Gibbston Vines Ltd v Queenstown Lake District Council
Gibbston Vines Ltd v Queenstown Lake District Council
Thursday 3 October, 2019
The Environment Court considered the effect of a proposed residential subdivision in an outstanding natural landscape area containing several viticulture businesses. The development proposal was for one commercial block (“Lot 1”) to be replanted in grapes and six residential blocks. The proposal was a discretionary activity as the proposed subdivision was located within a special character area under the Proposed District Plan. In considering the proposal, the Court considered the following issues:
Life supporting capacity of the soil
The Court had to decide how to interpret ‘life supporting capacity of soils.’ In doing so, the Court referred to the underlying Policy which was to “avoid the adverse effects of subdivision and development on the life-supporting capacity of soil.” The Court found that once rural land was subdivided for residential purposes, the potential of the soil for growing life-supporting crops was largely irreversibly curtailed. The Court held that the Proposal would result in the loss of life supporting capacity of Melanic soil.
Rural production potential
This Court considered whether the Site would be reasonably capable of making an economic return from viticulture. It found that the economic viability of the Gibbston Valley as an acclaimed wine producing area did not depend on it being the sole source of grapes as it is usual practice for wine growers to source their grapes from a variety of locations. Ultimately, the Court held that the Proposal would not preclude a winegrowing and supply business from Lot 1, as a prudent business would ensure it had reliable grape sources outside the Valley.
Reverse Sensitivity
In considering reverse sensitivity risk, the Court took account of the policy of the Gibbston Valley Character Zone which identified the risk of conflict between the residential development and rural production activities, and prioritised protection of the Zone’s economic viability. The purpose of the policy was to mitigate any adverse effects from residential usage on the economic values of the Zone, in particular, complaints about noise arising from bird scaring and frost protection. The Court concluded that the proposal fell “materially short in its management of the risk of conflict between residential development of the Site and existing and potential viticulture.” The developer had intended to mitigate the risks through placing covenants on the residential titles, but the Court held that these would be ineffective and that an acoustic assessment was necessary to determine whether the aspects of reverse sensitivity are properly managed.
Landscape character or amenity values
The Court decided that it had to use the purpose of the Character Zone to interpret the Zone’s objectives and policies. The Court thought that the overall intention was to maintain and enhance the productive character of the existing landscape and protect it from significant degradation by further residential intensification. The Court found that the residential intensification in the Proposal would degrade the character of the landscape mainly because of the high visual prominence of the proposed building platforms.
Conclusion
This case provides useful guidance on how the Environment Court will approach issues around soils, rural productivity, and reverse sensitivity, as well as looking at how the Court will interpret policies around special Character Zones. However, what is particularly interesting about this case, is that the Court decided that there were only a few distinct problems with the developer’s proposal, so decided to give the developer the opportunity to go away and try to fix the proposal, rather than just declining it. It will be interesting to see whether the Environment Court adopts this approach on a regular basis.
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