Decision No. C/&/99 in the MATTER of the Resource Management Act

Decision No. C/&/99 IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of an appeal under s120 of the Act BETWEEN COLIN PETER STOKES RMA: 532/98 Appellant AND THE CHRISTCHURCH CITY COUNCIL Respondent AND NIMBUS HOLDINGS LIMITED Applicant BEFORE THE ENVIRONMENT COURT Environment Judge J R Jackson Environment Commissioner R S Tasker Environment Commissioner R Grigg HEARING at CHRISTCHURCH on 30 November, 1 and 4 December 1998 (Final submissions received 11 December 1998) APPEARANCES Mr C P Stokes for himself Ms P Steven and Ms S J Weston for Nimbus Holdings Limited Ms C E Robinson for the Christchurch City Council Mr R A Sedgley for himself as a section 271A party Mr W J de Hart for Mrs S Genet as a section 271 A party 2 DECISION INDEX [A] Background [B] Preliminary Legal Issues [C] The Evidence [D] Matters to be considered (section 104) [E] The Threshold Tests (Section 105(2A)) [F] Assessment under section 105(1) [G] Outcomes [A] Background 1. On 11 February 1998 Nimbus Holdings Limited (“Nimbus”) applied to the Christchurch City Council (“the Council”) for a land use consent under the Resource Management Act 1991 (“the Act” or “the RMA”) to establish and operate a motel, including a managers residence, at 140 Main North Road, Christchurch (“the proposal”). The site is located on the corner of Main North Road and Meadow Street Christchurch, and is 1047m2 in area. 2. Meadow Street is a no exit street with a motor camp at the closed end. Most of Meadow Street is residential except for a panel beating shop directly opposite the site. Along Main North Road to the north are single level residences. The residential properties in the area have been developed to a relatively high density with a number of cross-leased properties in the locality. Directly opposite the site on Main North Road are a bus stop and shelter. Behind those are St Josephs Church and school. To the north of the church is a scout hall. To the south is Vagues Road running away off Main North Road in the opposite direction to Meadow Street. 3 3. The motel proposal includes 10 units to be set out in two distinct two storey blocks separated by car parks. Included in the eastern block are a small office and accommodation for the motel manager. There will be car parks for each of the units and the manager.The total area proposed to be used for the motel, including the manager’s accommodation and office, is 323.6m2, representing a site coverage of 31%.The total height of the proposal is no more than 8 metres. It is intended that the site will be landscaped along both Meadow Street and Main North Road. Access will be from Meadow Street at a single entry/ exit point approximately 24 metres from the corner of Main North Road. A sign no bigger than 1m2 is proposed to be erected at the corner of Main North Road and Meadow Street. 4. On 11 May 1998 the Council granted a land use consent with conditions to Nimbus. On 4 June 1998 the Court received a notice of appeal from Mr P Stokes who had been an opposing submitter at the Council hearing. In his appeal he sought that the land use consent be declined.At the hearing before us Mr Stokes appeared for himself and gave evidence. He also called a registered engineer to give evidence on traffic issues. Nimbus called three witnesses and the Council called four. Mr R A Sedgley and another local resident Mrs S Genet, both opposed the application by Nimbus, and thus supported Mr Stokes’ appeal1. [B] Preliminary Legal Issues There are three preliminary legal questions which we need to resolve: (1) whether resource consent is needed for one activity (the motel) or two (the motel and the manager’s residence)? (2) what category any activity for which consent is required falls into? (3) whether one resource consent for each activity is necessary or two - one under the operative and one under the proposed plan? As parties under section 271A of the Act. 4 6. The first issue is whether resource consent(s) is needed for one or more activities. It is convenient to consider this issue first in respect of the Council’s proposed Christchurch City Plan (“proposed plan”). The question is whether the proposal falls under “other activities” as set out in the Living 1 zone of the proposed plan or whether it should be considered as two activities, i.e. motel and residential. Both Ms Steven for Nimbus and Ms Robinson for the Council submitted that there is only one activity proposed and that is a motel. They argued that residential use within a motel activity falls within the definition of “travellers accommodation”. Both submitted that the proposal falls within the “bundle of uses” approach set out in KB Furniture Limited v Tauranga District Counci12. 7. The definition in the proposed plan of “Traveller accommodation activity” is: any land or buildings used for transient residential accommodation offered for a daily tariff which may involve the sale of liquor to in - house guests and the sale of food, and liquor in conjunction with food, to both the public and in-house guests. Traveller accommodation includes motels.... Obviously the proposed motel falls into this category. The only issue is whether the residential component of the motel - the manager’s residence - is part of the “bundle of uses” of a motel. The High Court stated in KB Furniture Ltd:3 It would indeed be difficult to argue against that approach where the different uses were closely linked, or where they could be seen to be directed towards one dominant use or purpose.4 The High Court contrasted that with a different situation: (1993) 2NZRMA 291. As above at p.299. As above at p.299. ...when the different uses are not closely related, and where one is carried out in a separate part of the total area from the others, a single joint classification would not represent the reality of the situation.’ The second quotation is of significance here because in this case the appellant argued that the Manager’s residence is on a separate part of the site (although in one of the two buildings). 8. We consider the scheme and policy of the proposed plan confirm that Mr Stokes is correct for three reasons: (1) The proposed plan makes a fundamental distinction between “residential activities” and all “other activities.” The first generic term is defined and the second is not - although some “other activities” are separately defined. The relevant definitions are:6 Residential activity means land and buildings used by people for the purpose of living accommodation where the occupiers voluntarily intend to live at the site for a period of one month or more, and will generally refer to the site as their home and permanent address; and includes accessory buildings and leisure activities. For the purpose of this definition, residential activity shall include: l accommodation offered to not more than four travellers for a tariff in association with a permanent resident as described above; l emergency and refuge accommodation. Residential unit means a residential activity which consists of a single self contained housekeeping unit, whether of one or more persons, and includes [1993] 2 NZRMA 291 at p.299. Proposed plan vol. 3 Part 1 Definitions [p.1/6]. 6 accessory buildings and a family flat. Where more than one kitchen facility is provided on the site, other than a kitchen facility in a family flat, there shall be deemed to be more than one residential unit. For the purpose of this definition a residential unit shall include any emergency or refuge unit. (2) The distinction between “residential activities” and “other activities” is crucial in the way the rules of the proposed plan are developed. In every Living Zone there is one set of rules for each of those two general categories, so it is important in every case to see which category an activity falls into. (3) The plan’s objectives and policies clearly contemplate that more than one activity can be carried out on a site. Rule 2.5.2 of the General City Rules states: 2.5.1 Statement This rule has been incorporated into the Plan to clarify the applications of standards when more than one activity is proposed to establish on a site. 2.5.2 General rule Any site may be used at the same time for any two or more activities provided that all standards (zone rules, and city rules), other than those relating to building floor space, site density, or open space specified in the Plan for each activity are severally complied with. Building floor space, site density and open space standards stipulate the maximum floor space, density or coverage of the site, and no combination of activities shall jointly exceed the maximum specified for any activity. 2.5.3 Reason for rule This rule is intended to clarify, firstly that more than one activity may establish on a site, and secondly, the application of standards. Importantly, it clarifies that combinations of activities can not jointly exceed any of the maximums specified in the rules relating to floor space, site density and open space. 7 While the rule is not as clear as it purports to be its effect appears to be to confirm: Proposed plan Vol 3, paragraph 2.5 [page 9/8]. 7 (a) the distinction between the residential and the other, i.e. motel, activity; (b) that the standards for each activity must be complied with; (c) that for any activities each must comply with its own standards except for those standards relating to building floor space, site density and open space, in which case the effects of the activities are combined and must not together exceed the (lesser) maximum specified in the plan for any relevant activity.

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