Waterfront Watch Inc. Queens Wharf Holdings v The Wellington City Council

 
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Decision [2012] NZEnvC 74

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner H M Beaumont

Environment Commissioner A C E Leijnen

ENV-2009-WLG-000224

ENV-2009-WLG-000225

In The Matter of appeals under Cl 14 of Schedule 1 to the Resource Management Act 1991

BETWEEN
Waterfront Watch Inc Queens Wharf Holdings
Appellants
and
The Wellington City Council
Respondent
Counsel:

C Anastasiou for Waterfront Watch Inc and Land Lease Ltd

IM Gordon for Queens Wharf Holdings

K M Anderson and A M White for the Wellington City Council

Appeal against a decision of the respondent to vary the District Plan to allow for more intensive development of the Wellington Waterfront — Variation 11 allowed for a “Zero Height Rule” which allowed for consents for new buildings of any height to be processed on a non-notified basis — whether Variation 11 was consistent with relevant planning documents concerned at promoting the heritage and open space of the waterfront — whether the non-notification presumption of Variation 11 breached the objectives of the Resource Management Act 1991.

The appeal by Waterfront Watch Inc is allowed

The appeal by Queens Wharf Holdings is allowed

Costs are reserved

The issues on appeal were: whether Variation 11 was consistent with the relevant planning documents concerned with promoting the heritage and open space of the waterfront; and, whether the non-notification presumption in Variation 11 breached the objectives of the RMA.

Held: The Coastal Environment under the NZCPS was relevant. It included objectives addressing historic heritage and maintenance of character. Historic heritage under s2 RMA (interpretation) was defined as “natural and physical resources that contribute to an understanding and appreciation of NZ history and cultures”. Certain physical resources on the waterfront met that definition. Variation 11 was also required to recognise the need for public open space and pedestrian access to and along the coastal marine areas. This was a key requirement of the NZCPS and it generally sought further opportunities for enhancement of these features.

While overall Variation 11 was not contrary to the NZCPS, it did not meet that document's expectations of identifying and protecting historic heritage from inappropriate development. Nor did it address the opportunity to develop public open space or enhance public pedestrian access.

The Regional Policy Statement included a general policy concerning the coastal environment and the need to consider actual or potential adverse effects of use and development on areas, including: heritage; recreation; open space and amenity values. Variation 11 did not meet the expectations of managing heritage resources in an integrated manner with other resources. The policy objectives of the Regional Coastal Plan relating to the Harbour development included: recognising the heritage character, development; providing public opens spaces and ensuring the development did not detract from people's enjoyment of the area. Variation 11 was deficient in dealing with heritage and open space provisions.

The District Plan sought to address sense of place and enhancement of built form, quality of the public environment and city/harbour integration. The Guideline's objectives were to complement and maintain the sense of place and waterfront character; to enhance pedestrian links and to design buildings that enhanced new and existing public spaces. While the imposition of the Guidelines was a move away from rigid rules that could stifle initiative and which might not achieve quality, there had to be some certainty of outcome in order to meet the policies and objectives of the District Plan. The Guidelines were not sufficient to deliver the outcome sought by the district plan policies.

The non-notification presumption of Variation 11 had to be assessed by whether it accorded with and assisted the Council to achieve the purpose of the RMA. In terms of s32 RMA, Variation 11 gave a developer a degree of certainty that if the building was within the set parameters, it was likely to be given consent. In the overall scheme of things, the cost and time of a disputed hearing and possible appellate hearings were not unusual or disproportionate.

Non-notification removed the ability of the public to raise issues with decision-makers about the issues of a defined project. Public participation was a cornerstone of the RMA's processes which should not be dispensed with unless the reasons were clear and compelling. Such reasons did not exist here.

The Variation did not encapsulate the key features of the public policy for the development of the waterfront. It set in place rules which would not necessarily protect historic heritage from inappropriate development. There was the potential for new development to overwhelm existing registered historic buildings.

Appeal successful. The Council's decision was not upheld. It was left to the Council to propose a new Plan for the area.

INDEX

Parties

[1]

Introduction and background

[5]

Plan Change 48

[10]

Summary of V ariation 11

[11]

Ground floor details

[24]

Existing Zero Height Rule

[33]

Legal framework for considering proposed plans

[38]

Relevant Planning Documents

[39]

NZ Coastal Policy Statement

[42]

National Policy Statements

[50]

Regional Policy Statement

[51]

Regional Coastal Plan

[55]

District Plan

[61]

Design Guidelines

[68]

Waterfront Framework

[82]

Queens Wharf Holdings — Building Mass Standards

[88]

Queens Wharf holdings — public accessibility

[95]

Queens Wharf Holdings controls outside North Kumutoto

[100]

Waterfront Watch-North Kumutoto

[102]

Block A

[103]

Block B

[115]

Block C

[116]

Notification

[126]

Overall assessment

[135]

Section 290A — Council decision

[146]

Results

[147]

Costs

[151]

DECISION ON APPEALS
The parties
1

Waterfront Watch Inc is an organisation which has been actively involved in planning and resource management issues relating to Wellington's waterfront since the mid 1990s. It is an appellant and took full part in the hearing.

2

Queens Wharf Holdings No. 1 Ltd, Queens Wharf Holdings No. 2 Ltd, and Queens Wharf Holdings Ltd are, obviously enough, related entities and each of them are appellants, and also s274 parties to Waterfront Watch's appeal. The interests of the companies are identical, and it will be convenient to refer to them collectively as Queens Wharf Holdings, or QWH. QWH owns existing developments on Queens Wharf.

3

Land Lease Ltd is a s274 party to Waterfront Watch's appeal and owns a commercial property on the southwestern corner of the Customhouse Quay/Whitmore Street intersection, presently occupied by a service station. It too was a full participant.

4

Wellington Waterfront Ltd is a Council Controlled Organisation and owns the land affected by Variation 11. It was a s274 party to the appeals but has withdrawn from them and did not take part in the hearing. The New Zealand Historic Places Trust (HPT) was also an appellant against the Council's decision on Variation 11 but it has been able to resolve its issues with the Council and it did not take part in the hearing either.

Introduction and background
5

Debates and issues about the development and redevelopment of Wellington City's CBD/Waterfront interface have been loud and contentious for many years. Probably no other part of the City attracts such impassioned scrutiny. Changes in maritime transport modes for cargo and passengers have meant that much of the Port's older wharves and infrastructure, once devoted to commercial shipping, are no longer required for that purpose and that has presented opportunities for alternative commercial uses and for public and recreational space. Two of...

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