Decision No. W 4/2000 IN THE MATTER of the Resource Management Act 1991 IN THE MATTER of a reference pursuant to clause 14 of the First Schedule to the Act BETWEEN CAPITAL COAST HEALTH LIMITED (RMA 466/96) Appellant Respondent BEFORE THE Environment Judge S E Kenderdine (presiding) Environment Commissioner J Rowan (Final memorandum and annexures received 20 October 1999) FINAL DECISION Background 1. The Court's interim decision (W101/98) of 2. On
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By way of memorandum dated
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We are advised the proposed provisions for the Capital Coast Health land (attached to the memorandum) are intended to form a separate appendix to the residential area provisions of the proposed district plan. The existence of the appendix and its application to the land will be noted on the relevant planning map. The Provisions 5. The intention of the provisions is that the land is divided into 3 different parts each reflecting Legal Issues
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As to the questions of law, the council was concerned that some parts of the interim decision might be construed as a proposition that land not owned by the council effectively could never be zoned “Open Space" however described (paragraphs 185 and 183 of the interim decision); and that where such restrictive provisions were being considered by the council, then a s.32 assessment needed to be undertaken in respect of each particular site (paragraph 183).
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In the memorandum we were advised that whilst the appellant Capital Coast Health Ltd does not necessarily agree that that is the effect of those parts of the interim decision, it does agree with the council that the legal position on both issues is as follows: "Open Space zoning As a general principle private land should not be zoned for reserve purposes (however described and either expressly or effectively) unless:
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it is already reserved for such purposes; or
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the landowner agrees; or
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it is incapable of being used for other purposes If the council wishes to protect land for reserve purposes, than that purpose should be achieved by designation or acquisition. However, this general principle is always subject to the provisions in Part II of the Act. Where particular land has such significance in terms of any of the factors listed in s.6 and s.7 of the Resource Management Act 1991 that its use or development ought to be substantially limited or precluded, then land use controls which may have that effect may be appropriate regardless of the ownership of that land (but subject to s.32 and s.85). Section 32 The duties under s.32 relate generally to generic plan provisions - ie those mentioned in subsection (1). The obligation of the council is to carry out this duty in relation to the district as a whole, and in relation to the constituent or distinct parts of the district identified in the plan. It is not a duty which generally extends to every separate property in the district. Generally, the consideration and assessment required by s.32 need only be carried out in respect of an individual property where the appropriateness of controls relating to that particular property are raised on a submission under the First Schedule. There may however be instances where the controls are specific to particular land (eg 'spot zoning') or where they effectively involve the reservation of particular private land for public purposes (eg open space, reserve, conservation or protection zoning). In some of these instances (eg where the control represents a significant change from the status quo), the council will be required, prior to adopting the method, to carry out a more site specific assessment of the costs and benefits etc of the proposed controls and to consider whether the method is necessary in achieving the purposes of the Act, and is the most appropriate means of exercising its functions. Final Decision The contentious paragraphs of the interim decision as set out in their context state as follows:- "183. The difficulties for the council in assessing Open Space issues on the "micro " scale, as Mr Mitchell put it, are acknowledged. However, the imposition of such inhibiting development controls (as required by the Open Space B zoning) on private land is a t decision which requires particular consideration of the site specific factors involved. 184. Therefore, we find that aspects of the council's s.32 analysis were not adequate. As a Conclusion 185. We agree with Mr Thomas that the appropriate method of establishing public Open We have no difficulty at all with the conclusions of counsel (above) in relation to these statements. The expression of the principle that in general private land should not be zoned for reserve purposes except under specific circumstances and that this should be achieved by designation or acquisition more or less encapsulates our conclusions in Paragraphs 183 and 185 of the interim decision. We also agree on the s.32 issues raised and that the appropriateness of Open Space controls relating to a particular property requires raising in a submission under the First Schedule. This is of course the correct legal position. Such a submission would doubtless prompt the council to be on enquiry as to how the land is held. Finally, Commissioner Rowan and I (Commissioner Bishop having retired in the interim) are satisfied that the Orders sought should be made in the terms identified in the memorandum. Orders UPON CONSIDERING the contents of the memorandum filed by the parties, the draft Rules, Explanation and Maps attached thereto, THE COURT ORDERS BY CONSENT that the provisions of the Wellington City Council's Proposed Plan relating to the land in question be amended to include the Rules. Explanation and Maps as set out in the Schedule attached to this decision. There is no issue as to costs. DATED at S Environment Judge |