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.
9. Interpreting the proposed plan having regard to those three factors leads us to the conclusion that there are two separate activities (residential and motel) on the site so far as the proposed plan is concerned and different rules apply to each. This decision on the appropriate interpretation is quite significant because it means that the degree of non-compliance under the proposed plan is rather larger than the planning witnesses described to us.
10. Under the Council’s operative district plan (“the transitional plan”) the standard ‘bundle of uses’ approach applies since there is no equivalent of Rule 2.5.2, nor is there any wall in the structure of the transitional plan which isolates residential activities from other activities. Here the manager’s residence can be seen as part of the dominant purpose of motelling.
11. The second question is what category or type each activity for which consent is required falls into.? Under the transitional plan the proposal for a motel is situated in the Residential 1 zone and is a non-complying activity. The Residential 1 zone provides principally for low density detached houses but also for medium density housing and community facilities usually associated and compatible with residential areas, for example, pre-school facilities, two and three room apartments and hospitals. The transitional plan provides for travellers accommodation in Residential 2 and 3 zones, but not in the Residential 1 zone. 8 12. With respect to the proposed plan the motel proposal falls within the “other activities” category as an unrestricted discretionary activity in the Living 1 zone. However, as Mr Stokes pointed out, the manager’s residence requires resource consent for a non-complying activity because it fails to meet a critical standard as to open space.
13. The final preliminary question is whether one set of resource consents is needed, or two - one under the transitional and one under the proposed plan. This division of the Environment Court has been in the habit of granting one resource consent notwithstanding that there may be two district plans under the Act ‘in force’ i.e. a transitional plan and a proposed plan. This approach was (we thought) justified by provisions in the RMA, by practice, and by authority:
8 (1) The Act defines the term ‘resource consent’ as meaning a consent to do something that would otherwise contravene one of the sections in Part II of the Act. Thus a resource consent is primarily a bundle of economic rights9 conferred under the RMA itself, rather than under a plan. Resource consents can be, and frequently are, granted even if there is no relevant plan - especially in the context of regional issues. A plan may provide controlling rules, and guiding objectives and policies for a resource consent, but it does not provide the authority for granting the consent, that derives from Part VI of the RMA.
(2) Practice has followed the same path: applicants under section 88 only apply for one resource consent for any one activity notwithstanding that there are two relevant plans. And approvals under section 94 inevitably approve each activity once.
(3) Other divisions of the Environment Court, and the High Court have approached the issue as if there were one consent needed. The issue then became which (if either) plan should be given more weight:
Section 87. Notwithstanding that they are not real or personal property under section 122 of the RMA 9 Hanton v Auckland City Council10, Burton v Auckland City Council11, Lee v Auckland City Council12.
14. It appears we now need to reconsider our entire approach in the light of the Court of Appeal’s decision in Bayley & Others v Manukau City Council13 The Court of Appeal made it clear that when there are two co-existing plans a separate resource consent will be required under each of them. The Court said:
The Council believed that because the processes towards the adoption of the rules in the proposed plan had reached the stage where those relevant to the site and the applications could no longer be the subject of challenge, s.19 applied and Sanctuary’s intended activity could therefore be undertaken in accordance with those rules as if they were already operative and the rules of the prior plan no longer in force. But, as Salmon J correctly concluded and the respondents now accept, s.19 applies only where a new rule or change to a rule will allow the activity. In this case the new rules do not. Resource consents are still needed under the proposed plan. Therefore the Council’s advice was wrong. A concurrent application under the operative plan should have been made. The Judge rightly observed that upon such an application the weight to be given to the outgoing plan, especially a transitional plan prepared under the former legislation, will depend upon the stage which the proposed plan has reached.14
The last sentence is at first sight puzzling, because if separate resource consents are needed under each plan then how does the issue of weight arise?
[1994] NZRMA 289. [1994] NZRMA 544 (HC). [1995] NZRMA 241. 4 ELRNZ 461 [1998] NZRMA 513. 4 ELRNZ 461 at 470; [1998] NZRMA 513 at 519. 10 The issue did not arise in Bayley but we consider the answer is that the issue arises where there is a conflict between the results that would be obtained under each plan i.e. if one leads to a refusal and the other to a consent. We return to this issue later.
15. The Court of Appeal then considered the status of the necessary separate applications under the operative (transitional) plan:
The Court was informed that since the hearing in the High Court the second respondent has applied for and been granted by the Council the requisite consent under the operative plan. That application also proceeded on a non-notified basis. There has been no judicial review application in respect of that decision. We therefore make no comment on its validity. We record what has transpired because of its relevance to Mr Brabant’s further argument that Salmon J erred in deciding that the Council could validly process an application and grant a consent under the proposed plan without dealing with the matter at the same time under the operative plan.
We are of the same view as the Judge. We can find nothing in the language of the Act to preclude this course. Applications can be made under s.88(3) for a consent “under a plan or proposed plan”. Naturally, where two such district plans co-exist a consent under one will be of no immediate practical use if there is still a need for a consent under the other. But there is no good reason for adding to the complexity of the legislation a further complication. When asked what mischief it would prevent counsel was unable to refer to anything other than the desirability of considering all applications at the same time. That course may be preferable as a matter of practice, but in our view the Act does not impose any such requirement. Indeed, where different resource consents are needed from different consent authorities they will 11 be determined separately unless the authorities decide to hold a joint hearing.
We are unable to think of any circumstance in which an applicant can realistically hope to use separate applications under operative and proposed plans as a means of circumventing the Act. If a consent were to be granted solely under an operative plan, it could not be used when there was also a proposed plan. A consent under a proposed plan alone will not be of practical use until that plan becomes operative and replaces the earlier plan.”
16. What does all this mean in practice? Basically the RMA is ambivalent about the correct approach, but the Court of Appeal has decided the issue in a different way to previous practice. In practical terms the differences are not so great as might first appear. Because the consent authority needs to consider whether to issue two resource consents - one under each plan - the correct procedure must be to decide each resource consent separately right up to the point of deciding whether or not to grant consent under section 105(1). Then if the resource consents under each plan are to be both granted or both refused, the other plan does not need to be referred to because its objectives, policies and rules are not relevant16. Only if the tendency is to grant one consent, say under the transitional plan, and refuse the other, under the proposed plan (or vice versa) does the correlative plan17 become relevant and need to be considered. At this point the priority between the plans needs to be considered having regard to the factors identified in Hanton, Lee, and Burton.
17. Under the Court of Appeal’s interpretation in Bayley it is now open for a consent authority to grant resource consent under one plan but not under the
4 ELRNZ 461 at 477; [1998] NZRMA 513 at 526 Section 104(1)(d) only requires regard to be had to relevant objectives, policies and rules etc. Relevant under section 104(1)(d). 12 other. For example, it may decide that the weight of the other plan with its contrary decision cannot outweigh the plan under which the application is being considered. The result of conflicting decisions would be frustrating but not necessarily useless. If a resource consent was granted under a proposed plan, then it could come into effect as soon as the transitional plan expired. Usually of course the consent authority would resolve the conflict using the method outlined first in Hanton.
18. We now summarise and discuss the evidence, and identify the section 104 matters before we turn to assessment of the application under each plan separately.
[C] Evidence
Resource Management Issues
19. The planning witnesses for the Council and Nimbus largely agreed with each other. Ms S Chamberlin who holds a Bachelor of Resource and Environmental Planning was called for the Council (for which she works). The first witness called by Nimbus was Mr G Dewe. He is a planner with four years experience primarily in the preparation and assessment of resource consent applications. While their evidence was of some help, it was predicated in part on incorrect assumptions about the legal questions we have discussed in Part B above, so we have not been able to adopt their evidence completely.
20. Ms Chamberlin explained that the proposed plan contains a hierarchy of standards:
l failure to comply with a development standard results in a discretionary activity (limited to certain matters); failure to comply with a community standard results in a discretionary activity (unlimited); and 13 failure to comply with a critical standard results in an activity being non- complying. She said that as the proposal for a motel does not comply with community standards it is a discretionary activity (unlimited). She considered that the manager’s residence was part of the motel, so she did not consider it as a non- complying activity.
2 1. The rule (community standard) relating to the scale of activity states:
2.3.1 Scale of activity - other activities (a) The maximum gross floor area of buildings plus the area of any outdoor storage, used for activities other than residential activities, shall be 40m2 or 30% of the gross floor area of all buildings on the site, whichever is the larger; except where an activity is an educational, spiritual, day-care, or health facility. 18
The reason for this rule and rule 2.3.2, which limits any site used for “other activities” to 1100m2 in area (with which this proposal complies) is that:
These are key factors in ensuring that non-residential buildings and activities are compatible with the scale and effects of other buildings and activities in the living environment; will not result in visual dominance of buildings, and will remain incidental to residential activities and buildings on the site.”
22. Mr Dewe stated that the proposal is discretionary under the proposed plan primarily because the floor area exceeds 40m2 and because the motel will be used by people outside of the hours of 7am to 9pm. He also pointed out that while the bulk of the buildings complies with the 4.5 metre setback (development standard) the balconies for the first floor units 4-6 infringe this setback by 0.4 metres. It was his opinion that these relatively small structures at the height they are will not adversely impact on the street scene 20. Ms Chamberlin agreed.
Proposed plan Vol 3, Living 1 zone, Rule 2.3.1 [page 2/16] as varied by Variation 35. Proposed plan Vol 3, Paragraph 7.1.11 [page 2/48]. Proposed plan see Vol 3, paragraph 7.13, [p 2/46] for the reason for the road setback. 14
23. Ms Chamberlin isolated two “scale of activity” assessment matters as particularly relevant:
. . . . . (c) The extent to which the activity will result in the loss of a residential activity on the site. (d) The extent to which the activities on the site remain dominated by residential activity, rather than by activities which are not associated with or incidental to residential activity on the site.21
Ms Chamberlin and Mr Dewe noted that although the motel proposal exceeds the scale of activity allowed, it complies with bulk and location standards except for setback. This inclined Mr Dewe to the view that the scale of development is within acceptable limits for the Living Zone. He stated that if the buildings were for residential purposes they would be permitted apart from the intrusion of the first floor balconies into the road setback requirement. In addition, Ms Chamberlin informed the Court that the proposed plan contains a critical standard requiring a person engaged in the activity to reside permanently on site, this being met by the proposal as the manager will reside permanently on site. She also noted that the buildings fall within the recession planes under both plans and therefore any loss of sunlight resulting from the proposal will be minor.
24. As for hours of operation (a community standard), Mr Dewe noted that while the proposal will not comply with the exceptions to the rules restricting hours of “other activities” to 7am to 9pm Monday to Friday and 8am to 9pm Saturday, Sunday and public holidays, he thought it worthwhile to note that the proposed plan does provide for “other activities” to operate unrestricted as 15 to hours of operation within the Living 1 zone if the exceptions are met. Ms Chamberlin referred to an assessment matter from the proposed plan regarding hours of operation which states:
(d) Any adverse effects of the extended hours of operation on the surrounding residential area, in terms of loss of security as a result of people other than residents frequenting the area.22
She considered that between the on-site manager and the layout of the proposal, providing the manager with maximum visibility of the access, car park and stairwells, the neighbours’ sense of loss of security will be alleviated.
25. Ms Chamberlin considered that the effect on privacy is directly related to the intensity of the activity. She noted that the proposal at full capacity could accommodate a maximum of 20 people plus 2 people for the manager’s residence. The areas likely to have the greatest potential to impact on the privacy of neighbours, would be the car park, stairwells, balconies, and proximity of windows to neighbouring sites. She considered that with the combination of fencing, landscaping, and the condition about opaque glass in the first floor bathroom window of Unit 6 (in the block closest to Main North Road) the visibility from the motel windows into 142 Main North Road will be minimal. In relation to the balconies, she said that the purpose of these is access and that given this and their location the loss of privacy will be minor. She also agreed with the condition requiring a screen at the northeastern end of the balconies.
Traffic Evidence
26. The traffic engineer called by Nimbus was Mr G Huish, a registered engineer with 20 years experience. He is currently employed by Gabites Porter Consultants of Christchurch as a traffic engineer specialising in traffic
Proposed plan Vol 3, paragraph 6.2.19 [page 2/42]. 16 management schemes and road safety. He prepared the traffic impact assessment for Nimbus and presented evidence at the Council hearing.
27. He described the site as being approximately 140 metres south of the Cranford Street intersection which is controlled by traffic lights and approximately 250 metres north of the Sawyers Arms Road intersection which is also signal controlled. The Main North Road carriageway widens to the north of the site with the development of a second lane for motorists travelling north at the Cranford Street intersection. Traffic travelling south on Main North Road is able to travel through the intersection in two lanes which merge to the south. Parking is banned for 60 metres over the length of the median island to allow merging. There are no controls at the intersection of Meadow Street and Main North Road. Meadow Street is classified as a Local Street in the transitional and proposed plans. Main North Road is a Minor Arterial Road in both plans. Both roads have a 50km/hr speed limit.
28. The evidence for the Council on this issue was from Mr R J Edwards, a Senior Traffic Planner in the Environmental Services Unit of the Council with over 12 years experience in civil engineering and 8 years of that being involved in traffic and transport matters. He too outlined the traffic environment near the site. He and Mr Huish put the average number of vehicles using the Main North Road at around 25,000-26,000 vehicles per day. Mr Edwards noted that on Main North Road there is a short peak traffic flow around 9am followed by a gradual increase in hourly traffic flows throughout the day until an afternoon peak traffic flow between 3 and 4pm.
29. Mr Huish gave evidence that he arranged a traffic count of Meadow Street in December 1997 which gave an average flow over 7 days of 750 vehicles per day, this volume being relatively high for a no exit street due to the presence of the Meadow Park motor camp. He estimated the residential component of the existing flow would be 500 vehicles per day based on 50 residential units 17 with 10 trips per day, the Motor Camp making up the other 250 vehicles per day.
30. Mr Edwards described the traffic signals at the Cranford/Main North intersection as operating on a l00-120 cycle time which creates gaps of varying lengths in the southbound traffic flow along Main North Road past Meadow Street. He stated that a delay study undertaken on Monday 23 November 1998 indicated that during peak morning periods vehicles waiting to turn left out of Meadow Street onto Main North Road have a delay of around 15 seconds, whilst right turning traffic experience a delay of up to one minute. He also stated that during mid to late afternoon the northbound vehicle queue on Main North Road often extends past the Meadow Street intersection making it difficult to turn right out of Meadow Street.
3 1. With respect to the proposed plan, Mr Huish gave evidence that the proposal is classified as short term living accommodation for assessment of parking demand and the requirements in Section 13 (Transport), clause 2.2.1, require 1 space per unit for visitors and 1 space per 10 units for staff. A total of 11 parking spaces for visitors (including the manager) and 2 spaces for staff, is met by the proposal. Mr Edwards was of the view that it is unlikely that the parking demand of the proposal will exceed the minimum district plan requirement on any more than rare occasions, and therefore it is very unlikely that vehicles will be forced to park on the street. Mr Edwards said, and Mr Huish agreed, the proposal meets the requirements in both plans that the parking layout be designed so that vehicles are not required to reverse off the site.
32. Both Mr Huish and Mr Edwards recognised that the proposal does not comply with the minimum intersection requirement, that any part of a vehicle crossing should not be located closer than 25 metres to the intersection of Main North Road.23 Mr Huish said that it is 23 metres from the intersection and Mr
Proposed plan Vo13, Clause 2.3.6 [page 13/11]. 18 Edwards said it is 2.5 metres inside the requirement. Mr Huish went on to list the assessment matters of the proposed plan that detail the criteria to be considered for non-compliance with the separation distances24 and concluded that none of these matters are significantly different for 23 metres compared to 25 metres. Mr Edwards informed the Court that based on a 35km/hr operating speed past the entrance (allowing for accelerating or decelerating to/from the intersection) the proposed access location is 0.25 seconds closer to the intersection than an access in a complying position. With visibility between the intersection and the access being good and the volume of traffic on Meadow Street estimated to be low, Mr Edwards felt that the potential for increased vehicle conflict is remote, with effects negligible.
33. With respect to queuing space Mr Huish and Mr Edwards noted that the proposed plan requires 5.5 metres from the road boundary to the nearest vehicle control point for a car park of up to 20 spaces (Clause 2.2.14) and that this is available from the kerb crossing but not the boundary, 2.2 metres only being available. Mr Huish then listed the matters to be considered for the assessment of effects25, these covering safety and function of the frontage road, safety of pedestrians and safe circulation of vehicles on the site. He was of the opinion that there would be little adverse effect on the safety or function of Meadow Street. Mr Edwards opined that the effects of the reduced queue space would be negligible with the potential for vehicle conflict at the site entrance remote. He said this is because motels generate low traffic numbers, the proposal has ample parking space, the visibility from the entrance into the car park will be good and the entrance has been designed to accommodate two way flow.
34. Mr Huish pointed out that the proposed plan specifies trip generation limits for non-residential activities in the Living 1 zone. For sites with frontage to local roads the figure is 20 vehicle trips per day and other sites have a limit of
Proposed plan Vol 3, paragraph 3.2.12 [page 13/14]. Proposed plan Vol 3, paragraph 3.2.9 [page 13/14]. 19 50 vehicle trips per day (community standard). Activities in excess of these levels are discretionary activities.The rule is not explicit when the site has frontages to two roads of different classifications but Mr Huish agreed with a legal opinion the Council had obtained that determined that the higher level on a corner site should apply. Mr Edwards said that as the site is within an area adjoining an arterial road, he was of the view that it logically follows that the 50 trip generation threshold applies to this site. Mr Huish noted that it is uncertain how much weight can be given to the local road rule as the Council has received a number of submissions on it and the Council itself has made a submission seeking to increase it to 32 vehicle trips per day.
35. Mr Huish estimated in his Traffic Impact Report presented with the application that there would be 60 vehicle trips per day for the motel.He said this is supported by surveys of motels at 70% occupancy in Riccarton Road, Lincoln Road and Bealey Avenue. He assessed the proposal against assessment criteria in the proposed plan for proposals that generate higher levels of traffic than set in the plan rules 26.In his opinion the adverse effects in terms of noise, vibration, headlight glare and fumes from vehicles entering or leaving the site would be minimal in comparison to the existing traffic volumes on Meadow Street and Main North Road.
36. Referring to the proposition that two townhouse units could be erected on the site as a permitted activity Mr Edwards said that over the last six years the traffic generation of over 2,000 dwellings has been surveyed by the Council. The results show that the 85 percentile generation rate of an urban dwelling is around 10 trips per day, or 20 trips for two residential dwellings. He considered that a 40 vehicle per day increase from the proposal as compared to this is not great and the effects on the road network will be minor.He told the Court that the surveys show that the proposal will generate more traffic late at night compared to two residences, with 2 more trips per hour until
Proposed plan Vo1 3, paragraph 3.2.14 [page 13/15]. 20 around 1am and again after 7am. Between 1am and 7am the proposal will generate a similar volume of traffic as two residential units.
37. Mr Huish informed the Court that there are no significant traffic peaks for the motels surveyed and that the level of traffic safety on Main North Road would not be compromised, the entrance and the Meadow Street intersection being well clear of the queuing and merging areas on Main North Road. He concluded that at 60 vehicle trips per day for the motel, that equates to a maximum of two vehicle trips in any half hour period and if both these trips involve motorists leaving Meadow Street then the total number of departures for that street will not substantially increase. He noted that when gaps from traffic signals on Main North Road did occur they were sufficient for more than one vehicle to turn right out of Meadow Street, an increase of two additional vehicles per half hour not substantially increasing the delay currently experienced. He also noted that the painted median on Main North Road allows vehicles turning into Meadow Street to wait without impeding through traffic and those turning right out of Meadow Street to wait between opposing traffic streams. Mr Huish concluded that overall the degree of non- compliance with the proposed plan is minor and the traffic effects of the proposal are also minor. Mr Edwards came to very similar conclusions from two studies he had carried out on motel generated traffic.
38. On traffic issues, the appellant Mr Stokes called Mr M L Gadd, the principal of a traffic engineering and transport planning consultancy in Christchurch. He has worked in traffic engineering and planning for the last 30 years and much of his experience has been in traffic safety and in “traffic calming” to enhance the safety and environmental quality of residential streets.
39. He agreed that the failure to comply with the 25 metre access requirement will only have a minor effect. In his opinion however the layout of the car park is cramped and when the car park is at or near full occupancy some vehicles will be reversed on to Meadow Street. Also at full or near full occupancy some of 21 the spaces (such as space 6) will be less convenient to access and leave than desirable. He also stated that spaces 9 and 10 appear to transgress the requirement of a radius of 5.5 metres from the boundary to allow clear manoeuvring by the entrance.
40. Mr Gadd also had difficulty accepting the traffic generation numbers given in evidence by the Council and Nimbus and said that trip generation for a dwelling is generally accepted as being 10 per day and each motel unit can generate trips at a similar rate. Therefore at 70% occupancy there would be 80 trips per day (including 10 for the residence) from the proposal. At full occupancy there would be 110 trips per day. He stated that 60 to 80 trips a day for a street as busy as Meadow Street is significant.
41. Mr Gadd said that allowing say 60 to 100 movements per day on to a relatively busy cul-de-sac, 24 metres from an intersection which experiences delays and conflicts, must have transport planning disadvantages, exacerbated by the proximity of Vagues Road and the limited scope for queuing in the flush median. He was of the opinion that the potential for conflicts - including with cyclists - would seem to be worse than at a mid block site where the proposal would be the only serious demand on space in the flush median.
42. He reported on sample counts and observations he took between 7.30 and 8 am and at 5pm. He said that in the evening flow it took him about 10 minutes to cross Main North Road on foot and he had to accept a smaller gap than desirable. On the morning visit he observed two drivers trying to turn right out of Meadow Street, who abandoned the attempt, reversed and presumably drove through the motor camp. Mr Gadd also observed that when a bus was stopped on the opposite side of Main North Road, some drivers moved partially into the flush median. He said that if the median is occupied by a turning vehicle, the available north bound lane becomes narrow and any cyclist could be at risk. Another problem is confusion over who waits where 22 and who gives way to who when there is a vehicle turning right into Vagues Road at the same time as another vehicle is waiting to turn right into Meadow Street. He reported this confusion also applies to drivers waiting on the two intersecting minor streets.
43. Mr Gadd felt that the proposal falls well short of good transport planning. He was concerned about the precedent effect that granting this proposal might have. He stated that the rules on traffic for a permitted activity in the zone should apply, even though the proposal is non-complying and there are no rules in the transitional plan for it. In his opinion there are serious shortfalls in the traffic and transportation planning aspects of the proposal and these must be given due weight.
Health Evidence
44. Mr B Chisholm is employed by the Council as an Environmental Health Officer and gave evidence on the potential effects of noise and glare from the proposal. He noted that there is no specific relevant objective and policy under the transitional plan with respect to noise and glare but pointed out the following in the proposed plan:
Objective: Adverse Environmental Effects 11.4 A living environment that is pleasant and within which adverse environmental effects are minimised while still providing the opportunity for individual and community expression.
Policy: Noise 11.4.8 To ensure noise levels associated with non-residential activities are consistent with maintaining a high standard of amenity within living areas.
Policy: Glare 11.4.9 To ensure sources of glare from activities located within or adjacent to living areas do not detract from the amenity values of those areas. 23 45. Mr Chisholm informed us that noise from the motels would likely include:
l General guest noise from the occupation of the 10 motel units;
l Noise associated with guest vehicles arriving and departing, including engines starting and revving, electronic response beeps of the unlocking of vehicles and the closing and occasional slamming of vehicle doors.
Mr Chisholm stated that he is satisfied that the noise will be infrequent and of short duration and the levels will not be in breach of the noise rules in the proposed plan.27
46. He said that sound monitoring was undertaken by Council staff at the rear yard of 142 Main North Road from 9 to 11 November 1998 to establish background noise levels. A microphone was positioned approximately 7 metres behind the house and 3 metres inside the southern side boundary. The results showed considerable variation between day and night noise levels with night-time background noise (L95) below 30dBA. He said that noise from individual vehicle movements on the site are expected to be around 65dBA Lmax at the neighbouring properties, this being noticeable against low night- time background noise creating potential for occasional noise annoyance to the residents of 142 Main North Road especially late at night and in the early morning hours. It was his opinion that a 2 metre high boundary fence of solid construction with no gaps would provide adequate noise attenuation, resulting in the effects of noise from the proposal being no more than minor. He was also of the opinion that provided the glare standard of the proposed plan is met, the adverse effects of glare will be less than minor.
Other Evidence
47. Mr Stokes then gave evidence. He is an architectural designer with 20 years design experience, having designed numerous residential developments and motel complexes throughout Christchurch. Ms Steven challenged his
Proposed plan Vol 3, Paragraph 1.3.2 [page 11/3]. 24 expertise and therefore the relevance of his opinion on resource management issues. We find that his experience and his qualifications enable him to give an expert opinion on the urban issues in this case. Mr Stokes suggested to the Court that the proposal does not meet the residential density standards of the transitional plan for the denser R2, R3 or R4 zones and therefore falls well short of that anticipated in the R1 zone if motels were provided for.
48. He was of the view that the adverse effects of the proposal will be more than minor even taking into account mitigating factors. He asserted that it is not fair for a neighbour (142 Main North Road) fronting an arterial road to suffer loss for the benefit of a development built for personal gain and not to benefit the community. Mr Stokes said that in his opinion the proposal will dominate the corner site and is out of character with the environment. He accepted that the extensive landscaping would soften the dominance and help mitigate the balcony intrusions but said that the reality and viability of motel operations are such that they require exposure to attract clientele. He felt that the large sealed area between the buildings and the lack of planting and landscaping in this area is not in keeping with Living 1 policies.
49. In his written evidence Mr Stokes took us through calculations on open space requirements in the proposed plan and concluded that the proposal would be above the critical standard for the Living 1 zone. He states there was only one submission to a proposed variation on the open space rules and that was from him and it did not get support from the Council, resulting in the variation likely to stay as it is. The plan requires 1.8 metre high fences for “other activities”28 however the Council stipulated as a condition of consent that a 1 metre fence be placed near the access. He states that while the height difference is minor in itself, when it is coupled with the size of the carpark and the road, and the lack of opportunity for planting around the car park perimeter the effects will be more than minor.
28 Proposed plan Vol 3, paragraph 2.2.5 [page 2/14]. 25 50. Mr Stokes also pointed out that if the proposal was in a medium density Living 3 Zone where short term living accommodation was specifically encouraged, the proposal would not meet the critical standard for residential site density by about 5.7%. He also considered that the managers’ accommodation should be assessed as for a (non-complying) residential activity so as to aid in meeting the manager’s health needs. Mr Stokes noted rule 2.529 which allows for combined activities making it necessary to separate residential activities out from “other activities”. He concluded by saying he can see no positive effects from the proposal and that it should be declined.
51. The penultimate witness was Mr Sedgley the owner of the property at 142 Main North Road. He gave evidence that he and his family object to the proposal going ahead and would prefer it left as a living area. He said that two other similar developments have been built or proposed on Main North Road and these should satisfy traveller accommodation in the area. He also said that he and his family would find it hard to live with another 60 vehicles per day in the area when the traffic from Main North Road is busy enough. Finally, he said that the scale and activity of the proposal is not compatible with the scale of the surrounding residential activities.
52. The final opposing witness was Mr W J de Hart who expressed his (non- expert) opinion that Mrs Genet’s amenities (she lives at 8 Meadow Street) would be affected. He was undoubtedly a sincere witness but we have to give his evidence minimal weight as against the expert witnesses for Nimbus and the Council.
53. The evidence of these lay witnesses needs to be considered against that of the experts we have already referred, and also that of two landscape architects Mr T Milne and Mr A Craig (called by Nimbus and the Council respectively) who considered that the proposed landscaping would ensure the proposal did not detract from the overall character and amenity of the area.
Proposed plan Vol 3, paragraph 2.5 [page 9/8]. 26
[D] Matters to be considered (Section 104)
Effects (Section 104(1)(a))
54. We consider the main adverse effects possible from the proposal are noise, traffic, and impact on the amenity of the area. The main sources of noise will be general guest noise and car noise. As Mr Chisholm was the only expert witness called to give evidence on the issue of noise we accept his evidence that the levels of noise will not be in breach of the rules in the proposed plan except for potential noise nuisance on the residents at 142 Main North Road. In relation to them we consider that if: (a) a high enough fence (he suggested 2 metres) of solid construction is erected; and (b) Nimbus pays for sound-reducing glass to be installed in the southern windows of Mr Sedgleys’s house - then the effects of the noise will be mitigated.
55. Turning now to traffic we are of the opinion that the proposal must be considered in relation to traffic numbers that already exist in the surrounding area. Whether there are an extra 60 or 80 trips a day generated by the proposal, when these numbers are broken down to consider the number per half hour the number is relatively insignificant. Mr Huish stated that at 60 trips per day the maximum number of trips per half hour is 2. For 80 trips it is just over 2. Mr Huish also stated that there are no significant peaks for cars accessing or leaving the motel. Mr Gadd (for the appellant) did not comment on this, but it seems important to us. Although we acknowledge that there is already some cause for frustration for motorists using the Meadow Street/ Main North Road intersection we consider that an addition of two vehicles per half hour will not significantly increase delays currently experienced by motorists. 27 56. The proposal is approximately 2 metres short of complying with the requirement in the proposed plan that the vehicle crossing be a minimum of 25 metres from the intersection of Meadow Street and Main North Road. Mr Edwards and Mr Huish were both of the view that the effects of the non- compliance would be negligible. The Court accepts that evidence, especially in light of the fact the vehicle crossing for the proposal is on Meadow Street and not on Main North Road. As Mr Edwards said, the amount of traffic on Meadow Street will be low and there will be good visibility. We add that we think it is unlikely there will be vehicles queuing across the vehicle crossing.
57. The final possible adverse effect of traffic is that the proposal will not provide a queuing space of 5.5 metres from the road boundary, as required by the proposed plan. Mr Gadd gave evidence that this would not allow clear manoeuvring near the entrance. Mr Edwards and Mr Huish were both of the opinion that the effects of the reduced queue space on manoeuvring would be minor, the principal effect being on pedestrians. We are of the opinion that although this is an adverse effect we do not consider it a major safety issue to pedestrians. Vehicles entering the site will not be travelling at speed; they will be able to see if pedestrians are in the area and react accordingly.
58. Effects of the proposal on the amenity of the area was another issue. It should first be noted that the owners of five of the properties adjacent or close to the site gave approval to the proposal in their submissions. Under section 104(6)(b) any effects on those who approved the proposal cannot be taken into account. Only Mr Sedgley who owns 142 Main North Road, the house next to the proposal, is in close vicinity and opposed it. Ms Steven pointed out that Mr Stokes lives nowhere near the site and suggested he appeared to be motivated by trade competition reasons. We have insufficient evidence to find that is so.
59. The proposal is required to fit into an area surrounded predominantly by residential houses of a reasonable density. Mr Craig described the exterior of 28 the buildings as being painted or plastered concrete. We are of the view that the proposed landscaping should “mellow” any harshness the buildings may display and will reduce the apparent bulk of the buildings whilst at the same time not being of a density, height or quality that will detract from the overall amenity of the neighbourhood.
60. We find that use of the site for a motel will have minimal effect on the suburban living environment and its amenities due to its location. The site is adjacent to a busy arterial road; it is to the south of its immediate neighbour (Mr Sedgley’s property) and this removes no sun and/or daylight from that property; and is separated from its neighbours to the east by a fenced driveway who have approved the proposal in any event. Other aspects of the effect on amenities will be discussed in relation to the objectives and policies of the relevant plans.
Section 104(1)(d) - objectives, policies and rules of the relevant plans
61. The proposal does not comply with the setback requirements, the scale, possibly noise requirements (especially at night) and some of the traffic requirements of the proposed plan. Ms Steven submitted that the non- compliance with setback is minimal and the rule relating to scale is directed more at non-residential activities carried out in residential dwellings such as home occupations. She submitted that the scale could never be met for an activity that is wholly non-residential and more importantly it does comply with one standard for the zone by being below the site size allowed of 1100 square metres. She also noted that the proposal complies with the more onerous standard of Variation 36 to the proposed plan which requires a maximum floor area of 550 square metres.
62. Two of the traffic requirements that are not complied with are the distance of the access from the intersection and the queuing space. The third traffic requirement that will not be complied with is the traffic generation. There 29 was some argument over whether the number of trips the proposal is allowed to generate is 20 or 50. Ms Steven submitted that where it is not obvious an applicant ought to be entitled to take advantage of the more generous standard. She said to apply the standard in the way contended for by Mr Stokes (he was of the view 20 applies) requires reading into the standard words that are not there i.e. “Sites with access to local roads” instead of the word “frontage”. Ms Robinson submitted that in relation to traffic generation the appropriate standard is 50 trips per day.
63. Rule 2.3.4 itself is not clear. Looking at (a)(ii) it seems to specify that sites with frontage to a local road should only generate 20 vehicle trips per day. Then (a)(iii) just says “all other sites” can generate 50 per day. Prima facie it seems that the proposal is specifically covered by (a)(ii). However the explanation for the traffic generation30 rule says:
Because of the existing higher levels of traffic movements on arterial and collector roads, it is considered that greater levels of vehicle movements can be accommodated within the character of areas adjoining such roads.
In light of this we consider that, as Meadow Street adjoins a minor arterial road (Main North Road), the rule is that Meadow Street can accommodate the figure of 50 vehicle trips per day (as opposed to the 60 generated by the proposal).
64. We do not agree with Mr Stokes’ argument that the site density provisions (open space in Living 1 and plot ratio in Living 3) are controls regulating the number of persons on site. Both counsel submitted that density in the proposed plan is controlled by the policies and rules relating to built form and open space, not the number of people on site, this being incidental to the purpose of the provisions. Ms Robinson submitted that the “effects” of the
Proposed plan Vol 3 [page 2/50]. 30 numbers of people on a site for non-residential activity are caught by the community standards in the plan e.g. traffic generation, hours of operation. We agree with this and the proposition that the proposed plan acts as a sieve, resource consent being required if an effect fails to meet a standard. This process does not act purposively, in that the land resource has not been given any identified purpose (such as for residential activity) as a starting point for assessment. 31
65. We note that the case of Monad Leisuretime v Queenstown Lakes District Council32 mentioned by Ms Steven is similar to this in that the proposal sought to establish a motel complex in a zone that did not provide for travellers accommodation. In that case the Court noted that the scale of activity in particular had an affinity with residential apartments permitted in that zone and that the activity displayed none of the elements which require segregation from other residential uses such as licensed restaurants. The Court found that the only difference between the activities proposed for the site and a true apartment would be “that the occupants would not achieve a permanent place in the neighbourhood community and would have no particular affinity with that neighbourhood.” Although meeting community needs is an important feature under the policies and objectives of the proposed plan in this case, we consider the effects on the amenity will be minor in terms of the physical appearance of the building and the activity that it encourages, there being no bar or restaurant proposed in this case either.
66. The relevant objectives and policies of the transitional plan, as identified by the Council witness Ms Chamberlin, are:
General residential objectives (3) To protect residential areas against unsatisfactory uses and forms of development which may affect public health, safety and community.
- An Application by Christchurch City Council C123/94. W116/95. 31
. . . . . (6) To provide a high standard of environmental design by ensuring adequate open space, sunshine, privacy, landscaping and off-street parking. 33
Outer residential suburbs policy 15.5
...The outer residential areas will continue to be the largest single land use in the City. A distinction is drawn between the predominantly flat areas zoned residential 1 and the hills zoned Residential Hills although both zones are intended to cater primarily for open character, single family detached dwellings at a low density and contain a similar range of permitted uses . . . 34
67. Turning to the objectives and policies of the Living zones of the proposed plan they do give an impression that the proposed plan intends to protect living zones from intrusion by “other activities”. The explanation to the policy on densities says:
Past provisions in the Plan have allowed a second dwelling to be erected on sites meeting minimum area requirements. It is considered the minimum outer suburban area has been too low overall and as a result, some infill has taken place on sites and in a way which is inappropriate. This has had implications for the density and character of an area. The suburban, low density environment has consequently in places experienced levels of infill and redevelopment which have resulted in a character in conflict with the environmental results now anticipated for this area. Policies of this Plan are therefore directed at achieving a density which is truly “suburban” and which remains distinct from the other living environments of the City.35
In addition there are Objective 11.3 and Policy 11.3.4 which state:
Scheme Statement page 10a. Outer residential suburbs 15.5, Scheme Statement page 12. Proposed plan Vol 2 [page 11/5]. 32
Objective: Non-residential activities 11.3 Non-residential activities located within living areas which meet community needs, but do not detract from the amenity values of the area.
Policy: Traveller accommodation 11.3.4 To provide for the accommodation needs of travellers and visitors to the City in limited, defined locations and on arterial roads in medium density living areas, whilst safeguarding the amenity values of adjoining living areas.36
The Living 1 zone is not a medium density living area, whereas the Living 2 and 3 zones are, and are therefore the primary places to locate travellers’ accommodation.
68. There is some relief against the above policies and objectives. The reasons for Objective 11.3 include:
although not necessarily serving local needs, a living area location may be desirable given the general level of amenity in such areas, as compared with other locations.37
There is also a suggestion within the objectives and policies that the effects of non-residential activities is an indicator of whether a non-residential activity should locate within the area. Again under the reasons for Objective 11.3 the proposed plan says:
However, it is recognised that non-residential activities have the potential to create adverse effects on neighbouring sites and local communities relating to matters such as noise, traffic generation, hours of operation, visual detraction, the scale of operation and loss of residential neighbours. A high standard of amenity is sought of the living environment and living areas are therefore particularly sensitive to adverse effects on amenity values.38
There is also Objective 11.4 on “Adverse Environmental Effects” and policies underneath this which require proposals:
Proposed plan Vol 2 [pages 11/9 and 11/ 11. Proposed plan Vol 2 [page 11/9]. Proposed plan Vol 2 33
. . . . 11.4.3 To ensure that the design and siting of development does not unduly compromise outlook, privacy and views of adjoining development, having regard to the character of the area and reasonable expectations for development. 11.4.4 To ensure that the outdoor component of non-residential activity is screened to protect the privacy and outlook of adjoining sites. 11.4.5 To ensure that the hours of operation of non-residential activity does not unduly compromise amenity values, and particularly privacy and security of adjoining development.
11.4.12 To ensure that the scale of non-residential buildings and activities is compatible with the scale of those of the surrounding living environment. 39
We think that it is also important to note that under the “Explanation and reasons” for policy 11.4.12 it says:
It is further recognised that where living areas adjoin medium-large business areas, such as some suburban centres, they may already be characterised by buildings and sites which are of a larger scale than residential buildings and sites generally. Given also the nature of suburban centres, pedestrian and vehicular movements tend to be greater in the vicinity than for living area locations further away. The Plan therefore recognises that non-residential buildings and activities can be of a larger scale and attract greater numbers of people in such locations, whilst remaining in character with the scale of other buildings, sites and activities in the vicinity.40
69. Ms Robinson submitted that the policies are generally directed at ensuring that the level of amenity expected in a living zone is maintained. She said that unless the effect of the proposal is considered as more than minor the activity is not contrary to the objectives and policies in the sense of being repugnant. 41 We have already concluded that the effects on the environment, taking into account mitigation measures, will be minor and that the character of the area will be maintained. We therefore do not consider the rules of the proposal
Proposed plan Vol 2 [pages 11/12 to 11/16]. Proposed Vol 2 [page 11/15]. Judges Bay Residence Association v Auckland Regional Council A72/98 being a case where a proposal extended beyond the area identified in the policies was held not to be contrary to those policies. 34 inconsistent with any of the objectives and policies on adverse environmental effects.
70. There does however appear to be some tension between the other objectives and policies we have set out above and the rules of the proposed plan. The rules allow “other activities” within the Living 1 zone but the policies and objectives weigh against any developments not residential unless they fulfil a community need. As the Court said in LRG Investments Ltd42 a motel is not intended to meet local needs. Ms Steven submitted that Objective 11.3 has no rule to implement it, does not sit easily with the permissive presumption in the Act or section 5 and therefore should not be given much weight. This argument is like the issue raised in Baker Boys Ltd v Christchurch City Council 43 and the Court held there that was a matter to be decided in a reference on the proposed plan. In addition Ms Steven submitted that Policy 11.3.4 should been seen as permissive and not preventative of travellers accommodation establishing in areas other than that set out in the zone. 44 We agree with this and tend to think that Policy 11.3.4 can be seen as consistent with the rules. The tension we have identified is merely a reflection of the proposed plan’s recognition of the untidiness of the real world.
[E] The Threshold Tests (Section 105(2A))
71. Section 105(2A)45 of the Act states:
(2A) Notwithstanding any decision made under section 94(2)(a), a consent authority must not grant a resource consent for a non- complying activity unless it is satisfied that-
C64/98 [1998] NZRMA 433 Goodwin v Auckland City Council A22/98. Inserted by section 22(3) of the Resource Management Amendment Act 1997 (“the RMAA 1997”). 35 (a) The adverse effects on the environment (other than any effect to which section 104(6) applies) will be minor; or (b) The application is for an activity which will not be contrary to the objectives and policies of - (i) Where there is only a relevant plan, the relevant plan; or (ii) Where there is only a relevant proposed plan, the relevant proposed plan; or (iii) Where there is a relevant plan and a relevant proposed plan, either the relevant plan or the relevant proposed plan.
72. Before we go on to consider possible adverse effects we need to consider two questions of interpretation in section 102(2A)(a). The first is the meaning of the words “will be minor”. The second is whether positive effects can be set off against negative effects so that the threshold test is effectively as to the ‘net’ adverse effect. As to the first issue, it has generally been accepted that the word “minor” means, as stated in Bethwaite and Church Property Trustees v Christchurch City Council:
...less than major, but could be more than simply minute or slight 46.
There is now some reason to doubt whether that is the correct test.
73. In Elderslie Park Limited v Timaru District Council47 Williamson J. stated that the words “ . . . will be minor” in section 94(2)(a) meant:
. . . lesser or comparatively small in size or importance. Ultimately an assessment of what is minor must involve conclusions as to facts and the degree of effect. There can be no absolute yardstick or measure.
C85/93: a case on the threshold test in section 105(2)(b) prior to the RMAA 1977 but this wording has not changed significantly. [1995] NZRMA 433 at 445 (HC). 36 The High Court in Aley v NSCC48 in respect to the interpretation of the same words in section 94 of the Act upheld the interpretation given in Elderslie Park. In other words ‘minor’ was given much the same meaning in section 94 as it was in section 105(2A). However in a recent Court of Appeal decision, Bayley & others v Manukau CC & others49 the Court said in respect to the wording in section 94:
...the authority must consider whether there is any adverse effect, including any minor effect, which may affect any person. It can disregard only such adverse effects as will certainly be de minimis, of which the minimal intrusion of the closets into the yard space may be an example, and those whose occurrence is merely a remote possibility.
The Court of Appeal acknowledged that what they set out was a “very limited tolerance”50 of a potential adverse effect.
74. As a consequence of Bayley the question has to be asked as to whether the word “minor” is used in the same way in section 105(2A) as it is in section 94? We conclude that it is not for these reasons: (1) the narrow context of the word “minor” is different in each section. Section 94(2)(a) and section 94(3)(b) require that:
The consent authority is satisfied that the adverse effect on the environment of the activity for which consent is sought will be minor.
The word “effect” is singular. In contrast section 105(2A) requires the consent authority to be satisfied that:
The adverse effects on the environment . . . will be minor.
[1998] NZRMA 361 at 376. 4 ELRNZ 461 at 472; [1998] NZRMA 513 at 521. 4 ELRNZ 461 at 472; [1998] NZRMA 5 13 at 521 37 The plural word “effects” is used.
(2) The reason for the difference may be found in the wider context of each test. Under section 94 a consent authority needs to decide whether or not to notify an application for a resource consent. The only information the consent authority has is in the application itself’, the assessment of environmental effects52 and any further information supplied by the applicant53. It does not have a complete, objective statement of potential adverse effects. It must decide whether there is any ‘adverse effect’ (singular) on the basis of relatively thin evidence, and looking at the proposed activity as a whole. Presumably for those or similar reasons the Court of Appeal decided in Bayley that “minor” in section 94 meant de minimis. Otherwise, if the local authority makes an error, people with a right to be heard will have had that right removed on the exercise of a non-judicial discretion by the consent authority.
(3) In the wider context of section 105(2A) the consent authority needs to decide whether the ‘adverse effects’ (plural) will be minor after hearing all the evidence from all interested persons. The local authority has then to make a final decision but there is no question of any procedural injustice to any person, because any person who wishes to be heard will already have had a chance to become involved in the proceeding and to call evidence on effects.
(4) The decision under section 94 as to whether or not to notify must necessarily be made in relative haste and in ignorance of any opposing perspective. It is more an administrative decision than a judicial decision. In contrast the consent authority’s decision under section 105(2A) is clearly quasi-judicial and must comply with the requirements of the Act and the rules of natural justice. When considering the threshold tests, if a local authority considers an adverse effect is minor
See sections 88(1) and 88(4) RMA See section 88(6) and the Fourth Schedule to the RMA. Section 92 RMA. 38 but more than minimal it does so after hearing all the evidence from all the parties. Relatively subtle gradations of scale may be found to exist when fully informed, which cannot reasonably be found in the section 94 process.
75. For those reasons we hold that there is a difference (and, with respect, a very sensible one) between the meanings of ‘adverse effect(s) ... will be minor’ in sections 94 and 105(2A). In the latter case the test is as stated in Bethwaites4.
76. The next question is whether, when considering if the adverse effects are minor under section 105(2A)(a), a local authority should take into account the positive effects of a proposal. Ms Robinson for the Council submitted that the approach to take in assessing non-complying activities is that set out in Baker Boys Ltd v Christchurch City Council 55. In respect to the first threshold test under the RMA before the 1997 amendment (section 105(2)(b) rather than under section 105(2A)(a)), the Court in that case held that in determining whether adverse effects on the environment will be minor any mitigating conditions may be considered. It also held that if no issues arise under section 5(2)(a) or (b) or section 6 it may be proper to weigh positive effects against adverse effects. The Court of Appeal’s decision in Bayley must cast doubts on transferring the Elderslie Park approach to section 105(2A) as this division of the Court did in Baker Boys (with qualifications).56 Especially since we have to consider the ‘adverse effects’ (plural) we consider that while it is still appropriate to consider each adverse effect as mitigated, there is no statutory authority for us to consider the positive effects of a proposal when deciding whether the threshold test in section 105(2A)(a) is met. To that extent we consider that in the light of Bayley, we were wrong in Baker Boys in adopting a (qualified) net adverse effect approach to the first threshold test. The test is
See para 72 above. [1998] NZRMA 433 at 459 applying with some modification the principle established by the High Court in Elderslie Park Ltd v Timaru District Council [1995] NZRMA 433 at 444. Baker Boys was concerned with section 105(2)(b) of the RMA before the RMAA 1997 39 whether the adverse effects as proposed to be remedied and/or mitigated, and taken as a whole, are more than minor.
77. In this case there are three possible adverse effects: traffic, noise and impact on the amenity of the area. We consider that the increased traffic will cause only a minor adverse effect on the environment. There is potential for precedent effects as Mr Gadd pointed out and we consider that again shortly. We are also of the opinion that the reduction in setback and the scale of the proposal will not create any adverse effects that are greater than minor. This is especially so considering the mitigation of those effects given by the proposed landscaping conditions.
78. Noise however is more of an important issue, especially for those residing at 142 Main North Road. The test for noise is not just whether the proposed plan’s noise levels are met, but whether the potential adverse effects of noise will detract for the residential amenity of the neighbourhood, and whether the noise will be reasonable.57 We accept Mr Chisholm’s evidence that a solid 2 metre fence would help reduce the noise from vehicles and people on the site. He also agreed that sound-reducing glazing may assist. If noise is mitigated in that way we consider that the noise at night will not detract from the amenity of the neighbourhood, and at 142 Main North Roading particular. The noise effects will therefore not be more than minor.
79. The adverse effects of the non-complying residential activity (the manager’s flat) are certainly no more than minor. Looking at all the adverse effects together with the proposed mitigating measures we consider they are not more than minor. Since the first threshold test in section 105(2A) is met we do not need to consider inconsistency with either of the plans. We now turn to consider whether or not to grant the resource consents sought.
Assessment under Section 105(1)
v Taupo District Council A149/98. 40
80. The test as to how we are to exercise our discretion in respect of non- complying activities58 was stated in Baker Boys59 as being:
109. As for our discretion under section 105(1)(c) we have to make an overall judgment to achieve the single purpose of the Act. This is arrived at by.
l taking into account all the relevant matters identified under section 104
l avoiding consideration of any irrelevant matters such as those identified in sections 104(6)60 and 104(8)
l giving different weight to the matters identified under section 104 depending on the Court’s opinion as to how they are affected by application of section 5(2)(a), (b) and (c) and
l sections 6-8 of the Act to the particular facts of the case, and then
l in the light of the above
“allowing for comparison of conflicting considerations, the scale or degree of them, and their relative significance or proportion in the final outcome.” 61
81. The adverse effects of traffic and noise and on the amenities need to be weighed against the positive effects of the proposal (which are of course
Under section 105(1)(c) of the RMA [1998] NZRMA 433 at 462; 4 ELRNZ 297 at 328. Footnote 79 in Baker Boys (C60/98) states this is subject to section 104(7). Quoting Caltex NZ Ltd v Auckland City Council (1997) 3 ELRNZ 297 at 304 41 mainly for the applicant and its guests). It is also important that we discount any possible adverse effects on the neighbours who have given their approvals 62.
82. Turning to consider Part II of the Act, we find that in relation to section 5 of the Act, the evidence shows that the adverse effects are no more than minor and some potentially adverse effects can be remedied or mitigated by the design and conditions. We are of the view that section 7(b), (c) and (f) are also relevant. Ms Robinson submitted that in respect to section 7(b) the fact that a particular class of use is recognised in a plan as permitted, controlled or discretionary implies that the class of activity is an efficient use and development of resources for the purposes of Part II.63 The Court in LRG Investments Ltd discussed this matter and said:
We accept that provision of an activity as a discretionary activity in the proposed plan could lead to the inference that the activity is an efficient use of resources, although we would not go so far as to say that such an inference is irrefutable. 64
There has been no evidence presented to rebut the presumption that the proposal is an efficient use so we assume that under the proposed plan it is.
83. Pursuant to section 7(c) Ms Robinson submitted that the evidence shows that notwithstanding the proposal exceeds the scale rule, the existing amenity of the area will be maintained. She referred to Shell New Zealand Limited v Auckland City Council 65. The Court of Appeal there held that section 7(c) does not require a proposal for resource consent both to maintain and enhance amenity values. The Act clearly contemplates applications that not only do not enhance the amenity but also do not even maintain it. We are of the view
See section 104(6). See Swindley v Waipa District Council A75/94, Hill v Christchurch City Council C123/97. LRG Investments Ltd at p.9. [1996] NZRMA 189. 42 that this interpretation also applies to section 7(f) and that although the amenity values of the environment will not be maintained, and in the eyes of some not enhanced either, the proposal is compatible with the receiving environment and any adverse effects can be dealt with by conditions.
Section 105(1)(c) discretion under the transitional plan
84. It was common ground that the proposal for a motel is non-complying under the transitional district plan. Nor does it attain the objectives and policies of the transitional plan. The proposal decreases open space, landscaping and privacy (the latter especially for Mr Sedgley’s property). Nor does the proposal improve, but rather it worsens the traffic environment in the area. These are minor adverse effects, but they are not insignificant and while on the whole we prefer the other traffic evidence to that of Mr Gadd because his evidence was less empirical and rather anecdotal, we respect his judgement and his opinion that this case might be a precedent if the motel proceeds. Thus, in the absence of any other factor, we consider non-compliance with the transitional district plan would outweigh the positive effects of the proposal so that we should refuse consent under the transitional plan. However, we also need to consider whether we would grant consent under the proposed plan, so we now turn to consider the application in the light of that plan.
Section 105(1)(c) discretion: the proposed plan
85. Our assessment of the effects of the proposal, and the application of Part II of the Act is exactly the same under the proposed plan as it is under the transitional plan. In respect of the objectives and policies of the proposed plan, the proposal does not maintain the general character of the suburban living environment66, nor does it meet any ‘community need’67. It does detract in a minor way from the amenity values of the area in that it intensifies
Proposed plan Vol. 2 policy 11.1.2 [p. 11/4] Proposed plan Vol. 2 objective 11.3 [p. 11/9] 43 activities. The motel buildings hardly reinforce the Garden City image promoted 68 by the proposed plan. However we need to look at the proposal in its context - especially in the light of the fact that it is adjacent to the busy and noisy Main North Road.
86. A major difference between considering the application under the transitional plan and our current considerations under the proposed plan is that it is a discretionary activity under the latter. As the Court said in LRG Investments Ltd, and as some of the other objectives and policies appear to emphasise, motels are allowed within the Living 1 zone as long as they do not detract from the residential area they are located in. That is, as long as the environmental effects are no more than minor. We have already held that they are not. In addition the non-compliance with the standards in the proposed plan is limited. We also add that allowing the proposal to proceed will not affect the integrity of the proposed plan as the proposal is discretionary under it and “other activities” are anticipated in the zone.69 The cumulative effects on traffic of allowing more motels in this area because of this precedent must have been considered by the Council when deciding to allow ‘other activities’ in the Living Zones.
87. Finally under the proposed plan, a resource consent is needed for the manager’s residence as a non-complying activity. The main adverse effect is the absence of 2.1% of the proper open space (assuming Mr Stokes’ calculation is correct).70 We consider that adverse effects will be very minor indeed (possibly even de minimis). The manager’s residence is clearly not inconsistent with the objectives and policies of the Living 1 zone for one general and one specific reason. The obvious general reason is that the Living 1 zone is primarily for residential activities. The specific reason is that it is a
Proposed Plan Vol. 2 policy 11.4.11. [p. 11/14] Caltex New Zealand Ltd v Auckland City Council 3ELRNZ 297. The critical standard has maximum site coverage as being 40% of the ‘net area’ whereas this proposal has 42.1% coverage. (Proposed plan vol. 3 R.2.2.2 [p.2/13]. 44 policy that motels require a live-in manager.71 In these circumstances we have no difficulty deciding that resource consent should be granted for the manager’s residence under the proposed plan.
[G] Outcomes
88. We have arrived at the position where we are disposed to refuse resource consent under the transitional district plan but to grant consent under the proposed district plan. We now consider which plan should be given more weight.
89. Ms Steven and Ms Robinson submitted that little weight should be given to the transitional plan. It was not prepared under the Act and motels are not provided for in the Residential 1 zone, resulting in no standards or any relevant objectives and policies for the activity to be assessed against. Both submitted more weight should be given to the proposed plan. We agree, respectfully adopting what was said by the Court in LRG Investments Ltd72:
In our opinion because the outcome of the relevant submissions on the proposed plan are unlikely to have any significant effect on the status of the ... proposal and indeed on the criteria by which it is to be assessed, we think in this case, the proposed plan should be given more weight than the transitional plan which was made operative almost 10 years ago.
90. We acknowledge that Mr Stokes did raise some pertinent points, especially with respect to Rule 2.5.2 of the proposed plan. On the face of the proposed plan there were also objectives and policies that supported his approach but in the final analysis we have found that the proposed plan does provide for motels within the Living 1 zone providing the effects of the proposal on the
Proposed plan vol. 3 Rule 2.4.8 [p.2/19] C64/98 at p.9 45 environment are no more than minor. We have concluded that with landscaping and other conditions the effects will be no more than minor. The proposal will be compatible with the environment within which it is to be built. Overall, after taking all matters into account, we consider that the purpose of the Act will be met if the proposal proceeds with conditions attached and that resource consents should be granted under both plans.
91. Accordingly we make the following orders:
(1) Under section 290 of the Act: (a) The Council’s decision dated 11 May 1998 is confirmed, and (b) land use consents are granted to Nimbus Holdings Limited under both the transitional plan and the proposed plan. (2) The parties should be able to resolve the conditions (with particular care needed to formulate conditions to protect Mr Sedgley’s amenities) between them on the basis of this decision, but if they cannot then leave is reserved to any party to apply to the Court to settle the conditions. (3) Under section 285 of the Act costs are reserved and if any party wishes to do so then the following timetable should be adhered to: (a) any application for costs shall be filed and served within 20 working days of the date of this decision; (b) any reply within a further 20 working days of the date of this decision.
We indicate that our preliminary view is that costs should lie where they fall.
/&H. day of June 1999.