In a recent decision of the Environment Court, Judge Kirkpatrick considered whether it is appropriate for privately-owned land to be zoned as open space where the landowner does not agree to the zoning. The decision includes detailed analysis on the tensions between private and public interests in privately-owned land, and the nature and scope of planning restrictions that can be imposed on its use.
The Dunes Golf Course is owned and operated by Golf (2012) Limited (GL). It is located at the western end of the Matarangi spit and was zoned open space in the proposed Thames-Coromandel District Plan (Proposed Plan). After the expiry of land covenants requiring the site to remain a golf course, GL had hoped to redesign the course to allow for residential development on parts of the site. However, the open space rules in the Proposed Plan would not allow the site to be used in this way.
GL appealed the open space zoning of its site, seeking that it instead be zoned residential. GL argued that the Proposed Plan provisions restrict the use of its land other than as a golf course and therefore render its interest in the land incapable of reasonable use and place an unfair and unreasonable burden on it under section 85 of the Resource Management Act 1991 (RMA). GL considered that the open space zoning and associated provisions make any “non-open space” use of the land (including the envisaged residential development) effectively impossible and challenged the Proposed Plan provisions.
The appeal was opposed by a number of parties including the Thames-Coromandel District Council (TCDC). TCDC argued that the open space zoning is appropriate in all the circumstances, including for the maintenance and enhancement of amenity values and the quality of the environment. It also emphasised the planning history of Matarangi. TCDC submitted that there is a finite area of open space available at Matarangi and that the area in which the golf course is located has been identified for open space purposes since at least 1977 and has been provided for in the Thames-Coromandel District Plan since 1990.
The first step for the Court was to determine the legality of the proposed zoning and provisions. GL submitted that the proposed zoning and provisions were contrary to the general legal principle that private land should not be zoned for reserve purposes except in very limited circumstances. The Court drew a distinction between “reserve land” and land zoned as open space and held that there is no general legal principle that private land should not be zoned for open space purposes. Therefore, the Court considered that the proposed zoning and provisions were lawful.
The Court then considered the test in section 85 of the RMA, being whether the proposed zoning and provisions render the site incapable of reasonable use and place an unfair and unreasonable burden on GL. The Court acknowledged that, on the face of it, the proposed zoning and provisions would be a restriction of reasonable use of the site and might amount to an unfair and unreasonable burden on GL. However, the Court went on to consider the basis for the zoning, having particular regard to the planning history of Matarangi and the golf course site. On the evidence, the Court found that the preservation of the natural character of the Matarangi coastal environment and its protection from “unnecessary” subdivision and development has been an express matter of importance for 45 years. The Court further found that the method of enabling appropriate development while protecting the natural character of the area was the design and construction of the golf course as private open space. This arrangement was voluntary by the owner of the site at the time and subsequent owners can be presumed to have acquired their interests on that basis. The Court also noted that while the restrictions imposed by the proposed zoning and provisions might have a financial impact on GL, “reasonable use” is not synonymous with optimum financial return. Therefore, the Court held that the test in section 85 was not met and dismissed the appeal.
While each case will need to be determined on its own merits, the decision sets out detailed analysis on the test in section 85 of the RMA and is a useful example of the Court’s application of that test.