Legal

Homebush Road Residents Group

Help us save the Ngauranga green gateway to Wellington.

The Council has an obligation to protect the Open Space B status of the entrance to the city at Ngauranga by upholding the District Plan.

Summary of legal matters:

There are two legal precedents that have particular significance when considering the Prime Property Group application to change the zoning of the Ngauranga Forest Block to allow for residential development:

In Capital Coast Health vs Wellington City Council, the court stated that private land can be zoned for reserve purposes (as is the situation with the Ngauranga Forest Block).

In McKenna v Hastings DC, a High Court decision early in 2009 supported previous decisions that s 104(1) of the Resource Management Act requires a decision-maker to have regard not just to effects, but to national and regional planning documents, the District Plan, and other relevant matters.

Comment:

(1)Capital Coast Health Limited v Wellington City Council.

In 2000, the Council was the respondent in Capital Coast Health Limited v Wellington City Council. There are significant issues in this case that Homebush Road Residents Group contends need to be addressed as this decision has been incorrectly interpreted as supporting appeals against the retention of Open Space B land which is in private ownership. In the decision, the Environment Court made it clear that:

“As a general principle private land should not be zoned for reserve purposes (however described and either expressly or effectively) unless:

It is already reserved for such purposes; or

The landowner agrees; or

It is incapable of being used for other purposes”

The conclusion (para 185) states:

“We agree with Mr Thomas that the appropriate method of establishing public Open Space of the site was through designation or acquisition. As this has not occurred, we therefore endorse Inner Residential zoning for the site.”

The Ngauranga Forest Block was already zoned as Open Space B in 2006 when purchased by Prime Property Group. This zoning had never been challenged by previous owners subsequent to the designation being imposed. Consequently, as the land was already “reserved for such purposes” there are no reasonable grounds for changing the Open Space B zoning.

In its application, Prime Property Group also relied on decisions from District Plan Change 34 in which six pieces of privately owned Open Space B land were rezoned for residential purposes. The first point that must be made is that the Council made its decision on the basis of an erroneous transcription of the CCH v WCC decision. The transcription was supposed to be of the first of the above italicised quotes but the word “or” was replaced with “and”, which of course, misrepresented the judgement of the Environment Court .

Five of the re-zonings related to very small parcels of land, which had no significant impact on either the town or green belts.

The sixth case is instructive. The Miramar Golf club had sold a section of land, referred to as Bunker Way , that was protectively zoned Golf Course Recreational Precinct which precludes residential development. A developer appears to have commenced work on the land prior to the zone change decision having been made. Faced with a re-zoning application for a similarly zoned area on Michael Hill’s golf course, the Queenstown Lakes District Council upheld its District Plan zonings and declined the application. That Council no doubt had confidence in doing so, as previous appeals against its environment protecting decisions had failed.

(2)McKenna v Hastings DC

Should the Council feel persuaded by zone change precedents provided by the applicant, attention is drawn to a High Court Decision which was released on 1 January 2009 . This upheld the decision of the Hastings District Council and subsequently the Environment Court which stated:

“We are mindful of Mr Lawson’s comment that the Council’s position smacks of policy-based, rather than effects-based, resource management. But we are conscious too that s 104(1) requires a decision-maker to have regard not just to effects, but to national and regional planning documents, the District Plan, and other relevant matters. Things do not begin and end with effects, and it must be the case that on occasion, the terms of a planning document may prevail, even if adverse effects are not decisive. We are sympathetic to Mr and Mrs McKenna’s position but have the clear view nevertheless that this is a situation where the plain terms of the Plan should prevail, and that to hold otherwise would not promote the sustainable management of the resource in question.”

In our opinion:

Capital Coast Health v Wellington City Council is not a precedent for changing the Open Space B zoning of the Ngauranga Forest Block.
The irregularities, scale and nature of the District Plan Chance 34 decisions compromise them as precedents.
McKenna v Hastings District Council provides robust support for the rejection of the Prime Property Group application.

Appeal issues:

The Homebush Road Residents Group asserts that the Council should decline the Prime Property Group application to have the Ngauranga Forest Block rezoned for residential development. The applicant may then choose to lodge an appeal with the Environment Court . This would open the way for community organisations that have opposed the application to actively support the Council, a scenario that would be far preferable to expecting the community to fund, yet another legal challenge in order to uphold the integrity of District Plan.

If the Council endorses the Prime Property Group application, the decision would add to others that are widely perceived by ratepayers as unnecessarily ‘developer friendly’ and one more environmental decision of the Council that is likely be overturned on appeal.

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