Coro Mainstreet (Inc) v Thames-Coromandel District Council
[2013] NZHC 1163
•21 May 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2012-419-001113 [2013] NZHC 1163
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF a decision pursuant to ss 95A and 95D of the Resource Management Act 1991 not to notify an application for resource consent
BETWEEN CORO MAINSTREET (INCORPORATED) Plaintiff
ANDTHE THAMES-COROMANDEL DISTRICT COUNCIL
First Defendant
ANDTHE NATIONAL TRADING COMPANY OF NEW ZEALAND LIMITED
Second Defendant
Hearing: 23 April 2013
Counsel: J C Brabant for Plaintiff
A M B Green and S E Curran for First Defendant
D R Clay and S de Groot for Second Defendant
Judgment: 21 May 2013
JUDGMENT OF WYLIE J
This judgment was delivered by JusticeWylie on
21 May 2013 at 2.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Purnell Jenkison Oliver, PO Box 31, Thames 3540 (R B Oliver) Brookfields, PO Box 240, Shortland Street, Auckland 1140
Minter Ellison Rudd Watts, PO Box 3798, Auckland 1140
Copy to:
J C Brabant, PO Box 1502, Shortland Street, Auckland 1140
CORO MAINSTREET (INCORPORATED) V THE THAMES-COROMANDEL DISTRICT COUNCIL HC HAM CIV-2012-419-001113 [21 May 2013]
Introduction
[1] Coro Mainstreet (Incorporated), (“Coro Mainstreet”) has filed an application for review in respect of a decision made by the first defendant, The Thames- Coromandel District Council, (“the Council”), dated 5 April 2012. The decision was made pursuant to s 95A of the Resource Management Act 1991. The Council decided not to notify a resource consent application lodged by the second defendant, The National Trading Company of New Zealand Ltd (“NTC”), to remove an existing
motel from a site at 50 Wharf Road, Coromandel, to construct a new 720m2 building
on the site, and to operate the new building as a Four Square convenience store.
[2] Coro Mainstreet’s statement of claim raises three causes of action. First, it is alleged that there were various errors of law which vitiate the Council’s decision. Secondly, it is alleged that the Council failed to take into account relevant considerations, and took into account irrelevant considerations. Finally, it is alleged that the Council’s decision is manifestly unreasonable.
[3] Counsel were agreed on the issues which require resolution. A joint memorandum was filed in this regard. Some points were abandoned by Coro Mainstreet. The points that were alive at the hearing were as follows:
(a) Did an officer of the Council – a Ms Dimmendaal - make recommendations on notification and on whether consent should be granted, and then purport to also make the decisions based on her own recommendations? If so, was this unlawful?
(b)Did the Council have adequate information about pedestrian movements on Wharf Road?
(c) Did the Council have adequate information about pedestrian and vehicle movements at peak periods?
(d)Was a heritage assessment prepared by a Mr Graeme Burgess inadequate and/or misleading?
(e) Were the Coromandel Heritage Design Criteria set out in rule 855.1.1 of the District Plan correctly applied?
(f) Was consent as a non complying activity required pursuant to the
District Plan?
(g)Was the Council’s decision on notification affected by errors of law, as a result of some or all of the matters listed in (a) - (f) above?
(h)Did the Council’s decision on notification fail to take into account relevant considerations, as a result of some or all of the matters listed in (a) – (f) above?
(i)Did the Council’s decision on notification rely on insufficient and/or inadequate information, as a result of some or all of the matters listed in (a) – (f) above?
Background
[4] NTC is a subsidiary of Foodstuffs (Auckland) Ltd. It owns and develops grocery and food stores on behalf of Foodstuffs, which trade under the Four Square, New World and PAK ‘N SAVE banners.
[5] 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”. It is situated close to the intersection of Wharf Road and Tiki Road, approximately 150 metres
from the site at 50 Wharf Road.
[6] 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 the site at 50 Wharf Road.
[7] That site currently houses a vacant motel building, which was constructed in
1968. 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 onto Pottery Lane and to the west it abuts Charles Street.
[8] There was originally a very large wooden building located on the site. It was known as the Star and Garter Hotel. It was built in 1897, and it was demolished and removed in 1972. The building facade occupied the whole of the Wharf Road and Charles Street frontages.
[9] The site is located within an area referred in the Council’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.
[10] From the outset, and before filing the application, NTC liaised with a local heritage protection group — the Coromandel Heritage Protection Society (“CHPS”).
[11] On 6 July 2011 a meeting was held. NTC was represented by its Property Development Executive, a Mr Hollings, and an independent architect, a Mr Wingate. CHPS was represented by members of its committee, including a Mr Foreman. Design plans for the proposed development were tabled. CHPS raised a number of concerns in relation to both heritage and traffic matters.
[12] NTC amended its building design in an endeavour to respond to these issues, and a second meeting was held on 10 August 2011 to discuss the changes to the building design. In September 2011 yet further changes were made to the design to address residual heritage issues raised by CPHS.
[13] On 11 October 2011 CPHS obtained a heritage assessment from a Mr Algie of Algie Architects Limited. Mr Algie’s report was forwarded to the Council by CHPS on 13 October 2011.
[14] The application for resource consent was lodged by NTC on 17 October
2011. It had been prepared by independent experts, namely a planning consultant, a
Mr Norwell, the architect, Mr Wingate, and a traffic engineer, a 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 in the north eastern part of the site, directly on the Wharf Road frontage. Twentyfour 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.
[15] The Council obtained an independent heritage assessment from a Mr Graeme Burgess of Burgess and Treep Architects. The assessment analysed in detail the assessment criteria in the District Plan regarding heritage matters as they applied in the Coromandel township. It considered 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.
[16] On 30 October 2011 CHPS sent a memorandum to the Council 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.
[17] On 1 November 2011, the Council sought further information from NTC in relation to traffic issues, pursuant to s 92 of the Act. Mr John Burgess sent two e- mails to the Council’s Senior Development Engineer, a Mr Whittaker, on 3 and 4
November 2011 addressing some of the matters raised. A formal response to the s 92 request was sent by Mr Burgess to the Council on 7 November 2011.
[18] On 9 November 2011 a meeting was held at the Council’s offices with NTC
representatives. The s 92 request was discussed.
[19] The Council decided to obtain a peer review from an independent traffic engineer, a Mr Gregory of Opus International Consultants Limited. As part of this review the Council asked Mr Gregory to consider the information it had received from CHPS and letters it had received from members of the public raising traffic concerns.
[20] Mr Gregory undertook a traffic and pedestrian survey on 21 November 2011 and he sent a preliminary report to the Council on 22 November 2011. Mr Gregory also contacted NTC’s traffic engineer, Mr John Burgess, to get further information from him in relation to the traffic aspects of the application.
[21] Mr Foreman of CHPS sent various photographs showing earlier buildings on the site and in the vicinity to the Council, and the Council in turn made those photographs available to NTC’s consultant planner, Mr Norwell.
[22] On 1 December 2011, Mr Gregory sent his transportation and safety peer review to the Council. The report concluded that additional mitigation measures were required, but that subject to these measures being implemented, the proposal was unlikely to create any significant detriment to the operation of the local roading network. The report was provided to NTC.
[23] On 12 December NTC wrote to the Council, replying to various matters raised in Mr Gregory’s peer review. It also amended the parking and servicing layout to accommodate matters raised by Mr Gregory.
[24] On 20 December 2011, Mr Gregory wrote to the Council dealing with various concerns that had been expressed regarding on-street parking. Mr Norwell wrote to the Council in relation to the same issue on 23 December 2011.
[25] On 24 February 2012 a meeting was held between the Council and the various stakeholders, to discuss the amendments to the application and to obtain feedback. On 6 March 2012 Mr Norwell sent to the Council further amendments to the application, to accommodate matters raised at the meeting. On 13 March 2012, Mr Gregory reviewed the amended plans, and sent an e-mail to the Council in this
regard. Mr Whittaker also sent internal memoranda in relation to various engineering issues. On 14 March, Mr Graeme Burgess, the independent heritage architect, 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 the Council.
[26] On 23 March 2012, the Council sent an e-mail to Mr Norwell, suggesting various draft conditions that it proposed might be attached to any consent granted. The Council also sought comment from its own engineer Mr Whittaker, and from Mr Gregory.
[27] On 5 April 2012 the Council decided that the application need not be notified. It concluded that the adverse effects of the proposed activity on the environment oron 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. It had been reviewed by a Mr Dyer, a senior planner, also with the Council.
[28] On 7 April 2012, members of CHPS undertook their own traffic survey.
[29] Coro Mainstreet was incorporated on 27 June 2012. Its chairman and founding member was Mr Foreman. CHPS was dissolved. Mr Foreman had been the chairman and a member of CHPS.
[30] 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.
[31] On 17 August 2012, Coro Mainstreet lodged the application for review the subject of these proceedings.
Coro Mainstreet’s standing
[32] Coro Mainstreet seeks judicial review pursuant to s 4 of the Judicature Amendment Act 1972. That section provides no guidance as to who may apply for review. It is generally accepted that standing in judicial review proceedings is established when the person applying has “a sufficient interest” in the matter to which the proceedings relate.1 In recent years, the trend has been to assess standing
as a factor in the exercise of the Court’s remedial discretion.2
[33] In the present case, Coro Mainstreet was only incorporated after the decision not to notify was made by the Council.
[34] Mr Brabant, on behalf of Coro Mainstreet, submitted that in many respects, Coro Mainstreet had stepped into the role of CHPS. He noted that CHPS has been disbanded, while acknowledging that it was the entity involved in the consultation and correspondence with both the Council, and NTC, in relation to the resource consent application. He accepted that Mr Foreman was a key figure in CHPS, and that he is also a key figure in Coro Mainstreet.
[35] Neither the Council, nor NTC, challenged the standing of Coro Mainstreet.
[36] The absence of objection notwithstanding, in my view it will still be necessary for the Court to consider the Coro Mainstreet’s standing, but only after it has examined the substantive issues raised, and only if it concludes that it might be appropriate to grant relief.
Public notification - applicable principles
[37] Relevantly s 95A reads as follows:
1 Re Royal Commission on Thomas Case [1980] 1 NZLR 602 (HC); Inland Revenue
Commissioner v National Federation of Self-Employed and Small Businesses Ltd [1982] AC
617.
2 O’Neill v Otago Area Health Board HC Dunedin CP50/91, 10 April 1992 issue of standing not raised on appeal (see O’Neill v Otago Area Health Board CA167/92,30 May 1994); Murray v Whakatane District Council [1999] 3 NZLR 276 at 307-309. Cf D J Moxon v Casino Control Authority HC Hamilton, M324/99, 24 May 2000.
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; or
(b) the applicant requests public notification of the application;
or
(c) a rule or national environmental standard requires public notification of the application.
(3) ...
(4) Despite subsection (3), a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
[38] This provision was inserted into the Act, as from 1 October 2009, by s 76 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. Prior to this amendment, the general policy of the Act was that the consent process was public and participatory, to ensure that consent authorites were adequately informed of the issues relevant to the substantive decisions to be made on applications. As can be seen, s 95A removes any presumption in favour of notification.
[39] Counsel were agreed in relation to the relevant principles. I summarise them briefly.
[40] It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations
were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.3
[41] The leading authority in relation to review of a consent authority’s decision not to notify an application is the decision of the Supreme Court in Discount Brands Ltd v Westfield (NZ) Ltd.4 In this case, the Court was considering the adequacy of information which was before a Council faced with a notification decision. It held that the Council had to have sufficiently comprehensive information to satisfy itself that the activity would not have an adverse effect on the environment which was
more than minor and that it would not have any adverse effect which might effect any person unless it would certainly be de minimus or its occurrence would be a remote possibility.5 The position was summarised by Blanchard J as follows:
[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.
3 Quarantine Waste NZ Ltd v Waste Resources [1994] NZRMA 524 (HC) at 548; Elderslie Park
Ltd v Timaru District Council [1995] NZRMA 433 (HC) at 451.
4 Discount Brands Ltd v Westfield (NZ) Ltd [2005] 2 NZLR 597 (SC).
5 Ibid at paras [6], [23], [24] and [40] per Elias CJ, [50], [51] and [57] per Keith J, [101], [106]
and [114] per Blanchard, [146] and [150] per Tipping J, and [178] per Richardson J.
[42] The Supreme Court was considering earlier and different notification provisions than those which are currently in place. It has been held, however, that notwithstanding changes to the statute, Discount Brands continues to be good law on the issue of the information a consent authority should have, when deciding whether to notify a resource consent application.6
[43] Against this background, I turn to consider the various issues that the parties have put before the Court for resolution.
Issue (a) – Did Ms Dimmendaal both make the recommendations on notification, and on whether consent should be granted, and then purport to make the decisions based on her own recommendations? If so, was this unlawful?
[44] Mr Brabant noted that the two Council decisions, namely not to notify the application, and to grant consent, were incorporated into one document, dated
5 April 2012.
[45] The document was in various parts. The first part of the document – pages 1-
9 - was headed “Resource Consent Decision”. The second part – pages 12-28 - was headed “Resource Management Act 1991 – Assessment and Determination of an Application for Resource Consent – Discretionary Activity – Land use consent”.The third part was headed “Section 104 and 104B – Decision Report for a Non-Notified Resource Consent Application”.
[46] The Council’s decision not to notify the application was expressly recorded in the first part of the document. It preceded the Council’s decision on the resource consent application, which was also in the first part of the document.
[47] Notification was also addressed in the second part of the document, under a subtitle - “Section 95A and 95B – Report Determining Notification of an Application”. This part of the document comprised the assessment undertaken under s 95A as to whether or not notification was required. Ms Dimmendaal summarised
the various matters to which she had regard. She concluded that the effects on the
6 Ferrymead Retail Ltd v Christchurch City Council [2012] NZHC 358 at [80].
heritage character and amenity of the surrounding town centre would be less than minor. She also concluded that the proposal, in regard to roading, parking, loading and access, would have effects that would be less than minor, and any demolition and construction effects would be less than minor. She recommended that the application should not be publicly notified. She then went on to consider the possibility of limited notification. She concluded, under the heading, “6.0
Recommendation”, that the application would not be notified.
[48] Ms Dimmendaal prepared the report, and she signed it. It was reviewed by
Mr Dyer, who is a senior planner with the Council.
[49] Mr Brabant submitted that the second part of the document, containing the recommendation, was not worded as a formal decision. He acknowledged that the first part of the decision recorded that the Council had resolved pursuant to s 95A not to publicly notify the application, but he submitted that the form was nevertheless irregular, and that effectively, Ms Dimmendaal was making a recommendation to herself, and then going on to make the decision.
[50] Mr Green addressed this matter on behalf of the Council. Mr Gray for NTC
adopted Mr Green’s submissions.
[51] Mr Green submitted that s 34A of the Act empowered the Council to delegate any of its functions, powers and duties to an employee. He argued that Ms Dimmendaal had the appropriate delegated authority, and that the omission of a reference, in the part of the document dealing with notification, to a “decision”, was not fatal to the decision not to notify the application. He accepted that paragraph 6 of the notification discussion would have been better headed “decision”, rather than “recommendation”, but noted that the relevant part of the document was titled “Report Determining Notification of an Application” (emphasis added). He argued that the use of the word “recommendation” did not detract from the clear and final views Ms Dimmendaal expressed and that in fact she did decide the issue.
[52] First, I note that it is clear from the affidavits filed that Ms Dimmendaal did have the requisite authority to make the decision not to notify the application. This
was conceded by Mr Brabant. Given that she had the requisite delegation, the fact that it appears from the documents that she both recommended and decided is, in my judgment, irrelevant. It seems to have flowed from the fact that she simply used a standard, and in some respects inappropriate, template.
[53] Secondly, it is clear that Ms Dimmendaal considered the matter. She wrote the report; her report was peer reviewed by Mr Dyer; she endorsed the report as being the Council’s decision. While the terminology was loose, the process was clear. It is obvious, particularly from the formal record of the decision in part one of the document, that Ms Dimmendaal made the decision on behalf of the Council.
[54] Thirdly, while use of the word “recommendation” at the end of the report considering whether or not to notify was inappropriate, it was not fatal. The decision was in both the first part of the document, and in the second part. Use of the word “recommend” before a resolution does not mean that the resolution is a mere
recommendation.7
[55] In my judgment, Ms Dimmendaal had the appropriate delegated authority. She expressed clear and considered views in her report, and she clearly decided that the application did not require to be notified. The use of the word “recommendation” in paragraph 6 of the notification report was a technicality, and it does qualify or detract from the decision that was made.
[56] This ground of review fails.
Issues (b) and (c) – Did the council have adequate information about pedestrian movements on Wharf Road, and about pedestrian and vehicle movements at peak periods?
[57] Both issues can be dealt with together.
[58] Mr Brabant submitted that the information the Council had before it highlighted pedestrian movements as a relevant issue, but that the Council failed to
obtain adequate information about such movements, both generally and during peak
7 Partington Properties Ltd v Auckland City Council HC Auckland A62/85, 31 October 1985.
periods. As a consequence, he submitted that it was unable to properly assess the effects of the proposal on pedestrians when it was considering whether or not to notify the application.
[59] Both the Council and NTC submitted that the Council had a significant amount of information before it in relation to these matters. They noted that traffic matters generally were assessed and reported on by four traffic experts – namely Mr John Burgess for NTC, Mr Whittaker the Council’s senior development engineer, a Mr Busch, who was the Council’s roading manager, and Mr Gregory, who peer reviewed the information made available, and prepared the transportation and safety review noted in [22] above.
[60] It is clear that the integrated traffic assessment which formed part of the resource consent application, was independent of NTC. It was signed by Mr Burgess of Traffic Planning Consultants Ltd.
[61] Mr Burgess and his firm had been commissioned in July 2011 to provide the necessary traffic planning input into the design of the proposed building, and to prepare an integrated traffic assessment to accompany the resource consent application. Mr Burgess had preliminary discussions with Mr Whittaker regarding the proposal, and he met with Mr Busch.
[62] The integrated traffic assessment by Mr Burgess recorded that there was a reasonably high level of pedestrian activity in the area of the site. He noted the New Zealand Transport Agency’s study of crash records for the period 2006 to 2010 at or near the site. He observed that those records indicated only one pedestrian accident in the general vicinity, and that there were no reported accidents, including those involving pedestrians and vehicles, at the Wharf Road/Charles Street intersection. A section of the assessment was directed to pedestrian impacts arising from the proposal. Mr Burgess observed that pedestrian flows could be reasonably significant during certain periods of the day, and he assessed the additional pedestrian activity likely to be generated by the proposal. He concluded that pedestrian safety would not be compromised, given the good “inter-visibility” available to vehicles moving onto the site and to passing pedestrians. Mr Burgess did not undertake detailed
counts of vehicle and pedestrian movements as part of his assessment. Rather, he relied on counts of customers at the nearby NTC owned Four Square store. He extrapolated typical daily vehicle flows from those counts. He noted that customer numbers could double during holiday periods and that the proportion of customers walking to the site would increase at such times.
[63] The Council had other information before it in addition to the integrted traffic assessment. CHPS had corresponded with the Council on a number of matters, and it had put its concerns about the impact of the proposal on pedestrian traffic. CHPS members had queried traffic flows on the footpath, and other related traffic concerns. Other members of the community also wrote in regarding these issues.
[64] Mr Whittaker was involved in the process. He undertook his own site visit and considered Mr Burgess’s integrated traffic assessment. He considered that some issues still needed to be addressed. He relayed his thoughts to Ms Dimmendaal and as a result she issued a request for further information under s 92 of the Act on
1 November 2011. One of the matters raised related to congestion on Wharf Road.
[65] Mr Burgess prepared NTC’s response and he attended a meeting with the Council to discuss the issues raised. Ms Dimmendaal was present at the meeting. Further, Mr Busch had discussions with Mr Burgess about the proposed access arrangements. It was suggested that a car park should be removed. This was agreed to by NTC.
[66] Mr Whittaker recommended to Ms Dimmendaal that the integrated traffic assessment should be peer reviewed. As a result, she decided to obtain a peer review of Mr Burgess’s work from Mr Gregory of Opus International Consultants Ltd.
[67] Mr Brabant submitted that the need for the peer review reflected the Council’s acceptance that Mr Burgess’s assessment was inadequate. That is speculation, and in any event I do not share this view. Rather, I suspect that the Council was being cautious, given the sensitive location of the site, and the concerns that had been expressed by CHPS members and by others in the local community. It
is noted that Ms Dimmendaal asked Mr Gregory to consider the letters received from the public expressing concern about traffic issues.
[68] Mr Gregory expressly turned his mind to traffic volumes and to the number of pedestrians in the area. He correspondended with Mr Burgess, asking whether any thought had been given to the movement of pedestrians across Wharf Road. Mr Gregory also expressed the view, that in summer months, there would be higher volumes of pedestrians from other parts of the township.
[69] As part of his peer review Mr Gregory undertook a traffic survey at the site on 21 November 2011. As part of that survey he recorded pedestrian activity at the Wharf Road/Charles Street intersection. He recorded ten pedestrians walking in front of the site, and a total of only 25 pedestrians, over a one hour period. He assessed this information against the Council’s traffic database, and against other available traffic data. He was confident that the data he obtained was appropriate to the scale and location of the proposal.
[70] On 22 November 2011 Mr Gregory wrote to Ms Dimmendaal, noting that pedestrian activity within Coromandel generally was of concern, and that there was only one nearby crossing point. He expressed the view that the proposed store would be a signficant draw for residents and visitors alike, and that the number of pedestrians crossing Wharf Road was likely to increase.
[71] A short time later, Mr Gregory reported formally to the Council. His traffic count was recorded in the report. He commented on seasonal variations and opined that it was likely that traffic volumes would double during the holiday season. Mr Gregory recorded that he had modelled the site access and the intersection using specialist software to determine whether there would be queues on Wharf Road and whether there would be any measurable detriment in the performance of the roading network during the peak summer period. The results suggested that there would be an insignificant increase in delays on Wharf Road. Mr Gregory did not set out his count of pedestrians, because he had no concerns in this regard. He nevertheless expressly addressed safety issues and the likelihood of conflict between pedestrians and vehicular traffic. Mr Gregory concluded that the proposal was unlikely to create
significant detriment to the operation of the local roading network under normal conditions, provided mitigation measures he proposed were put in place. He noted that during the holiday season, traffic volumes increase significantly, and that difficulties would arise with parking availability, and with access to the site, but expressed the view that any additional peak season parking demand could be catered for using immediately adjacent on-street car parks. He considered that additional trips likely to be generated as a result of the development could be accommodated within the existing roading network with little or no noticeable detriment to the existing traffic environment. He considered that safety and efficiency could be maintained, if various mitigation measures were carried out, and he recommended that the Council should seek the additional levels of mitigation he proposed before finalising the consent.
[72] As I have noted, NTC engaged with the Council in relation to Mr Gregory’s report. It amended the parking and servicing layout to accommodate the mitigation measures proposed. It addressed on-street parking. It further amended its plans.
[73] It is noteworthy that CHPS indicated to the Council that it was going to undertake its own survey of traffic and pedestrian movements. Ms Dimmendaal advised Mr Gregory of this. He considered that the information he had used in his peer review was appropriate.
[74] Against this background, in my view it simply cannot be said that the Council had insufficient information before it, to enable it to make an informed decision in relation to traffic and pedestrian issues. There was a very large amount of detailed information available about traffic movements, both vehicular and pedestrian. There was information about traffic and pedestrian activity during peak periods. The information initially provided by NTC had been peer reviewed by an independent expert. The peer review provided to the Council expressly commented on peak periods. Mr Gregory was appropriately qualified, and the Council could be confident, both from the fact its own staff had reviewed the issue, and also because it had obtained a peer review from Mr Gregory, that most of the information it had was independent of NTC, and that it could be relied on. In my judgment the information
which the Council had before it was sufficiently comprehensive, to enable
Ms Dimmendaal to consider traffic-related issues on an informed basis. [75] These grounds of review also fail.
Issue (d) – Was the heritage assessment prepared by Mr Graeme Burgess inadequate and/or misleading?
[76] Mr Brabant submitted that Mr Burgess’s report misrepresented historic development patterns on Wharf Road, and wrongly took into account the effects of the existing building on this site. He referred to an affidavit filed by Mr Foreman, which he asserted identified information missing from Mr Burgess’s report. He noted in particular to a number of photographs annexed to Mr Foreman’s affidavit which showed the historical development of the area, and in particular the Star and Garter Hotel building. He argued that Ms Dimmendaal’s conclusion with respect to heritage character and amenity expressly relied upon Mr Burgess’s report, and that as a result, the conclusions she reached were in error.
[77] The Council and NTC submitted that Mr Burgess was a well respected conservation architect, independent of NTC, and with considerable experience in the field. They argued that his report did not have to be all embracing, and that it was sufficiently comprehensive with respect to the historical development pattern of Wharf Road to enable Ms Dimmendaal to consider the heritage matters on an informed basis. It was also noted that Ms Dimmendaal had a number of other reports before her in relation to heritage issues, and it was submitted that she had more than adequate information to enable her to make a fully informed decision with respect to the potential adverse heritage effects of the proposed building.
[78] I note that the material before the Council was not confined to Mr Burgess’s
report.
[79] First, the assessment for the effects on the environment prepared by NTC’s planning consultant, Mr Norwell, referred to heritage character. It assessed the potential for a loss of heritage character. It was asserted that the proposal responded
to heritage issues, and the character of the Coromandel township. The assessment contained a lengthy analysis of the way in which the proposal responded to the heritage assessment criteria contained in the plan, and Mr Norwell addressed the fact that the proposed building did not extend along the full road frontage of the site. These matters were also covered in an architectual design statement prepared by Mr Wingate, which accompanied the application. Mr Wingate provided an assessment of the proposed building, and set out his reasons for the design, having regard to matters such as building set-back and orientation, its form, scale and proportion, character, materials, and colour. Mr Wingate expressed the view that the proposal reinforced and added to the existing character of the Coromandel township, and set out his reasons for that statement.
[80] Secondly, the Council had the heritage assessment prepared by Mr Algie, of
Algie Architects Ltd, on behalf of CPHS. It received his assessment on 13 October
2011, a few days before the application for consent was lodged by NTC. CHPS had also written to Ms Dimmendaal in relation to heritage issues.
[81] The Council decided to obtain an independent heritage assessement from Mr Burgess. It is clear from the affidavits filed that Mr Burgess is imminently well qualified to prepare a heritage assessment, and to express views in relation to the issue. He is a graduate of the University of Auckland School of Architecture, and became a registered architect in 1985. He has worked in the field of conservation architecture since 1990. He has written numerous conservation plans and heritage reports, and he has taught conservation architecture at the University of Auckland School of Architecture. He is engaged by the Auckland Council and Thames Coromandel District Council as a heritage consultant. He is a member of the Auckland Council Heritage Advisory Panel. He has previously undertaken heritage reviews for the Thames Coromandel District Council, and is familiar with the district, and the Coromandel township in particular.
[82] In order to assess the proposal, Mr Burgess visited the site. He considered the drawings prepared by Mr Wingate. His assessment considered the heritage policy area rules in the Council’s Plan, and he took into consideration the design criteria set out in the plans. He expressly addressed the fact that the proposed
building did not occupy the full earth road frontage. He considered that the effect of this was not significant, as that part of the township had a mixed character. He noted that most development in the immediate area was relatively new, and that it did not follow the typology described by the Coromandel Council heritage controls.
[83] Mr Burgess also considered that the proposal was a vast improvement on the existing motel building. However, Mr Burgess’s assessment contained various photographs. Those photographs showed the area in the 1950s, and it was asserted by Mr Brabant that they provided inadequate and misleading information about heritage character. Mr Burgess responded, in an affidavit filed in the proceedings, that the photographs provided evidence of the built form and development in Coromandel from a much earlier period, and that the buildings shown in the
photographs were constructed in the late 19th and early 20th century. He noted the
built form existed as at the time the photographs were taken, but that it has since been destroyed.
[84] Mr Burgess also reviewed Mr Algie’s assessment as part of his report, and concluded that the proposed design was a considered approach which balanced the requirements of NTC with the intentions behind the controls, and that it was an acceptable design response.
[85] Mr Foreman asserted that the photographs attached to Mr Burgess’s assessment misrepresented historic development patterns, and he provided the Council with copies of other photographs, which he asserted did illustrate the historic development pattern in this part of Coromandel township. Written advice was also sent by CHPS to the Council regarding the historic development pattern, and asserting that there were short-comings in Mr Burgess’s report. In short, the Council was on notice from an early stage that CHPS considered that Mr Burgess’s assessment was inadequate.
[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 effects of NTC’s application.
[88] This ground for review fails.
Issue (e) – Were the assessment criteria set out in rule 855.1.1 of the Plan correctly applied in the notification decision?
[89] Rule 855 contains the Coromandel Heritage Design Criteria for controlled or discretionary activities. Rule 855.1.1 reads as follows:
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.
[90] Mr Brabant submitted that it was fundamental to the assessment in relation to notification, that an adequate, accurate, and reliable heritage assessment was available to the decision maker. He argued that the requirements in rule 855.1.1 were mandatory and that Mr Burgess, Mr Norwell and Ms Dimmendaal erred when they treated them as being a guide, rather than a mandatory standard. In this regard he relied on an affidavit prepared by a Mr Lawrence on behalf of Coro Mainstreet. Mr Lawrence is director of Lawrence, Cross, Chapman and Company Limited, a Thames-based company specialising in providing environmental planning and resource management services. He expressed the view that rule 855.1.1 is in mandatory language, that the proposal has a considerable setback from Charles
Street, and a drive way to provide vehicle access from Wharf Road. He said that it failed to comply with the rule.
[91] Mr Brabant also relied on a section 32 report, prepared to support the
proposed plan’s provisions, and on an associate report prepared in 1994.
[92] The Council and NTC submitted that these earlier documents were irrelevant, and that the issue is whether the criterion was correctly applied on its face. They submitted that the plan read as a whole, does not require, as a mandatory standard, that all buildings occupy the whole of the street frontage.
[93] In general, it is appropriate to seek the plain meaning of a rule in a plan from the words themselves. It is not, however, appropriate to undertake that exercise in a vacuum. Regard must be had to the context, and where there is obscurity or ambiguity, it can be and often is, necessary to refer to other sections of the plan, and on occasion to the objectives and policies of the plan.8
[94] In interpreting rule 855.1.1, it should be noted that the first sentence required that there shall be no setbacks from the street, and that buildings shall address the street. It then goes on to provide that buildings should occupy the full length of the site. The difference in terminology suggests the matter dealt with in the second sentence is not a strict standard, which has to be met in itself.
[95] This view is reinforced if reference is made to other provisions in the Plan. Rule 536.1 provides that each discretionary activities is to be assessed according to the assessment criteria for discretionary activity in section 8 (850). It also provides that a discretionary activity “shall comply with” relevant standards set out in a table forming part of the plan. In other words, the parent rule draws a distinction between assessment criteria and standards.
[96] Rule 850 sets out assessment criteria, and rule 851.1 provides that proposals which are a discretionary activity are to be “evaluated in accordance” with various
assessment criteria. Rule 855.1.1 is one of the assessment criteria. It is specific to
8 Official Bay Heritage Protection Society Inc v Auckland City Council [2007] NZCA 511, [2008] NZRMA 245.
the Coromandel heritage area. Rule 851.2 states that not all of the matters listed in the assessment criteria will be relevant to all proposals.
[97] In my view, the Plan suggests that the criteria identified in 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.
[98] Ms Dimmendaal in her report considered whether or not the proposed NTC building should occupy the full width of the site. She referred to the rule, and to Mr Burgess’s view that it was not appropriate on the application site to require full compliance with the control, given historic patterns of development in the area, and given that the rule was not intended to create heritage. After noting Mr Burgess’s views, she expressed the view that the effects on the heritage character and amenity of the surrounding town centre would be less than minor. That was a view which was open to her on the materials which were before her. She did not have Mr Lawrence’s views before her when she considered whether or not to process the application on a non-notified basis, and in any event, I am not persuaded that Mr Lawrence’s views are correct. The word shall can mean may, and the word should is not of itself necessarily prescriptive. Moreover, Mr Lawrence has failed to consider wider plan provisions.
[99] This ground of review also fails.
Issue (f) – Was consent as a non-complying activity required pursuant to the
District Plan?
[100] Mr Brabant accepted that the activity status of NTC’s proposal – that is whether it was discretionary or non-compliant - was not material to the Council’s notification decision. Nevertheless, he argued that consent as a non-complying activity was required, and that the Council failed to properly interpret and apply the applicable District Plan rules and criteria. In this regard, he referred again to the affidavit filed by Mr Lawrence.
[101] Both the Council, and NTC submitted that the application was correctly assessed as being for a discretionary activity, rather than non-complying activity.
[102] As noted, the application site is zoned “Town Centre (Heritage Policy Area)” in the plan. It required consent in a number of respects. Rule 532.4.1 provides that commercial activities in the Town Centre (Heritage Policy Area) are discretionary activities if they meet the assessment criteria and protocols set out in rule 536.9
[103] Rule 536 provides that each discretionary activity shall be assessed according to the assessment criteria for a discretionary activity in Section 8 (850), and the information requirements in the notification protocols set out in Section 8 (820 and
840). As I have already noted, rule 536 only requires the discretionary acitivity be assessed according to the assessment criteria. It does not require that an application comply with each criterion.
[104] As I have already noted rule 850 sets out the assessment criteria for discretionary activities. It contains, relevantly, two sections — rule 851 which contains general criteria that are relevant to all discretionary activities, and rule 855, which lists specific criteria for heritage design in Coromandel.
[105] Rule 851.2 expressly states that not all of the matters listed in the assessment criteria are relevant to all proposals, and that the detail and depth of analysis required for any particular proposal depends upon a number of factors, some of which are listed. It follows, that a decision maker need only consider those criteria which are relevant, to any particular application.
[106] In my judgment, Ms Dimmendaal correctly approached the matter, and the application was correctly processed as being for a discretionary activity. The proposed activity is not a non-complying activity under the relevant non-complying rule in the plan — rule 532.5. It meets the relevant conditions for discretionary activities under rule 532.4. As it met the discretionary activity standards, it was not a
non-complying activity.
9 The Plan refers to rule 546. It was common ground, accepted by all parties, and by the planners, that this is in error, and that the correct reference is to rule 536.
[107] This ground for review also fails.
Issues (g), (h) and (i)
[108] These matters can all be considered together. In my judgment the Council’s decision not to notify the application was not effected by any error of law. The Council did not fail to take into account relevant considerations, and its decision did not rely on insufficient and/or inadequate information. Nor, can it be said that the Council’s decision was manifestly unreasonable.
[109] The application for review fails. Given that the application for review is unsuccessful it is not necessary to consider the issue of standing.
Costs
[110] The Council and NTC are entitled to their reasonable costs and disbursements. In that regard, I direct as follows:
(a) In the event the Council and NTC seek costs, they are each to file a memorandum in that regard, within ten working days of the date of this judgment.
(b)Coro Mainstreet is to file any memorandum in reply within a further ten working days.
[111] Memoranda are not to exceed ten pages in total. I will then deal with the issue of costs on the papers, unless I require the assistance of counsel.
Wylie J
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