BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL
IN THE MATTER of the Resource Management Act 1991 (Act)
AND
IN THE MATTER of the Local Government (Auckland Transitional Provisions) Act 2013
AND Auckland Council
IN THE MATTER of the Proposed Auckland Unitary Plan Topic 081
SUBMISSIONS OF COUNSEL FOR SAVE OUR ST HELIERS INC AND ST HELIERS / GLENDOWIE RESIDENTS ASSOCIATION INC (SOS)
09 MARCH 2016
Counsel Acting Rob Enright Barrister Level 1, Northern Steamship Building 122 Quay Street Britomart Auckland 1010 e: [email protected] m: +64 21 276 5787 MAY IT PLEASE THE INDEPENDENT HEARINGS PANEL
INTRODUCTION
1 Save Our St Heliers and the St Heliers / Glendowie Residents Assoc (SOS) wish to present a focused case to you. The key issue is the height of buildings. SOS seeks a 9m height limit, above which discretionary consent is required. St Heliers is a “coherent town centre of predominantly single and two storied commercial buildings”. 1 A 9m height limit reflects this. Construction above this height is not precluded, but should be subject to discretionary consent status, including usual rules as to notification.
2 Related to the height issue are Policies and Methods that maintain and enhance character. SOS does not have a fixed or static view of St Heliers’ character. Sympathetic and appropriate change is envisaged. The issue is not change per se, but rather “what is appropriate”. The question does not need to be asked in a vaccuum. Illustrative examples of “what not to do” already exist. These will be addressed today by SOS’s experts. Examples of “what doesn’t work” support SOS’s contention that 9m (and 2-storeys) is the right height control.
3 Other than the issue of height, there is some measure of agreement between the parties. The Precinct Summary and Character Statement, reflected in Council’s evidence, are largely supported. Changes proposed by Anacona 2 are not supported. SOS puts forward 2 alternative positions on the Objective. Ms Hotop supports Council’s wording. Ms Peake prefers a different wording. Both versions are provided in SOS’s track changes.
4 It is the wording of policies and methods where evidence is in conflict. Ms Hotop will speak to key matters in dispute including:
• Policy wording • Height and requirement for 2 storeys • Height and front yard setback • Activity status and notification • Out of scope changes • Character Overlay vs Precinct
5 Ms Hotop has prepared a tracked changes version that addresses the above points. She recommends revised policies that largely reflect the notified version of the PAUP. Ms Hotop’s planning opinion is that whether St Heliers is subject to a Character Overlay or Precinct is arguably immaterial. It is the detailed wording of the policies and methods that are of key importance: “..provided the provisions of either option afford appropriate recognition and protection to the special character and ‘sense of place’ of the area..” 3
6 An important difference between Council and Ancona’s experts, on the one hand, and SOS’s experts, on the other, is the amount of to be weight placed on the Environment Court decision on Plan Modification 145 (PC145).4 The short point is that the PC145
1 Graeme Burgess, Rebuttal at [1] 2 Ancona Properties Ltd (Ancona) 3 Tara Hotop, Rebuttal at [9]. 4 Kennedy v Auckland CC A110/2008 (interim) and A016/09 (final) decision does not preclude a merits based assessment as to St Heliers’ character. It is in no way determinative. The Environment Court did not conclusively “determine” that St Heliers lacks special character, or should have 12.5m height liimts, for reasons explained below.
7 Issues discussed are:
o Relief sought o HGMPA o PC145 Decision o Process issues o Evidence o Conclusion
RELIEF SOUGHT BY SOS
8 As noted, Ms Hotop has prepared a tracked changes version of Chapter F.2.19. SOS largely agrees with the precinct summary. St Heliers is:
“..strongly defined by its relationship to the bay and beachfront of St Heliers Bay, the Hauraki Gulf, Tamaki Drive and St Heliers Bay Road..”
This is the “key axis” connecting “..the Village’s hinterland and waterfront”.
9 The precinct description refers to the “seaside village character” of St Heliers and the “..diverse range” of building typologies which are “predominantly one and two storeys in height..”
10 SOS contends that height controls and a limit on built storeys are key means to manage change appropriately. But the policies and methods proposed by Council and Ancona don’t implement the Precinct Summary and Character Statement. As Graeme Burgess notes “..there is a severe disjunction between the objectives and policies and the Development Controls..”5 Mr Burgess also notes that “..the proposed policies and development controls do not reflect the character statement and in key aspects are contrary to the character statement, in particular with regard to the controls on height and bulk.” New development on Maheke St and the eastern side of Turua St have had a substantial effect. These developments “..create a dominance effect over the identified one and two storey built form through increased bulk and scale within the town centre..” 6
11 SOS acknowledges Mr Riley’s suggestion, in rebuttal, of a 4m setback, rather than 2.5m. However it is not sufficient and Mr Burgess provides examples why. If the 9m height is adopted, in tandem with 2-storey limit (with D status beyond that) then there is no need for a setback. The 9m / 2-storey limit best addresses Mr Riley’s observation that:
“[1.3] St Heliers’ seaside location and its block structure are inalienable components of its sense of place. These are contributed to by the one to two
5 Graeme Burgess, Rebuttal at [63] 6 Ibid at [5] storey height of the majority of buildings and the quality of the pedestrian realm on retail streets..”7
12 Both Mr Burgess and Ms Peake strongly support the St Heliers Character Statement as notified. Changes proposed by Anacona to the Character Statement “..remove or dilute reference to significant factors that contribute to the character of the town centre..”.8
HGMPA
13 It is not contested by Council that HGMPA applies to St Heliers Village. Ross Cooper notes that:
“8.4 The precinct is located within a catchment of the Hauraki Gulf, and development and use of that land must therefore give effect to the HGMPA.” (EIC)
14 Mr Cooper makes the quasi-legal point that HGMPA only applies at the RPS and city- wide level, and has no bearing on the precinct rules:
“[8.5] In my view, the key components of the precinct that need to be managed in order to meet the purpose of the HGMPA relate to the environmental effects associated with earthworks and development such as erosion, stormwater runoff, contamination, air quality and coastal inundation. These matters have been addressed comprehensively through evidence on the RPS and Auckland-wide rules, and do not warrant consideration on a precinct level here.” (EIC)
15 There is no such limitation in HGMPA. The precinct rules should also give effect to the HGMPA, as a matter of national importance. The Environment Court in Kennedy confirmed that HGMPA is relevant to the specifics of a district level plan change for the Village itself. In Kennedy, HGMPA was of less assistance because the district plan objectives and policies were “settled”. But it was still considered and given “appropriate weight”. 9 The provisions are not settled here. And HGMPA should be given careful consideration for the precinct.
16 The relationship between St Heliers and the Hauraki Gulf is what makes St Heliers unique. This is a major point of difference to Eastridge, Ellerslie or Mt Eden. S8(d) HGMPA is especially on point:
the protection of the cultural and historic associations of people and communities in and around the Hauraki Gulf with its natural, historic, and physical resources:
17 s8(d) imposes a “protective” standard for “historic” as well as cultural associations. This includes special and building character, and is not limited to historic character (“associations”). It includes focus on the past, not future, building form. S8(d) is certainly not limited to earthworks, erosion, other forms of discharge or coastal inundation. Also relevant are ss8(b)(e)(f).10 The protective function will be better
7 Matthew Riley, EIC at [1.3] 8 Graeme Burgess, Rebuttal at [20] 9 Interim decision, supra at [19] and [85] 10 HGMPA: ss8(b) the protection and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments; (d) the protection of the cultural and historic associations of people and communities in and around the Hauraki Gulf with its “given effect to” as a deemed NPS through the 9m height and 2-storey controls proposed by SOS (together with SOS’s related amendments).
PLAN MODIFICATION 145 (PC145)
18 Mr Cooper at 7.3 and 13.1 states that the St Heliers precinct was developed as part of the notified version of the PAUP to “give effect to” the 2009 Environment Court decision (i.e PC145 and 145A).
19 It is accepted that the Kennedy decision provides some assistance. At [4] the Court confirmed the importance of its natural setting and that urban character -
“..derives from a combination of its street pattern, relatively small sites and diverse mix of compact buildings, few of which exceed 2 storeys and many of which date from the 1920-30’s.” (interim decision)
19 The “2-storey” element is a key motif for St Heliers. This may explain why Council has not abandoned reference to it in the Precinct description. However, it lacks force unless reflected in the rules.
20 In contrast, the Kennedy decisions are not binding on the Panel. At best, Kennedy provides guidance. It is a matter to “have regard to”, as indicated in the IHP’s Interim Guidance on Precincts. It is in no way binding on your deliberations. Mr Cooper’s statement that Kennedy needs to be “given effect to” is wrong in law.
21 Just as important, the substance of the decision is not directly on point because:
(a) in their final form, the appeals related to changes to rules on 3 matters. These were a height control/recession plane development control; a roof bonus rule; and whether to allow exemptions from on-site parking. In contrast, under the PAUP process, all methods are at issue; 11
(b) the centre plan did not introduce new objectives and policies, and a number of assessment critieria and development controls were also beyond challenge. Meaning the competing rules had to implement the legacy wording.12 This contrasts to the PAUP process, where all levels (from RPS down) are at issue and the LGATPA 2010 applies;
(c) the Court was required to decide which of the competing approaches to height is “likely to prove more efficient and effective in achieving higher order plan provisions”.13 So the issue of height was at issue, but only for purpose of giving effect to settled (legacy) objectives & policies. A setback of 2.5m above 8.5m was imposed.
(d) The Kennedy decisions are of interest, inform the current debate, but do not act as an estoppel on the further consideration of issues which may have been before the
natural, historic, and physical resources; (f) the maintenance and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments, which contribute to the recreation and enjoyment of the Hauraki Gulf for the people and communities of the Hauraki Gulf and New Zealand. 11 Interim decision (supra) at [87] 12 Ibid at [88] 13 Ibid at [90] Court, particularly as the Court was dealing with a plan made operative in 1999, many years after first notified. Many of the provisions were “settled” or agreed between the parties and not subject to the testing that arises from litigation or dispute requiring determination by the Court.14
(e) To the extent that Council’s evidence has treated the Kennedy decision as binding, and to be “given effect to”, this reflects a flaw in approach. A merits-based assessment is instead appropriate. Some of the observations made by the Court in Kennedy form part of the precinct summary so the issues remain live for the IHP and have been addressed in substance by SOS’s experts.
PROCESS ISSUES
22 Margaret King notes that SOS were given permission by the IHP to address all relevant issues relating to the St Heliers precinct during Topic 081. She has also dealt with the failure to code relief for 380 pro forma submissions.
23 SOS is opposed to the out of scope amendments proposed by Ancona. These are not fairly and reasonably related to relief sought.
24 Council’s legal submissions refer to SOS having filed rebuttal evidence after Council filed rebuttal on 24 Feb 2016.15 SOS applied for leave to file rebuttal by 26 Feb 2016, as a consequence of the late posting of primary evidence through the IHP website.16 Rebuttal was therefore not late, and nothing should turn on this. All parties (and the IHP) have been dealing with compressed timeframes and no prejudice arises. Council has not proposed any amendments in relation to SOS’s rebuttal evidence. Regardless, SOS’s recommended changes are clearly stated in Ms Hotop’s tracked changes document.
EVIDENCE
25 SOS (and the Residents Association) are community-led organisations. Margaret King’s evidence confirms the extent of community support for recognition of St Heliers’ unique character and coastal village location. Ms King notes coding issues, meaning that relief sought in 380 pro forma submissions was disregarded in Council and Ancona’s primary evidence.
26 St Heliers is a destination village. It has been so from first-establishment. Graeme Burgess will make this point forcefully with historic photographs from its early colonial past. It is iconic for reasons explained by Desley Simpson, relating to Anzac services that link to the Waitemata, and the finishing point for sporting events along Tamaki Drive. St Heliers has “social significance” through its association with ceremonial and memorial events.17 The St Heliers Bay Rd axis at the centre of the precinct, and its intersection with Tamaki Drive, are fundamental to its character. 18
14 Acknowledging Consent Orders may have been made but this is a very different process to the contested PAUP process. 15 Council legal submissions dated 03 March 2016 (Precincts) at pp171-172, at [10]-[13] 16 No criticism is made of this; delays in posting submitter primary evidence were a function of the large amount of evidence involved in Topic 081. 17 Ibid at [30] 18 Ibid at [21] 27 Sally Peake is an experienced landscape architect. She prepared detailed evidence to support SOS’s submission dated February 2014. This evidence was annexed to SOS’s original submission but not addressed by Council and Ancona in primary evidence. Ms Peake notes conceptual differences between historic and special character and lists a number of reasons why St Heliers qualifies for special character.19 While recent changes in St Heliers have seen the demolition of important buildings and replacement with new buildings that arguably do not meet the special character, the remnant is relatively intact, and has special urban design qualities that should be protected.20
28 Graeme Burgess and Tara Hotop’s evidence are discussed above.
CONCLUSION
29 St Heliers merits special treatment to reflect its unique status, heritage and historic factors, and relationship to the Hauraki Gulf.
30 What might be appropriate for managing the effects of a single building (as a discretionary activity) is not necessarily appropriate for a whole town centre.21 If a single building can justify additional height (beyond 9m) then this is not precluded, but it should not be adopted as a rule for the village as a whole. Other amendments are sought, as set out in SOS’s tracked changes.
Dated this 10th day of March 2016
Rob Enright Counsel for Save Our St Heliers and the St Heliers / Glendowie Residents Association
19 Sally Peake EIC (Feb 2016) at [28] 20 Ibid at [37] 21 Echoing [90] of Kennedy (interim decision). Judgment Text
Kennedy v Auckland City Council
Court: Environment Court, Auckland Judges: JudgeNewhook, CommissionerMcConachy, CommissionerDunlop Judgment Date: 30/9/2008 Jurisdiction: New Zealand (NZ) Court File Number: A110/08 Attachments: Judgment Text Party Names: JE Kennedy (Appellant), The Carter Family Trust and the John Scotting Family Trust (Appellant), The John Scotting Family Trust (Appellant), B Lornie and R Lornie (Appellant), Magellan Corporation Limited (Appellant), Magellan Investments Limited (Appellant), P S Scotting and F W Sheffield (Appellant), Capri Properties No.1 Limited (Appellant), Auckland City Council (Respondent) Legal Representatives: Mr JP Hassall for Auckland City Council; Mr R B Brabant for Ms Kennedy; Mr R E Bartlett and Mr S J Ryan for Capri Properties No 1 Limited and the Carter, Scotting, Sheffield, Lornie and Magellan interests; Mr DA Kirkpatrick and Ms C Somerville for BBG Trust Limited [s 274] Classification: • Resource management > Plans and schemes > District > Change or variation • Resource management > Plans and schemes > District > Rules
Jump to: Judgment
Kennedy v AucklandCityCouncil A. Appeal by Capri Properties No. 1 Limited and others allowed in part. B. Appeal by J E Kennedy allowed in part. C. Costs reserved. INTERIM DECISION OF THE ENVIRONMENT COURT JudgeLJ Newhook (presiding)CommissionerHA McConachy, CommissionerRM Dunlop
Introduction
[1] The appeals are against a decision by the respondent on its Plan Change 145 and Variation 145A [1] , (the Change) which propose that a centre plan apply to the business area of St Heliers in the operative Auckland City District Plan (Isthmus Section). The Change overlays the existing zoning (largely Business 2) and is intended “to protect the distinctive character of the St Heliers town centre by encouraging but not freezing innovative and congruent development” [2] .
[2] By the conclusion of the hearing only three matters remained in dispute. An agreed basis for settling the appeals on all other matters was agreed by the parties during the course of the hearing and is contained in Appendix 2 to this decision [3] . Subject to the amendments, which we direct, the Appendix fulfils its statutory purpose and is to be adopted by council. Simply put, the unresolved matters which we must decide are: a) whether an amended height control/recession plane development control rule and consequential amendments sought by Ms Kennedy should be included in the Change; b) whether a roof bonus rule proposed by BBG Trust in the form attached to Ms Somerville's closing submissions should be included; and c) if we have jurisdiction, whether particular sites in defined circumstances should be exempt from the district plan's on-site parking requirements.
[4] [3] We accept Mr Hassall's submission that the appeals in this case can be determined separately from those by TelstraClear Limited and Vodafone NZ Limited on telecommunication devices. Although the BBG Trust led evidence [5] which could embrace aspects of these and similar devices, we find it inappropriate for the reasons given by Mr Hassall to take our inquiry beyond “rooftop projections” of the type covered by assessment criterion B3.3(i) in Appendix 2 to this decision.
St Heliers Town Centre
[4] The town centre is located at the eastern end of Tamaki Drive on the Waitemata Harbour approximately 11 kilometres from the Auckland CBD. Spread over approximately 3 blocks on an east/west axis and one block back from the waterfront, the centre [6] provides St Heliers and neighbouring suburbs with a range of local retail, entertainment,
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professional, financial, personal and community services. A detailed description of the centre's history, landscape, urban structure, streetscape and built environment is contained in Section A of Appendix 2 to this decision. There is no need to repeat it here. Suffice to say that the Court, assisted by the evidence and its site visit, has found the following factors especially pertinent to deciding the matters before us: i) The urban character of the centre derives from a combination of its street pattern, relatively small sites and diverse mix of compact buildings, few of which exceed 2 storeys and many of which date from the 1920 — 30's. ii) The continuity of built frontages on Tamaki Drive, St Heliers Bay Road and a section of Polygon Road. iii) The high percentage building site coverage and absence of visible on-site parking on Tamaki Drive, St Heliers Bay Road and northern side of Polygon Road [7] iv) The centre's natural setting and, in particular, the: • way development fronting Tamaki Drive contributes to the amenity of the coastal environment, which encompasses the Waitemata Harbour, foreshore, landscaped road reserve and built elements; • close relationship which overlooking residential areas have with the centre.
[5] Mr A Wild, an architect with specialist expertise in heritage and conservation architecture called on behalf of Ms Kennedy, captured these aspects very adequately when he said in rebuttal: “The character of St Heliers village comes from the complex arrangement of small and relatively simple buildings, read together with a variety of open and landscaped spaces on both public and private land (including the street and between buildings), and the relationship of the whole to the sea [8] .”
Statutory Evaluation Framework
[6] The appeals fall to be decided under the Resource Management Act 1991 in its form prior to the Resource [9] Management Amendment Act 2005 because Plan Change 145 and Variation 145A were publicly notified prior to 9 August 2005 (the date that the 2005 Amendment came into force) [10] .
[7] The relevant district plan objectives and policies identified in submissions and evidence are settled [11] . As noted previously, the remaining matters in dispute are concerned with the merits of different methods and, in particular, rules to implement higher order provisions. We remind ourselves that in Hibbit v Auckland City Council [12] the Court found: “ … In references under the Resource Management Act of provisions of district plans, no onus rests on the appellant to establish that the subject provisions should be deleted, the proceedings being more in the nature of an inquiry into the merits in accordance with the statutory objectives and existing provisions of policy statements and plans; nor is there a presumption that provisions of a proposed plan are correct or appropriate …”
[8] Mr Hassall submitted that the test for assessing plan appeals is found in Eldamos Investments v Gisborne District [13] Council . We note that they have been somewhat extended in the recent decision of the Environment Court in Long [14] Bay — Okura Great Park Society and others v North Shore City Council , and accept for present purposes that the requirements for consideration of plan changes [15] should be as there described. The relevant requirements in this case — with the different statutory tests emphasised for convenience — are therefore: A. General Requirements [16] 1. A district plan (change) should be designed to accord with, and assist the territorial authority to carry out — its functions [17] so as to achieve, the purpose of the Act [18] . 2. When preparing its district plan (change) the territorial authority must give effect to any national policy statement or New Zealand Coastal Policy Statement [19] . 3. When preparing its district plan (change) the territorial authority shall: [20] (a) have regard to any proposed regional policy statement ; (b) not be inconsistent with [21] any operative regional policy statement [22] . 4. In relation to regional plans: (a) the district plan (change) must not be inconsistent with an operative regional plan for any matter [23] specified in section 30(1) [or a water conservation order] ; and (b) must have regard to any proposed regional plan on any matter of regional significance etc [24] ; 5. When preparing its district plan (change) the territorial authority must also: • not have regard to trade competition [25] ; 6. The district plan (change) must be prepared in accordance with any regulation. [There are none at present]. [26] 7. The formal requirement that a district plan (change) must also state its objectives, policies and the rules (if any) and may [27] state other matters. B. Objectives [the section 32 test for objectives]
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8. Each proposed objective in a district plan(change) is to be evaluated by the extent to which it is the most appropriate way to achieve the purpose of the Act. C. Policies and methods (including rules) [the section 32 test for policies and rules] 9. The policies are to implement the objectives, and the rules (if any) are to implement the policies [28] ; 10. Each proposed policy or method (including each rule) is to be examined, having regard to its efficiency and effectiveness, as to whether it is the most appropriate method for achieving the objectives [29] of the district plan taking into account: (a) the benefits and costs of the proposed policies and methods (including rules); and (b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods [30] . (Emphasis added to “rules” as they are the principal provisions in dispute). D. Rules 11. In making a rule the territorial authority must have regard to the actual or potential effect of activities on the environment [31] . E. Other statutes: 12. Territorial authorities may be required to comply with other statutes. Within the Auckland Region they are subject in this case to: • the Hauraki Gulf Maritime Park Act 2000;
[9] Insofar as s 74(1) requires the council to prepare and change its district plan in accordance with the provisions of Part 2, we note the following potentially relevant provisions - in addition to the purpose of the Act and meaning of sustainable management given in s 5 - namely: • s 6(a) — the preservation of the natural character of the coastal environment (including the coastal marine area) … and the protection of them from inappropriate subdivision, use and development. • s 7(b) — the efficient use and development of natural and physical resources. [32] • s 7(c) — the maintenance and enhancement of amenity values . • s 7(f) - the maintenance and enhancement of the quality of the environment [33] .
District Plan Provisions
General Business Objectives and Policies
[10] Mr R T Osborne, a planning consultant called on behalf of the council, set out the district plan's general business Objectives and Policies [34] and those for the Business 2 zone [35] . Those which we have found potentially relevant are set out in Appendix 1.
[11] Clause 8.6.2.2 (Business 2 Zone Strategy) states with reference to Expected Outcomes that: “The centres to which this zone is applied are expected to be subject to considerable change in the future. … there is a need for these centres to find a particular niche in the market and to capitalise on specific characteristics. … Those centres where community and business concerns are strong will adopt Centre Plans which will identify and attempt to manage the specific resource management issues of the centre. It is expected that these Centre Plans will be important planning tools — reflecting community concerns, and coping with issues such as parking and traffic matters and the provision of amenity improvements. The development controls for the zone are expected to maintain or improve the amenity of these centres, over time, especially the pedestrian environment of retail dominant areas.” [Emphasis added] Given the outcome highlighted above - and that “parking and traffic related issues [were] the main dislike” identified in [36] an initial round of consultation for a centre plan - it is notable that the council has still to develop a parking plan for St Heliers [37] . We return to this aspect below.
[12] We also found Mr Osborne's evidence [38] helpful in imparting an understanding of other aspects of the operative Business 2 zone and Plan provisions which apply to Tamaki Drive. At the cost of extending this introductory section of our Decision, we reproduce the following sections of his evidence, annotated where necessary. “[4.2] Part 8.7 of the District Plan outlines the permitted, controlled, discretionary and non-complying activities within the Business 2 zone. Activities such as [retail] [39] , offices, care centres and healthcare services are permitted activities, whereas other activities such as public carparks, entertainment facilities and motor vehicle sales yards require resource consent.”
[13] Mr Osborne continued: “[4.3] Part 8.8 of the District Plan outlines the development controls. The maximum [Business 2 zone] Thursday, 10 March, 2016 at 12:05 NZDT Page 3 Judgment Text
height is 12.5 metres, the floor area ratio is 2:1, with bonus floor areas ratio for through-site links, landscaped areas and plazas. … Rule 8.8.1.3A requires verandahs along sites identified [40] in the planning maps . Rule 8.8.1.3 B, Retail Frontage requires 75% of the site frontage at road level be devoted to display areas or windows [41] . … Rule 8.8.1.3 E states that residential units and car parking areas shall be located above the street level. There are also … building in relation to boundary controls in specific circumstances and controls for residential units. … ”
[14] We expect that the Basic FAR of 2:1 [Rule 8.8.1.2A] is particularly significant as it indicates that sites developed to their fullest potential should not generally exceed 2 storeys although, as Ms A C E Leijnen (planning consultant called on behalf of Ms Kennedy) indicated, that may depend on parking arrangements because “Required parking doesn't get counted as part of that FAR. So you can get a bigger building than simplistic interpretation implies” [42] . It is also relevant that Rule 8.8.1.2C sets a Maximum FAR [permitted GFA plus Bonus Floor Area] in the Business 2 zone of 4:1. The maximum permitted height for the two residentially zoned sites on the south side of Polygon Road is 10m [43] .
[15] Mr Osborne appropriately drew our attention to the Plan provisions for Coastal Management and the Tamaki Scenic Way. But we think the provisions might be more significant in the context of Part 2 RMA than his summarised treatment of them initially suggested. Figure 5B.1: The Coastal Environment and the Coastal Management Area shown on Appendix 3 illustrate the connection with s 6(a). We therefore set out relevant aspects of Part 5B and Part 5C.7.7 more fully as follows:
“Coastal Objective 5B.4.6: Use and Development
To ensure that use, development and protection of the natural and physical resources of the Auckland isthmus coastal environment are achieved in a fully integrated manner which preserves the natural character of the coastal environment.
Scenic Way Objective 5C.7.7.1
To recognise and protect the special visual and scenic qualities of Tamaki Drive.
Policies for that objective include the following:
Use and Development
• By ensuring that use, development and protection of the natural and physical resources of Tamaki Drive Scenic Way are achieved in a fully integrated manner which maintains the identity and visual consistency of the Scenic Way through: (i) avoiding impairing existing views to and from the harbour and salient landscape features within the Tamaki Drive Scenic Way; — (ii) ensuring that the present open space aspect of the area is maintained; (iii) ensuring that new buildings and structures are designed in harmony with those existing buildings and structures which reflect the historical and maritime character of the area; and that their scale, form, colour and siting does not detract from the natural scenic qualities of the area.
5C.7.7.2 Strategy
Use and Development
Due to the unique scenic and visual amenity of the Tamaki Drive Scenic Way, the Plan's strategy towards use and development within it is conservative, particularly on publicly owned land. The following measures [amongst others] apply: • Encouraging the adoption of Centre Plans for the commercial areas within the Scenic Way which will recognise their unique location through specially designed controls on signage, parking, design and appearance.”
[16] We understand from Mr Osborne's evidence that the St Heliers library building on the corner of St Heliers Bay Road and Polygon Roads is the only scheduled heritage building in the centre.
[17] We have also noted in Part 12.7.1 — Transportation, the following objective and policies for parking.
“Objective
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To ensure that the impact of activities on the capacity and safety of the road system is adequately catered for, so as to avoid adverse impacts on the environment.
Policies
• By requiring activities to provide adequate off-street parking and loading facilities • By providing opportunities to alleviate parking deficiencies within existing commercial centres.” Strategy 12.7.2.2, Existing Commercial Centres, states that requiring individual developments to provide their own off-street spaces in larger centres is not always appropriate as it can result, amongst other things, in a proliferation of small parking areas with multiple accesses and poor visibility. Centralised car parks are seen as an appropriate response to avoid these effects. Two methods are identified for implementing such parks - separate rating areas and special parking zones. Clause 12.7.2.3 provides that financial contributions for parking may be used to either purchase or lease parking spaces in lieu of their provision on site. These spaces: “ … may either be part of an existing publicly owned car park or may be used to provide further public parking areas in the locality of the development making the contribution.”
[18] Appendix 11 to the Plan contains Design Guidelines for Traditional Town Centres. The Appendix has a “character summary” of St Heliers but no centre-specific guidelines, although Ms R A Skidmore (urban designer/landscape architect, called on behalf of the council) considered them to be “applicable to the ‘mainstreet’ environment of St Heliers Bay Road” [44] .
[19] We have consciously not summarized relevant parts of the superior instruments [45] and Hauraki Gulf Maritime Park Act described in the evidence. Whilst taking these matters into account and according them appropriate weight we have found the more specific district plan provisions for the Coastal Management Area [Part 5B] and Tamaki Drive Scenic Way [Part 5C.7.7], which apply to the seaward part of the centre plan area and derive from the “higher order” documents, are of greater assistance on this occasion. As the relevant district plan objectives and policies are settled, we respectfully follow the approach in Suburban Estates that “ … the over-arching purpose of the Act — that is sustainable management, and the elements of Part 2 — are largely presumed to be met by, and subsumed in, the objectives and policies … .” [46] .
Plan Change 145
[47] [20] The provisions of the St Heliers centre plan are in addition to existing district plan controls . Specified centre plan controls may, however, supersede existing controls [48] .
[21] Specific provisions agreed among the parties [49] — except where identified by footnote - for inclusion in the Change and relevant to the matters which we must decide include: i) B1: Setting the activity status of five land uses as follows: [50]
Activities Activity Status
Demolition or removal of buildings where resource consent has been granted for a C replacement building
Demolition or removal of buildings where resource consent for a replacement building has D not been granted
Construction and/or relocation of new buildings RD*
External alterations and additions to existing buildings (except for their re-decoration, RD* maintenance or repair)
Re-decoration, maintenance, repair and internal alterations to existing buildings P
• Those activities marked with an * are restricted discretionary activities (refer to Clause 4.3.2.6 RESTRICTED DISCRETIONARY ACTIVITIES for public notification and service requirements). [51] ii) B3.1: assessment criteria for alterations and additions to existing buildings (refer Appendix 2 p6) . iii) B3.3: assessment criteria for new development [52] . For ease of reference we set these especially relevant criteria out here in the main body of our Decision. Criterion 3.3(g) is particularly relevant as parties other than Ms Kennedy considered it appropriate, in conjunction with other criteria, for managing the height effects of new Thursday, 10 March, 2016 at 12:05 NZDT Page 5 Judgment Text
buildings up to 12.5m. Assessment Criteria for new development a) The extent to which the new development responds to the elements that contribute to the character of St Heliers having regard to: • The contribution any existing building on the site previously made to the character of St Heliers; • Where within the centre plan area the site is located. In relation to the above, refer to the character definition (under Section A2. Character definition). b) The extent to which site development responds to features of the surrounding context including: topography, streetscape character, scale and pattern of the public/private interface. c) On site parking and vehicle circulation areas should not visually dominate views of the site from the surrounding public realm. d) For comprehensive development, where sites are amalgamated, the extent to which: • The clarity of the rectilinear grid structure is maintained or enhanced; • The number, variety, scale and quality of public spaces (streets, lanes, alleys, squares and/or parks) are maintained or enhanced; • Pedestrian permeability and comfort is maintained or enhanced; • The configuration of development and building design has regard to the existing or original street subdivision pattern and the extent to which buildings are articulated to avoid potential adverse effects of scale and bulk; • The visual interest at street level is maintained in order to enhance the pedestrian amenity of the street environment. Buildings should be designed to front streets, concentrating main entrances and windows on frontages facing the street; e) The extent to which the development incorporates any recessed street frontages to create transitionary open spaces for outdoor dining, seating, planting or other uses where appropriate. f) The extent to which building elevations are modulated with vertical elements (such as structural bays and windows) and horizontal elements (such as verandahs, cornices and parapet lines). Blank walls visible from surrounding streets should be avoided where possible. g) The extent to which the scale of proposed building elements is compatible with that of existing buildings in the vicinity. In particular, where a proposed building is higher than an existing adjoining building to reduce the dominance of upper levels, consideration shall be given to differentiating upper storeys from lower storeys. For example, this can be achieved by setback from the frontage, by change of building form, by change of building materials/colour or by other appropriate design variation. h) The extent to which the roof design maintains or contributes to the varied roofscape of the centre as viewed from the surrounding residential area. i) The extent to which rooftop projections including towers, chimneys, lift towers, machinery rooms, air conditioning equipment, ventilation ducts and equipment, or water towers are integrated in an architecturally attractive manner as part of the overall design of the building. iv) C Development Controls includes the following notable provisions: C1.1: Vehicle crossings No new vehicle crossing shall be permitted to sites within the centre plan area zoned Business 2 where vehicular access to such a site for parking and loading is available by other means, such as rear service lanes, right of ways or from side roads. C1.2 Location of parking and loading areas/spaces On all sites included in the centre plan, parking and loading spaces (including surface parking lots and car parking buildings) shall not front Tamaki Drive, St Heliers Bay Road, Turua Street, Polygon Road or Maheke Street. Explanation Because vehicle crossings may interfere with the movement of pedestrians along the main arterial retail area of the centre, new vehicle crossings are not encouraged where access is available by other means. On-site car parking that fronts the streets that form part of the centre plan area should be avoided so that it does not dominate views of the site from the public realm. C1.3 Parking Exemption [53] We set the exemption out in its final revised form at paragraph [69] below.
[22] We acknowledge the constructive caucusing work undertaken by the parties' respective experts and counsel in agreeing the preceding matters (to the extent they were agreed). We now turn to the matters in dispute and evaluate the parties' alternative positions against the matters that we are required to take into account. We also have regard to the conditions observed on our site visit, as discussed with the parties on Court prior to and after conducting the visit.
Proposed Height Control Provision
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[23] Simply put, the matter in dispute between the parties is whether new buildings and alterations to existing buildings should be restricted discretionary activities subject to the existing maximum permitted height control of 12.5 metres and be assessed, amongst other things, against the criteria in paragraph 20 (ii) and (iii) above — as the council, Capri and BBG contend OR Whether the activities should in addition to the existing maximum permitted height control of 12.5 metres be subject to a frontage and set back development control rule with flexibility to exceed the setback control as a restricted discretionary activity assessed against set criteria — as Ms Kennedy contends.
[24] In order that the full import of the proposed “Kennedy rule” might be understood we set out the following details [54] : Add to the Table of Activities B1 the following:
Activities Activity Status
Development of the site at Pt 24 & 25 BLK DP401 CT NA623/103 (448m2) RD* and PT 24 & 25 BLK DP410 CT NA624/111 (465m2) which exceeds the Frontage and Set Back Control B1 in the Centre Plan.
External alterations and additions to existing buildings and new buildings RD** which exceed the Frontage and Set Back Control B1 in the Centre Plan.
• Those activities marked with a * are restricted discretionary activities (refer to clause 4.3.2.6 RESTRICTED DISCRETIONARY ACTIVITIES for public notification and service requirements) • Those activities marked with a ** are restricted discretionary activities but are subject to the normal requirements for notification in accordance with the relevant sections of the RMA.” [55] Unlike the other parties , Ms Kennedy proposed that there be combined RDA assessment criteria for both new developments and additions/alterations to existing buildings as follows [56] . As explained in Footnote 52, most of the criteria are the same as those in council's 22 February 2008 version and we have not found it necessary to repeat them except for one which deals with two specific sites: “3.2 Assessment criteria for new development (including additions and alterations to existing buildings) i) In addition to the above, the extent to which the building addresses the topographical difference between Polygon Street and Turua Street at the south eastern end where these streets intersect and Polygon Street sits at a higher level than the lower generally flat plane facing St Heliers Bay. The building could sit higher at the Polygon Street level and follow a reducing height towards the north.” We now set out the height and recession plane development control for new developments and additions/alterations which Ms Kennedy proposed [57] :
“B Development Controls
1. Frontage and Set Back Control
No building shall exceed a height of 8m above ground level (measured at the front boundary of the site) for a distance measured 6m in depth from the front boundary of the site. Beyond this depth (6m) no building shall exceed a height plane at an angle of 45 degrees (from horizontal) to a maximum height of 12.5m as shown in Diagram 2A.
Diagram 2A: Height Control applying to St Heliers Centre Plan:
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Provided that: a) In the case of the development of the sites at Pt 24 and 25 BLK DP 401 CT NA623/103 (448m2) and Pt 24 and 25 BLK DP 410CT NA624/111 (465m2), development which exceeds the Frontage and Set Back [58] Control is provided for as a Restricted Discretionary activity (Activity Table B) and will be assessed against the assessment criteria for new buildings and particularly criterion 3.2(i) [59] . b) Discretion is provided in certain circumstances to exceed the setback control as a Restricted Discretionary activity provided for in the Activity Table B and assessment criteria 3.3.” Ms Kennedy proposed the following RDA assessment criteria for new developments and additions/alterations which exceed the proposed Frontage and Set Back Rule B1:
“3.3 Assessment criteria for new development (including additions and alterations to existing buildings) where the centre plan frontage and set back control is exceeded
Where proposed development exceeds the Frontage and Set Back Control the following criteria will all need to be met: a) The upper levels of the proposed building should be differentiated from the lower levels at generally the 8m frontage level. b) The building design should recognise the location and context of the site within the street and Centre Plan Area. c) The upper levels of the building should be set back from the street frontage and articulated so as to avoid dominance of the upper levels and to maintain the characteristic open aspect and proportional street-to-building relationship. d) The building design should have a visually ‘light’ upper level structure.”
[25] The proposed Kennedy rule and assessment criteria evolved during the hearing through various iterations from the 8m maximum height control sought in Ms Kennedy's appeal notice. As Mr Brabant [60] reminded us, the appeal also sought “Such consequential and other amendments or relief as may be necessary to give effect to this appeal or as the Court deems fit”. We find the formulation ultimately sought to be a lesser relief than that in Ms Kennedy's notice of appeal and therefore within jurisdiction.
Submissions
[61] [26] Mr Brabant submitted that a development control rule in relation to height is an appropriate and necessary method for achieving the outcomes intended by the centre plan and that “assessment criteria are not sufficient” [62] . The latter, of course, being a reference to the approach agreed by the other parties. He was concerned that the “established street enclosure” to which witnesses referred would not be retained by an assessment criterion “which creates no Thursday, 10 March, 2016 at 12:05 NZDT Page 8 Judgment Text
design obligation, and no assurance that this important architectural design element will be respected”. Mr Brabant contended that the proposed rule should apply across the whole centre plan area and that its inclusion would provide an important degree of certainty for land owners/developers, the council and community in terms of design outcome. Referring to s 32 as revised and discussed in the Eldamos decision, Mr Brabant submitted [63] that a rule - which would achieve the outcome sought with certainty - is necessary. We are puzzled by that submission because, as Mr Hassall indicated, Eldamos states “ … the amendments to s 32 call for revision of the Nugent test, by omitting the reference to a Rule being necessary and having to be the most appropriate means” [64] . We find that the relevant tests for rules when preparing a district plan are contained in the Long Bay decision (refer to our paragraph [8] above).
Footnotes
1 Variation 145A was introduced to correct mapping and text errors in the original Plan Change. 2 Mr Hassall opening submission para 1.2. 3 Version dated 22 February 2008 and attached to Mr Hassall's memorandum to the Court dated 25 February 2008. 4 Mr Hassall Opening para's 9.5 — 9.7. 5 Mr Thompson EIC para's 35 - 36 and 97(v). 6 Refer Appendix 3 for area subject to the centre plan provisions. 7 Except for the council car park. 8 Mr Wild Rebuttal para 2.2. 9 Change 145 and Variation 145A were publicly notified on 19 September 2004 and 1 May 2005 respectively: Mr Hasall Opening para 2.1. 10 Long Bay — Okura Great Park Society and others v North Shore City Council , A078/2008 para 30. 11 Mr Osborne EIC para 6.15. 12 [1996] NZRMA 529 at 533. 13 W047/05, 22 May 2005, Sheppard J (EC), paragraph 128. 14 Long Bay — Okura Great Park Society and others v North Shore City Council , A078/2008 paragraphs 31 — 33. 15 Noting again that this is under the pre-2005 Amendment version of the RMA. 16 Section 74(1) of the Act. 17 As described in section 31 of the Act. 18 Sections 72 and 74(1) of the Act. 19 Section 75(3)(a) and (b) of the Act. 20 Section 74(2) of the Act. 21 Note: under the Resource Management Amendment Act 2005 section 75(3)(c) now requires an operative RPS to be given effect to in a district plan. 22 Section 75(3)(c) of the Act. 23 Section 75(5) of the Act. 24 Section 74(2)(a) of the Act. 25 Section 74(3) of the Act. 26 Section 75(1) of the Act. 27 Section 75(2) of the Act. 28 Section 75(1)(b) and (c) of the Act (also section 76(1)). 29 Section 32(3)(a) of the Act. 30 Section 32(4) of the Act. 31 Section 76(3) of the Act. 32 Section 2: Amenity values — “ … those natural and physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”. 33 Section 2: Environment — “ … includes — a) ecosystems and their constituent parts, including people and communities; and b) all natural and physical resources; and c) amenity values; and d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters”. 34 Mr Osborne EIC para 6.15 and Appendix A. 35 op cit para 11 page 8. 36 Mr Osborne EIC para's 3.4 ff. 37 Section 4 Plan Change 145: Agreed Text: 22 February 2008. 38 Mr Osborne EIC Section 4 pp 8 — 10. 39 Subject to GFA limitations. 40 Refer Appendix 3: Diagram reproduced from Ms Leijnen's EIC p 7. 41 op cit. 42 TOP p 115 line 34. Thursday, 10 March, 2016 at 12:05 NZDT Page 9 Judgment Text
43 Mr Hassall Opening para 6.4(b). 44 Ms Skidmore EIC para 6.9. 45 For example, the NZ Coastal Policy Statement, Auckland Regional Policy Statement and Change 8, and the Auckland Regional Plan: Coastal. 46 Suburban Estates Limited and others v Christchurch City Council Decision No C217/2001 at para 40. 47 Refer Appendix 3 reproduced from Ms Leijnen's EIC which shows the boundaries of the centre plan area and operative district plan controls. 48 Refer Change 145 Section 6 p 4. 49 Mr Hassall, letter to the Court dated 25 February 2008 attaching text of the Change agreed by all parties except as otherwise noted and subject to clarifying instructions on the parking exemption. 50 Refer para 24 for two further land use activities that Ms Kennedy sought be added. 51 Not agreed by Ms Kennedy, who proposes a Frontage and Set Back Control rule and related assessment criteria for new development (including additions and alterations to existing buildings) as described in the evidence of Ms Leijnen and Mr Wild and confirmed by counsel [refer TOP 26 February 2008 p13 line 31]. 52 As described in preceding footnote although many of the criteria are included unaltered in the “Kennedy rule” 3.2. 53 Tabled by Mr Hassall 26.2.08 in substitution for the version attached to his 25.2.08 report to the Court. 54 As proposed in the Kennedy 7 December 2007: Document 2 version, which we understand to be the final version. 55 Refer Appendix 2 B3.1 and B3.3. 56 Refer Kennedy 7 December 2007: Document 2 version pp 7 — 8. 57 op cit p10. 58 Two points should be noted: i) The properties described are located on the SE corner of Turua Street and Polygon Road where there is a marked difference in elevation. Ms Leijnen initially thought this situation might be managed by the DA development control modification provisions in Rule 4.3.1.1. However, in response to a query from the Court, she devised an alternative approach initially introduced as Exhibit 2 and subsequently included in the proposed rule in the form set out. ii) A numeral may be transposed in one of the DP numbers. 59 As set out in our paragraph 24 60 Mr Brabant Opening para 1.3. 61 op cit para 2.1. 62 op cit para 3.1. 63 Mr Brabant Opening para 3.2. 64 Mr Hassall Opening para 10.1.
Judgment
Kennedy v AucklandCityCouncil
[27] Mr Kirkpatrick [65] for the BBG Trust opposed the 8m height limit and recession plane control sought by Ms Kennedy. He submitted that the “Kennedy rule”“is unnecessary, would unreasonably and inappropriately constrain development on land within the centre plan area … .and would lead to sub-optimal urban design outcomes” [66] . He contended that blanket compliance would not recognise the varied character of the centre, would result in undesired uniformity and, at worst, poor design. Conversely, it was his submission that an assessment criterion of the type now proposed as B3.3(g) would afford a more sensitive and flexible response to concerns about height and dominance. In his submission it would allow the proportions of any proposed new development, the location of new development within [67] the centre and existing buildings in the vicinity to be taken into account. With s 7(b) presumably in mind, Mr Kirkpatrick [68] was also concerned that the proposed rule would impact adversely on the efficient development of the floor space potential of existing sites. If that were the sole factor considered, it would constitute an inappropriately narrow application of “efficiency” as used in s 7. We prefer the approach described favourably by the Court in Long Bay [69] , namely: “When … the policy context involves comparing two options … , the more efficient, and thus to be preferred option is the one which is assessed to be likely to yield the highest net benefits (total benefits minus total costs), all relevant factors considered.”
[28] Mr Kirkpatrick further submitted that the “Kennedy rule” would enable only limited space in the centre of blocks to achieve the full 12.5m height anticipated in the Business 2 zone. He noted that height is just one aspect of “built environment”, which in turn is only one of five agreed elements that contribute to the character of St Heliers. In his submission the existing low-rise nature of the centre is not fundamental to its character and need not be protected absolutely at the “expense of the efficient use of land and accommodating growth”. It was also his submission that there has been no proper s 32 analysis of the benefits and costs of Ms Kennedy's proposed height control [70] .
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[29] Mr Bartlett for Capri addressed us on a number of occasions, including a helpfully succinct statement late in the proceedings that summarised his client's position [71] . It was his submission that the proposed height control and parking exemption are, to some degree, inter-related. More particularly, Mr Bartlett supported BBG's 26 February 2008 submission that an assessment criterion - like proposed B3.3(g) - was a more sensitive and flexible response to concerns about height and dominance (than the “Kennedy rule”) because, amongst other things, it could respond to the different character of streets [like Maheke, St Heliers Bay Road and Turua]. He submitted that council's proposal to limit the parking exemption to Tamaki Drive and St Heliers Bay Road would further emphasise the distinction as it would enable development on those streets to achieve the permitted FAR of 2: 1. He contended that this situation would be likely to negate arguments over height on Tamaki Drive and St Heliers Road as there would not be “an operational need”. Like other counsel, Mr Bartlett submitted that a “one size fits all” recession plane was unlikely to be an appropriate response to the different character of the various streets. In conclusion it was his position [72] that: “ … so the form of discretion that is put forward in the joint position of the council, BBG and the parties I represent, I submit gives a flexibility to handle the different characters of those different streets whilst particularly maintaining the integrity of St Heliers Bay Road.”
[30] The council's position remained unaltered through the hearing in seeking to have the control of the upper levels of buildings addressed by way of assessment criteria [73] . Mr Hassall submitted that the “Kennedy rule” would not enable sufficient flexibility of design. He was concerned the rule would introduce an unwelcome degree of rigidity and pointed to the evidence of Mr Osborne, Ms Matthews and Ms Skidmore in this regard. Mr Hassall emphasised, in particular, the importance of retaining flexibility for streets other than Tamaki Drive and St Heliers Bay Road, which have different [74] characters and in some cases have adjoining residential-zoned land. It was his submission that a building like 12 [75] Maheke Street would not be able to be built when assessed against the provisions of (what Mr Hassall termed) the “February Text”. In short, it was council's position [76] that: “ … when compared to the control proposed on behalf of Ms Kennedy, the use of assessment criteria, and in particular those set out in the February Text allow a flexibility in approach to design in responding to the eclectic nature of St Heliers while retaining a focus on reducing the dominance of the upper levels of buildings.”
The Evidence
[31] A heritage architect Mr Wild, as we have mentioned, was called on behalf of Ms Kennedy. He expressed support for the Change, subject to amendments that we come to, and concurred with the heritage character assessments made in the evidence of Mr Osborne, Ms Skidmore and Ms Matthews for the council [77] . Mr Wild evaluated the built form of each of the main streets in the centre. He noted the departure from the dominant pattern at 12 Maheke Street and discussed in some detail the implications of a consented re-development on the corner at 387 — 389 Tamaki Drive, which also capitalises on the existing 12.5m maximum height control. Despite helpful architectural treatment of its upper levels, Mr Wild found measurable differences in scale between that proposal and existing buildings on the block having two storeys, parapets and a receding roof plane. He continued [78] : “In contrast, like that at number 12 Maheke Street, the 387 & 389 Tamaki Drive development draws the maximum height control to the street edge. In doing so it shifts the sense of scale of buildings on the street edge from the characteristic two storeys to a greater and less characteristic height and scale. Applied across St Heliers Bay village this shift in height would equally shift the distinctive scale of the village beyond Council's objectives in Plan Change 145.
… Collectively the buildings and streets that make up St Heliers Bay village centre comprise a relatively limited palette of materials and at present share a strong common sense of scale and height. … [positive] exceptions and variegations will be lost if number 12 Maheke Street and numbers 387 & 389 Tamaki Drive are repeated. A fundamental characteristic of the historic building stock in St Heliers village is that while there is a strong thematic unity (expressed through a combination of height, scale and a relatively limited palette of building materials), there is also a lack of repetitive mechanical construction methods of the sought exhibited by number 12 Maheke Street. If the controls that enable the likes of number 12 Maheke Street are considered sufficient then the distinctive character and unity of St Heliers village is at risk.” (Emphasis added)
[32] Mr Wild contended further height, set back and recession plane controls should be incorporated into the Change to better manage the risk he described. The approach which he initially formulated was tested vigorously through rebuttal evidence, cross examination and expert witness caucusing. While holding to matters he considered important, Mr Wild displayed a commendable constructive attitude in arriving at his revised, final position. His initial approach is of little consequence now except we that note it allowed for a 2m setback zone (from the 8m level on the street frontage)
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beyond which the height limit - incorporating a recession plane - might be “afforded some discretion” [79] . He summarised his finally preferred control in these terms: “The height control maintains an 8m threshold on the street boundary. Beyond this line a setback of 6m is 0 proposed. From this point a 45 recession plane controls additional development up to a maximum of the existing 12.5m height control. [80] ”
[33] Mr Wild agreed with Mr Bartlett that angled walls (resulting from a recession plane) were “the last thing you would want” and that a vertical wall set back from the frontage was more likely to result from his preferred control [81] . This is what we understand Mr Wild's drawings SK21 and SK31 generally depict, and find it a practical response to the application of the concept. Finally, we note Mr Wild's acknowledgement to Mr Hassall that the proposed Capri development on the eastern side of Turua Street, which was assessed against the Decisions version of Change 145, satisfied the height control supported by him except for “one relatively small position at the southern end of the development” [82] where the site starts to roll up the hill - which in Mr Wild's words — “may be appropriate” [83] .
[34] Ms Leijnen also gave evidence on height in support of Ms Kennedy's appeal. She noted how the natural amphitheatre arrangement described in the Change enables views across the centre to the Harbour from residences and public viewing points on higher surrounding land. Our site visit confirmed that roofs of buildings in the Business zone are a major element in these views. While pitched roofs of older buildings predominate, the flat roofs of generally newer developments are also evident.
[35] Ms Leijnen expressly relied on Mr Wild's advice on height when formulating her planning evidence [84] . She drew our attention to various “tools” identified in the Plan (Section 8.5.1) for achieving centre plan outcomes and noted that these include “special controls to maintain acknowledged community or heritage features” [85] . Ms Leijnen opined that it was appropriate such controls be adopted for the purposes identified by Mr Wild and in council's s.32 report. It was her evidence that sole reliance on the Business 2 zone rules, as currently formulated, would place retention of the centre's character at risk and that there were already examples of defining attributes being lost. Unlike Mr V R C Warren, a planner called by Capri, Ms Leijnen did not consider pedestrian flows and the level of retail activity to be character-defining properties relevant to height control. She found the matters which Mr Wild took into account, and which we have summarised, to be the relevant factors. It was her view that the proposed height rule would be practical to administer and provide opportunities for further development while ensuring that special, defining features of the village were retained. She emphasised that the recession plane height control was not solely concerned with views of St Heliers Bay Road but reflected Mr Wild's analysis of the whole of the centre and its context taking into account surrounding land form and activities.
[36] Ms Leijnen stated that the issue which led Mr Wild and her to propose a definitive height regime was “the lack of certainty of outcome [associated with] using only assessment criteria related to design assessment”. She opined, and we are inclined to agree, that a regime of the latter type could be appropriate for the design of single buildings. However where the concern is about town centre scale it was her view that [86] : “ … given height is one of the fundamental determinants of spatial relationships (ie the vertical component) and it is possible to measure this element, then it is not necessary - or in this place appropriate — to rely on assessment criteria to define what is as a general rule acceptable. There will always be exceptions to the rule and there is scope to address these … ” It was her overall opinion that the height control which she supported was appropriate to achieve a balance between development opportunity and centre viability on the one hand, and enhancement and retention of the amenity and character of the centre, which is unique and worthy of retention, on the other.
[37] In answer to questions from Mr Bartlett in cross examination, Ms Leijnen accepted that without Section 8.8.1 FAR (bonuses and space for required parking) a four storey building could not cover an entire Business 2 zone site. She also agreed that: • the Plan encourages developers to provide bonus features (through site links, landscaped areas and plazas) in appropriate places, and that • the incentive to provide such would be reduced if a height rule — of the type proposed — applicable to part of a site, were to preclude realisation of the 4:1 Maximum Total FAR. Ms Leijnen accepted Mr Bartlett's proposition that the generally small St Heliers Bay Road sites would preclude redevelopments getting beyond the 2:1 Basic FAR. However, she was less inclined to accept his more broadly couched view that achieving full site coverage of four storeys is quite limited and at council's discretion - depending on its perception of likely benefits of prospective bonus features - because redevelopment is most likely to occur over a number of amalgamated sites. [87]
[38] There was a helpful exchange of questions and answers between Mr Bartlett and Ms Leijnen on how the proposed height rule might impact a development such as that proposed for the eastern side of Turua Street. In particular we
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note from Drawing SK6's East -West Section B2 how deletion of part of the top floor, which would penetrate the 0 proposed 45 recession plane, might invite additional height and bulk in unexercised space beneath the 12.5m maximum height limit. [88] Mr Bartlett also asked Ms Leijnen whether the recession plane might reasonably be expected to disrupt the installation of building services, such as stairwells and lift shafts, and to affect the degree of usable building space but Ms Leijnen considered the “[in]appropriateness of taking [building] bulk forward on the site” to be a more pertinent consideration [89] . We are not sure that that is a sufficiently balanced view on an important factor. Finally we note Ms Leijnen's response to Mr Kirkpatrick that the opportunity which he saw for assessment criteria to produce a variety of different design responses, would be negated in practice by the first development off the block “set[ting] the scene” [90] . It was likely in her view that — for reasons of access to views and light — subsequent development would largely follow the initial pattern set.
[39] We heard evidence from three further architects, two of whom specialise in heritage conservation. Mr G J Burgess a conservation architect with experience in aspects of the centre plan process was called by the BBG Trust. Like other witnesses, much of his written evidence was overtaken by the hearing's conflation into three specific subject areas. We note, however, his opinions on height control given in cross examination [91] : • That on a site-specific basis the mid-block “red” areas potentially able to be developed to 12.5m under the “Kennedy Rule” shown on an attachment to Wild's supplementary statement have “varying degrees of utility” and in some cases would be “fundamentally useless”; • That 12.5m high buildings along street frontages would respect the special character of St Heliers. Mr Burgess did not specifically assess whether a height control of the type proposed by Mr Wild and Ms Leijnen was appropriate [92] .
[40] Ms JM Matthews an architect with special interest in heritage conservation was called by the council. She referred favourably to findings in a study by the architectural consultancy Architectus [93] undertaken to assist the council with the Change, including that: “ … to maintain the current character of the centre while allowing development within the district plan controls would require the scale and form of the street facades of any new building to reference its surrounding context.” The Architectus quote relevantly continues: “The preferred method of achieving this would be to control the street fa¸cade height within a zone, which would be equivalent to these existing two storey examples. Above the parapet zone a setback and roofscape control could be implemented to allow development up to the 12.5 height limit while maintaining the scale of the street as experienced from ground level.”
In cross-examination Ms Matthews stated that the issue of height is relevant to the whole centre [94] and identified the following as important factors in formulating suitable Change provisions, namely differentiating upper from lower levels of new buildings; setting the fa¸cade back from the street frontage as a method of integrating high level development and lower levels of existing development; and providing visually light upper levels to assist effective integration. Although not expressed in precisely the same terms, many of Ms Matthews' factors coincide with Kennedy Rule assessment criteria for frontage and set back control exceedences [3.3].
[41] Ms Matthews was concerned that the Kennedy Rule would place an inflexible “constraint” on redevelopment at higher levels, limit the provision of lifts and stairs, and introduce a form of built development not found in St Heliers by developers designing to the rule [95] . It occurs to us that the latter might equally apply if the existing height control were the starting point. Ms Matthews considered that buildings of the type illustrated in the Architectus study (Drawing A07) would respect and protect the character of St Heliers [96] . It was also her view that other of the Architectus' materials demonstrate how facades could be designed and detailed satisfactorily without the upper level being set [97] “back very far at all” . We find that opinion consistent with the Architectus report's indicative development sketches A08 - 09 [98] .
[42] Mr MT Cook, an experienced architect was called by Capri Properties. He is a principal designer of the company's proposed re-development of 10 — 20 Turua Street on the centre's eastern edge. In the event a lot of his evidence was not directly relevant to the height limit matter that we must decide, but we found it instructive to our task in an over-arching sense. In particular we note his concluding comments about the contribution that variations of scale, materials, site densities, heights, street setbacks, verandahs and high quality building design make to the social and financial viability of a neighbourhood.
[43] Three urban designers were called to give evidence. Associate Professor CA Bird appeared for BBG Trust. In his opinion new buildings which would exceed the height of neighbouring buildings, or those which might propose to exceed the 12.5m maximum height limit, should be set back from the street frontage so that “ … .when viewed from the street, the immediate street face of a new building is of a scale and character which sits comfortably alongside those of the existing buildings” [99] . However he considered:
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“ … an 8m height trigger for buildings to be set back from their street boundary is too low. … If there is to be a set back plane, which I do not consider is necessary and/or appropriate, I would suggest that the set back trigger should be based upon the existing Business 2 zone maximum height of 12.5m. The set back plane angle should then be based upon the outcome of a (yet to be carried out) thorough study of St Heliers centre street cross sections which focuses more on the 12.5m street frontage predominating over any set back part of a building, rather than being driven largely by the criteria of rendering the entire set back portion not visible from the street. … In my opinion assessment criteria … [in] the evidence of Mr Thompson would enable an appropriate and desirable urban design outcome [100] .”
[44] He confirmed this view in more succinct terms when answering related questions from Mr Brabant [101] . In other cross examination Professor Bird contended that there should not be a control like the “Kennedy rule” because it would “potentially [be] a straightjacket for design”; not take account of the occasional need for a higher floor to ceiling dimension at ground level; present difficulties for the alignment of architectural features on existing and new buildings; and result in a uniform 8m height at street level, which he considered quite contrary to the variety that currently defines St Helier's character [102] . He confirmed the principle that urban design experts are generally comfortable with extra building height on street corners and accepted that the recession plane component of the “Kennedy rule” would largely negate this if adopted [103] . With reference to his support for a maximum 12.5m frontage height, Mr Bird did not consider that a building of the type at 12 Maheke Street could be accommodated within the revised wording of the Centre Plan Approach because other (assessment) factors are now being contemplated [104] .
[45] Professor Bird stated that he did not agree with the concepts underpinning the “Kennedy rule” and that he was unaware of the source of some of the related design assumptions. In particular he questioned the rationale for the 6m set back and the documented basis for a degree of comparative openness, as illustrated on Mr Wild's drawing SK1 [105] .
[46] Mr BJ Rae an urban designer/planner/architect was called by Capri Properties. He deposed that, subject to amendment, the list of assessment criteria in the Change for new buildings as RDA would be totally adequate for all sites in the centre. He saw no need for a criterion “ … requiring differentiation of upper levels by stepping the fa¸cade back from the street frontage”. It was his opinion that: “Consistent building height is not a characteristic of St Heliers and its variation is part of its eclectic character. Further, a building height of 12.5m will ensure an open spatial definition of streets in that such a height is significantly less than street reserve widths of at least 20m. For the same reasons, I do not support appeals which request a reduction of permitted height [106] .”
[47] In cross examination he confirmed that he supported a maximum building height of 12.5m at the street frontage but unlike Professor Bird he did not support (in Mr Brabant's words) “stacking some on top as well” [107] .
[48] Ms RA Skidmore an urban designer and landscape architect was called by the council. While her evidence imparted a helpful, broad understanding of the subject we found her answers in cross examination of most assistance. In replies to Mr Brabant, she accepted that: • The proposed “Kennedy rule” as depicted on SK1 would be “one method of addressing” development above two storeys consistent with the Architectus report concept [described in paragraph [40] above] [108] ; • There is a risk in relying on assessment criteria to manage height and related considerations because they would be considered “in the whole bundle” [and we infer, potentially not be given due weight] [109] ; • The risk that a rule would produce a building pattern, that does not presently exist, could be overcome by assessment criteria requiring a degree of variation. She acknowledged that the “Kennedy Rule” allows for this as it includes discretion to exceed the setback control as a RDA subject, amongst other things, to Assessment Criteria 3.3 [110] .
[49] In answers to Mr Bartlett Ms Skidmore indicated that: • She considered it important in all streets [111] within the centre, where new development was proposed at a greater height than surrounding buildings, that “the upper levels of proposed buildings are differentiated from [112] lower levels” . • Turua Street could sustain a quite different height control from St Heliers Bay Road [113] . [We find this certainly to be the case at its southern end, where Polygon Road is elevated above Turua Street]. • Assessment criteria that require context to be taken into account, would be a better height control method than a recession plane in Maheke Street where there are already existing and proposed developments consented to [114] 12.5m . She viewed Turua Street and Polygon Road similarly, in terms of needing to differentiate their respective contexts when managing new development [115] .
[50] We were assisted by evidence from three planning witnesses in addition to Ms Leijnen. Mr Warren, called by Capri
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Properties, provided a summary of the frontage height controls in other centre plans. He opined that such was not necessary: “ … to mitigate potential adverse effects of development in compliance with the development controls of the Business 2 zone at St Heliers. Three [sic] possible exception is for frontages along St Heliers Bay Road between Tamaki Drive and Polygon Road [116] .” … because on Turua, Maheke and Polygon there is a lower pedestrian flow and land-use activity is not dominated by retailing. He considered that the “Kennedy rule” would unnecessarily restrict realisation of the development intensity provided for in the Business 2 zone and sites in Maheke and Turua Streets will have an important, role in supporting [117] the centre's future vitality . He did not consider the proposed rule would serve an appropriate resource management purpose in either its original or revised forms [118] . Amongst a list of matters to be dealt with in centre plans, which Mr Warren distilled from Plan policy and strategy references, was that: “(l) Plans should provide for parking programs and traffic issues [Policy 8.3.3 and Expected Outcomes 8.6.2.2] [119] .” (Emphasis added). Mr Warren conceded in cross examination that, contrary to his written statement, the height control in the Onehunga centre plan applies to both the Mall and limited sections of adjoining streets [120] . He also acknowledged, correctly in our view, that the proposed frontage height control is concerned with maintaining the centre's character and is unrelated to pedestrian traffic volumes [121] . He also accepted that the retail frontage and verandah controls on the western side of Turua and eastern side of Maheke anticipate retail predominating along those frontages.
[51] Mr GF Thompson, a planner well experienced in Auckland City planning applications, appeared for the BBG Trust [122] . He told us that at the time of the hearing, the Trust owned four adjoining sites fronting St Heliers Bay Road and Turua Street mid-block and two adjoining sites on Maheke Street. In 2003 consents were granted at the 15 Turua Street and [123] 6 Maheke Street sites for 4-storey mixed use buildings . Mr Thompson stated that the Trust does not propose to [124] implement the consents, which are due to lapse during 2008, preferring instead to plan comprehensive redevelopments for the sites which “seek to take full advantage of the permitted 12.5m height limit” [125] .
[52] Mr Thompson agreed with Associate Professor Bird's views on how the original “Kennedy rule” would constrain development within the centre plan area and lead to sub-optimal urban design outcomes. It was his view that recent consents for 4-storeyed developments constituted an appropriate and efficient use of scarce land. We think he somewhat misrepresented the thrust of the Kennedy appeal when describing it as being “predicated on the assumption that the existing low-rise nature of St Heliers' built environment is fundamental to its character” and that “if this low-rise built form were to be lost then the character of St Heliers would be undermined” [126] . With the original rule again in mind, Mr Thompson further deposed: “ … imposing such controls would result in unreasonably onerous costs to landowners in terms of lost development opportunities. In my view there is no corresponding resource management benefit to justify such a cost.”
[53] Mr Thompson stated he had found no relevant matters arising from the NZ Coastal Policy Statement, the Hauraki Gulf Marine Park Act and Regional Coastal Plan. The Regional Policy Statement (“ARPS”) guides future growth and development in the Region. Mr Thompson considered Issue 2.4.10 of the ARPS to be relevant, particularly those parts that speak positively of encouraging sustainable economic development and a compact urban environment which efficiently utilises remaining business land. These matters are to be achieved “ … whilst protecting agreed social and natural values”. Mr Thompson also identified Policy 2.6.5.11 which requires “Existing urban areas [to] be managed so that significant natural heritage, landscape, amenity, and character values are maintained and enhanced”. He deposed that in the context of St Heliers the provisions should be interpreted as meaning land should be able to be developed in accordance with district plan development controls but in a way that “amenity, and character values are maintained and enhanced”. We find that somewhat disingenuous as critical aspects of both of the latter are in dispute in these appeals.
[54] Mr Thompson's evaluation of the Change against s 32 did not have specific regard to either the original or revised versions of the “Kennedy rule”. He found no matters of national importance arising from the Change [127] except the heritage values of the library (s 6(f)). It need not delay us, but we find it notable that Mr Thompson considered the library to be protected sufficiently by scheduling without apparent regard to the likely effect of adjoining development on its public use and enjoyment. It was also his evidence that s's 7(b), (c), (f) and (g) are relevant and the provisions proposed by the BBG Trust would better meet their requirements than those of Change 145 [128] .
[55] Mr Thompson gave a somewhat indirect but possibly illuminating answer to Mr Brabant's question about whether a rule or assessment criteria were more likely to change developers' perception of a site's development potential. Summarised, Mr Thompson said in his experience there are two types of developers, namely those who “design as close as they can to within the rules” and those who seek a better design outcome by going outside the rules [129] . Thursday, 10 March, 2016 at 12:05 NZDT Page 15 Judgment Text
While that did not answer the question, it confirms our experience that developers will generally — and often for good reason — seek to build up to or beyond quantified controls.
[56] On a different matter, Mr Thompson stated he considered it important to carefully consider upper levels wherever they are located and not just, for example, on Tamaki Drive and St Heliers Bay Road [130] . He also expressed a concern that when development control “modifications” arise it is preferable that there be specific assessment criteria rather than generic ones of the type in Part 4.3.1.2B [131] . We find that to be a sound opinion in a centre plan context and consistent with the approach allowed for by B.1 (proviso (b)) of the “Kennedy rule” and B.3 of the other parties' agreed version. Mr Thompson conceded that a rule would provide greater certainty of outcome for the community and development interests but was “not sure if it's preferable” because he “ … like[d] the flexibility that goes with the assessment criteria” [132] .
[57] In re-examination, Mr Thompson stated that the “Kennedy rule” would encourage the massing of buildings towards the rear of sites (the “red block” areas) whereas in his experience they would typically be massed more towards the street boundary to take advantage of light and outlook and, if adopted, this would be a limiting factor on building lay-out [133] .
[58] Planning evidence for the council was presented by Mr RT Osborne, who had previously assisted with preparation of the Change. Much of Mr Osborne's evidence was overtaken by the common ground established between the parties during the course of the hearing. His description of relevant Plan provisions, which we have drawn on in earlier parts of this Decision proved particularly helpful, together with background information on the Change. In his rebuttal evidence Mr Osborne adopted Ms Skidmore's position that the “Kennedy rule” (in its then form) would prove “overly prescriptive and would not result in a built outcome that is either pragmatic for site development or appropriate in terms of resulting built form” [134] . That evidence, of course, must now be weighed in light of Ms Skidmore's earlier described cross examination. In cross examination Mr Osborne: • Expressed support for an amended RDA assessment criterion for new building height on Tamaki Drive and St [135] Heliers Bay Road as opposed to a more general assessment criterion, which we took to be an “all of centre plan” provision [136] . Mr Osborne explained how the criterion would work but not why its application should be limited to the named streets. He agreed with Mr Bartlett that it would create the option of “lightening up” the upper levels of a building through design details rather than physically setting it back [137] . • Accepted that the “Kennedy rule” has the potential to produce “notched back” buildings that would not maintain the present built form and are not presently seen in neighbourhood centres [138] . [Neither, we observe, is St Heliers presently characterised by 12.5m buildings on the street frontage]. • Shared the concern expressed by earlier witnesses that a recession plane would become the design norm although, as previously noted, this was not the design response that Mr Wild's indicative sketches anticipated [139] . • Accepted that, potentially, the 12.5m height limit would result in buildings of three storeys plus a sloped roof (possibly with a 4m ground floor for retailing/café) rather than four storeys and a flat roof [140] . • Considered that the revised “Kennedy rule” was more reasonable than the original but the subject remains “best addressed through assessment criteria”. [141] • Agreed that a rule would afford greater certainty of outcome to the council and the community than relying solely on assessment criteria. [142]
Footnotes
65 In written submissions dated 6 December 2007 and 26 February 2008. 66 Mr Kirkpatrick, Submission 6 December 2007, para 8. 67 Mr Kirkpatrick, Submission 26 February 2008, para 13. 68 We acknowledge this part of the submission was also concerned with the broad purpose of sustainable management. 69 A078/2008 para 290. 70 Mr Kirkpatrick, Submission 26 February 2008, para 10. 71 Transcript 26 February 2008 p9. 72 op cit p10 line 22. 73 Mr Hassall Submission 26 February 208. 74 op cit para 2.15. 75 Described by Ms Skidmore as creating “a brutal interface with the street” [EIC para 5.20]. 76 op cit para 2.19. 77 Mr Wild EIC para's 2.4 — 2.5. 78 op cit paragraphs 4.5 — 4.7. 79 op cit para 5.12 and Appendix 7 SK 03 — 04. 80 Mr Wild Supplementary Statement para 2.3. 81 Transcript 5 December 2007 p 100 line 36 ff. We apprehend the depth of setback resulting from the 7 December 2007
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“Kennedy rule” would be less than the 12m suggested by Mr Bartlett but greater than 6m. 82 op cit p110 lines 1 — 3 and Mr Wild's Supplementary Statement Attachments SK 6 and 7. 83 op cit p112 lines 35 — 36. 84 Ms Leijnen, Rebuttal para 1.5. 85 op cit para 2.6. 86 op cit para 3.7. 87 TOP p116 ff. 88 op cit p 119 line 44 ff. 89 op cit p122 lines 16 — 24. 90 op cit p134 lines 34 — 45. 91 Cross-examination by Messrs Bartlett and Brabant: TOP pages 214 and 216. 92 TOP p 220 lines 18 — 25. 93 Architectus, Design Study: St Heliers Town Centre, June 2004 submitted with the evidence of Mr Osborne for the council. 94 TOP p179 line 38. 95 op cit p184 lines 35 — 45 and p193 line 5ff. 96 op cit p186 line 9 — p187 line 30. 97 TOP p188 lines 24 — 31. 98 Osborne EIC Attachment RT03 Section 03: Development Control. 99 C Bird EIC para 47. 100 op cit para's 53 — 54. 101 TOP p 245 lines 1 — 3. 102 TOP p230 lines 34 — 44. 103 op cit p231 lines 1 — 10. 104 op cit pp 236 — 237. 105 Op cit pp237 — 238. 106 Mr Rae, EIC para's 5.23 — 5.24. 107 TOP p259 lines 1 — 17. 108 TOP p32 line 34. 109 op cit p34 lines 11 — 14. 110 op cit p34 line 30 — p35 line 19. 111 And not just those which Mr Bartlett's client proposed be classified as primary commercial frontages, being Tamaki Drive and St Heliers Bay Road. 112 op cit p70 lines 27 — 42. 113 op cit p74 lines 20 — 24. 114 op cit p75. 115 TOP p83 line 31ff. 116 Mr Warren EIC para 171. 117 op cit para 172. 118 op cit para 173 and TOP p248 lines 25 — 30. 119 Mr Warren EIC para 46 p21. 120 TOP p250 lines 12 — 28 and p251. 121 op cit p254 lines 21 — 28. 122 TOP p206 lines 26 — 43. 123 Mr Thompson EIC, Attachments 1, 2 and 3. 124 TOP p206 line 23. 125 op cit para 5. 126 op cit para's 69 — 75. 127 op cit para's 76 — 85 and para 95. 128 op cit para 96. 129 TOP p207 lines 18 — 31. 130 op cit p209. 131 op cit p210. 132 op cit p211 lines 20 — 35. 133 op cit p212 line 33ff. 134 Mr Osborne Rebuttal para 4.1. 135 Amended Council Change dated 6/12/07 p8 2(g). 136 TOP p148 line 15ff. 137 op cit p149 lines 21 — 24. 138 op cit p149 line 35ff.
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139 op cit p150 lines 4 — 19. 140 op cit p150 line 28ff. 141 op cit p160 lines 1-5. 142 op cit p165 line 40 — p166 line 39 and p170 line 21.
Judgment
Kennedy v AucklandCityCouncil We now review the evidence on the other two matters in dispute before making our findings on what are, essentially, inter-related issues.
Proposed Roof Bonus
[59] In opening Mr Kirkpatrick for the BBG Trust submitted that a roof bonus provision in the centre plan area would be appropriate for two main reasons: “The existing height controls applying within the centre plan are relatively restrictive … [and]
In order to encourage architecturally varied and interesting roof forms and skyline silhouettes (rather than assuming traditional commercial building roof typology will be applied … .” Ms Somerville attached a revised draft wording for the provision to her closing submission for the Trust, which we include as Appendix 4. In summary, the provision would allow for maximum Business zone heights under Clause 8.8.1.1 to be exceeded by roofs and rooftop projections as a RDA where given standards and criteria are satisfied. Maximum heights in Clause 8.8.1.1 were not to be exceeded by more than 2m and the bonus was not to result in the maximum FAR being exceeded.
[60] Mr Bartlett for Capri Properties noted that his client took no position on the subject and would abide the Court's decision [143] .
[61] Mr Hassall advised the Court late in the hearing [144] that Ms Kennedy was opposed to incorporating the provision and we find no record to the contrary.
[145] [62] In his closing submissions Mr Hassall stated that the council maintained its opposition to the bonus for the following reasons [146] : • No comprehensive s 32 analysis has been undertaken for extending the 12.5m height limit which would apply to the majority of the centre plan area. He submitted this was an important in light of community concern about height as demonstrated by feedback during consultation and the Kennedy appeal. • The proposed height bonus provisions are not the most appropriate way to achieve the objectives of the Plan, namely Objective 8.3.3 and Objective 8.6.2.1(e). [The former is so general and qualified that it is ineffective. The latter, however, speaks in a meaningful way of managing the adverse effects of business activities on residential and open space amenities.] • Breaches of the height control can be managed satisfactorily by existing DA provisions in Clause 4.3.1.2B as stated by Mr Osborne in cross examination. Evaluation criteria include reference to “achievement of architectural harmony and physical congruence”.
[147] [63] Ms Somerville submitted that because the assessment criteria for the bonus provision were worded to mirror the agreed [148] assessment criteria for new development, the provision could not be inconsistent with the objectives identified by Mr Hassall. She gave criteria B3.3(h) (contribution to varied roofscape as viewed from surrounding residential areas) and 3.3(i) (architectural integration) as examples.
[64] Mr Thompson, called by BBG, opined that subject to a RDA assessment, a bonus of up to 2m beyond the Business 2 zone height should apply to sites within the centre plan area, in order to encourage appropriate roof forms which are [149] [150] architecturally interesting . Without giving reasons, Mr Burgess supported Mr Thompson's proposed bonus provision and did not resile from this stance in re-examination [151] . Professor Bird for BBG stated that in order to encourage architecturally varied and interesting roof forms and skyline silhouettes he too supported the bonus provision as proposed by Mr Thompson [152] .
[65] In response to questions from the Court Mr Wild stated that he had reservations about the proposed roof bonus. In his opinion the existing 12.5m maximum height is an important threshold because some buildings of that height are recognised as being out of character in the village. To go beyond that would “ … up the bar in terms of that scale, and I think that change of scale dramatically shifts the character of St Heliers Bay”. He also thought it correct that any benefit that might be derived from a more innovative roof treatment would not be outweighed by the negative effect of
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increased height [153] . Ms Leijnen considered that the roof bonus was designed specifically to encourage pitched roofs which she deposed is “ … more of a residential neighbourhood characteristic rather than necessarily characteristic of this commercial centre” [154] . We are not sure from our site visit and photographs given in evidence [155] that the latter is an entirely correct summary. Be that as it may, there is scope within the existing maximum height and Basic FAR of 2:1 for pitched roofs, especially if accompanied by a parking exemption on some frontages.
[66] In his rebuttal evidence on behalf of the council, Mr Osborne stated [156] : “In relation to the 2m height bonus to encourage appropriate roof forms suggested by Mr Thompson, I do not consider this to be appropriate. I consider that appropriate, architecturally interesting roof forms can be achieved within the 12.5m height limit and that a height increase does not need to be provided for, as a RDA, for this to occur. In my opinion an increase in the height from 12.5m to 14.5m (as a RDA) would have the potential to result in overshadowing, over dominance and reduced character.” In cross examination Mr Osborne agreed that the bonus would not increase the maximum total FAR but would enable the space to be apportioned in a different fashion. He accepted assessment criteria would require consideration of the adverse effects he was concerned with and could result in a refusal of consent. Mr Osborne did not accept that 14.5m high buildings could appropriately be viewed as contributing to St Helier's eclectic character. It was his view that there is ample evidence of interesting roof lines at present within the 12.5m height control and proposals with merit that exceed the limit can be consented as discretionary activities [157] .
Parking Exemption
[67] On 25 February Mr Hassall submitted to the Court a revised copy of the proposed Change and advised he was clarifying his instructions on the parking exemption at C.1.3. At the resumed hearing the next day Mr Hassall presented a further revision of C.1.3. For Capri Properties Mr Bartlett indicated that he was “ … quite happy with the amended parking proposal … ” [158] . He described it as “ … an unintended windfall” and “ … probably the most constructive approach … to maintaining the continuous frontage in St Heliers Bay Road and I certainly commend it to [159] the Court as a very worthwhile position for the City to have come to” . Ms Somerville for the BBG Trust also [160] accepted the revision . For Ms Kennedy, Mr Brabant questioned whether there was jurisdiction to make the amendments in the form submitted [161] .
[68] The Court directed that Mr Hassall prepare written submissions on the question and seek agreement to such from other parties and, if possible, present a joint memorandum to the Court [162] . He was also given the opportunity to take instructions on how the exemption might interface with a parking plan which the council was said to be developing for St Heliers [163] . Mr Hassall lodged his submissions on 20 March 2008 followed by Mr Brabant on 26 March. We firstly describe the proposed revised control and then analyse the submissions, before considering the evidence.
Proposed Exemption
[69] The parking exemption provision in the largely agreed 26 February 2008 version of the Change reads as follows:
“C. Development Controls
1. Access and parking
1.3 Parking Exemption
All sites having frontage to Tamaki Drive or St Heliers Bay Road with an overall site area of less than 900m2 are exempt from on-site parking requirements of the District Plan. This exemption does not apply to any residential component of the development.
For the avoidance of doubt this exemption only applies to sites which do not have frontage to Polygon, Turua or Maheke Streets. It does apply to sites located on the corner of Tamaki Drive and St Heliers Bay Road.
When assessing the car parking requirements for the residential component of the development the following assessment criteria will apply in addition to those in Part 12: a) In lieu of providing the required parking on the subject site, consideration will be given to the ability of the applicant to provide the required car parks on another site within the vicinity of the subject site.
Explanation Thursday, 10 March, 2016 at 12:05 NZDT Page 19 Judgment Text
Continuity of retail frontage to Tamaki Drive and St Heliers Bay Road is an important outcome that should not be compromised by the requirements to provide parking and access thereto on every site fronting these primary activity streets. However, it is acknowledged that there is potential for a comprehensive development to occur which may generate considerable parking demand. The benefits of providing an exemption for on-site parking, such as continuity of retail frontage, should be carefully considered against the impact of greater demand for off-site parking.”
Submissions on jurisdiction
[70] Mr Hassall set out the legal tests relevant to determining jurisdiction which we summarise as coming from Vivid [164] Holdings, the decision of Panckhurst J in Royal Forest and Bird, and an earlier decision of the current panel, [165] namely Director - General of Conservation v Whangarei District Council . We endorse the correctness of those tests, as did Mr Brabant [166] , including particularly that an overly legalistic approach is to be avoided.
[71] Mr Hassall indicated that the notified parking exemption was unchanged by Council's decisions on submissions. The Decisions version applied to character-defining or character-supporting buildings and to buildings scheduled in the district plan. The exemption applied “when activities in the existing buildings change or when the adaptive reuse of these buildings occurs through internal alterations or maintains an existing situation/activity that would require additional parking” under Rule 12.8.1. The exemption did not apply to redevelopments which involved the removal and/or replacement of affected buildings or which altered their footprints.
[72] Mr Hassall identified the appeal by Capri Properties as relevant for jurisdictional purposes. Amongst other things it sought such centre plan amendments as: “‘site bonus and other incentives and dispensation provisions’; a rewrite of ‘the rules and assessment criteria to be less onerous and restrictive and to properly reflect the actual character and resource significance of St Heliers Centre’; and‘such other relief including consequential relief that will meet the concerns of the appellants including such relief as necessary to … rules … so as to achieve the relief set out above and the grounds for this appeal’.” [Emphasis added] We find that Capri's appeal has a proper foundation in the wording of its submission which sought amongst other things less onerous and better focused controls; a re-write of rules and assessment criteria to this end; and such other relief as might address concerns expressed. We also accept that the submission was appropriately summarised by the council for the purposes of inviting further submissions.
[73] Mr Hassall submitted that, although the parties have agreed the character building provisions to which the exemption originally applied should be deleted, it “ … does not mean that parking exemptions should simply be removed from the Plan Change as they form part of a broader protection of the character of the Plan Change Area”. In support, he drew our attention to wording in the original Change concerned with the continuity of building frontages on St Heliers Bay Road and discouraging new vehicle crossings on St Heliers Bay Road and Tamaki Drive. He submitted that these matters remain of concern as evidenced by the continued focus on: • St Heliers Bay Road and Tamaki Drive, • Smaller sites, which contain the character buildings of original concern, as opposed to larger comprehensive developments. • Non-application of the revised exemption to a category of new development, namely any residential component of a development. • Applying Part 12 “Transportation” of the Plan to new developments - except for those activities subject to the revised exemption.
[74] Finally we note Mr Hassall's instructions from council that a completion date for the parking plan referred to in A.4 of the Change has not been determined [167] .
[75] Mr Brabant submitted that the Court does not have jurisdiction to approve the parking exemption provision in its current (26 February 2008) form. Principal planks in his argument were: • While the focus of the exemption could reasonably be changed from character buildings to a revised category [168] [site area and frontage location] a significant change was proposed in the works not exempt. Namely from redevelopment of sites with character buildings to any residential component of a development. • For the proposed change to be within jurisdiction it would need to include the same Decisions version clause stipulating: “ … that the exemption does not apply to the redevelopment of sites that includes the removal and/or replacement of existing buildings or to additional floor area added to buildings or the alteration of existing
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footprints.” • Submitters would not have expected a change to the parking exemption that removed the preceding form of control from the exemption.
Findings on jurisdiction
[76] We find that Mr Hassall was correct in submitting that “allowing for the exemption to apply to other types of development albeit on small sites and only on the two primary roads is within the scope of the Capri appeal seeking less onerous rules and assessment criteria” [169] . An ability to redevelop specified sites without on-site parking is also consistent with the site bonus, incentive and dispensation provisions Capri sought in its appeal - with the purpose of properly reflecting the centre's character and resource significance. The parties are agreed, and we concur, that the latter purpose is better met by discontinuing the Change's focus on character buildings and concentrating on other attributes that lend character. Capri correctly anticipated and allowed for consequential changes to accommodate such changes. We find that Mr Hassall was also correct in submitting that: “ … this part of the modified parking exemption is within the scope of the original Plan Change insofar as it retains the application of Part 12 … .and also within the scope of the Capri appeal and submission in that the additional criteria makes slightly less onerous the application of Part 12. It also addresses the on-street parking pressures acknowledged in the Plan change by encouraging residential development to be built with sufficient parking. [170] ”
[77] We find that a submitter, who was aware that the parking exemption did not originally apply to a particular activity, should have been on notice that Capri was seeking generally less onerous rules that better reflected the centre's character and remained involved if they were concerned that the exemption might ultimately be applied to a different type of activity on a less restrictive basis. Whilst demanding, that is what the process requires and is the remedy for those who might otherwise profess surprise at the ultimate outcome [171] .
[78] For the reasons given we find that the relevant statutory tests are satisfied and find the Court has jurisdiction to approve the revised exemption as presented by Mr Hassall on 26 February 2008. We now turn to the merits guided by submissions and the evidence.
Submissions on merits
[79] As previously noted, at the commencement of the resumed hearing on 26 February 2008 Mr Hassall presented the [172] Court and parties with a revised wording which he explained reflected changed instructions received over-night . We have previously recorded Capri and BBG's positive response. Mr Brabant's [173] initial response was that Ms Kennedy supported the concept of not breaking up the frontages with parking access and also that “recognition of an exemption … . for the existing commercial uses is accepted. The difficulty comes with the residential component”. More particularly Mr Brabant was concerned with how assessment criterion (a) - “consideration will be given to the ability of the applicant to provide the car parks on another site within the vicinity of the subject site” - would be interpreted. He questioned whether council envisaged requiring the full complement of parking, whether it might be provided on another site and where such might be located [174] . Subject to those interpretative considerations, [175] Mr Brabant submitted there would be value in a provision that avoided unsightly parking arrangements detracting from the [176] character of affected frontages and sites . Mr Hassall did not assist us specifically with the revised exemption wording, [177] possibly because of the short notice on which he had received instructions.
Evidence
[80] We were not assisted directly by evidence on the wording of the revised exemption. We did, however, have evidence on the merits of providing a parking exemption in conceptual terms - some of which proved to be very much on point.
[81] Mr Cook provided a helpful introduction and overview. He wrote [178] “I support the review of the parking requirements and traffic management plan for the area, particularly the reduction in vehicle crossings, the requirement to shield parking areas from the street frontages and less onerous parking ratios to achieve a more pedestrian orientated streetscape”. It was his view that dispensations should be available to all sites within the zone rather than encouraging the retention of individual buildings.
[82] Of all the witnesses, Mr Rae addressed the subject most fully, and possibly with the greatest insight. He deposed that a significant threat to the character of St Heliers centre is the provision of on-site parking that is in accordance with
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district plan requirements, and access thereto [179] . He opined that “An exemption from parking requirements for all developments would enhance the character of St Heliers, and that vehicle crossings and at-grade parking can have significant adverse effects on the character of the centre” [180] . Mr Rae continued: [181] “The over-all future character and vitality of St Heliers would be enhanced by a reduction in on-site parking requirements on all sites within the centre and consequential provision for centralised public visitor parking and more efficient parking management. Along St Heliers Bay Road and Tamaki Drive where continuity of pedestrian-orientated retail frontage is particularly important, it would be desirable to have no on-site parking unless access is available from the rear.”
That evidence was not dented in cross examination. Mr Rae also expressed surprise that the centre plan gave little attention to matters such as public infrastructure, including for example the draft St Heliers' Parking Plan (2005), [182] prepared to address business and community concerns about parking. Mr Warren was similarly concerned about the centre plan's silence on the adequacy of infrastructure and community services having identified that “[centre] plans should provide for parking programs and traffic issues” [183] .
[83] Ms Skidmore accepted that from an urban design perspective there would be some benefit in providing an exemption from the Plan's parking requirements for all buildings in the centre's two main streets (being Tamaki Drive and St [184] Heliers Bay Road) and also that she would be concerned if the northern frontage of Polygon Road between Maheke Street and St Heliers Bay Road were to be broken up by vehicle accesses [185] .
Evaluation
[84] As intimated, the three matters which we must decide are sufficiently inter-related to make it appropriate that we deal with them all in a single overall evaluation applying the relevant statutory tests.
[85] To the extent that the NZ Coastal Policy Statement, Hauraki Gulf Marine Park Act and s 6(a) are relevant because of the centre plan area being within the coastal environment and the catchment of the Gulf we will be guided by the provisions of the district plan and, in particular, by coastal objective 5B.4.6 and the Tamaki Drive Scenic Way provisions.
[86] The evidence did not disclose any relevant matters in the ARPS, changes to the ARPS or regional plans that need be taken into account, and to the extent there may be such matters we can be guided again by the district plan, which is required not to be inconsistent with such instruments. Mr Thompson was the only planning witness who attempted a review of the superior instruments, but we were not greatly assisted by those parts of his evidence. Mr Osborne's evidence on behalf of the council was somewhat light in these respects.
[87] In their final form the appeals seek changes to the rules on three matters. We now evaluate the submissions and evidence on those matters against items 9 — 11 in our paragraph [8] before coming to the broad overall judgement required by item 1 (to achieve the overall purpose of the Act as set out in Part 2).
[88] The centre plan does not introduce new objectives and policies, so the competing rules are to implement those in the operative plan. The centre plan does not have a single stated purpose. The best description of its purpose is perhaps in the words “The [plan] contains measures that are designed to maintain and enhance the character of St Heliers village and to promote its amenity values” [186] . The plan has the express intention of not freezing the built environment. Rather change is to be managed to protect the distinctive character of the village. Innovative and congruent development likely to add to its attributes, will be encouraged [187] . In these regards the plan is not inconsistent with the Business 2 zone strategy that such centres can expect “to be subject to considerable change in the future”.
[89] Simply put, it was the case for the “agreed” parties [188] that the effect of buildings to the maximum permitted height of 12.5m could be managed appropriately by making additions/alterations and new development a RDA subject to appropriate assessment criteria. The objectives and policies the rule would implement speak, relevantly, of applying controls to protect and enhance environmental and amenity values; identifying and fostering the special characteristics of centres; and maintaining the pedestrian amenity of centres.
[90] The first matter we must decide is which of the competing approaches to height is likely to prove more efficient and effective in achieving higher order plan provisions. A critical factor is the need to retain appropriate street enclosure and avoid the introduction of incongruous building height and mass, particularly at the street edge. We find there is a high probability that assessment criteria alone would not achieve these outcomes with sufficient certainty. Ms Leijnen was undoubtedly correct in stating that what might be appropriate for managing the effects of single building was not necessarily appropriate for a whole town centre. We also accept Ms Skidmore's evidence that there is a risk — which we judge to be moderate to high - that height and the related factors embodied in criterion B3.3(g) might not be given
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due weight alongside eight other multifaceted criteria. While not his preferred method, Mr Thompson conceded that a rule would provide greater certainty for the community and developers. Mr Osborne agreed, and so do we.
[91] We have found little to differentiate the competing approaches in terms of maintaining St Heliers' varied character and avoiding uniform design outcomes. Mr Wild's sketch drawings did not illustrate upper building levels literally angling back at 45 degrees but we are concerned they may result in uncharacteristic “steps and stairs” or “notched back” towers. On the other side of the ledger, we expect Ms Leijnen was correct that under an assessment criteria regime initial developments would tend to set a pattern that others followed. Clearly neither method by itself would ensure sensitive designs.
[92] It is highly probable that the 6m set back and recession plane would constrain the use of internal building space, including the location of stairwells, lifts and possibly building services in new developments. The area potentially affected is significant as shown on the “red zone” attachment to Mr Wild's supplementary evidence, both mid-block and more particularly, on corner sites. When weighed against perceived amenity benefits, we find that there would be a disproportionate cost and that it would not allow for the efficient use and development of natural and physical resources (s 7(b)).
[93] Mr Bartlett was doubtless correct in observing that there is an important relationship between the height and the parking exemption controls. The latter would enable exempt sites to achieve a Basic FAR of 2:1 with scope under the 12.5m maximum height control for sloping roofs, which one might reasonably expect to result from the application of either set of proposed RDA criteria. We expect there is a medium to high probability that sloping roofs would also result from some developments having a 4m ground floor height with two “conventional” 3m storeys above - as opposed to four storeys and a flat roof.
[94] We have concluded, principally in the interests of certainty, that there should be a frontage and set back development control B.1 but not in the form proposed on behalf of Ms Kennedy. We do not find it necessary that development at upper levels, ie above 8m be set as far back from the street frontage as the “Kennedy rule” seeks. Rather we are of the view that there is considerable merit in the design approach illustrated in the Architectus Report of 2004 and, in particular, Drawings A07 — 09. We understand Drawing A07 to be at a scale of 1:400 and find that development in accordance with the Setback and Recession Plane sketches would adequately secure the matters at issue.
[95] For the avoidance of doubt, the development control rule should require a minimum set back of 2.5m above 8.5m but not preclude a balcony or parapet. The rule should also allow for the Architectus Roof Pitch Control to enable the construction of a sloping roof at an angle not greater than 45 degrees commencing no higher than 9.5m on the frontage. In other regards Rule B.1 in the form set out in Ms Kennedy's 7 December 2007 Document 2 including provisos (a) and (b) should be included in the “agreed” parties' version of the Change. Provisos (a) and (b) allow for the topographical variation at the southeast end of Turua Street and RDA control flexibility respectively.
[96] Having decided that there should be a frontage and set back control, questions of integration arise. The “Kennedy rule” proposes combined assessment criteria (3.2) for both additions, alterations and new developments, whereas the agreed parties propose separate measures (3.1 and 3.3 respectively). We find that the “agreed” parties' separate additions/alteration criteria would better enable effective management of addition/alterations, and is to be retained. The parties' assessment criteria for new development have few differences. The “agreed” parties' criteria are to be retained but with the “Kennedy rule's” specific criterion (3.2(i)) for assessing development of the sites at the southeast end of Turua Street included. The “Kennedy rules” criteria (3.3) for assessing development where the frontage and set back control is exceeded are suitable and are to be adopted.
[97] Because the issues of appropriate building scale and mass are applicable to all streets the frontage and set back development control is to apply to all Business 2 zoned land in the centre plan area. Although not a matter in dispute, the wording of Assessment Criterion B3.3(d) in council's 22 February 2008 version was unaltered from early drafts despite Ms Skidmore agreeing with Mr Bartlett that “comprehensive development” could occur without amalgamation [189] . Leave is granted the parties, led by the council, to revise the wording.
[98] The evidence called by BBG in support of a roof bonus was not tested robustly by cross examination. Nor was it evaluated satisfactorily under the requirements of s 32. We accept Mr Hassall's submission that up to 2 metres of extra height in the Business 2 zone would not be an appropriate method for achieving Objective 8.6.2.1(e), particularly where the Business 2 zone adjoins residential development and Tamaki Drive open space. We also accept the evidence of Mr Wild and Mr Osborne, respectively, that application of the bonus would have a marked adverse effect on the character of St Heliers Bay and development control flexibility to exceed the 12.5m maximum height control is provided by the Plan's discretionary activity provisions. We do not find a roof bonus an effective or appropriate method for maintaining the village's eclectic built form or sloping roofs. We consider these attributes are more likely to be secured through other routes such as: • Application of the RDA assessment criteria for new developments and additions/alterations to existing buildings.
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• Developers achieving the Basic FAR of 2:1 within the 12.5m height limit leaving space for appropriate roof treatments; especially if the proposed parking exemption is applied. • Developers opting for a higher ground floor stud height and a total of 3 storeys. • The contribution of existing buildings. For the preceding reasons we find any benefits the bonus rule might deliver would be out-weighed by the costs of its potential adverse environmental effects, and it should not be included in the Change.
[99] The jurisdiction challenge apart, there was strong support for the parking exemption submitted on behalf of the council. Submissions and evidence were heavily in favour of avoiding the centre's main retail frontages being disrupted by access to car parking areas required by other plan provisions. We understand and share that concern. Given the consensus, we need only briefly note that the rule would be an appropriate method of implementing Objective 8.6.2.1(b) and the first of its policies and Objective 8.6.2.1(f) and its policy for locating parking areas appropriately to maintain retail character. Although not an objective we note also “ … development controls for the zone are expected to maintain or improve the amenity of … centres … , especially the pedestrian environment of retail dominant centres” (8.6.2.2). As intimated previously, we find that the exemption would prove an efficient and effective method of allowing for development within the 12.5m height limit because buildings would be better able to achieve the Basic FAR without going above 2 storeys; leaving scope for appropriate roof treatments guided by the RDA assessment criteria. This would have benefits in terms of supporting the current scale and character of the centre's built form and promoting variety within it. We have also found that the exemption would help to achieve, through the processes described, Tamaki Drive Scenic Way Objective 5C.7.7.1 and its policies, particularly (iv). In all these regards the exemption would be consistent with the centre plan's purpose.
[100] Contrary to Mr Brabant's submissions, we do not anticipate the council having difficulties implementing the exemption assessment criterion for any residential component of a development. It is similar to the 3rd bullet in the discretionary activity provision in Clause 12.9.1.2(c): Reduction in Parking Spaces, and we expect that council should be experienced in making such decisions.
[101] The exemption is to apply to Tamaki Drive and St Heliers Bay Road. We find that it should also include the north side of Polygon Road between Maheke Street and St Heliers Bay Road on account of its unbroken retail frontage and level of pedestrian usage. Amendments to the wording of 1.3 Parking Exemption will be necessary to reflect this change. To avoid new vehicle crossings on the affected streets one further amendment is required: • Activities on sites fronting the subject streets should be expressly precluded from forming vehicle crossings without resource consent irrespective of the availability of other means. This necessitates an amendment to Rule C1.1: Vehicle crossings.
[102] We have determined that any cost of adopting the exemption in terms of centrewide parking supply/demand is outweighed by pedestrian safety and amenity benefits of the type sought by Objective 8.6.2.1(b) and its first policy on reinforcing retail frontages and by Objective 8.6.2.1(f). In short, we find the risk of not acting is too great. If the rule were at odds with other plan provisions [190] we doubt that the council would have supported it. Subject to the modifications required, the exemption is to be included in the Change. The Act's purpose would be further assisted if the council were to now finalise a parking plan to support the centre plan's provisions, in the manner envisaged by the district plan (Objective 8.3.3 1st policy and 8.6.2.2: Outcomes) and addressed in the evidence of Mr Warren and Mr Rae.
[103] Subject to the amendments we have directed, we find the Change will achieve an appropriate balance between enabling development consistent with the centre's (largely) Business 2 zoning while retaining valued aspects of its character and amenities. In these ways the council will be suitably placed to carry out its functions as described in s 31 so as to achieve the purpose of the Act in s 5, the relevant matter of national importance (s 6(a)) and the other matters to which we must have particular regard (s 7(b), (c) and (f)).
Directions
[104] Despite our early hopes, it has not proved possible to issue a Final Decision. It is perhaps unsurprising that the parking exemption rule requires further attention given its rapid evolution late in the hearing. In other subject areas we have consciously sought to deal with consequential amendments as they have arisen. The council is to prepare and serve a revised Change which addresses the matters requiring amendment within 20 working days of the date of this decision. Other parties are to provide any comments they may wish to make to the council within 15 further working days. The council is to then file a Memorandum and final version of the Change with the Court within 5 further working days - preferably with the agreement of all parties. Should the latter not prove possible, leave is granted for separate submissions.
Footnotes Thursday, 10 March, 2016 at 12:05 NZDT Page 24 Judgment Text
143 TOP 26 February 2008 p9 lines 28 — 31. 144 Mr Hassall, 25 February 2008 p1 para (b). 145 Mr Hassall, Closing submissions 26 February 2008 para 3.2. 146 op cit para 3.3ff. 147 TOP 26 February 2008 p8 line 32ff. 148 Agreed by council, Capri and BBG. 149 Mr Thompson EIC para 67. 150 Mr Burgess EIC para's 93 — 95. 151 TOP p221 line 6. 152 Mr Bird EIC para 62. 153 TOP 5.12.07 p110 line 45 — p111 line 25. 154 Ms Leijnen Rebuttal, para 3.13. 155 Mr Osborne EIC, Attachment RTO 1 Figures 3A — D and Attachment RTO 3 Drawing Number A08. 156 Mr Osborne Rebuttal, para 5.6. 157 TOP p154 — 155 line 32ff. 158 TOP 26.2.08 p5 line 5. 159 op cit p9 line 35ff. 160 op cit line 10. 161 op cit p16 line 22ff. 162 TOP 26 February 2008 p17 line 32ff. 163 op cit p18 line 8ff and Change 25.2.08 version Traffic and Parking para 4. 164 [1991] NZRMA 468 (EC). 165 A024/06, 28 February 2006. 166 Mr Brabant, submission 26 March 2008 para 8. 167 op cit para 4.13. 168 Mr Brabant, submission 26 march 2008 para 9. 169 Mr Hassall, submission 20 March 2008. 170 Mr Hassall, submission 20 March 2008 para 4.12. 171 TOP 26 February 2008 p17 lines 7 — 10. 172 op cit p 4 line 15ff. 173 op cit p5 line 39ff. 174 op cit p6 line 11ff. 175 And the question of jurisdiction. 176 TOP 26 February 2008 p16 lines 20 — 40. 177 Except on jurisdiction. 178 Mr Cook EIC para 4.13. 179 Mr Rae EIC para 5.25. 180 op cit para 5.26. 181 op cit para 5.27. 182 Mr Rae EIC para 5.30. 183 Mr Warren EIC para's 46(l) and 53. 184 TOP p72 lines 25 — 40. 185 TOP p82 lines 1 — 7. 186 Centre Plan, Introduction para 1. 187 op cit, Centre Plan Approach para 3. 188 Council, Capri and BBG Trust. 189 TOP p54 — 55 and p69. st th 190 For example, Objective 8.3.4 1 policy; Objective 8.6.2.1(e) 4 policy and Objective 12.7.1.
Judgment
Kennedy v AucklandCityCouncil [105] The presiding Judge acknowledges the considerable input of Commissioner Dunlop to the drafting of this decision.
[106] We regret the time it has taken to produce this decision, occasioned by the involvement of members of the panel on other major cases before the Court.
[107] Costs are reserved. They are not generally awarded on plan appeals and applications are not encouraged on this occasion.
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Attachments:
Appendix 1 — Business Objectives and Policies
Appendix 2 — 22 February 2008 Council version of Change 145
Appendix 3 — Diagram of District Plan Map Constraints Pertaining to the Village
Appendix 4 — BBG Trust proposed roof bonus rule
Appendix 1 Business Objectives and Policies
1. General Business Objectives and Policies
8.3.1 Objective
To foster the service, employment and productive potential of business activity while ensuring the sustainable management of the natural and physical resources of the City.
Policies for that objective include the following: • By providing flexibility for business through the establishment of a comprehensive range of business zones. which allow a wide range of business and other activities. • By providing and maintaining different standards of amenity for business activity throughout the City. • By requiring new development over a certain scale to undertake an environmental assessment of likely effects of the proposed development in terms of the Schedule of Effects described in PART 4 — GENERAL PROVISIONS AND PROCEDURES [repeated for Objective 8.3.3 and 8.3.4]
8.3.2 Objective
To ensure that any adverse effect of business activity on the environment is avoided or reduced to an acceptable level.
Policies for that objective include the following: • By applying controls which protect and enhance environmental values, public safety and amenity values.
8.3.3 Objective
To ensure that community values are recognised and balanced against the maintenance of public and private interests.
Policies for that objective include the following: • By encouraging community involvement in the development of individual Centre Plans for existing commercial centres, which identify and foster the special characteristics of these centres and provide for parking and amenity improvement programmes.
8.3.4 Objective
To provide for the safe, economic and convenient movement of people and goods within the business zones.
Policies for that objective include the following: • By requiring adequate off-street parking and loading facilities to ensure that the capacity of the roading system is not unduly reduced, and that activities are sufficiently accessible to ensure their operation.
2. Business 2 Zone Objectives and Policies
8.6.2.1 Objectives and Policies
Thursday, 10 March, 2016 at 12:05 NZDT Page 26 Judgment Text a) Objective
To provide for retailing, office and commercial service activity at a medium intensity suburban level.
Policies: • By recognising through zoning, existing suburban retail and business centres. • By permitting a wide range of business and non-business activities in these centres. b) Objective
To recognise the importance of the main retail frontage in maintaining the pedestrian amenity of these areas.
Policies: • By identifying the main retail frontage of centres and applying measures which seek to reinforce it. • By requiring the provision of verandahs. • By providing bonuses in floor area for new developments, where specified pedestrian facilities are provided. c) Objective
To encourage business and community groups to become actively involved in identifying the specific character of individual centres and the future direction of them.
Policy • By introducing the concept of Centre Plans for individual centres where sufficient interest and support is given by the business sector and the community. d) Objective
To acknowledge the role of suburban centres as a focal point for community interests and activities.
(e) Objective
To ensure any adverse environmental or amenity impact of business activity on adjacent residential or open space zones is prevented or reduced to an acceptable level.
Policies for that objective include the following: • By adopting controls which limit the intensity and scale of development to a level appropriate to the zone's proximity to residential zoned properties and open space areas. • By adopting controls which seek to protect residential zones' privacy and amenity. • By adopting parking and traffic measures, which seek to avoid congestion and parking problems.
(f) Objective
To ensure that residential activity and parking areas are located appropriately so as to maintain the retail/commercial character of town/suburban centres.
Policy • By adopting controls which require the location of residential units and parking areas away from street frontages at ground level.
Appendix 2 Plan Change 145 - Agreed Text With the Exception of Paragraph 3.3(G) 22 February 2008
Part B: Amendment to Appendix a of the Planning Maps
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Insert the following:
B15-12 St Heliers Village Centre Plan (Refer to Appendix B)”
Part C: Amendment to Appendix B of the Planning Maps
Insert the following text appropriately in Appendix B of the Planning Maps:
B15-12 St Heliers Village Centre Plan”
A. Introduction
1. Background
St Heliers is strongly defined by its relationship to the bay and beachfront, the Hauraki Gulf, Rangitoto Island and Tamaki Drive. These features have influenced the development of the commercial and residential activities. The St Heliers village (the commercial centre) is focused around St Heliers Bay Road and the waterfront. It has a significant number of buildings from the 1920's and 30's period, together with a very small number from 1860 to 1920, as well as a mix of more recently developed buildings. The character of St Heliers village is derived from a combination of this natural setting, the pattern of subdivision and roads, and the role these buildings play in defining the character and scale of the village.
The centre plan focuses on the existing commercial centre and recognises the particular factors that give it and its immediate environs its unique character. The centre plan contains measures that are designed to maintain and enhance the character of the St Heliers village and to promote its amenity values. The provisions recognise that while parts of St Heliers village have historic importance, its other intrinsic or character qualities are also worthy of retention and enhancement.
2. Character Definition
The character of a place is determined by a complex interplay between a range of factors including: topography; geology; climatic conditions; natural vegetation patterns; urban structure; mix and distribution of activities; pattern of built development; social and cultural associations with a place. Understanding the relationship between these different factors is complex but important in understanding the character values of a place.
The centre plan identifies the various elements which come together at St Heliers to create a distinctive place. By understanding how these elements contribute to form the physical environment, future development can be guided in a way that responds to and enhances the collective character of the centre. A description of the various elements that contribute to St Heliers' character follows: • History; • Landscape; • Urban structure; • Streetscape; and • Built environment.
History
Te Pani-o-Horoiwi (Achilles Point) and Karaka Bay are of historic significance to the Auckland Region. The headland around the present Glover Park was fortified and formed part of a network of fortified pa that protected the navigable passages within the Hauraki Gulf. Karaka Bay was one of the locations around the country chosen for the signing of the Treaty of Waitangi.
The first auction of large blocks of land from the recently surveyed Ngati Paoa Tamaki Block took place in 1842 and St Heliers began as a number of settler farms. In the early 1880s farmland was subdivided in order to develop a “model” seaside suburb of Auckland. With the completion of the wharf in 1882 St Heliers was initially popular as a holiday destination. Improved bus services affected the ferry services profitability and contributed to the wharf being demolished in 1930. With the opening of Tamaki Drive in 1931 the rate of growth accelerated further, and the village centre provided most services, supplies and entertainment for the surrounding community.
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The urban structure and street pattern of St Heliers was based on a planned seaside settlement which has resulted in the existing grid with streets running perpendicular to Tamaki Drive and the waterfront and is a distinctive feature of this centre. The centre retains a range of building types from different periods which provide evidence of the historic development of the centre and how it has changed over time.
Landscape
St Heliers Bay is the eastern-most bay of a repeated pattern of small bays separated by headlands and cliffs, forming a scalloped profile along Tamaki Drive. The bay lies between the prominent Waitemata Sandstone cliffs at Ladies Bay to the east, and the headland to the west at Kohimarama. The town centre forms part of the seafront focus of St Heliers Bay and is orientated towards its coastal setting. It is located on flat land set at the base of a small topographic amphitheatre, surrounded by residential development on the land sloping upwards to the south. The surrounding residential development has views of the village, the Waitemata Harbour and beyond. The large expanse of Vellenoweth Green, two large Moreton Bay Fig trees and the beach reserve along Tamaki Drive define the western entrance to the centre. Beyond Turua the land rises towards Achilles Point marking the eastern end of the centre.
Urban Structure
The urban structure of St Heliers is based on the intersection of Tamaki Drive and St Heliers Bay Road at the waterfront and the fact that only these two roads connect continuously with the centre's hinterland. This explains the existing structure of primary and secondary commercial frontages and differentiation of character within St Heliers.
The grid street network in its amphitheatre setting, adjacent to a large open space and foreshore, defines the seaside village character of the town centre. The grid is modified and distorted inland as the topography becomes more elevated. Tamaki Drive stretches along the coastline, and the open space, harbour views form an important component of the character of the scenic entrance to the centre from the west. The retail precinct has a suburban character and is a compact, mixed use, pedestrian orientated centre. There is a wide variety of commercial, retail, restaurant/café premises as well as community facilities such as the St Heliers Community Library, the War Memorial Hall and police station. There is generally an integrated relationship between the village centre and the residential neighbourhood and the village has developed as an integral feature of the area.
Streetscape
The streetscape is the public realm from which we experience the character and amenity of a place. It is considered that there is generally a good relationship between the public and private realms on St Heliers Bay Road. With adequate sidewalks and continuous building frontages where windows, doors and verandahs are orientated towards the sidewalk forming a continuous street wall. The public realm on adjacent streets contrasts with the core area due to the lack of continuous frontage, set back of residential buildings and increased vehicle crossings for residential uses. The public realm along Tamaki Drive is defined by the relationship between the urban and coastal edges of the street. The distinctive Moreton Bay fig trees, Vellenoweth Green and residential and commercial development on the southern side of Tamaki Drive complement the seaside character along the water's edge. The point at which St Heliers Bay Road and Tamaki Drive intersect creates a focal point for the village.
Built Environment
St Heliers Bay Road and Tamaki Drive are streets characterised by continuity of retail frontages, while others are characterised by a greater mix of use and building typology. Both these areas combine to establish the overall character of the centre, while each has different and distinctive character elements.
The built environment at St Heliers is characterised by a diverse range of building types and styles. The pattern of commercial development has been strongly influenced by the transport patterns to and from the bay. Early buildings were of small-scale domestic type construction. The 1920's and 1930's established the pattern of development and architectural form and it is this basic configuration that remains today, although some key buildings have been demolished and others altered. The scale of buildings is generally small, with one or two storeyed buildings on smaller lots. A few taller buildings exist, which are noticeably higher than the predominantly one and two storey buildings. Some of the single story buildings have feature parapets that strengthen the streets vertical element. Where larger development has occurred in the 1920's and 1930's the facades have been articulated to give the appearance of individual smaller scale buildings. The majority of older buildings have pitched roofs and this contributes to the character of the built environment, especially when viewed from the surrounding residential properties. The character and scale of the surviving early buildings establish a seaside character that is a primary asset of St Heliers.
The seaside location and lifestyle has resulted in an overall built pattern that connects the public and private realms. An important built feature is the way public streets and private development meet at the common boundary to create “in-between” spaces, such as porches, verandahs, terraces and courtyards that support the seaside lifestyle. Thursday, 10 March, 2016 at 12:05 NZDT Page 29 Judgment Text
3. Centre Plan Approach
The centre plan utilises controls that seek to retain and enhance the character of St Heliers. Based on an understanding of the historic development and analysis of the urban character of St Heliers village, the elements which contribute to character of the different street environments have been identified.
Surviving early buildings in the centre are an important asset. Sympathetic development will provide a high quality, authentic identity by reinforcing the village's unique qualities in each of the character dimensions. The intention is not to “freeze” the built environment. It is proposed that having defined the elements that give particular character to the area that change can be managed to protect the distinctive character of the village. Innovative and congruent development likely to add to the attributes of St Heliers village will be encouraged under such a regime.
Although centre plans are usually applied to business centres zoned Business 2 or 3, the District Plan provides for the inclusion of land with other zoning's where such land forms part of the identified business centre. The area covered by the St Heliers centre plan is set out on the attached map and includes land zoned Business 2 and Residential 6b. The inclusion of the residential zoned sites acknowledges the important part in St Heliers village's commercial area these buildings play. The residential zoned sites contribute to the mixed-use environment of the village.
The Residential 6b zone is a medium intensity residential zone and has reasonable access to open space, leisure, transport and business areas. A wider range of activities is permitted than in lower density zones and greater height and bulk of building is envisaged. In St Heliers village there are several sites zoned Residential 6b located on Polygon Road. Currently, these sites are principally used for non-residential purposes.
4. Traffic and Parking
Tamaki Drive is part of the scenic route that extends eastwards from Auckland's central business district. It is a popular tourist route and is used extensively by cyclists, joggers, roller-bladers and other recreational users. The demand for parking generally falls into three broad categories: residential, commuter and visitor (comprising shoppers, tourists, visiting business people etc). Each group has unique parking requirements. Consequently, traffic and parking conditions vary considerably throughout the year depending on the season, the time of day and weather conditions.
As with other traditional commercial areas throughout Auckland, much of St Heliers was developed before cars were widely used, so many established commercial premises do not provide on-site car parking. This places pressure on the available on-street parking. Feedback from the community indicates that parking is considered a problem in St Heliers, because most of the available parking spaces in the commercial area are often occupied. This inconvenience may deter shoppers and others from visiting the area and prevent local businesses from achieving their full potential. At times there is difficulty when delivery vehicles double-park to deliver goods and prevent vehicles from travelling freely through the village area.
Pedestrian access to and around the village is currently functional with footpaths of reasonable width and condition. However, there is conflict between the location of pedestrian crossings on both Tamaki Drive and St Heliers Bay Road and vehicular traffic. Feedback from the community also raised concerns regarding the location of bus stops adjacent to café/restaurant establishments with outdoor dining.
To address these concerns a parking plan is being developed for St Heliers. This will develop short and long term strategies to address the traffic and carparking concerns for St Heliers.
The centre plan provides for an exemption from the required parking spaces in certain circumstances to retain and encourage the continuity of retail frontages.
5. Open Space
Open space is an important part of the fabric of St Heliers. It has many layers — parks, reserves, streets, beaches and trees. While these controls seek to maintain and enhance the character of St Heliers village, it is acknowledged that the design and appearance of works within open space will affect its character. Therefore, the Council will promote works within the open space, both adjacent to and within the centre plan area, that are sympathetic to the aim of the St Heliers centre plan.
6. Activity Provisions and Development Controls
Unless specifically stated the provisions of the St Heliers centre plan are in addition to the existing District Plan controls for the sites within the centre plan. However, some controls, such as parking exemptions, supersede standard controls.
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For those properties zoned Residential 6b the activity provisions contained in this centre plan are in addition to those contained within section 7 of the District Plan.
Sites fronting parts of St Heliers Bay Road, Tamaki Drive, Turua and Maheke Streets and Polygon Road are affected by both the Retail Frontage and Verandah controls under 8.8.1.3 A and B of the District Plan. Parts of the centre plan are also subject to Tamaki Drive Scenic Way provisions in section 5C.7.7 and the coastal management area provisions in section 5B.7 of the District Plan.
The District Plan denotes Tamaki Drive west of St Heliers Bay Road as a district arterial road. East of St Heliers Bay Road, Tamaki Drive is a collector road. St Heliers Bay Road is also a district arterial road. Maheke and Turua Streets and Polygon Road are local roads.
7. Designations
Existing designations within the centre plan area are detailed in Appendix A and B to the District Plan Planning Maps. The area of the centre plan contains a designated site on Polygon Road. This item is indicated on the District Plan planning maps and is detailed in Appendix B to the District Plan. • Council reference: C15-07 - Council Carpark, Polygon Road.
8. Scheduled Items
The centre plan area contains one scheduled building, the St Heliers Community Library located on the corner of Polygon and St Heliers Bay Roads. This item is indicated on the District Plan Planning Maps and is detailed in Appendix A to the District Plan. • Council reference: C15-11 — Building Scheduled for Protection These items are subject to the rules contained in Part 5C — Heritage of the District Plan that override the provisions contained in the centre plan.
9. Signs
All signs shall comply with the Auckland City Consolidated Bylaw 2007. The area covered by the St Heliers centre plan is a “special character area” for the purpose of administering the provisions relating to signs in the Bylaw.
Signs should be at a scale and design that do not visually dominate or detract from the visual amenity of the Centre. The design and placement of signage, particularly above verandah level, should not conceal architectural detail and should sensibly relate to the proportions and architectural style of the building fa¸cade. Signage should not be painted directly onto building facades, unless there is precedent on individual buildings for this. Signs should also be to a human scale and orientated to pedestrians, being visible at street level.
For the purpose of this centre plan, the use of the word “alterations” does not include signs.
Part 27B of the Auckland City Consolidated Bylaw 2007 currently does not provide for billboards in the Business 2, or Residential 6b zone.
For signs on scheduled buildings, the provisions in Part 5C of the District Plan should be referred to.
B. Activities
1. Activities
The following table outlines the activities provided for in the centre plan area
Activities Activity status
Demolition or removal of buildings where resource consent has been granted for a replacement building C
Demolition or removal of buildings where resource consent for a replacement building has not been D granted
Construction and/or relocation of new buildings RD* Thursday, 10 March, 2016 at 12:05 NZDT Page 31 Judgment Text
Activities Activity status
External alterations and additions to existing buildings (except for their re-decoration, maintenance or RD* repair)
Redecoration, maintenance, repair and internal alterations to existing buildings P
• Those activities marked with a * are restricted discretionary activities (refer to clause 4.3.2.6 RESTRICTED DISCRETIONARY ACTIVITIES for public notification and service requirements)
2. Conditions for demolition of Buildings as Controlled Activities
Conditions will be imposed on resource consent for demolition of buildings: a) to link timing of demolition with commencement of replacement building on the site; b) to provide for the management of the condition of the site between demolition and commencement of the replacement building. This condition may include requirements with respect to prevention of dust nuisance, safety and visual amenity.
3. Criteria for assessing applications for resource consent
In considering an application for a resource consent, the Council will have regard to Part 4 of the District Plan, General Provisions and Procedures, and assess the application against the following matters: 3.1 Assessment criteria for alterations and additions to existing buildings a) The extent to which the additions and alterations maintain the integrity of existing buildings on the site. In particular, consideration should be given to the overall building footprint, form, mass, scale, proportions, its relationship to the street and its overall contribution to the St Heliers centre character; b) The extent to which detailed design features are compatible with key architectural features of the existing building; c) The extent to which materials and colours are compatible with the existing building; d) The extent to which the design of verandahs is compatible with the architectural form of existing or surrounding buildings. 3.2 Assessment criteria for the demolition or removal of buildings as Discretionary Activities a) The extent to which the particular attributes of the building contributes to the character of the village. (Refer to the character definition under section A.2. Character Definition). b) The building's structural or physical condition and whether rehabilitation of it is economically feasible. 3.3 Assessment criteria for new development a) The extent to which the new development responds to the elements that contribute to the character of St Heliers having regard to: • The contribution any existing building on the site previously made to the character of St Heliers; • Where within the centre plan area the site is located. In relation to the above, refer to the character definition (under section A.2. Character Definition). b) The extent to which site development responds to features of the surrounding context including: topography, streetscape character, scale and pattern of the public/private interface. c) On site parking and vehicle circulation areas should not visually dominate views of the site from the surrounding public realm; d) For comprehensive development, where sites are amalgamated, the extent to which: • The clarity of the rectilinear grid structure is maintained or enhanced; • The number, variety, scale and quality of public spaces (streets, lanes, alleys, squares and/or parks) are maintained or enhanced; • Pedestrian permeability and comfort is maintained or enhanced; • The configuration of development and building design has regard to the existing or original street subdivision pattern and the extent to which buildings are articulated to avoid potential adverse effects of scale and bulk. • The visual interest at street level is maintained in order to enhance the pedestrian amenity of the street environment. Buildings should be designed to front streets, concentrating main entrances and windows on frontages facing the street. e) The extent to which the development incorporates any recessed street frontages to create transitionary open spaces for outdoor dining, seating, planting or other uses where appropriate; f) The extent to which building elevations are modulated with vertical elements (such as structural bays and windows), and horizontal elements (such as verandahs, cornice and parapet lines). Blank walls visible from surrounding streets should be avoided where possible;
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g) The extent to which the scale of proposed building elements is compatible with that of existing buildings in the vicinity. In particular, where a proposed building is higher than an existing adjoining building to reduce the dominance of upper levels, consideration shall be given to differentiating upper storeys from lower storeys. For example, this can be achieved by setback from the frontage, by change of building form, by change of building materials/colour or by other appropriate design variation. h) The extent to which the roof design maintains or contributes to the varied roofscape of the centre as viewed from the surrounding residential area. i) The extent to which rooftop projections including towers, chimneys, lift towers, machinery rooms, air conditioning equipment, ventilation ducts and equipment, or water towers are integrated in an architecturally attractive manner as part of the overall design of the building.
Explanation
The various attributes of the buildings, their settings and respective land uses of St Heliers village are features that create lively, people-friendly streets. Buildings that have a human scale due to appropriate building bulk, mass, and scale enhance this attribute. Some buildings contribute to the Centre's character through their historical associations. It is important that developments respond to key features that contribute to the character of St Heliers (as described in Section A.2.) in a sympathetic manner and foster the existing sense of human scale, resulting in a cohesive and attractive streetscape and overall village character.
New buildings should be designed and finished in a way that contributes to the specifically identified character of the Centre while still allowing for innovation in design. It is acknowledged that innovative design can add to the uniqueness of town centres, with modern buildings co-existing with older architecture. New developments can be valued for their own contribution to the visual vitality of the town centre.
It is recognised that there is the possibility of amalgamation and comprehensive redevelopment of multiple sites within the centre plan area. Development of such larger sites require wider urban design considerations, such as the provisions of open space and pedestrian permeability.
C. Development Controls
1. Access and parking
1.1 Vehicle crossings
No new vehicle crossing shall be permitted to sites within the centre plan area zoned Business 2 where vehicular access to such a site for parking and loading is available by other means, such as rear service lanes, right of ways or from side roads.
1.2 Location of parking and loading areas/spaces
On all sites included in the Centre Plan, parking and loading spaces (including surface parking lots and carparking buildings) shall not front Tamaki Drive, St Heliers Bay Road, Turua Street, Polygon Road, or Maheke Street.
Explanation
Because vehicle crossings may interfere with the movement of pedestrians along the main arterial retail area of the centre, new vehicle crossings are not encouraged where access is available by other means.
On-site carparking that fronts the streets that form part of the centre plan area should be avoided so that it does not dominate views of the site from the public realm.
1.3 Parking Exemption
All sites having frontage to Tamaki Drive or St Heliers Bay Road with an overall site area of less than 1000m2 are exempt from on-site parking requirements of the District Plan.
Explanation
Continuity of retail frontage to Tamaki Drive and St Heliers Bay Road is an important outcome that should not be compromised by the requirement to provide parking and access thereto on every site fronting these primary activity streets. However, it is
Thursday, 10 March, 2016 at 12:05 NZDT Page 33 Judgment Text acknowledged that there is potential for a comprehensive development to occur which may generate considerable parking demand. The benefits of providing an exemption for on-site parking, such as continuity of retail frontage, should be carefully considered against the impact of greater demand for off-site parking.
Appendix 3
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Appendix 4
2.0 Roofs The BBG Trust Limited seeks the inclusion of a roof bonus provision as follows (or words to like effect):
“2.0 ROOFS
The maximum heights under clause 8.8.1.1 may be exceeded for roofs, including rooftop projections, where consent is granted to an application for a restricted discretionary activity. Consent will be granted where the Council is satisfied that the form and design of the roof and rooftop projections meet the following standards and assessment criteria:
Standards:
The height bonus will apply where the roof: a) exceeds the maximum heights under clause 8.78.71.1 by no more than 2 metres; and b) does not result in the maximum floor area ratio for the development being exceeded. Assessment criteria a) The extent to which the roof design maintains or contributes to the varied roofscape of the centre as viewed from the surrounding residential area.The roof profile design and composition should be considered as part of, and contribute to the overall architectural form of the building. Emphasis should be on avoiding any adverse effects on the design and appearance of the building when viewed from streets and other public spaces and from over looking buildings. b) The extent to which rooftop projections including towers, chimneys, lift towers, machinery rooms, air conditioning equipment, ventilation ducts and equipment, or water towers are integrated in an architecturally attractive manner as part of the overall design of the buildingRooftop projections including towers, turrets, chimneys, lift towers, machinery rooms, water towers or finials should be screened or incorporated in an architecturally attractive manner as part of the overall design of the building. Note 1: The bonus will be considered for separate parts of a roof where they extend above the maximum height limits.
Note 2: Compliance with the relevant assessment criteria listed in clause 3.3 (g) and (h) [note cross referencing will need to be checked against final version]of this centre plan will be deemed to satisfy the above assessment criteria.”
Footnotes
1 Variation 145A was introduced to correct mapping and text errors in the original Plan Change. 2 Mr Hassall opening submission para 1.2. 3 Version dated 22 February 2008 and attached to Mr Hassall's memorandum to the Court dated 25 February 2008. 4 Mr Hassall Opening para's 9.5 — 9.7. 5 Mr Thompson EIC para's 35 - 36 and 97(v). 6 Refer Appendix 3 for area subject to the centre plan provisions. 7 Except for the council car park. 8 Mr Wild Rebuttal para 2.2. 9 Change 145 and Variation 145A were publicly notified on 19 September 2004 and 1 May 2005 respectively: Mr Hasall Opening para 2.1. 10 Long Bay — Okura Great Park Society and others v North Shore City Council , A078/2008 para 30. 11 Mr Osborne EIC para 6.15. 12 [1996] NZRMA 529 at 533. 13 W047/05, 22 May 2005, Sheppard J (EC), paragraph 128. 14 Long Bay — Okura Great Park Society and others v North Shore City Council , A078/2008 paragraphs 31 — 33. 15 Noting again that this is under the pre-2005 Amendment version of the RMA.
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16 Section 74(1) of the Act. 17 As described in section 31 of the Act. 18 Sections 72 and 74(1) of the Act. 19 Section 75(3)(a) and (b) of the Act. 20 Section 74(2) of the Act. 21 Note: under the Resource Management Amendment Act 2005 section 75(3)(c) now requires an operative RPS to be given effect to in a district plan. 22 Section 75(3)(c) of the Act. 23 Section 75(5) of the Act. 24 Section 74(2)(a) of the Act. 25 Section 74(3) of the Act. 26 Section 75(1) of the Act. 27 Section 75(2) of the Act. 28 Section 75(1)(b) and (c) of the Act (also section 76(1)). 29 Section 32(3)(a) of the Act. 30 Section 32(4) of the Act. 31 Section 76(3) of the Act. 32 Section 2: Amenity values — “ … those natural and physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”. 33 Section 2: Environment — “ … includes — a) ecosystems and their constituent parts, including people and communities; and b) all natural and physical resources; and c) amenity values; and d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters”. 34 Mr Osborne EIC para 6.15 and Appendix A. 35 op cit para 11 page 8. 36 Mr Osborne EIC para's 3.4 ff. 37 Section 4 Plan Change 145: Agreed Text: 22 February 2008. 38 Mr Osborne EIC Section 4 pp 8 — 10. 39 Subject to GFA limitations. 40 Refer Appendix 3: Diagram reproduced from Ms Leijnen's EIC p 7. 41 op cit. 42 TOP p 115 line 34. 43 Mr Hassall Opening para 6.4(b). 44 Ms Skidmore EIC para 6.9. 45 For example, the NZ Coastal Policy Statement, Auckland Regional Policy Statement and Change 8, and the Auckland Regional Plan: Coastal. 46 Suburban Estates Limited and others v Christchurch City Council Decision No C217/2001 at para 40. 47 Refer Appendix 3 reproduced from Ms Leijnen's EIC which shows the boundaries of the centre plan area and operative district plan controls. 48 Refer Change 145 Section 6 p 4. 49 Mr Hassall, letter to the Court dated 25 February 2008 attaching text of the Change agreed by all parties except as otherwise noted and subject to clarifying instructions on the parking exemption. 50 Refer para 24 for two further land use activities that Ms Kennedy sought be added. 51 Not agreed by Ms Kennedy, who proposes a Frontage and Set Back Control rule and related assessment criteria for new development (including additions and alterations to existing buildings) as described in the evidence of Ms Leijnen and Mr Wild and confirmed by counsel [refer TOP 26 February 2008 p13 line 31]. 52 As described in preceding footnote although many of the criteria are included unaltered in the “Kennedy rule” 3.2. 53 Tabled by Mr Hassall 26.2.08 in substitution for the version attached to his 25.2.08 report to the Court. 54 As proposed in the Kennedy 7 December 2007: Document 2 version, which we understand to be the final version. 55 Refer Appendix 2 B3.1 and B3.3. 56 Refer Kennedy 7 December 2007: Document 2 version pp 7 — 8. 57 op cit p10. 58 Two points should be noted: i) The properties described are located on the SE corner of Turua Street and Polygon Road where there is a marked difference in elevation. Ms Leijnen initially thought this situation might be managed by the DA development control modification provisions in Rule 4.3.1.1. However, in response to a query from the Court, she devised an alternative approach initially introduced as Exhibit 2 and subsequently included in the proposed rule in the form set out.
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ii) A numeral may be transposed in one of the DP numbers. 59 As set out in our paragraph 24 60 Mr Brabant Opening para 1.3. 61 op cit para 2.1. 62 op cit para 3.1. 63 Mr Brabant Opening para 3.2. 64 Mr Hassall Opening para 10.1. 65 In written submissions dated 6 December 2007 and 26 February 2008. 66 Mr Kirkpatrick, Submission 6 December 2007, para 8. 67 Mr Kirkpatrick, Submission 26 February 2008, para 13. 68 We acknowledge this part of the submission was also concerned with the broad purpose of sustainable management. 69 A078/2008 para 290. 70 Mr Kirkpatrick, Submission 26 February 2008, para 10. 71 Transcript 26 February 2008 p9. 72 op cit p10 line 22. 73 Mr Hassall Submission 26 February 208. 74 op cit para 2.15. 75 Described by Ms Skidmore as creating “a brutal interface with the street” [EIC para 5.20]. 76 op cit para 2.19. 77 Mr Wild EIC para's 2.4 — 2.5. 78 op cit paragraphs 4.5 — 4.7. 79 op cit para 5.12 and Appendix 7 SK 03 — 04. 80 Mr Wild Supplementary Statement para 2.3. 81 Transcript 5 December 2007 p 100 line 36 ff. We apprehend the depth of setback resulting from the 7 December 2007 “Kennedy rule” would be less than the 12m suggested by Mr Bartlett but greater than 6m. 82 op cit p110 lines 1 — 3 and Mr Wild's Supplementary Statement Attachments SK 6 and 7. 83 op cit p112 lines 35 — 36. 84 Ms Leijnen, Rebuttal para 1.5. 85 op cit para 2.6. 86 op cit para 3.7. 87 TOP p116 ff. 88 op cit p 119 line 44 ff. 89 op cit p122 lines 16 — 24. 90 op cit p134 lines 34 — 45. 91 Cross-examination by Messrs Bartlett and Brabant: TOP pages 214 and 216. 92 TOP p 220 lines 18 — 25. 93 Architectus, Design Study: St Heliers Town Centre, June 2004 submitted with the evidence of Mr Osborne for the council. 94 TOP p179 line 38. 95 op cit p184 lines 35 — 45 and p193 line 5ff. 96 op cit p186 line 9 — p187 line 30. 97 TOP p188 lines 24 — 31. 98 Osborne EIC Attachment RT03 Section 03: Development Control. 99 C Bird EIC para 47. 100 op cit para's 53 — 54. 101 TOP p 245 lines 1 — 3. 102 TOP p230 lines 34 — 44. 103 op cit p231 lines 1 — 10. 104 op cit pp 236 — 237. 105 Op cit pp237 — 238. 106 Mr Rae, EIC para's 5.23 — 5.24. 107 TOP p259 lines 1 — 17. 108 TOP p32 line 34. 109 op cit p34 lines 11 — 14. 110 op cit p34 line 30 — p35 line 19. 111 And not just those which Mr Bartlett's client proposed be classified as primary commercial frontages, being Tamaki Drive and St Heliers Bay Road. 112 op cit p70 lines 27 — 42. 113 op cit p74 lines 20 — 24. 114 op cit p75.
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115 TOP p83 line 31ff. 116 Mr Warren EIC para 171. 117 op cit para 172. 118 op cit para 173 and TOP p248 lines 25 — 30. 119 Mr Warren EIC para 46 p21. 120 TOP p250 lines 12 — 28 and p251. 121 op cit p254 lines 21 — 28. 122 TOP p206 lines 26 — 43. 123 Mr Thompson EIC, Attachments 1, 2 and 3. 124 TOP p206 line 23. 125 op cit para 5. 126 op cit para's 69 — 75. 127 op cit para's 76 — 85 and para 95. 128 op cit para 96. 129 TOP p207 lines 18 — 31. 130 op cit p209. 131 op cit p210. 132 op cit p211 lines 20 — 35. 133 op cit p212 line 33ff. 134 Mr Osborne Rebuttal para 4.1. 135 Amended Council Change dated 6/12/07 p8 2(g). 136 TOP p148 line 15ff. 137 op cit p149 lines 21 — 24. 138 op cit p149 line 35ff. 139 op cit p150 lines 4 — 19. 140 op cit p150 line 28ff. 141 op cit p160 lines 1-5. 142 op cit p165 line 40 — p166 line 39 and p170 line 21. 143 TOP 26 February 2008 p9 lines 28 — 31. 144 Mr Hassall, 25 February 2008 p1 para (b). 145 Mr Hassall, Closing submissions 26 February 2008 para 3.2. 146 op cit para 3.3ff. 147 TOP 26 February 2008 p8 line 32ff. 148 Agreed by council, Capri and BBG. 149 Mr Thompson EIC para 67. 150 Mr Burgess EIC para's 93 — 95. 151 TOP p221 line 6. 152 Mr Bird EIC para 62. 153 TOP 5.12.07 p110 line 45 — p111 line 25. 154 Ms Leijnen Rebuttal, para 3.13. 155 Mr Osborne EIC, Attachment RTO 1 Figures 3A — D and Attachment RTO 3 Drawing Number A08. 156 Mr Osborne Rebuttal, para 5.6. 157 TOP p154 — 155 line 32ff. 158 TOP 26.2.08 p5 line 5. 159 op cit p9 line 35ff. 160 op cit line 10. 161 op cit p16 line 22ff. 162 TOP 26 February 2008 p17 line 32ff. 163 op cit p18 line 8ff and Change 25.2.08 version Traffic and Parking para 4. 164 [1991] NZRMA 468 (EC). 165 A024/06, 28 February 2006. 166 Mr Brabant, submission 26 March 2008 para 8. 167 op cit para 4.13. 168 Mr Brabant, submission 26 march 2008 para 9. 169 Mr Hassall, submission 20 March 2008. 170 Mr Hassall, submission 20 March 2008 para 4.12. 171 TOP 26 February 2008 p17 lines 7 — 10. 172 op cit p 4 line 15ff. 173 op cit p5 line 39ff. 174 op cit p6 line 11ff.
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175 And the question of jurisdiction. 176 TOP 26 February 2008 p16 lines 20 — 40. 177 Except on jurisdiction. 178 Mr Cook EIC para 4.13. 179 Mr Rae EIC para 5.25. 180 op cit para 5.26. 181 op cit para 5.27. 182 Mr Rae EIC para 5.30. 183 Mr Warren EIC para's 46(l) and 53. 184 TOP p72 lines 25 — 40. 185 TOP p82 lines 1 — 7. 186 Centre Plan, Introduction para 1. 187 op cit, Centre Plan Approach para 3. 188 Council, Capri and BBG Trust. 189 TOP p54 — 55 and p69. st th 190 For example, Objective 8.3.4 1 policy; Objective 8.6.2.1(e) 4 policy and Objective 12.7.1.
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