DMS-#375980-v1-minutes hearings committee 3 and 4 … and Decision... · Report of the HEARINGS...

PALMERSTON NORTH CITY COUNCIL

Report of the

HEARINGS COMMITTEE MEETING HELD IN THE COUNCIL CHAMBER, CIVIC ADMINISTRATION BUILDING, PALMERSTON NORTH ON THURSDAY 3 DECEMBER 2009, COMMENCING AT 9.30AM, FRIDAY 4 DECEMBER 2009, COMMENCING AT 9.30AM, AND IN THE MISSOULA MEETING ROOM ON THURSDAY 17 DECEMBER 2009, COMMENCING AT 9.30PM, AND THURSDAY 28 JANUARY 2010 COMMENCING AT 9.00AM.

Members Present:

Councillors Gordon Cruden (in the Chair), Lew Findlay and Annette Nixon.

(NOTES: (i) The meeting adjourned at 11.12am and resumed again at 11.37am. The meeting adjourned again at 12.55pm and resumed at 2.03pm.

(ii) The meeting adjourned at 3.25pm and resumed again at

4.46pm. The meeting adjourned again at 5.30pm and resumed again at 9.30am on Friday 4 December 2009.

(iii) The meeting adjourned again at 10.53am and resumed

again at 11.34am. The meeting adjourned at 11.46am and resumed at 11.53am in that part of the meeting held with public excluded.

(iv) The meeting adjourned at 12.00noon and resumed again

at 9.30am on Thursday 17 December 2009. The meeting adjourned again at 1.00pm and resumed again at 9.00am on Thursday 28 January 2010.

(v) The Committee resolved to exclude the public to allow a

decision to be made for the reason that the decision was subject to a right of appeal under the Local Government Official Information and Meetings Act 1987 section 48(2)(a)(i). The decision was released to the public and is recorded in the public part of the proceedings.)

47-09 Hearing of Application for a Resource Consent and Land

Use Consents Under Section 93(2) of the Resource Management Act 1991 for a Proposed Subdivision at 7 Whisky Way, Palmerston North

The Committee considered:

(i) Application from Kevin O’Connor & Associates Ltd on behalf of Mr Peter Butler.

(ii) Pre-circulated Statement by the Applicant including

appendices and Statement of Evidence including

Hearings Committee, 3, 4 and 17 December 2009 and 28 January 2010 DMS-#375980

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appendices from Kevin O’Connor and Associates Limited on behalf of Mr Peter Butler.

(iii) Report, dated 18 November 2009 and entitled “”Notified

Resource Consent for the Subdivision of Lot 1 DP 72719 and Landuse Consent to Establish Buildings on a Rural Site that does not meet the Minimum Site Size and for Access Non-Compliances”, by the Planning Officer, Mr Andrew Bashford.

(iv) Written submissions attached to the Order Paper. (v) Statement of Evidence, dated 2 December 2009, from

the Resource and Environmental Planner, Ms Rachelle Voice, Kevin O’Connor and Associates Ltd together with a letter, dated 2 December 2009 from Mr Stephen Pinkney, Registered Engineer, Kevin O’Connor and Associates Ltd – tabled.

(vi) Pre-circulated Statement of Evidence, 27 November

2009, from the Landscape Architect for the Applicant, Mr Richard Mayer.

(vii) Document entitled “Submissions on behalf of a

Moonshine Valley Residents Group – On an Application to Subdivide 7 Whisky Way, Moonshine Valley, Palmerston North - Palmerston North City Council 3 December 2009” – complied by Mr John Matthews Counsel for the following Submitters: - Rosemary Gear - Dr Anthony Gear - Brett Guthrie - Ruth Hodgson - Ray Stevens - Brendan Pollard - Professor Barry Scott

(viii) Pre-circulated Statement of Evidence, 24 November

2009, from Senior Lecturer in Soil and Earth Sciences, Massey University for the Submitters, Dr Alan Palmer.

(ix) Document entitled “Supplementary Evidence of

Dr Anthony James Gear in Response to late Evidence of Mr Richard Mayer” – tabled.

(x) Document entitled “Supplementary Evidence of Brett

Guthrie” – tabled. (xi) Statement of Evidence, dated 4 December 2009, from

the Managing Director and Consulting Engineer, Kevin O’Connor – tabled.


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(xii) Statement in addition to submission number 22 from Mr Barrie Macdonald and Mrs Maureen Macdonald– tabled.

(xiii) Letter, dated 30 November 2009, from Mr Paul

McGimpsey, on behalf of Beca Cater Hollings and Ferner Ltd.

(xiv) Document, dated 4 December 2009 and entitled “Right

of Reply Landscape Issues”, from the Landscape Architect for the Applicant, Mr Richard Mayer – tabled.

(xv) Statement undated and untitled from the Palmerston

North City Council Senior Landscape Architect, Kevin Gillespie – tabled.

(xvi) Document entitled “Figures 1 and 2 as Contained in

Planners Report dated 18 November 2009” (pages 158 and 159 of the Order Paper) – tabled.

(xvii) Document, dated June 2008 and entitled “Revised

Regional Wetland Inventory and Prioritisation” by Horizons Regional Council.

(xviii) Aerial photograph of the Moonshine Valley

Road/Whisky Way – tabled by the Counsel for the submitters, Mr Matthews.

(xix) Document entitled “Right of Reply on behalf of

Applicant, by Environmental Planner, Ms Rachelle Voice – tabled.

(xx) Document untitled by Environmental Planner,

Ms Rachelle Voice – tabled. (xxi) Aerial photograph with dimensions of Moonshine Valley

Road and Whisky Way – tabled by the Kevin O’Connor and Associates Ltd on behalf of the Applicant – tabled.

(xxii) Map entitled “Where Speakers and Opponents in Our

Group Live in Relation to 7 Whisky Way”.

The following persons appeared before the Committee:

Ms Rachelle Voice, Resource and Environmental Planner with Kevin O’Connor and Associates Limited confirmed the Application and the pre-circulated evidence in chief including appendices. As outlined in the attached decision Ms Voice then read her additional tabled evidence and answered question from the committee. Mr Peter Butler, Applicant, confirmed his written statement and confirmed that he was the sole registered owner of 7 Whisky Way, Palmerston North. He had nothing further to add to his


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written statement. The matters considered in his written statement are outlined in the attached decision. Mr Richard Mayer, Landscape Architect, confirmed the content of his written evidence outlined on pages 31-62 of the Order Paper. As outlined in the attached decision Mr Mayer then read his pre-circulated evidence and answered questions from the Committee.

… The meeting adjourned at 11.12am … … The meeting resumed again at 11.37am …

Mr John Matthews, Counsel for all submitters in opposition except for submitters 3, 15, 19, 22, 24 and 25 read his tabled opening submission on behalf of the submitters. Ms Rosemary Gear, submitter number 18, read her tabled evidence in support of her written submission as outlined in the attached decision.

… The meeting adjourned at 12.55pm … … The meeting resumed at 2.03pm …

Mrs Ruth Hodgson, submitter number 8, read her tabled evidence in support of Professor Hodgson and her joint submission as outlined in the attached decision. Mr Ray Stevens, submitter number 1, read his tabled evidence in support of his written submission as outlined in the attached decision. Mr Brendan Pollard, submitter number 26, read his tabled evidence in support of Mrs Charrmaine Pollard and his joint written submission as outlined in the attached decision. Dr Anthony Gear, submitter number 17, read his tabled evidence in support of his written submission and tabled supplementary evidence in response to the additional evidence tabled by the Applicant’s Landscape Architect Mr Richard Mayer. Dr Alan Palmer, Senior Lecturer Soils and Earth Sciences Massey University and expert witness for all the submitters in opposition except for submitters 3, 15, 19, 22, 24 and 25 read his tabled evidence and answered questions as outlined in the attached decision.


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Mr Brett Guthrie submitter number 13, read his tabled evidence and tabled supplementary evidence in support of his written submission as outlined in the attached decision.

… The meeting adjourned at 3.25pm … … The meeting resumed at 4.46pm …

Mr Barrie Macdonald submitter number 22, read his tabled evidence in support of his written submission as outlined in the attached decision. Mr John Matthews concluded his evidence on behalf of the submitters he represented. Mr Daniel Tate, Traffic engineer (Developments) Palmerston North City Council confirmed his written report and as outlined in the attached decision commented on specific aspects of his report including the application and answered questions from the Committee. Mr Kevin Gillespie, Senior Landscape Architect Palmerston North City Council, confirmed the content of his written report and as outlined in the attached decision commented on specific aspects of his report including the application and answered questions from the Committee. Mr Andrew Bashford, Planning Officer Palmerston North City Council, confirmed his written report and as outlined in the attached decision commented on specific aspects of his report including the application and answered questions from the Committee.

… The meeting adjourned at 5.30pm … … The meeting resumed at 9.30am on Friday 4 December 2009 …

Right of Reply Mr Matthews, Counsel for all the submitters in opposition except for submitters 3, 15, 19, 22, 24 and 25 commented on matters of law in respect to the evidence presented by the Applicant. Ms Rachelle Voice, Resource and Environmental Planner with Kevin O’Connor and Associates Limited read her tabled rebuttal evidence and gave an overview of the whole application.

… The meeting adjourned at 10.53am …


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… The meeting resumed at 11.34am …

Ms Voice answered questions from the Committee as outlined in the attached decision.

The Committee reserved its decision, and

48-09 Exclusion of Public

RESOLVED that the public be excluded from the following parts of the proceedings of this meeting, namely Order Paper item 1.

The general subject of each matter to be considered while the public was excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under Section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution were as follows: General subject of

each matter to be considered

Reason for passing this resolution in relation to each matter

Ground(s) under section 48(1) for the passing of this resolution

1. Hearing of Application for a Resource Consent and Land Use Consents Under Section 93(2) of the Resource Management Act 1991 for a Proposed Subdivision at 7 Whisky Way, Palmerston North

Right of Appeal (d)

This resolution was made in reliance on Section 48(1)(a) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by Section 6 or Section 7 of that Act which would be prejudiced by the holding of the whole or the relevant part of the proceedings of the meeting in public were as follows: 1. Hearing of Application for a Resource Consent and

Land Use Consents Under Section 93(2) of the Resource Management Act 1991 for a Proposed Subdivision at 7 Whisky Way, Palmerston North – LGOIMA 48(2)(a)(i) - Right of Appeal.

… The meeting adjourned at 11.46am … The meeting resumed 11.53am in that part of the meeting held with

public excluded …


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49-09 Consideration of Application for a Resource Consent and Land Use Consents Under Section 93(2) of the Resource Management Act 1991 for a Proposed Subdivision at 7 Whisky Way, Palmerston North Further consideration was given to the application for a Resource Consent and Land Use Consents Under Section 93(2) of the Resource Management Act 1991 for a Proposed Subdivision at 7 Whisky Way, Palmerston North.

… The meeting adjourned at 12.00noon … … The meeting resumed again at 9.30am on Thursday 12 December 2009 …

Consideration was given to a draft decision. … The meeting adjourned at 12.15pm … … The meeting resumed again at 9.00am on Thursday 28 January 2010 …

Further consideration was given to the draft decision.

The COMMITTEE RESOLVED:

49.1 That the application for a Resource Consent and Land

Use Consents Under Section 93(2) of the Resource Management Act 1991 for a Proposed Subdivision at 7 Whisky Way, Palmerston North, be granted in terms of the attached decision.

49.2 That copies of the decision be served on the Applicant,

all submitters, Council and be available for public inspection in compliance with and in exercise of the powers contained in Section 114 of the Resource Management Act 1991.

The meeting finished at 11.25am

CONFIRMED THIS 28TH DAY OF JANUARY 2010

C H A I R P E R S O N

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PALMERSTON NORTH CITY COUNCIL HEARINGS COMMITTEE

IN THE MATTER of Sections 88, 104, 104B, 104D, 106 and 108 of the Resource Management Act 1991

and

IN THE MATTER of an application by PETER LEN ROBERT BUTLER for subdivision and land use resource consents in respect of the Rural Zone property situate at 7 Whisky Way, Aokautere, Palmerston North.

HEARINGS COMMITTEE: Councillors Gordon Cruden (Chairperson),

Annette Nixon and Lew Findlay.

PLACE OF HEARING: Council Chambers, Palmerston North City Council Administration Building, The Square, Palmerston North.

DATE OF HEARING: 3, 4, 18 December 2009 and 28 January 2010.

DATE OF DECISION: 28 January 2010.

APPEARANCES: Ms Rachelle Voice for the Applicant. Mr John Matthews for submitters in opposition: Dr Anthony and Dr Rosemary Gear Professor Barry and Mrs Christine Scott Professor John and Mrs Ruth Hodgson Mr Brendan and Mrs Charrmaine Pollard Mr Brett Guthrie Mr Raymond and Mrs Judith Stevens Mr Barrie and Mrs Maureen Macdonald,

submitters in opposition Mr Andrew Bashford for the Palmerston North

City Council.

D E C I S I O N I. APPLICATION:

1. Mr Peter Len Robert Butler (“the Applicant”) on 13 July 2009 applied to

the Palmerston North City Council (“the Council”) pursuant to Section 88 of the Resource Management Act 1991 (“RMA”), for subdivision and land use resource consents in respect of the Rural Zone property situated at 7 Whisky Way, Aokautere, Palmerston North comprising 1.2857 hectares being Lot 1 Deposited Plan 72719 and all the land in

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Certificate of Title WN38A/435 (Wellington Registry) (“the subject property”).

2. The subject property is within the Moonshine Valley Area of the Rural

Zone. The application sought to subdivide the existing Lot 1 into two new lots, namely Lot 1 - 9062 square metres and Lot 2 - 3762 square metres.

3. Lot 1 would contain the applicant’s existing dwelling and accessory

buildings, using the existing more south-westerly access to Whisky Way. Lot 2 would create a new vacant section with a new more easterly access to Whisky Way. This access would require a section of the existing road boundary hedge to be removed. A proposed new effluent disposal area could be located towards Moonshine Valley Road or closer to the pond. In either location the outlet would be to the nearby adjoining pond by way of an easement over Lot 1.

4. The District Plan. Section 7, Rule 7.16.1.2 (b) (ii) provides for a

minimum lot size in the Moonshine Valley Area of 1.5 hectares. This must include 5,000 square metres of contiguous land including a slope not exceeding 11 degrees to accommodate all of the following:

• A residential building platform

• Vehicle access to the residential building platform

• A minimum area of 800 square metres for the purposes of accommodating an on-site effluent disposal system.

5. All subdivisions require a resource consent. The application does not

comply with the minimum District Plan subdivisional requirements for a Controlled Activity. If the subdivision is to proceed a Non-Complying resource consent is required – Rule 10.7.5. Two land use Discretionary Activities (Restricted) consents would also be required. The first would be for the existing dwelling and accessory buildings on Lot 1 and those proposed for Lot 2 not meeting the minimum 1 hectare net site size for the Rural Zone – Rule 9.8. The second would be for the proposed Lot 2 road access not complying with sight line requirements. The Applicant accepts that the bundling principle requires the whole proposal to be assessed on a non-complying basis.

6. The subject property is bounded by Moonshine Valley Road, Whisky

Way, a long 10 metre wide right of way to more distant 15, 17 and 19 Whisky Way and the Reserve. Substantial trees and hedges exist along all of those boundaries except for the existing principal entrance and a subsidiary entrance to Whisky Way. This results in the subject property being screened from all neighbouring properties except only partially to 10 Whisky Way owned by the Pollards. Their property is on the opposite side of Whisky Way. The subject property’s principal road access provides the Pollards with a view of the existing house. The proposed new access would provide a partial view of Lot 2. Nos. 15 and 17 are more distant right of way properties. No. 19 Whisky Way is also a more distant property built on much higher ground with commanding views over the Valley including the subject property. Nos. 10 and 19 are the only Whisky Way properties which at present have a view of buildings on the subject property. No. 19 Whisky Way has not lodged an objection.

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II. THE LAW: District Plan 7. The historical development of the larger Aokautere area, after it was

transferred from the then Kairanga County Council to the City Council in 1967, as to zoning and minimum lots sizes is complex. This application is governed by the current District Plan. This provides that the minimum lot size for the Rural Zone is 4 hectares. The more common of the three area exceptions is a reduction to 1 hectare where the Zone is subject to an overlay described as a Rural Residential Area [Rule 7.16.2(iii)]. There are two other Rural Zone areas outside the Rural-Residential Area which permit similar life-style subdivisions with different specified minimum lot sizes less than 4 hectares. These are the Aokautere Rural Residential Area with a minimum lot size of 3,500 square metres [Rule 7.16.1.2(i)] and the Moonshine Valley Area with a minimum lot size of 1.5 hectares [Rule 7.16.1.2(ii)].

8. The Moonshine Valley Area occupies a rectangular part of the Valley

with both sides adjoining two divided sections of the Aokautere Rural Residential Area. No subdivisions in either area are permitted. The District Plan for both of them requires at least a Controlled Activity subdivision consent. The Controlled Activity performance conditions include 5,000 square metres of contiguous land to accommodate a building platform, vehicle access to building platforms, 800 square metres for on-site effluent disposal systems with lot slopes not exceeding 11 degrees measured between two points no more than 10 metres apart. Where the performance conditions are not met a discretionary activity or non-complying activity consent is required. The Rural Zone Rule 9.6.5 while requiring for all Zone lots, a net site of contiguous land of not less than 1 hectare, only exempts the Aokautere Rural-Residential Area. There is no exemption for the Moonshine Valley Area. This omission appears to have been an historical or updating oversight, requiring correction. We can properly resolve this conflict by holding that the relevant applicable Valley net site of contiguous land is not less than 5,000 square metres.

Non-complying activity 9. The present application does not comply with all of the performance

conditions for Controlled Activities. If the proposed subdivision is to proceed, the District Plan requires that a Non-Complying Activity resource consent be obtained – Rule 7.16.4. The present application is brought on that basis. The Applicant also accepts that so far as the two discretionary land-use consents are concerned, that under the bundling principle, they are subject to the grant of the non-complying subdivisional consent. We therefore do not require to consider them separately.

10. The application for a non-complying resource consent means that

before it can be considered under section 104 RMA, we must first be satisfied that it passes one of two alternative gateway tests under section 104D. In summary the Applicant must establish either:

(a) the adverse effects of the activity will be minor; or

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(b) the application is for an activity that will not be contrary to the objectives and policies of the District Plan in respect of the activity.

11. Adverse effects under the first gateway will later be determined after

we make findings fact. The second gateway requires the objectives and policies of the District Plan to be considered. City Vision objectives are of wide application and expressed in general terms. Their headings are similarly defined as representing “… some facet of the City and how it functions.” The headings refer to the convenient, healthy, learning, working, leisure, heritage and the attractive communities. The more detailed relevant District Plan provisions are contained in the Rural Zone (Section 9) and Subdivision (Section 7). The main thrust of Rural Zone objectives and policies is to provide protection of rural land and resources principally comprising 4 or more hectares. Their terms are generally not easy to apply to the smaller life-style lot of the Moonshine Valley Area while several are not relevant. For example Objective 1 is to protect rural land from the adverse effect of unnecessary and unplanned urban expansion. Objective 2 encourages the effective and efficient development of the natural and physical resources of the rural area. Objective 3 is to enhance the quality and natural character of the rural environment. If of more general application, it is directly concerned with the rural rather than a life style block environment. Objective 4 is to enhance the diversity of the rural community.

12. The subsidiary policies under each objective, confirm that the various

“rural” objectives principally relate to farming and similar uses and do not offer life-style block protection. They are instead concerned with protecting productive land and encouraging sustainable rural land-uses. Under Section 9 enhancing the diversity of the rural community does not extend to life-style blocks. The restricted meaning is referred to in the Objective 4 “Explanation” – “While much of the rural area is devoted to large scale rural land uses such as farming and forestry, there are a wide variety of other activities which contribute to the maintenance of land and the diversity of the rural community. These other activities include small engineering works, schools, community halls, recreational activities, home occupations, veterinary clinics, animal boarding establishments, roadside stalls and garden centres.” These examples are different not merely in degree but in kind to 1.5 hectare, 1 hectare and 3,500 square metre life-style blocks.

13. The Rural Zone Objectives and Policies 1, 2 and 3 are clearly drafted to

protect farming, agricultural and similar uses. The only express extension is under Objective 4 which recognises other activities. These include providing for rural community and leisure activities and other rural servicing. In the above “Explanation” the nature of those service activities are listed. Significantly the Rural Zone objectives and policies do not deal with or even refer to the three Rural Zone Areas, where rural-residential type lots under 4 hectares, may be allowed under Controlled Activity consents. The scheme of the District Plan appears to be that as the boundaries of those Areas are already designated, the Rural Zone objectives and policies do not require to make any specific provision. If there were a plan change application to extend the boundaries of those Areas then, of course,

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the Objectivities and Policies of the Rural Zone would become directly relevant. There is no such plan change application before us.

14. Moving on to Section 7 Subdivision provisions they fall into two major

parts. The first part applies to ten of the District Plan Zones, including the Rural Zone. Its wide scope is no doubt one reason for its general terms. Objective 1 is to ensure that subdivision is consistent with integrated management of the use, development and protection of land and other natural and physical resources. Policy 1.1 is to enable subdivision “generally” in accordance with existing land use patterns and goes on to provide that land within the “urban” area is “fully” utilised. Policy 1.2 for urban subdivisions outside urban areas to follow appropriate assessment of all environmental effects. Policy 1.3 is to ensure that any subdivisional adverse effects are adequately avoided, remedied or mitigated.

15. Objective 2 is to ensure that subdivision recognises and gives full

effect to the natural and physical characteristics of the land and its future use and development while avoiding, remedying or mitigating any adverse effects on the environment. The eleven policies cover a wide range of matters. Those of particular relevance to this application include lot sizes having necessary areas and dimensions for dwelling sites and vehicle access; earthworks in Aokautere to be subject to a registered engineer’s specific design; ensuring as far as possible the activity does not result in damage from stormwater runoff; and approved on-site sewage disposal.

16. The exceptions to those general provisions are Objectives and

Policies 4, 5 and 6 for respectively Esplanade strips, the North East Industrial Zone and the Midhurst Street Industrial Area. There are no similar specific Objectives and Policies for the Moonshine Valley Area or other life style Areas.

17. The second major part of Section 7 deals separately with each of ten

Zones. For these it does not provide any zone specific objectives or policies but limits itself to Rules for particular Zones. The Rural Zone, Rule 7.16.1.2 provides for the Controlled Activity performance conditions for the Moonshine Valley Area. These comprise the 1.5 hectare minimum lot area, 5,000 square metres of contiguous land for the three purposes already referred to and access, esplanade reserve, farming buffer zone and new road provisions.

18. In support of a non-complying consent being granted, the Applicant

submitted the subject property had unique characteristics which prevented a grant having any precedential effect. The submitters in opposition submitted to the contrary that it was the Moonshine Valley Area which was unique and any grant would have a precedential effect. In particular it would be difficult to oppose the subdivision of bare land such as 125 Moonshine Valley Road, opposite the subject property into lots of less than 1.5 hectares. Whether it is only the wider Moonshine Valley Area that has an exceptional environment or if the subject property has its own different exceptional character is a matter to be determined after we have made findings on the evidence. At this stage we will refer to the helpful legal authorities by Ms Voice and Mr Matthews for several of the objectors.

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19. If the Moonshine Valley Area is not unique it is at least in a City context exceptional. The development over more than 30 years of a relatively bare area of farmland into the its present attractive environment with the majority of properties enclosed with native and exotic trees and each including an abundance of well kept gardens. These properties are a credit to their owners and created by their skill and hard work.

20. The consideration of the environment includes amenity values –

section 2 RMA - of the relevant Moonshine Valley locality. The District Plan defines Moonshine Valley Area from a frontage with Aokautere Drive, extending nearly entirely on both sides of the no-exit Moonshine Valley Road. It is rectangular in shape except for the intrusion of 1.875 hectares, within the easterly portion of the adjoining Aokautere Rural Residential Area, which extends to a frontage with Moonshine Valley Road. This land was subdivided into three lots by Nash Developments Ltd under non-notified subdivision and land use consents RM2485 and RM202942 granted by Council on 8 June 2007. The three Aokautere Rural Residential Area lots are under 1.5 hectares but comply with that Area’s minimum lot size of 3,500 square metres. After that subdivision they became 17 Moonshine Valley Road of 5,300 square metres, 19 Moonshine Valley Road of 9,990 squares metres and 21 Moonshine Valley Road of 3,500 square metres.

21. The District Plan for the Moonshine Valley Area imposes minimum lot

sizes of 1.5 hectares subject to any lesser sizes authorised by subdivision resource consents. By contrast the Aokautere Rural Residential Area, which adjoins both sides of the Valley Area, has lesser 3,500 square metres minimum lot sizes. Thirty-eight Valley lots have sole access to Moonshine Valley Road and Whisky Way. Twenty of those lots are of 1.5 or more hectares. The remaining 18 lots are each under 1.5 hectares. The Moonshine Valley Road lots include ten lots under 1 hectare with areas of 3,500, 3,703, 5,300, 7,473, 7,678, 8,595, 9,466, 9,496, 9,733 and 9,900 square metres. After excluding the subject property, four of the other five Whisky Way properties, namely 10, 17, 19 and 25, are less than 1.5 hectares. They respectively comprise 7,608 square metres, 1.3604, 1.1665 and 1.0433 hectares. The 18 smaller of under 1.5 hectares, including 17, 19 and 21 Moonshine Valley Road, require to be taken into account when determining in terms of the section 2 RMA, the nature of the relevant environment. In addition three other lots with frontages to Aokautere Drive are within the Moonshine Valley Area. These are 307-389 Aokautere Drive (4,202 square metres) being a church property, 345 Aokautere Drive (1.9540 hectares) and 393 Aokautere Drive (2304 square metres). Two of those properties have additional legal frontages to Moonshine Valley Road including the church whose postal address is 6 Moonshine Valley Road.

22. We finally record that Memorandum of Transfer B137623.2T dated

7 December 1990, creating the original subdivision, includes a restrictive covenant which expires on 1 February 2011. The covenant principally deals with buildings including limiting one single residential building to each lot. The covenant does not prohibit subdivision or limit minimum lot sizes to 1.5 hectares. The covenant will remain in force until its expiry date. The building restrictions do not extend to controlling minimum lot sizes. The affect on the present

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subdivision application, if granted, is that the proposed two new lots would be limited to one house for each lot.

23. The submissions on whether the application will or will not “be

contrary to the objectives and policies” of the District Plan included issues of precedent and any effect on the integrity of the District Plan. On these matters we have been guided by a number of principles. The first is that the District Plan does not prohibit subdivisions under 1.5 hectares but first requires the grant of a non-complying resource consent. Secondly, an applicant for a non-complying activity does not require to establish that a proposal is unique. Although several parties based their submissions on “uniqueness”, that tends to overstate the legal requirement. Relevant factors will usually have to establish a sufficient degree of difference to existing or other potential lots but not necessarily so rare as to be unique. On this issue and others the Applicant and Counsel for the represented submitters in opposition, referred to a number of helpful authorities.

24. These include McKenna v Hastings District Council (2008) HC CIV

2008-441-253 where it was held that (a) that a non-complying activity by definition will not find direct support from any specific provision of a District Plan; (b) a non-complying activity with no more than minor effects and not contrary to the objectives and policies of the Plan may be granted consent when considered under section 104. Rodney District Council v Gould [2006] NZRMA 217 held that precedent considerations do not require a non-complying application to be unique. The correct test was whether there were factors which took that application out of the generality of cases. McLaughlan v Hutt City Council EC W062/2008 held that the term “effect” is not directed to an impact on a Plan but natural and physical resources together with the environment within which they exist. Te Awanga Lifestyle Ltd v Hastings District Council EC W77/2009 recently held that a non-complying proposal does have to be literally unique. The relevant question is whether the particular proposal takes it out of the generality of cases and future potential cases. In summary, rather than uniqueness, the relevant issue is the likelihood of later materially similar proposals being granted. Any such likelihood would risk compromising the integrity of the plan as well as making it difficult to administer. The decision in Beacham v Hastings District Council EC W075/2009 has affirmed this wider approach. The Court after referring to Rodney held that it is not necessary in a non-complying application for the site to be truly unique but its facts should take it outside the generality of cases. The proper approach to an application for consent to a non-complying activity was set out in these terms:

“Only in the clearest of cases, involving an irreconcilable clash with important provisions, when read overall, of the District Plan and a clear proposition that there will be materially indistinguishable and equally clashing further applications to follow, will it be that Plan integrity will be imperilled to the point of dictating that the instant application should be declined.”

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III. EVIDENCE:

25. We heard evidence from the Applicant, submitters and Council. The evidence also included a site visit. We inspected the subject property and also viewed submitters properties.

Applicant Ms. Rachelle Voice 26. Ms Rachelle Voice, Bachelor of Resource and Environmental Planning,

appeared and gave evidence for the Applicant. She has had over five years professional planning experience and is employed as a planner by Kevin O’Connor & Associates, Engineers, Surveyors and Planners, Palmerston North.

27. She confirmed the contents of the application together with her

accompanying report of 13 July 2009 and her subsequent statements of evidence dated 18 November 2009 and 2 December 2009. Her evidence also adopted the report of Richard Mayer, Landscape Architect and of Stephen Pinkney, Registered Civil Engineer. In addition she called Mr Kevin O’Connor, Registered Engineer.

28. Ms Voice submitted that the application was consistent with the

purpose and principles of the RMA, was not in conflict with the objectives and policies of the District Plan and any adverse effects after mitigation measures will be no more than minor. The principal reasons requiring a non-complying consent are that the two new lots will be under 1.5 metres and Lot 2 of 3,796 square metres will be less than 5,000 square metres of contiguous land. Lots 1 and 2 will comply with slope restrictions.

29. Lot 1 would continue to be serviced by existing facilities. Lot 2 will be

provided with separate on-site stormwater and sewage disposal and rely on rooftop and tank fresh water. Mr Mayer’s report proposed 6 metre maximum restrictions on building height, locality of accessory buildings and building material and landscaping conditions. Lot 1 will be serviced by the existing principal accessway about 75 metres from the intersection with Moonshine Valley Road. The other existing accessway about 5 metres from the intersection will be closed. The gap will be planted with trees. A new entrance for Lot 2 will be constructed about 50 metres distant from the intersection. This would require the removal of some boundary trees.

30. Ms Voice dealt with the following actual and potential effects: 31. Visual and landscape: The Applicant’s expert assessment showed

that because of the well established boundary planting and extensive trees and vegetation on the property any adverse visual effects were minor. The photographs showing the building platform on Lot 2 indicate a dwelling will integrate well into the landscape. The majority of Valley properties have comparable boundary planting and site vegetation. One of several exceptions is 125 Moonshine Valley Road Whisky, immediately opposite the subject property, which is bare land without boundary planting. It is bounded on three sides by other Valley lots. The owners in their notice of opposition indicated they

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intend on that lot to build a dwelling. The absence in the District Plan of any landscape buffer, vegetation or visual screening requirements, means that Council cannot require that lot to have any road frontage planting or other road screening.

32. Traffic and access: The subdivision will not adversely affect the safe

and efficient operation of the roading network. The relocation of the existing second entrance from 6 metres to 50 metres from the intersection will improve sight distances closer to the local speed environment of 65 metres. There are six lots and four houses on Whisky Way. It has the capacity to accommodate additional vehicle movements on the development of Lot 2.

33. Amenity: Moonshine Valley has high amenity values including

privacy. The proposed subdivision lot sizes are in keeping with the current rural-residential character. At least half of the Moonshine Valley and Whisky Way lots are less than 1.5 hectares. Ten of those existing lots are under 1 hectare – namely 3,500, 3,703, 5,300, 7,473, 7,608, 7,678, 8,595, 9,466, 9,496 and 9,733 square metres. The proposed new lots of 9,062 and 3,796 square metres fall within that smaller existing range. There are also eight other existing under 1.5 hectare lots ranging from 1 hectare to 1.478 hectares.

34. Services and building platform: Both lots will have complying

services including areas if 800 square metres for on-site sewage effluent disposal systems. Mr Pinkney’s report referred to the existing shallow seepage trench effluent disposal system as having worked well over 20 years. However, as it would encroach into Lot 2 a similar system should be installed within Lot 1 and a separate system in Lot 2. He stated there was sufficient space on each lot for new systems. He concluded that there was a satisfactory area on each lot for a dwelling, ancillary buildings and associated wastewater and stormwater discharges subject to the conditions set out in his report.

35. Lot 1 has a complying building platform of 5,000 square metres. Lot 2

is relatively flat and has an available building platform of 3,796 square metres. It will have two road frontages with other frontages to the Applicant’s Lot 1. Lot 2 will have a larger building platform than the 3,500 square metres of 21 Moonshine Valley Road and 3,703 square metres of 28 Moonshine Valley Road.

36. Construction and earthworks: These normal short term disturbances

may be controlled by consent conditions.

37. Flooding and erosion: Horizons Regional Council has no record of flooding and does not object to the proposal proceeding. Existing slopes have good ground cover and vegetation has stabilised slopes. There are no exposed slopes. The Applicants two registered civil engineers stated that the proposal will not create any flooding problems nor adverse erosion effects.

38. Precedent: Moonshine Valley has unique characteristics. The wide

range of existing lot sizes from 3,500 square metres to 1.5 hectares and over means that the proposal would not provide any new precedent for under 1.5 hectare lots. The subject property compared to other Valley lots has its own unique micro-characteristics. These

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include having no other adjoining residential properties; a flat topography framed by ridges; enclosed by mature planting from outside views together with bush and meandering streams. The site is suitable for the proposed subdivision, represents an efficient use of resources and accords with sustainable use. The fact that the proposal does not fully comply with the District Plan does not in this instance mean that it creates adverse effects.

39. Ms Voice stressed that in respect of the Moonshine Valley Area, the

District Plan contains no performance criteria on several matters and does not specifically seek to protect, maintain or enhance the factual attributes of the Area under the Rural Zone but heavily relies on Section 7 Subdivision provisions. Apart from lot size limitation, the Area has no performance conditions to assess lot development criteria. Instead Council for many under 1.5 hectares lots and proposed lots relies on Section 7 resource consent control.

Mr Peter Butler 40. The Applicant described the subject property as having no adjoining

neighbours. Two sides were bounded by Moonshine Valley Road and Whisky Way. The third boundary was a 10 metre wide access way to more distant properties. The fourth boundary adjoined the Tutukiwi Reserve and the Mangaotane Stream.

41. Mr Butler emphasised that the proposed subdivision was not

inconsistent with land use activities of the surrounding Valley. The lot sizes were not notably different to those already existing in the Valley. A new dwelling would not be closer to other dwellings than already occurred between several Valley neighbours. The privacy provided by the subject property includes extensive parameter screening using a variety of established plant species.

42. Mr Butler also pointed out three subdivisions which had created five

new lots of under 1.5 hectares. These included the subdivision of No. 30 Moonshine Valley Road to create No. 28 Moonshine Valley Road of 3,702 square metres and a balance lot of 1.2213 hectares; the subdivision of No. 96 Moonshine Valley Road to create 10 Whisky Way of 7,607 square metres and a balance lot of 7,473 square metres. The 1993 subdivision provided three new Moonshine Valley Road lots of under 1.5 hectares namely 21 (3,499 square metres); 17 (5,302 square metres) and No.19 (9,901 square metres).

43. He submitted that any unique character of the Valley included a

numerous range of lot sizes well under 1.5 hectares. The provision of only two more similar sized lots would not detract from that existing character. He compared the existing screening of the subject property protected by consent conditions, to the position of the opposite vacant lot located at 125 Moonshine Valley Road. The lot is 1.5217 hectares held on a separate title. As it appears a house can be built without a resource consent, Council cannot impose any condition requiring any road planting or other screening.

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Mr Richard Mayer 44. Mr Richard Mayer, Post-Graduate Diploma in Landscape Architecture

(Lincoln), Certificate in Landscape Architecture Technology ((Alberta) has over 28 years of professional experience in Canada and New Zealand. He is the Managing Director of Environments By Design, Palmerston North.

45. He described Moonshine Valley as one of several gentle sloped

northwest to south east orientated Valleys that rise about 40 metres to the elevated flats on the Tararua Ranges. These flats on either side of the Valley are in the Aokautere Rural Residential Area of Polson Hill and Pacific Drive. The subject property has been developed into a large country garden with established boundary shelter plantings of 4 to 8 metres in height. Internally a number of mature and semi-mature tress and shrubs spatially define two distinct land levels. The Moonshine Valley Road is the locality’s central defining physical feature. The road is bordered by a combination of well maintained grass verges and extensive vegetation which add to the Valley’s sense of intimacy and enclosure. There are also quantities of native bush, exotic trees and streams reinforcing its rural character.

46. Building sites are typically visually prominent except where shelter

belts limit development visibility. He recognised that significant changes in development patterns can potentially create adverse effects and undermine the Valley’s landscape character. This is likely to occur where numerous smaller lots are clustered together. On the other hand, limited variation of lot sizes within an existing development pattern can be desirable by generating a degree of variety so preventing the creation of a homogenetic environment.

47. Development of structures on Lot 2 to a permitted height of 9 metres,

where they are visible from the road and adjacent hillside properties, could potentially create adverse visual effects. In mitigation the Applicant would agree to a maximum building height of 6 metres. The enclosed nature of the subject property means that future construction activities on Lot 2 will not be visually prominent beyond the subject property. However, any alteration to existing boundary shelter planting, not in keeping with existing patterns, could produce adverse visual effects but this could be avoided by conditions. He considered that with existing planting, Lot 2 was uniquely placed within the Valley and located at a position in the landscape less sensitive to change, where such lot size variation is visually acceptable.

48. Mr Mayer agreed with many submitters views on the importance of the

existing Valley landscape and amenity. However, for the reasons set out in his Report, he disagreed that the proposal was inappropriate or that the Valley’s environment, landscape character and amenity values would be adversely affected. He similarly considered approval would not create a precedent for future under 1.5 hectare subdivisions. Any future applications would be evaluated on their own merits. In his opinion few, if any, other areas in the Valley shared the subject property’s unique aspect and qualities.

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49. Mr Mayer rejected the criticisms of the Council landscape architect. The landscape assessment was not flawed but complied with and was supported by District Plan provisions. Any concerns were addressed in recommended landscape conditions. He agreed that a landscape assessment cannot depend on mitigation provided by neighbouring properties. But it was quite proper to take into account external factors that may influence the landscape ability to absorb change. The Council landscape architect himself had adopted that approach when he referred to the nearby reserves as helping mitigate the effects of the proposed subdivision. Mr Mayer also pointed out that any loss of vegetation would be within sheltered boundaries of the subject property. As to subjective criticism of insufficient natural sunlight, Mr Mayer produced in rebuttal, as Appendix 3, a scheme plan of future developments with an acceptable living environment.

50. Mr Mayer considered that no adverse visual effects are anticipated for

the more adjacent properties at 10 and 25 Whisky Way or for 96 and 125 Moonshine Valley Road. This is because of elevation changes, existing properties boundary vegetation and the Tutukiwi Reserve. However, 19 Whisky Way which has no road boundary planting has clear views of the subject property. Any adverse visual effects will be no more than minor due to the mitigating effect of existing trees within the subject property. Adverse effects of any new external fencing will be avoided if it is primarily internalised. Earthworks and new roading are unlikely to create any adverse effects. The enclosed nature of the subject property and the Valley should also avoid any adverse visual effect on the wider Valley landform and other properties.

51. Mr Mayer considered that while Lot 2 is significantly smaller than the

permitted 1.5 hectares any adverse effect of its creation will be no more than minor. He stated that any future subdivision proposals for significantly smaller lots would need to be carefully controlled. This would be to ensure that future cumulative effects do not erode the Valley’s rural landscape character.

52. To protect the present Valley landscape character he advanced a

number of mitigation measures relating to residential structures, planting and fencing. In his opinion these would help avoid, remedy or mitigate the adverse visual effects identified in his evidence.

Mr. Kevin O’Connor 53. Mr Kevin O’Connor, Bachelor of Engineering, Chartered Civil

Engineer, is the Managing Director and Consulting Engineer of Kevin O’Connor and Associates Ltd. He is also a chartered professional engineer and since the mid-1980s has worked on sites in the Moonshine Valley, Polson Hill, County Heights and Guy Enterprises subdivisions. All are in relatively close proximity to the subject property.

54. Mr O’Connor dealt with stormwater disposal, sewage disposal and

land stability. He agreed soil permeability was low and affects stormwater runoff and sewerage disposal. The only stormwater adverse effect of the proposal would be concentrating stormwater. This can be dealt with by appropriate pipe work discharging directly into the adjoining stream. This was unlikely to cause any increase in

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future flooding. The extensive Valley planting would mitigate future flooding by retention of water in the bushed areas. Horizons Regional Council had confirmed that flooding was not an issue for the Valley catchment. Any increased runoff could be dealt with by site attenuation, storage or the proposed discharge into the on-site ponds in the lower area of Lot 1.

55. Sewerage would be disposed of into the top soil layer and dispersed

by evapo-transpiration. The District Plan requirement of an area of 800 square metres for effluent disposal is in practice applied for a primary area of 400 square metres and a reserve area of 400 square metres if the primary area is insufficient. The District Plan area was based on a flat area but modern pumped systems no longer require contiguous flat land of that size. As to specific areas the present effluent disposal area for the existing house could continue to service Lot 1. Lot 2 had three potential effluent disposal areas, namely the area towards Moonshine Valley Road shown on the scheme plan; the westerly side of the proposed house; the eastern side of the lot towards the pond embankment. When the Committee queried if that latter location would increase the risk of embankment failure, Mr O’Connor stated good design could avoid any such risk.

56. Mr O’Connor stated that it was important that any stormwater disposal

system should prevent discharge over lot boundaries or into a watercourse. This was a simple design issue under which it could be avoided. It would also be supported by the bush area including plants tolerant to liquor disposal.

57. As to land instability he explained that historically Council had been

concerned with the Aokautere area and had prohibited building within a specified distance of an embankment. In fact instability had generally been limited to surface slips and not deep seated soil failures. More recently with improved knowledge of the area and appropriate geotechnical reporting and design, construction close to banks has become acceptable. The existing house location has already been approved. The new Lot 2 proposed building platform would also be subject to Council location approval including specific building foundation requirements.

Submitters – in support Mr Lew Thompson 58. Mr Thompson is the owner of 175 Moonshine Valley Road. He

supported the application and stated he was happy for the subdivision to go ahead.

Mr Steve Welch and Mrs Gill Welch

59. Mr and Mrs Welch own 30 Moonshine Valley Road and in their

separate submissions supported the application. They considered the subdivision would not adversely affect other residents. The subdivision by a previous owner of their adjoining property at 28 Moonshine Valley Road of 3,702 square metres had not caused any adverse impact on themselves or other residents. They requested that

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approval of the subdivision should include a covenant to protect existing housing standards.

Mr D.R.Gibbs 60. Mr Gibbs of 11 Jensen Street, Palmerston North supported the

application. In his opinion the subdivision would not adversely affect other Valley residents but be beneficial. He considered any erosion and waste water problems can be addressed by the Council.

Submitters - general Horizons Regional Council 61. The Regional Council supported the provision of reticulated services

and provision of planted areas. A concern over the management of wetlands was that the integrity of the indigenous forest remnant should not be compromised. This required that the wetland be developed by a qualified restoration ecologist. The submission recorded that the Applicant had acknowledged that once final stormwater disposal systems are known a Regional Council resource consent may be required.

New Zealand Fire Service Commission 62. The Fire Service made their normal request for rural property to have

adequate fire fighting water supplies. The Service sought Consent Notices to be registered on new titles that each registered proprietor comply with the New Zealand Fire Service Code of Practice for fire fighting water supply SNZ PAS 4509:2003.

Represented submitters – in opposition

63. Mr John Mathews, Counsel instructed by the following represented

submitters in opposition, submitted the Application should be declined on a number of RMA, District Plan and related grounds.

64. Under section 6 RMA he submitted that Valley’s natural features and

landscape were matters of national importance and required to be protected from inappropriate subdivision, use and development. RMA landscape provisions include not only visual but extend to a social and cultural expression of vegetation, topography and wetlands. The 1.5 hectare size was an initial recognition, although not a specific zoning, of the Valley landscape. The subject property did not have alleged unique qualities.

65. The expert evidence of Dr Palmer indicated erosion, safe housing and

Valley non-reticulated sewerage system difficulties. The over-flooding of the pond means it will overflow into the stream with adverse effects on flora and fauna. Many of these factors required a precautionary approach to be taken under section 3(f) RMA. The actual and potential adverse visual, landscape and amenity effects were cumulatively more than minor – section 3 RMA.

66. The application was also contrary to the objectives and policies of the

District Plan. Under Section 7 these were listed as Objectives 1, 2 and

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3 and their respective policies. The Plan must have a reason for the increased 1.5 hectares which may be developed from the objectives and policies of the Rural Zone and the Subdivisional Section 7 of the Plan.

67. Mr Matthews submitted that the District Plan is deficient in not setting

out specific objectives and policies for the exceptional Moonshine Valley Area. In his opinion during the District Plan review a specific Rural/Residential Zone with sub-zones for the Moonshine Valley Area and similar areas, would be a more appropriate approach. He agreed with the Applicant that the District Plan omits to specifically protect the particular characteristics of the Valley other than by the minimum lot size of 1.5 hectares. However, taking into account the background to the introduction of the larger minimum lot requirement and meetings of residents with Council in the early 1990s it was clear the application was contrary to relevant objectives and policies. It was not the residents fault that the Plan contains no explanation of the intent and variations following their 1990s meetings with Council.

68. Finally, Mr Matthews dealt with the adverse effect granting the

application would have on the integrity of the Plan and dealt in detail with related precedent issues. He pointed out that McLaughlan related only to a discretionary activity. McKenna was distinguished being a subdivision for only 2 lots. The Council planner had stated there were potentially 24 lots, in addition to those that could be created as a controlled activity. As to Beacham the subject property is indistinguishable from other potential smaller Valley lots except being a corner section including a pond. The latter may even be a detrimental factor.

69. The following submitters gave evidence with Dr Alan Palmer also

being called to give expert soil and erosion evidence.

Dr Rosemary Gear and Dr Anthony Gear 70. The Gear’s purchased 64 Moonshine Valley Road in 1989 when it was

the first lot sold in the then new subdivision. They confirmed the contents of their separately lodged objections.

71. Dr Rosemary Gear, who has a PhD in biochemistry, referred to the

Valley then being bare farmland interspersed with gorse and often waterlogged during the winter. Since then its character had been transformed by residents extensive plantings and landscaping. The planting of both native and exotic trees have to a large extent controlled erosion.

72. We were referred to a District Plan variation in 1993 which increased

minimum lot sizes to 1.5 hectares compared with 3,500 square metres for the adjoining Aokautere Residential Area. We were told that at a public meeting in 2007 residents considered the application to subdivide 15 Moonshine Valley Road, outside the Moonshine Valley Area, into its present 3 lots. A subsequent letter from the Council principal planner which stated that an application could be made to Council for lots less than 1.5 hectares and “likely to require the support from neighbouring property owners.”

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73. After objecting to the lots being under 1.5 hectares, she dealt with drainage, effluent systems and the adverse effect on the environment including flora and fauna issues. The whole Valley area has very little ground soakage. Stormwater had been a major problem when the existing house on the subject property was constructed. She doubted if new effluent systems for each lot would because of limited soakage be sustainable. During periods of heavy rain it would be impossible to prevent treated effluent draining into the pond then entering the stream causing silting and contaminating the wetland area.

74. As to existing under 1.5 hectare properties some were approved just

before the 1993 plan variation but none during the past 14 years. The beneficial environmental development of the Valley has included a corridor of mainly native bush; the declining Tutukiwi orchid has been reversed; 19 species of native birds and 19 introduced to New Zealand are now seen compared with very few before 1989. Intensification of housing would have an adverse impact on the resurgence of flora and fauna.

75. Dr Gear also produced in support of her evidence extracts from the

Collins historical booklet, letters from the Department of Conservation dated 16 November 2009 and Forest and Bird dated 18 November 2009, an electro-fishing survey by Logan Brown of the Department of Conservation. Dr Anthony Gear, a consultant physician, also gave evidence confirming and elaborating on the matters raised by Dr Rosemary Gear. He also stated that the proposed subdivision would in the immediate locality provide a precedent for 96, 125 Moonshine Valley Road and 10 and 25 Whisky Way to be subdivided with less than 1.5 hectare lots.

Professor Barry Scott and Mrs Christine Scott 76. They are the owners of 95 Moonshine Valley Road where they have

lived since 1994. Professor Scott, a professor of molecular genetics at Massey University confirmed in evidence the contents of their lodged notice of opposition. He explained that during that period they have made significant contributions to the restoration of flora and fauna on both their property and the two area reserves.

77. The subdivision application would be the first for the Moonshine

Valley Area since the minimum 1.5 hectare lot size came into force. It could lead to similar applications for more than 3 or 4 other properties in the Valley. Further smaller lot subdivisions would have an adverse impact on residents much valued existing rural-residential amenity values. These would include increased population, traffic, noise levels, air quality and visual effects.

78. Professor Scott expressed concern at potential environmental impacts

on the Mangaotone Stream, by direct or indirect seepage of increased sewage effluent.

Professor John Hodgson and Mrs Ruth Hodgson

79. Professor and Mrs Hodgson after purchasing 160 Moonshine Valley

moved into a newly built home in July 1994. The property was too small to keep stock but large enough to develop a new garden. This

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included many native trees which have encouraged increased bird life. The property already had a good sized stand of native bush and portion of a small stream. During our site inspection, which included passing submitters properties, we were able to drive into and more closely view this property. It impressed us as an outstanding example of how local residents commitment, skill and hard work, had over a relatively short period, successfully transformed the former relatively barren Valley.

80. Mrs Hodgson informed us that clubs and other organisations visit

their property to enjoy its roadside woodland garden with steps and boardwalks to the lower stream level through a bush walk. Their development of the property has attracted a wide range of native birds listed in her evidence.

81. Valley soil and weather conditions are challenging. The hot, dry and

windy summer conditions change in the winter to heavy rainfall which causes the stream to flood covering the lower bush section of the property. Each year roadside drains overflow. Adjoining gardens have lost sections of their terrace lip and several slips have occurred on Valley slopes. These caused concern of the capacity for more development. These concerns also extended to traffic and child safety.

Mr Raymond Stevens and Mrs Judith Stevens 82. Mr and Mrs Stevens own 43 Moonshine Valley Road. Mr Stevens

informed us that the previous owner won the 2003 Horizons Regional Council Environment Award for native plantings and since then they have added more plantings.

83. Mr Stevens had retired after 50 years farming some of the steepest

erosion prone country in the Wanganui River – Parapara locality. In his opinion more houses and water tanks and effluent disposal systems will result in more concentrated discharges leading to erosion and silting. Present discharges have during the past three years led to the Valley waterway changing from a creek to a small river. More houses and people will bring more vehicles, noise and cats disturbing the tranquillity of the Valley and its birdlife.

84. The 1.5 hectare lot size was a main purchasing influence. He regarded

himself as a guardian of the land for future generations to value and enjoy. District Plan commitments should be honoured and the views of the majority not ignored.

Mr Brendan Pollard and Mrs Charrmaine Pollard 85. Mr and Mrs Pollard own 10 Whisky Way which they purchased in 1996

and is on the other side of the road to the subject property. In giving evidence Mr Pollard stated that in 1996 the Valley was largely farmland, re-generating bush and gorse. He confirmed that since then local residents planting and gardens together with Council development of reserves have changed the Valley’s character.

86. He explained that their property of 7,608 square metres was

subdivided shortly before the present minimum lot size of 1.5 hectare

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was introduced. However, they strongly support the 1.5 hectare requirement because the larger surrounding lots have preserved the rural environment which had led to their purchase. In his opinion the proposed subdivision would adversely affect the further development of vegetation, regeneration of birdlife and the pleasant tranquil rural amenities at present enjoyed.

87. Mr Pollard stated their present view of the proposed Lot 2 is screened

by a row of the Applicant’s cypress trees. These trees are showing signs of ill-health and replacement trees would take up to 10 years to provide similar screening. Lot 2 would also be nearly half the distance compared to their other nearest neighbour causing increased noise concerns.

88. In his opinion the proposed subdivision was contrary to the objectives

and policies of the District Plan and imposes an “absolute limitation” on the minimum lot size. If the application were granted it would provide a precedent leading to the ultimate degradation of the rural nature of the Valley.

Dr Alan Palmer 89. Dr Palmer, BSc (1st Class Hons), PhD in geology, Senior Lecturer in

Soil and Earth Sciences, Massey University was earlier until 1984 employed by Landcare Research NZ. He specialises in recent geology including landscape evolution, sediments, landforms, faulting and erosion. He was President of the New Zealand Society of Soil Science 2000-2002 and a New Zealand delegate to INQUA, an international organisation concerned with geology, soils and climate.

90. He stated that the soils of the Valley walls and floor are poorly drained.

The valley floor is occasionally expected to flood. The terrace soils pose difficulties for safe housing. Most of the Valley lots, including the subject property, are on the Valley middle terrace, where houses should be built at least 50 metres from the terrace edge down to the Mangaotane Stream. The poor soil drainage makes individual sewerage systems more difficult to manage and may not work for long periods of the year requiring larger disposal areas.

91. The weight of houses, other buildings and driveways increase the

possibility of slope failure. Tree planting offsets this risk. The reduced porosity of the landscape by building roofs and other infrastructure requires stormwater to be carefully collected to reduce the potential for erosion.

92. Extensive tree planting and low housing density has lessened the

chances of erosion compared. But poorly operative sewerage systems and stormwater concentration, means that infill housing on smaller lots, will magnify those risks.

93. Dr Palmer emphasised he was a soil and earth scientist and not a civil

engineer. He was unable to give evidence on house foundation and other engineering mitigation measures which might deal with porosity of soils and erosion risks.

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Mr Brett Guthrie 94. Mr Guthrie is the co-owner of 82 Moonshine Valley Road. He is a

qualified scientist, has a Master of Science degree with more than 14 years professional experience working at Massey University.

95. Mr Guthrie stated they purchased the property for its unique location,

to enjoy the open spaces and not be surrounded by houses and other urban trappings. They were attracted by the 1.5 hectare limit and the Valley’s special amenity. The purchase represented a long term commitment. They were particularly concerned with the precedent effect if the application was granted.

96. He criticised the report of Mr Pinkney describing it as superficial

compared with the 1990 report of Royds Garden Consulting Engineers and Planners. In 1990 12 test bores 600 mm deep measured percolation rates. Three of the bores were classified as “severe” for lack of drainage. Mr Pinkney only carried out one bore test. Mr Guthrie’s enquiries indicated the Applicant’s percolation tests were overstated. Horizons Regional Council Manual for On-site Wastewater Systems Design and Management (2007) and Australian/New Zealand Standard (AS/NZ 1547:2000), stated that percolation tests should no longer be used as a sole criteria. The Manual warns that where there is more than one system per 5,000 square metres cumulative intensification and clustering need to be considered. Mr Guthrie stated the Manual was required to be applied to a net area of 8,062 square, after deducting the pond from the gross area of 1.2857 hectares. Testing on that basis was necessary before any subdivision decision could be made.

97. Finally, Mr Guthrie referred to Mr Mayer’s assertion that few if any

other sites are suitable for similar subdivision. He stated that was contradicted by the Council evidence on subdivision potential. This included that a further 45 lots could meet the 1.5 hectare requirement and a further 24 lots if a minimum of 4,000 square metres is applied.

Unrepresented submitters in opposition 98. There were also 17 other Moonshine Valley Road and Whisky Way

submissions in opposition. They included Mr Barrie Macdonald who was present at the hearing and gave additional evidence. The other remaining submitters, some of whom were present, relied on the contents of their lodged submissions.

Mr Barrie Macdonald and Mrs Maureen Macdonald 99. Mr and Mrs Macdonald are the owners of 63 Moonshine Valley Road.

Mr Macdonald commenced his evidence by confirming the contents of their lodged notice of opposition. They pointed out that the application did not comply with the District Plan. The precedent effect had been significantly understated and would inevitably lead to similar applications. The Applicant’s evidence concentrated on the subject property but would have a much wider impact on all owners and residents. It would constitute an ad hoc change to the unique environment of Moonshine Valley. Although the Applicant had conceded subsequent subdivisions would need to be carefully

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controlled to avoid eroding the Valley’s landscape character, the proposed subdivision would itself begin this process of erosion. Finally, they submitted that the application be deferred until Council after consultation has first reviewed and clearly defined minimum lot sizes.

Mr Roy Brooking and Mrs Jacqueline Brooking 100. Mr and Mrs Brooking own Lot 22 of 1.5217 hectares at 125 Moonshine

Valley Road immediately opposite the Moonshine Valley Road frontage of the subject property. At present it is a vacant lot on which they propose in the near future to build a residential dwelling for their personal use. They also own Lot 24 of 3.1193 hectares at 169 Moonshine Valley Road on which their present house is located. They submitted the application was contrary to the objectives and policies of the District Plan; the effects would be more than minor; and if granted it would create a precedent for further subdivision. There was reference to the unique nature of the Valley; the application challenged the specialness of the Valley environment. From a layperson’s viewpoint it was completely against existing criteria and the special nature of the Valley.

Mr Mark Kenny and Mrs Janine Kenny 101. Mr and Mrs Kenny are the owners of 158 Moonshine Valley Road.

They paid a premium to build their home, on the understanding that subdivisions of less than 1 hectare were prohibited partially due to sewerage, drainage and erosion problems. The road was struggling to handle existing traffic. The Valley was a unique area and residents had developed an ecosystem where native birds and insects thrive through large tracts of native planting. The aesthetic value of larger lots would be lost if smaller infill subdivisions were allowed.

Mr Darryn Gibson and Ms Jeanette Sandford

102. Mr Gibson and Ms Sanford own 96 Moonshine Valley Road. They

referred to non-compliance with the minimum area of 1.5 hectares and stressed that Lot 2 was a considerably smaller lot of 0.3762 hectares.

Mr Charles Chua and Mrs Frances Chua 103. Mr and Mrs Chua are the owners of 111 Moonshine Valley Road and

wholly opposed to the application. They chose to live in the Valley to enjoy the peace and tranquillity of country life and its small, friendly community. Smaller than 1.5 hectare lots will spoil that tranquillity and significantly increase existing roading inadequacies, already in many places narrow and dangerous.

Mr Gordon Fisher, Ms Elizabeth Fisher and Ms Caroline Fisher 104. The Fisher property is located at 15 Whisky Way. The Fishers

separate submissions included concern at the registered land covenant being broken; the cumulative effect of the application including later similar applications; the consequential adverse effect on the rural landscape and birdlife. In their opinion the number of under 1.5 hectare lots was overstated.

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Mr W.D. Phillips and Mrs B.M. Phillips 105. Mr and Mrs Phillips own 194 Moonshine Valley Road moving into the

Valley some 10 years ago for its peace, relaxation and wildlife. The Valley was unique. Any further reduction in lot sizes would be outside the spirit and intent of the District Plan. The precedent effect would be to the detriment of residents tranquillity and the Area’s wildlife. It would also increase the narrow no-exit road traffic capacity including the safety of pedestrians. The subject property due to the efforts of a previous owner is one of the Valley’s iconic properties.

Mr Darrell Jones

106. Mr Jones is a former Valley resident who now lives at 72 Brinkburn

Lane, Polson Hill. He described the subject property as one of the most magnificent and unique in the Valley. Subdivision would not only spoil its beauty but foul the nearby stream. He also referred to sewage problems with soils not sufficiently porous to absorb effluent runoff.

Ms Gaylene Tiffen 107. Ms Tiffen the owner of 14 Moonshine Valley Road, purchased her

property because of the Valley’s larger lot sizes. A major objection was the proposed two new lots being under 1.5 hectare. She drew attention to the existing traffic safety particularly affecting the school bus.

Ms Inga Hunter 108. Ms Hunter the owner of 34 Moonshine Valley Road placed importance

on the Valley being within the Rural Zone. There were drainage difficulties both for stormwater and sewage. If the application were granted then so should other smaller lot subdivisions with Council providing necessary additional infrastructure appropriate for urban zoning instead of piecemeal consents.

Ms Elaine Todd 109. Ms Todd owns 57 Moonshine Valley Road. Her concern was the

subdivision would change the unique character of the Valley. It would create a precedent for further under 1.5 hectare subdivisions.

Mr Brett Hoffman and Mrs Kirsty Hoffman

110. Mr and Mrs Hoffman are the owners of 25 Whisky Way. They

purchased the property for its larger space and the quiet nature of the Area. The danger of granting the application was it would provide a precedent for other owners to do the same. There were not the footpaths, roading or street lights to support or provide safety for increased traffic. If trees have to be cut down that will affect the views of neighbouring properties.

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Mr Ivan Snook 111. Mr Snook owns 411 Aokautere Drive but walks down the Valley every

day to enjoy its rural aspect and birdlife. If the application were granted inevitably it would inevitably lead to other undersized subdivisions to the utter detriment of the Valley.

Ms Nola Urbahn 112. Ms Urbahn lives at 435 Aokautere Drive and was also concerned with

the precedent effect including a reduction in trees and birdlife. Mr Patrick Reedy and Ms Sandra Hill

113. They are the owners of 213 Moonshine Valley Road. Separate

submissions stated that the subdivision would detract from the rural nature and uniqueness of the Valley; deplete bird life; adversely increase traffic flows; create adverse precedential effects. The close proximity of another effluent bed leeching into the valley of the existing four person residence, could increase to eight persons upon the construction of the additional residence.

Council Mr Andrew Bashford 114. Mr Andrew Bashford, Bachelor Resource and Environmental Planning,

GMNZPI, AMNZIF, has nearly four years planning experience including over 18 months with Council and is at present a Council Planner. He confirmed the contents of his lodged Report in which he expressed the conclusion that the application be declined.

115. In reaching that conclusion he accepted that the effects on the roading

network, on-site servicing, construction and earthworks will be less than minor. He also indicated that the title covenant is limited to buildings and does not restrict lot sizes. His criticism instead focussed on visual impact and amenity, Valley character and precedent and cumulative effects. These were assessed as being more than minor. He also stated that the application was not inconsistent with the Regional Policy Statement of Horizons Regional Council or affected by its notified One Plan.

116. Visual effects and amenity: Mr Bashford first referred to an apparent

factual discrepancy and procedural error in Mr Mayer’s report but these were resolved during the hearing. On matters of substance he adopted Mr Gillespie’s report. He agreed that because of the small lot sizes, future development is likely to put pressure on the removal of a number of mature trees. He also doubted that the proposed three accessory buildings for each lot will be sufficient and may lead to future applications for additional buildings. Another concern was that it would take several years for new boundary planting of 6 metres in height to reach maturity. On building reflectivity conditions he stated that at a building consent stage, difficulties had been experienced in implementing such conditions. He shared Mr Gillespie’s view that a building and lot layout plan was necessary before a proper assessment could be made of adverse visual and amenity effects.

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However, he noted that the Applicant had now lodged a scheme plan and put forward further conditions towards meeting some of Mr Gillespie’s criticisms.

117. Valley character: Mr Bashford agreed with Ms Voice’s and Mr Mayer’s

description of the Valley character. He supplied a more detailed list of Valley lot sizes showing they included 38 properties of which 18 were under 1.5 hectares. He confirmed that the Area’s below 1.5 hectare lots were all created before the 1.5 hectare limitation was introduced.

118. He disputed that the proposal was consistent with the existing

development pattern and would not compromise the character of the Area. Lot 2 is almost half the size of the smallest adjacent lot. In his opinion the proposal was out of character with the surrounding locality and the Moonshine Valley Area as a whole. There will not be the desirable balance of residential activities and natural landscape as most of the area will be residential. There will be no room for pastoral use. The dwellings will be close together compromising privacy.

119. Precedent and cumulative effects: Mr Bashford was of the view that

the subject property was not unique in the context of the Valley or the district but that the Valley was unique in terms of the wider environment of the City. There was nothing exceptional about the subject property that makes it distinct from other Valley Area lots. After referring to the Applicant’s submission that at least 50% of the Valley lots were under 1.5 hectares showed that a precedent effect does exist. Allowing the application would only further exacerbate that situation.

120. As to cumulative effects, he considered they are unlikely to arise but if

the grant became a precedent, cumulative effects would be relevant for any similar later subdivisions.

121. Mr Bashford next dealt with District Plan objectives and policies. On

City View community objectives, the proposal was “not inconsistent” with the Leisure, Heritage and Mobile communities. However, it was not consistent with Attractive Community objectives. It failed to maintain and enhance the visual appeal of the City by removing vegetation; failed to provide for the balance between rural and residential character and their densities; the mitigation measures are inadequate to manage the effects on the environment.

122. On Section 7 Subdivision objectives and policies he considered the

proposal could not achieve the requirements under Objective 1 of Policies 1.1, 1.3 and 1.5(5). Under Objective 2 he considered the under-sized Lot 2 does not meet Policy 2.1. In relation to the Rural Zone, Mr Bashford stated that the failure to deal with adverse effects, resulted in the proposal being contrary to Policies 2.2 and 2.3 of Objective 2.

123. Under the RMA, Mr Bashford considered the proposal was contrary to

the section 5 purpose as it does not promote sustainable management, protect natural or physical resources nor avoid adverse effects on the environment. He recognised that the Valley and its environment are under section 6 not matters of national importance.

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Mr Kevin Gillespie

124. Mr Kevin Gillespie, BSc Landscape Design and Archaeology, PG Dip Landscape Architecture, MLIUK, GMNZILAL, has since 2007 been the Council Senior Landscape Architect. From 1999 to 2004 he was a landscape architect with two consultancy firms in the United Kingdom and in private practice from 2005 to 2007 before arriving in New Zealand.

125. His first report stated that while the Valley is a City asset and needs

protection, it has the capacity for absorption of additional development. This was subject to specific site conditions being well designed in harmony with the character of the surrounding landscape. In his opinion the landscape proposals failed to meet those criteria.

126. The Valley had developed through adherence to covenants and the

ability of nature to adapt and allow humans to live in harmony with wildlife. The existing lots including those under 1.5 hectares, are large enough to accommodate aims to increase biodiversity. It was difficult to predict how much additional development the Valley could accommodate without impacting on the natural environment. The presence of two significantly large reserves will help mitigate potential adverse effects.

127. The undersized Lot 2 was a significant contestable aspect of the

subdivision proposal. The significant northern boundary vegetation will also result in a lack of solar gain for a new dwelling. A probable potential situation is that an owner would remove the northern hedge replacing it with lesser screening wholly inadequate for visual mitigation. The proposed new access will open up the line of the hedge and reveal the present screened interior. The presence of the dwelling visible from the road together with its unknown design and location, render it professionally impossible to imply effects will be minor. Screening on neighbouring properties is not an acceptable mitigating situation. However, it would be acceptable if planting more in harmony with the Valley addressed the opposing issues of mitigation and solar gain. A proposed option would be expensive and time consuming. In his opinion a detailed landscape master-plan was necessary for a proper assessment.

128. Mr Gillespie’s later rebuttal report reaffirmed his earlier views. The

Applicant’s mitigation response relied on visual protection by existing substantial planting but it was strongly probable that the development will result in its partial or total removal. It would probably also result in a future owner reducing the quantity of vegetation to deal with the shading issue. Although solar gain is not a planning matter, it is highly probable potential owners will see it as a fundamental requirement. In rebuttal he clarified his earlier comment, by stating the reserves add character to the Valley but offer neither a positive or negative mitigation impact.

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Mr Daniel Tate 129. Mr Daniel Tate, Bachelor of Engineering (Civil) (Honours), GMIPENZ

has over 10 years professional experience and is at present the Traffic Engineer (Developments) of the City Networks Unit of Council. He recommended against the application being declined on road traffic or efficiency grounds.

130. He considered accident history, sight lines, traffic generation,

cumulative effect of increased subdivision and other relevant roading matters. Over the past five years there had been one reported Valley traffic accident, which occurred when a vehicle exiting from a concealed driveway collided with an oncoming road vehicle. There were no injuries. Although the existing accesses do not comply with Distance Plan sight distances, given Whisky Way’s short length and low traffic they were acceptable. If the proposed new access for Lot 2 were replaced by widening the existing Lot 1 access, to provide access for both Lots 1 and 2 that would be a preferable alternative.

131. The existing 36 dwellings accessing Moonshine Valley Road

generated 200 vehicles per day and 24 vehicles per hour at peak periods. An additional dwelling is likely to increase daily rates to 205 vehicles and peak rates to 25 to 26 vehicles. Peak flows are tidal with traffic flows in one direction in the morning peak and in the opposite direction in the evening peak. This level of increased traffic is unlikely to be noticed on the road network. It will not have a significant effect on the safety and network of Valley local roads. If 24 additional lots were similarly subdivided elsewhere in the Valley, their vehicular traffic would be well within the capacity of Moonshine Valley Road.

IV FINDINGS: 132. We have considered all of the evidence, including the site inspection,

against the background of the Part 2 purpose and principles and other relevant provisions of the RMA, our own District Plan, the Regional Policy Statement and the cited case law. We have also taken into account the opening submissions of Ms Voice and Mr Matthews and their submissions in reply.

133. We find that the subject property and the proposed two lots are within

the Moonshine Valley Area. Under its Controlled Activity performance conditions both Lots 1 and 2 fail to comply with the minimum lot size of 1.5 hectare while Lot 2 in addition fails to include 5,000 square metres of contiguous land required to accommodate or comply with three specified matters. If the subdivision is to proceed the Applicant therefore needs to obtain a Non-Complying Resource Consent in accordance with sections 104B, 104D RMA and Rule 7.16.4 of the District Plan.

134. Before determining whether the requirement of section 104D RMA has

been met and if so then to have regard to section 104, we need to determine relevant factual matters.

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135. We find that there are 38 lots within the Moonshine Valley Area of which 18 are under 1.5 hectares. The Area existing lot sizes under 1.5 hectares were approved before the 1993 increase. We confirm that the 1997 subdivision for three new lots under 1.5 hectares with frontages to Moonshine Valley Road, was approved under the Aokautere Rural-Residential Area in accordance with its 3,500 square metres minimum lot size. All 38 lots of the Moonshine Valley Area were legally created under Controlled Activity consents. Under the present District Plan the proposal to create two lots under 1.5 hectares requires a Non-Complying consent.

136. Among the matters we have to determine is the affect of the proposal

on the relevant environment. The “environment” is defined in section 2 RMA as ecosystems and their constituent parts including people and communities; natural and physical resources; amenity values; and related social, economic, aesthetic and cultural conditions. “Amenity values” means those natural and physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, cultural and recreational attributes. In these proceedings references by the parties to the “character” of the Valley were used to describe the particular nature and quality of the Valley environment which distinguishes it from other City localities.

137. In many but not all cases, the area of a particular environment

including its aesthetic coherence, may correspond with District Plan defined boundaries of a zone or area. We are satisfied that the relevant environment is the physical area of Moonshine Valley from the intersection with Aokautere Drive, along the Valley floor and extending up the Valley walls in the region of 40 metres to ridge boundaries. The application is complicated by the relevant environment not only including the Moonshine Valley Area but also the three Aokautere Rural-Residential Area lots. We were informed that in 1993 Council upheld the objection of the then owner for that land being excluded from the Moonshine Valley Area.

138. The Applicant, the represented objectors and others spent

considerable time on whether the subject property was “unique.” This was an unnecessary diversion for “uniqueness” is not a relevant non-complying activity test. The Courts have held in a number of cases, including those already cited, that the proper lesser test is the likelihood of later materially similar applications being granted.

139. Applying that test we find that the subject property is materially

different to all other Valley Area properties. A major difference is that it has no common boundaries with other lots. Instead it is bounded by roads on two sides, on the third side by a Council reserve and on the fourth side by a long 10 metre wide access to other more distant lots. The other lots advanced as potentially being subject to similar applications do not share these characteristics. There are also several existing lots where houses are in full or partial view from the road. One alleged potential subdivision was 125 Moonshine Valley Road but it has common boundaries with three private lots while the sole road frontage is unscreened. The opposite corner property at 96 Moonshine Valley Road has boundaries with two other lots while its Whisky Way frontage is unscreened with limited screening to

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Moonshine Valley Road. All properties which it was claimed potentially could result in other below 1.5 hectare subdivision were materially different. They generally have common boundaries to two but in most case three private properties.

140. After carefully considering all relevant factors we find that granting the

application is unlikely to lead to the grant of similar under 1.5 hectare subdivisions.

141. Turning to objectives and policies we will apply the cited Court

judgments including the recent Beacham v Hastings District Council. This requires us to determine if the present application is one of “clearest cases, involving an irreconcilable clash with important provisions, when read overall, of the District Plan.” On this issue we first note that the District Plan does not include a Rural-Residential Zone or any Area sub-zones. Nor are they referred to in the very wide and general City View community objectives. The Rural Zone objectives and policies are of little assistance as they are principally concerned with protecting farming, agricultural and relatively narrow related rural activities. Council accepted this position in respect of the Rural Zone’s objectives and policies except for Policies 2.2 and 2.3 of Objective 2. Council also submitted the proposal was contrary to the Subdivision Objective 1, Policies 1.1, 1.3, 1.5(5) and Objective 2, Policy 2.1. 2. Mr Matthews after criticising the absence of specific objectives and policies for the Valley Area submitted that the application was inconsistent with Rural Zone Objective 3 and the Subdivision Objective 1, Policy 1.1 and Objective 2.

142. The difficulty these submissions face in relation to the Rural Zone are

that its objectives and policies principally aim to protect farming, agricultural and related uses rather than rural-residential activities. For example, Objective 1 is to protect rural land from the adverse effects of unnecessary and unplanned urban expansion. The subject property is not urban. Objective 3 similarly is concerned with enhancing the quality and natural character of the rural environment including under its policies for the “rural area” and matters concerning the rural environment. The policies either expressly or in context apply to the Zone’s principal rural area and not to a rural-residential area. The Residential Zone objectives and policies similarly do not specifically deal with either the Moonshine Valley Area or any other District Plan rural-residential locations.

143. The Section 7 Subdivision general provisions first broadly apply to ten

Zones after which there are specific subdivision provisions for each of those zones. It was argued that the proposal was contrary to Objectives 1 and 2 and some of their policies. Objective 1 requires a subdivision to be consistent with integrated management of land and buildings, development and protection of land and other natural and physical resources. This general provision does not require identical development but consistency. Policy 1.1 requires subdivision to be “generally” in accordance with existing land use patterns. Objective 2 again in general terms, is concerned with “due regard” being given to natural and physical characteristics and avoiding remedying or mitigating any adverse effects on the environment. Like the Rural Zone none of the Subdivision general objectives and policies are mandatory or prohibitory.

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144. The Subdivision section after setting out general provisions, goes on

to refer to the Rural Zone and other relevant zones. Those zonal specific provisions merely prescribe Rules. This approach again emphasises difficulties caused by the omission of a District Plan Rural-Residential Zone or a similar specific zone for life style properties. Rural-residential or life style properties are quite different to residential and solely rural properties. The District Plan gives them only minimal recognition and as some submitters argued inadequate provision.

145. Mr Matthews in an attempt to overcome this difficulty, initially invited

us to link the Subdivision general objectives and policies, to the life-style Rule 7.16.1.2. We consider a linkage approach would not overcome the generality of the objectives and policies nor sufficiently widen the scope or force of the Rule. Mr Matthews appeared to recognise this for in reply he submitted that we should more simply adopt a broad approach and hold that the proposal was contrary to the objectives and policies of the District Plan. We do not consider we may properly adopt that course. We must consider the overall Plan provisions. After doing so we are satisfied that the proposed subdivision does not irreconcilably clash with or is contrary to the City View, Subdivision and Rural Zone objectives and policies. The Applicant has therefore satisfied the section 104D(1)(b) gateway test. We are obliged to determine the application having regard to section 104 considerations.

146. Section 104 matters are subject to the Part II purpose and principles of

the RMA. The section 5 purpose is to promote the sustainable management of natural and physical resources defined in sub-section (2). The management of those resources for the statutory wellbeings and people’s health and safety, is subject to sustaining the resources for future generations, safeguarding air, water, soil and ecosystem while avoiding, remedying or mitigating adverse effects on the environment. We are satisfied that the purpose of sustainable management, meeting the reasonably foreseeable needs of future generations safeguarding the stated life-supporting capacities can in terms of section 5 be achieved by imposing avoidance, remedial and mitigating conditions. We will deal with conditions when we consider adverse effects.

147. The disputed adverse effects were visual effects and amenity, Valley

character precedent and cumulative effects. The advanced adverse visual and amenity effects principally concerned reduced screening of the subject property from neighbouring properties. At present the Whisky Way frontage is screened by a tall row of cypress trees from 6 to 8 metres in height. There are gaps where two existing accessways are located. The Applicant proposed closing the secondary entrance located about 5 metres from the Moonshine Valley intersection and filling that gap with new trees. A new access was proposed for Lot 2 about midway along the row of trees. The Pollards submitted the reduced screening would expose any Lot 2 house. There was also a third alternative of widening the more distant single access to become a shared and sole entrance to both Lots 1 and 2. This was preferred by Council. We accept the Pollards submission and reject the Applicant’s proposed new accessway for Lot 2. This

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will avoid the otherwise adverse visual effect. The access to Lot 2 will be limited to widening the existing principal access to be shared with Lot 1. Any wider adverse accessway view from Pollards property, compared to their existing view, will be no more than minor.

148. There was also concern that shading effect to Lot 2 caused by row of

cypress trees, may lead to them being removed or reduced in height. The Applicant stated that before any cypress trees were removed, replacement native trees be established capable achieving heights of 4 to 6 metres with the existing trees not being removed until the new trees reached a height of at least 3 metres. This may be enforced by a condition. There was also criticism of some internal trees having been removed within the proposed Lot 2. Until a consent condition provides otherwise removal of trees is lawful. As to future removal of internal trees that may be prohibited or controlled by a condition. We consider that such a condition is unnecessary as the adverse effect of the removal of Lot 2 internal trees would be no more than minor. The crucial requirement is that boundary planting is preserved and if possible enhanced. The District Plan has no provisions to deal with the shading effect on Lot 2. However, under a consent any replacement trees can be limited to 6 metres and any topping of the cypress trees to be down only to 6 metres. This will mitigate shading effect concerns. In any event existing shading, aspect and related factors are subjective matters for an individual purchaser to assess.

149. The objections based on the Valley character are intertwined with the

Valley environment. As with the Valley environment so too with its character, factors we take into account include its ecosystems, natural and physical resources and amenity values. One factor contributing towards achieving that character has been the minimum 1.5 hectare lot area. Another has been the admirable efforts of owners of such lots, transforming the Valley to its present native bush regeneration and exotic planting attributes. The minimum lot size has not solely been responsible. About half of the Valley lots are under 1.5 hectares have similarly been enhanced by the work of their owners. The potential for smaller lots significantly to contribute to that environment was clear during our site inspection. A present example is the subject property of 1.2858 hectares.

150. In the assessment of character and environment we fully take into

account that both new lots will be under 1.5 hectares. The character of Lot 1 will largely remain unchanged. As to size there are seven other existing Valley lots smaller than its 9,062 square metres. The major change will be the much smaller 3,762 square metres of Lot 2. This smaller lot requires to be assessed not in isolation but in the context of the overall Valley environment. There are other Valley lots of 2,304, 3,500 and 3,703 square metres. Unlike Lot 2 those three lots and all larger lots, do not have wholly non-rural or rural-residential boundaries. Not all share with Lot 2 the high degree of boundary screening. Taking into account substantial avoidance and mitigating conditions we find that the adverse effect of both lots being below 1.5 hectares will be no more than minor.

151. A major objection was based on precedent the application would

create if granted. Precedent is an important planning principle but very different to more stringent legal precedent where lower courts

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must follow the decisions of higher courts. Planning precedent is more subjective based on the principle that like cases should be treated alike. Therefore considerable caution needs to be exercised in granting non-complying consent to ensure it is not likely to lead to the grant of similar applications. If it did the serious risk is of undermining both the administration and integrity of the Plans. We approach the present application on that basis.

152. We are satisfied that within the City, the Valley’s character and

environment are exceptional. We confirm that the test for granting a non-complying consent is not to establish the subdivision is unique but whether it is outside the generality of other potential applications. The proposed subdivision for the reasons earlier stated is outside the generality of other potential applications. In planning terms the evidence does not establish that it would have adverse precedential effects. We are also satisfied it will not create cumulative effects. We agree with the Council submission that in the absence of precedent, cumulative effects are for this application not directly or potentially relevant.

153. We accept the expert Council road traffic evidence that the effects of

the subdivision on Valley and network roading and road safety will be less than minor.

154. The Applicant called two registered engineers who stated that subject

to conditions both Lots 1 and 2 can be provided with adequate stormwater and waste water disposal systems. They were also satisfied that any erosion risks can be avoided or remedied. Council arrived at the same conclusions. Dr Palmer’s clearly explained soil analysis was generally shared by the other experts. He properly made it clear that on erosion and foundations he did not have civil engineering expertise. We find that adequate stormwater and waste water systems can be constructed. We are satisfied that erosion risks can be dealt with by consent conditions. On the evidence this is not an application which may be refused under section 106 RMA. We are satisfied that safeguarding conditions need to be imposed for stormwater and waste water disposal. Adopting a precautionary approach, the on-site effluent disposal system for Lot 2 must be located on the Whisky Way frontage as shown on the scheme plan adjoining Whisky Way. We reject the Applicant’s alternative suggested location towards the edge of the upper and lower terraces. As to water supply for Lot 2 we will adopt the fire fighting condition recommended by the New Zealand Fire Service.

155. We find that the application is not inconsistent with Horizons Regional

Council Regional Policy Statement or its notified One Plan. We accept the Council submission that as the pond has been artificially created it is not a rare or threatened wetland. Discharges into the pond would therefore not be subject to existing Regional Council controls.

156. In addition to the statutory and regulatory provisions, we may under

section 104(1)(c) RMA have regard to “any other matter” we consider relevant and reasonably necessary to determine the application. We were referred to and considered the documents listed in the preceding paragraph 75. These were helpful and generally relevant. We were also referred to the residents meeting with Council in 1997 relating to

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the three lot subdivision approved under a non-notified consent on 28 June 2007 of Lot 2 Deposited Plan 60849 within the Aokautere Rural-Residential Area. The consent explains how those 3 lots were created but is not otherwise directly relevant. The remaining document was a letter from the Council Principal Planner sent to Moonshine Valley residents on 10 August 2007. After referring to the District Plan rules allowing an application to be made for a subdivision under 1.5 hectares, it went on to state that any application would likely require support from neighbouring property owners. The comment would be correct as to notification. If it were to extend to a grant of an application it could only have been an expression of the officer’s personal opinion. Until an application is lodged, considered and decided the sufficiency of evidence is a matter of speculation. The effect of support or opposition by neighbouring owners may be only one of several factors to be considered. In any event the letter was not a matter that could be considered under section 104(1)(c).

157. We appreciate that the submitters in opposition, who advanced very

well articulated and researched reasons against the grant of the application, will be disappointed with the result. The holding that granting the application will not create a precedent, means that the decision properly applied, will not open the floodgates for more significantly under 1.5 hectare new lots. A major obstacle facing the objectors was the limited District Plan controls not only for the Moonshine Valley Area but for other rural-residential areas. As their Counsel emphasised this was not the fault of the submitters.

158. We pointed out during the hearing that the Committee sits as

independent commissioners charged with applying the District Plan to the established facts. We have no policy power to amend the District Plan. At present a major Council policy review of the District Plan is underway. We record that we are unable to defer this application as requested by one submitter to that review. This is because upon an RMA application being made it triggers the statutory time frame which prevents such a deferral.

159. We understand that for that review Council officers are considering

whether more adequately, perhaps by a new specific Zone, to improve the existing minimal rural-residential provisions. We draw this to the attention of submitters, in case they may wish to make submissions to Council on this issue which loomed large in this application.

V. DETERMINATION: 160. On the basis of the foregoing findings we are prepared to grant the

resource consent applications on the undermentioned terms and conditions. So far as the first land use consent is concerned, we will assume the Rural Zone Rule 9.6.5(a)(ii) requirement for a minimum building site area of 1 hectare, does not conflict or is impliedly repealed, by the Subdivision Rule 7.16.1.2(b)(ii) area of 5,000 square metres.

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VI. GRANT OF RESOURCE CONSENTS: 161. We hereby grant the application of PETER LEN ROBERT BUTLER

pursuant to Section 104B of the Resource Management Act 1991 for the following resource consents including in terms of the bundling principle on a non-complying activity basis in relation to 7 Whisky Way within the Moonshine Valley Area of the Rural Zone comprising 1.2857 hectares more or less being Lot 1 Deposited Plan 72719 and all the land in Certificate of Title WN38A/435 (Wellington Registry):

(1) subdivision consent to create two new lots namely Lot 1

comprising 9,062 square metres and Lot 2 of 3,796 square metres as defined in the Applicant’s lodged scheme plan being below the minimum lot sizes and minimum area of contiguous land both prescribed by Rule 7.16.1.2(b (ii);

(2) land use consent for the existing building on Lot 1 and

to establish a new building on Lot 2 where the lots do not meet the minimum site size prescribed by Rule 9.6.5(a)(ii);

(3) land use consent for the encroachment of the minimum

sight distance prescribed by Rule 20.3.9.1 between the intersection of Moonshine Valley Road and Whisky Way and the sole shared accessway to Lots 1 and 2 from Whisky Way.

SUBJECT TO the following conditions imposed pursuant to Section 108 RMA:

(1) The existing shelter belts on the boundaries of the

subject property to remain unaltered except:

(a) the shelter belt on the common boundary of Lot 2 and Whisky Way (“the Whisky Way shelter belt”) may be reduced in length sufficient to permit the construction of the shared accessway from Lots 1 and 2;

(b) the secondary existing accessway 5 metres from

the intersection is to be permanently closed and on closing the gap planted with native trees capable of achieving a height of 4 to 6 metres;

(c) the Whisky Way shelter belt may be topped down

to a height of 6 metres above ground level; (d) the Whisky Way shelter belt may only be removed

after replacement by native trees capable of achieving a height of 4 to 6 metres and by that removal time having reached a height of 3 metres.

(2) No externally visible boundary fencing shall be

permitted on the common boundaries with Moonshine

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Valley Road and Whisky Way except the sole shared accessway of Lots 1 and 2 to Whisky Way.

(3) Buildings and accessory buildings on Lot 2 may not

exceed a maximum height of 6 metres.

(4) Accessory buildings on Lot 2 may not exceed three with a maximum combined floor area not exceeding 150 square metres.

(5) Roofs and exterior finishes of all buildings and other

structures on Lot 2 shall be non-reflective and of neutral colours.

(6) The existing principal accessway of the subject

property to Whisky Way shall be widened to provide a shared sole accessway from Lots 1 and 2 to Whisky Way and constructed in compliance with Rule 20.3.9 of the District Plan.

(7) The altered location of the existing Lot 1 effluent

disposal system must not be any closer to the embankment separating the upper and lower terraces than its existing location. The effluent disposal system for Lot 2 shall be located generally as shown on the scheme plan and not nearer to the embankment. The area of each effluent disposal system shall be 800 square metres or such lesser area certified as adequate by a registered civil engineer and approved by the General Manager, Customer Services.

(8) Before any redevelopment of Lot 1 and development of

Lot 2 commences the consent holder shall submit to Council for approval by the General Manager, Customer Services:

(a) A land development plan including the location of

the effluent disposal systems;

(b) Design plans for the stormwater system and two effluent disposal systems which for the effluent disposal systems must include a management and maintenance plan;

(9) Lot 2 shall have sufficient water supply for fire fighting

purposes installed in accordance with the New Zealand Fire Service Code of Practice for Fire Fighting Water Supply SNZ PAS 4509:2008.

(10) Before requesting approval under section 223 RMA the

consent holder must supply a written statement by a registered surveyor that all services are confined to their respective lots or provision is made for suitable waste water and other easements to be granted or reserved and endorsed in a Memorandum on the Land

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Transfer Plan of the subdivision to the satisfaction of the General Manager, Customer Services.

(11) Before requesting approval under section 224 RMA all

engineering works approved by Council pursuant to Conditions 6, 7 and 8 must be completed to the appropriate standard in Council’s ‘Engineering Standards for Land Development’ to the satisfaction of the General Manager, Customer Services.

ADVICE NOTES

• Development Contributions

The consent holder is advised that approval under Section 224 RMA for any stage will not be granted until the appropriate development contribution authorised under section 198 of the Local Government Act 2002 is paid for calculated in accordance with the Council Development Contribution Policy.

• Rights of Objection

A right of objection to the conditions specified above may be exercised pursuant to section 357(2) RMA by the consent holder. Any objection must be made in writing setting out the reasons for the objection and lodged with Council within 15 working days of the grant of the consent or within such extended period as Council may allow.

• Building Consents

A separate application for a building consent from Council for any buildings to be erected on Lots 1 or 2 is required including for any earth retaining structure or wall higher than 1.5 metres.

Dated this 28th day of January 2010.

(Cr. Gordon Cruden)

hairperson (Cr Annette Nixon) (Cr Lew Findlay Member Member

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