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Appropriateness of zoning privately owned land as open space

Appropriateness of zoning privately owned land as open space

Appropriateness of zoning privately owned land as open space

Monday 7 December, 2020

The Environment Court recently considered the appropriateness of zoning privately owned land as open space in Golf (2012) Ltd v Thames-Coromandel District Council [2019] NZEnvC 112. This case discusses the tensions between private and public interests in privately owned land.

In its Proposed District Plan, Thames-Coromandel District Council (“TCDC”) sought to zone Golf (2012) Limited’s (“the Appellant”) land as Open Space. The land concerned was in Matarangi and was occupied by a golf course. The Appellant opposed the Open Space zoning and sought to have it replaced by Residential zoning. TCDC opposed the appeal along with two resident groups (“the Respondent”).

The Court considered whether the plan provisions which zoned private land as open space were unlawful and whether the proposed plan provisions rendered the site incapable of reasonable use and placed an unfair and unreasonable burden on the Appellant under section 85 of the Resource Management Act 1991 (“RMA”). In considering these issues, the Court first looked to the planning history of the land and its relevance to their decision. The Court agreed with the Respondent that the planning history of Matarangi was relevant to the issues, as the land had been zoned residential and open space intermittently over the past 30 years.

The Court then considered the case law as put by the parties. Counsel for the Appellant referred to Capital Coast Health Ltd v Wellington City Council[1] which held that private landowners would be unable to make reasonable use of land zoned for open space and therefore such zoning was inappropriate for private use which was capable of other uses. However, the Respondent referred to various cases which found that legislation regulating the use of natural resources can modify the principle put forward in Capital Coast. Hastings v Auckland City Council[2] observed that the RMA modifies the general principle that a landowners right to use land in its natural state should not be taken away without compensation and that section 85 allows a person with an interest in land to challenge the provision in a submission on the plan or apply for a change to the plan. Hastings concluded that:

“[85]….the test to be inferred from section 85 is not whether the proposed zoning is unreasonable to the owner (a question of the owner’s private rights), but whether it serves the statutory purpose of promoting sustainable management of natural and physical resources (a question of public interest).”

The Court then considered whether the proposed plan provisions were unlawful and found that there was no general legal principle that private land should not be zoned for open space purposes unless agreed to by the owner or the land is unsuitable for development. The RMA does not provide anything to that effect. The Appellant acquired the site at a time when there were already controls restricting its use under the operative plan and the provisions of the proposed plan did not result in a diminution of development rights or “down-zoning”, as was the case in Capital Coast. The Court therefore held that the proposed zoning and provisions were not unlawful.

The Court then turned to the question of the appropriateness of the provisions under section 85. The Court stated, as above in Hastings, that the test “must be based on all the evidence and assessed on the merits with a focus on the public interest”. The Court stated that under the proposed plan residential activities were not provided for at the site, however they were provided for on neighbouring land. If all things were equal, on the face of it, this could meet the test under section 85 as amounting to an unfair and unreasonable burden on the Appellant. However, in considering the basis for the restrictive zoning, the Court stated that the planning history of Matarangi was relevant to the extent that it explained the history of development and how it relates to the rest of the environment. The Court stated it was clear that:

“[136] … the preservation of the natural character of the coastal environment and the protection of it from unnecessary subdivision and development has been an express matter of national importance for 45 years.”

The design and construction of the golf course was the method which enabled appropriate development and protection of the natural character of the Matarangi peninsula simultaneously. The owner at the time the golf course was developed, voluntarily undertook arrangements to provide for open space and consequently, subsequent owners were also presumed to have acquired their interests on that basis. The Court stated that it is relevant to ask who made the land open space. If it was the council who initially imposed that zoning, then it may be unreasonable without agreement from the owner, however, if it was the owner’s choice (or their predecessor) then it is not unreasonable. The Court concluded that the test under section 85 was not met solely on the basis of the proposed change in zoning.

Our evaluation:

This decision finds that there is no general principle that private land cannot be zoned as open space against the owner’s wishes and that the planning history of an area is relevant to determining the appropriateness of zoning for a particular site. However, each case will be determined on its own merits. The particular factors that were determinative in this case were that the site had been open space for a number of years and this was known to the Appellant when it was purchased, and the site and surrounding area also had high amenity value which required protection. It should be noted that in the Panel’s decision, they recommended that the Council and Matarangi Community make it a priority to formally acquire the land of the golf course which was zoned open space. Therefore, this case could be distinguished from others where such extreme factors are not present.

 


[1]Capital Coast Health Ltd v Wellington City Council Decisions W101/98 (interim decision) and W4/2000 (final decision).

[2]Hastings v Auckland City Council Decision A68/01.


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