A close study of the findings
Ian Gillespie’s Pakiri development plan has been turned down in the High Court, where Justice Robert Chambers (right) decided it should be sent back to the Environment Court for reconsideration.
The High Court judge rejected all the Environment Court’s central findings.
“Taking into account the various statutory documents and in particular Change 55 [to the Rodney District Council’s district plan], I find it difficult to see how the court could conclude that this proposal was in any way consistent with them,” Justice Chambers wrote in his judgment, dated 14 September.
Mr Gillespie said this weekend he would appeal to the Court of Appeal â€” but added that if he failed there, he would proceed with the lesser development already allowed.
His proposal, through his companies Arrigato Investments and Evensong Enterprises, as considered by the High Court was for 14 rural-residential lots plus a pa site. Mr Gillespie bought the 149ha farm at the southern end of Pakiri Beach in 1995 and has already sold three lots.
The land was in six titles, on which can be built a dwelling, minor dwelling and ancillary buildings. Consent was granted to subdivide those six titles plus another lot into nine lots.
[My last story on this subject can be found in the Discipline/Resource management/High Court file on the Report map page. I have previously written about it for the NZ Herald.]
The issue is of considerable significance â€” Pakiri is a relatively untouched east coast surf beach , over the hill from Leigh in an area just north of Auckland which is coming under increasing pressure from lifestyle development, changes in land use as vineyards are established around Matakana, and further changes just inland from the beach as transferrable title rights are granted over forest on Millbrook Station to enable rural-residential subdivision along Matakana Rd.
Many of the farms between the Matakana district and Mangawhai, immediately north of the 20km of Pakiri Beach, have gone on the market over the past year, more than can be explained by simple turnover of dairy properties and an indication that the lifestyle-block trend is heading in that direction. Rising land prices will make such a transition certain.
In the centre of all these changes, Pakiri Beach is also undergoing substantive change. Fred Thorp was granted consent in 1996, revised and renewed in 1998, to build a house which was to fit in with the environment by being built below a ridgeline. It sits on a low ridge, surrounded by no foliage, and is highly noticeable to anyone passing along the beach.
Consent was granted last year for a lodge to take 30 guests, near the Pakiri river mouth. More subdivision is possible between the Thorp and Gillespie properties. Along the dunes north of the river mouth, two houses have been built but they are mostly obscured.
80ha above coastline revegetated
The Gillespie subdivision proposal, reaping a gross return of nearly $10 million, involved revegetating the pasture above the beach with native bush. That work has been carried out irrespective of the state of the consents. About 240,000 plants were planted over 80ha of steep hillside above the southern end of the beach two years ago.
The district council reached agreement with Mr Gillespie during the Environment Court hearing early last year, but the Auckland Regional Council continued with its opposition. When consent was granted, the regional council continued its steadfast opposition in the High Court.
The crucial opposition topic in the Environment Court seemed to be to the existence of any houses, which the subdivision would obviously bring about.
The Environment Court panel, headed by Judge Gordon Whiting with commissioners Dart and Gapes, rejected the evidence of regional council witnesses on the visual impact of built structures.
“The evidenceâ€¦ seemed to us to be founded on the perception that buildings are inherently negative visual elements in this coastal landscapeâ€¦ We consider that the intrusion of buildings on a ridgeline, even in the coastal environment, is not inherently unattractive,” Judge Whiting wrote.
Judge said revegetation not a tradeoff
The court also approved of the enhancement resulting from revegetation: “We find it will deal with the adverse effects existing erosion, subsidence and slipping and will have the further positive ecological effect of establishing a stepping stone, thus enabling the establishment of bird corridors between the offshore islands of Little Barrier and the Hen & Chickens, facilitating the transfer of bird life from these islands and the opportunity to establish endangered species on the coastal edge and subsequently inland.”
The court rejected as “a narrow interpretation” regional council evidence alleging revegetation was a tradeoff to get subdivision.
Regional and district council policies and objectives refer to preventing inappropriate subdivision. Judge Whiting referred to the usual manner of saving “haphazard pockets of native vegetation,” by allowing property to be fragmented. Proposals to do that, along with a bush covenant, have commonly won support from both councils.
The judge liked the idea of enhancing the landscape but said that, “unfortunately, the objectives, policies and rules of the special character area with which we are concerned do not implement or encourage that objective.”
During the hearing, the judge questioned references to degraded pasture as being any more “natural” than revegetation and, in the judgment, accentuated his view that the Gillespie proposal “clearly furthers the single purpose of sustainable management that forms the basis of the [Resource Management] Act.”
No brownie points
Justice Chambers said, in effect, it’s fine to revegetate, but the law as it stands gives you no brownie points for doing so.
The eighth line of Justice Chambers’ judgment gives a clear indication of the direction his ruling would take. In an outline of how Mr Gillespie’s company, Arrigato, had consent for nine lots, the judge wrote: “But Arrigato was not satisfied with that. It wants to subdivide furtherâ€¦”
This issue becomes highly relevant later in the judgment, where Justice Chambers concurred with regional and district council submissions on the “creep” effect, of getting one consent for a minor subdivision then seeking consent for something major, for which the effects would seem less adverse than if they were compared against the original situation, of no consents.
My inference from the judgment’s line 8 is that Justice Chambers thought Mr Gillespie was being greedy. Reaction: chop him back.
Mr Gillespie’s reaction was that, if he’s forced to stick with fewer lots, he’ll sell up and the environment may well be worse. “They [buyers] can put rails down the front [monorails to the beach, as was suggested in evidence; Arrigato agreed in this consent case to prevent that happening]. They can eat the trees.
“They [the regional council] arrive back at the situation they had before, which I think would be a great shame. People who buy don’t have to stick with the native bush thing. I think a great opportunity for coastal restoration might be lost.”
Incentives to save bush
In the district council’s plan change 55, it says subdivision is limited to three main types. “Firstly, as an incentive for native bush and natural feature protection subdivision enabling the creation of a rural-residential site where native bush or natural features are legally protected is provided for.” The second and third types enabled boundary changes and subdivision for specified activities.
The specific objective for the area is “to protect and retain the natural, coastal, non-urban and remote character of the Pakiri coastline and surrounding rural backdrop.”
Justice Chambers concluded that the Environment Court “did not seem to consider that its decision [to grant consent] was contrary to the statutory documents. That leads me to conclude that it must therefore have misunderstood them.”
Wrong comparison alleged
The High Court judge accepted a submission from counsel for the regional council, Ian Cowper, that the proposed subdivision “should have been compared with the environment as it currently exists, namely some 150ha of coastal and pastoral land with just one dwelling on it.”
If the judge is right in comparing with current, he’s wrong in one conclusion. The beginnings of a forest existed when the Environment Court heard this case. Question: At what point does a set of plantings become a forest?
But Justice Chambers is probably half-right in another aspect of this “existing environment” issue. He found the Environment Court extended existing law by taking into account “credible or likely variations to that existing environment in the light of existing resource consents and/or evidence relating to a development as of right.”
The definition of “the environment” in the Resource Management Act “refers to something existing, not hypothetical,” Justice Chambers said. A consent for change, already granted, has to be an existing condition on an environment. You can be pedantic in either direction, depending on which viewpoint you want to win.
My inference is that the judge was pushing a viewpoint, and that the Environment Court was not absolutely wrong in its assessment, which was a practical rather than academic consideration.
But, in rejecting the Environment Court’s acceptance of enhancement and the failure of the special character area documents to mention it, Justice Chambers noted subdivisional incentives were for “the protection of significant stands of native bush,” then went on to say Arrigato’s subdivision was of a totally different character from the first type mentioned in plan change 55.
Chambers accepts evidence Whiting rejected, without hearing it
He added: “There is a significant difference between wanting to protect established native bush and wanting to encourage sporadic planting of new bush as a quid pro quo for what would otherwise be a subdivision outside the objectives, policies, and rules for the area.”
By this, the High Court judge accepts the “tradeoff” evidence which the Environment Court rejected, although in the High Court this evidence was not heard. And he introduces the word “sporadic” as an inaccurate put-down.
From there, Justice Chambers picked up on two points: one, he introduced the public consultation process , and secondly he noted Mr Cowper’s complaint that the court was trying to rectify a deemed deficiency “without the need for any of the statutory procedures for a change to district plans.”
“I accept the correctness of that criticism,” Justice Chambers said.
As well as lamenting the absence of revegetation incentives, the Environment Court went to considerable length to say how it found the revegetation already begun would be of great benefit in preventing soil erosion, subsidence, and encouragement of birdlife.
Thus the Environment Court found positive, not adverse, effects.
In discussing whether the adverse effects on the environment are minor, Justice Chambers went through the process of establishing the Environment Court had made a wrong comparison. From my reading of the lower court’s judgment, that comparison of possible house numbers was largely irrelevant to the finding of positive effects.
Judge Whiting and his two commissioners took the approach of affirmative action, finding that houses are not intrinsically unsightly and that a large area of carefully planned revegetation in this location would be of great environmental benefit.
They believed this reafforestation would amount to sustainable management.
Auckland Regional Council wants to stop the uncontrolled spread of housing through rural and coastal areas and sees this case as a defining stand.
Justice Chambers supported the anti-development stance, thinks developer Ian Gillespie is being greedy and should be content with what he can already do, but is wrong in some of his emphatic rejections of the Environment Court judgment.
The outcome, more delay in subdivision, will do no harm to the reafforestation programme unless Mr Gillespie sells without the proposed covenants in place.
The Gillespie scheme would benefit an exposed coastal hillside, although it may take many years for the canopy to grow, and the handful of houses are unlikely to be a serious issue for beach users. The forest cover might in fact increase the isolated feel.
The Environment Court found the proposal was not precedent-setting, without giving reasons. Justice Chambers feels the lower court may reach a different conclusion after correcting the errors he found in its judgment. It seems inescapable to me that others will use this development to justify more schemes.
The task for planners and the planning system will then be to ensure effects are positive, but for the whole area a trend away from stock and pasture can be expected.