Otatara Investments Ltd v Invercargill City Council

• Jurisdiction: New Zealand
• Judge: J E Borthwick,D H Menzies,M P Oliver
• Judgment Date: 17 February 2010
• Neutral Citation: [2010] NZEnvC 38
• Court: Environment Court
• Date: 17 February 2010
• Docket Number: (ENV-2008-CHC-233)

Decision No. [2010] NZEnvC 38

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J E Borthwick

Environment Commissioner D H Menzies

Environment Commissioner M P Oliver

(ENV-2008-CHC-233)

In the Matter of the Resource Management Act 1991

In the Matter of an appeal under section 120 of the Act

BETWEEN

Otatara Investments Limited

Appellant

and

Invercargill City Council

Respondent

and

R Evans

Section 274 party

Counsel:

R Chapman for the appellant

R Ibbotson and M Morris for Invercargill City Council

R Evans (in person)

• A. The appeal is declined.

• B. Any application for costs is to be lodged and served by 9 March 2010. Replies to the application for costs must be lodged and served by 19 March 2010.

DECISION OF THE ENVIRONMENT COURT

REASONS

Introduction

1 This is an appeal against a decision by the Invercargill City Council decision declining an application by Otatara Investments Limited ( OIL) for consent to establish and operate several commercial activities and a child care centre at 2 Marama Avenue, Otatara, Southland.

2 The unusual feature of this application is that at the Council's hearing the commercial activities were either not known or subject to change and building plans were — likewise conceptual — able to be modified after consent was granted. These features would not normally attract comment where the underlying zoning for the property was generally enabling commercial development; but that is not the case in respect of this property. It is within a country area and the resource consent application' was for a non-complying activity.

3 The key issues on appeal are the scale, character and intensity of the development in the context of the Otatara sub-area (Otatara).

The application

4 Mr Gavin Gilder, a surveyor engaged on behalf of OIL, described (and refined) the application in his three briefs of evidence. The land use application is to erect a building in which a café, delicatessen and office, early childhood centre and a restaurant would operate 1. The building is configured in a U-shape and connected by verandahs. Subject to market demand, the building would be constructed in three stages. It is proposed that the consent would lapse in ten years if not given effect to.

5 The applicant described the development as three buildings. However, when completed the development would function as one building and look like one building and it is on that basis we assessed its effects.

6 Stage 1 of the three stage development involves the construction of the eastern wing of the building for a licensed restaurant. The floor area of the restaurant is 150 m ² with an additional 24 m ³ outdoor dining area 2. The restaurant would cater for a total of 80 persons seated both indoors and outdoors. The restaurant would operate between 11 am to 1 am Monday to Sunday, including public holidays 3. There would be no use of the outdoor seating area in the evenings between the hours of 10 pm and 7 am. The restaurant would employ a maximum of twelve staff 4. Of the 54 carparkirig spaces to be provided on the property, 26 of those are associated with the restaurant 5.

7 Stage 2 would involve the construction of the western wing of the. development which would house an early childhood centre. The centre would cater for a maximum of 40 children 6 between the ages of 0 and 6 years. Its 239 m ² floor area would provide an indoor play area, kitchen and toilet facilities. An outdoor play area would be located to the west and north of the building 7. The hours of operation for the early childhood centre 8 would be between 7.30 am and 6 pm Monday — Friday, excluding public holidays. Cleaning may occur outside of these hours. The centre would employ up to 12 staff 9. Of the 54 carparks provided on-site nine of those are in association with the centre.

8 Stage 3 of the proposal has been narrowed by the applicant. The proposal is now to construct a two-storey part centred between the eastern and western wings of the building. The total floor area of the building is 290 m ² (being 145 m ² on each floor) 10. A cafe and delicatessen would occupy the ground floor area. The first floor would be used as an

office. Mr Myles Green, a director and shareholder of OIL, intends to use the office for OIL business and the activities of other related companies.

9 The hours of operation for the cafe and delicatessen would be between 7 am and 9 pm Monday — Sunday including public holidays 11. The hours of operation of the first floor office would be 8 am to 5 pm Monday — Friday (excluding public holidays) 12. At least eight people would be employed in this central part of the building. The cafe requires eleven carparks, the delicatessen two carparks and the office three carparks 13, all of which are provided for within the 54 proposed carpark spaces.

10 A wooden sign mounted two metres above ground level would present the development as the ‘Otatara Village Green’. In addition, four wooden signs located in the front courtyard of each of the respective businesses would advertise the presence of a ‘cafe’, ‘deli’, ‘childcare’ and ‘restaurant’. The dimensions and graphics on the signs were described by Mr Chapman 14 and Mr Gilder 15. The total area of the five signs proposed is now 1.24 m ²16. The signs would not be illuminated. 17

11 The site is not connected to the Council's reticulated' water supply and OIL propose to store water to be used by the various activities in underground tanks.

12 Detailed landscape 18 and site plans 19, showing the location and orientation of the buildings, outdoor living areas and carparks were submitted in support of the proposal. Some of the landscaping would be done on neighbouring properties. To enable this OIL proposed a condition that construction of the building could not occur unless a subdivision consent was obtained incorporating the area of the proposed landscaping into its site.

13 Finally, OIL asked us to consider the application on the basis that there was no outdoor seating associated with the restaurant. However, we were only to do so if we concluded that the application did not pass the threshold tests in section 104D. We address the merits of the amendment later in our decision.

Locality of the application

14 The applicant's site is situated on Marama Avenue (south) and is located towards the eastern boundary of the Otatara Peninsula. Opposite the site a large sign advertising a local church heralds a change in the landscape from one which is predominantly pastoral (along Steads Road) to a landscape which contains a mix of pasture, native bush and exotic trees and rural-residential settlements (the Otatara Peninsula).

15 There are five distinct areas of settlement in the Otatara Peninsula. We were not told whether those settlements were differentiated by name. For the most part these settlements are located off Dunns Road, which is a minor arterial road that runs between Oreti Beach and Invercargill City. Much of the settlement is within areas of native bush and in those locations the most obvious signs of settlement are the not infrequent roadside letterboxes.

16 The site itself contains 4,603 m ² of land and is located near the intersection of Marama Avenue and Dunns Road. The site is currently under rough pasture and bush, including native and exotic trees 20. Surface water ponding suggests that there is a high water table in the area. Immediately in front of the site is a triangular shaped section of Council owned freehold land (on which sits the church sign referred to earlier). This land is mounded and partially screens the site from Dunns Road.

Affected persons' approval

17 At the beginning of the hearing OIL tabled approvals from six affected persons; mostly adjoining landowners situated south of the site. These approvals were criticised by the City Council as they were based on site plans and schematics that had been subsequently

amended during the course of the hearing. However the amendments to the site plans were undertaken in order to provide additional mitigation and we do not consider any jurisdictional issue arises in relation to the scope of the original application. As we were satisfied with the affected neighbours' approvals pursuant to section 104 (3) we have not had regard to the effect of the proposal on those persons.

Planning Instruments

18 It is convenient now to set out the relevant provisions of the District Plan to provide the policy context for the appeal. We were not referred to the Regional Policy Statement or the Regional Plan and assume that these documents contain no relevant provisions. We did hear extensive evidence on the provisions of the Invercargill City District Plan.

Invercargill City District Plan

Outstanding natural features and landscapes

19 The site is located in the Otatara sub-area of the District Plan. The planning map records an ‘Outstanding Natural Features and Landscapes’ overlay across the entire Otatara sub-area. In respect of outstanding natural features and landscapes the District Plan has as its objective:

3.5.1 Objective

To identify and to protect the District's outstanding natural features and landscapes, from inappropriate subdivision, use and development.

20 The relevant policy is as follows:

3.5.2 Policies

(A) Effects — To control the following adverse effects of subdivision, use and development within these areas:

• (1) Significant changes to the topography; and

• (2) Significant intrusion of structures

by having regard to:

• (a) The general shape, character and form of the outstanding natural feature or landscape

• (b) The effect of the proposal on the aesthetic character and coherence of the outstanding natural feature or landscape

• (c) The values derivedfrom the outstanding natural feature or landscape

• (d) Any methods proposed to avoid, remedy or mitigate any adverse effects of...