Save Our St Heliers Inc. v Ancona Properties Ltd and Others (Decision)

 
FREE EXCERPT

Decision No. [2011] NZEnvC 19

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge L J Newhook sitting alone pursuant to Section 279 of the Act

(ENV-2011-AKL-000005)

In the Matter of an application for an Enforcement Order under Section 314 of the Resource Management Act 1991

Between
Save Our St Heliers Incorporated
Applicant
and
Ancona Properties Limited

and

Michael & Sandra Markham

and

Auckland Council
Respondents
Counsel:

D A Kirkpatrick and R A Walden for applicant

R B Brabant for Ancona Propoerties Limited

W Brandon and J Hassall for Auckland Council

Application for an enforcement order under s314(1)(a)(ii) Resource Management Act 1991 (scope of enforcement order — avoidance of adverse effects) to prevent the demolition of art deco houses in St Heliers — whether the houses were of heritage or character value under s2 — whether the demolition of the houses was offensive or objectionable under s314(1)(a)(ii) (scope of enforcement order) — whether their demolition would have an adverse effect on the environment under s319(2)(b) (Environment Court not to make an enforcement order if adverse effects considered by decision maker).

Held: While the Auckland City Council had recognised the art deco houses were important as they contributed to the nature and history of the distinctive local St Heliers character, as a whole they had not been afforded heritage status under the District Plan. The reference to the historical value of the houses was very general and very low-level and was really a sub-set of their contribution to St Heliers as character-defining or character-supporting. For the purposes of the RMA there was a considerable difference when considering the definition of historic heritage as defined by s2 RMA (physical resources that contribute to an understanding and appreciation of New Zealand's history and cultures).

Dictionary definitions of offensive related to hurtful, harmful, injurious or causing or liable to give offence, while objectionable included undesirable, unpleasant or offensive. While the subject matter of the case was likely to be somewhat offensive or objectionable, it was not to the extent that the removal of the houses was likely to have adverse effect on the environment given the dearth of information, and in particular expert opinion, that the houses had any significant value for the purposes of historic heritage as defined in the RMA. The majority of the information related to the character-defining or character-supporting nature of the houses rather than qualities of historic heritage.

There had also been opportunities for the public to advocate for the houses which had not been taken up.

An enforcement order would also be futile because if Ancona reapplied for removal consent, the application if made in the context of seeking consent as well for replacement buildings, would be judged as a controlled activity for which consent could not be refused.

Application dismissed.

DECISION OF ENVIRONMENT COURT ON APPLICATION FOR ENFORCEMENT ORDER UNDER S 314(1)(a)(ii) RMA

1

Last week I issued an Interim Enforcement Order in an extremely brief decision, without conducting an hearing, preventing demolition of Nos. 8, 10, 12, 14, 16 and 20 Turua Street, St Heliers. I said: 1

[2] In making this urgent decision, the Court has particularly taken account of the matters in subsection (2) and ss (3) of Section 320 of the Act, and the order is made more or less in line with the reasoning of the Court in I C Pritchard v New Plymouth City Council2 in relation to its reference to s314(1)(a)(ii) RMA, mindful however that it has had to be inferred that the application is one for an interim enforcement order (it was expressed to be for an enforcement order), and mindful of the fact that there has been no undertaking as to damages, and numbers of other serious shortcomings with the papers.

2

On the same date, 20 January 2011, I issued the following Minute to the parties [3] concerning the recent planning history of the land as it was known to this Court:

[1] This afternoon, I have made an Interim Enforcement Order to be in force [2] for a very short time period. That was done essentially because the effects of the activity sought to be stopped would be irreversible. The parties will note that the reasoning in the decision is extremely short, again because of the urgency of the situation in which I was advised that bulldozers and the police were “at the gate” along with people protesting about the proposed demolition.

[2] The parties will also note that I made express reference to this Court's Pritchard decision of 1997, and particularly to its reliance on s314(1)(a)(ii). That is a subsection concerned with activities “likely to be noxious, dangerous, offensive, or objectionable to such an extent.. likely to have an adverse effect on the environment”. I was, I must say, mindful at the same time of the decision in Otorohanga Heritage Protection Group v The Otorohanga District Council3, which is to somewhat different effect.

[3] Section 314(1)(a)(ii) must be seen in contrast to the immediately preceding subsection (i), concerned with [potential] breaches of the Act, or the district plan, or a heritage order, amongst other things. I mention this because the first affidavit of Ms D McHattie in support of the application discusses a 2004 Character and Heritage Study of St Heliers' Bay (that she exhibits), appearing to treat it as though it had something of the flavour of those statutory instruments. Ms McHattie goes so far as to suggest that the Study's recommendations include that buildings on the eastern side of Turua Street be assessed for “individual scheduling [as heritage buildings] under the District Plan”.

[4] The first point that parties should be aware of at this time is that the Study does not appear to recommend individual heritage scheduling for

buildings. Instead it discusses possible scheduling or notation of buildings in and around the St Heliers' commercial centre, as “character defining”, or “character supporting”.

[5] Secondly, it may be relevant to see the Study in context. It was a forerunner (no doubt amongst other documents) of instruments promulgated by Auckland City Council known as Plan Change 145 and Variation 145A, which came before the court in recent years, and were the subject of deliberation and decisions after extensive hearings. The key decision was an Interim Decision of my Division, No. A110/2008, J E Kennedy and others v Auckland City Council. The appellant Ms Kennedy was a party strongly interested in amenity issues in and around the St Heliers' shopping centre. The other appellants were landowners. Other than Ms Kennedy, no parties espoused heritage and amenity issues at the hearing.

[6] PC 145 as appealed from Council decisions, contained a brief mention in one of its introductory paragraphs of provision for retention of character buildings. A map, called B15/12 St Heliers' Centre Plan, showed six out of eight properties on the eastern side of Turua as being “character defining buildings”. The controls provided that buildings identified as character defining in the Centre Plan, required resource consent for a discretionary activity to undertake certain activities such as demolition, removal, relocation, or certain external alterations or additions.

[7] During the life of the cases before this court, various steps were taken, including negotiation amongst parties, and caucusing amongst groups of expert witnesses pursuant to direction of the Court. As a result, by the time the hearing was conducted in late 2007 and early 2008, only three matters remained in dispute, an agreed basis for settling all other matters having been agreed by the parties. The only matters remaining in dispute concerned some particular height controls, a roof bonus rule proposed by one party, and a proposal for exemption from the District Plan's on-site parking requirements.

[8] Character-defining building issues were no longer in dispute, and indeed the provisions in this regard that I have just mentioned had been expressly deleted from the Plan Change by agreement of the parties.

[9] The above may be seen as a process context within which the Study exhibited by Ms McHattie must be seen. It also goes without saying that the Environment Court has not at any time been required to deliberate and rule upon any alleged heritage or character defining qualities of the houses on the eastern side of Turua Street.

3

Some further reasons for my decision granting the Interim Enforcement Order, over and above those appearing in the decision, are effectively recorded in that Minute. Counsel involved in this week's hearing have each indicated to me that they accept and agree with the contents of the Minute. Of some note, and I think contributing to the efficiency with which matters have been able to proceed since the Interim Decision, Mr Kirkpatrick, Mr Brabant, and Mr Hassall, all appeared in the PM 145 hearings, and as noted, I presided.

4

The next day, 21 January 2011, I conducted an urgent conference in Court, and a timetable for preparation for the substantive hearing was agreed, and yesterday's hearing date agreed and set.

5

The application as originally framed last week, sought relief against all respondents, including the Council, in the following terms:

… an enforcement order to:

Require Ancona Management Limited and Michael C Markham and Sandra T Markham, or their nominees to cease, or prohibit a person from commencing, anything done or to be done...

To continue reading

REQUEST YOUR TRIAL