Text by Dr Joan Forrett Partner, Harkness Henry Lawyers. Images by Mansergh Graham Landscape Architects.
Can residential development result in better outcomes with reduced adverse amenity and visual effects when considered against the existing environment?
What is the ‘Existing Environment’?
One area that seems to cause planning confusion is the assessment of an activity against the existing environment.
This is an area of planning law that tends to overlap with the discretionary assessment of ‘permitted baseline’ however the two concepts are separate.
In simple terms, existing environment describes what is lawfully happening on the subject site at present, including consented activities, and the permitted baseline represents those activities that might be permitted on the subject site in future according to the permitted activity rules and performance standards applying.
We are presently assisting a client with a subdivision consent for a 165 residential lot that will supersede a previously consented (non-complying) 130-lot development on the same site. The original development, which was consented in 2015, largely worked around the existing contours on the site, giving rise to a variety of steeply sloping allotments with difficult road and access arrangements. Detailed design work demonstrated that significant retaining struc tures would be required to achieve level building platforms. Some of those retaining walls would be up to 8m high with fences along the top.
The new proposal will slightly lower the highest point and smooth the contours on the site enabling a greater range of accessible residential sites and improved integration with the adjoining rural residential zone. The maximum retaining walls will reduce to 3m and the overall length of retaining walls decreases by 56%.
The Landscape and Visual Assessment report prepared by Michael Graham of Mansergh Graham Landscape Architects Ltd, proposes extensive and attractive planting in the form of street trees, hedging and boundary planting and, in my view, rightly concludes that the new proposal will have less than minor adverse effects on the environment when assessed against the existing environment that must contemplate the 2015 consent.
The issue for both preparation of the AEE and council’s planning report is the extent to which the underlying subdivision consent can, or must be considered when looking at the new proposal.
The case law specifying the environment that must be considered when assessing the effects of an activity has followed a series of cases that developed this concept.
The Court of Appeal in Queenstown Lakes DC v Hawthorn Estate Ltd (2006) 12 ELRNZ 299considered that the ‘environment’ embraces the future state of the environment as it might be modified by the utilisation of rights to carry out a permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears that
In Te Runanga-a-iwi O Ngati Kahu v Far North DC  NZCA 221 , the applicant (Carrington Farms Ltd) had an existing land-use consent to construct 12 residential dwellings (obtained non-notified). Later, Carrington applied for a non-complying subdivision consent to create 12 lots for the 12 dwellings.
Carrington argued that the existing land use consent was likely to be implemented and therefore relevant to the assessment of the environment (i.e. the effects of the subdivision should be assessed against the environment with the dwellings). Ngati Kahu argued that the existing land use consent was part of the permitted baseline (rather than environment) giving the Court a discretion as to whether the effects should be disregarded.
The Environment Court decided that the consents formed part of the environment and (reluctantly) granted consent. The Environment Court’s decision was appealed to the High Court which held that whether Carrington would give effect to the unimplemented resource consent related solely to the subject site and thus the ‘permitted baseline’. The Court of Appeal disagreed with that approach, finding that it would be contrary to s 104(1)(a) for a consent authority not to take into account the future state of the environment as it would be with the land use consent implemented, and the subdivision consent was accordingly reinstated.
Of relevance to our client’s situation, the Court of Appeal stated:
 In this case the Environment Court was not required to undertake a comparative enquiry of the type contemplated by the permitted baseline test. … The Court’s enquiry was not into whether the plan permitted an activity with the same or similar adverse effect on the environment as would arise from the subdivision proposal. Its enquiry was focussed instead on the meaning of the “environment”, taking proper account of its future state if it found as a fact that Carrington’s land use consent would be implemented.
 …In our judgment the Environment Court did not err in determining that it was required to take into account the likely future state of the environment as including the unimplemented land use consent for the purposes of s 104(1)(a) if it was satisfied that Carrington was likely to give effect to that consent.
The Court of Appeal’s decision in Te Runanga-A-Iwi O Ngati Kahu , is a clear and binding statement that consent authorities must take into account the future state of the environment, including unimplemented resource consents, when determining effects for the purposes of s 104. In addition, in our view there is no legal or logical reason why any unimplemented consents should not also be taken into account when assessing whether or not effects on the environment will be minor for the purposes of notification pursuant to ss 95A, 95D or the threshold tests in s 104D.
This is an area of the law that really enables good landscape and urban design outcomes to be measured against an ‘underwhelming’ existing subdivision consent. For our client, the landscape assessment demonstrates that more intensive residential development can result in better outcomes with reduced adverse amenity and visual effects when considered against the existing environment. Hopefully, the Court of Appeal’s common sense approach will be sufficient guidance to ensure a rapid and positive planning response.
Comment on Images
The new proposal reduces both the lot sizes and gradients and a series of ‘steps’ accommodates the height changes across the site with retaining walls reducing in number and height. The images show the impact of retaining walls in the earlier proposal.