RESOURCE MANAGEMENT ACT 1991 DECISION OF THE CHRISTCHURCH CITY COUNCIL ON A RESOURCE CONSENT APPLICATION. Erect a dwelling and associated curtilage

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1 RESOURCE MANAGEMENT ACT 1991 DECISION OF THE CHRISTCHURCH CITY COUNCIL ON A RESOURCE CONSENT APPLICATION APPLICATION REFERENCE: RMA APPLICANT: SITE ADDRESS: Brent Falvey 9021 Rothesay Road LEGAL DESCRIPTION: Lot 11 DP 5121 PROPOSAL: Erect a dwelling and associated curtilage CITY PLAN ZONING: Rural 1 PROPOSED DISTRICT PLAN ZONING TYPE OF ACTIVITY: Residential Suburban Fringe Non-complying DATE OF HEARING: 19 April 2016 HEARINGS PANEL: Commissioner Ken Lawn APPEARANCES: Applicant Andrew Schulte, Solicitor Brent Falvey, Applicant Timothy Walsh, Planner Peter Rough, Architect Submitters Jo-Ann Cook, 100 Aston Drive Bevan Pinnell, 98A Aston Drive Julie Sands, Solicitor for Mr Pinnell Janette Dovey, Planner for Mr Pinnell Jeremy Head, Landscape Architect for Mr Pinnell Council Officers Lisa Arnott, Planner Jennifer Dray, Landscape Architect 1

2 Background 1. I have been appointed by the Christchurch City Council as a Commissioner to hear and determine an application made by Brent Falvey to erect a dwelling and associated curtilage on a site at 9021 Rothesay Road. 2. The proposed house has a total floor area of m 2, with a ground floor area of 195.4m 2. The maximum height of the dwelling is 8.85m above natural ground level. The house will sit on a site with an area of 599m 2. The site will be partly filled to create a building platform, and parts of the boundaries of the site will have a 1.8m wall sitting on top of varying levels of retaining wall. 3. The site is contained in an individual title, and is located to the north of, and separated by a paper road (Rothesay Road), from residential properties that form part of the Waimairi Beach residential area. To the east of the site is another paper road (Whiskey Road) that provides legal access into and across the Bottle Lake plantation and recreation area. 4. The application includes formation of a driveway along the Rothesay Road legal road to provide vehicular access to the site, the relocation and forming of a pedestrian link along Rothesay Road, and into Whiskey Road, and linking to other pedestrian links to the beach, and along the east side of the houses to the south. The application also includes quite extensive planting within the road reserves, partly to mitigate the effects of the proposed new dwelling. Existing Environment and Zoning 5. To the south of the property, and across the unformed legal road, is the built up and residentially zoned Waimairi Beach residential area. This area is zoned Living 1, and partly Living 4B, in the Operative City Plan. 6. To the north of the property is the Bottle Lake Forest and recreation area. This is an extensive area of land used over rotations for forestry, and also used extensively for cycle and pedestrian trails. Within this area, and further north, is the Burwood landfill, which is still being used for earthquake demolition and hard fill materials. The forestry to the immediate north of the site has been cleared in the last few years, and replanted about 2 years ago. The Bottle Lake Forest is zoned Rural 1 in the Operative City Plan. 7. This small (599m 2 ) site is one of a number of small subdivided lots along the north side of Rothesay Road (mostly formed as Aston Drive) and the west side of Whiskey Road. Most are in the ownership of Christchurch City Council, although there are 4 lots in individual ownership. None of these lots contain any buildings or dwellings. The application site is contained in the Rural 1 zone in the Operative City Plan, and, along with 5 other small existing lots (3 privately owned and 2 owned by the Christchurch City Council), is proposed to be zoned Rural Urban Fringe in the Proposed Replacement District Plan. 8. To the east of the property, across Whiskey Road, the land contains sand dune systems alongside and leading to the Waimairi Beach. This area is zoned Conservation 1A in the Operative City Plan. 2

3 Planning Framework Operative City Plan 9. The site is zoned Rural 1 under the Operative City Plan. This zone covers the area north of Rothesay Road (Aston Drive) up to the Waimakariri River, and extends westward from the coastal sand dunes to surround the Bottle Lake plantation and the Brooklands and Spencerville communities. The objectives and policies for this zone generally seek to maintain the productive potential of the rural land, and to maintain and enhance amenity values. The zone recognises the coastal environment, existing forestry and waste management activities, encourages facilitating public access, and recognises some residential, recreational and camping activities in the Spencer Park and Brooklands areas. 10. This application does not comply with a number of rules in the Operative City Plan. These are set out in full in the Planning Report by Ms Arnott (some were added at the hearing following evidence from Ms Dovey), but in summary they are; Road Scene; the setback of the house from Rothesay Road is 4.5m, and from Whisky Road is 1.8m, where the Plan requires 6m on a site less than 0.4ha in area. The setback of the building containing the pool is 0m. Parts of the walls, and retaining walls beneath them, exceed 2m in height, and/or an area of 6m 2 and constitute a building that infringes the 6m setback from road boundaries, or the 3m setback from internal boundaries, for sites less than 0.4ha. Other boundaries; the pool building intrudes the 3m setback from the western boundary, and the dwelling intrudes the 3m setback from the northern boundary Protection of Coastal Environment; the proposed building is set back 1.8m from the Conservation 1A Zone, where the Plan requires a setback of 100m. Minimum net site area; the site is 599m 2 where the minimum site area for a residential unit is 20ha Site coverage; the site coverage including the pool building is 40.6% where the Plan requires a maximum of 35%. The total area covered by buildings, impervious buildings and outdoor storage is 371m 2 where the maximum permitted in the Plan is 100m 2 The inclusion of a second sink in the garden lounge by the pool area could technically make this an application for two dwellings The driveway formation in the legal road does not meet the 7m required for local roads 11. Overall the application is to be considered as a Non Complying Activity. Proposed Replacement District Plan 12. The site is proposed to be zoned Rural Urban Fringe in the Proposed Replacement District Plan. The proposed Rural zones have as yet no legal effect as decisions have not yet been issued, and therefore this application does not fall to be considered against the rules of that proposed zone. Decisions have been released on the Transport Chapter, but this was after the lodgement of this application, and again this application does not fall to be considered against those rules. They can be taken into account later in my consideration under Section The Strategic Directions and Outcomes objectives and policies of the Proposed Replacement Plan became operative of 25 May 2015, so it is appropriate to have regard to and give weight to those objectives and policies as well as those in the Operative City Plan. 3

4 14. The applicant for this application did lodge submissions seeking that the application site be zoned for residential rather than rural activities. In a decision issued 18 March 2016 that submission, along with a number of other rezoning submissions, was declined by the Independent Hearings Panel. Summary of the Evidence Heard in the Hearing The Applicant 15. Mr Andrew Schulte presented legal submissions on behalf of the applicant. He submitted that, placed in context, the application is of limited scale to build a dwelling that, with the proposed mitigation, will have minimal adverse effects on the environment, with effects on views being minor, particularly when the permitted baseline is applied. 16. He submitted that the application overall is not contrary, in the sense of being repugnant, to the objectives and policies of the relevant plans, which have been targeted at maintaining rural character and open space, and limiting the extension of urban activities into rural areas, in order to avoid adverse effects on the recovery of Christchurch from the Canterbury earthquakes, and on the available, as well as planned, public infrastructure. 17. He submitted that granting the application is not inconsistent with the Land Use Recovery Plan (LURP), especially now that, as of the day of this hearing, the provisions of Chapter 6 of the Canterbury Regional Policy Statement are no longer part of the LURP, and Figure 4: Map A is now shown as indicative only. 18. He submitted that there are no precedent issues because the proposed activity includes an uncommon, if not unique, set of facts that provide a true exception for rural zoned land. He suggested that the proposed activity represents the only reasonable productive land use for this site. He considered that the purpose of sustainable management would be better met by granting rather than refusing the application. 19. Mr Falvey produced a statement of evidence in which he described his family s long time desire to acquire this site, for which he has entered into a binding agreement to purchase the property, subject to obtaining necessary approvals. 20. Mr Peter Rough spoke to his pre-circulated landscape evidence, and took me though a set of drawings and perspectives which described the application and its landscape consequences. 21. Mr Rough s view is that the proposed dwelling, and its planting and pathway formations on the paper roads, will result in the development having a high visual amenity value, and will integrate well with, and almost appear as a seamless extension of, the existing suburban development. The existing hard edge of the northern boundary of the Living 1 Zone will remain, albeit with a very minor adjustment at the very south-eastern end. 22. Mr Rough considered that the extension of the urban area to include the application site will have virtually no effect on the character of the rural land to the north, and will have virtually no effect on the character of the adjacent dune area and beach. 23. He accepted that there will be moderate effect on the visual amenity for motorists, cyclists and pedestrians in the vicinity of the area where the paper road meets the curve on Aston Drive, and for pedestrians when they take the footpath along the paper road. However, he considered that those moderate effects would be offset by the enhancements from the dune ecosystem planting on the paper road. 4

5 24. He also accepted that there will be some unavoidable effects on the visual amenity for the immediate neighbours, especially for the two properties at 98A and 100 Aston Drive. He presented sight lines of the extent of views impacted on for those two properties, noting that 100 Aston Drive had an existing 1.8m fence on its northern boundary. He also commented that the current panoramic views would be changed in the future as the replanted production forestry grows until next harvest time. 25. Mr Timothy Walsh spoke to his pre-circulated planning evidence. Based on the expert landscape evidence of Mr Rough, he considered that the proposed development would successfully integrate with, and read as part of the adjoining Waimairi Beach neighbourhood, with the assistance of the proposed landscaping. He concluded that some moderately adverse visual effects to people walking along the coastal access path within Rothesay Road would be offset by enhancements to the paper road in the form of dune ecosystem planting. He agreed with Mr Rough that the proposal would have virtually no effect on the overall character of the rural land in the Bottle Lake area. He accepted that the proposal would change the outlook of the nearby neighbours, but considered that those neighbours would continue to enjoy a high level of amenity. 26. Mr Walsh assessed the application against the objectives and policies of the relevant Plans. With regard to Chapter 6 of the Regional Policy Statement, he accepted that the application was not entirely consistent with objectives which seek to avoid urban development outside existing urban areas and Greenfield priority areas. However he concluded that the proposal was not at odds with the relevant policies, and was not contrary to the policy framework of Chapter 6 of the RPS. With regard to the objectives and policies of the Operative Christchurch City Plan, he considered that the application was in general accordance with the relevant objectives and policies. He found that the proposed development would successfully integrate with the adjoining suburban neighbourhood, and maintain the current character of the surrounding rural environment. With regard to the Christchurch Replacement District Plan, he accepted that the application cannot be entirely consistent with the new policy direction which implements the RPS objectives and policies, but concluded that the application was not contrary to those objectives. He considered the application sufficiently unusual so as not to create a precedent. He reached the conclusion that the application is consistent with Part 2 of the Resource Management Act. The Submitters 27. Ms Jo-Ann Cook lives at 100 Aston Drive, and her property is immediately to the south of the paper road (Rothesay Road) that adjoins and gives access to the application site. She described her quest to find a suitable house with a rural and coastal outlook following leaving her property at Aramoana after traumatic events at that location. She did due diligence before purchasing her property, and confirmed the rural zoning of the property to her north. She was aware of the small existing lots on the other side of the paper road, and that they had not been able to be built on for many years. 28. Ms Cook considers that the effect of the proposed house on her property would be dramatic, and would destroy her dream retirement home. While she would wait and see what the effect of the house (if allowed) would be, she expects that she would reluctantly choose to sell the property and find another home. She agreed that she currently has a 1.8m fence, but has retained it mainly to contain her two dogs while she is at work. She intends to lower at least part of the fence in front of her living areas. She said that the pathway through the paper road is very well used, and that the proposed house would change that experience. 29. Mr Bevan Pinnell lives at 98A Aston Drive, located immediately to the east of Ms Cook s property. He and his family purchased the property about 3 years ago, after the earthquakes. 5

6 He also had done due diligence and understood the zoning and property boundaries to the north of his property. While he accepted that there is no permanent right to retaining his view, he did not consider that the view should be lost by the development of a small lot known to be, and valued as, a rural lot. He did not mind the changing nature of forestry that affected his view. He considers that the proposed house would have a huge impact on his life and enjoyment of his property. 30. Ms Julie Hands presented legal submissions on behalf of Mr Pinnell. She submitted that the breaches of the Plans are significant, and that it is not a simple neighbourly dispute. The key issue is the treatment of zone boundaries going forward, and the integrity of the Canterbury planning framework. 31. Ms Hands submitted that it is not open to me as Commissioner to allow urban development on new land outside existing urban areas or identified Greenfield land. She submitted that the strong unequivocal language in the Canterbury Regional Policy Statement requires that the application be declined. She also contended that the recent amendments to the Land Use Recovery Plan have not altered that language. 32. In any event, Ms Hands submitted that the application is inconsistent with the policies and objectives of both the Operative Christchurch City Plan and the Proposed Replacement District Plan. She also said that the evidence of Ms Arnott, Ms Dovey, Mr Head and Ms Dray concluded that the adverse effects on the environment were more than minor. On that basis the application does not satisfy either of the threshold tests of Section 104D of the Resource Management Act, and the application must be declined. If I did conclude that the application passed one of the threshold tests, her submission was that I should still decline the application taking into account the matters set out in Section Mr Jeremy Head spoke to his pre-circulated landscape evidence. He was of the view that the proposed house would create an anomalous element in the rural landscape, cut adrift from the urban fabric by the public walkway land in-between. It would have landscape effects on the public appreciation of what is a wild place. He considers the building not to be modest in scale or form, but rather a large urban use that requires a much larger site, as is indicated by the need to landscape the adjoining legal roads as mitigation of the landscape effects. He considered the indigenous planting as inappropriate mitigation, and that they would further enhance the impression that the house and immediate curtilage is an island. Looking down Aston Drive before the bend in the road, he considered that the house would sit outside the urban edge, and would be incongruous. 34. Ms Janette Dovey spoke to her pre-circulated planning evidence. She outlined the application, noting some additional rules which the application did not comply with. She recorded that she did not consider that the mitigation works on the legal roads could be relied on, as these required a further and separate approval process. She accepted Mr Head s and Ms Dray s conclusions that the proposed dwelling would not read as part of the residential development on Aston Drive, and that it would impact on the rural and natural character of the Bottle Lake Forest area. She considered that the adverse visual effects viewed from Mr Pinnell s property would be significant, with the proposed dwelling being visually prominent and dominant in the Rural Coastal environment. She noted that the proposed dwelling is a significant size, and would exceed even that anticipated in the Living 1 zone. 35. Ms Dovey considered that the application would be contrary to the objectives and policies of current Operative City Plan, and also and particularly contrary to the objectives and policies of the Proposed Replacement District Plan because those objectives are more directive in providing for urban activities within existing urban areas or identified Greenfield locations. She considered the New Zealand Coastal Policy Statement, and concluded that the 6

7 application would be inconsistent with the intentions of that Statement as the proposal would not restore or enhance the natural character of the coastal environment. 36. Ms Dovey produced additional evidence considering the consequences of the amendments to the Land use Recovery Plan which came into effect on the day of the Hearing for this application. She considered the changes to be somewhat contradictory such that reaching a conclusion as to whether this application is consistent or inconsistent with the LURP is not clear cut. She went on to consider Chapter 6 of the Regional Policy Statement, and concluded that this application would be contrary to the directive nature of the RPS to avoid urban development outside of urban areas or greenfield priority areas. 37. Ms Dovey also considered the Bottle Lake Park Management Plan, and although acknowledging that this document was produced in 1999, she noted that this Plan intended to close the unformed portion of Rothesay Road and create beach access for horses and four wheel drives. She noted that the Proposed Replacement District Plan does not continue the current Transport zoning of the legal road, rather proposing the unformed legal road be zoned Open Space natural. 38. I have also read and considered a further 26 submissions received to this application, of which 14 opposed the application, and 12 supported the application. The Reporting Officers 39. Ms Lisa Arnott spoke to her pre-circulated Section 42A planning report. She accepted the additional non-compliances identified by Ms Dovey, and accepted that the height of the proposed dwelling had been reduced and now complied with the maximum height in the Rural 1 Zone. In her written report Ms Arnott had concluded that there would be more than minor, but not significant, adverse visual effects, and effects on rural and coastal character effects. She concluded that with respect to the objectives and policies of the Operative City Plan, the application would be consistent with the relevant objectives and policies relating to rural productivity and ecology, inconsistent with the specific objectives and policies relating to rural character and amenity, and contrary to objectives and policies relating to coastal character and amenity. She concluded that the application was generally contrary to the objectives and policies of the Proposed Replacement District Plan, was inconsistent with the objectives and policies of the Regional Policy Statement, and the LURP, to some extent contrary to the New Zealand Coastal Policy Statement, consistent with the Recovery Strategy for Greater Christchurch, and inconsistent with Part 2 of the Resource Management Act. She did not consider that the application satisfied either of the threshold tests of Section 104D, and that the application should be declined. 40. Ms Jennifer Dray spoke to her pre-circulated landscape report. Despite some changes to the design of the dwelling (reduced height, changed roof colour, some changes in planting, and reduction of height of retaining walls), she still considered the building would appear dominating, and that the house would appear as an island and visually separated from the urban area, and would have significant effects on the landscape quality as enjoyed by the wider community. She was concerned about future maintenance of the planting on the road reserve. Right of Reply 41. Mr Schulte exercised the right of reply on behalf of the applicant. He did not agree that the provisions of the Canterbury Regional Policy Statement, and the Land Use Recovery Plan, would tie my hand such that this application could not be approved. He said that an 7

8 application for a Resource Consent was different to a proposed Plan Change, and that while rezoning of this site had not been allowed through the Replacement District Plan process, the merits of this particular site had not been considered. He submitted that the changes to the LURP gave me increased flexibility to consider the application. 42. Mr Schulte submitted that there were no wider district effects of allowing this one off application. He submitted that a permitted base line of fencing the property and planting trees was not a fanciful proposition, and should be taken into account in my consideration. He considered the addition non-compliances identified by Ms Dovey to be technical in nature, and of little consequence. 43. With regard to the formation and planting on the road reserve, the applicant was comfortable with a condition requiring the approval of the Council to those works prior to implementing any of this consent, and the applicant was willing to enter into an agreement to maintain the planting for a period of 10 years. He also undertook to produce suitable conditions relating to non planting or replanting of trees in the 30 metre area to the north of the property. After the hearing and before closure, Mr Schulte supplied a copy of a letter from the forest owner advising that the company s intention was to grow the surrounding crop through to maturity, so that there is no plan to replant the area that the 12 trees were located in within the next 5 years. Hearing Closure 44. I undertook a site inspection of the application site and surrounding environment, including visiting the homes of Ms Cook and Mr Pinnell, on Friday 22 April 45. On Wednesday 27 April Mr Schulte supplied a volunteered set of conditions that would require the establishment and maintenance for a ten year period of the proposed landscaping in the road reserves. 46. With that information the hearing was closed. Permitted Baseline 47. The applicant has put forward the proposition that the site can be legally fenced, and trees planted within the property, and that this would have effects on the environment that should be accepted as a permitted baseline. Mr Schulte, on behalf of Mr Falvey, even suggested that if consent is declined, establishing that baseline as an existing state and matter of fact would become a logical first step before making a new application. 48. I heard no disagreement that such works would be permitted by the Plans, and I accept that the establishment of such works would not be fanciful. However, except as a deliberate step to possibly influence future applications, I consider that such works would be unlikely, and have not occurred to any degree since this individual piece of land was created in Even if these works were undertaken, their effect on the environment would be significantly less than a house. The two submitters who attended the hearing both stated that they would not be particularly unhappy if these works were undertaken. 50. On that basis I have decided to place little weight on this possible permitted baseline. 8

9 Visual amenity and landscape character 51. Whatever the complexities of the legal and Plan considerations of this application, the central core of this application is the effects that it will have on the visual amenity and landscape character of the local environment into which this house is proposed to be located. In considering those effects, there are (at least) three environments that can be considered, as discussed under the following three headings. Effects on the Bottle Lake Forest and Coastal environments 52. Once one moves away from the immediate house environment and into the Bottle Lake Forest area, or into the coastal dunes and beach area, the impact of the proposed house is relatively minimal. This was generally agreed by all of the expert witnesses. 53. As one moves into the Bottle Lake Plantation area, for example along Whiskey Road, the urban area, and the proposed new house, are left behind, and one quickly becomes part of the natural environment. This will be increasingly so as the replanted forest grows. As one returns towards the urban area, from a distance, the proposed new house will form part of the backdrop of the urban residential area. As one gets close to the proposed new house, it will tend to dominate the immediate backdrop, especially because of the retaining wall containing the filled section, and the height of the dwelling. However, it will still probably appear as part of the urban area that one is reaching after the experience of the forest and wild open space nature of Bottle Lake Forest and recreation area. 54. As one moves into the sand dunes and down to the beach, the urban area, including the proposed new house, is left behind, and the natural nature of the coastal environment takes over. On returning from the beach and sand dunes into the walkway system, including Rothesay Road, the proposed new dwelling will probably be seen as part of the urban area, although its separation from the urban area by Rothesay legal road will be noticeable. 55. My conclusion, and generally that agreed at the hearing by expert witnesses, is that effects of the erection of the proposed house on the environment and experience of the Bottle Lake Forest and the coastal environment sand dunes and beach, will be generally less than minor, or potentially minor when returning to the urban area from the beach and sand dunes. Effects on the immediate transition from urban to rural 56. There is a significant pedestrian and cycle (and probably horses) route from along Aston Drive to the west, and into the Bottle Lake Forest, and Waimairi Beach coastal environment through the legal road along Rothesay Road. The proposed new house is on the northern side of that Rothesay Road route, and the legal road separates the proposed new house from the suburban houses that front or gain access from Aston Drive. 57. The opinion of two of the landscape architects who appeared before me (Mr Head and Ms Dray) is that the proposed new house will appear as an island, separated from the urban area, and be an anomalous element in the rural environment. It would be cut adrift from the fabric of the urban environment by the public walkway land in-between. They consider that it would have considerable landscape effects on the public appreciation of what is a wild place. The other landscape architect, Mr Rough, considers that the proposed new dwelling will integrate well with, and almost appear a seamless extension of the existing suburban development. He accepted that there would be moderate effects on the visual amenity for motorists, cyclists and pedestrians in the vicinity of the area where the paper road meets the curve on Aston Street, and for pedestrians when they take the footpath along the paper road. However, he considered that the moderate effects would be offset by the enhancements from the dune ecosystem planting on the paper road. 9

10 58. I spent some time on two site visits, one before the hearing, and one after the hearing, walking along Aston Drive and through the walkway along Rothesay Road, and considering the various expert opinions, and those of various submitters and other experts who appeared before me. I prefer the views of Mr Head and Ms Dray to that of Mr Rough. At present there is a very clear demarcation of urban and rural, and as one looks along Aston Drive, and enters and travels through the public walkway along Rothesay Road, all the land to the left, or north, is rural, and quite wild in nature. The area to the right, or south, is very urban. The proposed dwelling is urban in nature, and would be quite large and imposing. I agree that it would appear as an urban island, cut adrift, and separated from the urban area. 59. I tried to persuade myself that the proposed new dwelling would merely delay the enjoyment of entering the rural environment just a little bit longer, and one would have that experience of entering the rural landscape once one was past the dwelling. And that the proposed coastal dune ecosystem planting proposed in the walkway would offset that delay. However I have concluded that having that delay is not justified, and any benefit of the additional plantings is more than offset by the scale of the house, the reduction in rural landscape experience, and some reservations referred to in following paragraphs about the plantings in the legal road. 60. My conclusion is that the effects on the transition from urban to rural experience will be more than minor. Impacts on existing houses in the Living 1 Zone 61. A major concern of many submitters, particularly the two who appeared at the hearing before me, is the impact of the proposed new house on the views and experience from the houses in the urban area along Aston Drive. People bought houses there expecting to retain the extensive views to the Bottle Lake Forest and Coastal environment. 62. While any view is not protected as of right, and planning instruments cannot be expected to remain without change, I accept that there would be a reasonable expectation of purchasers of houses along Aston Drive that their views would remain, changing over time through forest operations. While a house on land zoned Rural is possible (likely in many circumstances), the erection of houses on the small rural lots on the north side of Aston Drive/Rothesay Road and along Whiskey Road would be unexpected, subject perhaps to future zone change processes. 63. There is no doubt in my mind that the impact of the proposed new house on the properties of the two submitters who attended the hearing (98A and 100 Aston Drive) would be substantial. The proposed house is large, and very urban in nature. It would block or significantly impact on the views and experience from those two houses in particular. While 100 Aston Drive currently has a 1.8m fence on its northern boundary, it is quite conceivable, and probably likely, that this fence will be lowered in part in the future. 64. Having said all that, if the only effect of the proposed new house was on the views and rural experience from these two houses, that would probably not be sufficient grounds to decline this application. It is one of the factors that I will take into account in reaching a decision on this application. 65. My conclusion is that the effects on existing houses in the Living 1 zone will be more than minor. 10

11 Scale of Proposed House 66. The proposed new house is a relatively large house on a reasonably small (599m 2 ) section. Including the covered pool, the house occupies 40.6% of the site, over the critical standard if the property was zoned Living 1. The house is 8.8m high, which although it complies with the Rural 1 zone height of 9m, is higher than the 8m standard that would apply if the property was zoned Living 1. The dwelling has a number of location non-compliances, although this is mainly because it is on a small lot zoned Rural 1. Filling of the land requires retaining walls around much of the boundaries of the site, some of which then have a 1.8m solid fence on top. The house is two storey over most of its area. 67. My purpose in identifying those characteristics is to reflect that the house is very much an urban dwelling located on a small section in a Rural zone. It may be that a smaller dwelling on a larger section would have different effects than what is proposed in this application. Planting on Legal Road 68. An unusual aspect of this application is that it proposes extensive use and planting of an unformed legal road. The legal road is to be used for vehicular access, with about half of the road fenced off and effectively used by the application property, with the existing public walkway relocated to the other half of the legal road. Extensive dune ecosystem planting is proposed on the Rothesay Road and Whiskey Road legal road areas. This is partly to enhance the public enjoyment of the pathways on those roads, but is predominantly to mitigate the effects of the urban use proposed for the property. 69. I am reasonably comfortable with the form of planting proposed, although I note the view of Mr Head that the form of planting is inappropriate and that it would further enhance the impression that the house and immediate curtiledge is an urban island. I do have reservations about some of the legal road being fenced off (post and wire fence) for vehicle access to the site, and that this would make this driveway seem part of the private property rather than being access over public property. 70. Ms Dovey and Ms Arnott both expressed reservations about taking into account plantings and mitigation on land not owned by the applicant, and which would be subject to further approval processes from the landowner (Christchurch City Council) who was not a party to this application. Mr Walsh was confident that a condition requiring that the necessary approvals be obtained before any work on the new house could commence would be appropriate and effective. If I was to consider granting consent to this application, I do share the concerns of Ms Dovey and Ms Arnott. The process to obtain Council approval may not be successful, or it may result in changes to layouts, or planting areas and types, that could change what is before me for consideration. Other Effects 71. Ms Arnott in her Section 42A planning report considers other potential effects of this application on the environment. I agree with her conclusions that any adverse effects on the rural productive capacity of the site would be negligible; that infrastructure services (water, storm water, wastewater, electricity and telecommunications) can be provided; that with appropriate conditions and agreements the separation of forestry from the property by 30m can be managed; that emergency access to the property and to the forest and beach can be provided; that any natural hazard effects are manageable; and that any adverse effects on 11

12 dune stability or erosion are less than minor. I agree that there are positive effects in providing for the applicant s wellbeing, and in being able to utilise this small rural allotment. Objectives and Policies Operative Christchurch City Plan 72. Ms Arnott undertook a comprehensive assessment of the objectives and policies of the Operative Christchurch City Plan, which she summarised as generally seeking to maintain the character and amenity of the rural environment, and preserve the natural character of the coast. 73. She concluded that the application would be generally consistent with the relevant objectives and policies relating to rural productivity and ecology. 74. She considered that the application would be inconsistent with the specific objectives and policies relating to rural character and amenity, which seek to maintain amenity values, to ensure that building development maintains or enhances amenity values in rural areas. She did acknowledge that the context of the site is somewhat different from what the rural environment generally anticipates. 75. She considered that the application was contrary to objectives and policies relating to coastal character and amenity, which seek to preserve the natural character of the coast, including areas that are part of the coastal environment landward of the coastal marine area. 76. Ms Dovey adopted and agreed with Ms Arnott s assessment. Mr Walsh reached a different conclusion with regard to rural and coastal character and amenity. He did so because he agreed with Mr Rough that the proposed development will successfully integrate with the adjoining suburban neighbourhood and maintain the character of the surrounding rural environment. 77. I reached a different conclusion than Mr Rough, and therefore agree in general with Ms Arnott. I agree that the application is inconsistent with the objectives and policies relating to rural character and amenity. 78. However, I think that concluding that the application is contrary to the objectives and policies relating to the coastal environment is going too far. This is because generally I have concluded that the proposed house will not particularly impact on the sand dunes and coastal environment. 79. Overall I have concluded that the application is inconsistent with objectives and policies of the Operative Christchurch City Plan relating to rural and coastal character and amenity, but is not contrary to them. Proposed Replacement Christchurch City Plan 80. The Chapter 3 Strategic Directions section of the Proposed Replacement District Plan are now operative, so I must also have regard to those objectives and policies. 81. Objective Urban Growth seeks a consolidated urban form and a high quality urban environment that, among other things, provides for urban activities only within existing urban areas, or on greenfield land on the periphery of Christchurch s urban area identified in 12

13 accordance with the Greenfield Priority Areas in the Canterbury Regional Policy Statement Chapter 6, Map A. These Objectives are further enforced by two Rural policies which ensure that activities on rural land are limited to those that are related to rural activities or natural resources, or have a functional necessity for a rural location and ensure that rural dwelling densities support a consolidated urban form, retain a low density of built form, and enable use of existing lots less than 4ha where it will not result in large lot rural residential activity. 82. Ms Arnott reached the conclusion that this application is contrary to those objectives and Policies. Ms Dovey also reached that conclusion. Mr Walsh concluded that while the application cannot be entirely consistent with such a directive objective, he did not consider the application is contrary to them. 83. Objective introduces into the Replacement District Plan the same language and direction as the Regional Policy Statement. I discuss this matter further in consideration of that document. 84. For the same reasons as discussed under the Canterbury Regional Policy Statement below, I have concluded that the application is inconsistent with the Strategic Directions objectives and policies of the Proposed replacement District Plan. Canterbury Regional Policy Statement 85. The Canterbury Regional Policy Statement (CRPS) includes Chapter 6, which provides a resource management framework for the recovery of greater Christchurch. I agree with Ms Arnott and Ms Dovey that the proposed dwelling on a small lot falls within the definition of an urban activity. Mr Walsh did not dispute that conclusion. 86. The CRPS seek to; avoid urban development outside of existing urban areas or greenfield priority areas for development... and give effect to the urban form identified in Map A, which identifies the location and extent of urban development that will support recovery, rebuilding, and planning for future growth and infrastructure delivery and ensure new urban activities only occur within existing areas or identified greenfield priority areas as shown on Map A, unless otherwise expressly provided for in the CRPS and maintain the character and amenity of rural areas and settlements. 87. Ms Arnott concluded that this application was inconsistent with these policies, although she acknowledged that the proposed development is small scale, and so would not have significant effects on the ability to achieve the outcomes for these policies. Ms Dovey concluded that the application would be contrary to these policies. She considered the policies strong and prescriptive in nature. She referred to findings of the Council s Independent Hearings Panel, written in respect of requests for rezoning outside of the areas prescribed in Map A (including a submission from the applicant Mr Falvey) which found the language of the CRPS as clear and properly restrictive. Mr Walsh concluded that the application cannot be entirely consistent with these policies, but not at odds with the intent of those policies. 88. I agree with the conclusions of Ms Arnott that this application is inconsistent with the objectives and policies of the CRPS. I agree that the wording of the CRPS is prescriptive and 13

14 restrictive, and I understand the conclusions of the Independent Hearings Panel when considering rezoning requests. I am not convinced, on a resource consent application, that the words are so restrictive that an application can never be granted purely because a proposal falls within the definition of urban development. However, the direction is strong, and in this case, taking into account my conclusions of adverse effects, I have concluded that this application is inconsistent with the objectives and policies of the CRPS. I have concluded that it is going too far to say that it is contrary to those objectives and policies. Land Use Recovery Plan 89. The Land Use Recovery Plan (LURP) is intended to help achieve the vision of the recovery strategy for Greater Christchurch. The LURP directed the inclusion of Chapter 6 of the CRPS, and it has been accepted that Chapter 6 is part of the LURP. The LURP includes provisions resource consent decisions must not be inconsistent with the recovery strategy. 90. The Minister for Earthquake Recovery has given approval to amendments to the LURP which remove Chapter 6 of the CRPS from the LURP, and provide that Map A will now be indicative only. The reasons for change included in that approval state (in respect of removing Chapter 6 from the LURP) that this will remove unnecessary duplication, and allow Environment Canterbury to make changes to Chapter 6 of the CRPS, and in respect of making Map A indicative only will allow changes to Map A in Chapter 6 of the CRPS through normal Resource Management Act processes, and will provide clarity to decisionmakers when determining rezoning or resource consent matters. These changes came into effect on the day of the hearing of this application by Mr Falvey. 91. Mr Schulte for the applicant submitted that these changes meant that there is now no requirement for the proposal not to be inconsistent with the CRPS. He accepted that I still have to have regard to the CRPS. Ms Hands, for Mr Pinnell, submitted that although the CRPS is no longer part of the LURP, and Map A is indicative only, that has not changed the strong and directive language of Chapter 6, and until that has changed, I must still have particular regard to that direction. Ms Hands also reminded me that the recent Greater Christchurch Regeneration Act (also coming into force on the day of this hearing) retains a provision that any person exercising powers under the Resource Management Act, including applications for resource consents, must not make a decision that is inconsistent with any Recovery Plans. 92. I tend to agree with the submission of Mr Schulte that there is no longer a limitation on a consent being granted if I find that an application in inconsistent with the CRPS, because that Plan is no longer part of the LURP. Making Map A indicative only appears to give some flexibility, although I agree with Ms Hands that this flexibility is better directed at Plan Change processes. The language of the reasons for change (providing clarity to decision makers, including on resource consents) does not help much. It could mean that it provides clarity that Chapter 6 is no longer part of the LURP and that Map A is indicative only. It could mean that clarity will be provided when changes are made to the relevant Plans. 93. I have concluded that the changes to the LURP mean that I am not barred from granting an application if it is inconsistent with the CRPS, but that I still have to have regard to the strong and restrictive language of the CRPS as it currently exists. 14

15 Recovery Strategy for Greater Christchurch 94. The Recovery Strategy for Greater Christchurch is a document that sets high level goals and priorities for the recovery of Christchurch. I agree with Ms Arnott that this application does not conflict with any of those goals or priorities. New Zealand Coastal Policy Statement 95. The New Zealand Coastal Policy Statement (NZCPS) contains a number of policies aimed at preserving the natural character of the coastal environment, protecting it from inappropriate subdivision, use and development, and protecting the natural features and natural landscapes of the coastal environment. It is accepted (Ms Dovey would disagree) that this application site is not itself part of the defined coastal environment, but it does directly adjoin the coastal margins, including the dunes, and the policies of the NZCPS are relevant. Ms Arnott concluded that the application was to some extent inconsistent with these policies because it will not entirely preserve the natural character of the coastal environment. Ms Dovey concluded that the application is inconsistent with the policies because she considers the site part of the coastal environment, and the application does not restore or enhance the natural character and amenity of this environment. Mr Walsh did not consider the NZCPS. 96. My conclusion is that the proposed dwelling would not significantly impact on the natural character of the coastal environment. It is more part of the Bottle Lake Forest and rural experience, and the coastal experience of entering or leaving the sand dunes occurs beyond (but not by much) the application site. Having said that, the coastal experience would be better without the proposed dwelling being on this site. I would not conclude that the application is consistent with the NZCPS, so like Ms Arnott I have concluded that the application is to some extent inconsistent with the NZCPS. Precedent Effect/Plan Integrity 97. I have considered whether there is any precedent effect, or matters of plan integrity that I should have regard to. Given the particular and unusual characteristics of this site, I do not consider that there are any precedents that this application would have for other sites, and although I have concluded that the application is inconsistent with a number of aspects of various plans, I do not consider that granting the application, in itself, would unduly threaten the integrity of any of those Plans. Section 104D Threshold tests 98. I have concluded that the adverse effects on the environment from the proposed dwelling are more than minor. These effects are particularly in respect of the transition from urban to rural (and recreation) experience, and the impact of existing houses in the adjoining Living 1 zone. 99. I have concluded that the application is not contrary to the objectives and policies of the Operative Christchurch City Plan, the Proposed Replacement Christchurch District Plan, or the Canterbury Regional Policy Statement, although I have concluded that it is inconsistent with a number of the objectives and policies of those Plans. 15

16 100. I have also concluded that as Chapter 6 of the Canterbury Regional Policy Statement is no longer part of the Land Use Recovery Plan, this application is not inconsistent with the Land Use Recovery Plan, and I can proceed to consider the application As the application passes at least one of the threshold tests in Section 104D of the Resource Management Act, I can now proceed to consider the application under Section 104 of the Act. Section 104 consideration 102. I have concluded that the application will have more than minor adverse effects on the environment. The house will appear separated from, as an island, from the existing urban area, and will have adverse effects on the transition from urban to rural and recreational experience in the Bottle Lake Forest and Coastal sand dune areas. The impacts on existing houses, particularly 98A and 100 Aston Drive, will be substantial. The scale of the proposed house, the separation of the site from the urban edge, and the reliance on yet to be approved mitigation planting in the road reserve, have influenced my conclusion I accept that once a person moves past the immediate environment of the proposed house, it will have only minor to less than minor effects of the use and enjoyment of the Bottle Lake Forest recreation area, and of the Coastal environment I have had regard to the objectives and policies of the Operative Christchurch City Plan. I have concluded that the application is inconsistent with the objectives and policies relating to rural character and amenity, and to a lesser degree coastal character and amenity I have had regard to the objectives and policies of the Strategic Directions chapter of the Proposed Replacement Christchurch District Plan. I have concluded that the application is inconsistent with the urban growth objectives and policies 106. I have had regard to the objectives and policies of the Canterbury Regional Policy Statement. I have concluded that the application is inconsistent with the clear policy direction to avoid urban development outside existing urban areas or greenfield propriety areas I have had regard to the Recovery Strategy for Greater Christchurch, and I have concluded that the application does not conflict with any of the identified high level goals or priorities for recovery I have had regard to the New Zealand Coastal Policy Statement, and have concluded that the application is to some extent inconsistent with that document I have considered whether there is any precedent effect, or matters of plan integrity that I should have regard to. Given the particular and unusual characteristics of this site, I do not consider that there are any precedents that this application would have for other sites, and although I have concluded that the application is inconsistent with a number of aspects of various plans, I do not consider that granting the application, in itself, would unduly threaten the integrity of any of those Plans My consideration under Section 104 is subject to Part 2 of the Resource Management Act Section 6 of the Act Requires the Council to recognise and provide for the preservation of the coastal environment from inappropriate subdivision and use. For the same reasons as my conclusion of the NZCPS, this application is to some degree inconsistent with Section 6. 16