Assessing Native Bush Lots

Created: Monday, 08 June 2015 20:37

D & K Eastgate v Auckland Council [2015] NZEnvC 038

The use of native bush lots to justify rural subdivisions is often contentious, and this case was no exception.

This decision concerns an appeal of the decision of Auckland Council to refuse consent for a subdivision proposal of a property on rural zoned land in Clevedon.  The Auckland Council District Plan – Operative Manukau Section (the District Plan) provides for subdivision of rural land in limited circumstances, including provision for "native bush lots" as a controlled activity where, among other qualifying factors:

(a)       the site to be subdivided must be 10 hectares or more in area and held in one Certificate of Title on 5 June 1989; and

(b)       the native bush lot must contain at least 90% coverage of "native bush" as defined in the District Plan.  

Neither of these standards were met and therefore the proposal was assessed as a non-complying activity.  The application purported to distinguish itself as an exception through the proposed covenanting of an area of native bush and wetland within one of the lots.

The provisions of the District Plan

Having concluded that there were no issues in respect of effects, the Court's decision focused on the provisions of the District Plan pursuant to section 104(1)(b)(vi).  The objectives and policies of the general Rural Zone 1 seek to protect the resources, rural character and amenity values of a significant portion of the rural area for future generations, and protect significant areas of indigenous vegetation and maintain rural landscape character.

It was acknowledged that the reasoning for the development standard involving the 1989 cut off date is not made explicit in the District Plan.  However, the Court accepted that the 1989 qualifying date (which was the notification date of the second reviewed district scheme in 1989) has its policy base in preventing multiple uses of the native bush lot provisions on the same piece of land.

The Court also accepted that the development standard requiring 90% native bush coverage has its origins in the policy concerning the protection of indigenous vegetation, but is qualified by development standards that give effect to the policies that seek to manage the fragmentation of rural land and protect rural productivity and amenity values from incremental rural residential development.  

The Court then considered the question of the coverage of "native bush" on the property.  This question boiled down to the interpretation of the definition of "native bush" in the District Plan.  Against the District Plan's policy background, the Court concluded that the term "native bush" should be interpreted in such a way as to exclude areas of native bush that are small, patchy, or lacking in trees of significant height.  It considered that such areas should not be relied upon for subdivision opportunities in a zone where such subdivision is generally to be avoided.  

The Court did not agree that the additional benefits of legal protection and active management, in exchange for a subdivision approval, were sufficient to justify an exception to the District Plan policies and rules that manage the fragmentation of rural land titles.  In particular the Court noted that the forest and wetland areas were surrounded by a stock-proof fence and there is provision in the District Plan to ensure a reasonable degree of protection from clearance or drainage.

The consideration of "other matters"

Although the decision turned on the provisions of the District Plan, two matters were considered by the Court under section 104(1)(c) as matters considered "relevant and reasonably necessary to determine the application". 

First, the precedent effect that allowing the subdivision may have on other applications for proposals that do not meet the two development standards was considered.   The appellants argued that a precedent had already been set by the Council, putting forward an example of an application that had been granted where the 1989 development standard was not met.  In response, the Court noted its decision in Eades Land Partnership v Ruapehu District Council [2012] NZEnvC 255, in which it stated that, if a proposal does not otherwise meet the policy framework in the District Plan and the RMA, it should not receive approval simply because another similar proposal has previously been approved.  With respect to future effects, the Court was not satisfied on the evidence that the granting of this application would trigger a flood of similar applications to the point were cumulative effects would arise.

Secondly, the Court considered the impact of a consent notice, which had been placed on the title of the property.  The Court considered that this was relevant because it provided a background to a previous and relatively recent subdivision of the same property and that it "appeared to trump" any attempt to subdivide further.  However, the Court simply concluded that the existence of the consent notice supports the Council's position on the effect of the provisions of the District Plan.  

A preliminary procedural issue on the admissibility of evidence

The appellants also challenged the ecological evidence brought by the Council insofar as it addressed the extent of native bush that met the definition of "native bush" in the District Plan, on the basis that this factual matter had already been determined by the Council.

The appellants contended that both the Council and the appellants' planners had prepared an Agreed Statement of Facts in which the proportion of native bush was agreed to be greater than the area specified in the Council's ecological evidence.

The Court made a number of points in deciding this procedural challenge, including:

(a)       That there is case authority which indicates that the Council does not have the right without leave to call evidence on appeal that does not support its initial decision;

(b)       As to whether the hearing of such evidence is appropriate, it was relevant that a substantially different subdivision plan was considered by the Commissioners, whereby the native bush lot was larger and therefore the percentage of bush coverage was smaller - that change in circumstances warranted additional expert evidence on the extent of qualifying native bush;

(c)       In the case of the Agreed Statement of Facts, the statement on the area of qualifying native bush was not within the area of the planners' expertise and it pre-dated the ecological evidence on the size of the area and therefore was not "substantially helpful"; and

(d)       In any event, the Court found that there was no reasoned finding in the Commissioner's decision on the actual size of the qualifying native bush and as such this was not a factual matter that had already been determined by the Council.