Environmental / Resource Management

RMA "Subdivision", GMOs and Road Stopping Notice / Consultation - A Spring Round Up of Decisions You Should Know About

We shine the spotlight briefly on three recent decisions of the Environment and High Courts concerning:

  1. Whether certain property arrangements for leased land fell within the RMA definition of "subdivision" (Re Spark New Zealand Trading Ltd [2016] NZEnvC 115);
  2. Whether the RMA enables regional councils to provide for GMOs in regional policy statements and plans (Federated Farmers of New Zealand Inc v Northland Regional Council CIV 2015-488-64); and
  3. What is considered to be adequate public notice and consultation on road stopping proposals under Schedule 10 of LGA'74 (Morgan v Waikato District Council [2016] NZEnvC 177).

We recommend taking note of these decisions if you're a leaseholder or landowner of leased land, work at or for a local authority in a capacity concerning planning, property or roads, have farming interests, or live/own land adjacent to a paper road.

1.    Property arrangements for leased land constitutes "subdivision" under the RMA

The Environment Court's decision in Re Spark New Zealand Trading Ltd concerned a successful declaration application by telcos Spark and Vodafone (together with others including Kordia, Team Talk and Two Degrees) regarding the definition of "subdivision" under s 218 of the RMA.

The telcos operate cell towers and telemetric transmission towers generally located on sites leased from landowners.  Clearspan had arrangements where it became responsible for the rents collected on certain sites leased by the telcos.  The question for the Environment Court was whether the type of property arrangement that Clearspan had with the owners of sites the telcos leased on Hayr Road (Mt Roskill, Auckland) and in Waiuku constituted "subdivision" within the meaning of s 218 of the RMA.  The telcos sought a declaration to this effect, arguing that Clearspan's arrangements comprised a 'division of allotment' under either s 218(1)(a)(ii) (disposition by way of sale or offer for sale of the fee simple to part of the allotment) or s 218(1)(a)(iii) (concerning leases for more than 35 years).

Clearspan's arrangement with landowners involved an agreement for sale and purchase, and encumbrances registered on the titles by virtue of covenants attached to the agreement for sale and purchase.  Specifically, Clearspan had (in the Court's words), the intention to "obtain the rights to control, set and receive rentals, and otherwise deal with the Telco site and the landowner will continue to have full rights over the balance of the land. The area of land is set out and attached to the plan. That area of land is to be the subject of a survey and depositing with LINZ in due course." 

The Court declared that Clearspan's arrangement constituted a "subdivision" within the meaning of s 218 of the RMA as it is "clear from the documentation that there is a division of the allotment".  The following were cited as reasons for its conclusion (para [14]):

(a)  the agreement for sale and purchase indicated an intent to create a separate allotment;

(b)  this was to be supported by a consequent survey and deposition of plan;

(c)  that the transfer as to tenants in common is to be in shares to which that area bears to the total area of the land; and

(d)  that the covenants divide the operational responsibility for the areas as a matter of fact.

Importantly, the Court held that Clearspan's clear intent in entering into this arrangement with landowners was to effect subdivision in all but name. 

2.    RMA provides regional councils with power to make provision for GMOs

Federated Farmers of New Zealand Inc v Northland Regional Council was an unsuccessful High Court appeal by Federated Farmers of the Environment Court's declaration that power existed under the RMA for the regional council to make provision for the control and use of genetically modified organisms (GMOs) through regional policy statements or plans.

Federated Farmers had argued that the Environmental Protection Agency was the proper and sole regulator of GMOs under the HSNO statute citing as its grounds for appeal, propositions that the Environment Court:

  1. erred by adopting the "express exemption test" in Meridian Energy Ltd v Southland District Council [2014] NZHC 3178 where Whata J noted (at para [23]):
    [23] The RMA provides a comprehensive framework for the regulation of the use of land, water and air. It signalled a major change from the direct and control emphasis of the previous planning regime to the sustainable management of resources, with its composite objective of enabling people and communities to provide for their wellbeing while, among other things, mitigating, avoiding or remedying adverse effects on the environment. The Act is carefully framed to provide control of the effects of resource use, including regulatory oversight given to functionaries at national, regional and district levels. In general terms, all resource use is amenable to its framework, unless expressly exempted from consideration.
  2. took matters into account which it should not have or reached conclusions without evidence; and
  3. failed to take into account the overlap in provisions between the RMA and HSNO.

The High Court dismissed Federated Farmers' appeal finding that the Environment Court:

  1. had referred to the test in Meridian only as a "starting point";
  2.  had not erred by determining the issue solely by reference to whether or not there was express exemption of GMOs from the ambit of RMA.  The Environment Court had undertaken an exercise in statutory interpretation, having regard to the text and purpose of applicable provisions of both the RMA and HSNO; and
  3. had made no particular errors in its comparison of the respective definitions of "effect" in RMA and HSNO.

3.    Adequate notice and consultation for road stopping proposals

Morgan v Waikato District Council is an unusual case in that the sole objector to the road stopping proposal was also the author of the staff report recommending the proposal in the first place.

However, while the Environment Court's decision in this case confirmed the District Council's road stopping proposal, the comments below by the Environment Court are worth noting for the purposes of:

  1. what amounts to adequate notice on road stopping proposals; and
  2. the matters the Environment Court is required to consider under clause 6 of Schedule 10 when evaluating a road stopping proposal (in particular, whether and/or when there is a specific requirement to consult iwi on road stopping proposals),

On whether or not the District Council gave adequate notice of the road stopping proposal, the Court considered that (para [58]):

…traditional methods of providing notice may need to be examined in the light of technological change and generational attitudes about accessing information. We suggest that as time progresses a more finely grained approach to this topic will be required. The reason for this is relatively obvious; if the notice given does not effectively reach the target audience, then it will not produce a true indicator of the interest either for or against a particular proposal.

The District Council notified the road stopping proposal in the Waikato Times (in addition to affixing notices at either end of the paper road in question and at the District Council's offices for example).  However the Court noted that the Ngaruawahia community had its own local paper in which the road stopping proposal ought to have been advertised also.  Importantly, the Court reached the view that the notice in this case was "adequate, but only just".

The Court's observation of the level of consultation undertaken with iwi on the road stopping proposal is relevant to note in light of the obligations of councils under Schedule 10 and the matters the Court is required to consider under clause 6 of that schedule. 

Mr Morgan submitted that the District Council was obliged to consult with Waikato-Tainui about the road stopping proposal under the River Settlement Acts as the paper road in question provides one access to the river.  The District Council submitted that it was not obliged to consult specifically with iwi on this particular road stopping proposal because Schedule 10 did not require it and the contents of the River Settlement Acts do not envisage consultation on road stopping proposals.

The Court found that while the facts of this case did not engage a specific requirement to consult with iwi it cautioned the District Council on the extent to which this matter was addressed, noting the following at para [80]:

…that is not to say that such an obligation might arise in the future on a case where a road near the Waikato River, or other river of interest to the iwi referred to in the River Settlement Acts, is proposed to be stopped.  In this case there is not much evidence to suggest that the topic was addressed in anything but a superficial way, a practice which the Council may wish to reflect upon in the future.

© Brookfields Lawyers 2016 – All Rights Reserved


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