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Coastal land development

Case law

Note the following cases all occurred prior to the RMA Amendment Act 2009 but are still considered to be relevant.

Defining the coastal environment

Northland Regional Planning Authority v Whangarei County [1977] A4828 (TCPAB)

This case relates to an appeal over the zoning of a large area of land adjacent to the coast and the extent to which that land is within the coastal environment. In the decision, the Town and Country Appeal Board states that the coastal land is all land between the foreshore and the dominant ridge behind the foreshore.

Northland Regional Planning Authority v Whangarei County Council [1976] A63/76

The term coastal environment was first defined in this case where the Court held the "coastal environment is an environment in which the coast is a significant element or part" and noted that there will be difficulties applying this in different environments "what constitutes the coastal environment will vary from place to place and according to the position from which a place is viewed. Where there are hills behind the coast, it will generally extend to up to the dominant ridge behind the coast. But where the land behind the coast is generally flat, there may be great difficulty in defining the coastal environment".

Coutanche v Rodney DC [1993] W94/93

This case relates to an appeal seeking Rural Residential zoning on part of a peninsula covered by a Coastal Landscape Protection Zone. The Court considers in this case how far the coastal environment can extend inland, discussing whether rural provisions or rural residential subdivision should also be included in the Rural Conservation 3 (Coastal Landscape Protection) Zone. The Court considers that the coastal environment in this area is a "complex and fragile environment comprising inland lakes, inland dunes, and a significant wetland area all contiguous with, or close to, the actual coastline…there are many inland and seaward views obtainable which encompass and include this whole complex and diverse ecological and environmental system which I hold to be part of the natural coastal environment."

Wilkinson vs. Hurunui [2000] C50 /00

This appeal is by two adjacent farm owners who sought to remove the "outstanding landscape areas" zoning from their land. In this case, the Court states "It is also obvious that the area at the mouth of the river is part of the coastal environment. The coastal environment is generally accepted as extending to the crest of the nearest skyline." The Court then goes on to conclude that the outstanding landscape zoning should not be removed because these parts of the properties are in the coastal environment or contain important native forest.

Canterbury Regional Council v Waimakariri District Council [2002] C5/02

During this case the Court considered what was included in "the coastal environment". The Court determined that the subject land was not part of the coastal environment as the limit of the coastal environment was the end of the sand dunes.

Meridian Energy et al v Wellington City Council and Wellington Regional Council [2007] W031/07

This appeal relates to the granting of consent for the construction and establishment of 70 wind turbines. The decision contains criteria for assessing natural character, assessing impacts on coastal landscapes and also references difference methods for defining what comprises the coastal environment (see for example paragraphs 158-165 and 403).

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Natural character of the coastal environment

Harrison vs. Tasman District Council [1993] W42/93

This appeal relates to the decision by Tasman District Council to consent the continued development and operation of a refuse transfer station facility, located on the banks of an estuary. In regards to the estuary, the Court states that "the word "natural" does not necessarily equate with the word "pristine" except insofar as landscape in its pristine state is probably rarer and of more value than landscape in a natural state. The word "natural" is a word indicating a product of nature and can include such things as pasture, exotic tree species (pine), wildlife both wild and domestic and many other things of that ilk as opposed to man-made structures, roads, machinery etc."  The Court allowed the appeals and the decision of the council was cancelled.

Pigeon Bay Aquaculture Ltd and others v Canterbury Regional Council [1999] C32/99

This decision concerned applications to enable two marine farms to be placed and operated in Pigeon Bay, Banks Peninsular. The regional council granted consent for one farm and refused consent for the second. The applicant appealed against the refusal of consent and submitters appealed against the grant of consent. The issue considered by the Court was how to protect the peninsular from inappropriate use and development, the preservation of natural character and the impact on the local character of Pigeon Bay and the landscape overall.

The Court found the following factors were important when assessing the significance of a landscape:

All these factors carry a high level of subjective interpretation. When assessing the aesthetic response to a landscape, the Court felt it necessary to distinguish between a subjective aesthetic assessment and a less subjective (but by no means value free) assessment of the 'naturalness ' of the landscape. 'Natural character ' goes not only to the matter of tasteful subjective judgement but to a recognition of the dominant landform patterns, the presence of buildings or jarring colours, and a unencumbered land/se interface. Nor does the work natural necessarily equate to pristine except in so far as a landscape in a pristine state is probably rarer and more values than a landscape in a natural state.

The Court held that Pigeon Bay possessed a highly natural character in a working landscape and the natural character had not been compromised. The Court granted both consent as it considered the adverse effects of the proposal are very minor, however a lifetime of 15 years was imposed to mitigate against these minor adverse effects.

Auckland Regional Council v Arrigato Investments Ltd [1999] A115/99

This Environment Court decision was subject to appeals to the High Court and the Court of Appeal, with the latter upholding the Environment Court 's decision. The case was an appeal against the refusal of subdivision consent for coastal land into rural-residential lots. The Court considered that pastoral "development" in the context of the land and seascape in question, was a significant degradation of a previous pristine environment. The Court then found that because the land had been considerably modified by human habitation and was therefore no longer in its pristine state did not necessarily deny it a natural character. The Court found that while the landscape had a unique and attractive natural quality, that its intrinsic beauty had already been severely diminished by human habitation, and was not "outstanding".

The Court also found that the proposal respected Maori spiritual and cultural values. There were no wahi tapu likely to be affected. The Court also specifically considered the positive effects arising from the proposal, finding that the revegetation proposed would enhance the already degraded landscape, which was prone to erosion, slipping and contaminated runoff. The proposed landscape restoration would protect and restore ecosystems and natural heritage resources and the restoration and rehabilitation of the coastal environment.

Titahi Bay Residents Association Incorporated and Graeme A Ebbet v The Wellington Regional Council [2000] W6/00

This case explored the issue of the extent of the area where vehicles may park on the beach at Titahi Bay. The case examined the environmental effects of parking on the beach, traffic flows, safety of beach users, security of cars, alternative parking availability, and beach amenity. The Court decided that the presence of cars on the beach was not conducive to the preservation of natural character of the coastal environment and that it was appropriate for vehicle access on the beach to be restricted.

WC Kalkman and VP Kalkman v Thames-Coromandel District Council [2002] A152/02

This was an appeal by residential property owners against a decision of the Thames Coromandel District Council to grant resource consent for the non-complying activity of an adjoining property as a travellers ' accommodation facility. The appellants claimed that the proposed facility would "degrade the pleasantness of the location for them" and relied on the effects on the environment to support their case. The Council had granted consent subject to conditions. A revised set of conditions, amended to address the appellants ' concerns, were presented at the appeal hearing. The appellants contended that some of the conditions were unrealistic. These conditions were in relation to mitigation of visual impact and view corridor to the coastal marine area. The appellants argued these were unreasonable due to the siting and layout of the proposed facility.

The Court allowed the appeal, determining that consent could not be granted as neither of the conditions required to consent a non-complying proposal had been met. Further, the Court determined that regardless of the matter of non-compliance, the proposal failed to provide, as a matter of national importance, for the preservation of the natural character of the coastal environment, and protection from inappropriate development.

Eyres Eco-Park Limited v Rodney District Council [2004] A147/04

This case was an appeal by the applicant against the decision to decline consent for the subdivision and use of land for an eco-tourist lodge venture adjacent to a prominent headland on the north east coast of Rodney district. The case considered especially the effects on the environment including the natural character of the coastal environment. The court made an interim decision that consent should not be granted at least until some missing details of the consent application were filled. These details were mainly in terms of effects on the environment.

Paihia and District Citizens Association and Paihia Residents and Ratepayers Association v Far North District Council [2006] A152/06

This appeal was with regard to a consent that had been granted for a 15-storey, 94-apartment building to be located along the waterfront in Paihia. The application proposed that the building would partly operate as a multi-storey serviced holiday apartment complex. The proposal was twice reduced during preparation for appeal, ultimately resulting in a proposal for a 13-storey complex with 76 apartments. The proposal was deemed to be a non-complying activity.

The case considered whether the proposal was contrary to the objectives and policies of the Revised Proposed District Plan and whether the effects on the environment would be more than minor. Opposition from Maori parties focused on the sewerage infrastructure and the adverse effects on cultural values relating to the coastal environment.

The Court determined that the proposal did not meet the requirements of consenting a non-complying activity and therefore there was no jurisdiction to grant consent. Regardless, as a matter of completeness, the Court also determined that consent would not have been granted as the adverse effects on the environment would be more than minor; and that the proposal was in conflict with the New Zealand Coastal Policy Statement and the Northland Regional Policy Statement, as well as inconsistent with the objectives and policies of the Transitional and Revised Proposed District Plan. Further to this the Court found the proposal did not satisfy RMA Section 6 Matters of National Importance in terms of the preservation of the natural character of the coastal environment. The Court upheld the appeal and cancelled the Council's decision to grant consent.

Meridian Energy and others  v Wellington City Council and Wellington Regional Council [2007] W031/07

This appeal relates to the granting of consent to the construction and establishment of 70 wind turbines. The Court decision contains criteria for assessing natural character and also references different methods for defining what comprises the coastal environment. The Court also discusses Policy 1.1.1 of the NZCPS, which seeks to encourage…appropriate…use or development. The Court finds that what is appropriate is a value judgement, to be arrived at by weighing the values of the particular coastal environment with the positive and adverse effects that can be foreseen from the proposal. The Court found overall that, subject to the removal of four turbines, and together with other offered mitigation measures, that the sustainable measurement of the natural and physical resource would be achieved.

Also refer to Natural Character: Concept Development in New Zealand Law and Planning for a good discussion on the development of natural character as a concept including case law.

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Coastal landscapes

Stillwater Ratepayers and Residents Association and Auckland Regional Council v Rodney District Council [1997] C48/97

The Court considered the proposed rezoning of 9.6ha of coastal land in the Rodney District. In determining whether this rezoning was appropriate, along with other statutory tests, the consistency of the proposed plan change with the New Zealand Coastal Policy Statement was given particular consideration. The Court determined that the proposed plan change was inconsistent with the NZCPS especially in terms of the defined national priorities. In particular, the proposed plan change was found not to be consistent with the protection of significant indigenous vegetation and significant habitats as it was likely to have an adverse effect on the habitat of the New Zealand dotterel. It was also found that the proposal was not consistent with the protection of the landscapes, seascapes and landforms, which is also a matter of national priority under the NZCPS.

Auckland Regional Council v Arrigato Investments Ltd [1999] A115/99

This Environment Court decision was subject to appeals to the High Court and the Court of Appeal, with the latter upholding the Environment Court 's decision. The case was an appeal against the refusal of subdivision consent for coastal land into rural-residential lots. The Court considered that pastoral "development" in the context of the land and seascape in question, was a significant degradation of a previous pristine environment. The Court then found that the fact that the land had been considerably modified by human habitation and was therefore no longer in its pristine state did not necessarily deny it a natural character.

The Court found that while the landscape had a unique and attractive natural quality, that its intrinsic beauty had already been severely diminished by human habitation, and was not "outstanding". The Court also found that the proposal respected Maori spiritual and cultural values. There were no wahi tapu likely to be affected. The Court also specifically considered the positive effects arising from the proposal, finding that the revegetation proposed would enhance the already degraded landscape, which was prone to erosion, slipping and contaminated runoff. The proposed landscape restoration would protect and restore ecosystems and natural heritage resources and the restoration and rehabilitation of the coastal environment.

Wakitipu Environmental Society and others v Queenstown-Lakes District Council [2000] NZRMA59/00

Although not related to coastal landscapes, in this decision the Court made a number of useful findings on the classification, assessment and protection of landscape. The case related to appeals on the adequacy of Queenstown-Lakes District Proposed Plan to protect landscapes. The Court found the criteria for assessing landscapes includes:

The Court also concluded that 'outstanding ' in section 6(b) of the RMA means "conspicuous, eminent, especially because of excellence and remarkable in '. A landscape may be magnificent without being outstanding and usually an outstanding landscape should be obvious (in general terms) that there is no need for expert analysis. Less significant landscapes are also protection under section 7 of the RMA however that section doe not necessarily protect the status quo. The Court also found that the 'naturalness ' of landscape under section 6(b) can be judged using the following criteria:

The absence or compromised presence of one or more of these criteria does not mean that the landscape is non-natural, just that it is less natural.

Gannet Beach Adventures Limited v Hastings District Council [2004] W090/04

This was an appeal against the Council's decision to grant consent to the construction and operation of a high-end tourist lodge on Cape Kidnappers. The proposed lodge was to be located on a prominent cliff-top location sitting above a significant gannet colony. The site was identified as an Outstanding Natural Feature in the district plan. The Court concluded that while the proposal was of a good design, no amount of mitigation would prevent the development from having more than a minor adverse effect on the surrounding environment. The Court found that the Cape was a unique, iconic landscape with intense amenity values. The Court also noted that the real issue was the visibility of significant structures and associated activities in the otherwise natural character of the coastal frontage. They found that the development was inappropriate in terms of ss6 (a) and 6(b) of the RMA.

Meridian Energy and others v Wellington City Council and Wellington Regional Council [2007] W031/07

This appeal relates to the granting of consent to the construction and establishment of 70 wind turbines. The decision contains criteria for assessing natural character, assessing impacts on coastal landscapes and also references different methods for defining what comprises the coastal environment. The Court also discusses Policy 1.1.1 of the NZCPS, which seeks to encourage…appropriate…use or development. The Court finds that what is appropriate is a value judgement, to be arrived at by weighing the values of the particular coastal environment with the positive and adverse effects that can be foreseen from the proposal. The Court found overall that, subject to the removal of four turbines, and together with other offered mitigation measures, that the sustainable measurement of the natural and physical resource would be achieved.

Also refer to the Landscapes Guidance Note.

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Coastal biodiversity

Stillwater Ratepayers and Residents Association and Auckland Regional Council v Rodney District Council [1997] C48/97

The Court considered the proposed rezoning of 9.6ha of coastal land in the Rodney District. In determining whether this rezoning was appropriate, along with other statutory tests, the consistency of the proposed plan change with the New Zealand Coastal Policy Statement was given particular consideration. The Court determined that the proposed plan change was inconsistent with the NZCPS especially in terms of the defined national priorities. In particular, the proposed plan change was found not to be consistent with the protection of significant indigenous vegetation and significant habitats as it was likely to have an adverse effect on the habitat of the New Zealand dotterel. It was also found that the proposal was not consistent with the protection of the landscapes, seascapes and landforms, which is also a matter of national priority under the NZCPS.

Auckland Regional Council v Arrigato Investments Ltd [1999] A115/99

This Environment Court decision was subject to appeals to the High Court and the Court of Appeal, with the latter upholding the Environment Court 's decision. The case was an appeal against the refusal of subdivision consent for coastal land into rural-residential lots. The Court considered that pastoral "development" in the context of the land and seascape in question, was a significant degradation of a previous pristine environment, but that the fact that the land had been considerably modified by human habitation and was therefore no longer in its pristine state did not necessarily deny it a natural character. The Court found that while the landscape had a unique and attractive natural quality, that its intrinsic beauty had already been severely diminished by human habitation, and was not "outstanding". The Court also found that the proposal respected Maori spiritual and cultural values. There were no wahi tapu likely to be affected. The Court also specifically considered the positive effects arising from the proposal, finding that the revegetation proposed would enhance the already degraded landscape, which was prone to erosion, slipping and contaminated runoff. The proposed landscape restoration would protect and restore ecosystems and natural heritage resources and the restoration and rehabilitation of the coastal environment.

Also refer to the Indigenous Biodiversity Guidance Note.

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Public access

Titahi Bay Residents Association Incorporated and Graeme A Ebbet v The Wellington Regional Council [2000] W6/00

This case explored the issue of the extent of the area where vehicles may park on the beach at Titahi Bay. The case examined the environmental effects of parking on the beach, traffic flows, safety of beach users, security of cars, alternative parking availability, and beach amenity. The Court decided that the presence of cars on the beach was not conducive to the preservation of natural character of the coastal environment and that it was appropriate for vehicle access on the beach to be restricted.

Auckland Regional Council declaration [2001] A024/01

This declaration relates to the rights of the holders of coastal permits, as defined in s87(c) RMA, in respect to jetties in the coastal marine area. The Environment Court declared that "except to the extent that it expressly provides otherwise, a coastal permit that authorises the consent holder to occupy part of the coastal marine area with a structure, namely a jetty, gives to the consent holder an exclusive right to occupy the space being part of the coastal marine area occupied by the physical structure (ie, piles, decking etc) but does not authorise the consent holder to exclude members of the public with or without transport from using the unoccupied space under, beside and above the jetty including the surface of the jetty and other parts of the structure that is within the coastal marine area for the purpose of providing public access to, from, and along the foreshore of the coastal marine area".

Herc Ross Coleman v Rodney District Council [2005] A122/05

This appeal considered a resource consent condition that restricts public access to a wharf. A consent condition was added to the consent stating that the use of the jetty was solely for the licence holder. This condition was later amended to only restrict persons who were exhibiting 'unruly behaviour ', a condition that is a prohibition under the Foreshore and Seabed Act 2004. The Court considered parts of this condition. It was decided that the condition should be maintained other than a clause that restricted the use of the wharf by vessels or aircraft. The Court determined that this clause should be amended to apply only to those intending to disembark or embark a vessel or aircraft for which the wharf is structurally unsafe.

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Special relationship of tangata whenua with the coastal environment

Te Runanga o Taumarere, Chellwood Oysters Limited & Kororareka Oysters Limited and N Harrington and others v The Northland Regional Council [1995] A108/95

The decision allowed the appeal against the decision to grant consent for a proposed sewage collection, treatment and disposal system. The decision was appealed on the basis of a lack of consideration of alternative methods and the cultural values affected by the discharge of wastes to water. The decision states, "It is not a question of inadequate treatment of the sewage by the proposed method. Exposure of kaimoana to water that has been associated with human wastes, no matter how highly treated would render the shellfish unsuitable for cultural use by the tangata whenua". The Court made an interim decision that there needed to be further investigation of alternative treatment options such as a discharge of effluent to boreholes.

Auckland Regional Council v Arrigato Investments Ltd [1999] A115/99

This Environment Court decision was subject to appeals to the High Court and the Court of Appeal, with the latter upholding the Environment Court 's decision. The case was an appeal against the refusal of subdivision consent for coastal land into rural-residential lots. The Court considered that pastoral "development" in the context of the land and seascape in question, was a significant degradation of a previous pristine environment, but that the fact that the land had been considerably modified by human habitation and was therefore no longer in its pristine state did not necessarily deny it a natural character. The Court found that while the landscape had a unique and attractive natural quality, that its intrinsic beauty had already been severely diminished by human habitation, and was not "outstanding". The Court also found that the proposal respected Maori spiritual and cultural values. There were no wahi tapu likely to be affected. The Court also specifically considered the positive effects arising from the proposal, finding that the revegetation proposed would enhance the already degraded landscape, which was prone to erosion, slipping and contaminated runoff. The proposed landscape restoration would protect and restore ecosystems and natural heritage resources and the restoration and rehabilitation of the coastal environment.

Tainui Hapu and others v The Waikato Regional Council [2004] A063/04

The Court examined the duration of a coastal discharge permit for sewage in relation to tangata whenua values. The Court supported the Council's decision that there would be no significant actual or potential effects on the environment of allowing the proposed discharge of treated effluent in accordance with the proposed conditions.

Paihia and District Citizens Association and Paihia Residents and Ratepayers Association v Far North District Council [2006] A152/06

This appeal was with regard to a consent that had been granted for a 15-storey, 94-apartment building to be located along the waterfront in Paihia. The application proposed that the building would partly operate as a multi-storey serviced holiday apartment complex. The proposal was twice reduced during preparation for appeal, ultimately resulting in a proposal for a 13-storey complex with 76 apartments. The proposal was deemed to be a non-complying activity.

The case considered whether the proposal was contrary to the objectives and policies of the Revised Proposed District Plan and whether the effects on the environment would be more than minor. Opposition from Maori parties focused on the sewerage infrastructure and the adverse effects on cultural values relating to the coastal environment.

The Court determined that that the proposal did not meet the requirements of consenting a non-complying activity and therefore there was not jurisdiction to grant consent. Regardless, as a matter of completeness the Court also determined that consent would not have been granted as the adverse effects on the environment would be more than minor; and that the proposal was in conflict with the New Zealand Coastal Policy Statement and the Northland Regional Policy Statement, as well as inconsistent with the objectives and policies of the Transitional and Revised Proposed District Plan. Further to this the Court found the proposal did not satisfy RMA Section 6 Matters of National Importance in terms of the preservation of the natural character of the coastal environment. The Court upheld the appeal and overturned the Council's decision to grant consent.

Also refer to the Consultation with tangata whenua guidance note

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Occupation of space and competition

Titahi Bay Residents Association Incorporated and Graeme A Ebbet v The Wellington Regional Council [2000] W6/00

This case explored the issue of the extent of the area where vehicles may park on the beach at Titahi Bay. The case examined the environmental effects of parking on the beach, traffic flows, safety of beach users, security of cars, alternative parking availability, and beach amenity. The Court decided that the presence of cars on the beach was not conducive to the preservation of natural character of the coastal environment and that it was appropriate for vehicle access on the beach to be restricted.

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Water quality

Tainui Hapu and others v The Waikato Regional Council [2004] A063/04
The Court examined the duration of a coastal discharge permit for sewerage in relation to tangata whenua values. The Court supported the Council's decision that there would be no significant, actual, or potential effects on the environment by allowing the proposed discharge of treated effluent in accordance with the proposed conditions.

Also refer to the Surface Water Quality guidance note and the Earthworks guidance note.

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Coastal hazards

Falkner and others v Gisborne District Council and the Minister of Conservation [1995] AP1/95

This High Court appeal related to an earlier Planning Tribunal decision regarding the responsibilities of the council or the Crown for the protection of coastal development from erosion. The appellants argued that there is a common law duty incumbent on the Crown to preserve the realm from the inroads of the sea and that frontages have a common law right to protect their properties from the sea. The High Court found that any common law duty on the Crown or the council to protect the coastline is not an absolute duty in the sense alleged by the appellants. The Court also stated that it is questionable whether the common law today would recognise the right of property owners to protect their land to the extent that the appellants require, given that it is no longer taken for granted that the natural process of erosion is necessarily an evil or mischief to be avoided wherever possible. The appeal was dismissed.

Foreworld Developments Limited v Napier City Council [2005] W008/05

This was a decision on appeals relating to the City of Napier 's Proposed District Plan. The appeals related to the provision of infrastructure in a particular area of the city. The appellants argued that the council was obliged to provide full suburban standards for infrastructure, while the Council's position was that such services would be allocated in accordance with priority need. The Court agreed with the Council's position, particularly noting that there were more issues than just infrastructure to be considered before applying more intensive zoning. Particular mention was made that issues of coastal erosion or flooding hazard might be relevant considerations in achieving the Council's responsibilities for integrated management.

Note: Also refer to the Natural Hazards Guidance Note (under development) and the Coastal Hazards and Climate Change Manual (Appendix Two).

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NOTE: This guidance note was prepared prior to the NZCPS 2010 taking effect. Care should be exercised in reading and using the information contained within this guidance note.