Pohutukawa Coast v Auckland Council

• Jurisdiction: New Zealand
• Judge: Harland,JR Mills,ACE Leijnen
• Judgment Date: 10 May 2013
• Neutral Citation: [2013] NZEnvC 104
• Docket Number: (ENV-2011-AKL-000125) (ENV-2011-AKL-000122)
• Court: Environment Court
• Date: 10 May 2013

In the Matter of an appeal under Clause 14(1) of Schedule 1 of the Resource Management Act 1991 in respect to proposed Plan Change 30A to the Auckland District (Manukau Section) Plan

BETWEEN

Pohutukawa Coast

Community Association

Progressive Enterprises Limited

L&C McKAY

Appellants

and

Auckland Council

Respondent

[2013] NZEnvC 104

Court:

Environment Judge Harland

Environment Commissioner JR Mills

Environment Commissioner ACE Leijnen

(ENV-2011-AKL-000125)

(ENV-2011-AKL-000124)

(ENV-2011-AKL-000122)

BEFORE THE ENVIRONMENT COURT

Appeals in respect of proposed private plan change to the Auckland District (Manukau Section) Plan — Progressive Enterprises Ltd wished to build a medium sized supermarket near the small coastal settlements of Beachlands, Maraetai and Pine Harbour — it initiated the private plan change to re-zone rural land as a new stand-alone business zone — Council approved the plan change — whether there was already adequate capacity to provide for the community's current and future retail, business and community needs — whether sustainability of existing commercial area would be compromised — whether the plan change gave effect to the Auckland Regional Policy Statement — whether the proposed objectives and policies implemented the policies and objectives of the District Plan — whether the proposed rules were the most appropriate for achieving the objectives

Appearances:

Ms Carruthers and Ms Kelly for Progressive Enterprises Limited

Mr Kirkpatrick for Pohutukawa Coast Community Association

Ms Dickey and Mr Allen for Auckland Council

• A. The appeal is dismissed. The plan change is approved, but with the modification outlined in paragraph [127].

• B. In accordance with paragraph [129] the parties are to forward their proposals to the Court within 21 working days of the date of this decision.

• C. Costs are reserved but not necessarily encouraged. Any application for costs is to be made within 21 working days of the date of this decision.

INTERIM DECISION OF THE ENVIRONMENT COURT

TABLE OF CONTENTS

Introduction	3
PC30A	4
The statutory and planning framework	9
The Council's decision under appeal	11
Is there adequate capacity within the existing Beachlands commercial area to provide for the community's current and future retail, business and community needs?	14
Will the sustainability of the existing commercial area at Beachlands be compromised should the BVBC proceed?	18
Does PC30A give effect to the ARPS?	23
Do the proposed objectives and policies implement the policies and objectives of the District Plan?	28
Are the proposed rules the most appropriate for achieving the objectives?	34
Consideration of alternatives	38
Will the plan change meet the purpose of the Act?	40
Section 290A consideration	42
Result	42

REASONS FOR DECISION

Introduction

1 Progressive Enterprises Limited (“Progressive”) wishes to build a medium-sized supermarket near to the small coastal settlements of Beachlands 1, Maraetai and Pine Harbour in east Auckland. To facilitate this, it initiated a private plan change (“PC30A”) to re-zone 6.09ha of rural land 2 on the corner of the Whitford/Maraetai Road and Beachlands Road as a new stand-alone business zone, to be known as the Beachlands Village Business Centre (“the BVBC”). Whilst the BVBC incorporates the supermarket as its cornerstone, it is also designed to provide additional retail, business and community facilities to service the existing population and the additional household growth permitted to occur at Beachlands and Pine Harbour in the future as a result of two recently approved plan changes, known as “PC30 and “PC34”. Commissioners were appointed by the Council to hear and determine PC30A at the same time as PC30 and PC34. All three plan changes were approved 3, but in the case of PC30A, with modification. Progressive appealed part of the Council's decision on PC30A, but has reached an agreed position with the Council, as have the McKays. As a result, neither the Progressive nor the McKay appeals were pursued in this Court. The Pohutukawa Coast Community Association (“the PCCA”) 4 also appealed the Council's decision on PC30A and this appeal was the focus of the hearing before us.

2 The PCCA asks the Court to allow its appeal and decline the plan change. It contended that:

These contentions comprise the broad factual issues we need to determine against the legal framework provided for in the Resource Management Act (“the RMA”).

• (a) there is adequate capacity within the existing Beachlands commercial area to provide for the communities current and future retail, business and community needs; and

• (b) The sustainability of the existing commercial area at Beachlands would be compromised should the BVBC proceed.

3 We signal at the outset of this decision that we approve the plan change, but not to the extent sought by Progressive or the Council. We also note that as a result of amendments to the plan change agreed between Progressive and the Council since the Council Commissioners decision, PC30A is different from the version of the plan change that was notified and determined by the Council Commissioners on behalf of the Council. Nothing substantive turns on this, but it is relevant to the imperative under s290A of the RMA that we must have regard to the Council Commissioners’ decision in determining this appeal and the end result.

4 The structure of this decision will be to outline what is proposed by PC30A, before summarising the relevant statutory and planning framework that applies. We will then determine the specific factual issues outlined above in the context of the legal issues that are the focus of this appeal.

PC30A

5 We will first provide some important contextual background to PC30A before outlining what it comprises.

What is the context for PC30A?

6 The communities of Beachlands (including Spinnaker Bay), Maraetai, and Pine Harbour exist in reasonably close proximity to each other, on the eastern-most harbour edge of Auckland outside the Metropolitan Urban Limit (“the MUL”), and the further development of them has been the subject of Council attention for a number of years. 5 The primary access to these communities is by road via Whitford,

along the Whitford-Maraetai Road, although a ferry service also operates from the Pine Harbour marina to downtown Auckland

7 Although each of these communities has distinctive characteristics, they share a number of facilities including Te Puru Park, a large reserve and sports area between Beachlands and Maraetai, and the ferry service at Pine Harbour. Beachlands was described as a “dormitory suburb,“ meaning that those who live there mainly commute away from it for work and other activities, including secondary schooling. We imagine the same can be said about the other settlements nearby.

8 In 2011 there were 2,350 households in the Beachlands/Maraetai primary catchment, 6 but that is likely to increase in the future given that PC30 and PC34 have enabled a total of 1,250 additional dwellings at Beachlands and Pine Harbour. PC30 was a Council-initiated plan change dealing with residential development at Beachlands 7 and PC34 was a privately-initiated plan change dealing with commercial, marine and residential development at Pine Harbour. 8 Specifically:

• (a) PC30 has re-zoned approximately 122ha of rurally zoned land to enable the Beachlands-New Avenues Zone, a low density residential zone, as an extension to the existing Beachlands settlement. This area will contain approximately 750 houses, with a minimum site size of 800m (except m defined areas). The PC30 land is adjacent to the land which is the subject of this appeal;

• (b) PC34 rezones approximately 11.58 hectares of land around the existing Pine Harbour Marina to a new zone (Pine Harbour Marina Zone) providing for a mix of residential, commercial and marine-related activities. PC34 provides for approximately 500 new household units.

9 Most of the retail and business facilities servicing these communities are located at Pine Harbour and Beachlands.

10 The retail and business facilities at Beachlands were the focus of this hearing and are situated in the Business 1 Zone at Wakelin Road and in the nearby Business 5 Zone. We will refer in this decision to both these areas as “the Beachlands Centre.” The Beachlands Centre currently supports a mixture of retail, business and community facilities. Beachlands Primary School, the Beachlands Hall and a small library are nearby. At Wakelin Road the Business 1 zoned land comprises a main street of shops, which currently include a vet, medical centre and pharmacy, real estate agents, Kiwibank and post office boxes, a restaurant, superette, bakery, and several other convenience-type stores. The Beachlands Club (formerly the RSA) is also there and has recently established a cafe which fronts onto Wakelin Road. The Business 5 zoned land just around the corner from the shops at Wakelin Road includes a 4-Square supermarket, a hardware supply/garden centre, a childcare centre, a church, and a marine repairs business. There is some capacity in both the zones for more businesses to establish there. The business-zoned land at Beachlands is surrounded by residential properties, and for a number of residents would be within easy walking distance. Dr Phillips, who prepared a social impact assessment for Progressive, assessed that about 16% of Wakelin Road customers currently walk there.

11 The mix of the facilities available at the Beachlands Centre is reasonably eclectic, and reflects the size of the current Beachlands community. Because there is no direct connection between Pine Harbour and Beachlands the Pine Harbour residents are less likely to use some of the facilities at the Beachlands Centre. The same could be said for Maraetai residents. In either event, residents...