Environment Court turns upside down to support council
The Environment Court has scolded the North Shore City Council for the way it has tried, belatedly, to prevent a five-storey development on the reserve at Browns Bay — then has worked a contradiction into a reason for refusing consent.
The court judgment outlines how an applicant can be granted consent, even though changes enabling the consent to be acted upon have not yet been made. Six pages later, it turns that view on its head, saying that because the consent could not be implemented until a change in status of reserve land was made, the proposal was non-complying.
For the first view, the court says applicants can seek consents in anticipation of changes. In this case, the change which would have made the application comply, vesting of reserve land to make it a service lane, was wrapped up in the consent.
The two events would have been concurrent, a fact the court has ignored in going for the contradiction which enables the council to continue its opposition to a scheme which it initially agreed to.
North Shore City Council can research, inquire, slowly seek others’ view and deliberate over 18 months, then decide a resident should not be allowed to prune a tree. It is the most painstaking of councils in seeking an outcome to the greater communal benefit when resource management issues are under consideration.
So the fact that Anzani Investments and director Richard Kroon have not got what the council thought back in 1997 was a good idea is perhaps not surprising.
First issue was notification
The sticking point at first was whether the proposed five-storey development on Clyde Rd, running through to the service lane and reserve between Browns Bay’s commercial area and the sea, should go to a hearing. If it complied with the district plan, it would have a clean run to construction. (In the photo, it would be built behind the large pohutukawa.)
Mr Kroon has put forward three proposals for the same site, all fitting the 15m maximum height originally allowable. A variation to the district plan, Variation 50, promulgated in late 1998 cut the maximum to 9m, and that issue has subsequently also been part of the debate.
The three proposals have been a mixture of retail on the ground floor, parking and apartments above. The third of them contains only parking, forget the shops and residential element.
Mr Kroon says he set out in 1997 with a plan “to regenerate growth in an area that’s going to take a hammering from Albany.” In the intervening three years, the Albany Mega Centre has been built and Browns Bay is, indeed, a much quieter place.
It became political
The trouble for Mr Kroon was, he ran into an election year, and at the 1998 election many of the faces on the North Shore council changed. Leading up to that election, there was a vociferous campaign against his building, which would have been the tallest on the block.
The opposition continued through to the Environment Court hearing, with the Browns Bay Beachfront Action Committee (represented by veteran campaigner Gary Taylor) and one individual making appearances before Environment Judge Treadwell and two commissioners.
Mr Kroon said two years ago, as he tried to get his second consent version through, that the lobby from “people on the hill who don’t want an apartment block on the waterfront” would see the council “buckling to it.”
Mr Kroon first went to the council in August 1997, when he said the council was helpful. “The council asked us if we’d put in some retail. They made it non-complying, we notified it, we had the hearing and they turned us down. We’ll appeal that [to the Environment Court] because it’s effectively just on the height issue, which at the time was still 15m. It’s for 24 apartments and two levels of parking.”
The second scheme, for 12 apartments, parking and no shops, the company tried to have approved as a controlled activity and that is the one the company took to the Environment Court for a declaration on four points.
Mr Kroon said the company would appeal the court’s ruling on the third of these points, where it found that section 88a of the Resource Management Act would not save the project from variation 50 of the council plan, which reduced the maximum height limit along the Browns Bay waterfront from 15m to 9m for a controlled activity.
That section of the act provides that, where a consent application has been made and the category (controlled, discretionary or non-complying) is subsequently altered, the application should be completed as for the type of activity originally specified.
The second Anzani application was filed on 15 June 1998 and a subdivision consent application on 26 August. On 7 September Variation 50 was notified and on 15 October subdivision consent was granted without conditions.
Early in 1999, after discussion between council and developer, the plans were amended, but the council still treated the proposal as non-complying. Variation 50 was notified in August, Anzani’s resource application was notified afterward and declined.
The court found that apart from the question of whether the proposed building would abut the reserve (although Mr Kroon says on that issue the court has it wrong, because the underlying zoning of the adjacent land is business, not reserve), and the question of height raised by the plan variation, “there is no suggestion that the building would not comply with the provisions of the plan once the service land is vested.”
Council roundly criticised
On the issue of that service lane, the court said: “We find it unacceptable that a council should seek to hide behind an ordinance [concerned with timing of the acquisition or vesting of the land] and purport to decide at this late stage that a service lane which has been in the plan for some 20 years and used by the public for almost 40 years should be abandoned merely to block one development, leaving behind a hotch-potch of unconnected fragments of legal road, some not contiguous one with the other.”
The court said that, “if the council purported to exercise a discretion based on the word ‘may’ in the rule for the purpose of forcing a developer to provide side yards (not required when the land becomes service lane), we have no doubt that such a decision would be in breach of the rules of natural justice and would not survive challenge.”
The court recognised, as it said on one issue in the judgment “the council obviously have no intention in the present case of assisting the applicant to construct its proposed building.”
At another point, the court found the council “could have approached the issue as a presently non-complying activity which would become controlled when the land vested as service lane.” A consent would have flowed from that approach, but for the intervention of Variation 50, after which the court found the application was, and remains, non-complying.
Mr Kroon believes the council “could have spent $200,000 already… and it’s still got another year or two to run.” But he wants to persevere, and says a smaller proposal would not be economic. Nor, he believes, would it be the best use for the site.
“What a waste, to put terraced housing there.”
Cllr Gary Holmes, who was on the community board and is now deputy chairman of the regulatory & hearings committee, welcomed the court’s decision today. “It was important to have the class of the activity clarified by the Environment Court before our hearing commissioners consider the applications,” he said.