AYBURN FARM ESTATES Lllv1ITED &ORS v QUEENSTOWN-LAKES DISTRICT COUNCIL

JurisdictionNew Zealand
CourtEnvironment Court
JudgeM Harland,Environment Judge
Judgment Date03 May 2011
Neutral Citation[2011] NZEnvC 98
Docket Number(ENV-2009-CHC-133/134/135/136)

[2011] NZEnvC 98

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge M Harland Environment Commissioner M Oliver Environment Commissioner H McConachy

(ENV-2009-CHC-133/134/135/136)

In the matter of an appeal under section 120 of the Resource Management Act 1991

BETWEEN
Ayburn Farm Estates Limited & Ors
Appellants
and
Queenstown-Lakes District Council
Respondent
The Roman, Catholic Bishop of the Diocese of Dunedin
Applicant
and
David Clark
Lyman Goff
Graham Hazlett
Trish Hazlett
Phillip Hensman
Maureen Johnson
Peter Johnson
Brian Millard
Marilyn Palmer-Story
Hayley Stevenson
s274 Parties
Counsel:

Mr M Parker for the appellants

Mr M Ray for the respondent

Mr R Ibbotson for the applicant

Appeal under s120 Resource Management Act 1991 (right to appeal) — land use consent had been granted by the Queenstown-Lakes District Council to establish a subsidiary Catholic primary school for up to 112 pupils — the site had previously been occupied by a 20-room accommodation lodge that was destroyed by fire — the neighbourhood character and zoning was rural-residential — residential neighbours to the site were vehemently opposed to the proposal due to the proposed use of the land and the noise and disruption it entailed — whether land use consent for the proposed activity should be granted.

Held: Held: The key decisions on the issue of modification of extent of earthworks were Hawthorn Estates Ltd v Queenstown District Council, Blue Skin Projects Ltd v Dunedin City Council, and Atkins v Napier City Council. From these decisions three principles could be adduced: (1) there was no specific power to amend a resource consent application but it could be modified during a hearing; (2) whether modification would be allowed would depend on whether it resulted in the application being materially or significantly different to the original; and (3) prejudice to the parties and general public as a result of the modification had to be considered.

The Commissioners were entitled to take into account a factual determination about the effect on the environment of the increased earthworks, though not as the sole factor. The evidence established that the increase in volume of earthworks from that which was originally notified was 1239 cubic metres. The earthworks needed were largely all internal effects relative to the site itself and would not be observed from outside of the site. The notified application also specifically made provision for earth mounding on the road boundaries. The increase in the volume of earthworks sought at the Council hearing was for purposes that were part of the notified application in any event. For these reasons the amended application did not become, in substance, a different application. The application was not materially or significantly different from the notified application. The test was then whether there would be prejudice to any party or member of the public which would require the application to be re-notified. This was not the case here since the extent of the changes did not substantially change the concept or the extent of the earth mounds that were originally proposed to any significant degree.

If the activity status of the proposal was non-complying, then the provisions of s104D RMA (particular restrictions for non-complying activities) had to be considered. Cases dealing with this issue clearly turned on the particular facts. This application had to be considered as a restricted discretionary activity because it did not comply with two of the site standards in the DP - noise/visual impact and earthworks. The ambit of restricted discretionary activities was summarised in Atkins. Planners for both sides considered that the design, scale and external appearance of the buildings and associated works, as located, was appropriate. It was acknowledged that the site could be developed for up to six residential houses. The school buildings were set back 18.5m from the site boundaries and the zone requirement was for a mere 6m. Planting and fencing would screen the school buildings, car park and children from the surrounding neighbours. The privacy of immediate neighbours would not be adversely affected. The noise effects would be no more than minor. The proposed earth mounds would not have an adverse effect on the landscape and visual impact amenity of the surrounding sites. It was relevant that there were earth mounds on other properties in the surrounding areas. Finally, the adverse traffic effects arising from the proposal could be sufficiently mitigated so that the relevant site standard was able to be met.

The proposal satisfied the relevant assessment matters set out in the DP and consideration of Part 2 RMA (purpose and principles) (consistent with Auckland City Council v John Woolley Trust) also supported it.

Appeal dismissed.

  • A. The appeals are dismissed.

  • B. The application for resource consent is granted subject to conditions being finalised by the Council as set out in paragraph [128 (a) — (f)] of this decision. This decision is final except to the extent of the wording of the conditions being finalised by the Council.

  • C. Costs are reserved.

DECISION OF THE ENVIRONMENT COURT
1

Since 1883 St Josephs Primary School has been operating from a site in Melbourne Street, Queenstown next to the Catholic Church which gives it its name. Nowadays the school is fully integrated and provides a catholic education choice for parents of primary and intermediate age pupils from Years 1 to 8 who reside in the Wakatipu Basin. The school has outgrown its current site and its roll has been limited because of this. Over the last few years, the Roman Catholic Bishop of the Diocese of Dunedin, who is responsible for the oversight of the school, has looked for an alternative site within the region upon which to site a satellite campus.

2

Early in 2006, what was thought to be a suitable site was found and the Bishop purchased a 2.5945 hectare property at 478 Speargrass Flat Road comprising land and Speargrass Flat Lodge. The Lodge had previously operated as a 20-room visitor accommodation facility and the Bishop's representatives began discussions with the immediate neighbours about converting the existing Lodge into a satellite campus for 60 pupils.

3

The Lodge was destroyed by fire in late July 2006. A new school facility was therefore designed for the site that proposed development in two stages culminating in a campus to accommodate up to 112 pupils. The application for resource consent for the redesigned proposal was publically notified on 22 October 2008 and attracted significant opposition from residents in the neighbourhood.

4

The Bishop sought and was granted land use consent by the Queenstown Lakes District Council (“the Council”) to establish a subsidiary primary school for up to 112 pupils on the site subject to conditions. 1 The Council Hearing Commissioners' decision recognised at the outset that it “had been a difficult application to determine,”2 but having carefully reviewed the evidence and submissions they found that “the adverse effects have been exaggerated and bearing in mind the sort of environmental impacts of development in this zone anticipated by the District Plan, on balance consent should be granted.”3 Some of the residents appealed that decision to this Court and most remain completely opposed to such an activity. The Council has continued to support its decision on appeal.

5

We must decide anew whether or not land use consent for the proposed activity should be granted or not.

The proposal
6

The land use consent sought is to establish a satellite campus (“the Speargrass campus”) at the site to be run in association with St Josephs School in Queenstown. Practically this would mean that St Josephs School would remain as one entity, but would operate from two sites, with the Speargrass campus remaining under the control of the St Josephs School Board of Trustees and the one school Principal. We were told that the Speargrass campus would provide for Years 1 —6 pupils 4 from the Arrowtown, Lake Hayes and outer Wakatipu basin area, with Year 1 —6 pupils

from Queenstown and all Year 7 —8 pupils 5 continuing to attend St Josephs School in Queenstown.
7

Two buildings are proposed for the site: a 480m 2 classroom block that would be 5.2m high at its apex; and a 220m 2 administration block which would be 5.5m high at its apex. The buildings are designed to be sympathetic to the environment in terms of the external materials and colour palette. The design of the buildings was not challenged on appeal.

8

The school layout also includes a playing field, a hard-court area and a driveway and car park/bus turning area, with 43 car parks being provided and a specific “set down area” for buses to deliver children to and from the site. The proposal contemplates a number of children using bus transport, but the school itself does not intend to provide a separate bus service, rather it relies on accessing the bus service provided by the Ministry of Education. The playing field is located near to the road boundaries. The hard-court area was originally proposed to be some 18.5m from the western boundary adjacent to the classroom block, although during the hearing, at the suggestion of the Court an alternative layout was provided, which placed it nearer to the middle of the site next to the car park and playing field.

9

Planting, earth mounds and fences at various places around the site are proposed, in part, to mitigate any noise and visual effects.

10

The Speargrass campus proposal includes two buildings, to be established in two stages. Stage one involves the ‘classroom block’ building to provide three classrooms, a temporary office and staff facilities, for a maximum (in time) of 84 pupils and between 6 and 10 staff including a secretary, teacher aides and a cleaner. Initially the school roll will be small and it would increase over time. Stage two...

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