Sydney St Substation Limited v Wellington City Council
[2017] NZHC 2489
•11 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2017-485-11 [2017] NZHC 2489
BETWEEN SYDNEY ST SUBSTATION LIMITED
Applicant
AND
WELLINGTON CITY COUNCIL First Respondent
AND
EQUINOX CAPITAL LIMITED Second Respondent
Hearing: 29 May 2017 Counsel:
P J Radich QC and E M McCann for Applicant
K M Anderson and K M Krumdieck for First Respondent
F B Q Collins for Second RespondentJudgment:
11 October 2017
JUDGMENT OF ELLIS J
[1] The Old Sydney Street Substation (the Substation) is a heritage listed Category II building located at what is now 19 Kate Sheppard Place in Thorndon, just a few doors down from the Wellington High Court.1 It has historical significance as one of the first substations constructed to distribute electricity in Wellington after the Mangahao hydro power station began operation in 1924. The building is also of some architectural significance due to what has been described as its “quirky mixture of architectural styles”.2 It has two storeys, the lower of which originally housed the transformers and other substation equipment. The upper level has always been a home. That unusual and experimental combination of utilitarian and residential design is regarded as adding to its architectural interest. A heritage
covenant was placed on the building in 2011, under the Historic Places Act 1993.
1 Kate Sheppard Place was, until 1993, known as Sydney Street.
2 It has been said to comprise a mix of “Elizabethan and Jacobean” architecture.
[2] In 2013 the Crown sold the building to the applicant in these proceedings, Sydney St Substation Ltd (SSSL). SSSL is owned by Trevor and Jillian Lord. SSSL renovated and strengthened the building to some acclaim, with the assistance of a Wellington City Council (WCC) grant. The entirety of the building is now used for residential purposes.
[3] Most other buildings in the vicinity of the substation are multi-level office blocks of limited street appeal. The present application for judicial review concerns the approval by WCC of a resource consent authorising the construction of another such building immediately adjacent to the Substation, on a site which is presently a car-park. In short, SSSL says that WCC was wrong to grant the consent and also wrong to even consider it on a non-notified basis. They say that the Substation will be significantly adversely affected by the proposed construction.
[4] Before turning to consider the merits of SSSL’s claim it is necessary to set out the process around the resource consent in more detail, and to say something about the relevant statutory provisions.
The application for resource consent
[5] The second respondent, Equinox Capital Limited (ECL) applied to the WCC
for a resource consent to construct a building at 9 Kate Sheppard Place on
2 June 2016.
[6] The application was for the construction of a ten storey (plus basement) building to a maximum height of 39.5 metres above ground level, and associated earthworks. The proposed building use was residential (63 apartments), hotel (39 rooms and ground level hotel lobby) and commercial (ground floor only), with a service/loading area and car parking. The total mass of the building would be
32,422m3, split over three allotments.
[7] An architectural drawing of the proposed development in relation to the Substation can be seen on the next page (the height of the eight storey Environment House can be seen from the outline on the right hand side of the Substation).
The District Plan and the relevant statutory provisions
[8] As with any case such as this, the relevant regulatory statutory matrix is a combination of the relevant District Plan and the provisions of the Resource Management Act 1991 (the RMA). The RMA requires the preparation of a District Plan for each District in accordance with that Act. The purpose of a District Plan is to assist the relevant territorial authority to perform its functions under the Act. By virtue of s 76 of the RMA, a territorial authority may include rules in a District Plan for the purpose of carrying out its functions under the Act, and achieving the objectives and policies of the Plan. Any such rule has the force and effect of a regulation under the Act.3
[9] Section 84 of the RMA requires the relevant local authority to comply with
(and enforce the observance of) any operative [policy statement] or plan.
3 But to the extent that any such rule is inconsistent with any such regulation, the regulation prevails: s 76(2).
[10] Section 87A(3) of the RMA states (inter alia) that if an activity is described in a District Plan as a “restricted discretionary activity” a resource consent is required for the activity. Subsection (3) goes on relevantly to state that, in the case of a restricted discretionary activity:4
the consent authority’s power to decline a consent, or to grant a consent and to impose conditions on the consent, is restricted to the matters over which discretion is restricted …
[11] In other words, there is only a discretion to decline to grant a resource consent for a “restricted discretionary activity” on the basis of matters which are specified in the District Plan as being matters to which the discretion relates.
[12] Determination of an application for a resource consent is governed by s 104, which relevantly provides:
(1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–
(a) any actual and potential effects on the environment of allowing the activity; and
(b) any relevant provisions of—
(i) a national environmental standard: (ii) other regulations:
(iii) a national policy statement:
(iv) a New Zealand coastal policy statement:
(v) a regional policy statement or proposed regional policy statement:
(vi) a plan or proposed plan; and]]
(c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.
[13] And s 104C(1) emphasises (again) that:
When considering an application for a resource consent for a restricted discretionary activity, a consent authority must consider only those matters over which—
4 Section 87A(3)(a).
(a) a discretion is restricted in national environmental standards or other regulations:
(b) it has restricted the exercise of its discretion in its plan or proposed plan.
The relevant rules in the District Plan
[14] Here, the operative plan is the Wellington City District Plan (the District Plan). That Plan places 9 Kate Sheppard Place in the “Central Area” zone. The site is located within what is called in the District Plan the “low city” height area.5
Specific height limits within that area have been set. I will return to that point, later.
[15] In the present case, several of the Rules in the District Plan mean that the proposed construction by ECL is a “restricted discretionary activity”. But it is only Rules 13.3.4 and 13.3.8 which are presently relevant.
[16] Rule 13.3.4 effectively provides6 that (with certain immaterial exceptions) the construction of new buildings in the Central Area is a restricted discretionary activity “in respect of” (inter alia):
(a) design, external appearance and siting; and
(b) placement of building mass;
[17] The marginal note (for want of a better term) to r 13.3.4 states in part:
Building work covered by rule 13.3.4 will be assessed against the provisions of the Central Area Design Guide.
[18] The Central Area Design Guide (CADG) forms part of the District Plan. I
will return to it shortly.7
5 The District Plan seeks to ensure that Wellington’s high rise buildings are clustered within an area identified as “high city”, which is centred on Lambton Quay and Willis Street, with lower buildings spread out towards the north and south of the balance of the Central Area, out to its boundaries.
6 I do not set out the relevant rules verbatim because, for a layperson at least, they are worded in the most incomprehensible manner. I do not think my paraphrasing of them will give rise to any issues or interpretive debate.
7 The CADG is also sometimes referred to as the CAUDG (the Central Area Urban Design
Guide).
[19] The marginal note to r 13.3.4 also makes it clear that if the proposed building does not comply with the relevant standards in r 13.6.1 or 13.6.3, r 13.3.8 will also apply. So in the present case, r 13.3.8 applies because the proposed building exceeds the 35.4 metre height standard (for the low city area) in r 13.6.3. And r 13.3.8 effectively provides that the construction of a building in breach of the height standard is a restricted discretionary activity, but with the discretion being relevantly limited to the effect of the building height on:
(a) the amenity of surrounding streets, lanes, footpaths and other public spaces;
(b) the historic heritage value of any listed heritage item in the vicinity; (c) the urban form of the city;
(d)the character of the surrounding neighbourhood, including the form and scale of neighbouring buildings; and
(e) any adjacent Residential Area.
Part 12 of the District Plan
[20] Part 12 of the District Plan sets out WCC’s objectives and policies in terms of development in the Central Area. The height of new buildings in the area is dealt with under Objective 12.2.5 which states that the Council’s overarching objective is to be to:
Encourage the development of new buildings within the Central Area provided that any potential adverse effects can be avoided, remedied or mitigated.
[21] In terms of how that objective is to be achieved, Policy 12.2.5.1 states that the Council will, by reference to the District Plan and to Design Guides:
Manage building height in the Central Area in order to:
• reinforce the high city/low city urban form;
•ensure that new buildings acknowledge and respect the form and scale of the neighbourhood in which they are located; and
•achieve appropriate building height and mass within identified heritage and character areas.
[22] The commentary which follows that Policy notes (inter alia):
Height standards are provided for new building works within the Central Area. These heights provide an indication of the scale of buildings that are appropriate in different parts of the central city. Given the diversity of sites and uses within the Central Area, and given that some properties may not be developed for decades, if ever, it is considered that some variation in the heights of new buildings is inevitable. Accordingly it is not anticipated that the District Plan provisions will result in a rigid uniformity of building height. The focus of the District Plan is therefore not to control building height absolutely, but rather to manage the scale of new buildings to ensure that they respect and reinforce the Central Area's ‘high city/low city’ urban form, and the scale and character of existing neighbourhoods and identified heritage areas.
[23] The commentary goes on:
In many neighbourhoods within the Central Area the height standards specified in District Plan are significantly higher than the height of the existing building stock. In most locations it is anticipated that, overtime (sic), the majority of properties will be developed in accordance with the heights specified in the Plan. However it is acknowledged that there are some properties and neighbourhoods that are less likely to undergo significant development. This can be the result of fragmented ownership patterns, legal encumbrances or the imposition of planning regulations such as heritage listings. Any application for resource consent for a building that exceeds the height standards in the District Plan, must consider the scale and character of existing buildings in the surrounding neighbourhood, and assess the likelihood that that scale will change over time.
[24] Further, more specific relevant objectives in Part 12 include:
(a) at 12.2.5.4:
To allow building height above the specified height standards in situations where building height and bulk have been reduced elsewhere on the site to:
•provide an urban design outcome that is beneficial to the public environment, or
•reduce the impact of the proposed building on a listed heritage item
Any such additional height must be able to be treated in such a way that it represents an appropriate response to the characteristics of the site and the surrounding area.
(b) and at 12.2.5.5, to:
Require design excellence for any building that is higher than the height standard specified for the Central Area.
[25] The commentary that follows this latter objective states:
As all buildings contribute to the character and public environment of central Wellington, design quality is a fundamental consideration in the assessment of any development application (see policy 12.2.6.2). The issue of design quality is even more important for buildings of unusual height or bulk, which due to their size, height and massing can have a significant impact on the city, both at street level and from a distance. To ensure that over height buildings visually enhance the cityscape of the Central Area, the Council will require that they display design excellence.
…
Design excellence is also required for buildings that are tall in relationship to the surrounding neighbourhood. Though not ‘exceptionally’ tall, these buildings can still be highly visible and have a significant impact on the character of the surrounding neighbourhood. As such they require careful consideration, and should display a quality of design that corresponds appropriately to their level of visibility.
The CADG
[26] I have noted earlier that r 13.3.4 specifically requires consideration of the
CADG. The CADG itself states that it is to be read in conjunction with Part 12 and
13 of the District Plan. It applies to all new buildings and additions within the Central Area and sets out detailed objectives and generic guidelines for such buildings and additions.
[27] The CADG states that:
Sometimes, a design objective may be best achieved by means not anticipated in these guidelines. In this situation, it is justifiable to depart from a guideline if it can be demonstrated that the alternative design solution better satisfies the associated design objective.
[28] The CADG sets out a raft of objectives and guidelines (which are designed to achieve the objective to which they relate) under six headings:
(a) Design Coherence;
(b) Relationship to Context;
(c) Siting, Height, Bulk and Form; (d) Edge Treatment;
(e) Facade Composition and Building Tops; and
(f) Material and Detail.
[29] Under the heading “Design Coherence” the CADG states:
The notions of design coherence and relationship to context … are over-arching principles that underlie all the objectives and guidelines in this document.
[30] It is certain of the objectives and guidelines relating to “Relationship to
Context” and to “Siting, Height, Bulk and Form” that are most relevant here.
[31] Under the heading “Relationship to Context” objective 2.2 is to:
… maintain or enhance the quality of the settings of individual heritage buildings, including those in heritage areas.
[32] And the related guidelines state (inter alia):8
G 2.1 Consistency or contrast
Maintain consistency with defining and valued neighbourhood patterns. Contrasts should be created only if the development is significant on a district or city-wide scale and/or accommodates a unique or publicly significant function.
…
8 The italics here and in other quotes below are in the originals.
New development should attempt to complete, improve and enhance the setting of heritage areas and individual buildings or groups of buildings listed as heritage items in the District Plan.
…
G2.2 Positive precedents
Refer to positive rather than negative precedents:
Where existing patterns are negative, or buildings have features that demonstrably compromise the quality of their setting (as determined by reference to this guide), these 'non-contributing' buildings or features should not be used as precedents or references for new development.
[33] The section entitled “Siting, Height, Bulk and Form” begins by noting:
Height and bulk are both relative concepts. Buildings of great height or bulk can easily overwhelm their immediate surroundings. Where the length, width and/or height of a new development conflicts with the physical scale and texture of its surroundings, various design techniques may be employed to modify and mitigate the visual impacts.
Height
… Building height becomes a particular issue when a building is elevated
significantly above its neighbours, creating potential problems such as visual domination, shading of public open spaces, and wind effects. When
the building extends above the height limit, the risk of excessive shading of
neighbours also becomes relevant. As new building extends above its neighbours, an increasingly skilled and sophisticated design response is required to achieve a satisfactory result. Conversely, a building that is much lower than its neighbours can break the coherence of the street edge.
[34] Then, objectives 3.1 and 3.2 are to:
… complement existing patterns of alignment, and achieve a positive scale relationship with adjoining buildings and public spaces.
[and]
… respect the setting of heritage items and identified heritage areas.
[35] And the relevant related guideline states:
G 3.5 Height and scale relationship
Ensure new buildings do not dominate lower adjacent public spaces and neighbouring buildings by moderating their height at and close to the street edge. This will achieve a scale transition between the higher and lower buildings/spaces.
This can be done by techniques including:
− boundary setbacks at high level;
−secondary forms of similar dimension to those of the lower buildings, placed to act as transitional volumes;
−physical separation of large tall buildings from those that are much lower;
−reduced height adjacent to much lower buildings or spaces where shading is problematic, and;
−significantly reducing the site area for the tallest components of the building, while potentially retaining full site coverage at lower levels.
Where a new development adjoins a heritage building that is four storeys or less, its height should be not more than one storey above the heritage building, over an area extending approximately 5-8 metres along and back from the street frontage at the common boundary with the heritage building. Where the heritage building is six storeys high, new building should be restricted to not more than two storeys higher at the boundary in order to avoid visual dominance and achieve a scale transition. Where a heritage building is proportionally higher or lower than these references, the extent of increased height relative to the heritage building increases or decreases respectively.
Notification requirements under the RMA
[36] Notification is governed (in the first instance) by ss 95A to 95D of the RMA. Section 95A governs when public notification is required. It provides:
(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
…
(3) Despite subsections (1) and (2)(a), a consent authority must not publicly notify the application if—
(a) a rule or national environmental standard precludes public notification of the application; and
(b) subsection (2)(b) does not apply.
(4) Despite subsection (3), a consent authority may publicly notify an application if it decides that special circumstances exist in relation to the application.
[37] In turn, s 95D relevantly provides that:
A consent authority that is deciding, for the purpose of section 95A(2)(a), whether an activity will have or is likely to have adverse effects on the environment that are more than minor—
(a) must disregard any effects on persons who own or occupy—
(i) the land in, on, or over which the activity will occur;
or
(ii) any land adjacent to that land; and
…
(c) in the case of a controlled or restricted discretionary activity, must disregard an adverse effect of the activity that does not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion[.]
[38] So s 95D(c) makes it clear that when deciding whether to publicly notify an application for resource consent for a restricted discretionary activity, a consent authority must consider only those matters over which it has restricted the exercise of its discretion in its District Plan. That is, of course, consistent with the position under ss 87A(3) and 104C in relation to substantive consent decisions in relation to restricted discretionary activities, discussed above.
[39] If public notification is not required, a decision must nonetheless be made as to whether “limited notification” is required under s 95B. Limited notification of any “affected person” is required unless “a rule or national environmental standard precludes limited notification of the application” (s 95B(2)). This exception is the same as that contained in s 95A(3), quoted above.
[40] Whether or not someone is an “affected person” is governed by s 95E, which states that:
(1) A consent authority must decide that a person is an affected person, in relation to an activity, if the activity’s adverse effects on the person are minor or more than minor (but are not less than minor).9
(2) The consent authority, in making its decision,—
…
(b) in the case of a controlled or restricted discretionary activity, must disregard an adverse effect of the activity on the person that does not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion; …
…
[41] As already noted the obligation either to publicly or to limited notify are both subject to an exception where “a rule … precludes” such notification (ss 95A(3) and
95B(2)). Those provisions (and the concept of preclusion) were enacted by way of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. In Coro Mainstreet Inc v Thames-Coromandel District Council the Court of Appeal observed that the amendments effected by that Act were directed at providing greater scope for non-notification and encouraging efficiency.10 The Court noted that the presumption in favour of notification had been removed, and that Councils no longer needed to be “satisfied” that the relevant adverse effects were sufficiently minor but could now simply “decide” that they were.11
[42] In the present case, the rules contained in 13.3.4 and 13.3.8 of the District Plan (to which I have referred above) are each followed by statements (under the headings “non-notification/service”) that rule 13.3.4 and 13.3.8 applications “do not need to be publicly notified and do not need to be served on affected persons”.
[43] One of the issues in the present case is whether these provisions in the rules are “preclusions” which, by and of themselves, would mean that neither public nor limited notification of ECL’s application was required, regardless of what the
outcome of an application of ss 95A and 95B might have been.
9 “Person” is defined in s 2 to include (inter alia) bodies corporate.
10 Coro Mainstreet Inc v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA
73 at [34].
11 At [39].
Processing ECL’s resource consent application
[44] On 20 June 2016, Mr Lord contacted the Council outlining his concerns about ECL’s proposal. He referred specifically to the location of a garage door in the driveway abutting the Substation, and the proposed canopy, which appeared in the drawings to touch the Substation. He also expressed concern about noise, obstruction of views and light, and a loss of amenity. An exchange of emails followed.
[45] The Council received an amended resource consent application from ECL on
30 June 2016. On 5 July 2016 the application was formally accepted for processing. Mr Nathan Keenan was the Council planner who was charged with processing and determining the application.
[46] On 22 July 2016, Mr Keenan undertook a site visit to the Substation Building to gain an understanding of the proposed development from the perspective of the Substation Building site.
[47] Internal and external advisors to the council were also provided with a copy of the application and asked to provide input on it. These advisors included Ms Moira Smith (Senior Heritage Advisor) and Mr Andrew Burns (Consultant Urban Design Officer).
[48] Ms Smith assessed the proposed development in terms of its impact on heritage values. Her advice was that the proposal would have “a significant adverse effect on the substation building”. She recommended compliance with G3.5 of the CADG (involving reducing the height of the proposed building by three storeys where it is within 8 metres of the Substation) in order to mitigate those effects.
The impugned decisions
[49] Both the notification decision and the substantive decision on the application were made on 14 October 2016. Apparently this is common practice. The upshot was that the application for resource consent was granted on a non-notified basis, subject to conditions. The decisions were recorded in a single document, which
Mr Keenan said is also common practice. Each needs to be read in conjunction with the other.
[50] The reasons for the two decisions were summarised near the beginning of the decision document as follows:
1.The proposal is for a Discretionary (Restricted) Activity and as such, only matters over which discretion has been restricted in the relevant rules have been considered.
2.The Wellington City District Plan (the District Plan) states that the application does not need to be publicly notified or limited notified. There are no rules requiring public or limited notification of the application.
3.In any event, the adverse effects of the application on the wider environment will be minor and there are no affected persons.
4.There are no other reasons or special circumstances which warrant public or limited notification of the application.
5.Pursuant to section 104 of the Act, the effects of the proposal on the environment will be acceptable.
6.The proposal is generally in accordance with the relevant objectives and policies of the Regional Policy Statement, District Plan, and also Part 2 of the Act.
Notification
[51] The notification decision is subsequently (and relevantly) elaborated as follows:
Section 95A(3)(a)/95A(2)(c)/95B(2) - the proposal is for a Discretionary (Restricted) Activity. All the relevant rules contain the same clause that directs that the application does not need to be publicly notified or served on affected persons (limited notified).
I have turned my mind to whether there is any reason to publicly or limited notify this application and whether there are any circumstances that would indicate whether a departure from this non-notification presumption is appropriate. In my view, nothing about this application raises the need for notification and nor is it likely to result in the Council receiving further information relevant to the issues for determination on the substantive application. On this basis, I consider that the application does not need to be publicly or limited notified.
In any event, the adverse effects of the activity on the wider environment will be minor (s 95A(2)(a) and section 95D) and no persons are affected by the application. I have set out the reasons for this within section l04(l)(a) of
my substantive assessment below. Given the conclusions reached that adverse effects on the wider environment will be minor and adverse effects on persons less than minor, it is considered that this assessment can be relied upon for the purpose of this s 95 analysis.
Section 95A(4) - There are no special circumstances relating to this proposal that require it to be publicly notified. Special circumstances are circumstances that are unusual or exceptional, but may be less than extraordinary or unique. There is nothing to suggest that there are unusual or exceptional circumstances relevant to the proposal.
There are no affected persons in respect of this application (s 95B/95E). It is noted that neighbours have registered an interest in works occurring on the subject site. Neighbour interest does not deem them to be affected parties under the tests of the Act or qualify as special circumstances under the Act in this case.
[52] Immediately following these reasons is the s 104 assessment of the application. As the notification reasons just quoted suggest, that assessment forms the centrepiece of not only the substantive decision but also incorporates the “adverse effects” (notification) analysis. Its relevant part is structured around the matters in relation to which discretion is restricted under r 13.3.4 (Urban Form/Design) and r 13.3.8 (Height and Building Mass). The six matters covered by the CADG are considered in relation to r 13.3.4, as required by the marginal note to that rule.
[53] Importantly, however, the assessment as a whole is prefaced with the following statement:
While there is no permitted baseline with respect to the construction of a new building in the Central Area, it is noted that the District Plan does anticipate (subject to design criteria), a certain level of development on such sites. On the subject site, the District Plan anticipates a building of up to
35.4 metres in height from ground level, with 75% mass across the site
(subject to design, external appearance and siting). In this instance whilst the proposed building has a maximum height of 39.4 metres (along the Lambton Quay elevation), the building volume of 32,422m3 equates to a mass of only
53% across the site compared with 75% anticipated by the District Plan. …
Figure 2 and 3 below shows an anticipated development model under the
District Plan (height and mass) against the development proposed, provided by the applicant. Whilst it is acknowledged that the following figures provide a rudimentary representation of a building, it does demonstrate that a building mass and bulk greater than that proposed can be reasonably anticipated for the site. The following assessment of effects is made with the scale of development anticipated by the District Plan in mind.
[54] This notion of an “anticipated development model” baseline forms a cornerstone of the analysis which then follows.
Rule 13.3.4 assessment
[55] In terms of the r 13.3.4 analysis of Urban Form/Design, the report notes that the required assessment against the CADG was prepared by Dr Morten Gjerde (an architect and designer engaged by ECL) and peer reviewed by the Council’s Consultant Urban Designer, Mr Burns. Much of Dr Gjerde’s analysis (which was ultimately accepted) is set out verbatim in the report, although any differences of view by Mr Burns are also recorded.
[56] Under the CADG heading “Relationship to Context” Dr Gjerde is recorded as
saying:
The height and volume of the larger building would relate well to Environment House, particularly in midrange and distant views taken from the south. The height of the proposed building is consistent with that building and with the low city height limits established for sites in this part of the Central Area. The new building would reinforce the desired urban form for this part of the city.
A less favourable height and contextual relationship is formed with the 1925
Former Substation building between this site and Environment House. Any contemporary building that is built to the street edge and which takes advantage of the full development potential of the site would struggle to achieve a strong relationship, this because of the older buildings diminutive height (relatively speaking) and period detailing. Several factors help reassure me that the approach taken with this project is sound. Firstly, the new building and Environment House would effectively form bookends to the older building framing it and highlighting it between this and the previous contemporary interventions. In this case the consistency of the contrast seen between newer buildings and the older former substation is appropriate and will help highlight its existence in the street, providing a valuable link to the past. Because of the quality of its design composition and detailing the older building establishes quite a presence in the street. I have no doubt it will be able to hold its own despite clear height differences. Secondly the proposed building is set back from its neighbour, showing it somewhat greater respect than was shown by Environment House, which is built up to the shared boundary. In addition, the lower height of the retail elements on the other side of the main tower held create appropriate compositional relationships with the lower height buildings around the site including the Former Substation. After considering all relevant factors I am confident the contextual relationship between the proposed building and the 1925 Former Substation Building will be appropriate.
[57] In terms of the relevant CADG guidelines Mr Keenan then notes (inter alia)
that:
(a) the design was amended in August 2016 to improve the relationship with the Thistle Inn and to reduce the contrast with the main building form, thus ensuring “greater consistency with G.2.1”;
(b)the modulation in the facade design adds depth and visual interest, enhancing the quality of the design and relationship with neighbouring buildings “in line with G.2.3”; and
(c) despite the changes to the design to “improve the relationship of the development to context”, there remains a difference of professional view between Mr Burns and Dr Gjerde. He prefers Dr Gjerde’s conclusion and considers that the proposal is consistent with G2.3.
[58] Next, the report moves to the CADG objectives and guidelines under the
heading “Siting, Height, Bulk and Form”. It records Dr Gjerde’s views that:
The plan layout overall form of the project help define the edges of Kate Sheppard Place, including around the intersection with Mulgrave Street. Guidelines G3.1 to G3.4 are achieved.
I am of the opinion that the way the forms have been modelled help the project relate well to the Thistle Inn and the taller buildings around the site. The location of the principal form set slightly back from the boundary shared with the 1925 Former Substation helps achieve an appropriate contextual relationship between these two structures. Overall I believe G3.5 is met.
[59] Mr Keenan then goes on to note:
In regards to siting, bulk, height and form, Mr Burns considered that the proposal is not significantly larger than its neighbours (Environment House/Justice Centre) however, the building bulk needed to be addressed. As a result, the applicant has modified the design to provide more visual expression in terms of the boxed out frames, increased height of the building in the eastern corner, and a greater level of articulation at the base and top of building elements. Given the anticipated level of development on the site (a building 35.4m high with a mass of 75%), it is considered that adverse effects in terms of building placement, shading of public space, and bulk and dominance effects of the proposal are comparable. I consider that through
setbacks, height contrast and building articulation, the proposal development is consistent with G3.1 - G3.8 and G3.12
(emphasis added)
[60] After considering other CADG matters, the report concludes (in relation to r 13.3.4 Urban Form/Design) that:
Overall, based on the amended plans submitted on the 4 August 2016, and the advice provided by the two urban design experts, I consider that the design, external appearance and siting effects of the proposal are acceptable.
[61] Mr Keenan then went on to consider the r 13.3.8 issue of “Height and Building Mass” and the effects on the heritage value of the old Substation. It is there that he refers to Ms Smith’s recommendation to comply with G3.5 which I have noted above, in response to which he says:
The proposal is setback 6 metres at ground level from the substation building, and setback 3 metres above first floor level [and] therefore retain[ing] some openness in relation to the substation building. The CAUDG seeks to avoid visual dominance of heritage buildings which the application has attempted to do through the setback and car parking building. Notwithstanding that, it is noted that Environment House to the west of the substation building is constructed to a height of 27 metres and directly abuts the building. With this in mind, I consider the design response in terms of framing the substation building through a taller building (while being slightly setback), creates visual interest and results in a more appropriate relationship with the street. While this approach may not be directly in line with the guidelines of G3.5, Dr Gjerde considers that the setback proposed between the substation building achieves an appropriate contextual relationship between these two structures. This advice is accepted.
[62] He then goes on:
While Ms Smith's comments regarding the impact on the substation building are noted, the District Plan sets an anticipated building height limit of 35.4m for the site. The applicant has set the building back from the substation building by 6m at ground level and 3m above first floor level. In addition, built form to the south-west has been restricted to a low level car parking building, which does retain some openness on the site as opposed to a proposal anticipated under the District Plan (refer to figure 2). In terms of urban design, both urban design experts consider that the framing of the heritage building will provide bookends to the substation building, highlighting it between two contemporary interventions. It is also noted that the over height portion of the building (4.1m through the 35.4m height plane) is located to the south east of the substation building and is screened by sections of the building within the 35.4. On balance, taking into account the anticipated scale of development for the subject site, the design modifications undertaken during the design review process, the setback of
the building, and the consent conditions offered by the applicant, I consider that the overall likely and potential effects of the proposal on historic heritage of the substation building over and above that anticipated by the District Plan to be no more than minor.
(emphasis added)
[63] Mr Keenan subsequently concludes that “overall” the effects of the proposal
on the historic heritage values of listed items in the vicinity are acceptable.
[64] The next part of the decision report considers the proposal in relation to the Wellington Regional Policy Statement and is not presently relevant. Then, Mr Keenan considers it by reference to the applicable objectives and policies contained Part 12 of the District Plan, many of which I have noted above. Much of the analysis repeats that which has been recorded earlier and I only need note here what is said in relation to Policy 12.2.5.5 (Require design excellence for any building that is higher than the height standard specified for the Central Area). Mr Keenan says:
The proposal breaches the maximum height standard for the Central Area therefore is required to achieve design excellence. The proposal has been assessed by the Council’s Urban Design Advisor, Mr Andrew Burns and the applicant's urban design expert, Mr Morten Gjerde. A difference in professional opinion is present between these experts as to the level of design excellence required (given that the 4.1m breach is on one elevation and is a result of topography). Mr Gjerde concludes that the design is appropriate, that the design is visually interesting, of appropriate scale and its overall design composition coherent. Mr Gjerde further concludes that if we consider design excellence to be on a sliding scale from a level considered appropriate in every respect to a level that is excellent in every respect, we could look at the current design and note that it does rise towards excellence. Mr Gjerde considers that the pedestrian through link, the contextual scale of the retail area to the Thistle Inn, and the articulation in the building that creates visual interest results in a project better than the expected standard and therefore rises towards design excellence. Mr Burns does not consider the proposal to meet the required test for design excellence due to the asymmetrical approach to the eastern part of the southern facade, and repetition of the lowered glazed facade unit and the connecting link to the stairwell traversing past the lower hotel units.
In assessing the requirement for design excellence, consideration has been given to the level of the height breach, the building orientation and form and the articulation that all add to design quality. While the proposal may not achieve complete design excellence in terms of the overall development, it is acknowledged that, the height breach is a result of falling topography, amounts to 106m2 in area, and results in a more functional design. The through link, boxed frames, lowered building forms and articulated building materials all contribute towards achieving a high quality built development. As such, I accept the advice of Dr Gjerde as the proposal rises towards
design excellence, the extent of the breach and contribution to the overall design; in this instance the quality of design is considered acceptable. Notwithstanding that, the proposal would not be entirely consistent with the aforementioned policy.
(emphasis added)
[65] The remainder of the decision report is not presently relevant. The overall outcomes have already been noted above.
The application for review
[66] The application for review attacks both the decisions not to notify and the substantive decision itself. Because the reasoning in relation to the notification decision is dependent on the reasoning in relation to the substantive (s 104) decision (and I must confess I have some doubts as to the wisdom of this conflationary practice) it is necessary to consider the substantive decision first.
Substantive decision
[67] The substantive decision is pleaded to be unlawful because the Council’s assessment of the likely effects of the Proposed Building was flawed in a number of respects. For present purposes it suffices to focus on the contentions that:12
(a) the “anticipated development model” is not a matter that the Council could lawfully take into account;
(b) the Council wrongly failed to apply the CADG and, in particular
G3.5;
(c) the Council unreasonably and unlawfully rejected Ms Smith’s assessment that the Proposed Building would have a significant adverse effect on the heritage value of the Substation Building and
that in order to mitigate that effect G3.5 should be applied; and
12 It suffices because the contentions on which I focus are those which I consider have foundation.
(d) the Council erred in failing to meet its obligations under Policy
12.2.5.5, namely that the Council is to “require design excellence for any building that is higher than the height standard specified for the Central Area”.
[68] Each will be addressed in turn.
The “anticipated development model”
[69] As should be evident from my review of the decision report above, Mr Keenan based important parts of his analysis on a comparator involving “what sort of development could be expected on this site under the current District Plan”. Central to that comparator was the r 13.6.3 height standard of 35.4 metres. In other words, he proceeded on the assumption that a building of 35.4 metres or less tall or was permitted on the site without the need for considering the height restrictions or any adverse effects that might be caused by a building of that height, in terms of either the environment generally or potentially affected persons.
[70] As Mr Keenan rightly acknowledged, however, the 35.4 metre height standard could never be a “permitted baseline” because there are no permitted new buildings in the Central Area; the effect of r 13.3.4 is that a new building will always be a restricted discretionary activity. But, he said, Policy 12.2.5.10 encourages consideration of the anticipated development informed by the building height and mass standards in the Plan.13
[71] I can see the logic of this approach when considering r 13.3.8. The point is a simple one. Had the Proposed Building not breached the 35.4 m height standard, then consideration of r 13.3.8 would not have been required. So when consideration is required to be given to the effects of a departure from that standard (and whether those effects are adverse) it makes sense to consider the extent of the departure. The smaller the deviation, the less serious its effects are likely to be. This appears to
have been Mr Keenan’s thinking. And he is, of course, also right that one of the
13 The Policy is to “Provide for consideration of ‘permitted baseline’ scenarios relating to building height and building bulk when considering the effect of new building work on the amenity of other Central Area properties.”
matters which must be considered under r 13.3.8 is the effect of height on the historic heritage value of any listed heritage item.
[72] But this logic is not so obvious in relation to a consideration of r 13.3.4, which is not concerned with height per se, but with design, external appearance, siting and placement of building mass. And as that rule makes clear, it is those matters which are particularly required to be considered by reference to the CADG.14 And when the CADG talks about height, it does so in terms of relationships with other buildings and in specific contexts, which specifically include the “setting of heritage items”. It seems quite plain that an application for a resource consent in relation to a proposed development in the “low city” area that was under
35.4m in height (and so was not a restricted discretionary activity in terms of r 13.3.8) could still fall foul of r 13.3.4 because of its relative or contextual height.
[73] It is therefore (in my respectful view) overly simplistic and potentially wrong to judge r 13.3.4 matters (and the matters covered by the CADG) by reference to a
35.4m baseline. Indeed to use that baseline when considering the CADG risks rendering the “over-arching” CADG requirement to consider the relationship between a proposed development and its specific context, meaningless. So although Mr Keenan was correct to observe that Ms Smith had not used an “anticipated development model” (based on a 35.4 m height baseline) when assessing the effect of the proposal in relation to the Substation against the CADG, I consider she was right not to do so.
[74] As the extracts from the decision report I have set out between [53] and [60] above make clear, Mr Keenan did use his anticipated development model when assessing the proposal against 13.3.4 and the CADG, including (but not limited to) the “Relationship to Context” objectives and guidelines. It would not, I think, be going too far to say that the model appears to have been the dominant consideration throughout the CADG analysis. It is certainly used repeatedly in the report to downplay what are otherwise accepted as the (obvious) adverse effects of the
proposed development on the Substation. The potentially diversionary effect of such
14 By contrast, r 13.3.8 does not refer to the CADG. But the CADG itself states that it is to be read
“in conjunction with” Parts 12 and 13 of the District Plan.
a focus can, I think, be seen from the fact that there is no mention at all in Mr Keenan’s analysis to the CADG objective of maintaining or enhancing the quality of the setting of the Substation (as a listed heritage item) or of the related G2.1 guideline.15
G 3.5
[75] As can be seen from [35] above G3.5 sets out some general techniques designed to ensure that new buildings do not dominate lower neighbouring buildings. But it also contains very specific guidance in relation to new buildings which will adjoin a heritage building.
[76] There can be no dispute that the G3.5 guidance was not specifically followed here, although it seems that Dr Gjerde thought that the setback of the proposed building meant that there was compliance with the spirit of the guideline. But in agreeing with that, Mr Keenan’s analysis again focuses on the anticipated development model. And in so far as the use of that model was regarded as being contemplated by G 3.5, I consider that is wrong for the reasons already given.
[77] Notwithstanding the view just expressed, I would not go so far as to say that G3.5 must be applied in its terms in every case in which it is engaged. Presumably the CADG is called a “guide” for a reason; it is not a statute and (unlike the rules) it does not have the status of regulations. Equally, however, there can be little doubt that the CADG would give rise to some form of legitimate expectation that its guidelines would be followed (and its objectives attempted to be met) absent some rational reason for departure. And in this case the articulated reason was (in large part) the anticipated development model. As I have said, that appears to me to be problematic.
Rejection of Ms Smith’s view
[78] I accept the respondents’ submission that there was no compulsion on
Mr Keenan to accept Ms Smith’s advice, despite the fact that she was the only
15 It is also arguable that Dr Gjerde’s comment that “…the proposed building is set back from its neighbour, showing it somewhat greater respect than was shown by Environment House, which is built up to the shared boundary” runs contrary to G2.2.
heritage expert who was consulted. That said, however, it might be expected that any reasons for rejecting it should be demonstrably justifiable. And for the reasons already given I do consider that there was error in:
(a) only referring to her assessment in the context of r 13.3.8, when it was clearly more relevant to the assessment of r 13.3.4 and the CADG;
(b)dismissing her view by reference to the anticipated development model; and
(c) concluding that although the proposal would have an adverse effect on heritage, that effect was acceptable because (on the basis of the anticipated development model) its impact was “very similar to that anticipated by the District Plan”.
[79] I make no comment on whether Mr Keenan was correct to prefer Dr Gjerde’s positive description of the “bookending” effect of the proposed building and Environment House over Ms Smith's negative “sandwiching” metaphor.
Policy 12.2.5.5
[80] As noted earlier, Policy 12.2.5.5 requires design excellence for any building that is higher than the height standard specified for the Central Area. It is clear from the passage from the report set out at [64] above that Mr Keenan regarded this Policy, too, as being qualified by the “anticipated development model”. To the extent that the design excellent requirement is triggered solely by the height breach I accept that that approach is arguable.
[81] But what the decision report does not mention is that Policy 12.2.5.5 does not simply require design excellence for buildings that are higher than the height standard, but also for “buildings that are tall in relationship to the surrounding neighbourhood”.16 And that appears to me to be a r 13.3.4 (and CADG) matter, in
relation to which the model is less relevant (if at all).
16 I therefore consider that the view expressed by Mr Keenan in his affidavit that “it is the height
[82] I also accept, however, that like the Guidelines, the Part 12 policies cannot have direct legal the force. But like the Guidelines, the policies may give rise to a legitimate expectation, from which reasons for departure should be given. And here, the reasoning contained in the report for accepting a design that was (on the view of both Mr Gjerde and Mr Burns) not “excellent” is marred by the preoccupation with the extent of the height breach. Again, that is quite plain from the reasoning I have set out at [64] above. As I have said, that focus was understandable in relation to the height breach per se but less so in relation to the issue of contextual height (which appears to have been considered by Dr Gjerde, but in in relation to the Thistle Inn).
Notification decision
[83] The statement of claim attacks the notification decision on the ground the Council failed lawfully to consider whether or not to give public or limited notification of the application. In particular, it is contended that:
(a) the rules do not preclude notification nor remove the Council’s statutory obligations under ss 95, 95A and 95B of the RMA;
(b)the Council was wrong to find that the rules create a “non-notification presumption”;
(c) in terms of ss 95A and 95B of the RMA:
(i)the effects that the proposed building will have on the environment, having regard to its effect on the Substation Building, will be more than minor;
(ii)the conclusion that no persons are affected by the application is wrong; and
(iii) the Council’s view that neighbour interest does not deem the
Substation to be an affected party under the tests of the Act is wrong.
breach that triggers consideration of design excellence” is wrong, or at least incomplete.
[84] Each will be addressed in turn.
Preclusion
[85] In my view the statements made in rr 13.3.4 and 13.3.8 that applications under those rules “do not need to be publicly notified and do not need to be served on affected persons” do not operate to “preclude” notification, in terms of ss 95A and 95B of the RMA. It is not clear to me whether those words were added before or after the 2009 amendments to the Act to which I have already referred, although the wording seems to be broadly similar to the wording in former s 94 (which was repealed in 2009). That section referred to circumstances in which a resource consent “need not” be notified.
[86] In any event, on a straightforward and literal approach the idea that something “need not” or “does not need to” be done is not the same as “precluding” the doing of that thing. Something that is precluded is prohibited. Not being required to do something is not the same as being prohibited from doing it.
[87] The view I have formed based on the plain meaning of the word “precludes” is fortified by the fact that the effect of any preclusion in the rules would be to limit (and in fact obliterate) natural justice rights otherwise conferred by the statute (albeit contingent ones). While I accept that that is what the new ss 95A and 95B contemplate (a matter which is, in itself, somewhat objectionable),17 I consider that the relevant wording would need to be much stronger and more unequivocal in order for it to have that (preclusionary) effect.
A “non-notification presumption”?
[88] For essentially the same reason I would be most disinclined to conclude that the rules could create a “non-notification presumption” that ran contrary to (or was different from) the relevant statutory provisions. That does not seem to me to be authorised by ss 95A and 95B.
Sections 95A: more than minor effects on the environment?
[89] “Environment” is defined in the RMA as including:
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) amenity values; and
(d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters[.]
[90] The decision report concluded that the effect of the proposed development on the “wider environment” will be minor. The reasons for that conclusion were necessarily confined to those matters over which discretion was restricted in rr 13.3.4 and 13.3.8.
[91] As will be evident from my analysis above, however, I have formed the view that the focus in the report on the “anticipated development model” insofar as r 13.3.4 matters are concerned was misplaced.18 There can be little doubt that this focus was a major influence on the conclusion reached that the adverse effects on the environment were only minor. In my view the extent of that influence necessarily calls into question the correctness of the decision not to publicly notify ECL’s application.
Section 95B: minor adverse effects on “affected persons”
[92] As recorded above, the notification decision concludes that:
There are no affected persons in respect of this application (s 95B/95E). It is noted that neighbours have registered an interest in works occurring on the subject site. Neighbour interest does not deem them to be affected parties under the tests of the Act or qualify as special circumstances under the Act in this case.
[93] To the extent that this statement suggests that SSL was not regarded as an affected person in terms of s 95B because neighbour interests are excluded, the
statement is wrong. Neighbour interests are excluded from consideration in relation to adverse environmental effects under s 95A (by virtue of s 95D), but not in terms of the s 95E definition of “affected persons” for the purposes of s 95B. Rather, the issue is whether the proposed development will have a “minor or more than minor” effect on the owners of the Substation in relation to any of the matters over which discretion is restricted in the rules. By and of itself such an error would require the decision on limited notification to be made again.
[94] A further difficulty for the Council here is that the decision report expressly concludes that
… the overall likely and potential effects of the proposal on the historic heritage value of the substation building over and above that anticipated by the District Plan to be (sic) no more than minor.
So even putting to one side the issue I have identified with the “anticipated development model” (which is clearly at play in this conclusion) the Council clearly considered that there will be a “minor” adverse effect on the heritage value of the Substation.19
[95] While it must, I suppose, be accepted that there is no necessary or absolute correlation between an adverse effect on a particular value attributed to a particular building and an adverse effect on the owner of that building, in the present context that seems a long bow to draw. There can be no real doubt that the Substation’s heritage value was highly influential in the decision to purchase it, and to renovate it at some expense; Mr Lord’s affidavit makes that clear. To suggest that an adverse effect on the Substation’s heritage value does not, equally, adversely affect its owner seems unattractive. So if there is a minor adverse effect on the heritage value of the
building there is a minor adverse effect on SSL.
19 And I note that Mr Keenan deposed: “From my two site visits undertaken and assessment of the application, I was of the opinion that any development of a modest height within the subject site would result in an adverse effect on the historic heritage values of the Substation Building. This was due to the height of the Substation Building (two storeys) and triangular nature of the site which extended the entire southern boundary shared with the Substation Building.” (emphasis added).
[96] Even if there is some flaw in that logic, there remains the further and more substantive (“anticipated development model”) issue. The views I have expressed about that strongly supports the conclusion that the adverse effects on the owner of the Substation (in terms of the matters of which discretion is restricted under r 13.3.4, namely design, external appearance, siting and placement of building mass) have been understated and are at least minor.
[97] On any of the above analyses, therefore, SSL was an affected person and should have received limited notification of ECL’s resource consent application.
Conclusions
[98] In summary, I consider:
(a) SSL should have been given limited notification of ECL’s resource
consent application;
(b) there was a material error in the 14 October 2016 decision not to
publicly notify ECL’s resource consent application; and
(c) there were material errors in the 14 October 2016 decision granting
ECL’s resource consent application.
[99] There have been no matters raised which persuade me I should not exercise my discretion to grant relief here. I therefore make orders setting aside the notification decisions and the substantive resource consent decision, all of which are dated 14 October 2016.
[100] SSL is entitled to its 2B costs.
Rebecca Ellis J
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