The Environment Court has found in favour of Wakatipu Cleanfill Ltd regarding its proposal to establish, operate and rehabilitate a cleanfill site within North Ridge Estate.
Wakatipu Cleanfill applied for the consent in a natural gully to an air space of about 108,000cu m in the estate, accessible from Malaghans Rd in the Wakatipu Basin.
The Queenstown Lakes District Council, through independent hearing commissioners, refused consent and Wakatipu Cleanfill appealed that refusal.
Judge Laurie Newhook said the commissioners held the proposed cleanfill activity was non-complying and it met neither of the two gateway tests in the Resource Management Act, so consent could not be granted.
Wakatipu Cleanfill sought the Environment Court's decision as to whether the activity was restricted discretionary or non-complying and Judge Newhook found it was the former.
At the hearing in September no issue arose as to whether the soil, rock and waste concrete would qualify as "cleanfill" - a term not defined in the council's partially operative district plan - but the argument primarily focused on the meaning of the term "commercial activity".
"The commissioners at the hearing determined that because money would change hands for the disposal of cleanfill at the North Ridge site, the activity would be a `commercial activity'."
Judge Newhook said Wakatipu Cleanfill did concede the proposal was an activity which was commercial, but he insisted "that did not mean that the proposal became a commercial activity, pursuant to the definition in the plan.
"[Counsel for Wakatipu Cleanfill] submitted that there were all manner of activities taking place from time to time in the rural general zone in the Wakatipu, for which payment was made in money or kind, but which did not logically fall within the definition of `commercial activity' and did not require a resource consent."
Examples provided to the court included erecting a 'For Sale' sign and selling the property in the zone; selling farm stock; paying fencing contractors or others coming to work on a farm; paying builders to construct a dwelling; and paying the vet for farm visits.
Judge Newhook found amenity concerns raised could be seen to fit with the volumetric and aerial controls on earthworks.
"By allowing small quantities of earthworks as a permitted activity and placing controls above those limits, the rules fit the broad and general balancing statements found in plan provisions . . ."
Judge Newhook reserved costs.
