Lambton Quay Properties Nominee Ltd v The Wellington City Council

 
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Decision No: [2013] NZEnvC238

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner K A Edmonds

Deputy Environment Commissioner D Kernohan

In The Matter of an appeal under s120 of the Resource Management Act 1991

Between
Lambton Quay Properties Nominee Limited
Appellant
and
The Wellington City Council
Respondent
Counsel/Representative:

C Anastasiou for Lambton Quay Properties Nominee Ltd

R M Devine & K M Krumdiek for NZ Historic Places Trust — s274 party

A E Smith for Wellington Civic Trust — s274 party

S F Quinn for the Wellington City Council

Appeal under s120 Resource Management Act 1991 (“RMA”) (right to appeal) from a decision by Commissioners appointed by the respondent which declined an application by the appellant for a restricted discretionary resource consent to completely demolish the Harcourts Building on Lambton Quay — building classified as Category 1 under the Historic Places Act 1993 — appellant argued the building could not be strengthened for office/retail uses at a commercially viable cost — whether demolition was in line with relevant planning documents under s104(1)(b) RMA (consideration of applications) — what effects demolition would have on the environment under s104(1)(a) RMA (actual and potential effects on the environment of allowing the activity) — whether there would be a “precedent affect” in allowing the demolition.

The issues were: whether demolition was in line with relevant planning documents under s104(1)(b) RMA (consideration of applications); what effects would demolition have on the environment under s104(1)(a) RMA (actual and potential effects on the environment of allowing the activity); and whether there would be a “precedent affect” in allowing the demolition.

Held: The District Plan, and the Council's Earthquake Prone Policy document put considerable emphasis on consideration of alternatives to demolition and the adaptive reuse of heritage buildings. On the issue of pounding, the HSBC Tower was built well after the Harcourts Building and so, arguably, it was the HSBC Tower that was built too close to the Harcourts Building. The onus for remediation of the pounding issue might not necessarily lie with the demolition of part or any of the Harcourt Building.

If the building was to be conserved, the developer, was being required to spend private money for the public good. The quantum of this was arguable, but it was clearly considerable. The corollary of this argument was that if the building was demolished and replaced by a modern 20 storey office building, it would largely be to the private gain of the developer with the loss of public benefit embodied in the building's heritage values and protected by Part 2 RMA and the District Plan provisions.

In terms of s104 RMA, the principal positive effect of demolition would be the resulting opportunity to build on the site a larger, more functional, and more profitable building, but attempting to bring that within the matters reserved for discretion would be dubious at best. If it was not demolished, then until it was strengthened to an acceptable seismic standard, there would be an adverse financial effect on the owner, because the building was unable to pay its way, let alone produce a return on the funds invested in it. The principal adverse effect of demolition would be the loss of its heritage values and its contribution to amenity and the streetscape.

The building had high heritage values, because of its architectural character and design. Its exterior was original and in a very good state. It contributed strongly to streetscape. It had significant seismicity issues and, if it was to be retained, it had to be brought up to an acceptable percentage of NBS. The possibility of the building pounding the HSBC Tower, of itself, did not add to a justification to demolish.

The District Plan provisions relevant to heritage were very strongly expressed, discouraging demolition and having total demolition to be considered only when the decision-maker was convinced that that there was no reasonable alternative. Section 6 RMA (matters of national importance) and s7 RMA (other matters) were also strongly expressed, requiring the decision-maker to consider what might be an appropriate use or development that would overcome the nationally important protection of historic heritage, which was otherwise to be recognised and provided for, and requiring particular regard to be had to the s7 RMA matters.

The proposal to demolish the building cut across the most important and directly relevant objectives and policies which related to historic heritage. Quay Properties had made much of the possibility that the building would pose a public safety risk and remain vacant on account of the earthquake prone notice in considering the effects and the associated plan provisions. That presupposed that there were no alternative options and no measures that could be taken to reduce the risk to those in the building, and the surrounding streets.

The Wellington Civic Trust saw this as a test case with national implications beyond those of the urban form of central Wellington and was concerned about precedent around demolition of a Category 1 listed buildings. In a case where, as here, the proposed demolition was a restricted discretionary activity, concern about setting a precedent could be overstated. A consideration of the Court's decisions about heritage showed that there was no precedent in a true sense. Every application had to be assessed on its merits, measured against the provisions of the RMA and the relevant planning documents.

In its present state the building could not support itself financially, or make an acceptable return on funds invested for its owner. But that was not a reason, without more, to justify demolition. The District Plan, and s6 RMA, required the alternatives to be exhaustively and convincingly excluded before demolition could be justified. While possible reuse as an office/retail building, and other adaptive reuses, were considered, they had been explored with a handicap imposed by a rigidly set bottom-line figure being demanded for the land and building as they were. The Commissioners had concluded that there had not been a sufficient investigation of alternatives to total demolition, and that had decisive weight in their decision to decline consent. Although more information was presented to the Court, the same conclusion was reached.

The appeal was declined and the decision of the Council was confirmed.

DECISION ON APPEAL

Decision issued: 07 OCT 2013

The appeal is declined and the Council's decision is confirmed Costs are reserved

Introduction
1

In a decision given on 25 February 2013, Commissioners appointed by the Wellington City Council declined an application by Lambton Quay Properties Nominee Limited for a restricted discretionary resource consent to completely demolish the building at 203–213 Lambton Quay and 30 Grey Street, Wellington. This is an appeal against that decision.

2

There is no formal application before the Council or the Court for a resource consent for a replacement building on the site. In an earlier decision ( Lambton Quay Properties Nominee Ltd v Wellington City Council [2013] NZEnvC 147) the Court expressed the view that such an application was not necessary to enable it to adequately evaluate the merits of the application to totally demolish the existing building. The broadly expressed intentions of the appellant for the site are noted later in this decision.

Background
3

The building in question, now known as the Harcourts Building is, as its address suggests, situated on the corner of Lambton Quay and Grey Street in the central city. It is an eight level office and retail building with a partial basement and a penthouse. It was originally constructed in cl928 for the Australian Temperance and General Mutual Life Assurance Society (T&G) as its New Zealand Head Office. Its structure is formed from a three-dimensional steel frame encased in concrete with reinforced concrete floor slabs. There are reinforced concrete walls around the lift shaft, the stair core and a single wall adjacent to the main stair in the centre of the building. The facades along Lambton Quay and Grey Street are a combination of concrete encasement of the steel columns and beams with areas of unreinforced brick masonry infill.

4

The building is on the eastern side of Lambton Quay, on land reclaimed from the harbour in the late 1850s. Its site area is 978m 2, although that is now subject to some encroachment by the neighbouring and much more recent (c2002) HSBC Tower which is presently in common ownership with the subject building (although they are on separate titles and we do not know if the encroachment has been formalised). The lifts and stairwell for the HSBC Tower were placed in what had until then been the north-facing lightwell of the building, meaning that the windows formerly facing into the lightwell had then to be infilled. Part of the HSBC Tower structure actually overhangs the roof of the building.

5

The T&G Building was registered with a ‘C’ classification under s35 of the Historic Places Act 1980 on 1 October 1982. In August 1989, the building's registration was upgraded by the New Zealand Historic Places Trust (NZHPT) to a ‘B’ classification. This classification was appealed to the High Court by the then owners. The appeal was declined on 7 September 1992, with the High Court reportedly noting the building to be … of very great architectural quality. The building was listed in the heritage schedule of the Proposed Wellington City...

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