Pauline Anne Mcgrade v Christchurch City Council
| Jurisdiction | New Zealand |
| Judge | J E Borthwick,C E Manning,D H Menzies |
| Judgment Date | 18 May 2010 |
| Neutral Citation | [2010] NZEnvC 172 |
| Court | Environment Court |
| Docket Number | ENV-2010-CHC-9 |
| Date | 18 May 2010 |
In The Matter of the Resource Management Act 1991 (the Act) and of an appeal pursuant to section 120 of the Act
Decision No. [2010] NZEnvC 172
Environment Judge J E Borthwick
Environment Commissioner C E Manning
Environment Commissioner D H Menzies
ENV-2010-CHC-9
BEFORE THE ENVIRONMENT COURT
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.
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
-
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 consent. Resource consent is required because the dwelling will exceed the height and recession plane standards for permitted activities.
Soon after the issue of the building consent the roof was removed (save for that part of the roof which is to be lowered) and work began on constructing a new floor pad and framing for the second storey. During this time, and it is not clear to us exactly when, the need for a resource consent was identified. An application for consent was lodged on or about 30 July 2009. Building work stopped. Now without a roof the Gribbins' dwelling was protected by tarpaulins to keep it weathertight. That remains the situation today.
The general locality of the McGrade and Gribbin properties was accurately described in the evidence of Mr S Fletcher, planner, as follows 2:
The area is an older established residential locality with a variety of dwellings of varying size, height, age and design. The site includes mature plantings of varying size which is a characteristic of the wider area with many large mature trees in the locality. The amenity and character of the area is one of a relatively dense cluster of residential dwellings mixed with established mature trees scattered across the area. The area is a hill suburb with houses being visible above and below the site. There are houses of varying design, size and shape including single and multi storey dwellings. A review of consent history in the area revealed dwellings over the permitted 7 metre height limit have been previously approved in the area.
Mrs McGrade's property is located uphill of the Gribbins; they share a common boundary. The McGrade property contains an older character home that has recently been modernized and is well maintained. Orientated towards the north, the home is positioned towards the rear of the property and set back approximately 21 metres from the common boundary. In front of the house is a large area of lawn and gardens. The garden is the source of some considerable pleasure and, understandably, of pride for Mrs McGrade.
Initially Mrs McGrade asked the court to consider the existing environment in terms of her ability to subdivide her property and construct a second dwelling as of right. During the course of the hearing counsel for Mrs McGrade advised that the subdivision potential of the McGrade property was no longer relied upon as part of the environment 3. Evidence about the subdivision potential of the land was withdrawn 4. Mrs McGrade still gave evidence about her intentions to subdivide the property if she was unsuccessful in this appeal. We understood that evidence was given to underscore her depth of feelings in relation to the proposal.
The Gribbins' house is located some 1.8 metres off the common boundary with Mrs McGrade's property. Prior to its removal the dwelling had an apex roof 5 covered in stone chip tiles. The roof shape and covering would have been a dominant feature when viewed from Mrs McGrade's property. The southern wall of the Gribbin house exceeds the recession plane standards in the City Plan by 0.3 metres. Built some 30 years ago, the non-compliance with the standards for recession planes has come about through subsequent changes in City Plan rules. The dwelling therefore has existing use rights under section 10 of the Act.
Mrs McGrade is concerned that the proposed extension will have significant adverse effect on her property in terms of shading, views and outlook from her dwelling.
She says that as a result her property value will decrease. The evidence is that no other neighbours are affected 6.
A key issue on appeal is whether the effects of a permitted dwelling should be disregarded pursuant to the discretion we have under section 104(2). When considering the adverse effects of a restricted discretionary activity, section 104(2) of the Act allows the decision-maker to disregard adverse effects that would be present from permitted activities. That discretion is to be exercised after the decision-maker has made an assessment of the environment in which the proposal is to be located, in the light of what the plan permits within it.
Ms Dunningham, for the Christchurch City Council, helpfully summarised the legal issues for determination as follows:
(a) when assessing the application is it appropriate to apply the statutory permitted baseline principles set out in section 104(2) and disregard the effects of the permitted baseline design for the house at 49a Hackthorne Road?
(b) if the permitted baseline is relevant, are the additional effects of the proposed alterations such that it would be appropriate to decline consent having assessed the application under section 104 and Part 2 of the Act?
(c) alternatively, if the permitted baseline design and its effects are irrelevant, are the effects of the proposed alterations such that it would be appropriate to decline consent having assessed the application under section 104 and Part 2 of the Act? It is convenient to deal with the permitted baseline issue first as it will determine how we go on to assess the adverse effects on the environment of the proposed extensions.
Mr and Mrs Gribbin put forward a design for a two-storied dwelling which, like the proposal for resource consent, incorporates the first storey of the existing dwelling
(we shall refer to this as the permitted extension). The existing dwelling does not comply with the Christchurch City Plan in that part of its southern wall exceeds the recession plane standard in the City Plan. For Mrs McGrade, counsel submitted that the relevant activity under section 104(2) is a fully complying dwelling. While the use of the existing dwelling is allowed under section 10, the court cannot consider for the purpose of section 104(2) the adverse effects of an activity that is not fully complying with the rules in the PlanSecondly, counsel for Mrs McGrade submitted that the permitted extension was not a credible development. Other dwellings may be permitted on this property (depending on their location they will be different in design and appearance). These dwellings should also be considered as part of the permitted baseline.
In support of her submission counsel for Mrs McGrade referred to Rodney District Council v Eyres Eco-Park Limited 7 where Justice Allan held that activities that are carried on pursuant to existing use rights do not form part of the permitted baseline. He found 8:
While previously, existing use rights were considered to be part of the ‘existing environment’ which, coupled with activities permitted by the Plan, formed the permitted baseline, analysis of the new subsection no longer supports such an approach.
Then later:
The task of the Environment Court is to properly identify the permitted baseline, engage in assessment of the receiving environment, and...
To continue reading
Request your trial