Pauline Anne Mcgrade v Christchurch City Council
Decision No.  NZEnvC 172
BEFORE THE ENVIRONMENT COURT
Environment Judge J E Borthwick
Environment Commissioner C E Manning
Environment Commissioner D H Menzies
In The Matter of the Resource Management Act 1991 (the Act) and of an appeal pursuant to section 120 of the Act
P Stevens and R WoIt for P A McGrade
R Dullilingham for the Christchurch City Council
J Crawford and L Smith for P and S Gribbin
Appeal against consent granted by Council to alteration of dwelling — whether effects of permitted dwelling should be disregarded pursuant to discretion under Resource Management Act s104(2) — whether permitted baseline applied.
Held: The power to disregard adverse effects that were permitted by the City Plan was discretionary and a decision whether or not to do the same must be made deliberately, in a reasoned way and for the purpose for which the power was conferred. When forming an opinion as to whether the effects of the proposed activity should be disregarded it was necessary first to identify the activities permitted by the Plan and the effects of those activities on the environment.
The District Plan contained a rule that stated that where an activity existing at the date of notification was, as a consequence of the Plan, non-complying with any one or more of the critical, community, or development standards (in the zone rules or city rules), then if an extension to that activity was proposed, no account was to be taken of any existing element of non-compliance in respect to:
• any rules relating to building height or sunlight and outlook for neighbours;
• any rules relating to setbacks from boundaries, or from waterways; and
• any rules relating to the number and dimensions of car parking spaces.
The purpose of the rule was stated as being to allow existing activities to have scope for expansion while not increasing adverse effects of non compliance. Any issue of compliance was to be confined to the extension of the activity, provided the extension itself complied. Under this rule the activity permitted by the Plan was the extension to the existing building. The permitted extension put forward was fully complying with the plan and was an activity for which no resource consent was required. The effects on the environment which a building with these extensions (a house built up to the limit of the height and recession plane standards) was a baseline against which the effects on the environment of the proposed activity may be considered.
The Court rejected the argument that the permitted baseline dwelling was not a credible development as its roofline, although complying, was “ugly and inappropriate”. Section 104(2) did not distinguish between fanciful and non-fanciful activities, although these may be relevant to the exercise of the discretion. The Court was required to decide if the permitted activity was realistic in the circumstances of the case. There was no evidence that the permitted extension could not be built, even though the Court did not have full working drawings for the permitted extension.
The permitted extension was different in design and appearance from the proposed activity. There were no design or appearance standards in the Plan to control external appearances. Witnesses expressed preference for one or other of the designs. However preferences, like matters of personal taste were necessarily subjective and were not relevant when considering the appeal in terms of s104 or Part 2 RMA. McGrade suggested there were other designs for a permitted extension but the Court said that it was not for it to determine which of the options the Gribbins should build, provided it was complying. The effects of the proposed activity did not have to be considered against all possible permutations for permitted activities on a given site. Further, on the question of the exercise of discretion under s104, the purpose for which the discretion was conferred would best be served by disregarding effects which were permitted by the Plan.
This was not an application for a “retrospective consent” as submitted by McGrade, as the second storey had not been built and the roof could be reinstated. Nonetheless it was appropriate to consider the application as if the building work had not been done and determine it in the normal way under s104, s104C and Part 2 RMA.
The proposal did not comply with two development standards in the plan (height and recession plane) and must be assessed as a restricted discretionary activity. An objective in the Plan was that there be a diversity of living environments based on differing characteristic of areas. Another objective was that a high residential amenity be maintained, although this was not an absolute. Again, the policies for sunlight, privacy and outlook were not absolutes and must be balanced with the owners or developers reasonable expectations to develop land. While there was an objective requiring “good quality building and site design”, there were no specific design and appearance controls.
Under s104C the Court could only consider those matters over which the City Council had restricted the exercise of its discretion in the Plan. If consent was granted, conditions could only be imposed for those matters specified in the Plan over which the City Council had restricted the exercise of its discretion. When considering whether the adverse effects were a reason to decline consent, the Court was confined to those issues reserved under the Plan. Part 2 RMA could not be taken into account as additional grounds for declining an application for a restricted discretionary activity.
In terms of adverse effect on sunlight, views and outlook, there would be little appreciable difference when the adverse effects of a permitted extension were disregarded. Any increase in shading by the proposed extension would be difficult to detect even when compared to the existing dwelling. Although the proposed extension would remove all of McGrade's views, it was close to what would happen with a permitted extension and therefore requiring adherence to the height limit would be unreasonable. Further, there was no requirement to consider alternative designs as the Court had already determined that the activity would not result in significant adverse effect on the environment. The Gribbins had proffered mitigating conditions to deal with residual issues.
There were no issues under part 2, but the extension of an existing building was an efficient use of the resource. Disregarding the effects of shading, loss of views and diminished outlook that would also be the effects of a permitted extension to the same dwelling — there would be no significant adverse effect on the environment that could not be appropriately avoided, remedied or mitigated by the conditions of consent. The proposal would promote the sustainable management of resources. The purpose of the RMA would be better served by a grant of consent, subject to the conditions, than by refusing consent.
Appeal allowed to the extent of modification of the conditions.
A: The appeal is allowed to the extent that the consent will be amended by the addition of new conditions.
B: The applicants are to file and serve by 31 May 2010 submissions in relation to a green wall condition, proposing suitable wording for such a condition (if supported). The City Council and Mrs McGrade should file and serve submissions in reply within seven working days of receipt.
C: If the applicants do not support a green wall condition then the appeal is allowed to the extent the following conditions are added to the consent:
The external claddings shall consist of colour steel, linear weatherboard and rendering over the existing block work and shall be painted in suitably recessive colours.
Prior to the installation of all external claddings and painting of the exterior, the consent holder shall provide samples of the chosen materials and colours to the Council for certification that such materials will achieve compliance with consent condition 6.
D: Costs are reserved but applications are not encouraged.
Mrs P A McGrade has appealed a decision by the Christchurch City Council granting land use consent to her neighbours, Mr and Mrs P and S Gribbin. That consent authorises the alteration of the Gribbins' home located in the Christchurch hill suburb of Cashmere. The Gribbins propose to add a second storey over part of an existing dwelling and lower the roofline over the remainder. The development would entirely obscure Mrs McGrade's views of the City and the mountains beyond.
The Christchurch City Council appeared in support of its decision. Mrs McGrade vigorously opposes the grant of consent.
The proposed development is to construct a second storey on an existing dwelling. The second storey will occupy approximately 18.2 metres of the present roof space. Over the remaining 4.8 metres 1 located at the eastern-most part of the dwelling, the roof will be rebuilt and lowered.
In early 2009 the Gribbins obtained building consent for the proposed work. At that time neither they nor the City Council had identified the need for a resource...
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