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Bollard, R J --- "The resource management regime and private property rights and interests - is there an untoward tension between the two?" [2010] NZJlEnvLaw 2; (2010) 14 NZJEL 1

Last Updated: 30 January 2023

The Resource Management Regime and Private Property Rights and Interests —

Is there an Untoward Tension between the Two?

R J Bollard*

This paper explores the relationship between the Resource Management (RMA) regime and private property rights. It discusses various RMA cases with the intent of illustrating that, while tension is oft reported between the RMA regime and private property rights, the two ought not to be treated or interpreted as competing in ways liable to undermine one or the other.

1. INTRODUCTION

It has been said that to some extent the nature of the interrelationship between environmental law and property law depends on one’s perspective. For example, counsel acting for environmental groups may be expected to view their advocacy task through a somewhat different lens from those acting for property developers or mining companies.¹

Hence, in approaching the topic of this paper against the judicial background of an Environment Judge, I am mindful that long-standing familiarity in a decision-making role under the Resource Management Act 1991 (“RMA”) from a public law standpoint, might be thought inevitably to place the viewing lens of consideration out of ideal focus or in too narrow a setting. Should that prove so,

*R J Bollard (John) was appointed a Judge of the Planning Tribunal in 1988, and became the Principal Judge of the successor Environment Court between May 2003 and April 2009. In preparing this paper, the author acknowledges the assistance of Brooke Burnett and Bernadette Cuttance, research counsel of the Environment Court. [The paper was written for the NZCEL Conference on “Property Rights and Sustainability” on 16–18 April 2009 at Auckland. Sadly, His Honour Judge Bollard died from illness on 28 April 2009.]

1 See Grinlinton, D, “Property Rights and the Environment” (1996) 4 APLJ 41, at 41.

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the responsibility is entirely mine. I do not presume to speak for any other Judge or Commissioner of the Environment Court. Neither should thoughts expressed be taken as indicating a position that the Court might take in a particular case in the light of due argument. I hasten also to mention that no attempt is made to carry the bounds of commentary beyond the New Zealand context. Rather, much of what follows flows from the author’s observations and experience in the light of matters arising in the course of the Court’s work.

Environmental law is now hailed as embracing a well-recognised, notably wide and highly important area of legal study. A fundamental contribution on the New Zealand scene derives from the major body of jurisprudence built up over the better part of two decades following the RMA’s enactment. Significantly, RMA appeal cases giving rise to issues of law of signal importance are open to consideration (with leave) by the Supreme Court as the country’s highest judicial forum.

For those who regard environmental law as an innovative discipline befitting the 21st century, with mighty issues of global proportions affecting the planet’s natural processes and attendant well-being, it is nevertheless a difficult field of law to comprehend as to its metes and bounds. Moreover, any endeavour to reconcile it with long understood property rights that many cherish and rely on as a bulwark against perceived uncertainty at large presents further difficulty.² All this is largely, so I venture to suggest, because much depends upon the underlying philosophical elements that are pivotal in identifying a country’s environmental values in a societal context and in shaping its associated legal framework.

Perhaps the most critical factor is the dichotomy of physical effects on the environment allied with pragmatic assessment on the one hand, and on the other, the legislative importation of various imperatives in public interest, historical and cultural terms involving the need to analyse and evaluate relatively subjective social, traditional, cultural or spiritual elements. The need to analyse and cogently evaluate the multifaceted issues stemming from both dimensional streams in order to arrive at good environmental outcomes with sustainability in mind can often place the decision-maker in an unenviable position. The application of common law precepts in a civil suit is one thing; but the determination of hard-fought marginal cases in the public law arena, featuring both physical and metaphysical areas of necessary inquiry, is quite another. Indeed, some might assert that cases in the latter category lie at the

2. “There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Refer Blackstone, Commentaries on the Laws of England, 2 (1766), Reprint University of Chicago Press, 1979.

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extremity of what a court, acting judicially and according to law, should be called upon to weigh and resolve.

Plainly enough, many public and private law remedies overlap in the sense that a desired environmental outcome can conceivably be realised either under the RMA or by a case brought (say) in tort. In practice, many litigants prefer to seek remedies by application to the Environment Court — a main reason being the prospect of less cost and delay, by contrast with a comparatively drawn out civil action incorporating formal steps of discovery, administration of interrogatories and the like.

It was thought originally on the RMA’s introduction that any need for restricting participation of individuals was outweighed by the desirability of an open system in keeping with an “effects based” regime, reinforced by a belief that “busybody” involvement would be few and far between. In my view, experience has demonstrated the vain hope of that approach, with many judicial hours spent in dealing with cases bordering on abuse of process.

Moreover, the fond aim of straightforward workability of the legislation in practice has been submerged and frustrated by complicating layers of bureaucracy at both regional and district council levels, refined and cemented over time. The onus has come to bear heavily upon the consumer to satisfy planning requirements and meet levels of costs that in the eyes of territorial authorities will ensure that any likely adverse effects are aptly controlled to their ongoing satisfaction.

Against the background of the foregoing remarks by way of introduction, I propose now to cite and discuss various RMA cases of illustrative assistance in addressing the topic of this paper. My thesis is that despite such tension as may exist between the RMA’s management system and property rights, the two ought not to be treated or interpreted as competing in ways liable to undermine one or the other. Rather, every effort should be made to foster integration or consistency as circumstances allow, to the end that environmental sustainability may be better promoted and people’s well-being better assured.

2. THE RMA AND THE CREATION, RETENTION OR REMOVAL OF PROPERTY RIGHTS

2.1 The Nature of a Resource Consent

It will be convenient to commence by referring to Armstrong v Public Trust ³ where Fogarty J had to consider s 122 RMA, a section which declares under subs (1) that “A resource consent is neither real nor personal property” and

3 [2007] NZHC 342; [2007] 2 NZLR 859; [2007] NZRMA 573; (2007) 13 ELRNZ 271.

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thus begs the question as to what a resource consent really is. In the light of succeeding subsections, including in particular subs (2), which provides:

(2) Except as expressly provided otherwise in the conditions of a consent,—

(a) on the death of the holder of a consent, the consent vests in the personal representative of the holder as if the consent were personal property, and he or she may deal with the consent to the same extent as the holder would have been able to do; and

(b) on the bankruptcy of an individual who is the holder of a consent, the consent vests in the Official Assignee as if it were personal property, and he or she may deal with the consent to the same extent as the holder would have been able to do; and

(c) a consent shall be treated as property for the purposes of the Protection of Personal and Property Rights Act 1988.

— it was held that subs (1) cannot be taken to mean that “Parliament has set its face against the creation of property rights as incidental to holding consents under the RMA, for that proposition is confounded immediately by the remaining subsections of s 122”. That was followed by asking what the reason for subs (1) might be — as to which this was stated:⁴

There was a measure of agreement between counsel that [the subsection] functions by eliminating recognition by the Courts of any property rights be they real or personal property in respect of RMA consents, except and only to the extent that Parliament has provided for them expressly or by necessary implication.

Confirmation of that view was identified by reference to later provisions of Part 6 of the Act within which s 122 falls. Various sections were noted as dealing with the attachment of land use and subdivision consents to land, the transferability of other types of resource consents (or permits) able to be sought and granted under the Act, and the surrender of consents. The conclusion against that background was as follows:⁵

Accordingly, the purpose of s 122(1) is to prevent other transfer of consents, except as provided for in this statute. Subsection (2) of s 122 can then be seen as providing some general qualifications. Paragraphs (a) and (b) deal with the involuntary transfer and para (c) and subs (3) allow the securitisation of consents. Such recognition of property rights is contained. What Parliament has

4. Ibid, at para [19].
5. Ibid, at paras [19], [20].

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set its face against is the unfettered transfer of resource consents except where specifically provided.

There is no readily ascertainable generic resource management issue which pertains to whether a resource consent should be held by one or more persons. The reasons why one or more persons apply will be usually because of private arrangements. The identification of the personal representative is normally as a result of private ordering, here a person making a will dealing with his or her estate. Although it is not made express, s 122(2)(a) carries within it the implicit recognition of private ordering of affairs.

The core issue of the case — whether or not the common law position governing the survivorship of joint interests should apply — was in turn addressed via this instructive passage:⁶

This Court will not find that the legislature has so intervened to displace the common law position as to joint tenancy, by a side wind, when pursuing control over the allocation of scarce resources, as it is doing in the RMA. To the extent that it does in fact allow property rights under the RMA, the common law as to real and personal property will apply, subject to constraints in the specific provisions of the statute.

The RMA recognises that a land use or subdivision consent holder must be free to exercise the consent according to its terms and conditions, relying on the law of trespass (and other remedies whether civil or criminal) against unwarranted hindrance or intrusion as need be. Correspondingly, from the environmental law perspective a consent holder that fails to act responsibly in the discharge of obligations imposed under the consent is subject to comprehensive statutory powers vested in the consent authority for remedying or mitigating cases of breach.

2.2 Coastal, Water and Air Permits

Coastal permits and those involving water taking and discharge aspects are treated in different ways, but again recognising that a grant within any category is valuable to the grantee and needs to be viewed in the light of the grantee’s rights and expectations, whether capable of exertion at common law or in reliance on developing case law under the RMA (particularly in reference to priorities associated with the allocation of scarce resources).

Cases in which the value of a water permit has been demonstrated include

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those in which competing applicants have contested the priority to be given to their application to access the resource. In Re an Application by Ngai Tahu Property Limited ⁷ the core source of contention was whether Ngai Tahu or Central Plains Water Trust ranked in priority in applying for and obtaining a permit to abstract 2.72 cumecs of water from the Waimakariri River. The Environment Court’s decision in favour of Ngai Tahu was upheld by the High Court,⁸ but overturned by the Court of Appeal by a two to one majority.⁹ The case has since proceeded to the Supreme Court for ultimate decision.

In Aoraki Water Trust v Meridian Energy Ltd ¹⁰ competing applications to take water from Lake Tekapo were involved. A full Court of the High Court held that, subject to limited exceptions, Parliament had introduced a comprehensive statutory management regime for water allocation. The RMA effectively prescribes a licensing system. If the number of permits exceeds the resource capacity this would contradict the RMA’s management regime and the consent authority’s express obligation to control the taking, use, damming and diversion of water. The Regional Council needed therefore to recognise priorities in time where competing claims existed. The Court found:¹¹

In our judgment, granting a water permit for a particular volume of water over a specified period of time commits the consent authority to that grant in the sense that it is not entitled to deliberately erode the grant unless it is acting pursuant to specific statutory powers. The relevant factors applying in this public law context are similar to those underlying the principle against non-derogation of grant. In situations where the consent authority’s commitment represents a full allocation of the resource to the grantee (subject, of course, to the events of nature), the latter must reasonably expect to proceed with planning and investment on the basis that the consent authority will honour its commitment. Indeed, refusal to recognise that expectation would seriously undermine public confidence in the integrity of water permits. In this case Meridian has made major investments on the strength of its permits. This reliance, coupled with the potential for detriment if the grant is not honoured, strengthens Meridian’s argument that its legitimate expectation should be recognised.

7. Environment Court Auckland C104/06, 1 August 2006.
8. Central Plains Water Trust v Ngai Tahu Property Limited & Canterbury Regional Council

(HC Christchurch CIV-2006-409-2116, 1 December 2006); [2006] NZHC 1482; (2006) 13 ELRNZ 63.

9. Central Plains Water Trust v Ngai Tahu Properties Limited [2008] NZCA 71; [2008] NZRMA 200. 10 [2004] NZHC 820; [2005] 2 NZLR 268; [2005] NZRMA 251; (2005) 11 ELRNZ 207.

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2.3 The Common Law Right to Protect One’s Property from the Sea

The next case to mention is Falkner v Gisborne District Council ¹² where Barker J held that the common law right to protect one’s property against sea-induced erosion had been overtaken by the coastal management regime under the RMA. As observed in an oft-cited passage:¹³

The [RMA] prescribes a comprehensive, interrelated system of rules, plans, policy statements and procedures, all guided by the touchstone of sustainable management of resources. The whole thrust of the regime is the regulation and control of the use of land, sea, and air. There is nothing ambiguous or equivocal about this. It is a necessary implication of such a regime that common law property rights pertaining to the use of land or sea are to be subject to it.

A more recent case on the issue of beachfront property protection is Mason & Keall v Bay of Plenty Regional Council & anor,¹⁴ which threw individual property interests and wider environmental aspirations into stark relief. At stake lay the competing concerns of beachfront property owners as holders of highly priced real estate, and the call from members of the wider local community for such owners to yield to the concept of a natural beachfront via “managed retreat”, on the basis that the forces of nature must eventually prevail. It was common ground that the beachfront was susceptible to significant erosive cutback from repetitive storm events in the absence of suitably engineered protection works.

Unsurprisingly, notwithstanding the natural hazard risks to their properties, that call was unpalatable to the beachfront property owners. Strong reliance was placed upon the RMA’s purpose of sustainably managing natural and physical resources. That position was taken against a background of evolution of built development along the beachfront, sanctioned over time under successive legislation, thus resulting in a current situation of notable physical presence within, and contribution to, the coastal environment.

The manifold difficulties confronting landowners in determining a common course of action in reliance upon private law rights and interests were well illustrated by the historical background and the apparently entrenched stand-off position in Mason & Keall. It was observed that:¹⁵

12 [1995] 3 NZLR 622; [1995] NZRMA 462.

13 Ibid, at 632; 477.

14 Environment Court Auckland A98/07, 30 November 2007.

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There is a high level of support amongst the beachfront property owners for the Council’s proposal, with all relevant owners having given their consent in writing subject only to qualifications in some instances that the Council is comfortable with.

Having expressed doubt over the optimism of a witness for the appellants who suggested that in the light of steps taken by the regional and district councils responsible for the Coromandel area a consensus between the beachfront property owners at Waihi Beach could conceivably occur within a reasonable timeframe, the following was stated:¹⁶

... we have to say that in the face of the notable conflicting issues that became manifest as the proceedings unfolded, and given the notable valuations attaching to the real estate holdings concerned ($64m in total according to Quotable Value as at 1 July 2005), we do not share Dr Singleton’s optimism.

The Council here has made significant moves over the years to investigate and consult over options to assist and improve the situation at Waihi Beach within the constraints of practicability. With all the applied efforts culminating in the present proposal, we have little doubt that the future effort required to achieve a general consensus (should such be possible) amongst the beachfront property owners to install some form of backstop wall in lieu, would involve prolonged discussions and complex negotiations over a significant period.

We do not overlook that it would be possible for the Council to devise a course of action embracing compulsory acquisition of land, were it decided at some point that a backstop approach should be pursued despite unresolved beachfront-owner opposition. Importantly, the Council’s present proposal does not preclude the adoption of some form of backstop solution in the future in the light of continued weather pattern observations and enhanced data.

2.4 Reverse Sensitivity

Reverse sensitivity so-called has emerged and developed conceptually under RMA jurisprudence. It is well described by B Pardy and J Kerr in a thought- provoking article — Reverse Sensitivity — the Common Law Giveth and the RMA Taketh Away:¹⁷

16 Ibid, at paras [66]–[68].

17 [1999] 3 NZJEL 93.

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Reverse sensitivity is the legal vulnerability of an established activity to complaint from a new land use. It arises when an established use is causing adverse environmental impact to nearby land, and a new, benign activity is proposed for that land. The “sensitivity” is this: if the new use is permitted, the established use may be required to restrict its operations or mitigate its effects so as to not adversely affect the new activity.¹⁸

Reverse sensitivity is now an established concept in resource management law. Its emergence creates an alternative to the common law position, where traditionally private property owners have resorted to actions in nuisance if the enjoyment of their land was interfered with. The point was effectively captured in a perceptive article some years ago by Alan Dormer as follows:¹⁹

Prior to the emergence of a doctrine of reverse sensitivity, the rights of landowners were protected by the law; any unreasonable activity by a neighbour, even one of long duration, could be the subject of a claim for damages and injunctive proceedings at the suit of the affected party.

A case that directly involved issues of reverse sensitivity is Munro v Christchurch City Council.²⁰ There the Council had granted consent to the applicants to establish and operate a licensed café and gift shop in an old packing shed in conjunction with an existing summer fruit orchard operation on the property. Mr Munro sought to have the Council’s decision overturned, and raised as part of his case the issue of reverse sensitivity. His concern was that he was required by the Council to remove gorse from an elevated area of land adjoining the applicant’s site by spraying, and that this activity could be the subject of complaints from diners and users of the new café/shop facility. The Court quoted Mr Munro as saying:²¹

... My concern is that the clientele of the proposed development (which will be primarily from the city and urban residents) will not appreciate such activities taking place so close to where they are dining. If the clientele reduces as a result I can only imagine the owners of the development will try to prevent such activities from taking place as it will be having a direct effect on their business viability. I believe that there is great potential for there to be complaints as to the perceived effects that my farming activities may have on the proposed development activity.

18. Ibid, at 94.
19. Dormer, A, “Reverse Sensitivity” (2002) 4 BRMB 29, at 30.
20. Environment Court Christchurch C71/05, 20 May 2005.
21. Ibid, at para [32].

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The Court found, after inspecting the site and the appellant’s land where the gorse existed, that the two areas were sufficiently separated for there to be no likelihood of any sound basis for complaint on account of chemical spray drift. The Court commented:²²

In our view, for a venture such as this, seeking to establish in such a rural area, any perception of risk, born from a misapprehension as indicated, cannot be the basis for any justified reverse sensitivity complaint, in effect challenging Mr Munro’s right to lawfully undertake the activity at issue. The purposes of the activity relate both to the need to comply with the Regional Council’s requirements directed to noxious weed clearance and control, while also seeking to achieve worthwhile land enhancement for future farming purposes. In effect, the applicants and their successors must accept any “perception factor” (should it arise) as part of the “risk” of seeking to establish and carry on the café activity within an area where a range of non-urban activities are to be expected.

In Winstone Aggregates & Anor v Papakura District Council ²³ the Court dealt with the issue of reverse sensitivity in the context of the quarrying industry. It was proposed by the appellants that there be an aggregate resource protection area (or reverse sensitivity buffer zone) imposed extending 500 metres from the boundary of the present and future operations of the quarry. Having found that the Council and Court had jurisdiction to impose such a zone, the Court then turned to consider whether the creation of a buffer zone was appropriate.

One of the concerns of the Court in imposing such a buffer zone was the potential impact on the owner of the adjoining property. In this case, the land, owned by Richardson Estate Land, was zoned Rural Residential in the proposed district scheme. Evidence established that the imposition of a buffer zone could have serious economic effects and therefore, indirectly, the Richardson Estate would be bearing the costs of the adverse effects emanating from the quarry.

In its interim decision the Court commented:²⁴

In promoting the sustainable management of natural and physical resources, particularly having regard to s 32(1)(c), the adverse effects of quarrying should be confined as far as possible to the site where those activities giving rise to the effects are carried out.

22. Ibid, at para [34].
23. Environment Court Auckland A96/98, 14 August 1998 and Environment Court Auckland A49/02, 26 February 2002.
24. Environment Court Auckland A96/98, 14 August 1998.

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In controlling undesirable effects, territorial authorities should impose restrictions to internalise adverse effects as much as reasonably possible. It is only where those effects cannot be reasonably controlled by restrictions and controls aimed at internalisation, that compatible land use planning as sought by the appellants might be appropriate. Those are relatively rare circumstances and will vary from site to site.

In its final decision the Court clarified the above, commenting:²⁵

“Reasonable Internalisation” is part of the method of applying with the Act’s requirements to “avoid, remedy, or mitigate”, and is not intended to be interpreted as a separate duty. In considering the imposition of a buffer zone we formulated what, for the sake of simplicity, can be reviewed as a two step process. The first part of the consideration is to require emitters to take all reasonable steps to internalise effects. Only those effects which cannot be reasonably internalised provide the basis for constraints on nearby land-use activities. This method thus incorporates “the polluter pays” approach, in conjunction with a practical evaluation of who can reasonably mitigate. This is analogous to the duty to “avoid, remedy or mitigate”, in that if an effect cannot be avoided, then, the emitter must remedy or mitigate through conditions of consent. “Internalise” is not to be interpreted as to “internalise at all costs”.

Ultimately, the Court found, having weighed the conflicting perspectives, that not all the adverse effects of the quarry, particularly those of noise and vibration, could reasonably and economically be contained within the site and considered the imposition of a reverse sensitivity buffer zone appropriate.

In Ports of Auckland Limited v Auckland City Council and Others ²⁶ Baragwanath J, sitting in the High Court, considered the law’s reconciliation of conflicting interests in land-use planning. The area known as the former Railway Precinct was rezoned to permit residential development as a controlled activity. Resource consents were subsequently granted to permit the erection of multi-storey residential buildings. The Ports Company, as operator of the wharf complex, alleged that the Council erred in law by treating the resource consent applications as non-notified in that the Company would have contended for more stringent noise insulation procedures and so averted the prospect of claims against it by future residents.

His Honour commented:²⁷

25. Environment Court Auckland A49/02, 26 February 2002, at para [46].

26 [1999] 1 NZLR 601; [1998] NZRMA 481; 5 ELRNZ 90.

27 Ibid, at 609; 496.

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The question arises — what is to happen if residents are exposed to internal noise from the Port exceeding 35 dBA, which exceeds the acceptable limit, and yet results from Port activity which as a result of exhaustive statutory process has been determined to be in the public interest within the 60 dBA boundary limit?

The answer is that such dilemma cannot be permitted to arise. It is the task of the Court and other bodies with responsibility for construing the RMA to recognise that planning decisions are a form of delegated legislation, which must be internally consistent in order to promote sustainable management as Parliament has directed. There must be created a seamless whole within the operation of this single statute that reconciles the competing uses which our sophisticated society requires.

The time should be long past when statute law and common law were seen as occupying different planes. Decision makers, including planning authorities and the Court on judicial review, must consider what construction of the legislation and what development of the common law will avoid anomaly and provide a sensible result.

2.5 Common Law Action of Private Nuisance and the RMA

In Hawkes Bay Protein Ltd v Davidson ²⁸ the Davidsons brought proceedings in nuisance against Hawkes Bay Protein because they found the odours emanating from the Hawkes Bay Protein plant to be so offensive as to impede the use and operation of their property. They succeeded in the District Court and were awarded damages. On appeal in the High Court, Justice Gendall made these comments about the interface between Resource Management/planning law and nuisance:²⁹

The fact that there was a grant of planning permission to carry on a particular activity is relevant only in the sense that where planning consent is given, the question of nuisance falls to be decided by reference to the designated neighbourhood. Planning authorities cannot authorise nuisances and even if there be compliance with planning permission, such is not a defence to a nuisance action. However, it may be that the planning consent changes the character of the neighbourhood by which the standard of reasonable user falls to be judged. In the present case resource consent, while permitting the activity to proceed, nevertheless limited the discharge of noxious odours. Indeed, in one

28 [2003] 1 NZLR 536.

29 Ibid, at 541 [19].

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instance, the prosecution followed upon breach of that condition. Any planning consent has no relevance if the activity is otherwise an actionable nuisance.

2.6 Taking, Compensation and the RMA

Section 85(1) RMA provides that:

An interest in land shall be deemed not to be taken or injuriously affected by reason of any provision in a plan unless otherwise provided for in this Act.

Section 85(2) imposes a limit on that general provision, by providing that if any person has an interest in land and considers that interest has been rendered incapable of reasonable use by a provision of the plan, that person may challenge the provision by appeal to the Environment Court. In practice, instances where subs (2) has been called in aid have been relatively few.

In Body Corporate 97010 v Auckland City Council ³⁰ the appellants challenged planning provisions which would affect their views from (and the public’s views to) a group of heritage listed terrace houses. Although the appellants did not plead s 85 in aid, the Court noted:³¹

We recognise that a viewshaft would severely restrict development of private land. It should therefore be designed so that it has no greater impact on development potential than is necessary to achieve its objective: T and G Mutual Life Society v Christchurch City Council 11 NZTPA 71 (CA). It is important to keep the burden on the private landowner in proportion to the public benefit to be gained from the restriction. It is also important to ensure that the restriction is not so great as to preclude reasonable economic use of the land affected.

In Hastings and Anor v Auckland City Council ³² Mr Hastings challenged the zonings of land at Anns Creek, including zoning of part of the land as Open Space 1 (Conservation). Mr Hastings sought less-restrictive zonings. Counsel for Mr Hastings submitted that the Open Space zoning should not be applied to private land over the owner’s objection. The Court considered s 85 and commented:³³

From section 85 we take it that in enacting the Resource Management Act 1991, Parliament deliberately ruled out rights to compensation for planning

30 (1992) 2 NZRMA 257.

31. Ibid, at 265.
32. Environment Court Auckland A068/01, 6 August 2001.
33. Ibid, at para [92].

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controls, and provided two other remedies instead. First, a person having an interest in land affected by a plan provision that would render the interest in land incapable of reasonable use (without significant effects on the environment) can challenge the provision in a submission on the plan when it is proposed. Secondly, such a person is able to apply for a change to the plan, if it renders the interest in land incapable of reasonable use (without significant effects on the environment), and places an unfair burden on any person having such an interest.

The Court did not accept that it is necessarily unreasonable for a territorial authority to persist with such a zoning of private land in the face of the owner’s objection, particularly where the territorial authority asserts that other use of land would have significant adverse effects on the environment.³⁴ The Court held:³⁵

Section 85 contemplates an owner of an interest in land challenging a plan provision on the ground that it renders an interest in land incapable of reasonable use. On a reference derived from such a submission, the test to be inferred from section 85 is not whether the proposed zoning is unreasonable to the owner (a question of the owner’s private rights), but whether it serves the statutory purpose of promoting sustainable management of natural and physical resources (a question of public interest). The implication is that a provision that renders an interest in land incapable of reasonable use may not serve that purpose. But the focus is on the public interest, not the private property rights.

In this case, the private property rights of the owners have been recognised by the City Council to the extent of its requirement for designation of the land for a proposed nature reserve. That gives the owners the opportunity afforded by section 185 to have the City Council acquire the land.

Ultimately, however, the Court decided that the Open Space 1 zoning would render the land incapable of reasonable use and would place an unfair burden on the owner. The Council had not yet purchased the land, so the Court’s decision was made on the basis that it remained privately owned.

In a carefully constructed article, Professor Barry Barton discusses the principle enunciated in Hastings, that there should be no taking of private property for public purposes without compensation. Barton’s view is that, in New Zealand, this presumption cannot be advanced as strongly as it was a hundred years ago; neither can it be maintained to deprive a clearly worded

34. Ibid, at para [96].
35. Ibid, at paras [98]–[99].

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statute, such as the RMA, of its effect.³⁶ He argues that, in fact, it is legal, constitutional, principled and ethical to regulate the use of land.³⁷ He also makes the point that the right of public participation in the planning process, under Schedule 1 to the RMA, and the safeguards afforded by ss 32 and 85 provide an opportunity for those affected to express their views.³⁸

In summary, there are cases in which s 85 has been called in aid, and the Court has removed planning provisions which render land incapable of reasonable use. One such case is Steven v Christchurch City Council ³⁹ in which a heritage listing was in force affecting the appellant’s house. The only options realistically available for the house were renovation (at a cost of at least $300,000) or demolition. Demolition was not possible without a resource consent while the heritage listing was attached. The Court lifted the listing.

2.7 The RMA and the Property Law Act 2007 in the Context of Tree Removal/Protection

In considering the interrelationship between the Property Law Act 1952 and the RMA, Fisher J, sitting in the High Court, commented in New Zealand Suncern Construction Limited v Auckland City Council ⁴⁰ that the two jurisdictions concerning trees operate independently of one another. He said:⁴¹

It is therefore clear that the Planning Tribunal had no jurisdiction to make orders under section 129C of the Property Law Act. It had to decide resource consent applications relating to trees in accordance with the Resource Management Act and the applicable District Plans. The District Court had jurisdiction to make orders with some respect to the same trees but there was no conflict between the two jurisdictions. Both place upon an applicant the obligation of making a case for tree trimming or removal, failing which the status quo would continue. Either body could at any time, and for its own proper reasons, order or authorise trimming or removal. The fact that a case might not have been made up before one body would not interfere with the other’s freedom to approach the matter afresh. Since different criteria operate within each jurisdiction, a situation could not arise in which the decision of one would conflict with the decision of the other. The same comments apply, of course, to the consent authority itself.

36. Barton, B, “The Legitimacy of Regulation”, Resource Management Law Association Annual Conference, 12–15 September 2002, Queenstown, at 4.
37. Ibid, at 29.
38. Ibid, at 27.

39 [1998] NZEnvC 91; [1998] NZRMA 289.

40 [1997] NZRMA 419; (1997) 3 ELRNZ 230.

41 [1997] NZRMA 419, at 431.

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While the above refers to the Property Law Act 1952, it is expected that a similar approach will be adopted under the 2007 Act.⁴²

However, despite the discrete nature of the two jurisdictions, the District Court is not oblivious to the fact that a resource consent may be required for any removals or trimmings it orders.⁴³ A recent case illustrative of that is Woodworth v Milich.⁴⁴ There P & J Woodworth sought an order to remove trees or reduce the height of the trees on a neighbouring property that obstructed their view. The Court made an order in the Woodworths’ favour, requiring certain trees to be maintained at a certain height. It commented that the right of a property owner to create a native forest in a suburban area is not unfettered, and that the Woodworths were entitled to salvage the limited view that remained available to them once the trees had been trimmed. This order was made subject to the Waitakere City Council granting resource consent for the trimming and maintenance (if such a consent was required).

Beyond the foregoing, a reminder warrants signalling as to the proposed legislative change concerning the revocation of certain district plan rules governing tree protection.⁴⁵

2.8 Consent Notices and Covenants Imposed under the RMA

Section 221(1) of the RMA provides that where subdivision consent is granted subject to a condition to be complied with on a continuing basis, the consent authority shall issue a consent notice specifying the condition.

Section 221(4) RMA provides for the status of such notices, as follows:

(4) Every consent notice shall be deemed—

(a) To be an instrument creating an interest in the land within the meaning of section 62 of the Land Transfer Act 1952, and may be registered accordingly; and

(b) To be a covenant running with the land when registered under the Land Transfer Act 1952, and shall, notwithstanding anything to the contrary in section 105 of the Land Transfer Act 1952, bind all subsequent owners of the land.

42. Derek Nolan (ed), Environmental and Resource Management Law (looseleaf ed, LexisNexis), at para 6.35.
43. Section 8(4) of the Property Law Act 2007 reads: “If a provision of this Act is inconsistent with a provision in another enactment, the provision in the other enactment prevails.”
44. DC Waitakere CIV-2006-090-2669, 16 September 2008.
45. Clause 52 of the Resource Management (Simplifying and Streamlining) Amendment Bill (18-1) restricts the ability of Councils to write rules in plans protecting trees in an urban environment. If enacted, councils will no longer be able to write blanket rules protecting any tree on the basis of its size and species (for example), but will instead have to identify and list specific trees and groups of trees which are to be protected.

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A wide range of matters have been made the subject of consent notices. Matters such as ongoing obligations with respect to landscaping, or other conditions addressing amenity considerations, are common. Also relatively common are conditions restricting or completely curtailing the right of the owners of the land to apply for further subdivision. However, an owner can apply under s 221(3) at any time after the deposit of a survey plan to vary or cancel a condition specified in a consent notice. Such a review is subject to the sections of the RMA covering applications for resource consent and appeals.

Another approach involves the use of so-called “no complaints” covenants. These are often employed in situations where reverse sensitivity complaints could be made, such as where a developer wishes to create a “lifestyle” development, where smaller lots, generally to be used for residential purposes, will be created within a working farming landscape.⁴⁶ In practice, such covenants are invoked only if agreed to by the applicant concerned. On the other hand, by utilising the consent notice mechanism, a consent may be made subject to a condition imposed in a range of similar cases drawing attention to the surrounding environment for people choosing to move into a particular area. In an informative article directed to “no complaints” covenants,⁴⁷ D Nolan and K Gunnell observe that they are commonly used in reverse sensitivity cases. They can be imposed as conditions of consent (where agreement has been reached), and can also be created independently of resource consent processes, through property law mechanisms.⁴⁸ The authors consider that such covenants provide three key benefits: they notify potential purchasers that there is an existing effects-producing activity in the area; they can bind successors in title;

and they have the potential to be enforced.⁴⁹

3. TENSION BETWEEN PRIVATE OWNERSHIP AND PUBLIC EXPECTATION IN THE CONTEXT OF THE RMA

3.1 Esplanade Reserves, Strips and the “Queen’s Chain”

A notable area of tension between private ownership and wider public expectation involves access along coastlines and around rivers and lakes — bound up to large degree by uncertainties surrounding the “Queen’s Chain” and lack of adequate understanding of what is lawfully accessible in different

46. Ports of Auckland Limited v Auckland City Council and Others [1999] 1 NZLR 601, at 612. 47 Nolan, D and Gunnell, K, “Reverse Sensitivity and ‘No Complaints’ Covenants” (2007) 7

BRMB 50.

48. Ibid, at 54.
49. Ibid. Note at this stage the question of enforceability of such covenants appears not to have been specifically considered in any decided case.

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localities and on what basis without landowners’ permission. While marginal or esplanade strips and esplanade reserves are increasingly prevalent, (inasmuch as the Conservation Act 1987 and the RMA provide for reservation for access purposes to occur on the sale of land by the Crown, and on the subdivision of private land abutting the seashore, a lake or river), the countrywide pattern of public accessibility is quite uneven.

Significantly, recognising and providing for such public access is listed in the RMA as of national importance, along with other competing values relevant to the case. But as summarised in an article six years ago in terms still pertinent today:⁵⁰

Traditionally the general public has enjoyed largely unrestricted access to unalienated Crown land, the foreshore and seabed, and the areas colloquially described as the Queen’s Chain. Where large areas of rural land are privately owned, or are the subject of long term Crown leases and licences, access has generally been allowed or granted on request by the current owner or occupier. In more recent times, greater restrictions have been imposed on access to National Parks, reserves and other “conservation land” administered by the Department of Conservation. Similarly, access to private land is becoming more difficult as large areas of coastal and rural land are purchased by new owners unfamiliar with New Zealand traditions of access, and as a result of the perceived increasing liability of owners and occupiers to people who come onto their land under the Health and Safety in Employment Act 1992, the Occupiers’ Liability Act 1962, the Crimes Act 1961, ss 145 & 156, and the Forest and Rural Fires Act 1977.

In addition to these statutory measures, general principles of tort law including trespass, nuisance (including strict liability), and negligence will apply to persons coming on to another’s land, and also to the owner and occupier of land vis a vis other persons, whether on their land or not.

The decision whether to require the reservation of an esplanade reserve as opposed to creation of an esplanade strip on a subdivision giving rise to that under the RMA is important. If an esplanade reserve is required within the ambit of allowance under the Act, such a reserve is normally vested in and administered by the territorial authority; but if an esplanade strip is created it takes the form of a public easement. Title to the land remains with the landowner, with particular terms or restrictions able to be imported appropriate

50 Grinlinton, D, “Private Property Rights versus Public Access: The Foreshore and Seabed Debate” (2003) 7 NZJEL 313, at 319–320; see also Ministry of Agriculture and Forestry, Walking Access in the New Zealand Outdoors: A Report by the Land Access Ministerial Reference Group (11 August 2003) (“Land Access Report”), ch 3.

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to the occasion. Another factor is that in the latter instance the easement can be expressed to apply to its specified width inland of mean high water springs (“MHWS”) (wherever MHWS happens to be located at any point in time); whereas in the former case an esplanade reserve once vested may be subject to change through erosion (or accretion as the case may be).

In practice, coastline reserves vested in councils are physically maintained at variable levels. If the reserve is merely left in its “natural state” (whatever that state might be or gravitate to) it is by no means unknown for an adjacent landowner to maintain a personalised route through the reserve to the water and rest content that the reserve is otherwise unattractive for the public to traverse. Alternatively, if such reserves when created are in pasture for instance, there are instances of landowners choosing to maintain the areas themselves at standards intended to assist visual harmony with their properties. Presumably, most territorial authorities, even if not directly consulted, are disinclined to intervene so long as public accessibility remains fully assured.

If a council fails to maintain an adequate monitoring process for coastal reserve land vested in it, landowners may come to think with the effluxion of time that the land serves no useful public purpose and come to use it as though it were their own. An instance of that (in which I was engaged as counsel) occurred in the early 1980s when a territorial authority sought to construct a walkway along an attractive coastal cliff top connecting two of the East Coast bays of Auckland. The intended walkway fell within land held over many years by the Council as esplanade reserve. Adjacent landowners had come to use segments of the land for their own purposes, including private amenity landscaping and vegetable planting.

When the Council suddenly decided to implement the walkway, a group of affected residents sought and obtained an interim injunction in the High Court. Following the Court’s later reception of additional argument, the walkway was sanctioned to proceed, but with residual complaint on the Council’s part over “needless” legal procedure and attendant expense, cost to the public purse through stoppage of on-site works and general delay.⁵¹

In Scott and Others v Western Bay of Plenty District Council ⁵² a challenge was mounted over provisions in the respondent Council’s proposed plan relating to esplanade reserves and strips. The McLaren Falls area at the terminus of the Mangakerengorengo River is a very popular recreation area, while the Lower Kaimai Reserve and Ongaonga Scenic Reserve together constitute an important area available to the public upstream. The appellants raised various concerns about establishing a pedestrian link between these two recreation nodes that included overcrowding, vandalism, trespass, damage to neighbouring farms,

51 HC Auckland A1223/81, 24 May 1982.

52 Environment Court Auckland A70/2001, 3 August 2001.

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security, erosion, damage to river banks and people accessing adjacent farm areas for illegal activity such as growing cannabis. The Court took these concerns into account, but considered that the Council had undertaken sufficient investigation and research to warrant upholding the provisions of the plan as they related to the creation of esplanade strips upon subdivision of land along the banks of the river. It was held that at the subdivision stage matters relating to such things as erosion, protection of habitats and access problems could be identified and assessed, with steps introduced to avoid, remedy or mitigate adverse effects as need be. Hence, the general approach adopted by the Council with regard to esplanade strips and the river catchment in particular was considered reasonable and in accord with the RMA’s purpose.

The Court also commented:⁵³

From our experience, there are people within the community that believe all riverbeds are publicly owned and accessible by the public and that a “Queen’s chain” extends along all river banks.

Another case to mention is Harb Trading Limited v Rodney District Council,⁵⁴ illustrative of tension between public access via esplanade reserves and neighbouring property owners’ rights. The Council was the holder of an esplanade reserve adjacent to the foreshore. The reserve was the dominant tenement in relation to rights-of-way concerning 12 other properties. A carriageway had been formed to serve the properties concerned. An incorporated society represented nearly all the private property owners in the area. Members of the society had become concerned about an increase in the number of people using the carriageway to obtain access to the reserve. Declarations were sought against the Council in the High Court for the purpose of limiting the nature and extent of public entitlement to use the rights-of-way. The Court held that members of the public at large were legally entitled to visit the reserve and for that purpose were entitled to use the right-of-way to gain access.

3.2 Private Interest in Farming v Public Interest in Maintenance of Biodiversity

In The Royal Forest and Bird Protection Society Incorporated and Others v The Central Otago District Council ⁵⁵ the appellants appealed to the Environment Court over the Council’s proposed plan. The appeals raised as their central focus of concern the question of aptly providing, in the context of the RMA,

53 Ibid, at para [26].

54 [2002] NZHC 145; [2002] 2 NZLR 800.

55 Environment Court Auckland A128/04, 23 September 2004.

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for the indigenous biodiversity and significant indigenous vegetation of the Central Otago district. The issue caused tension between the farming interests of landowners and the interests of conservation groups. The Court concluded that a general rule of protection should be incorporated into the plan as a method to assist in meeting the intent of s 6(c) in combination with voluntary mechanisms, the tenure review process, and an incomplete schedule of specific sites warranting protection. The Council acknowledged that it was in no position suitably to update the schedule for at least five years, thus leading the Court to conclude that the general rule was necessary in the meantime.⁵⁶

In Director-General of Conservation v Wairoa District Council ⁵⁷ a private entity called the Bayly Trust applied to clear 354 ha of kanuka forest, to be replaced by high-quality pasture for stock grazing. As compensation, the Trust proposed to fence off and covenant areas totalling 799 ha. The 3500-ha property the subject of the application had been farmed at varying levels of intensity in the past, but over the past 60 years considerable areas had reverted to kanuka and other scrub and scrublands. Not all had been lost to pastoral use, as part of the stock-grazing programme involved putting stock into paddocks to undergraze such pasture as did grow among the kanuka and other vegetation. The District and Regional Councils supported the applicant’s proposed application and compensation plan, and while acknowledging the importance of biodiversity and the protection of indigenous vegetation, also wished to ensure a healthy balance between those factors and the ability of farmers to improve the productive capacity of their properties. The Director-General of Conservation’s position was largely driven by the statutory role given his department by the terms of the Conservation Act 1987. DoC considered that the clearance would cause further loss of an already depleted biodiversity resource.

The Environment Court commented on the nature of the conflict thus:⁵⁸

So, we have a choice of considering retaining all the existing kanuka in its presently somewhat degraded and partly dysfunctional state, against letting 354ha be cleared, but simultaneously having 799ha of presently somewhat second-rate areas fenced, protected from undergrazing by stock, and subject to a pest control programme. We think Mr Lawson was right in suggesting that the DOC position seems to assume that if the resource consent is refused, all of the kanuka will somehow have an enhanced level of protection. That

56. Conversely, in Minister of Conservation and anor v Western Bay of Plenty District Council, Environment Court A71/2001, 3 August 2001, the Environment Court found that the Council had carried out significant investigation and research, with a schedule of significant areas of indigenous vegetation and fauna habitats in prospect under its proposed plan, without the need for a general rule as an additional control measure.
57. Environment Court Wellington W081/07, 19 September 2007.
58. Ibid, at para [52].

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obviously will not be so. There is no economic rationale for a farmer to retire such a substantial area from all pastoral use without a sufficient trade off. It is clear that if the resource consent is refused, the undergrazing of the kanuka will continue at least at its present level.

The Court ultimately decided that the proposal achieved a sound and sustainable balance between enhancing the productive capacity of the property, and enhancing the quality of its remaining indigenous vegetation as a source of biodiversity and fauna habitat. Consent was upheld.

3.3 Conflict between the Protection of Cultural Values under the RMA v Private Ownership Interests

The leading case on Maori values and their recognition under the RMA is McGuire v Hastings District Council,⁵⁹ where Lord Cooke of Thorndon, delivering the judgment of the Privy Council, emphasised the strong legislative directive to pay meaningful heed to such values. Reference was made to the collective effect of relevant RMA provisions contained in s 6 (matters of national importance to be recognised and provided for), also in s 7 (matters to which particular regard is to be had), and in s 8 (principles of the Treaty of Waitangi to be taken into account).

Given the holistic view that Maori have of the environment, clashes have inevitably occurred in a multitude of RMA cases between private property owners’ aspirations and Maori interests. Examples abound of vigorous challenges to proposals for subdivision, use and development of individual sites by local iwi and hapu, concerned at perceived desecration of hallowed ancestral lands. On occasion, a property in contention has effectively emerged as a “last bastion” amidst surrounding development beyond recall. In such a case, the importance of the site may become elevated in cultural and spiritual terms in an effort to maintain some semblance of cultural recognition within the wider area (as it once was).

In Ngati Maru ki Hauraki v Kruithof,⁶⁰ for instance, Ngati Maru argued that the resource consent obtained by Mr Kruithof for the proposed development of his land was granted without notification to them in circumstances where the Council ought to have known that their interests were engaged. Ngati Maru was concerned with the non-notification as they were in a position where they had seen the urbanisation of Thames encroach on ancestral land; and Mr Wiremu Nicholls, a senior kaumatua, deposed that Mr Kruithof ’s land was located

59 [2001] UKPC 43; [2001] NZRMA 557; [2002] 2NZLR 577; [2001] UKPC 43; 8 ELRNZ 14.

60 [2005] NZRMA 1 (HC).

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within an area of the former Pukerahui pa which was of special significance by reason of its being adjacent to the Hape Stream (a sacred waterway).

Mr Kruithof, too, was aggrieved, as the principal objection of Ngati Maru concerned excavation, and the transitional plan and proposed district plan permitted substantial earthworks of unlimited depth as of right.

Baragwanath J considered s 8 of the RMA and commented:⁶¹

It is time to recognise that the Treaty did not contemplate a society divided on race lines between two groups of ordinary citizens — Maori and non-Maori, set against each other in opposing camps.

He continued:⁶²

Because the Treaty itself picked up the need to apply British justice in New Zealand it follows that any construction of the Resource Management Act that will work injustice to non-Maori is as likely to infringe the principles of the Treaty as injustice to Maori. Here we are faced with a collision between long- term injury to the historic interests of Ngati Maru and the immediate personal interests of Mr Kruithof who has been subjected to obviously heavy expense and distress for an unconscionable time.

And:⁶³

There is nothing unusual about a conflict between two important public interests

— that of Ngati Maru to recognition of their relationship and their culture and traditions with ancestral lands, recognised by s 6(e) and other provisions of the RMA, and that of Mr Kruithof in simple and timely justice which no less fundamental principle requires shall be neither “denied or deferred”.

Since each of the competing interests was recognised by the Treaty it was held to be not enough simply to assert as a generality either “Maori Treaty claim to taonga” or “British subject’s (now New Zealand citizen’s) claim to justice”. Where Treaty interests are in issue a Court must examine closely the justice of the case, which may include the efforts made to secure a fair result that is proportionate to the competing interests. In the Kruithof instance, the outcome was determined in his favour given the history of the case, including consent granted to him at an earlier stage which had lapsed.⁶⁴

61. Ibid, at para [48].
62. Ibid, at para [52].
63. Ibid, at para [53].
64. See Taipari and ors v NZ Historic Places Trust and Kruithof, Environment Court Auckland A102/97, 27 August 1997.

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A difficulty of comparatively general nature, and hence more often encountered in cases where Maori values are in issue, involves consideration both of traditional concepts and beliefs and more recent constructs bearing on sacredness, sometimes centred on claims of wahi tapu extending over considerable areas. While respecting the forceful reminder in McGuire,⁶⁵ the need is always present carefully to analyse and assess the merits of each case, including the persuasiveness of the evidence directed to Maori issues.

4. CONCLUSION

Tension is oft reported between the RMA’s management system and private property rights, and the cases I have discussed demonstrate specific examples of where this type of tension exists and may arise. However, despite this, I firmly believe the resource management system and property rights ought not to be treated or interpreted as competing in ways liable to undermine one or the other. Where necessary to achieve the aim of sustainable management, the RMA may be taken to have replaced common law rights of property. However, despite public perception in some quarters, the RMA does not always reduce or replace rights — a landowner may be able to obtain greater rights under the RMA than available under the common law — for example, rights to water.⁶⁶ The landowner may also obtain relief from a consent authority (or the Environment Court on appeal) that is more straightforwardly obtainable than by a common law action.

It would be hard to find anyone today who would argue that there should be no control of the use of land for the purposes of sustainably managing scarce resources for the present as well as for the future. Whether a person or group considers that the RMA achieves this aim without inappropriate erosion of private property rights depends on their perspective.

The examples to which I have referred demonstrate that a concerted effort has been made on a wide front to foster integration or consistency between the two. This process — which often involves balancing and weighing objectives of environmental sustainability and preservation of private property rights — is aimed at ensuring that environmental sustainability of natural and physical resources is better promoted in accordance with the RMA’s single purpose, while looking for solutions or approaches that avoid the RMA and the common law being seen in irreconcilable conflict. In short, one must respect the other and tensions between the two should be avoided wherever possible.

65 [2001] UKPC 43; [2001] NZRMA 557; [2002] 2 NZLR 577; 8 ELRNZ 14.

66 Barton, supra note 36, at 28.