Character Coalition Incorporated v Auckland Council
[2025] NZHC 805
•7 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002182
[2025] NZHC 805
UNDER the Resource Management Act 1991 IN THE MATTER OF
an appeal under Section 299 of the Resource Management Act 1991
BETWEEN
CHARACTER COALITION INCORPORATED
Appellant
AND
AUCKLAND COUNCIL
First Respondent
CLAIR CONNOR
Second Respondent
Hearing: 11 March 2025 Appearances:
B S Carruthers KC and E M Burns for Appellant M C Allan for First Respondent
A M Cameron for Second Respondent
Judgment:
7 April 2025
JUDGMENT OF MUIR J
This judgment was delivered by me on 7 April 2025 at 3 pm, Pursuant to Rule 11.5 of the High Court rules.
Registrar/Deputy Registrar Date: ……………………………
Counsel/Solicitors:
Shortland Chambers, Auckland Brookfields Lawyers, Auckland
CHARACTER COALITION INCORPORATED v AUCKLAND COUNCIL [2025] NZHC 805 [7 April 2025]
Introduction [1]
The grounds of appeal[8]
The legislative and regulatory framework[11]
Resource Management Act 1991[11]
The AUP—overview[17]
The Regional Policy Statement provisions in the AUP[22]
The District Plan provisions in the AUP[27]
The Environment Court decision [47]
Discussion[64]
Introduction[64]
Identification of special character[68]
Exercise of the discretion—application of assessment criteria[88]
Precedent[115]
Result[124]
Costs[125]
Introduction
[1] Character Coalition Incorporated (CCI) appeals on a question of law from a decision of the Environment Court (EC) made on direct referral and dated 12 August 2024.1
[2] The EC’s decision granted resource consent for the demolition of an existing dwelling situated at 22 Crescent Road, Epsom, Auckland and construction of a new one. The protagonists are CCI, and the applicant for consent Ms Clair Connor. Auckland Council (the Council) takes a neutral position on the appeal, but has provided helpful submissions about the statutory and regulatory framework in which the direct referral proceeded. 2
[3] The proceeding concerns Special Character Areas Overlays prescribed by the Auckland Unitary Plan (AUP). The subject property is located within the Council’s “Special Character Areas Overlay – Residential: Isthmus B – Epsom” (the SCAO). The Special Character Areas Overlay is employed in numerous locations across significant parts of the Auckland isthmus, with its overall intention being that the special character values of the area, as identified in Schedule 15 of the AUP, are maintained and enhanced.3
[4] Demolition of certain heritage buildings scheduled in the AUP, is a non-complying activity.4 By contrast, demolition or removal of a building in the SCAO is a restricted discretionary activity (RDA) and therefore subject to a less onerous consenting pathway.5 Consideration of applications in the RDA category requires a series of value judgements by the expert consent authority, ideally informed by a range of independent expert evidence.
1 C Connor v Auckland Council [2024] NZEnvC 194.
2 The Council’s neutral approach is informed at least in part by the divergent views of its expert witnesses Mr Lan (planning) and Mr Howse (special character) which the Council submits highlights “the complex and finely balanced nature of assessing such proposals in special character areas”.
3 Auckland Unity Plan: Operative in Part [AUP], at D18.2(1).
4 At D17.4.1(A1) and (A2).
5 At D18.4.1(A3).
[5] Ms Connor wishes to replace what is, from the street at least, an attractive 1920s Californian bungalow (albeit in a significant state of disrepair), with a new home described by the EC as “non-confrontational” and which draws on some of the architectural references of the existing dwelling.6 She says that even if substantially rebuilt and possibly extended, the current home cannot deliver a reasonable level of amenity for herself, her two teenage daughters and her elderly parents, all of whom would live in the new dwelling which is proposed.
[6] Originally, Ms Connor obtained a non-notified consent for her project. This was challenged on judicial review and, by agreement, the consent was withdrawn and a direct referral was made to the EC on a notified basis. This elicited opposition from CCI, approximately 20 local residents and Heritage New Zealand.7 Heritage New Zealand later withdrew from the case.
[7] The application was heard by the EC over three days before an experienced panel.8
The grounds of appeal
[8]CCI alleges that the EC erred in law in:
(a)identifying the topography and relationship to Maungakiekie/One Tree Hill as the defining special character value of the area;
(b)dismissing and/or downplaying the contribution of the buildings and/or built character to the special character value of the area;
(c)failing to apply and consider the applicable AUP provisions;
(d)incorrectly interpreting the applicable AUP provisions;
6 C Connor v Auckland Council, above n 1, at [67].
7 The 20 local residents do not appeal in their own right but many of them are apparently aligned with CCI.
8 The panel was comprised of Judge J A Smith (appointed 2000), Commissioner S Myers and Commissioner G Paine.
(e)agreeing “that [Ms Connor’s] decision that [the dwelling] cannot reasonably be rehabilitated and renovated for her requirements is reasonable” with no evidence to support that conclusion;9
(f)accepting Ms Connor’s “special concerns and requirements” require “a more bespoke approach to building than is able to be achieved by renovation of the existing home” with no evidence to support that conclusion;10
(g)failing to consider whether “the inability to achieve reasonable amenity for occupants … warrants … demolition” of the existing building;11 and
(h)failing to consider whether a grant of consent in these circumstances would create a precedent and/or undermine the AUP’s integrity.
[9] The notice of appeal also challenges an observation by the EC that the former application made by Ms Connor was properly dealt with by the Council on a non-notified basis.12 This argument was not pressed by Ms Carruthers KC and appropriately so. The obiter observations of the EC about the former application cannot, in my view, reasonably be said to amount to an error of law affecting the decision under appeal.
[10] Distilled through the filter of oral argument, Ms Carruthers ultimately summarised the alleged errors of law as being three-fold, namely that the EC erred in:
(a)identifying the special character of the area in which the property is located as predominantly defined by its aesthetic/landscape qualities rather than by its built environment.
(b)failing to have proper regard to the relevant assessment criteria in the AUP; and
9 C Connor v Auckland Council, above n 1, at [135].
10 At [136].
11 AUP, at D18.8.2.1(1)(c)(vi).
12 C Connor v Auckland Council, above n 1, at [145].
(c)failing to take into account the precedent effect of its decision.
The legislative and regulatory framework
Resource Management Act 1991
[11] Both the demolition of the existing dwelling and construction of the replacement dwelling require resource consent as RDAs under the AUP. The Resource Management Act 1991 (RMA) provides the necessary statutory framework.
[12] Section 77A establishes the power of local authorities to categorise activities into different classes, including RDAs, through rules in plans or proposed plans. When classifying an activity as in the RDA category, s 77B(4) requires the local authority must specify in the rule the matters over which it has restricted its discretion.
[13] The core characteristics of RDAs are set out in s 87A(3). Under this subsection:
(a)a resource consent is required for the activity;
(b)the consent authority’s power to decline or grant consent (and impose conditions) is “restricted to the matters over which discretion is restricted”; and
(c)if granted, the activity must comply with any requirements, conditions and permissions specified in the RMA, regulations, plan or proposed plan.
[14] Section 104 identifies what any consent authority must have regard to when considering an application under the RMA. Namely:
104 Consideration of applications
(1)When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2 and section 77M, have regard to—
(a)any actual and potential effects on the environment of allowing the activity; and
(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and
(b)any relevant provisions of—
(i)a national environmental standard:
(ii)other regulations:
(iii)a national policy statement:
(iv)a New Zealand coastal policy statement:
(v)a regional policy statement or proposed regional policy statement:
(vi)a plan or proposed plan; and
(c)any other matter the consent authority considers relevant and reasonably necessary to determine the application.
[15] In respect of RDAs, specific provisions apply. These are set out in s 104C. The EC described this section as “includ[ing] additional matters relevant to the determination of applications for restricted discretionary activities”.13 More accurately, they are both additional and limiting. The section provides:
104C Determination of applications for restricted discretionary activities
(1)When considering an application for a resource consent for a restricted discretionary activity, a consent authority must consider only those matters over which—
(a)a discretion is restricted in national environmental standards or other regulations:
(b)it has restricted the exercise of its discretion in its plan or proposed plan.
(2)The consent authority may grant or refuse the application.
(3)However, if it grants the application, the consent authority may impose conditions under section 108 only for those matters over which—
(a)a discretion is restricted in national environmental standards or other regulations:
13 At [25].
(b)it has restricted the exercise of its discretion in its plan or proposed plan.
[16] In short, the consent authority’s power to grant or refuse the application must be exercised within the confines of the restricted matters. Each must be carefully analysed. No extraneous discretionary considerations may be brought to hear.
The AUP—overview
[17] The relevant matters of discretion are identified in the AUP (which also employs assessment criteria) and will be discussed below. 14
[18] While the identified matters of discretion and the related assessment criteria provide focused guidance, it is accepted by all parties that they cannot be considered in isolation from the broader AUP framework. As the EC observed in Edens v Thames-Coromandel District Council:15
There can be no proper understanding of the matters of discretion and associated assessment criteria in a plan unless there is an understanding of the plan's objectives and policies in relation to those matters.
[19] This aligns with the structured hierarchy of provisions in the AUP governing both the establishment of the special character areas and the assessment of proposals within established special character areas.
[20] A1.7.3 of the AUP provides a brief description of restricted discretionary activities. This largely reflects ss 87A and 104C of the RMA but adds the following:
Activities are classed as restricted discretionary where they are generally anticipated in the existing environment and the range of potential adverse effects is able to be identified in the Plan, so that the restriction on the Council’s discretion is appropriate.
[21] All parties accept that although an RDA engages a less stringent assessment pathway than a non-compliant activity, the fact that restricted discretionary activities
14 The council says that not all plans employ assessment criteria but they are “a fairly common method”.
15 Edens v Thames-Coromandel District Council [2020] NZEnvC 13 at [120]. Indeed in this case the assessment criteria in AUP, at D18.8.2.1 specifically invoke D18.8.2.1(1)(a) and the policies D18.3(1)–(7) previously referenced.
are “generally anticipated” in the existing environment does not mean that all such applications should be granted as a matter of course.16
The Regional Policy Statement provisions in the AUP
[22] At the Regional Policy Statement (RPS) level, the AUP deals, in chapter B5, with both historic heritage and special character. It differentiates between the two by explaining that:17
The attributes of the character and amenity values and the environmental quality of a special character area, including buildings and streetscape, might be derived from its historical legacy without being historic heritage.18
[23] In Southern Cross Healthcare Ltd v Eden Epsom Residential Protection Society Inc, the High Court accepted the distinction in chapter B5 between historic heritage (protected) and special character areas (maintained and enhanced).19
[24] B5.1(3) says that “[a]reas with special character should be identified so their particular character and amenity values can be maintained and enhanced.” For special character areas, the RPS contains one objective only: “[t]he character and amenity values or identified special character areas are maintained and enhanced.”20
[25]The subsequent Policies at B5.3.2 address both:
(a)the identification of special character areas (Policy B5.3.2(1)–(3));
(b)the ways in which character and amenity values are to be maintained and enhanced in identified special character areas (Policy B5.3.2(4)).
16 AUP, at A1.7.3; and Port of Tauranga Ltd v Bay of Plenty Regional Council [2023] NZenvC 270 at [582].
17 At B5.4.
18 Streetscape is a defined term in the AUP meaning: “The visual elements of a street, including the road, footpaths, trees, landform, open space and interface to adjoining buildings that combine to form the street’s character.”: see AUP, ch J.
19 Southern Cross Healthcare Ltd v Eden Epsom Residential Protection Society Inc [2023] NZHC 948 at [127].
20 AUP, at B5.3.1(2).
[26]Policy B5.3.2(4) provides:
Maintain and enhance the character and amenity values of identified special character areas by all of the following:
(a)requiring new buildings and additions and modifications to existing buildings to maintain and enhance the special character of the area;
(b)restricting the demolition of buildings and destruction of features that define, add to or support the special character of the area;
(c)maintaining and enhancing the relationship between the built form, streetscape, vegetation, landscape and open space that define, add to or support the character of the area;
(d)avoiding, remedying or mitigating the cumulative effect of the loss or degradation of identified special character values.
The District Plan provisions in the AUP
[27] The higher order objectives and policies in the RPS are then implemented at the District Plan level through:
(a)the provisions in AUP, D18: Special Character Areas Overlay; and
(b)the special character schedule, statements and maps in Schedule 15.
[28] I accept the submission of the Council that although the RPS provisions provide context and “lend colour” to the interpretation of the District Plan provisions,21 the specific assessment framework in D18 provides the primary basis for the evaluation of RDA applications for demolition and rebuilding of properties affected by the special character overlay. It is therefore necessary for me to identify these in some detail.
[29]D18.1 provides background to the SCAO. It says that it:
seeks to retain and manage the special character values of specific residential and business areas identified as having collective and cohesive values, importance, relevance and interest to the communities within the locality and wider Auckland region.
[30]It explains that:
21 Adopting the approach in Housing New Zealand v Auckland Council [2018] NZenvC 186 at [150].
Each special character area is supported by a Special character area statement identifying the key special character values of the area. Assessment of proposals for development and modifications to buildings within special character areas will be considered against the relevant policies and the special character area statements and the special character values that are identified in those statements. These values set out and identify the overall notable or distinctive aesthetic, physical and visual qualities of the area and community associations.
[31]D18.2 sets out the objectives. They are:
(1)The special character values of the area, as identified in the special character area statement are maintained and enhanced.
(2)The physical attributes that define, contribute to, or support the special character of the area are retained, including:
(a)built form, design and architectural values of buildings and their contexts;
(b)streetscape qualities and cohesiveness, including historical form of sub-division and patterns of streets and roads; and
(c)the relationship of built form to landscape qualities and/or natural features including topography, vegetation, trees and open spaces.
The adverse effects of sub-division, use and development on the identified special character values of the area are avoided, remedied or mitigated.
[32] D18.3 in turn sets out the relevant policies. Paragraphs (1)–(7) only are relevant to the current appeal:
D18.3. Policies
Special Character Areas Overlay - Residential
(1)Require all development and redevelopment to have regard and respond positively to the identified special character values and context of the area as identified in the special character area statement.
(2)Maintain and enhance the built form, design and architectural values of the buildings and the area, as identified in the special character area statement, so that new buildings, alterations and additions to existing buildings, infrastructure and subdivision (where applicable):
(a)maintain the continuity or coherence of the identified special character values of the area;
(b)maintain the streetscape qualities and cohesiveness;
(c)respond positively to the design, scale, height, setback and massing of existing development, any distinctive pattern of
subdivision, intensity of development, its relationship to the street, streetscape cohesiveness and is of a compatible form which contributes to the identified special character values of the area;
(d)maintain the relationship of built form to open space and landscape context;
(e)maintain the setting of the special character area, where these features, such as mature trees and landform, contribute to the special character values of the area;
(f)enable the removal of additions and features that detract from the special character of the building or identified special character of the wider area;
(g)minimise the loss of built fabric and encourage maintenance and repair;
(h)require new materials to be compatible with the age, detailing, finishes and colour; and
(i)recover or reveal special character values of buildings and features.
(3)Discourage the removal or substantial demolition of buildings that contribute to the continuity or coherence of the special character area as identified in the special character area statement.
(4)Require any application for demolition or removal of a building in a special character area to, on its own or cumulatively as a result of other removals or demolition, demonstrate that the loss of the building:
(a)would not erode the identified special character values of the area; and
(b)would not disrupt the cohesiveness of the streetscape and wider special character area, including links with scheduled historic heritage places.
(5)Encourage the on-going use and maintenance of buildings in special character areas.
(6)Manage the design and location of car parking, garaging and accessory buildings to maintain and enhance the streetscape and special character values of the area, as identified in the special character statement.
(7)Encourage the retention of special features such as boundary walls, fences, paths and plantings that contribute to the character of the area.
[33] The activity table at D18.4.1(A3) then identifies demolition (exceeding 30 per cent or more by area of wall elevations and roof areas) of, inter alia, “all other sites identified as subject to demolition removal or relation rules”, as a RDA. This
includes the property at 22 Crescent Road. I note however that this property is caught in the “catch all” provision of D18.4.1(A3)(b). D18.4.1(A3)(a) identifies four particular special character areas which appear singled out for particular reference.
[34] The matters of discretion necessarily identified for the purposes of s 87A and 104C of the RMA are contained in D18.8.1. Relevantly these provide:
D18.8.1. Matters of discretion
The Council will restrict its discretion to all the following matters when assessing a restricted discretionary resource consent application.
D18.8.1.1. Special Character Areas Overlay - Residential
(1)For the total demolition or substantial demolition (exceeding 30 per cent or more, by area, of wall elevations and roof areas); or the removal of a building (excluding accessory buildings) from a site; or the relocation of a building within the site:
(a)the effects on the streetscape and special character context as outlined in the special character area statement;
(b)the integrity of the building in its current state, having regard to its architectural form and style and the authenticity of its component parts as well as its contribution to the streetscape character;
(c)the building's relationship to other adjacent buildings, and if it contributes to a group in such a way that its loss or relocation would result in the loss of a character value attributable to the group;
(d)the condition of the building, and the practicality and cost of any necessary rehabilitation, and the ability to achieve reasonable amenity for occupants and reasonable compliance with any requirement of the Building Act 2004;
(e)where a replacement building is proposed, its design, quality, purpose and amenities and the contribution that such as building might make to the qualities of streetscape character; and
(f)the effect on landscape and vegetation.
(2)for external alterations or additions to buildings; or for the construction of a new building or the relocation of a building onto a site:
(a)the effects on the streetscape and special character context as outlined in the Special Character Area Statement;
(b)the building and its contribution to streetscape character; including its design, quality, purpose and amenities including matters of scale, form, massing, materials, setbacks and the relationship to the street; and
(c)the effects on landscape and vegetation.
[35] In turn, the AUP sets out, at D18.8.2, various assessment criteria for exercise of the discretion:
D18.8.2. Assessment criteria
The Council will consider the relevant assessment criteria below for restricted discretionary activities.
D18.8.2.1. Special Character Areas Overlay – Residential
(1)For the total demolition or substantial demolition (exceeding 30 per cent or more, by area, of wall elevations and roof areas); or the removal of a building (excluding accessory buildings) from a site; or the relocation of a building within the site:
…
(a) Policies D18.3(1) to (7); (c)
for Special Character Areas Overlay – Residential : Isthmus B and Residential : Isthmus C:
(i) whether the special character and architectural value of the existing building (irrespective of age) and its contribution to streetscape character warrants its retention;
(ii) whether the special character value of the building by reference to its architectural style, whether as an exemplar of the type or as being representative of the type warrants its retention;
(iii) whether the integrity of the building in its current state, having regard to its architectural form and style and the authenticity of its component parts warrants its retention;
(iv) whether its relationship to other adjacent buildings and whether the contribution it makes to a group of buildings is such that its loss would result in the loss of a character value attributable to the group;
(v) whether its contribution to streetscape character by reference to surrounds within the site, and/or to the
public street, and/or to relationships to open space shared with adjacent buildings warrants its retention;
(vi) whether the practicability and cost of any necessary rehabilitation, and the inability to achieve reasonable amenity for occupants and reasonable compliance with any requirement of the Building Act warrants its demolition;
[36] I accept CCI’s and the Council’s submission that, although there is no formal hierarchy within the assessment criteria, careful attention must be paid to the specific language used, the several criteria should be separately assessed and decisions must fairly reflect the broad intent of the drafters, which will include reference to relevant objectives and policies as otherwise identified in the AUP.22
[37] Each of the D18.2.1 objectives, the D18.3(1)–(3) policies and the D18.8.1.1(1)(a) and (2)(a) matters of discretion, reference the AUP’s “special character area statement”.23 Not all references are in identical terms as is apparent from the previous citations. Sometimes the reference is to the special character “values of the area, as identified in the special character area statement”.24 On other occasions it is to the effect “on the streetscape and special character context”.25
[38] The special character statement appears as Schedule 15 to the AUP. There are associated maps.
[39]Schedule 15 commences with general information identifying:
(a)What can be expected of the character statement—"a summary of the special character values and physical and visual qualities for each special character area and how these elements interrelate and contribute to the predominant character of that area.”
(b)The purpose of the special character areas overlay—“to retain and manage the character of traditional town centres and residential
22 A position consistent with Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201 at [79] and East West Link Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency [2024] NZSC 26, [2024] 1 NZLR 26 at [79]–[91].
23 The phrase is capitalised in AUP, at D18.8.1.1(2)(a) but not otherwise.
24 See for example at D18.2(1).
25 See for example at D18.8.1.1(1)(a).
neighbourhoods by enhancing existing traditional buildings, retaining intact groups of character buildings, and designing compatible new building infill and additions that … reinforce the predominant streetscape character.”
(c)That it is a combination of elements, including, urban structure, buildings and their relationship to one another, the street and open spaces which result in the special character of identified areas. The character of each area is said to include historical context, physical and visual qualities, built form, architectural values, urban structure including streetscape, vegetation and landscape characteristics.
[40] The SCAO (Isthmus B) covers 13 special character areas, all with associated maps. These are as divergent as Remuera, Kohimarama, Mission Bay and St Heliers as well as parts of Herne Bay, Parnell, Mt St John, One Tree Hill, Mt Eden, Epsom, Mt Albert, Mt Roskill and Ōtāhuhu.
[41] Predictably, given the wide variety of built development across these various areas, the summary of special character values which inform the Isthmus B overlay is expressed at a high level of generality. In terms of historical context, it notes “[t]he area collectively reflects an important aspect, or is representative, of a significant period and pattern of community development within the region or locality.”26
[42] As to physical and visual qualities it notes: “[t]he area collectively reflects important or representative buildings, types, designs, styles, methods of construction, materials and craftmanship, urban patterns, landscape and streetscape qualities.”27
[43] In relation to built form, it recognises that a variety of architectural forms/scale are evident throughout the overlay area with variations in the set back of houses often with generous landscaped front gardens as well as street trees.28 It notes that there is a variation on the degree of visual coherence evidenced in parts of the area, that within
26 AUP, Schedule 15 at 15.1.7.3.2.
27 At 15.1.7.3.2.
28 At 15.1.7.3.3. The relevant homes were typically constructed from the late 19th century to the 1940s.
particular areas there is consistency in subdivision pattern and lot sizes, density and rhythm in the positioning of the houses, age and style of housing as well as the scale, materials and forms generally, but that in other parts, there is less visual coherence with more recent housing interspersed among the historic housing.
[44] In respect of architectural values, it identifies that the overlay area reflects a range of residential architectural styles including Victorian and Edwardian villas, transitional villas, arts and crafts, English cottage, Neo-Georgian and Moderne style houses as well as examples of bungalows and state housing from the 1930s and 1940s.29 It notes that within the overlay area, the age and style of housing is very consistent in some areas while others show greater variation.
[45] In respect of streetscape, it recognises that lot sizes vary, ranging from regular lots of around 600–800 m² to a varied range of larger lots and that the character of individual streets “is determined by the built form and its relationship to the street, gardens and fencing as well as the layout and design of the street itself.”30 It notes that in areas with wider streets, this permitted grass berms be formed and street trees to be planted.
[46]Finally, in relation to vegetation and landscape characteristics it notes:
An abundance of planting is generally evident throughout many parts of the area with variety in terms of vegetation and landscape characteristics. Moderate and larger lot sizes provide for front yards in a range of depths, which often incorporate trees and shrubs. Grassed berms and street trees in many streets throughout the area give the area a well vegetated character.
The Environment Court decision
[47] The EC identified the subject property as falling within a distinct special character sub-area comprising the “spur” from the final corner on Crescent Road and “leading directly to Cornwall Park/Maungakiekie”.31
29 At 15.1.7.3.4.
30 At 15.1.7.3.4.
31 C Connor v Auckland Council, above n 1, at [56]. This being on the northern side of the street numbers 18–26 Crescent Road and on the southern side numbers 9–23.
[48] It recognised particular characteristics relevant to this sub-area which distinguished it from the balance of the area depicted in the Special Character Areas Overlay – Residential: Isthmus B – Epsom map, noting however that similar characteristics could be observed at the eastern end of Golf Road.32
[49] It said that the panel was unanimous in its conclusion that as one turns into eastern spur of Crescent Road, the first view is of the obelisk and the maunga with its steep sides rising up through the tops of an olive grove and that this view, enhanced by the large street trees including pūriri and pōhutukawa, and the wide berms and footpaths with buildings on each side of the road, “guides us immediately to the focal point and the dominance of the maunga in relation to these sites.”33 It considered “the large variety and styles of building on each side of the berm [to be] subservient to that dominant view and character.”34
[50] It noted also that there was a wide range of building styles and types within the subject area, and that all appeared to have been renovated (including the subject property to which a large extension was added to the northern side of the dwelling in 1995).35 It said:36
it is the very eclectic nature of both the construction styles and their relationship to the road space and maunga, which creates the visual interest of the buildings in this area. Put in landscape terms, we have concluded that this area is able to absorb non-confrontational construction to a relatively high extent. By non-confrontational we mean buildings that are sympathetic to the style of the area while not necessarily being replicas or imitative of existing style.
[51] It rejected the proposition that special character areas were comprised solely of “built character”.37 It said that any such construction would be contrary to the RPS in the AUP. It referenced the Court’s earlier decision in Latimour v Auckland Council that special character may be evaluated at a local level and should be considered holistically and not on an elemental basis, noting the observation in that case that it is
32 At [56]–[57].
33 At [61]–[62].
34 At [62].
35 At [66]. Number 22 is located on northern side of the spur with the result that the 1995 additions are not visible from the street.
36 At [67].
37 At [103].
“the blend of built and natural features and often the relationship of those to the street and viewing areas which are of importance”.38
[52] It noted that there was no special character statement for the Crescent Road spur, nor indeed for any of the areas depicted in “Map 3”, and it was therefore the Court’s task to “generate, from the statement and assessment of the area, those special character values that give it its sense of place”.39 This did not mean that “every property within every special character area will exhibit all of the qualities of Schedule 15” and “[n]o witness suggested they would.”40 To that end:41
To isolate only the building characteristics and ignore other values in our view is also a misplacement of the provisions of the Plan, which is intended to cover a range of situations.
[53] It referenced the imposition of a demolition control on identified properties within any special character area as something “placed on a cautionary basis” requiring evaluation of the special character values “at a finer grain if and when demolition consent was applied for”.42 It noted that this did not mean “the provisions of the plan become a checklist, or that the building values become essential to every application. It will depend on the particular special character values of the area.”43
[54] It then discussed the matters of discretion relevant to any restricted discretionary activity application within the identified special character area noting that these were contained in the Policies D18.8.1 and D18.8.2.1(1)(c) of the AUP. It said that having regard to the principles in D18.8.2.1(1)(c), the question in this case was one primarily relating to the contribution of the building to the special character values which it had earlier identified and which it regarded as being “relatively clear” and “undisputed” on the evidence.44
[55] It said that in respect of D18.8.2.1(1)(c)(ii) there was a danger in reading the provision “as though it is an examination simply of whether the architectural style
38 At [104] citing Latimour v Auckland Council [2013] NZEnvC 117 at [18]–[19] and [36]–[38].
39 At [112].
40 At [112].
41 At [112].
42 At [114].
43 At [115].
44 At [118]–[119].
means that it warrants retention.”45 It said that this had the capacity to divert attention away from the core issue which was the special character values of the area. It concluded in this respect that:
[121] We consider that these provisions can have meaning provided they are understood in the context that the character values of the building are only contributors to the special character values of the area.
[56] In respect of criterion D18.8.2.1(1)(c)(iii), it noted that the integrity of the building and its current state was in issue.46 It pointed out that the sketch drawing provided by the architect for the residents’ group “simply moves the garage under the house”, but did not achieve any of the other outcomes desired by Ms Connor.47 It considered her proposal to include garaging at 90 degrees to the street and at the front of the proposed new home to be “in accordance with the same type of structure provided on other properties and better than the direct access to the road provided on [other identified] properties”.48
[57] In respect of criterion D18.8.2.1(1)(c)(iv), it referenced its earlier identification of the eclectic nature of the buildings in the area “and that this together makes up a contribution, as sentinels on the sides of the avenue to the park entry.”49
[58] It said that it could see nothing from either internal or external inspection which indicated that the existing house represented anything other than a typical example of a Californian bungalow albeit in “lower than average condition”.50 It noted Ms Connor’s evidence about significant problems with leaking leadlights and roof, black mould, failing pipes and the like.51 It also considered that:52
[130] It is clear that the mere fact this property is a Californian bungalow does not qualify it as having special character, and as we have already concluded the special character of this area is not derived from that typology or this particular building.
45 At [120].
46 At [122].
47 At [123].
48 At [125].
49 At [126].
50 At [128]–[129]. This is said to be represented “many hundreds of times in the near area” and without any special characteristics that “leads us to the view that the building should, of itself, be retained.
51 At [129].
52 Emphasis original.
[59] In respect of D18.8.2.1(1)(c)(v) (contribution to streetscape character), there was no specific reference in this section of the judgment. However, the earlier extended discussion about the particular qualities which defined the relevant character sub-area must be taken as having informed the Court’s assessment on this point.53
[60] As to D18.8.2.1(1)(c)(vi), it noted the evidence of the architect engaged by the resident’s group that the rehabilitation of the original dwelling (excluding the 1995 addition), involved, essentially, gutting and rebuilding the interior and could be expected to cost the order of $750,000.54 It considered this estimate to be conservative. It regarded Ms Connor’s concerns about the uncertain costs of such a renovation as justified when compared to the more certain costs of a new build.55 It also noted her evidence that if she thought she was able to renovate the property to deliver a reasonable level of amenity, she would have done so. It referenced her particular requirements based on the needs of her daughters and increasingly infirm parents.56 It also considered her spatial requirements and expectations of amenity to be “in this day and age … entirely reasonable” and expressed “surprise” at the suggestion by some objectors that they were not.57
[61] This in turn led the EC to the final relevant criterion in D18.8.2.1(1)(c)(vii). It said that the proposed replacement building was one which it was again surprised had generated adverse comment by residents given the extent to which many other homes in the immediate locality had been heavily remodelled and with a wide range of architectural responses.58 It also considered that the proposed building “will not be seen as offensive to people visiting the area in a streetscape sense.”59
[62] It expressed the view that it was not the intention of the plan provisions to allow neighbours to re-design other people’s buildings to better suit objectors, and that, to the extent that there was disagreement between the experts, said it preferred the conclusion of Ms Connor’s expert, Mr Wild, that the proposed dwelling was of
53 At [59].
54 At [132].
55 At [135].
56 At [137]–[138].
57 At [139]–[140].
58 At [144].
59 At [144].
design and quality that was sympathetic and responded positively to the surrounding streetscape.60
[63] Accordingly, the EC considered it appropriate to exercise its restricted discretionary decision making authority to grant both the application for demolition and application to construct a new dwelling, subject to the conditions attached to the judgment.61
Discussion
Introduction
[64] I start with some high-level observations. The overall objective of the SCAO is, as observed already, that the special character values of the area, as identified in special character area statement in Schedule 15 of the AUP, are maintained and enhanced.62 It is not focused on the preservation of specific buildings, and applications for resource consents for restricted discretionary activities (such as demolition within the SCAO) ought not to be conflated with the consent pathway necessary for demolition of a scheduled heritage building. I accept that there is a significant difference between non-complying activities (which is the case with demolition of certain heritage buildings scheduled in the AUP) and demolition of a building within the SCAO which, although “discouraged” can, when conducted in accordance with the provisions of the AUP read as a whole, be consistent with it.
[65] I accept that the relevant matters of discretion identified in D18.8.1 and associated assessment criteria in D18.8.2.1 (the latter invoking the policies in D18.3(1)–(7)) place significant emphasis on buildings. This occurs at various levels—the individual building’s architectural merit, integrity and authenticity, its group contribution, its physical condition and rehabilitation potential and its contribution to streetscape character. I accept the Council’s position that the function of the provisions is to control the demolition of buildings which contribute to the values of special character areas.
60 At [145] and [151]
61 At [161]. The Environment Court noted that the conditions may be amended, with the final form to be approved by the Court: see at [167].
62 See above at [3].
[66] Nevertheless, in a discretionary environment, absent a clear focus on the specific values that are being protected in any given area, the matters for discretion reserved to the consent authority and the associated assessment criteria cannot be appropriately applied. The danger is in elevating the overall objective to that of protection of individual buildings when it is the special character values of the area and the contribution to these which the buildings make which is the ultimate focus.
[67] That said, it has to be acknowledged that the Council has already undertaken a mapping exercise reflected in Schedule 15 which identifies particular buildings that are subject to demolition control. Number 22 Crescent Road is one of hundreds of such buildings across the city. In considering the RDA application the EC was obliged to take this listing as it found it and to determine whether demolition was appropriate in the particular circumstances, applying the relevant matters of discretion in D18.8.1, the assessment criteria in D18.8.2, all within the context of Schedule 15, the D18.3 policies and the RPS.
Identification of special character
[68] Because the ultimate objective is to maintain and enhance the special character values of identified areas, the EC, in my view, sought appropriately to first identify the broad geographical limits of the special character area it was concerned with and the characteristics of that area which best exemplified it. Clearly, the SCAO provides the starting point, but I agree with the EC that, because of the generality of that document (applying as it does to a wide variety of Auckland suburbs with very different housing stocks), this could only ever be the start of the relevant inquiry.
Indeed, as the EC said:63
[50] In this regard, the statement of character is so broad that it could apply to all areas whether they are listed as special character or not. There is no explicit way in which Schedule 15 identifies the degree, percentage, or what particular level of presence of the features is required …
[69] Number 22 Crescent Road is identified at 15.1.7.3.1(3) (being Map 3) of Schedule 15. Generally, this depicts the area on the western flank of Maungakiekie/One Tree Hill centred around Manukau Road. However, as the EC
63 C Connor v Auckland Council, above n 1.
noted, even within this local area, there was a relatively diverse range of properties with neither Schedule 15 nor Map 3 giving adequate guidance as to why particular areas depicted on the map were considered to have special character.64
[70] Guided by the expert evidence (and in particular that Mr Speer, an expert called by Heritage New Zealand) it concluded that, only by drilling down into the characteristics of individual sub-areas could it establish an appropriate benchmark against which to assess the application.65
[71] That approach cannot, in my view, be criticized. Nor do I understand CCI to do so. Its argument is that, in identifying the essential characteristics of the relevant sub-area, the EC allowed itself to become preoccupied with general aesthetic considerations to the exclusion of proper emphasis on the built form. Essentially it says that the EC was not permitted within the relevant regulatory framework to conclude that the special character of the particular area it was concerned with—the short part of Crescent Road leading directly to Cornwall Park/Maungakiekie—was essentially derived from “the sense of being led into Cornwall Park to the grove of olive trees and the obelisk itself” or that “the large variety of styles of buildings on either side of the berm [were] subservient to that dominant view and character”, or as the EC ultimately summarised:66
[88] It is important that we note here, given the evidence given to this Court by several of the parties, that areas may, in fact, be Special Character Areas because of their aesthetic quality. In our view, there is no doubt that the eastern spur of Crescent Road is distinctive because of its aesthetic qualities, particularly the views towards the maunga, the olive grove and Cornwall Park itself, the wide berms, street trees and the sentinels represented by the buildings leading to that entry. It is not the aesthetic quality of the individual buildings itself, but rather their support and contribution towards those values.
[72] The AUP framework requires careful consideration of both built and landscape elements in assessing the special character. The matters of discretion explicitly require consideration of landscape and vegetation (D18.8.1.1(1)(f)). This reflects the fact that special character values derive from exchange of both built and landscape elements,
64 At [51].
65 At [56] and [59].
66 At [57] and [62].
albeit that the demolition control provisions necessitate appropriate emphasis on the role of buildings within the wider setting.
[73] The appellant says that the Court failed to take into account the “obvious importance of the buildings in creating the special character of the area”. It’s notice of appeal suggests that the Court identified typography and relationship to Maungakiekie as “the defining special character value of the area” and in doing so “dismiss[ed] and/or downplay[ed] the contribution of the buildings and/or built character to the special character of the area”.
[74] Counsel for Ms Connor describes these submissions as creating a series of “straw men” by paraphrasing the Court’s findings and says that when careful attention is paid to what the EC actually said, and the evidence it relied on, no error exists. He says that appropriate emphasis was placed on the built environment but that in this particular locale the quality of the individual buildings was less significant than the view shaft (itself framed by the buildings) the wide berms and the mature street trees.
[75] I consider this a fair assessment of the EC’s decision. It did not, as CCI suggests in its submissions, consider the buildings simply to compliment “the views towards the olive grove and Cornwall Park itself.”67 Its position was that “the average person would see these buildings as complimenting the views towards the olive grove and Cornwall Park itself.” It noted that the “large variety and styles of buildings on either side of the berm are subservient to that dominant view and character.”68 It said that “the adverse effects of any activity in the area would be only those that would confront that natural dominance by either affecting the views towards the maunga, the views of the trees, the berm or the house frontages.”69 It noted the “wide range of building styles and types” as well as the extent of renovations and the location of garaging, pointing out, as previously noted, that it was the very eclectic nature of both the construction styles and the relationship to the road space and maunga which created the visual interest of the buildings in the area.70
67 At [64].
68 At [62].
69 At [63].
70 At [66]–[67].
[76] Its key conclusions were at [88] (already noted) and [89].71 The latter providing:72
[89] While we acknowledge that there is an aspect of building character, because it is a part of a wider area, Gardner Road and the balance of Crescent Road is more representative in that sense. This Crescent Road spur area has particular values based on the aesthetic values we have identified. We have already noted that we consider the end of Gold Road beyond the inflection towards the Park also has those values rather than values simply in terms of legacy buildings.
[77] Later in the judgment the Court recognised that it was incorrect to say that all Special Character Areas comprise of “are buildings” acknowledging that, in this particular case, although the built form was a “contributor” to the special character values of the area, they did not of themselves define it.73
[78] I agree with counsel for Ms Connor that, read together, these statements evidence a consent authority which gave careful consideration to the role of buildings in “defining, contributing to or supporting”74 the special character values of the “spur”. However, the EC placed greater weight on identified aesthetic values as making a stronger contribution to the special character of this particular area than the buildings.
[79] In my view, there is no error of law in such an approach. It is consistent with the approach adopted by the EC in the broadly analogous context of the Council’s former proposed special character provisions in the “Residential 2” zone, and in particular, its conclusion that “it is the blend of built and natural features and often the relationship of those to the street and viewing areas which are of importance.”75
[80] The RPS and District Plan provisions, including particularly Schedule 15, provide a framework which, in my view, maintains that flexibility. Particularly in the context of specific provisions which discourage but do not prohibit demolition and reconstruction, the EC was, in my view, correct to attempt identification of the extent to which the relevant building contributed to the special character values in the specific
71 See above at [71].
72 Emphasis added.
73 At [121].
74 Adopting the phraseology in the RPS B5.3.2 4(B).
75 See Latimour v Auckland Council [2013] NZEnvC 117 at [19].
area concerned. To do so it had to identify those values, recognising that the built environment must factor, and factor significantly in the calculus, but that ultimately it is the special character qualities of the area which governed. Conceivably, as the EC found in respect of this particular sub-area, the built environment simply supports and contributes to a set of transcendent area values. If that is the case then there will likely be implications for the exercise of a discretion which permits an activity otherwise discouraged—demolition of a building within the built environment.
[81] In identifying these transcendent values there was a significant body of expert evidence on which the EC could rely, including that of Archifact founding director Mr Wild (called by Ms Connor), the Council’s special character expert, Mr Howse, and the opponent’s special character witness, Ms Byron.76
[82]For example, in rebuttal, Mr Wild stated:
At his paragraph 51, Mr Speer identifies a number of attributes recognised in Schedule 15 of the AUP as contributing to special character values, but he is selective in doing so, focusing on those attributes that are generally concerned with the built condition and character. What distinguishes the special character of the subject area more than any other factor is its relationship to the maunga as many of the submitters have recognised themselves. In the particular sub-area of Crescent Road within which the subject site lies, it is also the character of the maturing street trees that also distinguish this area.
[83] Even Mr Speer recognised the importance of view shaft in defining the area values, and the somewhat subservient role of the buildings.
Q. You’d accept [that] viewed from the public realm and in particular from the street the dominant feature in that area is the maunga. And I am talking about the Crescent Road, the eastern end of Crescent Road that maunga is a predominant feature.
A. Absolutely, you look up the road and you can’t miss it. It’s sort of one of those classic views of among them, with the spire on the top. So yes indeed. And then as you have explained you add in the other layers of the trees and the berms, the walls as I’ve explained and I think as a backdrop, the houses to the views most of which are visible at one point or another.
[84] As to the eclectic nature of lot size and construction styles, the following exchange occurred with Ms Byron:
76 Noting however that Mr Howse and other special character witnesses differed on the extent to which the existing dwelling could be said to have contributed to the character of the area.
Q. … So I just want to now take us back a little bit. So in this case, we pick up the special character from the general statement of 15, but only some of those would apply to the local area we've got here. The question of consistency of section sizes may be true in Gardener Rd, but it isn't true at this end of Crescent Rd, is it?
A. No, I suppose not.
Q. And consistency of building style is not true at the top of Crescent Road, although it's more consistent at the bottom because there are many, many different styles. The only two buildings that look to be similar or near the same are 22 and 24.
A. That's correct, and that's typical of that era that they wouldn't necessarily—
Q. Well, it may be, but it's the very eclectic nature of the use of brick, what I would call late Californian bungalow, which is the Colbert property and the one at 9, the transitional villas and in fact ones that appear to have been villas themselves, probably built around the turn of the century or a little later, such as the Barrow property and the other one opposite at about 17 or 15, the large villa set back on the site. There's quite an eclectic mix which creates interest, and you agree?
A. I do agree.
[85] In combination, the evidence of Mr Speer and Ms Byron of itself justified the EC’s reference to the “eclectic nature of the buildings in this area and that this together makes up a contribution, as sentinels on the sides of the avenue to the park entry.77
[86] Ultimately, it was for the EC based on its own assessment of the evidence, informed by its specialist expertise and assisted by its site visit, to identify whether individual buildings defined or simply supported the relevant character values. Provided there was proper consideration of the overall role which the built environment played, it is not for this Court to revisit that assessment. I consider such consideration to have occurred.
[87]The first of the grounds of the appeal identified in [10] above therefore fails.
Exercise of the discretion—application of assessment criteria
[88] I have already identified that there was a requirement on the part of the EC to consider each of the matters of discretion identified in D18.8.1.1(1) and (2) and the
77 C Connor v Auckland Council, above n 1, at [126].
associated assessment criteria in D18.8.2.1(a) and (c). Although in the East West Link case, the Supreme Court was concerned with objectives and policies rather than matters of discretion, I accept its observation about not simply putting such a list “in a blender” (with the possible effect that stronger policies are weakened, and weaker policies strengthened), is equally applicable to any list of factors stated to circumscribe a council in the exercise of its discretion and to any associated list of assessment criteria.78 That is especially so in this case because the assessment criteria cross-reference the policies.
[89] That said, provided the consent authority appropriately addresses the relevant matters of discretion (and associated criteria), it is not for this Court to substitute what might be its own discretionary assessment. The present case puts that proposition in particularly stark relief given that the assessment was made by a specialist court.
[90] CCI challenges the EC’s assessment on multiple grounds. Firstly, it criticises the Court’s finding that interpreting the relevant policies in D18.379 as being “about built legacy and historic legacy”80 would be contrary to the RPS. However, “legacy including historical” is noted in Policy B5.3.2(2) as only one of the factors relevant to identification and evaluation of special character areas. One of the other identified factors is “physical and visual qualities” which is said to include areas collectively reflecting “important or representative aspects of … landscape or streetscape and urban patterns or are distinctive for their aesthetic quality”.81 As I have indicated, in the absence of any clear statement as to why a particular area has been included in Schedule 15, I regard it as predictable and appropriate that the EC should have endeavoured to define what in this particular case were the predominant values in play.82
[91] I do not consider it can be realistically said that the EC ignored Policy B5.3.2(4)(b) of the RPS. Although this restricts the demolition of buildings “that
78 Royal Forest and Bird Protection Society New Zealand Incorporated v New Zealand Transport Agency, above n 22, at [80].
79 Cross-referenced as noted above in AUP, at D18.8.2.1(a).
80 In context a reference to being exclusively about built legacy and historic legacy.
81 AUP, at B5.3.2(2)(a).
82 See above at [66].
define, add to or support the special character of the area”,83 it also recognises that new buildings will be built requiring them to likewise maintain and enhance the special character of the area. The concept of restricting (and the associated District Plan policy to “discourage”) demolition has within its sufficient elasticity that different outcomes may, in individual cases, be appropriate depending upon whether the individual building defines, adds to, or simply supports the special character values of the area.
[92] In the present case, the EC’s finding, based on its assessment of the expert evidence, was that in the area of the Crescent Road “spur” the individual buildings supported or contributed to the values but did not define them.84 Moreover, where the focus is on contribution only, that must, in terms of D18.3, be to the “continuity or coherence of the special character values of the area”. If there is no particular continuity or coherence in the built environment in the area under consideration, that must also be a relevant factor in the context of any demolition application. As the EC observed, housing in the area is an eclectic mix. Conceptually it is therefore difficult to envisage how of itself any individual building contributes to continuity or coherence of the area.85
[93] Next CCI criticises the EC’s observation that to apply the provisions as if only the buildings were protected would be contrary to the intent of the general policy and wordings. I accept that it is the buildings alone that are subject to the demolition control but again, it is ultimately the special character values of the area which are to be protected.86 In a discretionary context, albeit one discouraging demolition of buildings that contribute to the continuity and coherence of the area, the extent of that contribution and to the identified special character values generally, will always be a relevant consideration. I do not read the EC’s decision as saying anything other than that.
83 Echoing the AUP objective in D18.3(3).
84 C Connor v Auckland Council, above n 1, at [88].
85 If the proposition is that there can be continuity or coherence in discontinuity, it is one I find challenging.
86 The actual phrase in both the RPS and the AUP is “maintained and enhanced”.
[94] CCI then criticises the EC’s reference to the Latimour decision noting that this related to “Plan Change 163” which the independent hearing panel regarded as inappropriate in the AUP. However, the assessment criteria under Plan Change 163 was similar to those now identified in D18.8.2. As I have indicated, the observations in Latimour about it being “the blend of built and natural features and often the relationship of those to the street and viewing areas which are of importance”, in my view, apply equally in assessing special character values under the SCAO and the extent to which demolition of any building detracts from the overriding objective that such values be maintained and enhanced.87
[95] I consider, the Court’s observation that “the provisions are an attempt by the Council to achieve a workable statement that can be subject to assessment in an individual situation” states no more than the obvious.88 As the Council’s submissions confirm, what is ultimately required is a “case-by-case assessment” with each proposal requiring a genuine assessment against all relevant matters of discretion and criteria individually and collectively. Such assessment may result in a range of outcomes and similar proposals may lead to different outcomes in different contexts. Evaluation will only occur at the “finer grain” referred to by the EC at the point a demolition consent is applied for.89 I do not regard the EC’s references to Latimour as suggesting anything different.
[96] Referring to the specific criteria in D18.8.2.1(1)(c), CCI says that the EC did not pay the “careful” attention to each that was required. However, when analysed much of the criticism devolves, in my view, to rejection of the EC’s premise that in particular contexts, of which this was one, the character values of individual buildings were only contributors to and did not ultimately define the overriding character values of the area.
[97] Thus, for example, in respect of criterion D18.8.2.1(1)(c)(i) the EC emphasised that it is not just the special character of the existing building which is an issue but its contribution to the streetscape character.90 In the present case it defined that
87 Latimour v Auckland Council, above n 38, at [19].
88 C Connor v Auckland Council, above n 1, at [114].
89 At [114].
90 At [119].
streetscape character as largely influenced by the view shaft, wide berms and established trees.
[98] In respect of criterion D18.8.2.1(1)(c)(i), it acknowledged that the focus was on whether particular building had special character. Based on the evidence, it considered that 22 Crescent Road was a typical example of a Californian bungalow “represented many hundreds of times in the near area both within and outside Special Character Areas”.91 I accept that there is no requirement that a building be unique or exceptional to warrant retention. In the somewhat tautologous wording of D18.8.2.1(1)(c)(ii) it is sufficient that it be “an exemplar” of the type or “representative” of the type. But as the EC observed, no one (with the possible exception of Ms Byron) suggested that this bungalow alone was the main contributor to the special character values of the area.92 The EC was conducting a discretionary assessment. It was entitled to come to that conclusion on the evidence.
[99] In respect of D18.8.2.1(1)(c)(iii), earlier in its judgment the EC identified that the building had been significantly modified in 1995 by addition of new kitchen, living and master bedroom areas on the northern side.93 I accept that the Court’s discussion around integrity issues could have been more comprehensive. However, in the context of its overall conclusion that the building (whether having integrity or not) was making a limited contribution to the special character values which it identified as predominant, I am not persuaded that any error of law occurred in its analysis.
[100] In respect of D18.8.2.1(1)(c)(iv), CCI criticises the EC’s decision for making no reference to the building’s contribution to the group of houses between 20 and 24 Crescent Road. The Court’s response to this provision was to emphasise the point already made in the judgment about the eclectic nature of the buildings in the area. As a specialist court it was entitled to come to its own conclusions about the contribution of the building to a group and relatedly whether its loss would result in the loss of the character value attributable to the group. I note that Mr Wild regarded 22 Crescent Road to be one of three contiguous bungalows but that he identified
91 At [128].
92 At [121].
93 At [6]–[7].
“a variation in the architectural form and orientation of these similarly-styled dwellings.” Number 20 Crescent Road appears from the photographs I have reviewed to be more in the nature of a transitional bungalow than a Californian bungalow. Number 24 Crescent Road, although having the characteristically large landing and front veranda of a Californian bungalow when built, has since been significantly modified to provide for a narrower entrance and a room on the eastern side.94 In the overall (albeit not blended) assessment that the EC was required to make, it was not an error to conclude that, albeit number 22 shared some attributes with at least one adjoining property, the eclecticism of the built environment in the relevant sub-area meant that criterion D18.8.2.1(1)(c)(iv) did not weigh heavily in the calculus.
[101] In respect of D18.8.2.1(1)(c)(v), I have already indicated that although the EC did not return to the issue in its discussion of what are termed the “matters for discretion on demolition consent”, its expansive discussion about the extent to which the building contributed to the special character of the area must be taken as having informed this part of its analysis.95
[102]As to D18.8.2.1(1)(c)(vi), three components were engaged:
(a)the practicability and cost of any necessary rehabilitation;
(b)the inability to achieve reasonable amenity for occupants in the context of the existing structure; and
(c)the inability to achieve reasonable compliance with the Building Act 2004.
[103] The appellants are correct that the application was not advanced on the basis that the existing dwelling was derelict.96 Nevertheless, the comprehensive Building Condition Report tabled in respect of the dwelling identified significant evidence of water ingress, deterioration to both the long run iron and membrane components of
94 Mr Howse provided comparison photographs from 1959.
95 C Connor v Auckland Council, above n 1, at [116].
96 Or as counsel for Ms Connor colourfully put it in their submissions “liable to fall over in a stiff breeze or spontaneously combust.”
the roof, deterioration of roof underlays, failure of flashings, and timber framings, and rot in window sashes, sills and mullions. Significantly, the opponents own expert architect, Mr Peter Townsend estimated the cost of repiling and renovating the existing 125 square metre original dwelling (that is, excluding the latter addition to the rear) would be in the order of $6,000 per meter, accepting however that once work started its scope could rapidly increase.
[104] The EC considered his estimates conservative and that the addition of under crofting would add at least another $100,000 to Mr Townsend’s $750,000 estimate.97 It also noted that this cost was limited to renovating the area of the original bungalow footprint and that further work would be necessary to extend the building to the rear or by way of “popping the top” to provide the level of amenity which the Court said Ms Connor could reasonably expect in a contemporary context.98
[105] The Court noted Ms Connor’s fear (which on past experience the Court considered well founded) that the ultimate cost of renovation could be higher than the costs of construction of a new home, noting that the rear portion needed to be removed anyway, something built in its place and that the level of deterioration suggested that an entire subframe may be necessary to support any second storey development.99
[106]The following exchanges between the Court and Mr Townsend are instructive:
Q. And the difficulty then is if you have known issues with water ingress, black mould and things of the sort, you’re going to have to sort those issues out, together with electrical, plumbing, reroofing, all of those sorts of issues?
A. Of course you are, and Mr Colbert took us through some of those issues in his own renovation and I’ve experienced them many times over the years. So the 125 square metre house is going to be rewired, replumbed, it will be insulated to the extent you can. It will have new walls and bracing and all sorts of things added to it as part of a renovation in the current environment.
Q. And we're all familiar with the cases that such as the Williams one I quoted in 163 where you start that process and then you find this rot and you have to remove beams and then you find that that's not possible. And as they did in the Williams case, you end up with the floor joist, and about half of those are okay and you've essentially had to reconstruct the entire building.
97 C Connor v Auckland Council, above n 1, at [132].
98 At [74].
99 At [134].
A. You’re describing the experiences of my life, yes.
…
Q. Okay, well that's pretty much what they've got at the moment with the current edition. So essentially the difficulty with those bedrooms is they're too small. I don't think there's one that's there's one that's a reasonable size, but then you've got to use one of the other rooms if you – don't quite know how you do it, but you probably take the other room that's adjacent to it for a bedroom and dressing – a bathroom and dressing room, then you might be able to get one more bedroom and dressing room, although we couldn't quite see how that would be done. There is a bathroom on the other side, so you might get 2 bedrooms, an on suite and dressing room and that's it.
A. Yes. And I would give no one any guarantee that I would leave a wall standing in that existing building.
[107] This evidence more than adequately supported the Court’s conclusion that rehabilitation was not practicable when compared to the more certain cost of a new building.
[108] As to the inability to achieve reasonable amenity for the occupants, CCI relies on Mr Townsend’s evidence that this could (albeit with uncertainties as to cost) be achieved. It says that even allowing for Ms Connor’s specific requirements (that the home have two separate living areas and ensuites and dressing rooms to each of its bedrooms), there was no evidence before the Court that “such an arrangement of internal living spaces could not be achieved with a renovation and extension to the rear”.
[109] But this does not, in my view, give adequate recognition to the significant loss of section amenity which would occur from a large rear addition. Nor in my view does it adequately take into account Mr Townsend’s evidence about what would be necessary to achieve reasonable compliance with the Building Act 2004 or Ms Connor’s unchallenged evidence regarding the need for separate spaces for herself, teenage children and elderly parents. As counsel for Ms Connor points out, the need for physically separate and distinct spaces was not addressed at all by the objector’s suggested redesign, which did little more than demonstrate that a rear addition
(in combination with the existing 1920’s bungalow) could achieve the same floor area.100
[110] In my view, the respective components of D18.8.2.1(1)(c)(vi) must ultimately be considered “in the round”. It cannot have been the intention of the drafters, for example, that irrespective of cost and practicability, applications for demolition be rejected simply because reasonable amenity may be achievable with some alternative approach which retained 70 per cent of the original building. The consent authority is required to take a holistic view balancing the requirements of reasonable amenity, reasonable compliance and matters of practicability and cost. If, as Mr Townsend suggested, reasonable compliance might mean that no wall was left standing in the original dwelling, that must weigh in the balance. Likewise, the associated cost of the rebuild.
[111] In my view, it cannot reasonably be said that the EC did not properly apply the D18.8.2.1(1)(c)(vi) assessment criterion or reach a conclusion to which it was not entitled.
[112] Finally, in respect of criterion D18.8.2.1(1)(c)(vii), the Court noted disagreement between the experts about whether the proposed replacement building made a positive contribution to the qualities of streetscape character.101 It recorded Mr Howse’s view that, even with the removal of the loft originally planned for above the garage, he still had a concern about the bulk and location of that part of the development and the associated concrete driveway.102 In his evidence, Mr Wild’s approach was to look “collectively” at the assessment criteria in order to reach “an informed and balanced understanding of the effects of the proposal in the round”. He considered the proposed new building generally to maintain and respond positively to the existing character values of the streetscape and special character area noting that:103
100 Significantly also the redesign included lifting the home to provide basement level garaging and reconfiguration of the front porch, entrance and associated roof structure all of which significantly altered the appearance of the building’s south facade.
101 C Connor v Auckland Council, above n 1, at [150].
102 At [150].
103 Reflecting his earlier evidence that the existing streetscape “is not strongly coherent and because of the boundary treatment, topography, setback and scale of the existing dwelling, only its
It displays similar form, scale, proportions, and architectural detailing that are influenced and informed by the prevailing built condition and offers greater street ‘presence’ and engagement with Crescent Road than that evident in the existing dwelling.
[113] There can be no criticism of the Court for preferring the evidence of Mr Wild. It said that it agreed with his conclusion that the proposed dwelling was of a design and quality that is sympathetic and responds positively to the surrounding streetscape. It was open to it to do so on the evidence. There was no misapplication of the relevant assessment criterion.
[114]This ground of appeal therefore fails.
Precedent
[115] CCI alleges that the EC erred in law in failing to take into account the precedent effect of its decision. Ms Carruthers says that the issue was raised before the EC but not discussed in the judgment. She anchors her submission in s 104(1)(c) of the RMA and says, essentially, that it was an error of law for the EC to conclude (if that is what it implicitly did) that the precedent effect was not relevant and reasonably necessary to determine the application. She submits that, approaching the criteria in the way the Court did, allows applicants like Ms Connor, who simply desire something new, to demolish special character buildings provided the design quality and amenities of proposed building make a positive contribution to the qualities of streetscape character. She submits that the EC failed to address her submission that this would set a precedent throughout all the special character areas.
[116] As previously noted, s 104(1)(c) provides that in considering a resource consent application the consent authority must have regard to “any other matter the consent authority considers relevant and reasonably necessary to determine the application”.104 In this case, the EC made a specific finding that it was not aware of any particular other matters that it should consider, “especially after the withdrawal of Heritage New Zealand”.105
southwestern corner comprising the central entry porch and adjacent bay window contributed to the streetscape character”.
104 See above at [14].
105 C Connor v Auckland Council, above n 1, at [46].
[117] The authorities establish that in the resource management context there is no requirement to consider precedent effect as such. Ultimately, that derives from the highly fact specific nature of individual applications. So, in Dye v Auckland Regional Council, the Court of Appeal observed: 106
[32] The granting of a resource consent has no precedent effect in the strict sense. It is obviously necessary to have consistency in the application of legal principles, because all resource consent applications must be decided in accordance with a correct understanding of those principles. But a consent authority is not formally bound by a previous decision of the same or another authority. Indeed in factual terms no two applications are ever likely to be the same; albeit one may be similar to another. The most that can be said is that the granting of one consent may well have an influence on how another application should be dealt with. The extent of that influence will obviously depend on the extent of the similarities.
[118]In Rodney District Council v Gould, Cooper J expanded on the issue:107
[99] The Resource Management Act itself makes no reference to the integrity of planning instruments. Neither does it refer to coherence, public confidence in the administration of the District Plan or precedent. Those are all concepts which have been supplied by Court decisions endeavouring to articulate a principled approach to the consideration of District Plan objectives and policies whether under s 104(1)(d) or s 105(2A)(b) and their predecessors. No doubt the concepts are useful for that purpose but their absence from the statute strongly suggests that their application in any given case is not mandatory. In my view, a reasoned decision which held that a particular non-complying activity proposal was not contrary to District Plan objectives and policies could not be criticised for legal error simply on the basis that it had omitted reference to District Plan coherence, integrity, public confidence in the plan's administration, or even precedent. …
[100] No doubt the Environment Court will continue to advert in appropriate cases to the concepts of the integrity and coherence of the District Plan, public confidence in its consistent administration, and precedent. I do not suggest that there is any error in taking that course. I do not think, however, that the statute requires those matters to be referred to and the present case is one in which that course did not need to be followed.
[119] Typically, therefore it will not be an error of law for a consent authority to decline to engage with an assessment of precedent effects.
[120] I agree with counsel for Ms Connor that although it is open for a consent authority to consider such effects, the case for doing so in respect of restricted
106 Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA).
107 Rodney District Council v Gould [2006] NZRMA 217 (HC).
discretionary activities (where the AUP provides a consenting pathway) is less persuasive than it might, for example, be in the context of non-compliant activity, that is, where the activity is not anticipated in the place proposed. As he observed, “[i]t is those sorts of activities which, for whatever reason, may not be addressed by the objectives and policies of the plan (but which may still be inappropriate in a particular location) which tend to give rise to issues of precedent effect or plan integrity”.
[121] In any event CCI, in my view, significantly overstates the position in suggesting the particular precedent effect contended for. The effect of the decision is not to licence demolition in any case where a proposed replacement building makes a positive contribution to streetscape character. That fails to take into account the very specific considerations which underpinned the EC’s decision—the broader aesthetic and landscape qualities which significantly influence the special character qualities of the area, the ability of the particular natural environment to absorb changes in built form, the eclectic nature of the built form in the particular area and the impracticability and high costs associated with renovation. As the EC itself identified, in the areas where the evidence of built form was more predominant, including Empire Road and Gardner Road, matters relating to the contribution of the building to the character of the area may weigh more heavily against the proposed demolition and encourage a different response.
[122] Likewise, as the Council submitted, demolition applications within the SCAO require a case by case assessment. Even an architecturally outstanding new building may not justify demolition of an existing building which makes a significant contribution to the special character values of an area. The building’s contribution to special character values might be more significant in one location (for example, a prominently visible corner site with strong contextual relationships) than a similar building elsewhere. The condition of the building and the practicability and cost of necessary rehabilitation may tip the scales even when a building is a good example of its architectural type. A well designed new building that would be appropriate in one special character area might be inappropriate in another due to different identified character values. Even a building of modest individual architectural merit may warrant retention due to a critical contribution to an important group of buildings.
[123] I do not, in that context, consider there to be any error in law in the EC concluding that the precedent effect urged on it was not a consideration relevant and reasonably necessary to determine the application. Likewise, therefore, this ground of appeal fails.
Result
[124]I dismiss the appeal.
Costs
[125] My expectation is that costs will not be issue from the Council’s perspective and that any issues between CCI and Ms Connor will be resolved by agreement. If that proves elusive, memoranda not exceeding three pages may be filed on the following timetable:
(a)Memorandum of Ms Connor by 17 April 2025.
(b)Memorandum of CCI by 2 May 2025.
Muir J
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