Coro Mainstreet (Inc) v Thames-Coromandel District Council
[2013] NZCA 665
•18 December 2013 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA404/2013 [2013] NZCA 665 |
| BETWEEN | CORO MAINSTREET (INCORPORATED) |
| AND | THAMES-COROMANDEL DISTRICT COUNCIL THE NATIONAL TRADING COMPANY OF NEW ZEALAND LIMITED |
| Hearing: | 21 November 2013 |
Court: | O'Regan P, Wild and White JJ |
Counsel: | R B Brabant for Appellant |
Judgment: | 18 December 2013 at 3 pm |
JUDGMENT OF THE COURT
A The appeal is dismissed.
B The appellant must pay each of the respondents costs equal to 90 per cent of costs for a standard appeal on a band A basis plus 90 per cent of their usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
This is an appeal against a decision of Wylie J dismissing the application made by the appellant, Coro Mainstreet (Inc), for judicial review of a decision made by the first respondent, Thames-Coromandel District Council (TCDC), not to notify a resource consent application made by the second respondent, the National Trading Company of New Zealand Ltd (NTC).[1] The decision not to notify was made by an officer of TCDC under s 95A of the Resource Management Act 1991 (RMA).
[1]Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 [High Court judgment]. In a later judgment, Wylie J awarded costs (with a 10 per cent discount to reflect the limited public interest aspect of the proceedings) to the respondents: Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1527 [Costs judgment]. A stay of enforcement of the costs judgment was granted by Toogood J: Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 2685 [Stay judgment].
NTC’s resource consent application related to a proposal to demolish a motel building in Coromandel Town and construct a new Four Square grocery store.
The judicial review application canvassed a number of issues, all of which were resolved against Coro Mainstreet. In this Court Coro Mainstreet pursues only one issue, namely whether the TCDC officer who made the decision not to notify the resource consent application had sufficiently adequate and reliable information before her on which to make the decision not to notify lawfully. In particular, Coro Mainstreet contends that the report of an independent heritage assessor did not provide the decision maker with adequate and reliable information concerning the effects of the proposed Four Square on the environment.
In determining that primary issue, a number of subsidiary issues also arise. These are:
(a)Whether the decision maker correctly understood and applied the Coromandel Heritage Design Criteria in r 855.1.1 of the TCDC District Plan.
(b)Whether the decision maker erroneously failed to consider the effect of the proposed development on the future environment.
(c)Whether the decision maker erroneously failed to consider the heritage precedent created by the Star and Garter Hotel, which was located on the site of the proposed development from 1897 to 1972.
(d)Whether the decision maker erroneously took into account the fact that the proposal involved removing the motel building currently on the relevant site, and in particular the fact that that motel building had no heritage value.
(e)Whether the decision maker wrongfully took into account the fact that the existing motel building could be used for commercial purposes again without the need for a resource consent.
Before addressing these issues, we will outline the factual background and the statutory context.
Factual background
In the paragraphs which follow, we essentially adopt the unchallenged factual summary from the judgment of Wylie J, but omit matters that are not relevant to the matters in issue in the present appeal.
NTC is a subsidiary of Foodstuffs North Island Ltd. It owns and develops grocery and food stores on behalf of Foodstuffs, which trades under the Four Square, New World and PAK’nSAVE banners.
There is an existing Four Square store in Coromandel. That store was established in 1973. It is small, offering only 271m2 of retail space in a building with a gross floor area of 450m2. It does not have dedicated car parking and NTC considers that it does not provide a “modern shopping experience”.
NTC considers that the Coromandel township requires an improved grocery store, to cater not only for the local community, but also for visitors to the area. Accordingly, it proposes to develop a larger Four Square store to replace the existing store, on a site at 50 Wharf Road. The existing Four Square store is situated close to the intersection of Wharf Road and Tiki Road, approximately 150 metres from the site at 50 Wharf Road.
The proposed site at 50 Wharf Road currently houses a vacant motel building, which obtained planning consent in 1968 and was constructed in the early 1970s. The site is relatively large. It has an area of 1,705m2. It faces onto Wharf Road. The rear of the site, to the north, abuts Pottery Lane and to the west it abuts Charles Street.
There was originally a very large wooden building located on the site. It was known as the Star and Garter Hotel. It was rebuilt after fire in 1897 and demolished in 1972. The building facade of the Star and Garter Hotel occupied the whole of the Wharf Road and Charles Street frontages.
The site is located within an area referred in TCDC’s District Plan as the Town Centre Zone (Heritage Policy Area). There is a heritage overlay in place in respect of the site, and heritage criteria apply to any building erected on it.
From the outset, and before filing the application, NTC liaised with a local heritage protection group – the Coromandel Heritage Protection Society (CHPS). The chairman of CHPS was Mr Foreman.
On 6 July 2011 a meeting was held. NTC was represented by Foodstuffs’ Property Development Executive, Mr Hollings, and an independent architect, Mr Wingate. CHPS was represented by members of its committee, including Mr Foreman. Design plans for the proposed development were tabled. CHPS raised a number of concerns in relation to both heritage and traffic matters.
NTC amended its building design in an endeavour to respond to the concerns raised, and a second meeting was held on 10 August 2011 to discuss the changes to the building design. Following this meeting, Mr Foreman wrote to Foodstuffs and TCDC. He said CHPS had three outstanding concerns. It wanted all joinery to be wooden, concrete walls to be clad with weatherboard or corrugated iron, and to see a landscape plan that screened the parking area. No mention was made of the fact that the proposed building would not occupy the full Wharf Road frontage.
In September 2011 yet further changes were made to the design to address the issues raised by CHPS.
On 11 October 2011 CHPS obtained a heritage assessment from Mr Algie of Algie Architects Limited. Mr Algie’s report was forwarded to TCDC by CHPS on 13 October 2011.
The application for resource consent was lodged by NTC on 17 October 2011. It had been prepared by independent experts, namely a planning consultant, Mr Norwell, the architect, Mr Wingate, and a traffic engineer, Mr John Burgess. The plans showed a 720m2 building, offering 475m2 of retail space and a service area of 245m2. It was proposed that the building would be located on the eastern side of the site, directly on the Wharf Road frontage. Twenty four car parks were to be offered and there was to be access to the site both from Wharf Road and from Pottery Lane. There was also a small enclosed yard and goods delivery area on Pottery Lane which gave access to the service area. The building incorporated a number of design features, such as a double gabled roof, a verandah, posts, a fascia, corner facings and timber window joinery, all intended to fit in with the heritage character evident in a number of other buildings in the Coromandel township and to meet the concerns raised by CHPS.
TCDC obtained an independent heritage assessment from Mr Graeme Burgess of Burgess and Treep Architects. (All references to “Mr Burgess” from now on refer to Mr Graeme Burgess, not the traffic engineer, Mr John Burgess.) The assessment analysed in detail the assessment criteria in the District Plan regarding heritage matters as they applied in the Coromandel township. Mr Burgess commented on NTC’s proposed building by reference to those criteria. Mr Burgess also commented on the various matters raised by Mr Algie and concluded that the proposal reflected the particular character of its immediate surroundings and that it was a considered response to the Coromandel township heritage controls.
On 30 October 2011 CHPS sent a memorandum to TCDC addressing the concerns it had about heritage and traffic issues. The memorandum asserted that the NTC proposal had a more than minor effect on the environment, particularly in relation to heritage matters. Steps were taken to investigate and resolve the traffic issues, but these are not relevant to the issues in the present appeal.
On 29 November 2011 Mr Foreman of CHPS sent various photographs showing earlier buildings on the site and in the vicinity to TCDC, and TCDC in turn made those photographs available to NTC’s consultant planner, Mr Norwell.
On 24 February 2012 a meeting was held between TCDC and the various stakeholders to discuss the amendments to the application and to obtain feedback. This involved representatives of NTC, TCDC, CHPS, the Coromandel/Coleville Community Board, and a nearby pre-school, as well as the owner of the existing Four Square and adjacent property owners.
On 6 March 2012 Mr Norwell sent to TCDC further amendments to the application to accommodate matters raised at the meeting.
On 14 March Mr Burgess contacted NTC’s architect, Mr Wingate, regarding some minor changes to the plan, and on 16 March Mr Norwell, on behalf of NTC, sent updated and final plans to TCDC.
On 23 March 2012 TCDC sent an e-mail to Mr Norwell, suggesting various draft conditions that it proposed might be attached to any consent granted.
On 5 April 2012 TCDC decided that the application need not be notified. It concluded that the adverse effects of the proposed activity on the environment or on any person were not likely to be more than minor, that public notification was not required by a rule or national environmental standard, and that no special circumstances existed in relation to the proposed activity. It also resolved to grant the land use consent sought by NTC, subject to a number of conditions. The decision was signed by Ms Dimmendaal, a resource consent planner employed by TCDC. It had been reviewed by Mr Dyer, a senior planner, also with TCDC.
Coro Mainstreet was incorporated on 27 June 2012. Its chairman and founding member was Mr Foreman, who had previously been chairman of CHPS. CHPS was dissolved.
As at 12 December 2012 Coro Mainstreet had 27 members. Its objectives include being of benefit to the community by promoting Coromandel as a heritage town, by protecting its historic heritage, and by ensuring that all proposed development complies with the detail and spirit of the heritage protection controls given in the District Plan for the Coromandel township.
On 17 August 2012 Coro Mainstreet lodged the application for review dealt with in the judgment under appeal.
Public notification: applicable principles
The provision in the RMA dealing with public notification of a resource consent application is s 95A. That provision relevantly provides:
95A Public notification of consent application at consent authority’s discretion
(1)A consent authority may, in its discretion, decide whether to publicly notify an application for a resource consent for an activity.
(2)Despite subsection (1), a consent authority must publicly notify the application if –
(a)it decides (under section 95D) that the activity will have or is likely to have adverse effects on the environment that are more than minor; ....
Section 95A was inserted into the RMA from 1 October 2009 by the Resource Management (Simplifying and Streamlining) Amendment Act 2009. Section 76 of that Act repealed ss 93–95 of the RMA and replaced them with new ss 95–95F.
The High Court Judge recorded that counsel agreed on the relevant principles,[2] and in particular on the continued applicability of the decision of the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd, which was decided applying an older version of the relevant RMA provisions.[3] Particular reliance was placed on the judgment of Blanchard J, where he set out the information requirements for a decision maker determining whether or not to notify a resource consent application. Blanchard J said:
[114] So, in summary to this point, the information in the possession of the consent authority must be adequate for it (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered. The authority will need to consider whether the author of the opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant so as to be seen as giving expert advice rather than acting as an advocate for the applicant.
[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it, the Court will upon a judicial review application carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.
[2]High Court judgment, above n 1, at [39].
[3]Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
The High Court Judge said that Discount Brands continues to be good law following the 2009 amendments on the issue of the information a consent authority should have when deciding whether to notify a resource consent application, citing Ferrymead Retail Ltd v Christchurch City Council.[4]
[4]High Court judgment at [42]; Ferrymead Retail Ltd v Christchurch City Council [2012] NZHC 358 at [80]. In Green v Auckland Council [2013] NZHC 2364 at [92], Priestley J also held that there was clear authority the principles of Discount Brands had not been undercut, citing Ferrymead and the judgment under appeal.
The continued applicability of Discount Brands was not argued in any detail before us. However, we consider that the possibility that the substantial amendments to the relevant provisions of the RMA since the decision in Discount Brands, which were directed at providing greater facility for non-notification, have altered the law as articulated in Discount Brands needs further evaluation. The changes to the statute have been significant.
The provision under consideration in Discount Brands was s 93 of the RMA, which relevantly provided:
93 Notification of applications
(1)Once a consent authority is satisfied that it has received adequate information, it shall ensure that notice of every application for a resource consent made to it in accordance with this Act is—
...
(g) Publicly notified; ...
unless the application does not need to be notified in terms of s 94.
Section 94 set out a range of circumstances in which applications did not require notification. The provision that was relevant in Discount Brands, and would have been relevant in the present case, was s 94(2), which provided that non‑notification was not required in the following circumstances:
(2)An application for a resource consent need not be notified in accordance with section 93, if the application relates to a discretionary activity or a non-complying activity and—
(a)the consent authority is satisfied that the adverse effect on the environment of the activity for which consent is sought will be minor; and
(b)written approval has been obtained from every person whom the consent authority is satisfied may be adversely affected by the granting of the resource consent unless the authority considers it is unreasonable in the circumstances to require the obtaining of every such approval.
The fact that s 93(1) specifically required that the authority had to be “satisfied” that it had received “adequate information” before making a notification decision was clearly a factor in the analysis of Blanchard J quoted above. Mr Brabant relied on this. He emphasised the requirement that the consent authority be satisfied that it had adequate and reliable information before making a non-notification decision. However, both of the emphasised phrases came not only from Blanchard J’s judgment but from the statutory wording of s 93(1).[5] In addition, the fact that s 94(2)(a) required that the consent authority had to be “satisfied” that the adverse effect on the environment “will be minor”, was a significant influence on the judgment of the Chief Justice in Discount Brands,[6] as well as that of Keith J.[7] Again, the Chief Justice and Keith J were referring to statutory wording that no longer appears in the statute.
[5]Mr Brabant gave as authority for this proposition Palmer v Tasman District Council HC Nelson CIV-2009-442-331, 30 March 2010 at [35]–[36], but that decision interprets the RMA provisions that were in force before the 2009 amendments to the RMA.
[6]At [23]–[24].
[7]At [52].
Sections 93 and 94 were amended in 2003, removing the statutory requirement that the consent authority be satisfied it had received adequate information.[8] The courts have previously held in a number of cases that the 2003 amendments did not alter the general approach to be applied from Discount Brands.[9] However, the 2009 amendments are more wide ranging.
[8]Resource Management Amendment Act 2003, s 41.
[9]See for example: Northcote Mainstreet Inc v North Shore City Council [2006] NZRMA 137 (HC) at [90]–[93]; Sawmill Workers Against Poisons Inc v Whakatane District Council (No 2) [2006] NZRMA 500 (HC) at [41]; Mount Victoria Residents Association Inc v Wellington City Council [2009] NZRMA 257 (HC) at [20]–[21].
Four points can be made about the difference between the present s 95A and the provisions under consideration in Discount Brands. These are:
(a)The presumption in favour of notification has been removed, and replaced with a discretion whether to notify an application.
(b)The word “satisfied” has been replaced by “decides”. In Discount Brands the Chief Justice had commented that the use of the term “satisfy” could be contrasted with the use of the term “decides” in other sections of the Act, and implied a higher degree of certainty than provisions where the term “decides” was used.[10]
(c)The consent authority must now “decide” whether the adverse effects “will have or are likely to have” effects that are “more than minor”. This contrasts with the provision in issue in Discount Brands which required the consent authority to be “satisfied” that the adverse effects on the environment “will be minor”.
(d)There is now no express requirement that the consent authority have “adequate information” before making a notification decision. However, as noted above, this requirement was removed in 2003, so was already a feature of the legislative regime before the 2009 amendment.
[10]At [23]–[24].
A consideration of the Parliamentary material relating to the 2009 amendment also confirms that Parliament’s intention was to provide greater certainty to councils in relation to non-notification decisions and to facilitate the processing of resource consents on a non-notified basis.[11]
[11]See in particular the parliamentary debate during the committee of the whole House on the insertion of the words “likely to” and “more than minor”. Opposition MPs expressed concern about these amendments: (9 September) 2009 657 NZPD 6162 (Jeanette Fitzsimmons), 6175 (Sue Kedgley), and 6165 (Charles Chauvel). The Minister for the Environment responded that the Government was “quite deliberately providing a bit more cover for council officials”: (9 September 2009) 657 NZPD 6165 (Hon Nick Smith).
The argument before us addressed the stricter requirements as outlined in Discount Brands, and in the absence of argument on the effect of the 2009 amendments we will deal with the case on that basis. But we should not be taken to have accepted that the amendments made to the RMA since Discount Brands have had no effect on the non-notification process and on the analysis of the previous law in the Supreme Court’s decision in Discount Brands. If the point had affected the outcome of the present case, we would have wanted to consider whether the 2009 amendments gave effect to the apparent intention of Parliament to give consent authorities greater scope to decide not to notify resource consent applications, and to reduce the intensity of review to be applied to non-notification decisions from that mandated in Discount Brands.
Did the Council have adequate information?
Much of the focus of the argument was on the independent heritage assessment prepared by Mr Burgess. Mr Brabant undertook a detailed, almost line-by-line, analysis of this report, and argued that it did not properly address the heritage criteria in the TCDC District Plan and contained misleading information.
This essentially repeated an exercise that had been undertaken in the High Court. Wylie J considered the submissions in some detail and concluded as follows:
[86] With respect to Mr Brabant, there is nothing in this ground which justifies an award of relief on an application for review. Coro Mainstreet is doing no more than asking me to second-guess the Council, by reference to Mr Algie’s views and the lay opinions expressed by Mr Foreman. Moreover, Mr Foreman’s arguments, and indeed the arguments by Mr Brabant, ignore the reality that the Star and Garter Hotel was demolished a number of years ago, and that there is currently an unattractive motel building on the site. That building was previously used for commercial purposes, and could be used for commercial purposes again without the need for a resource consent. It was perfectly appropriate for Mr Burgess to comment that NTC’s proposal was a significant improvement on the existing development.
[87] In my view Ms Dimmendaal had adequate expert and independent information before her, to be able to make a fully informed decision with respect to the potential adverse effect of NTC’s application.
As is apparent from that conclusion, much of the argument centred on the differing views about the heritage aspects of the proposal expressed by Mr Burgess and those expressed by a heritage expert engaged by CHPS, Mr Algie. Mr Algie’s report of 11 October 2011 to CHPS expressed the following views on the proposed development:
1.The height of the building and the multiple gable form with upstanding roof lights, are appropriate.
2.The building should be built full width of the site onto Wharf Road and turn the corner to Charles Street (for, say, 40% of the Charles Street frontage) with a continuity of verandah, and so define the corner.
The front wall of the building (onto Wharf Road and around the corner onto Charles Street) should be “open” with doors and windows. Consider the way the existing Four Square building fronts the street.
3.The verandahs and street frontage should develop a rhythm and, together with the long facades, be broken into bays with windows. This is needed to establish the “grain” of the streetscape and avoid long lengths of simplistic construction to the verandahs and walls. ...
The street front walls should seem to be a series of shop fronts with their verandahs. ....
The major point of difference between Mr Algie and Mr Burgess was in relation to the frontage on Wharf Road. Mr Algie thought it was critical that the new development occupied the whole of the Wharf Road frontage up to the corner of Charles Street, and then occupied the frontage of Charles Street for 40 metres or so, thus defining the corner. In contrast to this, Mr Burgess considered that the design, which provided for a building that occupied about two-thirds of the Wharf Road frontage and was set back from the Charles Street frontage was appropriate.
Mr Burgess noted in his report that the proposed new building would not occupy the full width of the site (from the Wharf Street frontage) and so did not meet the ideal set out in r 855.1 of the District Plan, which is discussed in more detail below. He said:
In my opinion, in this situation the proposed building reinforces the sense of continuity of streetscape alignment as intended by this control. The site is at the corner of Charles St. The proposed building addresses both Wharf Road and Charles St as each side of the proposed building relates to its respective road frontage. The Charles St frontage is set back in from the road frontage and this area has been used to create on-site parking. The effect of this on the local streetscape is, in my opinion, less than the existing effect of the site being used as a motel with the entire Wharf Road frontage used for vehicle movement.
Mr Burgess referred to the opinion of Mr Algie that the building should occupy the whole of the Wharf Street frontage and commented:
It may be possible for the building to be redesigned to have a continuous street frontage to Wharf Road. I do not consider this to be necessary from a heritage perspective as this section of Wharf Road has a different existing character and historically had a different development pattern to that set out in this control [r 855.1.1]. In my opinion, the controls are not intended to “create” heritage, they are intended to protect the existing heritage character of Coromandel township. The historic development pattern of this section of Wharf Road was less intense, not full width of the site. The only sections of the main street that retain that historic pattern of intense development are the sections of Kapanga Road close to Tiki Road, and the pattern of development of those sections of the main road should be retained.
Mr Burgess had introduced his comments about Mr Algie’s report by saying that he generally agreed with Mr Algie’s comments, particularly with regard to the comments on the height and form of the proposed building. Counsel for Coro Mainstreet, Mr Brabant, attached great importance to this, because he said this was an acknowledgment of the validity of Mr Algie’s view that the whole of the street frontage on the Wharf Road side should be occupied by the building. We do not see how that submission can be sustained in the face of the comment quoted above, which clearly takes issue with Mr Algie’s assessment.
The principal concern about Mr Burgess’s report raised by Mr Brabant was that Mr Burgess’s report did not address the requirements for notification, but rather addressed the merits of the proposal. Mr Brabant said that in effect Mr Burgess was deciding that consent had to be given to the proposal, not that it did not need to be notified. In fact, he was deciding nothing. He was simply providing advice as he had been commissioned to do by the TCDC, utilising his experience and qualifications in assessing the heritage aspects of the proposal. His advice was clearly relevant to the decision that Ms Dimmendaal had to make, which required an assessment of the adverse effects of the proposal and whether they were likely to be more than minor.
We see no basis for challenging on appeal the High Court Judge’s conclusion on this point in a judicial review proceeding based on procedural propriety and illegality grounds, where the Court is concerned with the lawfulness of the TCDC’s decision, not its merits.[12] Ms Dimmendaal had adequate and reliable information on which to exercise her discretion under s 95A. TCDC had a range of material before it concerning the potential for adverse effects on the environment. This included in addition to Mr Burgess’s report: Mr Algie’s report; the views of the CHPS and Mr Foreman provided on a number of occasions; Mr Norwell’s Assessment of Environmental Effects that accompanied the resource consent application; Mr Wingate’s Architectural Statement in support of the application; numerous letters from the public; comments from the Coromandel/Coleville Community Board; and comments from stakeholders received at meetings. Mr Brabant’s submissions essentially highlight differences of view between Mr Burgess and Mr Algie, and ask us to favour Mr Algie’s views. The Judge’s view that Mr Brabant is asking the Court to “second-guess” the TCDC’s decision was apt. Coro Mainstreet is effectively seeking to appeal against the TCDC’s decision on the merits. That is inappropriate in a judicial review proceeding.
Rule 855.1
[12]Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 (HL) at 1174; Mercury Energy Ltd v Electricity Corp of New Zealand Ltd [1994] 2 NZLR 385 (PC); and Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397.
Mr Brabant argued that Ms Dimmendaal had incorrectly interpreted and applied r 855.1 of the TCDC District Plan. There was some disagreement before us about whether this ground of appeal should be permitted. The respondents submit that Coro Mainstreet’s notice of appeal did not indicate that there would be a challenge to the High Court’s finding on r 855.1, and it should not be allowed to argue this ground of appeal. Mr Brabant responded that the issue of whether r 855.1 was properly interpreted and applied was bound up with the question of whether the TCDC had adequate and reliable information on which to make its decision. We heard full argument on the merits of this ground of appeal, and have concluded that the High Court Judge did not err. We therefore set out our reasons for that conclusion, without deciding the point of whether the ground of appeal was properly argued.
The resource consent sought by NTS was a discretionary activity consent, and r 536 of the District Plan sets out assessment criteria and protocols relating to such consents. That rule provides:
536 Discretionary Activity Assessment Criteria and Protocols
.1 Each discretionary activity shall be assessed according to:
.1The assessment criteria for discretionary activity in Section 8 (850).
.2The information requirements and the notification protocols set out in Section 8 (820 and 840).
.2Each discretionary activity shall comply with the relevant standards set out in Table 3 for discretionary activities.
.3For service stations in Heritage Policy Areas the heritage design criteria need not apply to the service station building.
The assessment criteria referred to in r 536.1.1 include those set out in r 855.1, which relates to buildings. Rule 855.1 provides:
855.1 Buildings
.1 Setback, orientation and yards
There shall be no setback from the street boundary and buildings shall address the street. Buildings should occupy the full width of the site unless there is a pedestrian pathway no greater than 1.2 metres.
.2 Context
New buildings shall have regard to the characteristics of the overall Coromandel township and in particular the site’s immediate environment, ie neighbouring buildings.
.3 Character
New buildings should express their own identity while respecting the pattern and character of the immediate and overall environment. They should respect the surrounding types of construction, range of materials, and colours.
.4 Scale and proportion
Additions and new buildings should generally be of a similar height, size and proportion. They should maintain the scale of adjacent buildings and should not be the tallest or lowest building in the street.
.5 Form and massing
(i) Roofs:
Shall be either pitched (at no less than 25 degrees), single plan sloping away from the street front, hipped or lean to.
(ii) Building elements
The proportions of openings, eg doors and windows to solid wall shall recognise the proportions of those elements in neighbouring buildings. Where neighbouring buildings are made up of distinct connected elements, eg shop front, verandah and parapet, new buildings and additions should similarly include these building elements.
(iii) Verandahs
All retail shops either existing or new shall have a verandah running the full width of the building and covering the full width of the footpath except that verandahs shall not be added to existing buildings where there is no evidence of their having existed.
(iv) Rhythm
The use of similar building forms, eg parapets, verandahs and roofs shall maintain the existing built rhythm.
(v) Site coverage
Permitted site coverage should be varied with site size and between localities to reflect historic size and between localities to reflect historic local patterns of development. Subdivision should not be permitted where this will intensify traditional local densities.
.6 Colour
New buildings and additions and alterations to existing buildings: All exterior colours including roofs, shall be selected from the range of colours described in the colour guidelines.
.7 Materials
Typical materials used in Coromandel township are timber, corrugated iron and plaster finished masonry. Materials such as aluminium, reflective materials, plastic and vinyl are inappropriate use of materials typical of neighbouring buildings will help to maintain their sense of character.
Mr Brabant argued that the criteria in r 855.1.1 were mandatory and made it compulsory to have no setback from the street boundary and for buildings to address the street. He also argued that it made it mandatory that the building occupy the full width of the site.
He said it was clear that the proposed Four Square development did not comply with these mandatory criteria, yet the heritage assessment by Mr Burgess did not address that, nor did the decision by Ms Dimmendaal.
Counsel for the TCDC, Mr Neutze, said that classifying the criteria in r 855.1.1 as “mandatory” misinterpreted r 536 and would, if adopted, lead to “farcical” consequences and inconsistencies with other provisions in the District Plan.
In particular, counsel argued that r 536.1 requires only that the discretionary activity be “assessed according to” the “assessment criteria” in section 850. It did not say that the discretionary activity had to comply in all respects with those criteria. By contrast, r 536.2 requires discretionary activities to “comply” with the relevant “standards” set out in Table 3 of section 530. In addition, r 851.1 requires that proposals which are discretionary activities “shall be evaluated in accordance with the following assessment criteria”, and section 850 is headed “assessment criteria”.
Wylie J rejected Mr Brabant’s argument. He said that the criteria identified in r 855.1.1 are not prescriptive standards, which have to be met in every case, but rather are matters which should be assessed, and taken into account, in evaluating a proposal for a discretionary activity.[13] He noted that Ms Dimmendaal referred to the rule and to Mr Burgess’s view that it was not appropriate to require the full occupation of the Wharf Road frontage.[14] She then concluded that the effects on heritage character of not doing this would be less than minor, which was a view open to her on the materials before her.
[13]High Court judgment, above n 1, at [97].
[14]At [98].
We agree that the language of r 536.1.1 is at odds with Mr Brabant’s contention that the assessment criteria, including the criterion in r 855.1.1, are mandatory criteria. They are called assessment criteria because they are required to be assessed, not because they set out strict rules. This is confirmed by the wording of r 855.1 itself. Although words like “shall” and “should”, which could be used to indicate mandatory criteria, are used in r 855.1.1, other rules are expressed in terms which cannot be applied as mandatory criteria. For example, r 855.1.3 talks of buildings expressing their own identity while respecting the pattern and character of the immediate and overall environment. Rule 855.1.2 says that buildings “shall have regard to the characteristics of the overall Coromandel township”. These are matters that are subjective and value-based, and it would not appropriate for these to be read as rigid standards.
If the criteria in r 855.1 were mandatory, the proposed development would have to occupy the full width of all frontages – Wharf Road, Charles Street and Pottery Lane, and address all of those frontages. Even Mr Algie did not suggest that should occur. Rather he suggested the development occupy the full width on the Wharf Road frontage and occupy about 40 per cent of the Charles Street frontage. If Mr Brabant were correct, that proposal would also be in breach of the “mandatory” requirement in r 855.1.1.
We consider that the treatment of r 855.1 in both Mr Burgess’s report and in Ms Dimmendaal’s non-notification decision accorded with the requirements of the District Plan. In both, an assessment of the setback criterion was done. That is what was required. There is therefore no error by the TCDC affecting the lawfulness of its decision.
Future environment
Mr Brabant also argued that Mr Burgess and Ms Dimmendaal had misinterpreted the “environment” against which the effects of the proposed activity had to be assessed under s 95A.
Mr Brabant said that Ms Dimmendaal had failed to have regard to the future environment as well as the existing environment, which was an error of law. He made a similar criticism of Mr Burgess’s report.
We confess to some difficulty in understanding the argument made by Mr Brabant. It appears that he is arguing that the future environment should, for the purposes of assessment of the proposed activity, take into account new buildings that may be built in Coromandel town in compliance with the heritage provisions of the plan, and that the assessment of the present proposal should effectively assume that such buildings are so certain to occur that they are part of the environment.
In fact, there was no evidence to indicate that there was any indication, let alone certainty, that any development would occur in Coromandel township in a manner envisaged by Mr Brabant. We do not see how his argument can be
reconciled with the decision of this Court in Queenstown Lakes District Council v Hawthorn Estate Ltd.[15]
[15]Queenstown Lakes District Council v Hawthorn Estate Ltd (2006) 12 ELRNZ 299 (CA) at [84]. That decision has been recently confirmed in Far North District Council v Te Runanga-a-Iwi O Ngati Kahu [2013] NZCA 221 and Royal Forest and Bird Protection Society of New Zealand Inc v Buller District Council [2013] NZCA 496. The Supreme Court has granted leave to appeal in the Far North District Council case: Te Runanga-a-Iwi o Ngati Kahu v Far North District Council [2013] NZSC 134.
As counsel for NTC, Mr Clay, pointed out, all new buildings in the Heritage Policy Area require resource consent. There was therefore no issue as to permitted buildings being established in the area and forming part of the receiving environment against which the proposal needed to be assessed.
We do not accept Mr Brabant’s submission. In our view the proposal was properly considered against the environment as it now stands, and no error was made by Ms Dimmendaal in that regard affecting the lawfulness of the TCDC’s decision.
The Star and Garter Hotel
Mr Brabant argued that Mr Burgess and Ms Dimmendaal wrongly failed to consider the Star and Garter Hotel, which, as indicated earlier, stood on the site to which the present resource consent application relates until 1972, when it was demolished. He suggested that Mr Burgess was wrong to refer to the existing environment instead of the “heritage precedent” created by the Star and Garter Hotel. We agree with the High Court Judge’s assessment that this argument ignores the reality that Star and Garter was demolished a long time ago, and that there is currently an unattractive unused motel building on the site.[16] We note that the only reference in r 855.1 to the history of the area is in r 855.1.5(v), which refers to historic patterns of development in relation to site coverage. The Star and Garter is not part of the environment for the purposes of s 95A, nor is it a “heritage precedent”.
Existing motel buildings
[16]At [86] (quoted at [43] above).
We also agree with the High Court Judge that it was perfectly appropriate for the decision maker to take into account the fact that the existing motel building is on the site.[17] That building has no heritage values at all, and it is well set back from the street. Mr Brabant criticised Ms Dimmendaal’s observation that the new development would introduce heritage elements to a site that currently had none. Mr Burgess made a similar observation. We see no error in these observations. The fact that the new development will be an improvement in heritage terms is a reality that could not rationally have been ignored by the decision maker, and was properly taken into account in the assessment of the likely adverse effects of the proposal. The proposal involved the replacement of the motel with the new grocery store development. The motel is part of the environment and the activity for which consent was sought involved both demolition of the motel and construction of the grocery store development.
[17]At [86] (quoted at [43] above).
Nor do we see any error in the Judge’s comment that the existing motel could be used again for commercial purposes without the need for a resource consent.[18] We do not think this was a factor of any significance in the Judge’s reasoning, but it was factually correct and relevant to assessing the adverse effects of the proposal on the environment of which the existing motel forms part.
Result
[18]At [86] (quoted at [43] above).
We do not consider it necessary to address in detail every argument put to us by Coro Mainstreet. We are satisfied that Wylie J correctly assessed the arguments made to him in the High Court and decided the issues now before us correctly. We dismiss the appeal.
Costs
In the High Court, Wylie J awarded standard costs, minus a 10 per cent discount to reflect the public interest aspects of Coro Mainstreet’s case.[19] We take the same approach in relation to the present appeal. We agree with Wylie J that a greater discount is not warranted.
[19]Costs judgment, above n 1, at [10].
TCDC sought an uplift on normal costs, given that Toogood J indicated in the stay judgment that the grounds of the present appeal seemed weak.[20] We do not consider that is appropriate. Although the appeal has failed, Coro Mainstreet had a right of appeal and that was not displaced by the indication of view given by Toogood J. We do not consider that a case has been made for an uplift.
[20]Stay judgment, above n 1, at [27].
Solicitors:
Patterson Hopkins, Auckland for Appellant
Brookfields Lawyers, Auckland for First Respondent
Minter Ellison Rudd Watts, Auckland for Second Respondent
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