Schofield v Auckland Council

 
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Decision No. [2012] NZEnvC 68

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge M Harland

Commissioner A Leijnen

Commissioner A Sutherland

(ENV-2010-AKL-000331)

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
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

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.

Held: Unconsented structures should not be taken into account as part of the existing on-site environment. Only lawful existing activities were to be taken into account. The building coverage on the site was under 40% and the activity status was within the restricted discretionary threshold and did not trigger non-complying status. Accordingly the proposal had to considered on a different basis that considered by the council and the provisions of s104C RMA (determination of applications for restricted discretionary activities applied).

“Amenity values” was defined under s2 RMA (interpretation) as “natural or physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness”. While s7(c) RMA (maintenance and enhancement of amenity values) required the Court to have particular regard to amenity values, assessing such values could be difficult. The critical factor here was that the grass frontage was commonly owned. The parties' expectations of privacy had to be viewed in that context.

There was nothing currently preventing any of the common owners using any of their commonly owned grassed area for any reason. Accordingly, the amenity potentially enjoyed by any of the co-owners was able to be affected by the actions of the co-owners who may also wish to use the space. The onsite amenity experienced by the s274 RMA parties and S was limited in terms of privacy. This was the starting point for any further finding made about the effect of the proposed deck. The deck would not be discernible or distinguishable from other elements of the building and was compatible with the broader pattern of development along the beach. Diminishment of any off-site amenity values would be negligible.

The strategic policy of the plan was to protect and enhance the high quality natural environment, to protect coastal amenity and provide sufficient on-site open space and accommodate trees. However, that objective did not limit more intensive forms of residential development. The natural amenity values of the site related more to the coastal environment and the zone as a whole, rather than to on-site amenity. The proposal did not alter anything in the natural environment of significant value. It did not impinge on the coastal environment or trees to any great degree.

On-site amenity was defined by the existing development and its setting. This development was higher in density and this brought a greater demand for on-site amenity. However, the setting of the site and the position of the common area, defined for the occupants of the site an existing level of amenity. The deck was within the footprint of S's unit and therefore did not impinge on the commonly owned area. The beachfront was highly urbanized. A relatively small yard setback from a consistent and precisely defined line was evident. The spatial relationship of development to the beach was now established and relatively consistent. The foreshore yard restriction in the plan was designed to ensure that buildings were set back from the coastline and did not dominate the coastal landscape. The proposal related to a well-established development which was close to the yard margin and the green space would be largely retained. The cantilevered nature of the deck did not interfere with the natural features of the site, any deck intrusion was relatively small and there were no adverse effects on coastal ecology or erosion.

Overall the s274 RMA parties' on-site amenity would not be adversely affected. There could be little expectation of privacy afforded to S or the s274 RMA parties because the front grassed area was jointly owned.

Issues of precedent effect were not relevant. The central issues related to restricted discretionary activities. Development of this sort was to be expected provided certain criteria were met. Each proposal had to be considered on its merits and measured against the assessment criteria. While there could be a cumulative effect from relaxing the foreshore yard rule, the options for relaxing it were tightly controlled by the assessment criteria. The unique circumstances relating to the existing development on this site were a relevant factor and would not be common to many of the residential developments along Takapuna Beach.

Appeal allowed.

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...

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