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Decision No. A049/2002 in the MATTER of the Resource

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Decision No. A049/2002 in the MATTER of the Resource Decision No. A049/2002 IN THE MATTER of the Resource Management Act 199 1 AND IN THE MATTER of two appeals under clause 14 of the First Schedule to the Act BETWEEN WINSTONE AGGREGATES LIMITED (RMA 162/95) AND AUCKLAND REGIONAL COUNCIL (RMA 174/95) Appellants AND PAPAKURA DISTRICT COUNCIL Respondent BEFORE THE ENVIRONMENT COURT Environment Judge R G Whiting (presiding) Environment Commissioner J R Dart Environment Commissioner R F Gapes HEARING at AUCKLAND on 1,2,3,4 & 5 December 1997 and 18,19 & 20 February 1998 APPEARANCES Mr F G Herbert for the Papakura District Council Mr J M Savage for the Auckland Regional Council Mr D A Nolan for Winstone Aggregates Limited Mr J Kingston for the K L Richardson Estate DECISION Introduction This is a final decision in relation to the references lodged by Winstone Aggregates and Auckland Regional Council regarding provisions of the Papakura istrict Plan (Urban and Rural Section). The references sought amendments to the winstone aggregates rma162.95.doc (sp) District Plan to provide greater protection to areas containing mineral resources from encroachment by potentially conflicting land uses. PI In September 1998 Winstone appealed the interim decision to the High Court. That appeal has been adjourned sine die. PI The references were heard by us in December 1997 with the Court issuing an interim decision on 14 August 1998l. As a result of extensive ongoing discussions between the parties, further investigations, and further expert information obtained; the parties were able to reach an agreement consistent with the ruling of the Court’s interim decision. On 25 September 2001 a Memorandum of Consent, signed by all parties, with a draft Consent Order attached, was filed with the Court. The Court issued a further interim decision on 22 November 20012, confirming the provisions contained in the draft consent order. In that interim decision we said:3 In the lengthy memorandum of counsel filed with the proposed consent order counsel for Winstone indicated some concern with the terminology used by the Court in the interim decision. We have considered the issues raised by counsel. We are of the view that: because of the importance of this matter to the parties; because of the considerable sums of money expended by the parties by way of further _ enquiry and investigation; the negotiations leading to the settlement; and in deference to counsel’s detailed submissions; we consider it behoves the Court to address those matters in a final decision. Winstone’s Concern PI Mr Nolan’s concerns were founded on thI e Enviromnent Court’s terminology, particularly its indication that effects should be “intemalised”. Mr Nolan considered that the basic requirement under the RMA in relation to effects is to avoid, remedy or mitigate those effects to the extent required by the overall purpose of the RMA as set out in section 5, and the duties in sections 16 and 17 of the Act. He was of the view that this may, or may not in all cases, result in an intemalising of effects within a site boundary. PI Mr Nolan was of the view that the wording of the RMA does not refer to or require any intemalisation of effects as a matter of general principle, or that reverse sensitivity provisions of the type proposed are only appropriate where it is not reasonably possible to intemalise effects. He contended that references to sary gloss to the clear wording of the RMA; which, sion No. A96198 sion No. A128lOl. stone aggregates rmal62.95.doc (sp) 2 instead, uses the specific language of “avoiding, remedying or mitigating” effects4. He submitted that those obligations may require a proponent to demonstrate the reasonableness of its proposals, for example, with regards to noise mitigation, in terms of any costs/inconvenience on the proponent, compared to the effects that would otherwise be caused to adjoining landowners. Moreover, that such an examination is not the result of a statutory obligation to intemalise effects. WI Mr Nolan was also particularly concerned that neither the consent order, nor the interim decision be adopted as authority for the principle that there is a general requirement to intemalise effects under the RMA. Passages of the Interim Judgment that Cause Concern to Winstone 171 The passages in the first interim decision that gave rise to Mr Nolan’s submissions are: We remind ourselves that we are currently considering a reference, rather than an appeal for resource consent. The statute requires different things of a territorial authority in the formulating of a district plan. Nevertheless, we are of the view that in promoting the sustainable management of natural and physical resources, particularly having regard to s.32(l)(c), the adverse effects of quarrying should, as far as possible, be confined to the site within which those activities causing the effects are carried out. We consider that this is in accord with the purpose of the Act. When Part II of the Act is taken as a whole, there is a clear mandate for controls to be included in plans which will prevent undue adverse effects and reduction in amenity values.’ And: We consider that in controlling undesirable effects, territorial authorities should impose restrictions to internalise adverse effects as much as reasonably possible. It is only where those efsects cannot be reasonably controlled by restrictions and controls aimed at internalisation, that the sort of restrictions on other sites (as sought by the appellants) might be appropriate. Those are relatively rare circumstances and will vary from site to site.’ And: That the districtplan should contain objectives, policies and methods to control the effects of quarrying, is not in dispute. It is whether those objectives, policies and methods should be directed at internalising all of the adverse effects, or whether a combination of those restrictions should be combined with restrictions constraining the use of land owned by adjacent landowners. We have already held that we are of the view that adverse effects should be internalised where possible, but that such restrictions should be reasonable. In the event of adverse effects escaping from the site after the imposition of reasonable controls, then restrictions constraining ne aggregates mal62.95.doc (sp) 3 adjacent landowners can and should be implemented. It is only when reasonable controls for the containing of effects at the boundary of the quarry site have been implemented can it be property and adequately assessed that the perimeter of effects extends beyond the quarry zone thus making it necessary to impose restrictions on adjacent landowners.7 And: After a careful evaluation of the evidence, we are satisfied that there has not been a full consideration of options for noise management, and that the best practicable option may not have been selected. We agree with Mr Hart that further work is required to establish what are the best practicable options. Before we reconsider justifying the imposition of restrictions on residents’ rights to use their own land, we need to be satisfied that all reasonable andpracticable steps have been taken to internalise eJ6ect.s. ’ PI In summary, Mr Nolan’s submissions asserted that the passages appear to be philosophically inconsistent with other cases that have addressed reserve sensitivity issues, and seem to create a new duty under the RMA by requiring the intemalisation of adverse effects. This he says is inconsistent with the duty to avoid, remedy or mitigate adverse effects. PI _ First, we say that as a Court of first instance any decision, even of principle, has no binding effect. Secondly, there appears to be little or no difference on matters of principle between our approach and that submitted by Mr Nolan. He appears, to us, to be reading more into our decision than was intended, by asserting it creates a new duty under the IRMA. As a Court of first instance we are required to make decisions on a wide variety of factual circumstances. By far the majority of our decisions are fact specific. Analysts must therefore be weary of elevating comments made in respect of specific fact situations to matters of principle. [lo] Perhaps the wording of our decision has given rise to Mr Nolan’s concerns. We regret if there is any lack of precision and any apparent failure to tether our reasonings to the Act. We therefore propose to set out the basis upon which we made our decision and then endeavour to clarify our decision as it related to the fact specific circumstances. Reverse Sensitivity as an adverse “effect” [ 1 l] Section 3 of the Act defines ‘ ‘effect” as: instone aggregates mal62.95.doc (sp) 3. Meaning of “effect” - In this Act, unless the context otherwise requires, the term “effect ” includes - (a) Any positive or adverse effect; and (b) Any temporary orpermanent eflect; and (c) Anypastpresent, orfuture eff‘ects; and (d) Any cumulative effect which arises over time or in combination with other eflects - regardless of the scale, intensity duration or frequency of the effect, and also includes - (e) Any potential effect of high probability; and fl Any potential effect of low probability which has a high potential impact. [12] The concept of reverse sensitivity has not been defined under the Act, although it has been recognised in case law, and it is well settled that reverse sensitivity is an effect on the environment. In Auckland Regional Council v Auckland City Council9 Judge Sheppard defined the concept as: The term “reverse sensitivity ” is used to refer to the eflects of the existence of sensitive activities on other activities in their vicinity, particularly by leading to restraints in the carrying on of those other activities. [ 131 In the present circumstances the “reverse sensitivity” at issue was the restriction on activities within the vicinity of the quarry sensitive to the effects of the quarry, such as subdivision, residential uses and educational facilities.
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