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

• Jurisdiction: New Zealand
• Court: Environment Court
• Judgment Date: 24 April 2012
• Neutral Citation: [2012] NZEnvC 74
• Docket Number: ENV-2009-WLG-000224
• Date: 24 April 2012

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

Decision [2012] NZEnvC 74

ENV-2009-WLG-000224

ENV-2009-WLG-000225

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner H M Beaumont

Environment Commissioner A C E Leijnen

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.

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

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 the oldest wharf sheds, once used for cargo handling, are now restaurant/bars; some old sheds have been removed and the space developed as open recreational areas. Other waterfront buildings and sheds have been built or adapted, for instance Te Papa, Te Wharewaka, the former Odlins and St John's buildings, the Harbour Board Offices and, perhaps more controversially, the TSB Arena and the Queens Wharf Retail Centre. There are others also. A proposal to redevelop the northern outer-T of Queens Wharf as a hotel was eventually declined after an appeal to this Court: — see Intercontinental Hotel and Ors v Wellington Regional Council (WO 15/2008), commonly known as the Hilton decision.

6 These appeals are a continuation of the debate and are concerned with Variation 11 to the Wellington City District Plan.

7 Variation 11 covers a waterfront area of some 8.2ha extending along the Quays at the harbour water's edge for the southern part of its eastern boundary, with commercial port land at the northern end. To the south are the Harbour Board Gates opposite Waring Taylor Street (adjacent to Shed 13 and the new Meridian Building and open space) and to the north is Shed 21 (now redeveloped as waterfront apartments). The area is known as North Kumutoto — Kumutoto being the name of the stream the mouth of which has been exposed as part of the public space adjoining the Meridian Building.

8 Shed 13 (and its partner Shed 11) and Shed 21 are listed as Category I items by the Historic Places Trust and are scheduled historic buildings in the District Plan. The former Eastbourne Ferry Building (Ferry Building) along with the Harbour Board Iron Gates and Railings (along the Quays frontage) are listed as Category II. The Ferry Building and the Wharves and Wharf edges from the Tug Wharf to the Overseas Passenger Terminal and the reclamation edge Lagoon to Tug Wharf vicinity 1, are identified in the Regional Coastal Plan in a list of buildings and features of historic merit.

9 The city side of the area fronts to Customhouse Quay and Waterloo Quay; the intersection of those thoroughfares with the eastern end of Whitmore Street forms the current vehicle entry point to the subject area. There were substantial port buildings on the area, but they were demolished many years ago. Presently, the area is largely used for campervan and general parking.

Plan Change 48

10 Plan Change 48 (PC 48) was notified on 27 November 2006 and was, in general terms, a review of the Central Area chapters of the District Plan, which has been operative since 27 July 2000. The Plan Change has proceeded a good way through the process, but

has, we understand, a few site specific appeals as yet unresolved. Variation 11 is a modification of PC 48 as it relates to a part of the City's waterfront

Summary of Variation 11

11 Variation 11 changes the specific provisions relating to the Lambton Harbour Area. It introduces the North Kumutoto Precinct into the Central Area Urban Design Guide and proposes that this design guide form part of the District Plan. It removes references to the Wellington Waterfront Framework as a design guide, but retains it as a policy document, with the expressed intent that it is to … meet the principles and objectives as set out in The Wellington Waterfront Framework 200L The Framework is a non-statutory document, discussed at some length in the Hilton decision, and we shall return to it later.

12 The Variation defines three areas in the North Kumutoto Area as suitable for building. These areas have, in some documents, been numbered 8, 9 and 10, and in others as Blocks A, B and C. For simplicity we shall use only the letter identifiers. Each of them has a prescribed building footprint within which buildings may be constructed, to a range of specified maximum heights. On the northernmost, Block A, which fronts Waterloo Quay, a height limit of 30m (described to us as 6-7 storeys) is proposed. (Heights are expressed as above mean sea level (msl) — ground level is c2.5m above msl). A building there could be approximately 103-104m long and 24-28m wide, thus having a footprint of c2700m ¹. On the northern half of Block B (on the Customhouse Quay frontage), it proposes a 25m maximum height (described as 5-6 storeys), and on the southern half of Block B, a 16m (described as 3 storeys) maximum. The total footprint of Block B is c920m. Block C (which is to the seaward of Block B) also has a maximum height of 16m, and, as shown on Appendix 13, has a footprint of c525m ² — that however may be subject to adjustment given the Block's proximity to the line of MHWS.

New building development

13 The Variation makes buildings within the prescribed dimensions in Appendix 13 Discretionary (Restricted) activities — see Rule 13.3.4A, with a presumption of non-notification for such applications. The matters over which discretion is retained (as now proposed — post agreement with the HPT) are:

• • Design, external appearance and siting

• • Height

• • Public space structure and public space design

• • Historic heritage

• • The effects of building development on the former Eastbourne Ferry Building

14 Importantly, that list includes historic heritage as one of the matters the Council has discretion over under Rule 13.3.4A. This reference obviously links to the wording of s6(f) RMA. The settlement agreement between the Council and the HPT introduced specific wording to deal with a Transition Area which was added to Block A to address views to the Ferry Building, primarily from the streets to the west.

15 There is a substantive change to Policy 12.2,8.6 altering the meaning of this policy by the addition of the word building in front of development. Thus the policy is restricted to provision for new building which adds to the waterfront character and quality of...