Save Our St Heliers Inc. v Ancona Properties Ltd and Others (Decision)
| Jurisdiction | New Zealand |
| Judge | Judge L J Newhook |
| Judgment Date | 26 January 2011 |
| Neutral Citation | [2011] NZEnvC 19 |
| Court | Environment Court |
| Docket Number | (ENV-2011-AKL-000005) |
| Date | 26 January 2011 |
In the Matter of an application for an Enforcement Order under Section 314 of the Resource Management Act 1991
and
and
Decision No. [2011] NZEnvC 19
Environment Judge L J Newhook sitting alone pursuant to Section 279 of the Act
(ENV-2011-AKL-000005)
BEFORE THE ENVIRONMENT COURT
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).
D A Kirkpatrick and R A Walden for applicant
R B Brabant for Ancona Propoerties Limited
W Brandon and J Hassall for Auckland Council
DECISION OF ENVIRONMENT COURT ON APPLICATION FOR ENFORCEMENT ORDER UNDER S 314(1)(a)(ii) RMA
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 Council 2 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.
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 Council 3, 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.
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.
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.
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 by or on behalf of that person, that in the opinion of the court, —
(i) Contravenes or is likely to contravene this Act (Resource Management Act 1991) and a requirement for a heritage order
(ii) Is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment …
…
[at] Numbers 8, 10, 12, 14, 16, 20 Turua Street, St Heliers Bay, Auckland
… on the following terms and conditions:
That the demolition of the properties at the location cease or does not commence pending the preparation of a Heritage Assessment of those buildings by Auckland Council and that if the buildings are found to be of heritage value and merit protection then the management of those buildings be carried out such that the buildings are protected, maintained and where possible enhanced.
…
By the time of the hearing this week, the applicant society indicated through counsel that it was not presently seeking relief against the Council. It also, in answer to questions from me, modified the terms and conditions upon which orders were sought, to delete “properties” and replace that with “buildings”, and also to delete the language starting with “preparation of a Heritage Assessment …” and the replacement of that with “further order of the Court”. It also narrowed the basis for seeking relief to item (ii) above, deleting at the same time its pleading of “noxious” and “dangerous.
The setting of the tight timetable and an early hearing (as I have said, by agreement of the parties), came about in part because of what I had read in the affidavit of Mr M C Markham filed before the conference, setting out the lengthy zoning history in similar terms to in my Minute and the lengthy history of the applications for consent to the then Auckland City Council over a period of about 4 years.
For the substantive hearing, affidavits were provided by Mr Markham as just mentioned, Ms D M McHattie on behalf of the applicant society (two, prior to the granting of the interim relief, and one this week), and Ms A Pillay, Ms S M Parsons, and Mr G G Farrant, on behalf of Auckland Council.
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