Before the Auckland Unitary Plan Independent Hearings Panel
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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.