Schofield v Auckland Council

• Jurisdiction: New Zealand
• Judge: Judge M Harland,A Leijnen,A Sutherland
• Judgment Date: 09 November 2011
• Neutral Citation: [2012] NZEnvC 68
• Court: Environment Court
• Docket Number: (ENV-2010-AKL-000331)
• Date: 09 November 2011

In the Matter of an appeal under of the Resource Management Act 1991 (the Act)

Between

Raymond Keith and Cherie Yvonne Schofield

Appellants

and

Auckland Council (Formerly North Shore City Council)

Respondent

and

Kevin Bender

Nicola Kelly

Wixi McDonald

Alan McLean Kevin Rawlinson

Section 274 parties

Decision No. [2012] NZEnvC 68

Court:

Environment Judge M Harland

Commissioner A Leijnen

Commissioner A Sutherland

(ENV-2010-AKL-000331)

BEFORE THE ENVIRONMENT COURT

Appeal from a decision of the respondent which declined resource consent for the appellants to construct a deck on the second level of their beach front house — appellant reduced deck size on appeal — cross-lease — common area between appellant's unit and beach which other unit owners used — whether deck encroached over common area — whether deck exceeded maximum building coverage rule — whether unconsented decks on other units should be included in calculating building coverage figure — whether deck affected coastal amenities — whether consent would create a precedent.

Participants:

Mr Bartlett for the Appellants

Mr Loutit and Ms Reid for the Respondent

Ms McDonald appearing on behalf of herself and all other s274 parties

DECISION

A. The appeal is allowed. The applicants are granted resource consent to construct a new deck subject to the condition outlined in paragraph [109] of this decision and to further conditions to be submitted to the Court for approval.

B. Costs are reserved in accordance with paragraph [111]

Introduction

1 Mr and Mrs Schofield (“the appellants”) have appealed to this Court against the Council's decision to decline their application for resource consent to construct a new deck attached to the upper floor of their home, which fronts onto Takapuna Beach, on the North Shore of Auckland City. Since the Council's decision, the appellants have modified their proposal and now wish to construct a more modestly-sized deck. Resource consent is required, because among other things, the deck will protrude into the coastal conservation area within the 9 metre foreshore yard as defined in Auckland District Plan (North Shore Section) (“the Plan”) and the deck exceeds the maximum building coverage rule. Despite the modified proposal, the Council and the s274 parties (who are all neighbours and co-cross-lessees) oppose the appeal.

Background

2 The appellants' two-storied home at 5/15A William Street, which has been owned by them since 2006, is situated in a very desirable location given the popularity of Takapuna Beach as an urban North Shore beach. The property at 15A William Street is zoned Residential 2B under the Plan and is within the Plan's Coastal Conservation Overlay. The property is also subject to a cross-lease, which apart from the appellants' home 1 comprises four other units 2 built above their respective garage spaces behind the appellants' home. These are owned by the s274 parties. 3

3 The cross-lease agreement provides for common areas to be shared between all of the five households which are now parties to it, the most significant and contentious

of which is the area in front of the appellants' home that adjoins Takapuna Beach. Most of this area is grassed, but the sides of it are flanked by three beautiful and substantial pohutukawa trees, identified in the Plan as “notable trees.”

4 The upper floor of the appellants' home comprises their main living and bedroom areas, and already includes two decks either side of the main living area. One of the existing decks extends from the master bedroom, and the other accessed from the living room but extending in front of another bedroom, leads down to a paved area into the commonly owned area under one of the pohutukawa trees. The appellants have placed an outdoor table and chairs on the paved area for their use. The paved area was constructed by a previous owner. There is also a walkway (also commonly owned) leading from the paved area up the side of the appellants' home has been enclosed by gates at either end.

5 The perception by the s274 parties that the common areas have been “‘appropriated’ by the appellants for “their own exclusive use” 4 was a theme in these proceedings. We are not satisfied that the evidence supports this contention, which has probably arisen as a result of miscommunication.

6 The new deck is proposed to as a cantilevered structure approximately 1.2m above ground level and with an area of 14.4m ² (6m x 2.4m ²) extending out from the appellants' living area. A 1m high toughened but transparent glass balustrade surrounding the deck is also proposed. Consistent with the shape of the dwelling's floor plan, the proposed deck will project further than the existing decks, but it will not be linked to them.

7 The s 274 parties oppose the appeal largely because they believe the deck, if constructed, will affect their ability to enjoy the commonly owned grassed area fronting on to the beach, thereby adversely affecting their amenity.

8 The Council supports the s 274 parties' view that adverse amenity effects will be generated by the proposal. Despite not being a concern in its decision, the Council also extended this argument to include the potential adverse effects on the amenity of those enjoying Takapuna Beach. The Council also contended that the proposal is inconsistent with the provisions of the Plan, with the result that if the Court was to

grant consent it would create a precedent and affect the Council's ability to consistently administer the Plan

9 Running hand-in-hand with the resource management issues is the vexed issue of whether or not the cross-lease permits the building of the deck in any event. The law is clear that disputes about private property rights are outside the Environment Court's jurisdiction and are not generally considered in determining a resource consent application. 5 In this case, the appellants accept that if they were to be successful in their appeal in this Court, it should be conditional upon the cross-lease permitting it, a topic to be determined in another forum, on another day.

The planning framework

10 The planning witnesses all agreed 6 on the consents required and the applicable activity status relevant to each, which are most easily depicted in the following table: 7

	District Plan Rule
Activity Status	Reason for Activity Status
A	Rule 8.4.1.1
Controlled activity	The deck is within the Coastal Conservation Area
B	Rule 8.4.6.2
Discretionary activity	Works within the rootzone of scheduled pohutukawa trees near to the proposed development
C	Rule 8.4.7.3 (Rule 16.6.1.11)
Discretionary activity	The maximum impervious area — exceeds the 70% threshold provided in the rule
D	Rule 16.6.1.5A
Restricted Discretionary activity	Foreshore Yard infringement
E	Rule 16.6.1.9
Restricted Discretionary activity or Non-Complying depending on site coverage	Maximum Building Coverage rule which provides for 35% net site area as a permitted activity with control flexibility rule up to 40% (Over this non-complying)

11 The main areas of dispute in this appeal concerned the rules relating to the foreshore yard and building coverage. The first three consents required and listed in the above table were not the subject of dispute. We accept that the evidence establishes that there is no impediment to the first three consents being granted with conditions attached.

12 Much of the appeal focussed on the extent of the building coverage that would result from the addition of the deck, because if it exceeds 40% of the net site area then the proposal in its entirety would need to be assessed as a non-complying activity, but if not, the parties contended that it should be assessed as a restricted discretionary 8 activity. On the face of it this seems an easy enough factual matter to determine, but it was complicated by the various submissions made about what should or should not be included as part of the existing built environment.

13 It occurs to us that there is an argument that the proposal should be assessed overall as a discretionary activity if the building coverage is found by us to be 40% (or less) of the net site area, given the provisions of Rule 8.4.6.2 of the Plan relating to works potentially being within the root zone of at least one of the pohutukawa trees. Mr Beattie (the planner for the Council) viewed this as a technical infringement that could be addressed through conditions if consent was granted, and we are satisfied that this is the case. We will elaborate on this further after we have determined whether the activity status should be non-complying or not.

The Council's decision at first instance

14 Under s 290A of the Resource Management Act 1991 (“the RMA”), we must have regard to the Council's decision at first instance and where we differ from it to express our reasons why.

15 The proposal before the Council was to construct a larger deck of 28.8m ² and was clearly a non-complying activity. Accordingly the building coverage issue traversed before us did not arise. That proposal was supported by Council officers at the time, but the s 274 parties opposed it.

16 The Council's decision was made by two commissioners 9 on 3 November 2010 who declined to grant resource consent. The commissioners determined that the proposal did not pass either the threshold test under s 104D of the RMA or the general merit tests contained within s 104. 10 In relation to on-site amenity they held:

“…the submitters' who enjoy the common area over which the deck would be built would be significantly adversely affected by the proposal. This is particularly so given that the deck would occupy a large percentage of the level, more usable common area adjacent to the beach. The contribution that this area makes to the submitters' appreciation of the site's pleasantness, aesthetic...