REPORT TO: Hearings
Committee
MEETING DATE: Wednesday 6
September 2017
FROM: Senior Environmental Planner
Catherine
Boulton
SUBJECT: Section
357A (1)(g) and (2) Resource Management Act 1991 -
Objection to Decision on Resource Consent RMA20170172, 209 Horonui Road,
Poukawa (John and Pauline Campbell)
1.0 INTRODUCTION
1.1 An objection pursuant to section 357A of the Resource
Management Act 1991, has been lodged with the Hastings District Council by John
and Pauline Campbell (the applicant). This objection relates to
Council’s decision to refuse their application for consent to subdivide
their 20.84 hectare property at 209 Horonui Road. This is detailed in the
following sections of this report. A copy of the section 357A objection
is included as Attachment D.
1.2 This report considers the basis for the objection to
Hastings District Council’s decision and makes a recommendation as to
whether the objection should be upheld or dismissed.
2.0 BACKGROUND
2.1 The Application
Resource consent was sought by J M Campbell for the
subdivision of the applicant’s 20.84 hectare site into two lots including
an oversized lifestyle lot of 7.1555 hectares and an undersized balance site of
13.6845 hectares.
2.1.1 Access: It is proposed that access to Lot 1
will continue from the existing entrance to the homestead and secondary
dwelling on Horonui Road, and access to Lot 2 was proposed from the second
existing entrance to the woolshed on Horonui Road.
2.1.2 Water Supply: The existing homestead and
secondary dwelling obtain water from an existing groundwater bore. It was
anticipated that any future dwellings on proposed Lot 2 would be serviced by
rainwater, or alternatively through a connection to the existing groundwater
bore.
2.1.3 Wastewater: The existing dwellings dispose
of wastewater via existing on site wastewater systems, the disposal of
wastewater from any future development on proposed Lot 2 would also be through
an onsite wastewater system.
2.1.4 Stormwater: Stormwater from the existing
buildings and from any future development on Proposed Lot 2 would be disposed
to ground.
2.1.5 Electricity Supply: Unison Networks Limited
advised that Unison can supply electricity to the proposed new lot if required
in the future.
The resource consent application is included in Attachment
A, and, the Officer’s Report is included in Attachment B and
the Decision on the subdivision is included in Attachment C.
2.2 Reasons for resource consent and
activity status
2.2.1 The Proposed District Plan as amended
by decisions on submissions was publically notified on 12th September 2015 and
took legal effect from this date. The application was lodged on the 30th May
2017. No appeals had been lodged against the relevant provisions of the
Proposed District Plan relevant to this application. In accordance with Section
86F of the Resource Management Act 1991, the provisions of the Proposed
District Plan relevant to this application were treated as operative. As such,
no assessment was required under the Operative District Plan.
2.2.2 Lifestyle subdivision around an
existing dwelling is a Controlled Activity within the Rural Zone subject to
fulfilling site performance standards and terms. Where a subdivision is unable
to comply with one or more of the relevant Subdivision Site Standards in 30.1.6
it is considered a Non-Complying Activity. The minimum site area in this zone
is 20 hectares. The plan allows for the creation of lifestyle lots of between
0.4 and 2.5 hectares (net site area) where the balance area is over 20
hectares. A site, however, shall only be eligible to be subdivided to create a
lifestyle site once every three years. The proposal was unable to meet the
requirements contained in Standard 30.1.6 where the maximum net site area
requirements for the rural lifestyle site and the minimum net site area
requirements for the balance lot are not met with the following site areas
proposed:
· Lot 1 – 7.1555 hectares (lifestyle
lot)
· Lot 2 – 13.6845 hectares (balance
lot).
The
proposal was therefore considered to be a Non-Complying Activity in
terms of the Proposed Hastings District Plan.
2.3 Decision
2.3.1 For
the purposes of a decision on notification, the Section 95 report (HDC Ref
56083#0026) concluded that adverse effects on the wider environment were no
more than minor and there were no special circumstances that would warrant
public notification. As such, public notification was not required.
2.3.2 For
the purposes of a notification decision, the proposal was not considered to
adversely affect any persons to a minor or more than minor extent, due to the
current use of the site and that complying setback distances can be achieved
should any future development occur on Lot 2. For this reason reverse sensitivity
issues are likely to be less than minor. As the adverse effects of the proposal
are expected to be less than minor, in terms of Section 95E no parties were
considered to be adversely affected by the proposal.
The Section 95 report concluded that the environmental
effects of this proposal are minor, and no parties are considered affected,
under Section 95A-F of the Resource Management Act 1991 this application was
processed on a non-notified basis.
2.3.3 Given the Non-Complying
Activity status of the application, the gateway test (s104D) was applied. It
was found that the proposal passed the first test under section 104D(1)(a), as
the adverse effects on the environment would be no more than minor. The assessment
found the application to be contrary to the objectives and policies of the
Proposed Hastings District Plan, and therefore the application did not satisfy
the second limb at section 104D(1)(b). However, an application only needs to
satisfy one of the threshold test in section 104D(1), and therefore the
application was considered under s104D(1)(a), subject to Part 2 of the Resource
Management Act 1991 (RMA).
2.3.4 Under s104(1)(a) it was
concluded that the actual and potential effects on the environment would be no
more than minor, but that the proposal was contrary to the overall policy
direction for the Rural Zone, and that the proposal presented a significant
challenge to the key objectives and policies of the District Plan. The
assessment also considered (as an ‘other matter’ under s104(1)(c))
that granting consent to the application would set an adverse precedent and
undermine the integrity of the District Plan, given the irreconcilable clash
with these important provisions of the Plan overall.
3.0 GROUNDS OF OBJECTION
3.1 The applicant has objected to the decision to refuse
consent for the following reasons:
a) The effect of
granting consent on the life-supporting capacity of Hastings District’s
rural resources will be negligible.
b) The proposal is
not inconsistent with, or contrary to the objectives and policies of the
Proposed District Plan.
c) The
reporting officer’s conclusion that the proposal is inconsistent with the
objectives and policies of the proposed district plan is contrary to the other
conclusions, that the adverse effects of the activity will be no more than
minor and the effect of granting consent on the life-supporting capacity of
Hastings District’s rural resources will be negligible.
d) The subdivision
is reflective of the clearly defined existing use and operation of the site.
e) The land which
would become the balance lot is currently and will continue to be a viable
productive lot. The use of this land will not change if the land is subdivided
in the manner proposed.
f) Further
development could occur on the balance lot (if consent was granted) which may
result in some small loss in productive use of that land. However, this further
development will not result in further fragmenting of the site. Further
fragmentation will only occur if the sites are subdivided further, and there is
no intention that this happen.
g) The subdivision
would not create any additional development rights over and above what could be
achieved from ‘a restricted discretionary activity subdivision with a
compliant lifestyle lot’.
h) The proposed
subdivision respects and reflects the existing use of the site. Because of the
extensive, carefully maintained historic grounds, the only part of this
property which will be capable of productive use now and in the future is the
area known as the balance site. The productive use of the land could only be
increased in a meaningful way if the historic gardens and trees were removed to
allow that productive use. There is no prospect of that occurring.
i) There
are heritage aspects associated with this site which make it unique. The
Horonui homestead has existed in some form on this site and its existing
location since 1899. It was replaced by fire but replaced in 2000 with a
building similar in size and location to the original homestead. The trees in
the surrounding garden are over 100 years old. There will be very few, if any,
sites within Hastings District which have truly similar features.
j) The
Campbell family has hosted many dignitaries and international delegations over
the last hundred years, as well as hosting a significant number of fundraising
events in support of local community groups. Horonui is a regular fixture for
heritage tour groups who are interested in the property’s history and the
sympathetic design of the ‘new’ homestead within the original
garden.
k) The Horonui
homestead and associated gardens are part of the rural heritage resources of
the Rural Zone, and the proposed subdivision will promote the maintenance of
those rural resources. It would result in the creation of two separate and
viable units (one with the homestead and garden, the other as a self-contained
productive unit) enabling both uses to continue without compromising the other.
The proposed subdivision gives both uses the best chance of survival.
l) The
reporting planner has suggested that other properties could be developed in a
similar manner which could seek to replicate the current application. That
would only be true if those properties had developed over the last 117 years in
the way that the Horonui homestead and grounds have been developed. It is
accepted that there may be a number of properties which contain big houses and
gardens, but few can claim the same heritage and longevity as Horonui. Other
properties seeking to create oversized lifestyle sites now are plainly
different; they would have been developed only recently, and would lack the
unique qualities the unique qualities which give the Horonui homestead its
heritage nature.
m) The heritage
nature of this property is what make it unique and ensures that if consent is
granted to this proposal, there is little risk that other properties would be
able to replicate the current application.
n) There is no risk
of this application setting an adverse precedent or undermining the
public’s confidence in the consistent administration of the proposed
district plan.
o) The reporting
planners report concludes that the application passes the first gateway test
under section 104D(1)(a) RMA so the Council may grant the consent.
3.2 The applicants request that the Hearings Committee
uphold their objection and grant consent to subdivision consent application
RMA20170172.
4.0 STATUTORY CONTEXT
4.1 Section 357 – Right of Objection
4.1.1 Section 357A(1)(g) RMA sets out the rights of
objection for consent holders and states the following:
357A Right of objection to consent authority against
certain decisions or requirements.
(1) There is a right of objection to a consent authority, —
…
(g) in respect of the consent
authority's decision on an application or review described in subsections (2)
to (5), for an applicant or consent holder, if the application or review was
not notified.
4.1.2 Section 357A(2) states that section 357A(1)(g) will
apply to an application for resource consent made under section 88 of the RMA
in the following circumstances:
(2) Subsection (1)(f) and (g) apply to an
application made under section
88 for a
resource consent. However, they do not apply if the consent authority refuses
to grant the resource consent under sections
104B and 104C. They do apply if an officer of the
consent authority exercising delegated authority under section
34A refuses
to grant the resource consent under sections 104B and 104C.
4.1.3 The application was non-notified and was declined
consent under section 104B of the RMA by an officer exercising delegated
authority. Therefore, the applicant has a right of objection under s
357A(1)(g) in respect of Council’s decision.
4.2 Section 357C – Procedure for Hearing
Objections
4.2.1 Section 357C sets out the procedures for making and
hearing objections under 357A and 357B. In the case of an objection under
section 357A the Council must consider the objection within 20 working days.
5.2.2 If
the objection has not been resolved, the person or body to which the objection
was made must give at least 5 working days written notice to the objector of
the date, time and place for a hearing of the objection. The hearing will
be held in the Hastings District Council Chambers on Wednesday 6 September
2017, commencing at 10am.
4.3 Section 357D – Decision on Objections
4.3.1 Section 357D sets out possible decisions that can be
made in relation to an objection under section 375A and the procedural
requirements for making a decision.
357D Decision on objections made under sections 357 to
357B
(1) The person or body to
which an objection is made under sections 357 to
357B
may—
(a) dismiss the
objection; or
(b) uphold the
objection in whole or in part; or
(c) in the case
of an objection under section 357B(a), as it relates to an additional charge
under section 36(5),remit the whole or any part of the
additional charge over which the objection was made.
(2) The person or body to
which the objection is made must, within 15 working days after making its
decision on the objection, give to the objector, and to every person whom the
person or body considers appropriate, notice in writing of its decision on the
objection and the reasons for it.
4.3.2 Pursuant to section 358 of the RMA, any person who has
made an objection under section 357A may appeal to the Environment Court
against the decision on the objection.
5.0 CONSIDERATION OF THE OBJECTION
5.1 Activity not Inconsistent with or Contrary
to the Objectives and Policies of the Proposed District Plan
5.1.1 The first ground of objection stated that
the proposed activity is not inconsistent with, or contrary to, the objectives
and policies of the proposed district plan.
5.1.2 Both the Officer’s Report and the
application identified that the principal objectives and policies for the Rural
Zone and Rural Resource Strategy seek to ensure that the productive nature of
land within the Rural Zone is not diminished by encouraging the retention of
larger land parcels and also by providing for the creation of rural lifestyle
sites which are limited in size and number. This proposal was considered
contrary to this overall policy direction given that the proposed balance site
does not meet the minimum site size requirements and that the lifestyle site
exceeds the maximum size requirements for Rural Lifestyle Sites. The proposed
subdivision is considered to be contrary to the Rural Zone objectives and
policies RZO1, RZP1, RZP2, RZO3 and RZP12 as well as the Rural Resource
Strategy objectives and policies RRSO1, RRSP1, RRSP2 and RRSO3.
5.1.3 Although it is acknowledged that the
Proposed Hastings District Plan provides for the ‘flexible use of
land’ this is generally where such uses complement the resources of the
rural area, are linked to land based production, and are at a restricted scale
which does not limit the ability of the land or soils to be used productively.
By reducing the size of the proposed balance site to 13.68 hectares which is
6.32 hectares below the minimum site size set out in the Proposed District Plan
it is considered that the productivity of the balance site may be further
diminished by future development such as a primary and secondary residential
dwelling (which could potentially be undertaken should consent be granted for
the subdivision). The undersized balance site is also considered to be a
direct challenge to the minimum area requirement set for any rural subdivision.
5.1.4 The proposal is also considered contrary to
the objectives and policies of the Subdivision and Land Development section of
the Proposed District Plan as the proposal neither meets the maximum lifestyle
site area nor the minimum balance area. By limiting the size of the proposed
balance site the flexibility to use the site in a variety of ways will be
reduced, it is also considered that it will become less physically suited to
being used as a productive unit especially given that further development on
the balance site could occur. There is nothing unique or special about this
balance site that justifies creation of a site that is significantly less than
the minimum set for a rural lot. This is a significant challenge to the
Objectives and Policies on which the minimum lot size for the rural zone was
based. On this basis the proposal is considered contrary to SLDO1, SLDO2 and
SLDP1.
5.1.5 Overall, the proposal presents a
significant challenge to the relevant objectives and policies of the District
Plan and is considered contrary to the overall policy direction for the Rural
Zone.
5.1.6 Having considered the matters raised in the
objection, while there are some provisions of the Proposed District Plan that
the proposal is not contrary to, I confirm the view I expressed in the
Officer’s report that the proposed activity is contrary to the important
strategic objectives and policies of the Proposed District Plan and does not
satisfy the second test under Section 104D(1)(b). Case law confirms that a
proposal need not be contrary to ‘every’ objectives and policy to
be found contrary to the provisions of a District Plan in an overall sense (Akaroa
Civic Trust v Christchurch City Council, [2010] NZEnvC 110).
5.2 The Proposed Subdivision is Reflective of
the Clearly Defined Existing Use and Operation of the Site
5.2.1 The
second ground for objection is that the subdivision is reflective of the
clearly defined existing use and operation of the site. The grounds around the
existing Horonui homestead, secondary dwelling and ancillary buildings are long
established and not used for pastoral grazing, and the land that is currently
being used for productive use will remain in that use if the proposed
subdivision is granted.
5.2.2 Both
the Officer’s report and application acknowledge that the subdivision
will not affect the productive capacity of the site from how it is currently
used given the clearly defined areas of the site used for residential curtilage
and productive purposes. The objection acknowledges that further development
could occur on the balance site (if consent is granted) which may result in
some small loss in productive use of that land and goes on to state however
that this further development will not result in further fragmenting of the
site if the sites are subdivided further. In my view, development of the
balance site (such as a new primary dwelling, secondary dwelling and ancillary
buildings) would indeed result in a further loss of the already limited
productive land (also noting that the lake area of the balance site is unlikely
to be used for productive purposes which from aerial imagery measures at just
under a hectare – approximately 9850m2). Further, balance
sites do not have constraints on where development can occur on the site unlike
complying lifestyle sites which are constrained by their size and yard setbacks
and therefore, future development of the balance site could potentially
‘fragment’ the productive land further.
5.2.3 Both
the Officer’s Report and application acknowledge that the proposed
subdivision will not result in any additional development rights from that
which could be achieved through a subdivision which complies with the site size
requirements of the Proposed District Plan for lifestyle sites and balance
sites within the Rural Zone. A controlled activity subdivision could occur
around the existing dwelling provided that the size requirements of the Plan
are met. To be able to achieve this the applicants would need to separate the
historic gardens, secondary dwelling and ancillary buildings from the parcel of
land containing the homestead. The objection states that there is absolutely no
prospect of this occurring. For comparison purposes consideration was given to
approval for a Restricted Discretionary Subdivision which could be sought
(provided that the site size requirements of the Plan are met) where the
subdivision is not around an existing dwelling. The objection states that,
“as a controlled activity, the Council would be required to grant consent
(with the ability to impose conditions), while for a restricted discretionary
activity, the Council would have some discretion to decline a compliant lifestyle
lot application”. While it is noted that a controlled activity could
occur on the site, as this scenario is unlikely (as confirmed in the objection
and with the applicants) a restricted discretionary scenario was considered in
the Officer’s report.
5.3 Activity Unlikely to Establish an Adverse
Precedent or Undermine Plan Integrity
5.3.1 The final ground for objection was that the
proposal is unlikely to establish an adverse precedent or undermine Plan
integrity given the heritage aspects associated with the site which make it
unique and that other properties seeking to create oversized lifestyle sites
are different and therefore there is little risk that other properties would be
able to replicate the current application.
5.3.2 The officer’s report notes that the
subject site does have some unique qualities in its heritage nature although it
is considered that given the Homestead was recently built in 2000 (albeit
sympathetically to the original homestead which was destroyed by fire) this is
limited. Heritage values are protected under Section 18.1 of the Proposed
District Plan and Appendices 47 – 53 of the Proposed District Plan
identify Heritage Items, Waahi Tapu and Trees of Significance within the
District. Neither the Horonui Homestead nor the surrounding trees which form
part of the garden/landscaped area are protected under the Proposed District
Plan.
5.3.3 The objection argues that the heritage
nature of this property is what makes it unique. In my opinion, the grant of
consent to this application would lead to pressure on Council to grant further
applications which would be materially indistinguishable from this one and
would therefore set an adverse precedent. The subject site is currently a
complying size with sufficient area to create a complying lifestyle site of 0.8
hectares. However, the proposal seeks to put the large homestead and other
development onto an oversized lifestyle site leaving a significantly undersized
balance site (with no development restrictions). It is considered other
properties which have been developed in a similar manner with large dwellings
and significant landscaped areas could seek to replicate the proposed
subdivision.
5.3.4 The subject site is considered fairly
typical of many Rural Zone sites, because it currently meets the minimum size
requirements for Rural Zoned sites, it contains an existing homestead,
secondary dwelling and associated ancillary buildings and it is also used for
pastoral purposes. The surrounding environment is also typical of the Rural
Zone. Therefore, there are no other particularly unique features associated
with this proposal which would differentiate it from other sites within the
Rural Zone.
5.3.5 There are a large number of sites within
the Rural Zone of a similar size to the subject site that are used
productively. Allowing subdivisions with large lifestyle sites and undersized
balance sites would challenge the integrity of the Plan, particularly in
relation to the undersize balance site. This has the potential to open the door
for the creation of rural sites significantly less than the minimum lot size of
20ha.
5.3.6 In my view, there is an irreconcilable
clash with important provisions of the Plan when read overall and a clear
perception there will be materially indistinguishable and equally clashing
applications to follow. While it is noted that other oversize lifestyle sites
have been granted previously these subdivisions have had balance sites greater
in size than the minimum rural site size requirements. The most recent
subdivision around a heritage building at Kahuranaki Road processed by Council
was RMA20170125 which authorised a 2.635 ha lifestyle site and 112.173 ha
amalgamated balance site. The distinguishing factor between 209 Horonui Road
and the Kahuranaki Road property is the undersize balance site which was not
proposed to be amalgamated with an adjoining site to meet the minimum of 20ha.
6.0 Conclusion
6.1.1 As the Officer’s report on RMA20170172
concluded, the proposal will not have adverse effects on the environment that
are more than minor and it therefore passes the gateway test of s104D(1)(a).
6.1.2 The proposal is considered to be
contrary to the overall policy direction of the Rural Resource Strategy, Rural
Zone and Subdivision and Land Development Sections of the Proposed District
Plan in that:
· The
proposal does not promote the maintenance of the life-supporting capacity of
the Hastings District’s rural resources at sustainable levels.
· The
proposal does not meet the maximum size requirements for rural lifestyle sites
nor the minimum size requirements for balance sites. In combination, this
renders the balance less physically suited to being used for productive
purposes given its limited size and because further development on the balance
site could occur further fragmenting the site.
· The
ability of the balance site to be farmed efficiently and effectively is
significantly restricted by the proposed small size.
Therefore,
the proposal does not pass Section 104D(1)(b).
6.1.3 As a Non-Complying consent
application, adverse precedent and integrity of the District Plan are relevant
‘other matters’ to be considered under Section 104(1)(c). I do not
believe either the proposal or subject site have exceptional or unusual
characteristics which would prevent an adverse precedent from being set.
6.1.4 In my view, there is an
irreconcilable clash with important provisions of the Plan when read overall
and a clear perception there will be materially indistinguishable and equally
clashing further applications to follow. In the circumstances, it is considered
that the grant of consent to this application will undermine the integrity of
the Plan.
6.1.5 For the reasons set out above and in
the Officer’s report it is recommended that the objection by the
applicant to refuse consent to RMA20170172 be dismissed.
Attachments:
|
a
|
Application to Subdivide into 2 Lots
|
56083#0024
|
|
|
b
|
Officer's Report - RMA20170172
|
56083#0026
|
|
|
c
|
RMA20170172 - Subdivision decision
|
56083#0027
|
|
|
d
|
Details of Objection
|
56083#0034
|
|
Hastings District
Council
