Living in Hope Incorporated v Tasman District Council

• Jurisdiction: New Zealand
• Judge: B P Dwyer
• Judgment Date: 10 February 2011
• Neutral Citation: [2011] NZEnvC 157
• Date: 10 February 2011
• Court: Environment Court
• Docket Number: ENV-2009-WLG-000053

Decision No. [2011] NZEnvC 157

THE ENVIRONMENT COURT

Court:

Judge B P Dwyer

Commissioner J R Mills

Commissioner H M Beaumont

ENV-2009-WLG-000053

In The Matter of an appeal pursuant to section 120 of the Resource Management Act 1991

Between

Living in Hope Incorporated

Appellant

and

Tasman District Council

Respondent

and

Gardens of The World Limited

Applicant

Appearances:

C Fowler and J Wheeler for the Appellant

J C Ironside and A C Besier for the Respondent N

A McFadden and G Engelbrecht for the Applicant

DECISION

Decision issued: 14 June 2011

• A Appeal dismissed, consent upheld subject to amended conditions.

• B Costs reserved

Introduction

1 Living in Hope Incorporated (LIH) appeals against a decision of Tasman District Council (the Council) granting consents to Gardens of the World Limited (GOTWL/the Applicant) to establish and operate a crematorium and associated activities on the corner of Paton Road and Clover Road East at Hope (the site), on the Waimea Plain near Richmond.

2 The Council granted two resource consents to the Applicant:

• • Firstly, a land use consent:

  To establish and operate a crematorium and associated place of assembly, memorial garden and ticket kiosk (RM090538);

• • Secondly, a discharge to air consent:

  To discharge the combustion products from a gas-fired crematorium to air (RM090539).

3 Those aspects of the proposal which require resource consent are:

• • The establishment and operation of a crematorium (including the discharge of cremator gases to air) with an associated 25 person capacity chapel, a total building area of 360.4 m ²;

• • Establishment of a memorial garden for the interment of ashes which would be open to the public between 9 am and dusk, 7 days a week;

• • Establishment of 13 additional car parking spaces for staff and visitors;

• • Operation and establishment of a ticket kiosk (40m ²) for the tourist gardens known as Gardens of the World, with the sale of a limited range of non-alcoholic refreshments such as tea and coffee. Hours of operation would be 9 am to half an hour before dusk, seven days a week;

• • Establishment of a small scale directional sign.

4 The GOTWL proposal required consent as a discretionary activity. When the application was notified by the Council, a total of 220 submissions were received. 166 submissions supported the application and 54 submissions opposed.

5 The Council decision (to which we have had regard pursuant to s290A RMA) addressed the following issues in determining to grant consent:

• • Mercury discharge;

• • Reverse sensitivity;

• • Land productivity;

• • Traffic;

• • Parking;

• • Noise, amenity and rural character;

• • Positive effects.

We will similarly consider those matters in this decision. There was no evidence before us seriously challenging the grants of consent to the ticket kiosk and directional sign. Having considered the Council decision, we simply adopt it in respect of those aspects of the application.

Background

6 GOTWL is the owner of the 3.84 hectare site. The Applicant company is in turn owned by persons associated with the business of P Day and Son Limited, funeral directors in Nelson for over 80 years.

7 Days presently operate funeral homes from three premises at Nelson, Motueka and Waimea. There is a small cremator in operation at the Motueka facility, consented about 15 years ago. We were told by Mr FH Day (Director of P Day and Son Limited) that the Motueka cremator … is situated in the heart of a residential zone, and there has never been a complaint about its operation or the service it provides. 1 (Mr Day's emphasis)

8 Mr Day advised that, other than the Motueka crematorium, the only facility for cremation in the Nelson area is a crematorium operated by the Nelson City Council at Wakapuaka. Mr Day described this facility as Victorian. It dates back to the 1940s with an upgrade in the 1970s.

9 When Days obtained resource consent to establish their funeral home at Waimea, consent was also sought to establish a crematorium, but that aspect of the application was declined. Consequently, families using the Waimea (and presumably Nelson) funeral homes have to travel to either the Day crematorium at Motueka or the Council crematorium at Wakapuaka to attend any subsequent cremation. Mr Day considered that was an imposition on families at a time of grief and emotion.

10 Mr Day detailed the company's efforts over the last two or three years to find a site to establish a crematorium closer to the Waimea funeral home. A number of sites were considered in Industrial, Residential and Commercial zones. These were found to be unsuitable for various reasons. On the one hand, it was considered that Industrial and Commercial zones generally did not provide the ambience and tranquility which the facility required. On the other hand, Mr Day recognised the difficulties of convincing neighbours that a Residential zoned site was appropriate, notwithstanding his view that there are no environmental risks or impacts on amenity from the operation of a crematorium.

11 Eventually, the present site in the Rural zone of the Tasman District, was identified. The site is situated near Hope, which is in close proximity to Richmond and easily accessed from Richmond, Waimea and Nelson. Days had previously conducted two funeral services on the site, known as Gardens of the World, and formed the view that it would be ideal for the establishment of a crematorium with a small chapel facility and a memorial garden. The site was purchased and this application is the outcome.

12 Gardens of the World was created by Mr and Mrs G F Etherington, long-term orchardists and nurserymen at Hope, and conceived by them as public gardens on a grand scale. Mr Etherington described 2 the Gardens as consisting of …a New Zealand garden, oriental garden, a “white garden”, American garden, European garden, African garden, Australian garden, a central promenade with fountain, roses, herbs and herbaceous plants, and an amphitheatre area with trees and Rhododendrons Etherington (now 75 years old) had placed the property on the

market in the hope that somebody else would continue his dream and bring it to fulfillment He considered that time had run out for him to continue with the venture. 3

13 The Gardens of the World complex occupies a 2.6 hectare rectangular shaped portion of the site. The site runs roughly northwest/southeast. The northwestern boundary of the site fronts onto Paton Road, the southwestern boundary fronts Clover Road East and the northeastern boundary adjoins a vineyard called the Greenhough Vineyard. These three boundaries have mature shelterbelts which largely obscure views from the road and neighbouring properties into the Gardens. Internal plantings subdivide a series of well defined, separate, secluded garden areas and the amphitheatre. With the exception of the carpark area on Clover Road East, there are very limited, if any, views into the Gardens from the adjoining roads or nearby properties. Even the carpark is largely surrounded by planting.

14 The developed gardens extend to a point approximately halfway along the northeastern and southwestern boundaries of the site. At this point, the southwestern boundary of the property leaves the road and follows the top of a bank which cuts across the landform. This boundary tapers so that the southern portion of the site forms something of an elongated, narrow neck of about 1.2 hectares. There is a substantial dwelling house in this area, together with a large glasshouse, nursery, sheds and workshop buildings.

15 Much of the land in the neck is occupied by mature grapefruit trees. This portion of the site is more open in visibility than the Gardens. There is a mature conifer shelterbelt along the northeastern boundary which provides some visual barrier between the site and the Greenhough Vineyard. A casuarinas shelterbelt runs along the southwestern boundary providing a strong visual barrier. There is presently no planting along the southeastern boundary which adjoins farmland.

The Proposal

16 The crematorium/chapel building is to be located at the northern end of the neck near the Gardens. The grapefruit trees are to be removed and the neck is to be d out with a lake, memorial gardens and forest-type planting up to 7m high in a

similar style to the Gardens of the World. The memorial gardens will be used as a place for interment of ashes amongst the plantings. The conifer shelterbelt on the northwestern boundary will be supplemented with Cyprus species and the southeastern boundary will be planted with a Cyprus hedge so that, as with the Gardens, this portion of the site will be fully enclosed.

17 The crematorium/chapel building itself does not require consent as it complies with the permitted activity rules of the Tasman District Plan (the District Plan) for buildings. The structure is to have a maximum height of 5.5m above ground level with the emission stack extending a further lm above the roof. The height for permitted activity buildings in the zone is 7.5m. The proposed building complies with all setback requirements and total site coverage by all buildings (including existing buildings) after construction of the crematorium/chapel, will be less than half that which is permitted under the District Plan. It is the commercial activity aspect of the crematorium/chapel and kiosk as well as the sale of memorial plots which require resource consent.

18 Commercial activity is defined in the District Plan as meaning… the use of land and buildings for the display, offering, provision, sale or hire of goods, equipment or services, and includes shops, markets, showrooms, restaurants, takeaway food bars, professional, commercial and administrative offices, service stations, motor vehicle sales, tourist accommodation, the sale of liquor and associated parking area; but excludes...