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M I N U T E S
Commencing on Friday, 13 September 2019 and subsequently reconvened in Public Excluded Session to consider further information and undertake its deliberations and decision making
(A Limited Notified application for land use resource consent to convert an incomplete implement shed to a habitable building as part of the existing “Place of Assembly” activity on the site Kahungunu Health Services)
HASTINGS DISTRICT COUNCIL
MINUTES OF A MEETING OF THE Hearings Committee
HELD IN THE Council Chamber, Ground Floor, Civic Administration Building, Lyndon Road East, Hastings
COMMENCING ON Friday, 13 September 2019 AT 10.00am
Present: Chair: Councillor Lyons
Councillor Schollum and Mr P Kay
IN ATTENDANCE: Environmental Consents Manager (Mr M Arnold)
Team Leader Environmental Consents/Subdivision (Mr C Sutton)
Environmental Planner Consents (Mr L Wang)
Democracy & Governance Advisor (Mrs C Hilton)
ALSO PRESENT: “For the Applicant”
Mr M Holder, Development Nous Ltd – Consultant Planner appearing for the applicant
Mrs J TeHuia, Kahungunu Health Services - applicant
Ms L Blomfield, Legal Counsel for the submitters
Mr P McKay, Mitchell Daysh Limited - Consultant Planner for the submitters
Mr P Potaka and Ms M Matthews - submitters
A number of people were also present in the gallery as observers.
In the lead up to the hearing, an apology had been received from Councillor Lawson who had been one of the Hearings Committee members initially rostered onto this hearing panel. Councillor Schollum was in attendance at the hearing as the replacement member on this panel.
Prior to the hearing:
Electronically pre-circulated evidence which had been put onto the council website prior to the hearing comprised: - (Numbers in these minutes in italics/brackets denote record numbers in Council’s document records system).
· Evidence from the consultant planner (Mr J Kaye) who was representing the applicant (59548#0341).
· Evidence from the applicant (Mrs J Te Huia) (59548#0342).
· Evidence from the consultant planner (Mr P McKay) who was representing the submitters (59548#0350).
Additional evidence was tabled and circulated at the hearing, as detailed in these minutes.
At the hearing:
The Chair and the other members of the Hearings Committee introduced themselves. A site visit had been undertaken prior to the start of this hearing. The Chair thanked the parties for permitting the committee to have access to their respective properties.
The Chair outlined the process to be followed at the hearing and “house-keeping” matters were addressed. The reporting officer and council officers present were also introduced.
Evidence on behalf of the Applicant – Kahungunu Health Services:
Mr M Holder, consultant planner, Development Nous Ltd circulated and read his submissions (59548#0367), made as a consultant planner on behalf of the applicant, briefly interpolating as appropriate. These submissions were supported by the pre-circulated evidence submitted on behalf of the applicant (evidence of Mrs Te Huia) (59548#0342) and planning evidence from Mr J Kaye (59548#0341). Mr Kaye was unwell and unable to attend this hearing.
The main points that Mr Holder highlighted in his submissions, or that were addressed, by Mr Holder and Mrs Te Huia, in response to questions from the Hearings Committee, included:
· Paragraph 22 – behind the building there is limited space for people to carry out any activities.
· The area that had been fenced - 3.5m wide, which was the length of the shed, but not the whole length of the boundary. This was not a drainage strip, it was just a strip that has been fenced.
· The submitters had made changes to their property, adjoining the subject site, by digging drains to dry their section which had caused flooding on the applicant’s side creating a 25m wide lake in the middle of that property.
· Council officers had visited the site and had advised that resource consent should have been sought in order to change the lay of the land.
· The Te Huia’s subsequently had to dig a drain between the two properties and bring in soil to build up the hill along the drain to prevent continued flooding – undertaken at their own expense.
· Water runoff from the higher land goes into soak pits on the property and along the driveway.
· The applicant’s land had not flooded until the submitters had started digging drains on the adjoining property.
· Plans for the new shed – a sleeping area on the mezzanine floor with a capacity for 40 people to sleep there.
· Mrs Te Huia offered or confirmed that the applicant would be happy to undertake the following:
· To use frosted glass in the four windows that had a direct line of sight to the submitters’ property.
· Remove the window that overlooks the submitters’ deck area.
· Seal/fix so they can’t be opened - the windows on the southern wall and the other two windows on the western wall facing the submitter property, to address any noise issues arising if they were to be opened.
· Mitigate the effects of the gap between the trees and the root system along the boundary that may affect the submitter property, by engaging a specialist to advise on the work needed to achieve the desired effect.
· If Mr Potaka replaced the existing gate in the fence, then a screen could be erected OR a higher fence built OR alternative types of trees planted. This work would be undertaken in conjunction with the submitters.
· The existing trees had been there for a number of years but the applicant was willing to undertake the necessary maintenance work to avoid shading etc on the submitter property.
Presentation of evidence by Submitters:
Ms Blomfield circulated and read her Submissions of Counsel (59548#0363), on behalf of the submitters P Potaka and M Matthews, interpolating as appropriate.
The main points that Ms Blomfield highlighted in her Submissions, or that were addressed, by Ms Blomfield or Mr Potaka, in response to questions from the Hearings Committee, included:
· Paragraph 21 – the letter of support from the CE of Ngati Kahungunu Iwi Incorporated, on Agenda Page 118, was referred to.
· Paragraph 33.2 – General Performance Standards for yards apply to accessory buildings.
· The submitters take issue with the planning report.
· Paragraph 61 – she responded to the planning submissions presented by Mr Holder on behalf of the applicant.
· Paragraph 10, Page 4 of Mr Holder’s planning submissions – she agreed with that statement, but noted the only expert evidence from the applicant related to traffic impact assessment.
· Mr Potaka would address this aspect further – some assumptions had been made in that assessment – e.g. traffic movements.
· Paragraph 15, Page 5 – the Plan does not permit buildings to be erected up to 15m in height in this location.
· The issue of the road and its maintenance would be addressed by Mr Potaka. A number of attempts had been made by the Maori Land Court to manage the maintenance aspect but this had not been successful.
· The previous year the road had deteriorated and Mr Potaka had tried to get all residents living there contribute so that the road could at least be graded. The applicant had then dug a number of judder bars into the road and then the support of other parties stopped. The matter is now back before the Court.
· The Hearings Committee noted that the maintenance of the road was out of the scope of this hearing and that the information provided had given some background, but the committee did not want to take this matter any further.
· Ms Blomfield acknowledged that this matter was before another court, but advised she believed the committee could have regard to the aspect that increased vehicle movements could increase the rate at which the road deteriorates and it may be difficult to get financial support for any work.
· Paragraph 14 of Opening Submissions – clarification was sought regarding the difference between the “3.6 v 5m” distance measurements.
· The original application noted the distance between the boundary and the edge of the building as being 3.8m.
· Mr Potaka said when the first application had been prepared, they had been asked for their neighbours affected persons’ consent – which they did not give.
Mr Potaka circulated his Statement of Evidence (59548#0362) and four other attachments in support of his evidence, which were circulated as separately bound documents (59548#0355 to 59548#0358). He read his statement of evidence referring to the four attachment documents (respectively titled “Google Documents”; “145 Waitangi Road”; “Building – 151 Waitangi Road”; and “Waitangi Roadway”) as appropriate, explaining his approach to the annotation within those documents.
The main points that Mr Potaka highlighted in his evidence, or that were addressed in response to questions from the Hearings Committee, included:
· Paragraph 5 – there were a number of Marae on this road.
· Paragraph 8 – he explained and clarified some statements in his evidence and referred to Paragraphs 7 to 12, noting the location of alleyway and line of the fence and current alignments and photos of the ditch.
· If consent was to be granted to this application, he did not believe they would be able to continue to live there as it would place his safety and security at risk.
The Chair then made the point that a lot of the information presented by Mr Potaka was “background evidence” and some of it was out of scope at this hearing. The committee commended Mr Potaka on the thoroughness of his evidence. The hearing was advised that all this information was from the public record – from the council or Maori Land Court.
Ms Matthews circulated and read her Statement of Evidence (59548#0364) and also circulated another document titled “Exhibit A” (59548#0354) in support of her evidence. The main points that Ms Matthews highlighted in her evidence, or that were addressed in response to questions from the Hearings Committee, included:
· Page 7 – glare reflected from the roof of the shed onto their deck still occurred. This effect was more apparent from mid-afternoon onward when the sun was at its peak.
The hearing adjourned for lunch at 1.00pm
and resumed at 1.37pm
Planning Consultant for the submitters, Mr P McKay, spoke to his pre-circulated evidence (59548#0350) and paraphrased key points. The main points that Mr McKay highlighted in his evidence, or that were addressed in response to questions from the Hearings Committee, included:
· Paragraph 19, Part “D” on Page 5 – visual aspects have been addressed by the submitters.
· Road – problems with ongoing maintenance – this falls on all the landowners who use the road. He emphasised he was not a roading engineer.
· The road did not comply with the requirements of the District Plan regarding private access serving that number of dwellings.
· Dust created by the unsealed road was an amenity effect.
· Maintenance was a significant concern to residents.
· He was asked to explain the economic effects on submitters that he had addressed in his pre-circulated evidence.
· Google shows the distance from the subject building to the submitters’ dwelling as being 34m (from the aerial photograph of the site Mr McKay had calculated the distance as being 30m) – so it was between 30 to 34m.
· The key point is that it is immediately adjacent to the outdoor living space associated with the submitters’ dwelling – including their garden, animals and fruit trees.
· He noted Mr Holder’s comment that the submitters had not presented expert roading evidence, but pointed out that neither had the applicant.
· A physical barrier to protect the submitters against noise from the site was needed (not vegetation).
· A Decision on this application needed to be made under sec 104(d) as a non-complying activity.
· Based on information in the reporting planner’s report – the submitters have said that currently more than 44 people could be accommodated on the site.
· He disagreed with the s42A report – he believed that the effects were far more than minor and would be contrary to the objectives and policies of the Plan.
· Wording in Paragraph 35 of his evidence was referred to “…but perhaps most significantly…on the submitters’ property.”
· Clarification was sought in regard to the effect of shading from the existing trees (approximately 8m). Mr McKay noted that when trying to mitigate such issues, the mitigation measures themselves can result in adverse effects.
The Reporting Planner, Mr L Wang, spoke to his agenda report and recommended conditions as well as addressing some of the issues that had arisen as part of evidence presented at the hearing. The main points that were highlighted or addressed in response to questions from the Hearings Committee included:
· Vegetation screening – the proposed condition addressed potential effects in relation to privacy and visual amenity.
· The measures offered by the applicant – including removing or sealing the windows facing directly onto the neighbours’ property. Taking these actions will reduce the need to use trees for visual screening.
· His noise assessment was based on the potential new vegetation reducing the level of any noise that may arise.
· Paragraph 4.4.3 – this only referred to the mezzanine deck and the use of a potential physical barrier which could also function as a noise barrier.
· Distance of shed from the boundary – his report was based on the plans supplied and they clearly labelled the shed as being 5m from boundary. The actual distance could only be determined by a site survey and he didn’t have that information to hand.
· This building was existing and on the site visit the committee would have been able to see/assess distances and potential effects.
· Part of his assessment had been based on the permitted baseline with a habitable building being 5m from the boundary.
· If the building was actually 3.6 or 3.8m from the boundary then the compromise has to be made regarding the potential difference between any permitted baseline and any effects in regard to encroachment.
· Glare – the potential effect of reflection from the building was raised by submitters. This issue had not been included in the original application or submission. There was a baseline of a building being located 5m from the boundary and that also applied to the potential reflection effect.
· The cost and responsibilities of road maintenance. This section of Waitangi Road was a private road so that responsibility was shared between the residents who have an interest in that road.
· The concerns about road safety before the Maori Land Court were generally associated with vehicle speed and this was not a matter that the council can control. His view was that this would not materially affect the committee’s decision on this application. If consent was to be granted, then the Court will be aware of that decision and could take that into account when it was considering the matter of road maintenance.
· Paragraph 1 of Mr Holder’s Submissions for the applicant – there were no details as to who was likely to host or the potential frequency of these events, but they seemed to have some idea of how likely e.g. schools may come out to use the site.
· If consent was to be granted, a condition could be added to limit the maximum frequency and the times when these events could take place and further define what is consented and further reduce the potential effects of noise and privacy.
· Paragraph 19(c) of Mr McKay’s pre-circulated evidence referred to the noise caused by people moving to and from the building – i.e. the potential of having people between there and the shared boundary 5m away. This could be controlled by a condition, if consent was to be granted.
· Mrs Te Huia’s evidence (on the last page and verbal comments made at hearing) confirmed they were willing to have ongoing consultation with the submitters.
· If consent was to be granted, the normal noise standards under the Plan would apply and a condition could be included to address a noise management plan to further reduce the potential effects of noise. The recommended conditions included a review condition to allow council to require further work to be undertaken if noise levels from the site exceeded those permitted under the Plan.
· No expert noise evidence presented by either party, but the building was orientated to the north of the site where the main outdoor activities were happening.
· Paragraphs 30 and 32 of Mr McKay’s pre-circulated evidence referred to noise and the distance between the subject building and the submitters’ dwelling. He acknowledged that while the environment in this case was not a typical rural situation, having a 30m (15 + 15) separation between buildings was not unusual.
· Mr Wang still stood by the recommendations in his report – the main reason being that the proposal may have a minor effect but he did not feel that this effect was large enough to require the council to decline consent. In making his recommendation he had taken into account potential mitigation measures but felt these could be mitigated.
Further main points that were highlighted or addressed in response to questions from the Hearings Committee included:
· The submitters had addressed the scale and intensity of use of the subject site.
· Most of the existing activity on the site was established as of right under the previous version of the District Plan. Mr Wang said he had considered the matter of potential cumulative effects that may arise from the report (Agenda Page 16 – Paragraph 4.3.11).
· He noted that there was potentially a permitted baseline that may apply here. So the potential effects are those associated with increasing scales of activity (noise, traffic and privacy).
· Measures that had been proposed by the applicant to mitigate potential issues.
· Paragraph 21)d) on Page 7 of Mr McKay’s evidence addressed the submitters’ view that it was relevant to consider the proposed activity as being “akin to a commercial activity”.
· This was not a new activity on the site, but Mr Wang considered the scale and intensity involved was not entirely unexpected on the subject site.
Mr Holder then presented a verbal Right-of-Reply, on behalf of the applicant. The main points that were highlighted or addressed in response to questions from the Hearings Committee included:
· The applicant denied claims of deliberate deception – that had not been their intent in regard to sleeping versus non-habitable components of the proposal.
· The plan clearly shows the shed being 5m from the boundary (not 3.6m or 3.8m) and he believed the shed had been erected as per the plans. The stamped building plans clearly showed the details of the building – i.e. being two levels.
· The applicant acknowledged that this was a large building but it was partitioned into areas and a large portion of the building still had access to the shed component.
· The applicant had been engaged with the council on aspects of this application and had copies of an email chain to support this. This email chain was tabled (59548#0368).
· Any infringement of yard requirements – due to undertaking activities that had already been approved. There was no obvious benefit to the applicant and moving the building would not necessarily alleviate any concerns.
· The issue of ownership of the road was not relevant to this hearing.
· Noise - the applicant was committed to meeting the provisions of the Plan.
· Evidence from the submitters’ planning consultant (Mr McKay) was largely silent on the use of the recommended conditions.
· The applicant was happy to amend the application in response to points raised at the hearing – e.g. amendments to the windows and additional screening.
· The applicant was asked to clarify the point at which they had changed their approach in regard to the use of the building for sleeping or accommodation.
· Mrs Te Huia advised that they may get double bookings for school groups due to the closing of other venues that schools had previously used. So the numbers of children wanting to come to the subject site had increased.
· As a result they had rethought how to accommodate those numbers of children and had not wanted to sleep/house them all under one roof.
· She confirmed that this situation and the applicant’s approach to this had changed between December 2017 and February 2018.
· There had also been discussion with engineers and fire inspectors regarding access to and from the building – if it was used for sleeping then there would need to be two entrances or stairs to and from the mezzanine floor.
· It had not been intentional that the mezzanine floor would be used for sleeping until the plans of the building had been considered and it was seen that two stairs could be installed and there could be two entrances and exits.
· The plans had been submitted in June 2018 and in July there had been nothing saying that the building would be used for sleeping.
· The applicant would prefer to have two entrances and exits from the mezzanine floor anyway, whether or not people were sleeping there.
· Further clarification was sought regarding the dates, order and timing of developments, particularly in regard to this aspect of the proposed use of the site, since the drawings had been prepared and the application for resource consent.
· As at 30 July 2018 the applicant had still been talking about not having anyone sleeping on the site.
· On 18 June information had been received which had triggered discussion regarding resource consent for a place of assembly. The applicant had had a number of discussions with planners as well.
Hard copies of the following items were then tabled by the Applicant in support of various parts of their earlier presented evidence.
· The earlier noted email chain (59548#0368) between Mrs Te Huia and several council officers headed “Request for More Information for Planning Assessment of Building Consent”.
· Copies of stamped pages titled “Specification Notes” (59548#0369) – which also formed part of the agenda attachments (Attachment E) and part of other Council records for this application (59548#0322 and 59548#0323) – being site copy plans and development plans. The date stamp on these pages was 21/02/2018.
· Copies of drawings, elevations, floor plans and details titled “Te Huia Shed” (59548#0370) which also formed part of the agenda attachments (Attachment F) and part of other Council records for this application (59548#0324).
· A4 colour copies of two photos of the two sites and area (59548#0371).
The Chairman advised that the hearing was now adjourned. As part of this hearing process, the Hearings Committee would go into Public Excluded [Confidential] Session to consider the evidence that had been presented and to undertake its deliberations in due course, in order to make its decision.
Councillor Lyons/Mr P Kay
That the public be excluded from the deliberations in relation to the hearing of the application by Kahungunu Health Services. 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.
The Hearing adjourned at 2.45pm and would continue
in Public Excluded Session in due course
to enable the Committee to undertake its deliberations
HASTINGS DISTRICT COUNCIL
MINUTES OF A MEETING OF THE Hearings Committee
HELD IN THE Council Chamber, Ground Floor, Civic Administration Building, Lyndon Road East, Hastings
COMMENCING ON FRIday, 13 september 2019 AT 10.00am
Kahungunu Health Services (RMA20180494)…cONTINUED…
The Substantive Wording is set out below and forms part of the overall decision document. The decision wording, including narrative, is contained in a separate document as noted in brackets and italics below.
Councillor Schollum/Mr P Kay
Pursuant to Rule NH10, RZ27 and TP2 of the Proposed Hastings District Plan (As Amended by Decisions 15 September 2015) and Sections 104, 104B and 108 of the Resource Management Act 1991, resource consent as a non-complying activity is GRANTED in part to Kahungunu Health Services to convert a near-complete implement shed located at 151 Waitangi Road, Waimarama to a “place of assembly” on a site legally described as Waipuka 2T3 BLK X Kidnappers SD.
(Please Note: The full wording of BOTH the Initial signed hearing Decision and the Updated signed Decision [which includes a minor correction] are saved as separate documents under the Property ID number (PID59548) in the Council’s records system as noted below:
The Initial signed hearing Decision is saved under 59548#0383.
The Updated signed Decision [which includes a minor correction] is saved under 59548#0387. This Updated decision is circulated with, and forms part of these minutes.
That full decision wording also includes the narrative which summarises details of the hearing process and the evidence that was presented to the Committee for its consideration, in regard to the application).
The meeting was subsequently formally closed
on Tuesday, 25 November 2019 at 1.30pm