important step in determining the Court’s jurisdiction. That is necessarily a fact specific exercise. Whether an amendment to a proposed plan falls within scope should be approached in a “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 specific jurisdiction to order changes to proposed policy statements and plans. That section provides:

293 Environment Court may order change to proposed policy statements and plans

(1)	After hearing an appeal against, or an inquiry into, the provisions of any proposed policy statement or plan that is before the Environment Court, the Court may direct the local authority to—

(a)	prepare changes to the proposed policy statement or plan to address any matters identified by the Court:

(b)	consult the parties and other persons that the Court directs about 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 matter that it directs to be addressed.

(3)	Subsection (4) applies if the Environment Court finds that a proposed policy 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] NZRMA 408 (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 it considers that it is of minor significance and does not affect the general intent and purpose of the proposed policy statement or plan.

(5)	In subsections (3) and (4), departs and departure mean that a proposed policy statement or plan—

(a)	does not give effect  to  a  national  policy  statement,  a  New Zealand coastal policy statement, a national planning standard, or a relevant regional policy statement; or

(b)	is inconsistent with a relevant regional plan or water conservation order.

[57]	In Canterbury Regional Council v Apple Fields Ltd, this Court confirmed that s 293 provides a mechanism for the grant of relief beyond the scope of the appeal.35 This case concerned an earlier version of  s 293,  but  the  scope  of  the  Environment Court’s statutory power remains the same. However, the power is not unlimited and is to be used cautiously and sparingly.36

Did 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 in relation to the Natural Character overlays, that is, the Outstanding Natural Character and High Natural Character areas.

[59]	The starting point is Northern Land’s appeal. The mapping of the High Natural Character areas was a feature of Northern Land’s appeal. Despite the open language used in the Notice of Appeal (“clarification” and “remove or redefine”), I accept that what 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 an expansion of either the Outstanding Natural Character or High Natural Character overlays.

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 to order 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 the local authority (in this case the Council) to prepare changes to a proposed plan; to consult about the proposed changes; and to submit the changes to the Court for confirmation. The object of the power is to ensure that a proposed plan gives effect to higher order planning documents. For that reason, it is not limited by the scope of the appeal.

[61]	In this case, the s 293 process started with a request from the Council. The Council had undertaken a review of the Natural Character overlay and Coastal Environment Line and concluded that they should both be amended to give effect to the New Zealand Coastal Policy Statement. Rather than promulgating another variation to the proposed Plan, the Council requested the Court utilise its s 293 powers and sought directions on a proposed process of notification and consultation.

[62]	The Court acceded to the Council’s request in Vernon. The Court noted that while it had not heard all appeals in full it was nevertheless satisfied that the Coastal Environment Line and the Natural Character overlays in the proposed Plan “may well not 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. The Court directed the Council to notify “potentially affected parties” being all landowners affected by the change, except where the property was “already the subject of an appeal”. The “potentially affected parties” were directed to file submissions with the Council 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 existing appeals as parties under s 274 of the Act.

[64]	The Court did not make express directions about how existing parties to the appeal (such as the appellants), who were not formally notified, would engage with the Council’s proposed changes. The Council submits that existing parties could have made submissions in response to the public notification process. That is technically

correct. But that would only lead to an existing party being offered an opportunity to join an existing appeal as a s 274 party. That would be somewhat redundant in the appellants’ 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’s proposed changes, once received, would be addressed. It is at least implicit that submissions would be made in the extant appeals and the Court would then make its final decision confirming (or otherwise) the proposed changes to the Natural Character overlays and the Coastal Environment Line. That approach is consistent with the opening words of s 293 (“[a]fter hearing an appeal”) and makes sense of the Court’s direction that those who made submissions on the proposed changes would be offered an 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 reasonable for the appellants to assume that they would make submissions on the Council’s proposed changes at the hearing of Northern Land’s appeal and the Court’s final decision on the proposed location of the Coastal Environment Line and Natural Character overlays would then be made.

[67]	That is consistent with the way the parties and Court conducted themselves in relation to the appeal. Memoranda filed after the Vernon decision updating the Court on progress identified the mapping of the Natural Character overlays as being an outstanding issue in the appeal. At the hearing of the appeal, experts were called to give evidence about these overlays. The experts were cross-examined by counsel, including counsel for Northern Land. They were also questioned by the Court. None of the parties, nor the Court, raised any issue about the relevance of that evidence, nor the Court’s jurisdiction to determine the issues raised by it. It also appears from the Environment Court’s observations in its subsequent decision in Environmental Defence Society Incorporated v Thames Coromandel District Council, that even after the hearing, it still considered that issues concerning the Natural Character overlays were to be resolved in the Northern Land appeal.37

37	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 existing appeal. That is, it was not confined to the matters raised by Northern Land in its appeal document. The Court retained the power to direct and confirm changes to the proposed Plan 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 the appeal insofar as it related to the Coastal Environment Line and Natural Character overlays.

[69]	That conclusion does not cut across the policy reasons underpinning the limits to the Environment Court’s appellate jurisdiction. That is because all those affected by the Council’s proposed changes had been notified, given an opportunity to make submissions, and to join an appeal. This was not a case where other potentially affected parties may have been denied an opportunity to make submissions on a new matter raised for the first time on appeal.

[70]	Moreover, the statutory jurisdiction in s 293 distinguishes this case from the others relied on by Northern Land and the Mears.38 Those cases involved issues which were clearly outside the scope of the appeal. In this case the s 293 process had the effect of giving the Environment Court jurisdiction in relation to the Coastal Environment Line and Natural Character overlays beyond the scope of appeal.

[71]	It is important to emphasise that this analysis flows from the effect of the Vernon decision rather than the availability of the s 293 process generally. While the Court always retains the power to utilise the s 293 process, I did not understand the appellants to be taking this point on appeal. That is, they were not contending that the s 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’s reply submissions appear to be based on a misconception of the appellants’ case. The jurisdiction to amend the Coastal Environment Line and Natural Character overlays stems from the Court’s decision to utilise s 293 in Vernon with the substantive decision to 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 v Royal 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 confirm the Council’s changes to the mapping of the Coastal Environment Line and the Natural Character overlays, or to direct changes to be made to give effect to the New Zealand Coastal Policy Statement and the Waikato Regional Policy Statement. The Environment Court’s conclusion to the contrary was an error of law.

[73]	This conclusion makes it unnecessary to directly address the second question on appeal concerning natural justice. However, I observe that the effect of the Vernon decision and the use of s 293 added complexity to the jurisdiction issue. Given the parties had not raised any issue about jurisdiction, and two and half years had passed since the hearing, I consider principles of natural justice required the parties to be afforded 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 overlays material?

[74]	A finding that the Environment Court erred in relation to jurisdiction is not the end 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 of the appellants’ experts into account in assessing the appropriateness  of  the  Structure Plan.39 That suggests the evidence was considered irrespective of the jurisdictional conclusion reached by the Court. Indeed, the Court specifically referred to the evidence of the landscape witnesses who gave evidence relating to  the  Natural Character overlays.

[76]	While it is clear that the Court had regard to this evidence, it is far from clear that it made a determination on the location of the Natural Character overlays. The Court’s conclusions on this issue were as follows:

[104] We have previously concluded that we are not able to alter the mapping of these areas. In simple terms, it is plain that the quality of natural character behind the escarpment of the beach is less than that exhibited by the escarpment and the headlands themselves. How much less is moot, because we consider that the critical answers in this case do not lie in arguments about mapping of natural character and the quality of the various areas, but instead

39	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 the escarpment.

[77]	This conclusion stands in contrast to the Court’s decision in relation to the Coastal 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 the evidence presented to us”. In other words, the error regarding jurisdiction did not prevent the Court from determining, in fact, the location of the Coastal Environment Line.

[78]	However, the Court did not express the same conclusion in relation to the Natural Character overlays. Rather, it decided that the question was moot because the critical answers did not depend on the mapping but on the extent of potential impact of any future development behind the escarpment. The failure to first identify the extent of the Natural Character overlays is at odds with the accepted approach to determining whether effect has been given to Part 2 of the RMA and the national and regional policy statements. The Environment Court described that approach as first requiring the identification of areas which ought to be protected before assessing the appropriateness of the proposed development or use. In this way the Court could ensure that the provisions of Part 2 of the RMA were properly promoted, recognised and provided for and were taken into account.40

[79]	The Court did not follow this approach and did not determine the location of the Natural Character overlays. For the reasons explained in relation to the third and fourth questions on appeal, this gives rise to a risk that not all areas of Natural Character were identified. That, in turn, impacts on the assessment of the adverse effects 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 Policy Statement and the Waikato Regional Policy Statement. I consider those consequences are 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 and Landscapes overlay?

[80]	The mapping of Outstanding Natural Features and Landscapes falls into a separate category. The Outstanding Natural Features and Landscapes overlay was mentioned in Northern Land’s notice of appeal but was not the subject of the s 293 process nor the Vernon decision.

[81]	As previously stated, despite the broad language, I consider Northern Land’s notice of appeal must be construed as seeking a removal or reduction of the Outstanding Natural Features and Landscapes overlay. The appellants opposed that relief but they did not seek the expansion of the Outstanding Natural Features and Landscapes overlay.  Accordingly,  the  question  on  appeal  before  the Environment Court was whether the Outstanding Natural Features and Landscapes overlay should remain as proposed or be reduced.

[82]	It is true that all parties appear to have proceeded on the basis that the mapping of the overlays was generally in issue. A memorandum filed prior to the hearing recorded that the Outstanding Natural Features and Landscapes issues remained unresolved. There was no objection to the evidence at the hearing and no indication that a jurisdictional issue might be raised. It may have been preferable for the Environment Court to seek further submissions from the parties on jurisdiction before making 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 Natural Features and Landscapes overlay. It did not include extensions to that overlay. The Environment Court was correct to find it did not have jurisdiction in relation to the Outstanding Natural Features and Landscapes overlay.

[84]	Even if I am wrong in that conclusion, I would not have allowed the appeal on this point. That is because the Environment Court appears to have confirmed the identification of the Outstanding Natural Features and Landscapes areas in its decision:

[108] Again, we have little difficulty in accepting that New Chums Beach/ Wainuiototo, including the Motutu headland, is an outstanding natural landscape. The wide beach is set between the headlands and below the escarpment in a way that results in an ideal combination of elements. We accordingly accept that the area identified as [having Outstanding Natural Features and Landscapes] in the proposed Plan is to be treated as having that status, with the consequences that flow from that identification. The detail is moot in this case, principally because there is no proposal to undertake development of the structure plan area in any area identified as [having Outstanding Natural Features and Landscapes].

[85]	Although it did not expressly reject the appellants’ arguments regarding the mapping of these areas, I consider this paragraph suggests that the Environment Court turned its mind to the identification of the Outstanding Natural Features and Landscapes and accepted that the area identified had that status. Read in the context of the decision as a whole, this is sufficient to suggest that any jurisdictional error on the part of the Court did not preclude it from making the required substantive assessments in relation to the Outstanding Natural Features and Landscapes. Therefore, insofar as it relates to the Outstanding Natural Features and Landscapes overlay, 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 provisions of the New Zealand Coastal Policy Statement.

[87]	There are two aspects to this challenge. First,  PNC4E  says  the  Environment Court failed to give effect to those policies of the New Zealand Coastal Policy Statement relating to cultural values. Second, it says the failure to identify the Natural Character and Outstanding Natural Features and Landscapes attributes of the area meant that effect was not given to the relevant objectives and policies of the New Zealand Coastal Policy Statement.

[88]	As counsel for the Council point out, the Environment Court identified all objectives and policies of the New Zealand Coastal Policy Statement as relevant.42 It

41  This  is  the  requirement  in  s 75(3)  of  the  RMA.  In  Environmental  Defence  Society  Inc  v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 593, [2014] NZSC 38 at [77], the Supreme Court said that “give effect to” means to implement. It is a strong directive creating a firm 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 Coastal Policy Statement and set those provisions out in its judgment. The Court also identified other policies (7, 11, 13,14, 15, 19 and 24) as being particularly relevant in this case. The Court said that it took from these provisions “a requirement to identify the coastal environment for the purposes of sustaining its ecosystems and preserving its natural character”.43

[89]	It is true that the Court did not specifically refer to New Zealand Coastal Policy Statement or Waikato Regional Policy Statement objectives and policies relating to the Treaty of Waitangi and the relationship of Māori with the land. But it is evident that the Environment Court considered whether the Structure Plan gave effect to these provisions through direct consideration of ss 6(e), 7(a) and (aa) and 8 of the RMA.44 The Court referred to evidence given on behalf of Ngāti Hei and Ngāti Huarere, a cultural 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 the Structure Plan offered mitigation through restricting development to a limited area and providing for relatively low intensity.45

[90]	Based on this evidence, I am satisfied that the Court gave effect to those objectives and policies relating to the Treaty of Waitangi and the relationship of tangata whenua to the land.

[91]	The second aspect to this question on appeal concerns the identification of areas of Natural Character and Outstanding Natural Features and Landscapes.

[92]	The relevant objectives and policies of the New Zealand Coastal Policy Statement include requirements that the Natural Character and Outstanding Natural Landscapes and Features areas are preserved and protected from inappropriate development. This is to be achieved by, amongst other things, avoiding adverse (and

43	At [18].
44	At [128]–[135].
45	At [135].

significant adverse) effects and remedying or mitigating other effects in the area by identifying and assessing the relevant areas.46

[93]	It is clear that the Environment Court was aware of the requirement to identify the coastal environment,47 and took into account the appellants’ evidence in deciding whether there was compliance with ss 72–76 of the RMA.48 The Court considered the appropriateness of the development, and the nature of the effects in the area, particularly the visual effects. Those determinations fall within the province of the Environment Court, and it is not for this Court to second-guess the merits of those decisions. If there was no change to the Natural Character areas identified in the maps there 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 the identification and mapping of the Natural Character areas. This meant it did not go on to 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 the area was “inappropriate” and whether adverse effects were being “avoided” as required by Policies 13 and 15. That determination needed to be made in order to ensure that the Structure Plan gave effect to the relevant policies of the New Zealand Coastal Policy Statement. To this limited extent the appeal under this question is allowed.

Questions 4 and 5: application of Waikato Regional Policy Statement

[95]	Questions 4 and 5 are directed at compliance with the Waikato Regional Policy Statement 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 not consider the location and extent of the Natural Character overlays and did not therefore properly address or consider whether the Structure Plan gave effect to the provisions

46 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 38 at [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 specifically address the relevant development principles set out in section 6A of the Waikato Regional Policy Statement.

[97]	It is apparent that the Court was aware of the relevant policies and principles of the Waikato Regional Policy Statement. It set out some of those provisions in its decision and summarised their effect as follows:

[40]	We take from these numerous provisions of the [Waikato Regional Policy Statement] a directive requirement, as expressed in Implementation Method 4.1.8, to map the landward extent of the coastal environment of the district in order to achieve the four elements of Objective 3.7 in an integrated way. The complexity of that objective is demonstrated by the great range of considerations listed in other policies. The [Waikato Regional Policy Statement] does not appear to set out any ranking or prioritisation of those matters or give any other indication of a strategic direction in relation to the coastal environment.

[41]	We also identify in these provisions an approach that treats potential development on a broadly discretionary basis. The most directive requirements of Policy 6.2 relating to development in the coastal environment are to avoid adverse effects on areas of outstanding natural character or landscape qualities, to avoid increasing natural hazard risks from erosion and inundation and to avoid coastal ribbon development. Beyond that, development is contemplated on the basis of its appropriateness in the context of the numerous other matters listed in Policy 6.2 and in the related policies for protection of natural resources and informed by the development principles.

[98]	As with the third ground of appeal, if there was no change to the Natural Character overlays, then the Court’s decision would be unimpeachable under this head. It is evident from the above paragraphs that the Court was alive to the relevant provisions of the Waikato Regional Policy Statement, and how they may apply in this case. The Court took into account the impact of adverse effects and the nature of the development. This Court will not interfere with that factual determination, and it must be presumed that the decision on the Structure Plan gave effect to the provisions of the Waikato Regional Policy Statement.

[99]	However, the conclusions in relation to the Natural Character overlays in the earlier questions apply equally in this context. The Court’s consideration is likely to have been skewed by the failure to first identify Natural Character areas and assess the impact of the adverse effects on those areas. That taints the assessment of whether the

proposals 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 of whether 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 the identification and location of the Natural Character overlays and the consequences which 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 of sites that may (or may not) be possible under other provisions of the proposed Plan as a guide to the assessment of the number of sites in the Structure Plan had no statutory basis and was in error.

[102]	I am satisfied that the Environment Court was entitled to undertake the hypothetical analysis. The context for the appeal was the Council’s decision to decline to include the Structure Plan in the proposed Plan. The Environment Court was faced with deciding whether to include the Structure Plan, or whether the decisions version of the proposed Plan would continue to apply. The Environment Court was also required, under s 32 of the RMA to take into account alternatives.49 Considering the potential number of sites allowed under the proposed Plan was relevant to that exercise. The position under the proposed Plan (without the inclusion of the Structure Plan) was the only other reasonably practicable option.50

[103]	I consider that the Court was justified in considering the counterfactual of what might be achieved under the rural zone provisions that would otherwise apply to the land had the Environment Court upheld the Council’s decision not to include a Structure Plan. There was no error in its approach.

49 Oceana Gold (New Zealand) Ltd v  Otago  Regional  Council  [2020]  NZHC  436  citing  Federated Farmers of New Zealand (Inc) v Mackenzie District Council (No 11) [2017] NZEnvC 53 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. The Court identified the principal issue in relation to this catchment as being the proximity of sites 15, 16, and 17 to the top of the escarpment, and the location of site 21 closer to the stream and the gap between the northern end of the escarpment and the reserve area.51 The Court determined that house site 21 would almost certainly be visible from the northern part of the beach through the gap created by the stream.52

[105]	The Court identified the key resource management issue for development in the Wainuiototo catchment as the extent to which it may create effects on the Beach and the Bay. The Court considered this concern should be addressed by design standards, including visibility requirements and said:

[172] In our judgment, this concern should be raised at the forefront of the design standards for the consents required for lots, house sites and buildings. It should be expressed in terms of ensuring that here will be no visibility between a potential building in this catchment and the beach or the waters of the bay to a distance of 50 m from [mean low water mark]. We expect that there will need to be an exception for any building on House Site 21 which might be justified by the limited extent of the view that would occur. We do not consider that any exception should be made for House Site 15: if the design problem is insoluble in that location, then the site will have to be relocated to a lower and less exposed position. In the same way, if it were found to be impossible to design houses for sites 16 and 17 which were not visible from the beach and water, then the sites could be shifted westward until that was achieved.

[106]	As recorded in the above passage, the Court suggested that there could be an exception to the invisibility standard for house site 21 because invisibility might not be achievable for that particular house site.53 That exception was justified by the limited extent of the view that would occur. A similar exception was not provided for the other house sites despite the Court acknowledging that the invisibility standard might 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 the

51	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 the proposed Plan which would not “give effect to” the New Zealand Coastal Policy Statement as required by s 73(3)(b) of the RMA. She submits that the requirement to avoid adverse effects as set in Policies 13 and 15 of the New Zealand Coastal Policy Statement was an environmental bottom line that must be applied.55

[108]	Counsel for the Mears submits that the challenge under this ground amounts to a challenge to the merits of the Environment Court’s decision. I agree. It is clear that the 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 to house sites 15, 16 and 17. Its conclusions in relation to house site 21 were because protecting the areas of special significance did not require achieving complete invisibility of all development when viewed from all locations on the beach, and there would only be limited views of this house from the beach.

[109]	That  approach  is  consistent  with  the  Supreme Court’s  approach   in   King Salmon that the existence of minor or transitory effects can be acceptable in the context of a directive to avoid adverse effects.56 Although not said so expressly, I consider the Environment Court’s decision that the limited view justified an exception for house site 21 must be interpreted as finding that the adverse effects from this house site 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 to interfere 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 NZLR  593, [2014] NZSC 38, the Supreme Court held that Policies 13 and 15 were environmental bottom lines.
56 At [144]–[145].

(a)	in relation to question 1 as it relates to the jurisdiction to alter the maps of the Natural Character areas; and

(b)	in relation to the questions 3 and 4 insofar as those questions relate to the identification of Natural Character areas beyond those in the maps considered by the Court; and

(c)	to the extent a reconsideration of whether the Structure Plan gives effect to the New Zealand Coastal Policy Statement and Waikato Regional Policy Statement (including the number and location of the house sites) is required as a result of the Court’s subsequent re-consideration of the matters 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 to the Court for determination of the mapping and identification of the Natural Character areas and, if necessary, the matters raised in [111](c)].

[114]	The appellants are the successful parties in the appeal and are entitled to an award of costs. The parties are encouraged to agree quantum, failing which memoranda in support of costs shall be filed 15 working days after delivery of this judgment, and memoranda in reply shall be filed five working days thereafter. Memoranda shall be no longer than five pages in length.

Edwards J

Counsel/Solicitors:
J M Savage, Auckland Anderson Creagh Lai, Auckland R B Enright, Auckland
Richard Allen Law Associates Ltd, Auckland Brookfields, Auckland
Beresford Law, Auckland
R J Hollyman KC, Auckland Atkins Holm Majury Ltd, Auckland S R Gepp, Auckland
Bell Gully, Auckland