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(Document 17/850)
The Chair introduced the members of the
Committee and the Council Officers present. He made his opening
comments and outlined the process that would be followed at the hearing,
together with addressing “housekeeping” issues. It was explained that the planning report had the same status as
any other evidence being considered at this hearing.
The Chair also advised that the Committee
had been on a site visit that morning, prior to the start of the hearing.
Ms Blomfield, Legal Counsel circulated evidence from both herself and Mrs Kydd-Smith,
Planning Consultant, on behalf of the Objectors.
Ms Blomfield read her circulated Submissions of Counsel (56083#0045),
interpolating as appropriate. The main points / paragraphs that were
highlighted in her Submissions or matters that were addressed included:
·
Paragraph 5.2 - the existing uses on the
property would not change as a result of the proposed subdivision.
·
Paragraph 8 – both the Council’s
Reporting Officer and Mrs Kydd-Smith consider that the proposal passes the
first gateway test under RMA section 104D(1)(a).
· Paragraphs 23 to 25 – there were two possible alternative
scenarios of future development referred to (as permitted or controlled activities)
and these would be further detailed when Mrs Kydd-Smith presented her
evidence.
· Paragraph 25.2 – this showed that a significant amount of
development could occur on the balance site, under the second proposed
scenario.
· Paragraph 27 – section 104(2)(a). If there is a
permitted activity rule in force on a site that is 20ha or more in size, that
should be taken into account and the effects that could result in a less
desirable outcome and greater fragmentation of the property should be
disregarded.
· Paragraph 30 – whether or not section 104D(1)(b) was
relevant. Ms Blomfield felt the Reporting Officer appeared to
misunderstand when and how the gateway tests in section 104D should be
applied.
· Only one of the two gateway tests have to be met and this has
plainly been achieved in this case.
· Neither the Reporting Officer nor the Hearings Committee need to
consider the second gateway test, as the Planner has done in this case.
This did not form grounds to decline the application or to dismiss this
objection.
· Paragraph 42 – she had noted three considerations that the
Environment Court had felt important when deciding whether consent should be
granted to a non-complying activity. These three considerations were
applied almost interchangeably by the Environment Court and divisions of that
Court – i.e:
o
1) Was the activity in question an
exception to the general run of cases; or
o
2) Did the activity have an
evidence unusual quality; or
o
3) Did the activity have
distinguishing or special circumstances.
· Ms Blomfield felt the Hearings Committee would be familiar with
examples of this type of application, but had referred to one case in her
Submissions as a reference – Hutchings v. Western Bay of Plenty DC.
· Paragraph 45 – the Hearings Committee would have seen the
homestead and gardens on the site visit that morning, prior to the
hearing. Ms Blomfield highlighted that there were heritage aspects
involved in this situation.
· Paragraph 55 – while no two proposals are exactly the same,
it was certainly correct in this case where there were truly unique aspects.
The Committee then asked questions of Ms
Blomfield. The main points that were raised or addressed in response to
the questions included:
· Paragraph 8 – the point had been noted that only one gateway
test needed to be satisfied. Officers had raised the issue of
“other matters” e.g. precedent.
· Was Ms Blomfield saying that “other matters” should
not or can’t be considered at all?
· In relation to precedent and plan integrity –
“like” situations should be treated as like. Section
104D(1)(b) was referred to.
· Precedent depends on whether or not there are truly similar
situations – Ms Blomfield did not believe there were similar situations
in this case.
·
The Reporting Officer would be able to speak
to her view of this matter later in the hearing.
Mrs Kydd-Smith read her previously circulated evidence (56083#0046), interpolating
as appropriate and with some sections taken “as read” with the
agreement of the Hearings Committee. The main points / paragraphs that
were highlighted in her evidence or matters that were addressed included:
·
Paragraph 25 – it was not possible for
Council to impose conditions on controlled activity subdivisions that would
change lot shape and location or dimensions.
· Paragraph 26 – Attachment 1 was a map illustrating the First
Controlled Activity Scenario outlined in her evidence. This map was not
exactly to scale.
· Paragraph 27 – she emphasised that the development details
outlined in this paragraph could be undertaken on a permitted activity basis.
· Paragraph 29 - Attachment 2 was a map illustrating the Second
Controlled Activity Scenario outlined in her evidence.
· The location outlined in the first sentence of Paragraph 29
referred to the area by the gate near the woolshed near the road.
·
Paragraph 31 – There would be no
opportunity to undertake any other development without a non-complying
activity consent.
The Committee then asked questions of Mrs
Kydd-Smith. The main points that were raised or addressed in response
to the questions included:
· Had the Objectors considered a possible third alternative activity
– i.e. to reduce the size of the lifestyle block and increase the size
of the balance lot so that it was more acceptable.
· Would the implement shed be part of the balance lot?
· Mrs Kydd-Smith confirmed that this option had been considered
early on. However, it was considered that the area of the balance lot should
include the donkey paddock.
· The implement shed stored equipment which was used for the area of
productive grazing and the gardens. There was a lot of work involved in
the garden areas.
· The implement shed was located in the far corner of the site but
if the balance lot was sold off, this would not be the best place for the
shed.
· The area on the other side of the lower driveway towards the lakes
– had that been considered to be included in the balance site?
· Mrs Kydd-Smith confirmed that this had been considered but this
was a very limited narrow area.
· The Alternative Scenarios 1 and 2 were only two of several
examples that could be considered. How did they compare to what had
originally been proposed?
· Were buildings permitted on the balance lot?
· Currently there were no limits on the scale of the main
residential building. The limit on the size of a supplementary building
was a total of 100m2.
· Was development likely on the balance lot? Nothing had been
offered by the Objectors to limit any such future development.
· Mrs Kydd-Smith did not see any difference in regard to effects
when comparing what could be undertaken under the First Controlled Activity
Scenario and what could be done on the balance land as of right.
·
Under the First Controlled Activity Scenario
the Objectors could still have visitor accommodation and an implement shed on
the property. So you would need to look at the details of this scenario
compared to what would be permitted.
At this point, Mr J Campbell responded to
an earlier question. He advised that the secondary road also gave
access to their house. Trucks used the rear access. If that was subdivided
off Lot 1, the boundary would separate the road access and the water supply from
the house, and that course of action was not a priority for them.
Mr J and Mrs P Campbell circulated four lots of evidence which took the form of:
o
Written evidence (56083#0047).
o
A copy of an article published in NEXT
magazine in August 1992 – titled “Old Horonui”
(56083#0044). This had been published prior to the fire which destroyed
the original homestead on 25 May 1998.
o
A reference from John Vickers “Homestead
Architecture Tours” dated 30 August 2017 (56083#0048).
o
A photograph of the current dining room and
gallery set up for a fund-raising dinner in August 2013 – titled
“New Horonui” (56083#0049).
Mr and Mrs Campbell jointly presented the
earlier circulated evidence. They read the written evidence
(56083#0047) interpolating as appropriate. The main points / paragraphs
that were highlighted in their evidence or matters that were addressed
included:
· The Horonui garden had many trees over 100 years old and had been
landscaped in a similar way over the years, just as it looked today.
· This was reflected in photos in the Billiards Room.
· The copy of an article published in NEXT magazine in August 1992
– titled “Old Horonui” (56083#0044) was referred to.
· Over recent years Horonui had been included in Homestead
Architecture Tours led by John Vickers. The focus of these tours was
“heritage”. A reference from John Vickers had been
circulated (56083#0048).
The Hearings Committee did not ask any
questions of Mr and Mrs Campbell in regard to their evidence.
___________________________________
At
this point a break was taken to give the Reporting Planner time to consider
the evidence that had been presented before addressing the hearing.
The
hearing briefly adjourned from 11.20am to 11.55am
___________________________________
The Council’s Reporting Planner,
Mrs Boulton, addressed the points that had been
raised as part of the evidence presented by Mr and Mrs Campbell; Ms Blomfield
and Mrs Kydd-Smith. Mrs Boulton also addressed the respective responses
by Ms Blomfield and Mrs Kydd-Smith to questions from the Hearings
Committee. The main points that were addressed by Mrs Boulton included:
· She clarified that a compliant lifestyle subdivision around an
existing dwelling was a Controlled Activity within the Rural Zone.
· If a subdivision was not able to comply with one or more of the
relevant Subdivision Site Standards in 30.1.6 it was considered to be a
Non-Complying Activity.
· It was difficult to achieve a Controlled Activity such that it
also takes into account the site area, the substantial grounds and plantings on
the site that have been established over 117 years.
· In order to encompass the plantings etc in the area permitted for
this type of activity the subdivided area would end up being greater in size
than what was allowed under the Controlled Activity requirements.
· A 4,000m2 area was restrictive to the extent that the
complying intensive development could only spread out to that maximum area,
although there would be yard setbacks to take into account.
· In comparison the proposed balance site could create further
fragmentation of the land as there was no limit as to where development could
occur. Development in that case did not have to be within a restricted
site size.
· Suggested Alternate Scenario 2 could result in less land
fragmentation, as site sizes were at the edge of the property.
· The scenario, as outlined in Mrs Kydd-Smith’s evidence,
could only be achieved with at least a three year period after the first
Rural Lifestyle lot was created.
· Paragraph 18 of Ms Blomfield’s Submissions – this
referred to the effect of reducing the proposed balance site and stated that
Mrs Boulton had indicated this reduction would be a direct challenge to the
minimum area requirement set for any Rural subdivision.
· Regarding objectives and policies in the District Plan, Mrs
Boulton believed that this came down to scale. The proposed lifestyle
lot was significantly over sized and the balance lot was significantly under
sized. This did not differ much from the minimum Plains site size.
· The scale of a resultant lifestyle lot and the balance site have
to be taken into consideration on a case by case basis.
· Precedent and integrity matters.
· Section 104D gateway test. The fact that an application may
pass the threshold gateway test did not eliminate the need to consider the
Plan provisions, based on the creation of undersized balance lots.
· The first matter was not in contention in regard to adverse
effects.
· Section 104D(1) – Council to have regard to the relevant
Plan provisions.
· Heritage nature of this situation – the heritage runs with
the land. This proposal separates the heritage from the land.
· The dwelling or gardens were not listed in the Heritage Section of
the Plan nor were they listed with Heritage New Zealand.
· There was no clear reason why subdivision was needed in this
situation.
·
There was no reason why this proposal
can’t have a complying balance site as per Suggested Alternate Scenario
2.
Mrs Boulton advised that she believed
there were numerous situations within the district where balance lots of 13ha
were acceptable. She did not readily have the total number of such
situations available but she could find that out if the Hearings Committee
wished to know.
Mrs Boulton then responded to questions
from the Hearings Committee. The main points that were raised or
addressed in response to the questions included:
· The evidence in regards to what can occur now as a permitted
activity, as opposed to the development and buildings that could occur on that
site as of right.
· Balancing the above point against what would occur if this
proposal was approved, including a balance site.
· In regard to precedent – Mrs Boulton was asked whether it
was being suggested that this would be set because of the site sizes involved
or was the matter of precedent in relation to productivity.
· She advised that it was because of the site sizes involved.
·
She explained that precedent set via site
sizes had a direct relationship to productivity and further fragmentation of
the land. This further restricts the potential capacity for
productivity and flexibility for it to be used for productive purposes.
So these factors were all linked.
___________________________________
At
this point a break was taken to give the Objector’s Legal Counsel time
to consider the evidence that had been presented
and
to discuss some issues with her clients.
The
hearing briefly adjourned from 12.06pm to 12.13pm
___________________________________
Ms Blomfield exercised a brief Right-of–Reply on behalf of the
Objector. She made the following points:
· Ms Blomfield responded to the points made by Mrs Boulton.
· It was accepted that the Horonui homestead and gardens were not
listed in the Heritage Section of the District Plan. The old homestead
had been listed.
· Heritage matters can be worthy of recognition whether or not they
meet the threshold of being included in the Plan.
· When making its decision, it was important that the Hearings
Committee keep in mind the two scenarios outlined in Mrs Kydd-Smith’s
evidence. It seemed that Council’s Reporting Officer had accepted
that these two scenarios were possible and feasible and were not fanciful.
· The Committee was being asked to grant consent to a one-off
subdivision which will possibly bring opportunity for buildings to be erected
on the balance lot in the future.
· A compliant lifestyle lot could be subdivided from the site as of
right.
· Another main dwelling, implement shed, visitor accommodation were
all permitted on that site and if the proposal was not granted, development
could be more intensive and the Council would have no control over what was
built on the site. The proposal would be a less intrusive option.
· The Objectors had said that it was not about making money.
In fact if that was their aim they would be better to go with Scenario 2.
· The Objectors had thought very carefully about where the proposed
boundary should be located so that it made sense on the ground. It
would also protect and reflect existing land use.
·
The homestead with its heritage aspects and
property with large garden needed to be considered as a whole picture. On
this basis, she did not feel that this would cause a precedent.
The Hearings Committee did not ask any
questions of Ms Blomfield in regard to her Right-of-Reply.
It was noted that the hearing would be
adjourned and the Committee would then start its deliberations.
At this point the Committee went into
Public Excluded Session to undertaken its deliberations.
Councillor
Lyons/Councillor Redstone
That the public be excluded from the deliberations
in relation to the hearing of the Objection To Decision On Resource Consent RMA20170172,
209 Horonui Road, Poukawa (J and P Campbell). The reason
for passing this Resolution in relation to this matter and the specific
grounds under Section 48(2)(a) of the Local Government Official Information
and Meetings Act 1987 for the passing of this Resolution is as follows:
That the
exclusion of the public from the whole or the relevant part of the
proceedings of the meeting is necessary to enable the local authority to
deliberate in private on its decision or recommendation in:
a) Any proceedings before a
local authority where:
i) A right
of appeal lies to any Court or Tribunal against the final decision of the local
authority in those proceedings; or
ii) The local
authority is required, by any enactment, to make a recommendation in respect
of the matter that is the subject of those proceedings.
CARRIED
The Hearing adjourned at 12.19pm
and would reconvene in Public Excluded Session
for the Committee to undertake its deliberations
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Hastings District Council