Introduction

[1]

In a decision dated 13 July 2007 the Hastings District Council declined a subdivision consent application by Mr and Mrs McKenna to enable them to subdivide their property at 84 Middle Road, Havelock North, into two lots. This is an appeal against that decision. The parties have agreed that there is but one set of issues to be resolved: - those relating to the productive soil resource of the property, and the District Plan’s provisions relating to that resource. On that understanding, we shall not delve into other issues either in discussing effects, or the provisions of the Plan.

The proposal

[2]

The part of the McKennas’ property immediately involved is a former orchard of 2.9365ha, presently having one principal dwelling and a smaller residential unit used as a homestay. There are also ancillary buildings. The proposal is to subdivide that lot so that the existing house, set back about 45m from Middle Road, will be on one site of 4018m2 with a balance site of a little more than 2.5ha. The balance site will have a designated 30m x 30m building platform protected by a registered consent notice. There will of course be a curtilage surrounding the house site which, given the rural ambience of the property, we agree is likely to be at the generous end of the spectrum. Mr Peter Reaburn, the Council’s consultant planner, suggested that, including a driveway, it would be reasonable to allow 5000m2 for the house and grounds. We adopt that as an estimate of what should be deducted from the balance site, leaving 2ha or so available for some potentially productive use. It should be added that a drainage easement in favour of the Regional Council traverses the northwestern corner of the balance site. This requires a 6m margin within which activities impeding access to the watercourse are not permitted. Depending on the desired use for the balance land, the triangular piece of land isolated by the drain and the 6m margin could effectively remove a further 2200m2 from productive use.

[3]

In a separate title, the McKennas also own a further adjoining 2,428m2 in a slightly irregularly shaped lot alongside the Herehere Stream, which runs along the eastern boundary of the site. The stream is in an artificially incised and straightened channel against the boundary between the McKennas’ land and the rear of the houses along Upham Street, which is the westernmost edge of suburban Havelock North on the north side of Middle Road. There is an offer on the table to gift that land to the Council as a riparian area. It may be useful for stream maintenance access in the shorter term, and possibly as part of a stream-side walkway, if one is ever established in the future. The Council is lukewarm about this, but the offer remains nonetheless.

Area description

[4]

As mentioned, the site is on the western boundary of suburban Havelock North. Middle Road leads out of the town centre and into the rural land towards the west. Once clear of the Upham Street houses, the McKenna property and the land surrounding it on the northern side of the road, extending away towards Te Aute Road, is flat with some occasional trees and shelterbelts. It appears to be in pasture of middling quality and there are no intensive uses such as orchards or vineyards. On the south side of Middle Road however the suburban area of the town continues well past the McKenna property towards the west. There are substantial side streets such as Grant Street and Breadalbane Road leading south up to Iona Road. All of that is settled in medium density residential development.

Activity status

[5]

It is common ground that in terms of the District Plan, operative since 2003, the proposal is a non-complying activity because it does not create an amalgamated, compliant, balance lot.. The planners also agree that the effects of the proposal on the productive soil resource, including its cumulative effects, are not more than minor. So it can be taken that the proposal is able to pass the s 104D threshold, and we can discuss the objectives, policies and other Plan provisions in the course of considering the s 104 factors.

The parties’ positions

[6]

The McKennas moved to the property some years ago and, on receiving advice that the state of the existing orchard was beyond salvage and a replacement unlikely to be economic, removed the existing orchard trees. There have been attempts to use the land for cropping, but these have not been successful, which Mr McKenna attributes to the size and shape of the property. They have been unable to interest neighbouring farmers in leasing it for similar purposes. Presently there is some limited grazing of sheep on it, which at least keeps down the grass. They have though spent much time and effort (and, we imagine, expense) in restoring the elderly character villa on the property, and in developing and beautifying the house garden. The McKennas wish to remain on the property, to which they have become attached, but to live in a newer house on it. This would be more convenient particularly for Mrs McKenna who now struggles with the layout and fixtures of the villa, such as its doublehung windows, because of a back injury she has suffered.

[7]

Their position is that the land is not particularly productive, but even allowing that its soils may have some productive capacity, removing the minuscule percentage represented by the 5000m2 allowance for the new house from the productive soils resource of the Heretaunga Plains will have an insignificant adverse effect. But the proposal would allow them to stay on the property they enjoy, in a house that is manageable for Mrs McKenna. The alternative is that they sell the property as it is, or demolish or remove the villa and rebuild on its site.

[8]

The Council’s position is that if the house no longer suits the present owners, they have the options of doing what anyone in a suburban residential property could do — replace or modify the house; or sell the property and buy something better suited. The Council acknowledges that the loss of 5000m2 of presently lightly used, even if potentially productive, soils will not be noticed in the overall scheme of things. But it is concerned that if this application is allowed it will set a precedent for the subdivision of properties in the Plains Zone, of which there are many of comparable size and character. The Council’s concern is encapsulated in a number of aphorisms — the thin end of the wedge, - opening the floodgates, - precedent effect, and so on, but these are not particularly accurate or helpful in identifying and considering the point.

[9]

The real issue is whether allowing this application would be so contrary to the relevant objectives, policies and other provisions of the District Plan that it would harm its integrity and effectiveness as an instrument enabling the Council to avoid, rather than to remedy or mitigate, the adverse effects the Plan formation process has identified. We will return to this specific topic of Plan integrity in discussing s 104(1)(c) issues.

Permitted baseline — existing environment

[10]

The District Plan does not allow subdivision in the Plains Zone as a permitted activity, so there is no subdivision permitted baseline. But s 104(2) allows us to disregard an adverse effect of the proposal …if the plan permits an activity with that effect. There are some activities permitted by the plan which might have the adverse effect of removing part of the proposed balance lot from productive (in the sense of growing things) use. There might, for instance, be a building or buildings of up to 2500m2 for the processing, storage and processing of crops and produce. With access ways, manoeuvring areas, yards and so on, such a use could occupy an area comparable with the 5000m2 allowance for a new house and curtilage. But given the view we believe we must come to about effects — ie that they are not the decisive factor in this appeal, then adopting the factors discussed in Lyttelton Harbour LPA v Christchurch CC [2006] NZRMA 559, the permitted baseline really is of little relevance.

Section 104 — positive effects

[11]

The positive effect that would arise out of the proposal has already been mentioned — the ability for Mr and Mrs McKenna to better provide for their wellbeing.

Section 104 — adverse effects

[12]

In terms of an adverse effect on productivity arising from the loss of the 5000m2 of potentially productive soil, the conclusion has also been mentioned already. The planners agree that the effects are not significant.

Section 104(1)(b)

[13]

There are no relevant national policy statements, nor was any provision of the Regional Policy Statement or Regional Plan drawn to our attention.

The provisions of the District Plan

[14]

The Plan contains relevant provisions on urban development and strategic urban directions, low density residential strategy, rural resource strategy and subdivision and land development. We had evidence from Mr Peter Reaburn, a consultant planner for the Council, Mr Ian Macdonald, the Council’s Environmental Manager, who gave evidence primarily about the history of the development of the Council’s position on the Heretaunga Plains resource, and Mr Roger Wiffin, consultant planner for Mr and Mrs McKenna. As background to the consideration of the Plan, we note that we had evidence from Mr Sharn Hainsworth, a pedologist, and Mr William Wilton, a horticultural consultant, for the McKennas, and Dr Jeffrey Reid, a soil scientist and agronomist for the Council. At first glance, there appeared to be an irreconcilable difference of view between Mr Hainsworth and Dr Reid about the quality of the soils on the property, but on exploration that proved not to be so. Mr Hainsworth acknowledged that in contrast to the Reid view that the soils were…high class…, his view was that they were …close to high class… with the difference being accounted for by a difference about the extent of irrigation required. Mr Hainsworth agreed that in either case, these soils are suitable for production. Mr Wilton too agreed that at the least, a niche crop would be possible, although he remained of the view that its small size makes the property a dubious proposition for conventional orcharding or horticulture. In passing, we note that there had been a view expressed that the irrigation water supply to the land was inadequate. The evidence established that not to be so — the supply is perfectly adequate for irrigation, but perhaps not so for frost-fighting.

[15]

The Urban Development and Strategic Urban Directions section of the Plan has an objective related to the sustainable supply of residential land to meet current and future demands (UDO1), and policies on an urban development strategy to avoid pressure on ad hoc land zoning (UDP1) and a diverse range of residential development opportunities (UDP2). Mr Raeburn considered that the proposal is not consistent with objective UDO2, to minimise the expansion of urban activity onto the versatile soils of the Heretaunga Plains, and Policy UDP4. That policy is to manage the extent and effect of expansion of the rural-urban interface, with an explanation of the potential for conflict between rural and residential activities. He said that it is clearly the current intention of the Plan that this land remains rural, as it has not been identified as a proposed new urban development area in Section 2.4 of the Plan. He considered the urban-rural interface is well defined by the Herehere Stream and, to a lesser extent, by Middle Road.

[16]

The Low Density Residential Strategy section of the Plan has as an objective to enable a range of low density residential development options in response to market demand, in a comprehensive, flexible and integrated manner, while avoiding, remedying or mitigating any adverse effects on the environment (LDO1). This section of the Plan recognises the pressure for low density residential living in rural zones, with policies relating to a need to reasonably provide appropriately managed outlets for that pressure, and to monitor the ongoing relevance of those provisions (LDP1, LDP6 and LDP7). Mr Raeburn considered that the Plan provisions do meet that demand in a suitable way. There is a Rural Residential Zone that has been considerably expanded in the hills to the south of Havelock North, the restricted provision for lifestyle lots in the Plains Zone, and the various other possibilities elsewhere in the district (as outlined in Rule 15.1.8.3).

[17]

The Rural Resource Strategy has as an objective the promotion of the maintenance of the life-supporting capacity of the Hastings District’s rural resources at sustainable levels (RO1). Another objective is to enable the efficient, and innovative use and development of rural resources while ensuring that adverse effects associated with activities are avoided, remedied or mitigated (RO2). A further objective is to ensure that the natural and physical resources of the rural area that are of significance to the Hastings District are protected and maintained (RO4). An associated policy is to reflect the various characteristics and distribution of the rural resources, to enable the sustainable management of these characteristics (RP1). An explanation of this policy describes the tailoring of zones, including a Plains Zone and a Rural Residential Zone to manage the sustainable use of activities in the rural area. A further policy is to manage rural land close to urban areas to avoid sporadic and uncontrolled conversion to activities that will individually or cumulatively adversely affect the sustainability of the rural resource base (RP5). An explanation for the policy describes significant pressure from urban activities to expand onto rural land close to the present urban areas, and reasons why the District Plan does not provide for the uncontrolled conversion of rural land to a range of residential activities. It states that such activities can adversely affect the sustainable use of rural resources by amenity conflict, by reducing the life supporting capacity of the soil resource and foreclosing its availability to future generations through impervious ground coverage.

[18]

The site is in the Plains zone and there are specific objectives and policies for that zone. Particularly relevant objectives and policies include:

"PLO1 To maintain the life-supporting capacity of the unique resource balance of the Heretaunga Plains.

PLO3 To provide for the establishment of landholdings on the Plains which can accommodate a wider range of activities that can retain the life-supporting capacity of the Plains resources."

A supporting policy is to ensure that subdivision results in properties on the Heretaunga Plains capable of supporting a diverse range of activities that utilise the soil resource in a sustainable manner (PLP2).

[19]

Mr Raeburn considered that the proposal was contrary to Policy PLP3 for the Plains Zone, with its accompanying

Explanation:

PLP3:  Provide for the creation of Lifestyle Sites from existing, non-complying site(s), where the balance of the site(s) are amalgamated with one or more adjoining lots, to create new complying sites that can support a diverse range of activities that utilise the soil resource in a sustainable manner.

Explanation

There are presently a large number of smaller sites in the zone which are not suitable for sustained, independent production. Consequently these blocks are often developed as rural residential properties, for which there is considerable demand. This however reduces the potential and ability of the soil resource to be used in an economically sustainable manner. The District Plan will enable the subdivision of existing noncomplying sites to create a Lifestyle Site, provided that the balance of the land is amalgamated with a adjoining site(s) to create a new title equivalent to or greater than the minimum site size (see Section 15.1 of the District Plan on Subdivision and Land Development). The ability to subdivide Lifestyle Sites from substandard titles will in part address the demand for residential accommodation within the Plains Zone, by providing a housing resource for people working in the area, as well as for people who prefer to reside in the rural environment. It will also create balance sites that can support a diverse range of activities that enable the soil resource to be utilised in a sustainable manner."

[20]

There is a rule giving effect to this policy — Rule 15.1.8.3. That rule provides for subdivision of a lifestyle block in the Plains Zone as a controlled activity where:

•

the existing site is under 12 ha in area,

•

the lifestyle block created contains an existing dwelling,

•

the lifestyle block created has an area of between 2,500m2 and 5,000m2, and

•

the balance land is amalgamated with an adjoining site to create a site with a minimum area of 12ha.

Lifestyle sites utilising the above provision that are greater than 5,000m2 or which do not result in the creation of a balance area of greater than 12ha, are discretionary activities.

[21]

Mr Macdonald gave evidence that these rules arose from Variation 10 to the District Plan, with the rule and the policy on which it is based an important part of the strategy for managing subdivision in the Plains Zone. He said that an analysis of Plains zone subdivision applications granted since 2001 shows that 121 subdivisions have been approved utilising the new provisions, thereby creating a number of larger landholdings. He considered the method successful in terms of achieving the outcomes sought for the Plains Zone.

[22]

Mr Raeburn considered that of particular relevance to the proposal is the potential to achieve compliance with the policy and the rule. The existing site is less than 12ha in area, the proposed site to be created is between 2,500m2 and 5,000m2, with the potential to amalgamate the balance land with the adjoining site (10ha in area) to create a site exceeding 12ha in area. He considered that would, as the District Plan intends, provide for a lifestyle site and aid in the more efficient use of the land resource overall, given that the soils have high potential productivity.

[23]

Mr Raeburn acknowledged that, read literally, Policy PLP3 could be seen as being satisfied by reference to Rule 15.1.8.3. However, he also interpreted it as providing that subdivision should not occur where the balance areas of proposed lifestyle lots are not amalgamated with adjoining sites to create a complying balance site. In his view that is particularly relevant where, as in this case, that possibility exists.

[24]

Mr Wiffin put considerable store on the discretionary activity status for subdivision of Plains lifestyle site subdivisions that do not meet the maximum area requirement and requirement for amalgamated balance area to exceed 12ha (Rule 15.1.7.3(c)). He said that this demonstrates that it is not contrary to the policy to have a lifestyle block in the Plains zone.

[25]

We accept Mr Raeburn’s point. We do not consider that the limited circumstances in which a discretionary activity application for a lifestyle subdivision is contemplated cuts across the policy intent to encourage amalgamation in the Plains zone. This proposal would not encourage an amalgamation that would allow a range of activities involving the sustainable use of the soil resource. The additional house, with its curtilage and driveway, would result in the removal of approximately 0.5ha from potential productive use of the soil resource, with no compensatory amalgamation to bolster the productive potential of neighbouring land.

[26]

Under the Subdivision and Land Development section of the Plan there is an objective to provide for the subdivision of land which supports the overall Objectives and Policies for the various Zones, and promotes the sustainable management of natural and physical resources, while avoiding, remedying, or mitigating any adverse effects on the environment (SDO1).

[27]

We take a broader view than both Mr Raeburn and Mr Wiffin. We find that the proposal is not only contrary to Policy PLP3 but also the overall thrust of the objectives, policies and other provisions of the District Plan. Those provisions aim to promote the sustainable management of the Heretaunga Plains land resource, finite in nature and with a productive and life-supporting capacity not just for present, but also for future generations. The type of ad hoc subdivision and associated residential development of the land resource that is proposed would run directly counter to those provisions. As already concluded the residential use proposed would remove soil resource from the possibility of productive use. The subdivision proposal would not result in a landholding that could accommodate a wider range of activities that can retain the life-supporting capacity of the Plains resources. In addition, the cutting off of the existing villa would result in an urban land use and is therefore contrary to the intention to retain the land in rural rather than urban use. That urban land use would be close to the urban area of Havelock North, involving a conversion to activities that would adversely affect the sustainability of the rural resource base.

Section 104(1)(c) — other relevant matters

Plan integrity

[28]

We began discussing this point in para [9], and we resume it by saying that we find no assistance in the decision in Lightning Ridge Partnership Ltd v Hastings DC (W049/2007). While certainly a Hastings District subdivision case, it involved land zoned Rural Residential which was, as described in the decision, an…island…surrounded on three sides by Rural land and on the other by Coastal Residential. Its future as potentially productive land had already been compromised, in a planning sense, by the zoning given it in the Plan formation process. Moreover, two other areas of nearby Rural Residential land had been given non-complying consents, allowing subdivision into smaller lots sizes than were being proposed by Lightning Ridge. All in all, it was a proposition readily distinguishable from this one.

[29]

Similarly, the piece of Plains Zone land considered in the decision in Pencarrow Hills Ltd v Hastings DC (W010/2005) was, although about 5000m2 in total area, of such a shape (it having been apparently originally laid out as a road, being 272m long and 20m wide) that its practical productive use was, to say the least, problematic. It was described in the decision as an…orphan. In effect, the decision involved something more akin to a boundary adjustment than a conventional subdivision. There is no useful guidance in that decision either.

[30]

In fact, those two cases rather reinforce the view that each proposition has to be considered on its own merits, and that we need to be conscious of the views expressed in cases such as Dye v Auckland RC [2001] NZRMA 513 that there is no true concept of precedent in this area of the law. Cases such as Rodney DC v Gould [2006] NZRMA 217 also make it clear that it is not necessary for a site being considered for a non-complying activity to be truly unique before Plan integrity ceases to be a potentially important factor. Nevertheless, as the Judgment goes on to say, a decision maker in such an application would look to see whether there might be factors which take the particular proposal outside the generality of cases.

[31]

For Mr and Mrs McKenna, Mr Lawson submits that what differentiates this proposal from many is the consensus that its adverse effects are not significant. We accept the logic of his ensuing submission that if a non-complying proposal has insignificant adverse effects on the environment it should, in the absence of a strong countervailing factor, have sound prospects of being favourably considered.

[32]

That said, the reason why its adverse effects are not significant is because the area of land thus removed from the pool of Plains productive soils is, percentage-wise, rather insignificant. The same argument could be mounted in support of an application to subdivide off a 4000-5000m2 house site from any Plains zone horticultural lot, of which there are any number. The feature which really differentiates the McKennas’ property from those many of comparable size and character is that it is hard against the border of the Havelock North residential area. That is not something we see as favourable to the proposal. All it really means is that if there was to be an insidious movement towards the non-complying subdivision of such lots, that is where it would logically start, and that would be directly contrary to the intent of policy RP5.

[33]

Other reasons mentioned as possible points of difference with the generality of otherwise comparable land were: the presence of the stream in a separate title; the adjoining residential activities in the township being a limiting factor on rural land use (a matter not really pursued in evidence); the consent of the owner of the neighbouring 10ha block, and others in the vicinity (relevant if issues of amenity had arisen, but they did not); and the potential for a walkway on the stream-side land. We have noted the Council’s lukewarm response to this, and it would in any event require connections to other land to provide appreciable value. Mr Macdonald was clear in his view that these elements were, to greater or lesser extents, common through the Plains zone and did not distinguish this proposal.

[34]

Although we have dealt with Plan integrity separately, we emphasise that we do not see it as a discrete topic. It exists only because the proposal, as we have discussed, irreconcilably conflicts with the provisions of the Plan relating to the soil resource of the Plains zone. If it did not do so, the integrity of the Plan would not be in question.

Part 2 matters

[35]

There are no Treaty of Waitangi issues arising under s 8, nor matters of national importance to be recognised and provided for under s 6. Relevant s 7 matters would seem to be:

•

(b) The efficient use and development of natural and physical resources,

•

(g) Any finite characteristics of natural and physical resources"

In this appeal, we think that these factors are relevant only to the discussion of the Plan provisions already mentioned. There does not seem to be anything to be usefully added to what has already been said.

The Council’s decision — s 290A

[36]

Section 290A requires us to…have regard to…the Council’s decision. The Council declined the application on the basis of conflict with the provisions of the Plan, and also on the basis of its …adverse effects on the life supporting capacity of the soil resource… leading to an overall view that…the effects on the environment would be more than minor. In the hearing before us the clear planning consensus was that overall the adverse effect on the soils resource of the Plains would be not significant, a view with which we agree. To that extent the Council’s decision incorporates a finding which we do not share, but we agree with the end result nevertheless.

Result- s 5 overall consideration

[37]

We are mindful of Mr Lawson’s comment that the Council’s position smacks of policy-based, rather than effects-based, resource management. But we are conscious too that s 104(1) requires a decision-maker to have regard not just to effects, but to national and regional planning documents, the District Plan, and other relevant matters. Things do not begin and end with effects, and it must be the case that on occasion, the terms of a planning document may prevail, even if adverse effects are not decisive. We are sympathetic to Mr and Mrs McKenna’s position but have the clear view nevertheless that this is a situation where the plain terms of the Plan should prevail, and that to hold otherwise would not promote the sustainable management of the resource in question. For those reasons, the appeal is declined.

Costs

[38]

Costs are reserved. Any application should be made within 15 working days of the issuing of this Decision, and any response lodged within a further 10 working days.