58 LANDSCAPE ARCHITECTURE AOTEAROA
4-metre retaining wall with 1.5m fence above
8-metre retaining wall with 0.9m fence above
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 :
[ 93 ] 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 .
[ 95 ] … 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 .
Conclusion
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 . �