Waterfront Watch Incorporated v Wellington City Council

[2018] NZHC 3453

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-345

[2018] NZHC 3453

BETWEEN

WATERFRONT WATCH INCORPORATED

Appellant

AND

WELLINGTON CITY COUNCIL

Respondent

AND

MICHAEL GIBSON

Interested Party

Hearing:

3 September 2018

Further submissions received 1 and 12 October 2018 and 6 and 8
November 2018

Appearances:

M J Slyfield for the Appellant

D J S Laing and E H Wiessing for the Respondent Interested Party in Person

Judgment:

21 December 2018

JUDGMENT OF CULL J

[1]                  The Wellington City Council granted a resource consent for the redevelopment of Frank Kitts Park (the Park) on Wellington’s waterfront to include a Chinese Garden, the creation of two flat open lawns, and the construction of a pavilion and a pergola, amongst other modifications. Waterfront Watch Inc appealed the decision to the Environment Court, which upheld the Council’s decision to grant consent.1

[2]                  Waterfront Watch now appeals to this Court, contending that the Environment Court erred in its determination of the effects on Viewshaft 11 in the Wellington City District Plan that would occur from the redevelopment proposal for the Park.

1      Waterfront Watch Inc v Wellington City Council [2018] NZEnvC 39.

WATERFRONT WATCH INCORPORATED v WELLINGTON CITY COUNCIL [2018] NZHC 3453 [21

December 2018]

[3]                  Waterfront Watch submits the Court made errors of law, by applying the wrong legal tests, taking into account irrelevant matters, and failing to take into account relevant considerations. It seeks that the matter should be remitted back to the Environment Court for reconsideration.

[4]                  Waterfront Watch focussed on nine errors of law, which it grouped into five grounds of appeal, which are:

(a)                 the Court’s decision incorrectly interpreted and applied the requirement in Policy 12.2.6.7 to protect Viewshaft 11;

(b)                 the Court’s determination that effects on the viewshaft would be “at worst, minor” wrongly took account of the lack of visibility of the harbour in Viewshaft 11;

(c)                 the Court’s determination of the effects on Viewshaft 11 wrongly failed to consider the loss of visual connection to the City Link walkway;

(d)                 the Court’s determination of the effects wrongly discounted evidence on the lack of positive effects as a matter of taste or preference, as not relevant to decision-making under the RMA; and

(e)                 the Court took the wrong approach to evaluating the effects on Viewshaft 11 by attempting to weigh those effects against other positive effects of the proposal.

[5]                  Wellington City Council – Build Wellington (Build Wellington) was the applicant for the land use consent. Build Wellington opposes the appeal and submits the Court’s decision was correct and its findings were consistent with the Wellington City District Plan (the District Plan)2 and relevant policy documents. The Court’s approach, Build Wellington submits, does not give rise to any errors of law.

2      Wellington City District Plan (operative from 27 July 2000, last amended 9 March 2010) [District Plan].

[6]                  Wellington City Council, the respondent in this appeal, adopts the legal submissions of Build Wellington and has been excused from appearing at the hearing. Build Wellington, the original applicant, will be referred to in this judgment as “the Council”.

Background

The application

[7]                  The Council adopted the recommendations of independent Commissioners to grant resource consents to enable the redevelopment of the Park on the Wellington waterfront. The area lies between the shoreline and the arterial road of Jervois Quay.

[8]The proposed modifications to the Park are:

(a)                 demolition of the existing amphitheatre and associated promenade walls;

(b)                 earthworks to level the surface of the Park (except above the carparking building);

(c)                 the creation of two flat open lawns, the northernmost to be called the Harbour Lawn and, above the carpark building, the City Lawn;

(d)                 the expansion towards Jervois Quay and upgrade of the children’s playground, which will include repositioning the lighthouse slide structure;

(e)                 the construction of a Chinese Garden, to be known as the Garden of Beneficence, which is to be located across the area of the Park which marks the transition between the City Lawn and the Harbour Lawn;

(f)                   the removal and replacement of the memorial plaques currently located on the promenade wall, and the relocation of the Wahine mast (also a memorial);

(g)                 the construction of a pavilion structure adjoining the Chinese Garden;

(h)                 a pergola structure on the southern elevated edge of the site to provide shelter to that part of the City Lawn; and

(i)                   related seating, lighting, landscaping and paving.

[9]                  There is no proposal to change anything about the TSB Arena end of the Park, the Whairepo Lagoon area or the waterfront promenade.

[10]              The Park is located in the Central Area of the District Plan. The provisions of the District Plan which apply to the site include those relating to the Lambton Harbour Area and Viewshafts 10 (from Hunter Street) and 11 (from Willeston Street) as set out in Appendix 11 of Chapter 13 of the District Plan.3

[11]              The proposal requires resource consents as a discretionary (unrestricted) activity.4 That means that the application falls to be considered under s 104 and Part 2 of the Resource Management Act 1991 (the RMA).

Statutory provisions under the RMA

[12]              Section 104(1) of the RMA requires that when considering an application for a resource consent 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

(ab) any measure proposed or agreed to by the applicant for the purpose of ensuring positive effects on the environment to offset or compensate for any adverse effects on the environment that will or may result from allowing the activity; and

(b)                  any relevant provisions of—

(i)         a national environmental standard:

(ii)        other regulations:

(iii)       a national policy statement:

3      The two pages of Appendix 11 are reproduced as Appendix 1 to this judgment.

4      Under rr 13.4.5, 13.4.7 and 30.2.2 of the District Plan, above n 2.

(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]              Part 2 of the RMA includes ss 5 to 8. In brief, these provisions provide the following:

(a)                 section 5: the purpose of the RMA is to promote the sustainable management of natural and physical resources;

(b)                 section 6: in achieving the purpose of the RMA, all persons exercising functions and powers under it shall recognise and provide for several matters of national importance;

(c)                 section 7: provides for other matters that all persons exercising functions and powers under the RMA shall have regard to; and

(d)                 section 8: provides that the principles of Te Tiriti o Waitangi shall be taken into account when exercising functions and powers under the RMA.

The District Plan

[14]The only relevant planning provisions in this case are those in the District Plan.

[15]              At a broad level, the District Plan identifies eight principles on which the Central Area provisions are based and which are intended to guide future development:5

(a)                 enhance “sense of place”;

5      District Plan, above n 2, at [12.1.1] – [12.1.8].

(b)                 sustain the physical and economic heart of the Central Area;

(c)                 enhance the role of the ‘Golden Mile’ and ‘Cuba’;

(d)                 enhance the Central Area as a location for high quality inner city living;

(e)                 enhance the built form of the Central Area;

(f)                   enhance the quality of the public environment;

(g)                 enhance the city/harbour integration; and

(h)                 enhance the sustainability of the Central Area.

[16]              The District Plan contains objectives and policies for areas of the city. In this case, the Central Area objectives and policies are relevant. The key policy at the heart of this appeal is Policy 12.2.6.7 (the Policy), which protects public views in the Central Area. It provides:

12.2.6.7Protect, and where possible enhance, identified public views of the harbour, hills and townscape features from within and around the Central Area.

METHODS

•  Rules

•  Design Guides

Specific views of the harbour, local hills and townscape features are an important part of the cityscape that Council seeks to preserve. Rules in the Plan protect identified viewshafts, making it a Discretionary Activity (Restricted) for developments that intrude upon a listed view.

When assessing an application to intrude on an identified viewshaft Council will consider:

•   whether the development frames the view horizontally or vertically from the edges of the viewshaft. The relationship between context and focal elements should be maintained.

•   whether the development breaks up the view vertically or horizontally. This in general will be unacceptable unless the intrusion is minor.

•   whether the development intrudes upon one or more of the view's focal elements. This in general will be unacceptable.

•   whether the development removes existing intrusions or increases the quality of the view, particularly in relation to focal elements.

…

It is noted that vegetation intruding into a viewshaft will generally be disregarded when assessing applications, particularly where pruning or a plant’s deciduous nature would restore the viewshaft’s quality.

The environmental result will be the protection of significant public views.

[17]              The following objectives and policies related to the Lambton Harbour Area are also of direct relevance:

12.2.8To ensure that the development of the Lambton Harbour Area, and its connections with the remainder of the city’s Central Area, maintains and enhances the unique and special components and elements that make up the waterfront.

POLICIES

To achieve this objective, Council will:

12.2.8.1Maintain and enhance the public environment of the Lambton Harbour Area by guiding the design of new open spaces and where there are buildings, ensuring that these are in sympathy with their associated public spaces.

…

12.2.8.2Ensure that a range of public open spaces, public walkways and through routes for pedestrians and cyclists and opportunities for people, including people with mobility restrictions, to gain access to and from the water are provided and maintained.

…

12.2.8.3Encourage the enhancement of the overall public and environmental quality and general amenity of the Lambton Harbour Area.

…

12.2.8.4Maintain and enhance the heritage values associated with the waterfront.

…

12.2.8.5Recognise and provide for developments and activities that reinforce the importance of the waterfront’s Maori history and cultural heritage.

…

12.2.8.6Provide for new development which adds to the waterfront character and quality of design within the area and acknowledges relationships between the city and the sea.

…

12.2.8.7Maintain and enhance the Lambton Harbour Area as an integral part of the working port of Wellington.

…

12.2.8.8To provide for and facilitate public involvement in the waterfront planning process.

…

Viewshaft 11

[18]              As Policy 12.2.6.7 describes, identified viewshafts are listed in the District Plan, with specific views of the harbour, local hills, or townscape features that the Council seeks to preserve. Of the 23 viewshafts defined in the District Plan,6 Viewshaft 11 is at the centre of this appeal, as it was before the Environment Court, and is defined in Appendix 11 of Chapter 13 of the District Plan. Its description is:

VIEWPOINT LOCATION:    Shoreline    plaque,   western    corner    of

intersection between Lambton Quay and Willis Street at Stewart Dawson’s corner. This location lies along the Golden Mile.

Height of ground:                  3.2m

Eye level:  +1.5m

Viewpoint:  4.7m (above mean sea level)

FOCAL ELEMENTS:          St Gerard’s, Frank Kitts Park

CONTEXT ELEMENTS:     Clyde Quay Wharf (ie Former Overseas

Terminal), Oriental Bay, Roseneath and Te Ranga a Hiwi Precinct

Left margin  Right margin  Base Southern Corner of 22                  Northeastern corner of                  Ground level Willeston Street  5 Willeston Street, (Lot 6)            1.8 m

(Lot 1 DP 328873)  DP 10811)  Jervois Quay

6      All contained in Appendix 11 to Chapter 13 of the District Plan.

[19]Viewshafts are protected in the District Plan in the Central Area by policy

13.3.8.6 (view protection) and the related standard 13.6.3.3.1, which provides:7

No building or structure shall intrude on any viewshaft as shown in Appendix 11.

[20]              Policy 13.3.8.6 was not engaged by the proposal, because there was no issue as to whether it involved an intrusion into Viewshaft 11. Policy 13.3.8.6 applies only to additions and alterations to buildings under r 13.3.8.

[21]              As mentioned, Viewshaft 11 is the significant issue for this appeal, as it was before the Environment Court. The fundamental difference between Waterfront Watch and Build Wellington on this appeal is:

(a)                 what is protected by Viewshaft 11; and

(b)                 the application of Policy 12.2.6.7 in the present circumstances.

[22]The Environment Court explained the definitions of the viewshaft as follows:8

… To explain those margins, the southern corner of 22 Willeston Street is at the northwestern corner of the intersection of Willeston and Victoria Streets. The corner of 5 Willeston St is the southern corner of Willeston Street and Jervois Quay. Those points define the borders of the viewshaft, and it is the space so defined that is protected as Viewshaft 11.

[21]   The term Focal Element is defined in Chapter 3.10 of the District Plan as:

… in relation to a viewshaft, one of a number of components that are the primary purpose for the view. Focal elements are the outstanding element [sic] that a view focuses on.

And Context Elements are defined as:

… in relation to a Viewshaft, the components that surround focal elements and provide the setting for those elements. They provide the overall context for the view.

The term Townscape is also defined in the Plan as:

7      Rule 13.3.8.6 does not apply to the Frank Kitts Park proposal.

8      Waterfront Watch, above n 1, at [20]–[22].

… the visual appearance of a neighbourhood when viewed from surrounding public spaces. It includes the collective image of, and relationship between, the following elements:

•    setting and landscape.

•    the lay-out of streets, lanes and footpaths.

•    subdivision patterns.

•    buildings and structures.

•    gardens and open spaces.

[22]   So, Viewshaft 11 runs down Willeston Street from Stewart Dawson’s Corner, within the margins given, to the harbour area. Its focal elements – the components that are the primary purpose for the view – are St Gerard’s and Frank Kitts Park. The context elements — those that surround the focal elements and provide the setting for them – are Clyde Quay Wharf, Oriental Bay, Roseneath and Te Ranga a Hiwi Precinct.

[23]      Waterfront Watch is concerned that Viewshaft 11 will be negatively affected by the proposed redevelopment of the Park. It is accepted by all parties that the view of St Gerard’s Monastery will not be directly impacted by the Park proposal. However, the Park itself is a focal element in the viewshaft, and that is at the heart of Waterfront Watch’s challenge.

Environment Court decision

[24]      The Environment Court made the following findings on the issues related to the viewshaft:

(a)    There will be no intrusion into the viewshaft by the redevelopment, in the sense of its margins being narrowed, or some similar effect. It is plain that there will be no change to the ability to see St Gerard’s from the viewshaft.

(b)    There are no other considerations to be taken into account which are different from those to be considered in a proposed modification of an existing open space in the Lambton Harbour Area under r 13.4.5 of the District Plan.

(c)    The views of the context elements of Oriental Bay, Roseneath and Te Ranga a Hiwi Precinct will remain largely intact, with any loss of the view being at worst, minor.

(d)    At present, an observer who stands at Stewart Dawson’s corner will see of the Park its trees, a small grassed area and a grey concrete wall further towards the harbour. If the redevelopment proceeds, the observer will see trees, a somewhat higher and closer grey concrete wall and four steel columns with high horizontal bars (being the Gateway into the Chinese Garden).

(e)    Given that there is presently no view of the harbour itself, the net result of the redevelopment is no more than that the viewshaft’s focal element, of the Park, will have a somewhat different frontage from Jervois Quay.

[25]      The Court also made findings on issues of safety, accessibility, the removal and replacement of trees and the wind conditions that may be affected by the redevelopment. These are not, however, relevant for the present appeal.

[26]      The Court considered the statutory considerations under s 104 and Part 2 of the RMA. In relation to Part 2, the Court observed:

(a)    In terms of s 6 matters of national importance, there is no natural character in this area of the waterfront. It was formerly part of a working port and is now a manmade area. It provides a useful, pleasant and functional recreation area within the City and the proposed redevelopment will enhance those qualities.

(b)    In terms of Māori connections to the area, the proposal has been given express approval by The Wellington Tenths Trust and The Palmerston North Māori Reserve Trust. The Court took this as indicating that there are no issues arising under ss 6(e) or 8 of the RMA.

[27]      The Court held that it did not consider there was anything apart from these factors requiring analysis that had not already been considered in looking at the effects of the proposal and the District Plan provisions.

[28]      After examining the actual and potential effects in considering the points of view and evidence, the Court concluded that the adverse effects of the redevelopment will be “insignificant and the positive effects of the proposal will outweigh them by a good margin.”9 The Court held that there was nothing in the proposal that conflicted with any provision of the District Plan.

[29]      The Court concluded that although reasonable and informed people might have different views about the style and layout of the proposal, there was no reason to indicate the proposal was in conflict with the District Plan. The Court said:10

Shortly put, there was no supportable or sufficient reason put forward to indicate that the positives arising out of the proposal should be regarded as outweighed by any negatives and that the resource consents sought should not be granted. In fact our conclusions are quite the opposite of that – we see the proposal as having positive outcomes and no adverse effects of any significance, and as being comfortably within the provisions of the planning documents.

[30]The Court thus declined the appeal.

Approach to appeal

[31]      Section 299 of the RMA provides a limited right of appeal to the High Court on a question of law. An error of law occurs if the Environment Court:11

(a)        applied a wrong legal test;

(b)        came to a conclusion without evidence, or one to which, on the evidence, it could not reasonably have come;

9      Waterfront Watch, above n 1, at [39].

10 At [43].

11     Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.

(c)        took into account matters which should not have been taken into account; or

(d)        failed to take into account matters which should have been taken into account.

[32]I now deal with each of the grounds of appeal.

Ground 1: Did the Court correctly interpret and apply the requirement in Policy

12.2.6.7 to protect Viewshaft 11?

[33]      Waterfront Watch submits the Court failed to apply the correct legal approach to the interpretation and application of Policy 12.2.6.7 of the District Plan.

[34]      First, Waterfront Watch submits the Court failed to consider, or adequately consider, the Policy’s requirements to “protect, and where possible enhance, identified public views of the harbour, hills and townscape features from within and around the Central Area” in respect of the viewshaft. The Court was obliged to consider the Policy, as it contains the only guidance in the District Plan about how to assess effects on viewshafts and what outcomes are intended from the viewshaft provisions.

[35]      Waterfront Watch argues that the Policy is plainly one whose clear and directive expressions of protection and preservation signal that it is to be given considerable weight relative to other Central Area policies. Thus, the Court was required to consider what Viewshaft 11 is seeking to protect, namely what is the value of the view of the Park that can be seen in the viewshaft.

[36]      Second, in the absence of considering the Policy, Waterfront Watch submits the Court’s assessment of the proposal did not properly address the requirements of the Policy. It says the Court failed to consider why this specific and relatively limited view of the Park has been singled out for recognition and protection.

[37]      In reply, the Council submits that the Policy was one that was entitled to very little, if any, weight. The Policy applies only to public views actually identified in the

viewshaft provisions in the District Plan and did not need to be further addressed once the Court identified that there was no intrusion into the viewshaft.

Discussion

[38]      The application of Policy 12.2.6.7 is central to the grounds of appeal. The critical difference between the parties is:

(a)                 What does Viewshaft 11 apply to or protect?

(b)                 Does the policy apply to this proposal?

[39]      Viewshaft 11 has two focal elements, namely St Gerard’s Monastery and the Park. It is accepted by both parties that the purpose of the listed viewshafts in Appendix 11 of the District Plan is to protect public views from designated viewpoints. In this case, the viewpoint is from Stewart Dawson’s Corner along the viewing corridor in Willeston Street to the Park.

[40]      Importantly, both parties accept that the viewshaft is not designed to protect a focal element from any change. This was the subject of evidence before the Environment Court, where the respective experts conceded that the District Plan does not prevent the alternation to a focal or context element of a listed viewshaft. It was also the position of the parties in their written submissions on this appeal.

[41]      The parties also accept that St Gerard’s Monastery, as one of the two focal elements, will not be impacted by the Frank Kitts Park proposal, as the Environment Court found.

[42]      Frank Kitts Park is the other focal element in the view of Viewshaft 11. Nothing more is described about the Park in Appendix 11 of the District Plan, including any of its features.

[43]      The contention between the parties is whether Viewshaft 11 protects the view of the Park down Willeston Street, as the Council submits, or whether it is the focal element itself which is protected, namely, the subject of the view, with its qualities or

attributes for which the focal element has been identified as “outstanding” in the first place. The contest, then, is whether it is the view to the Park or the attributes of the Park, that are protected by Viewshaft 11. To answer this question, both parties addressed the relevance of Policy 12.2.6.7 and its application to the proposal.

[44]I turn, then, to consider the application of the Policy to the Park proposal.

Application of Policy 12.2.6.7

[45]      Waterfront Watch says that the Policy applies, because the Policy is directed to protecting and, where possible, enhancing identified public views of the harbour, hills and townscape features from within and around the Central Area. In the hearing of this appeal, Waterfront Watch submitted that the Environment Court “appears to have at least accepted the Policy is relevant”, but disputed the way in which the Court applied the Policy in its assessment of the Frank Kitts Park proposal.

[46]      It is plain that the Court considered the wording of the Policy and its explanatory note.12 The Court, having addressed both the Policy and the explanatory note, concluded there will be no intrusion into the viewshaft from the proposal, “in the sense of its margins being narrowed, or some similar effect.”13 The Court then focussed its attention on the focal elements. It determined that “there will be no change to the ability to see St Gerard’s from the viewshaft.”14 The Court then considered Frank Kitts Park as the other focal element of the viewshaft and asked what considerations might prevent it being changed and whether there were any considerations that were different from those to be considered in a modification of existing open space in the Lambton Harbour area. This is considered further in ground 2.

[47]      The Environment Court described the effects of the redevelopment proposal on the view from Stewart Dawson’s Corner, concluding that the structures of the proposed garden will be somewhat higher than is presently visible from the viewshaft,

12     Set out at [16] of this judgment.

13     Waterfront Watch, above n 1, at [24].

14 At [24].

but the context elements will remain largely intact. Importantly, the Court concluded that:15

the difference will be minimal – the net result is no more than that the viewshaft’s focal element of Frank Kitts Park will have a somewhat different frontage to Jervois Quay.

[48]      The Environment Court’s reference to “intrusion into the viewshaft” is taken from the explanatory note to the Policy.16 In particular, the following words reinforce the importance of whether there is intrusion into the viewshaft: “Rules in the Plan protect identified viewshafts, making it a Discretionary Activity (Restricted) for developments that intrude upon a listed view.”17

[49]      The explanatory note refers to several considerations for the Council to take into account when assessing an application “to intrude on an identified viewshaft”, including:18

…

·whether the development breaks up the view vertically or horizontally. This in general will be unacceptable unless the intrusion is minor.

·whether the development intrudes upon one or more of the view’s focal elements. This in general will be unacceptable.

·whether the development removes existing intrusions or increases the quality of the view, particularly in relation to focal elements.

[50]The explanatory note finishes with this:

The environmental result will be the protection of significant public views.

[51]      I have carefully considered Waterfront Watch’s submission that the Court misdirected itself, by asking whether there were considerations that might prevent the focal element of the viewshaft being changed, instead of the different considerations for modification of existing open spaces in the Lambton Harbour area under policy 13.4.5.

15     Waterfront Watch, above n 1, at [25].

16 At [24].

17     District Plan, above n 2, at [12.2.6.7].

18     At [12.2.6.7].

[52]Waterfront Watch contends that the “strongly directive language” of Policy

12.2.6.7 required the Court to undertake an assessment, guided by the wording of the Policy, namely to protect the view or to seek to identify what protection was required. Although conceding that the Environment Court could conclude that the change would be a “somewhat different frontage to Jervois Quay”, Waterfront Watch argues that the Court’s conclusion does not fulfil the requirement to have regard to the viewshaft provisions and Policy 12.2.6.7, to ascertain whether the different frontage would amount to protection or enhancement of the identified public view.

[53]      Putting aside for the moment the references to considerations applicable to an open space modification in the Lambton Harbour area, I consider the Waterfront Watch submission confuses the identified public views of Frank Kitts Park in Viewshaft 11, with what is in the Park itself.

[54]      On my reading of the details of Viewshaft 11, Policy 12.2.6.7 and its explanatory note, I am drawn to the conclusion that Viewshaft 11 protects the view of Frank Kitts Park from Willeston Street, not what is in Frank Kitts Park. Provided the proposal for the development of the Park does not intrude into Viewshaft 11 and its elements, then the policy has no further application. This is the exercise which the Environment Court undertook, satisfying itself that there was no intrusion, before considering the effects of the proposal, as set out at [25] of its decision.

[55]      Nor do I accept Waterfront Watch’s submission that the Court’s assessment that any difference would be minimal if the development proceeded, robbed the viewshaft policy of any real meaning. Waterfront Watch seeks an assessment of the “qualities of the visible parts of Frank Kitts Park within the viewshaft”, which, it says, warranted the Park being listed in the first place. This, in my view, misconstrues the purpose of the viewshaft. Again, the point is to preserve the view of Frank Kitts Park, not what is in it. I also reject Waterfront Watch’s submission that the Court’s assessment of the effects of the development amounted to a consideration of whether the Park should even have been a focal element, or whether the view down Willeston Street should even have been a protected viewshaft. The Court, in my view, did not undertake such

assessments and was justified in finding that there was nothing in the proposal that was in conflict with any provision of the District Plan.19

[56]      I accept the Council’s submission that the Environment Court was not required to assess what value should be attached to parts of views of the Park in Viewshaft 11 that make it outstanding. It is the view of Frank Kitts Park as a whole within the viewshaft which is the outstanding element. Similarly, there was no need for the Court to consider whether the view of the Park was protected or enhanced, given the limited scope of Policy 12.2.6.7.

[57]      What the Court did, however, was address Waterfront Watch’s contention that the proposed development would have adverse effects on Viewshaft 11, as the primary matter for consideration. For that reason, the Court’s approach in checking whether there was intrusion into the viewshaft was appropriate, when it had regard to Policy

12.2.6.7 and reached its conclusion that the elements of Viewshaft 11 were still preserved.

[58]      The purpose of the viewshaft is to preserve the focal and context elements of the view from a specified place. Here, from Willeston Street, the importance of the viewshaft is to ensure that the view of the Park and the Monastery is retained. This proposal seeks to develop the Park itself, but does not intrude or impinge on the identified focal elements in the viewshaft, that is, the Park and the Monastery. If the layout or detail in the Park changes – which all parties agree can occur – the observer in Willeston Street will still have a view of Frank Kitts Park and the Monastery.

Approach to interpretation of District Plan policies

[59]      During the course of argument, the respective positions of the parties hinged on the way in which Policy 12.2.6.7 was interpreted. Waterfront Watch argued that because the Policy wording itself did not refer to intrusion, the concept should not be imported into the Policy’s interpretation, as the Environment Court had done.

19     Waterfront Watch, above n 1, at [40].

[60]      The Council, on the other hand, relied on the explanatory note, and its emphasis on whether a development will intrude upon a listed view. As neither party had addressed the question of policy interpretation in their submissions, I gave counsel an opportunity to file further submissions on the use of explanatory notes in interpreting a policy in the District Plan.

[61]      There was agreement between the parties that a District Plan’s surrounding text or explanatory note can and should be used as an aid to interpretation. This includes the explanatory note to policies. It was also agreed that the reference to “identified public views” in Policy 12.2.6.7 is a reference to the viewshafts identified in the District Plan and the Policy is not engaged directly because the Frank Kitts Park proposal does not require consent under r 13.3.8. The parties, however, continue to disagree on what a viewshaft protects.

[62]      Waterfront Watch seeks an interpretation of the policy that is broader in nature than most of the content of the explanatory note. It challenges the Council’s reliance on the explanation to “read down” the Policy, thereby overriding the Policy by way of limiting its application.

[63]      From a perusal of the cases referred to by counsel, it is evident that the Courts have interpreted policies in the District Plan by referring to the accompanying explanatory text. Without traversing each of the decisions in detail, the Courts have ascertained the meaning of the objectives and policies of plans by referring to the explanation and reasons given for the policy.20 There are examples of the Environment Court referring to an explanatory note when considering the meaning of a policy in the District Plan.21 The Court has also cautioned that explanatory comments do not override the wording of the objectives, policies and rules and should be considered in the broader context of the Plan.22

20     Canterbury Regional Council v Christchurch City Council EC Christchurch C217/2001, 6 December 2001 at [61].

21     Aitchison v Wellington City Council [2015] NZEnvC 163, (2015) 19 ELRNZ 319 at [29]; and

Sydney Street Substation Ltd v Wellington City Council [2017] NZHC 2489, [2018] NZRMA 93.

22     Re Site 10 Development Ltd Partnership [2015] NZEnvC 173 at [54].

[64]      I am unable to accept Waterfront Watch’s submission that the Council and the Environment Court took a narrower meaning from the explanatory note than the Policy otherwise provided. As I have found above, the Environment Court was correct in checking whether the proposed development would intrude into the viewshaft, and effectively used the explanatory note as an aid in interpreting the Policy.

[65]      Waterfront Watch agreed that Policy 12.2.6.7 is not engaged directly, because the Frank Kitts Park proposal does not require consent under r 13.3.8. For the reasons I have set out above and the finding that I have made, Policy 12.2.6.7 is engaged indirectly, because the Court was concerned to assess the proposed development in light of the identified public views in Viewshaft 11, as identified in the District Plan. The explanatory note does not override Policy 12.2.6.7. It assisted and aided the Court in its interpretation, inasmuch as the Court applied the Policy to this proposed development.

[66]      I note the submission from Waterfront Watch that Waterfront Watch v Wellington City Council provides relevant guidance on the Environment Court’s approach to the interpretation of a policy.23 However, as both parties note, the Environment Court in that case, was concerned with a misalignment between policies and their explanations, and in that case focussed on the wording of the policy itself. By contrast, I consider there is no misalignment between the Policy and the explanation in this case, and I do not uphold Waterfront Watch’s submissions that there is such a misalignment.

Conclusion

[67]      I accept the Council’s submission that the Environment Court was not required to assess what values should be attached to composite parts of views of Frank Kitts Park in Viewshaft 11, that make the Park outstanding. It is the view of Frank Kitts Park as a whole within the viewshaft which is the outstanding element because that is the focus of the view. More broadly, the wording of the Policy, to “protect, and where possible enhance”, clearly contemplates that changes can be made to identified public views and that they are not protected in perpetuity.

23     Waterfront Watch Inc v Wellington City Council [2012] NZEnvC 74.

[68]      I do not consider the Environment Court was in error in considering whether there was intrusion into Viewshaft 11 under the Policy or in finding that a change in the focal element of the Park, as a matter of District Plan interpretation, does not amount to an intrusion into Viewshaft 11. This ground of appeal fails.

Ground 2: Did the Court’s determination that effects on the viewshaft would be “at worst, minor” wrongly take account of the lack of visibility of the harbour in Viewshaft 11?

[69]      Waterfront Watch submits that in reaching its conclusion that the effect of the Frank Kitts Park proposal would be “at worst, minor,” the Environment Court relied on a premise that there is presently no view of the harbour itself.24 This, it submits, is an irrelevant consideration.

[70]      The essence of Waterfront Watch’s submission is that a view of the harbour from Viewshaft 11 cannot be determinative or even indicative of what the effect of the proposal will be on the viewshaft itself. Waterfront Watch contends that the Court incorrectly relied on the absence of the harbour view as a factor that in some way lessens the adverse effect of the proposal on the view.

[71]      The parties are agreed that the Court was not constrained to consider only what was protected by Viewshaft 11. This was a fully discretionary application under s 104 of the RMA and all effects were required to be considered. The question is whether the reference to harbour visibility in the Environment Court’s decision is whether the Court took account of an irrelevant matter, because it has no place in an assessment of effects on Viewshaft 11.

[72]      It is clear that the Environment Court was taking a wider approach to the impacts on views other than the focal elements protected by Viewshaft 11 itself. The Court was considering the structures of the proposed garden, noting that it will be somewhat higher and closer than the grey concrete wall that is presently visible from the viewshaft, but that the view of the other focal and context elements will remain largely intact.

24     Waterfront Watch, above n 1, at [25].

[73]      In that assessment, particularly as the structure of the proposed garden may be higher than the existing grey concrete wall, the Court observed that there is presently no view of the harbour itself, so any height increase has no impact on a potential harbour view, even though this is not an element in the viewshaft. The Court’s conclusion that the view of a small area of grass in the presence of a somewhat higher and closer wall may be, at worst, minor, was consistent with the wording of the explanatory note to Policy 12.2.6.7 and consistent with an assessment of the Frank Kitts Park proposal as a fully discretionary activity.

[74]      The Court was not constrained, as the parties agree, to considering simply what was protected by Viewshaft 11. The fact that there is no view of the harbour presently, and it is not included as a focal element of Viewshaft 11, means the Court’s factual findings on this issue do not make any material difference to the outcome.

[75]There is no error of law, and this ground of appeal is dismissed.

Ground 3: Did the Court’s determination of the effects on Viewshaft 11 wrongly fail to consider the loss of visual connection to the City Link walkway?

[76]      Waterfront Watch submits the Environment Court failed to consider a key effect of the proposed development in its assessment under s 104(1)(a) of the RMA. Its submission focusses on the visual effect of the loss of the City Link walkway and the replacement with structures and other components of the Chinese Garden, that, it says, will not provide the same visual connection to a key pedestrian route. The City Link walkway refers to the pathway that traverses the Park, along the same alignment as Willeston Street. Waterfront Watch says the Court was required to have regard to the actual and potential effects of the proposal.

[77]      Waterfront Watch submits the failure by the Environment Court to assess the merits of the proposal, on a matter that was uncontested, was a material error of law. In advancing this submission, Waterfront Watch refers to the Commissioners who first decided the application, when they found that the removal of the City Link walkway in its current form reduces the sense of the pedestrian activity from Willeston Street

through Frank Kitts Park for observers on Lambton Quay.25 The Court, it says, did not take the Commissioners’ view into account.

Discussion

[78]      Both parties acknowledge that the Environment Court had a considerable volume of evidence about the City Link walkway and the effects on it of the proposed development.

[79]      The Court did not address the removal of the City Link walkway specifically, but did refer to the view from Stewart Dawson’s Corner of the small grassed area and further towards the harbour a grey concrete wall. It follows that the evidence before the Court, including all the plans and photographic perspectives, is that the City Link walkway was being removed.

[80]      It is important to remember that the Court was discussing the elements in Viewshaft 11 and the view to the Park, as opposed to the composition of elements within the Park. The City Link walkway is not a focal or context element in Viewshaft 11 and the Environment Court concluded that the difference from the development will be minimal, with the net result being no more than that the viewshaft’s element of Frank Kitts Park, having “a somewhat different frontage to Jervois Quay.”26

[81]      I accept the Council’s submission that the Environment Court did take into account both the Commissioners’ decision and the removal of the City Link walkway. At [32] of the Environment Court’s decision, the Court addressed the issue of access to the Park, noting specifically the Waterfront Watch evidence that the proposed garden, stretching as it would from east to west across the Park, would fracture or disrupt accessibility along the Park from north to south. The Court accepted there would not be the present easy access from the middle of the lower northern area to the raised area or vice versa, but the access at either end of the garden will not be hampered.

25     Re an application by Wellington City Council for the redevelopment of Frank Kitts Park

Independent Hearing Commissioners SR358352, 11 November 2016.

26     Waterfront Watch, above n 1, at [25].

[82]      The Court went further and said access across the Park, from the Quay to the Waterfront, will be “greatly enhanced by the removal of the high promenade wall and the amphitheatre.”27 Plainly, the Court was cognisant of the evidence and submissions of Waterfront Watch about the City Link walkway and did not agree or uphold Waterfront Watch’s position.

[83]      In relation to the Commissioners’ original decision, the Court made specific reference to s 290A of the RMA, which requires the Court to have regard to the Council’s decision, which, in this case, adopted the Commissioners’ decision of 11 November 2016.28 The Court noted that there is no presumption that the Court has to follow the Commissioners’ decision but in this case the Court reached the same conclusion as the Commissioners, for essentially the same reasons. The Court considered there was nothing further that needed to be said about the earlier decision, particularly as the Court was not in disagreement with it.

[84]      I find that the Court’s approach to the evidence and its assessment was open to it, and as the Court reached the same outcome as the Commissioners, the Court’s approach to s 290A was not in error. There is no error of law and this ground of appeal fails.

Ground 4: Did the Court’s determination of the effects wrongly discount evidence on the lack of positive effects as a matter of taste or preference, as not relevant to decision-making under the RMA?

[85]      This ground of appeal challenges the Environment Court’s consideration of issues other than those relating to the viewshaft. The essence of this ground of appeal is that Waterfront Watch contends the Court gave weight to the evidence of the Council about the positive effects of the proposal, but discounted Waterfront Watch’s evidence that the proposal would not give rise to one of the positive effects claimed by the Council, which is an improvement in the ability to host waterfront events. Waterfront Watch claims that the Court discounted its position, by stating that such changes to the Park may not be to the taste or preference of everyone, but those are not the criteria for decision-making under the RMA. Waterfront Watch submits that the absence of

27     Waterfront Watch, above n 1, at [32].

28 At [44].

positive effects is a proper and legitimate consideration in consents under the RMA, and the Court did not consider this here.

[86]      This ground of appeal was not given prominence in the hearing and I will deal with it briefly. The Environment Court heard evidence from each of the parties and their witnesses, and weighed that evidence in relation to a number of issues about the effect of the Park’s development, including shading, potentially unsafe places, and the ability to host waterfront events. The Court canvassed the evidence in its discussion of “the other points of contention”, and reached its conclusion.29 The Court accepted that the present layout of the Park works for the waterfront events, on which Waterfront Watch’s expert, Mr Reid, gave evidence. The Court noted that the layout could be improved in a couple of ways. However, the Court reminded itself that the criteria for decision-making is under the RMA, and the ultimate decision may not suit the preferences of everyone.

[87]      I can find no error of law in the Court’s approach. As with any Court receiving and hearing evidence, submissions, and differing views of parties, the Court must reach a determination on the relevant criteria, which the Court did here. The Court carefully assessed the positive and negative effects of the proposal, considered the evidence before making its decision and did not err in its approach. This ground of appeal also fails.

Ground 5: Did the Court take the wrong approach to evaluating the effects on Viewshaft 11 by attempting to weigh those effects against other positive effects of the proposal?

[88]      This ground of appeal overlaps with the first ground of appeal. Waterfront Watch submits the Court did not correctly interpret and apply the planning documents, specifically Policy 12.2.6.7, and the error was compounded by the Court’s approach to matters under Part 2 and s 104 of the RMA.

[89]The focus of the Waterfront Watch submission is the Court’s conclusion that:30

29     Waterfront Watch, above n 1, at [26]–[34].

30 At [39].

We conclude that adverse effects will be insignificant and the positive effects of the proposal will outweigh them by a good margin.

And further:31

[T]here was no supportable or sufficient reason put forward to indicate that the positives arising out of the proposal should be regarded as outweighed by any negatives …

[90]      Waterfront Watch submits that the failure to identify and properly apply the strong policy directive to protect Viewshaft 11 is demonstrated in the weighing exercise that the Court undertook. It contends that Policy 12.2.6.7, if properly applied, requires an assessment of the effect on the specific view identified for protection in the viewshaft provisions, without reference to other positive aspects of the proposal unrelated to the viewshaft.

[91]      The Council in reply says Waterfront Watch’s submissions do not properly distinguish the assessment and weighting of positive and negative effects under s 104(1)(a) of the RMA with the evaluation of Policy 12.2.6.7 under s 104(1)(b) of the RMA. It says the Court correctly considered the effects of the proposal as a whole, rather than its component parts.

Discussion

[92]      This ground of appeal replicates in part the first ground, where Waterfront Watch contends that the clear directive terms of Policy 12.2.6.7 is undermined because of the Court’s approach of weighing the viewshaft effects against other considerations.

[93]      Given my findings under ground 1, I do not accept Waterfront Watch’s contention that the Court overlooked the intent of the Policy. But as both parties agree, the Policy does not have direct application here, as this is not an application for intrusion into a viewshaft.

[94]      Instead, the Court undertook an assessment under s 104(1)(a), namely assessing and weighing the positive and negative effects, with the separate assessment and evaluation of Policy 12.2.6.7 under s 104(1)(b). The Environment Court was

31     Waterfront Watch, above n 1, at [43].

entitled to take the wider approach, as well as assessing the views from Viewshaft 11 (being the primary matter for consideration).

[95]      Further, the passages on which Waterfront Watch relies to demonstrate that the Environment Court has discounted Policy 12.2.6.7, reveal that the Court correctly considered the effects of the whole proposal. The Court also observed that there is nothing in the proposal for the development of the Park which could not be undone and remade in the future, if future demands dictate some alternative development. The Court said:32

We have the clear view that the proposal uses the resources available in a way that will enable people and the community to provide for their social, economic, and cultural wellbeing. If tastes and demands in the future dictate some other type of development on the Frank Kitts Park space, there is nothing in the proposal which could not be undone and remade.

[96]      I do not consider the Court was in error in the way that it undertook its assessment or in considering the effects on Viewshaft 11. It is clear that Waterfront Watch has concerns about the proposed development for Frank Kitts Park, but there is no demonstrable error of law by the Environment Court. This ground of appeal also fails.

Result

[97]The appeal is dismissed.

[98]      Counsel are to confer on costs. In the absence of agreement, counsel are to file memoranda no longer than five pages by 1 February 2019.

Cull J

Solicitors:

Simpson Grierson, Wellington for the Respondent

32     Waterfront Watch, above n 1, at [42].

APPENDIX 1