Review of Urban Design Case Law

Review of Urban Design Case Law

Published in November 2008 by the Ministry for the Environment Manatü Mö Te Taiao PO Box 10362, Wellington, New Zealand ISBN: 978-0-478-33135-6 (electronic) 978-0-478-33136-3 (print) ME number: 912 This document is available on the Ministry for the Environment s website: www.mfe.govt.nz

Contents Preface v 1 Introduction 1 1.1 Objectives 1 1.2 Relationship to other Ministry for the Environment documents 1 1.3 Approach 1 1.4 Limitations 3 2 subject areas 4 3 General findings 5 3.1 Wide ranging 5 3.2 usage 5 3.3 Up to date 5 3.4 Methodologies and techniques 5 3.5 Integration by structure plan 6 3.6 Reality check 6 3.7 Policy presence 6 4 Amenity findings 7 4.1 Wide definition 7 4.2 Recognising amenity 7 4.3 Defining amenity 8 4.4 Distinguishing amenity and character 8 4.5 Amenity value 8 5 Character findings 9 5.1 Character recognition 9 5.2 Character fit 10 5.3 Uniformity 10 5.4 Design guidelines and assessment criteria 10 5.5 Other design management tools 11 5.6 Landscape character 11 5.7 Other character 11 6 Heritage findings 12 6.1 Greater weight to historic heritage? 12 6.2 Heritage values recognition 12 6.3 Heritage policy and methods 13 6.4 Heritage value identification and management 13 6.5 Heritage and archaeology 14 Review of Urban Design Case Law: New Zealand Urban Design Protocol iii

7 Density findings 15 7.1 Increasing density 15 7.2 Density scale 16 7.3 City form and height combinations 16 8 Movement findings 17 8.1 Trip generation 17 8.2 Roads and their purpose 18 8.3 Emissions 18 8.4 Movement and amenity 18 9 Commerce findings 19 9.1 Mixed use 19 9.2 Enabling mixed use over time 19 9.3 Commercial character 20 9.4 Trade competition 20 9.5 Large-format retail 20 9.6 Effects of large-format buildings on urban quality 21 10 Urban growth findings 22 10.1 Regional direction 22 10.2 District versus region 22 10.3 Urban containment 23 10.4 Structure plans 23 10.5 Productive land 23 10.6 Landscape values 24 10.7 Reality check 24 11 Open space findings 25 11.1 Urban edge open space 25 11.2 Urban open space 25 11.3 Open space policy 25 11.4 Open space character 26 Appendix 1: Case law summaries 27 iv Review of Urban Design Case Law: New Zealand Urban Design Protocol

Preface This report presents findings from a review of urban design-related decisions made before July 2008 by the Environment Court (the Court) under the Resource Management Act 1991 (RMA). The findings focus on how the Court has addressed a range of constituent subject areas embraced by urban design. These areas include: amenity, character, commerce, density, heritage, open space, movement and urban growth. The review examines a sample of relevant decisions relating to these subject areas, for clues to help guide professionals working with the RMA to achieve quality urban design outcomes. is defined here as an approach to designing and planning for urban environments that has been shown in numerous ways to yield improved qualities and value in the contexts within which it is applied. 1 The 2005 New Zealand Urban Design Protocol describes urban design as being: concerned with the design of the buildings, places, spaces and networks that make up our towns and cities, and the ways people use them. It ranges in scale from a metropolitan region, city or town down to a street, public space or even a single building. is concerned not just with appearances and built form but with the environmental, economic, social and cultural consequences of design. It is an approach that draws together many different sectors and professions, and it includes both the process of decision-making as well as the outcomes of design. While the take up of urban design appears strong in the larger urban centres 2 this may be a reflection of the complexity or depth of the issues to be resolved in these areas. It is also becoming evident in practice in smaller towns and settlements. Many levels of local government are starting to see the results of good urban design in achieving their constituents aspirations for well-planned and quality urban areas. The issues affecting urban environments are complex so a carefully planned and managed response is required to ensure these issues are adequately addressed. The principles that underlie good urban design provide a guide to assist this process. What is clear from this review is that the courts (Environment Court, High Court and Supreme Court) are now considering cases in which the processes and principles associated with urban design are influencing the decisions being made. This report expresses the views of the authors only and does not necessarily represent the views of the Ministry for the Environment. Marc Baily (Boffa Miskell) Morgan Slyfield (Morrison Kent) 1 2 For example, refer to Ministry for the Environment, 2005, Urban Design Case Studies and Ministry for the Environment, 2005, The Value of Urban Design (both available at www.mfe.govt.nz/publications/urban). Ministry for the Environment, 2006, A Survey of Local Government Authorities Urban Design Capability (available at www.mfe.govt.nz/publications/urban). Review of Urban Design Case Law: New Zealand Urban Design Protocol v

1 Introduction 1.1 Objectives The objectives of this report, as defined in the project brief, are to: identify how urban design is being considered by the courts identify major trends arising from Resource Management Act 1991 (RMA) case law draw general conclusions based on the major trends identified. The findings of this review are intended to be a useful guide for councils in developing the next generation of RMA plans and those making urban design-related decisions under that Act. 1.2 Relationship to other Ministry for the Environment documents The Ministry for the Environment has produced a suite of documents on urban design subjects, including: the New Zealand Urban Design Protocol, The Value of Urban Design, Urban Design Case Studies and the Urban Design Toolkit. They are a valuable resource and accessible for anyone at any level addressing urban design-related subjects. 3 The New Zealand Urban Design Protocol describes the conditions (under the seven Cs headings) that contribute to the creation of a quality urban environment and defines urban design in this context. This review cross-references to the seven Cs in the New Zealand Urban Design Protocol (refer to section 2, subject areas). 1.3 Approach The approach to the review involved selecting a sample of relevant urban design-related cases and determining noticeable trends within these decisions. Cases were sought that appeared to contain findings that could usefully inform future urban design policies and practice. The cases are organised around subject headings considered to be of particular interest to those involved in preparing district plans, policy and making decisions under the RMA that relate to the urban environment. The identification and definition of commonly considered subject areas provided a way to structure the search for relevant cases and to report the findings. 3 These are all available online at www.mfe.govt.nz/publications/urban Review of Urban Design Case Law: New Zealand Urban Design Protocol 1

Consistencies in decisions on specific subjects were looked for, and judgments were interrogated to see if they could provide guidance on the commonly asked questions on these subject areas. Although a representative geographic spread of case selection would have been useful, it was determined more important to concentrate on the most useful cases regardless of location. define urban design and constituent subject headings review under subject headings the cases highlighted by the Ministry for the Environment record findings and points in summary table format identify additional cases for coverage of subject headings review under subject headings the cases highlighted by the Ministry for the Environment record findings and points in summary table format distil findings and points into a report The review approach adopted is outlined in the diagram below. It is important to note that, because urban design is by nature integrative, several subject areas may apply to the cases selected for this review. It is also important to recognise that the review does not analyse all of the cases connected with the relevant subject areas. This would not have been possible within the scope of the project. 2 Review of Urban Design Case Law: New Zealand Urban Design Protocol

1.4 Limitations Specific limitations to the review s ambit, and cautions for users of this report, are noted below. The review focuses on Environment or High Court decisions. It does not cover council decisions on resource consent applications or litigation settled out of court. There are many situations where important urban design issues are resolved in other forums or are simply not raised at all. The consideration given to urban design issues in the cases is constrained by the litigants actions. In other words, the effort that the litigants put into the urban design issues can influence the quality of the courts consideration of those issues as well as the outcome. The review does not attempt to cover all or even the most significant cases relevant to urban design. A sample of cases has been selected to provide reasonable coverage of the urban design subject headings considered in this report. Over time, new cases will emerge that will help to guide urban design-related policy and practice. The value of this review is in the broad findings it highlights and these will continue to be relevant for some time. This review is no substitute for reading the judgments in full if a user is interested in a particular case. The content represents neither a definitive nor exhaustive analysis of the case law selected. Consequently, legal interpretations or planning arguments should not be based solely on the material presented here. The review is not a critique of the judgments discussed. This report does not cover all subject areas that could, in future, be addressed by the courts under the subject of urban design. Review of Urban Design Case Law: New Zealand Urban Design Protocol 3

2 subject areas Subject areas commonly addressed in the context of urban design were identified to provide a basis for reviewing the urban design case law. These are listed below with references to their relationship to relevant qualities of urban design included in the New Zealand Urban Design Protocol. Each subject area has a brief description outlining what is meant or included for consideration in this review. Some meanings and definitions have been drawn from the RMA, others have been developed specifically for use in this report. subject and meaning for review Relationship to the Urban Design Protocol seven Cs Amenity The qualities and characteristics of an [urban] place or area that contribute to people s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes (from section 2 RMA). choice, context and character Character The physical qualities of an urban place or area as determined by the combination of building types, age, street pattern, open space, slope, vegetation pattern, mix of land uses and climate. character Heritage Includes historic sites, structures, places and areas; archaeological sites; sites of significance to Māori, including wāhi tapu and surroundings associated with natural and physical resources [in an urban area] (from section 2 RMA). character, context custodianship Density The number of rooms or buildings per hectare, including combinations of height and footprint in this context, this also refers to the process of changing density through infilling or intensification. character, context choice Movement The way in which people and goods are conveyed within and to urban places and areas, including by walking, motorised and self-propelled means and the infrastructure required to facilitate it. connection, choice Commerce The type, location and interaction of businesses within an urban place or area that influence employment opportunities, viability, services and opportunities for growth. choice, context Urban growth The definition of the extent and location of new urban areas, including the processes and mechanisms for planning the form and patterns of these areas and the implications for change in land use, such as for transport. context, choice character, connections, custodianship Open space The provision of, or changes to, open spaces within an urban place or area that may be for recreational, aesthetic or natural values. character, context 4 Review of Urban Design Case Law: New Zealand Urban Design Protocol

3 General findings In addition to the specific findings discussed in sections 4 to 11 of this report, several general findings have also emerged, as outlined below. 3.1 Wide ranging encompasses a wide range of interrelated subjects. Successful planning for urban environments requires that the relationships between activities, movement, people, buildings and spaces are recognised and provided for. The importance of these relationships is reinforced in several of the cases considered. 3.2 usage The term urban design is rarely referenced or used in the case law reviewed. This is not to say that the wide ranging relationships that are part of good urban design were not recognised or considered in the cases at hand. The cases, by nature, are often focused on specific contributing subject areas, such as character or amenity. Even though the expression urban design may not be found in the judgments, there are still useful lessons to be gained from their examination. 3.3 Up to date As the aspirations for quality urban environments increase, the ability of RMA plans to keep pace will be challenged. The many urban design considerations will also pose challenges to current practice within district (or regional in those regions where urban design is recognised) councils. Those councils with either no or limited urban design capacity (but possibly burgeoning urban growth demands) may be particularly disadvantaged. 3.4 Methodologies and techniques Although it would have been useful for this review to have set out the urban design methodologies and techniques endorsed by the courts, this was not possible because the circumstances surrounding each case vary (witnesses, scale, time, level of issue, resources). Consequently, the appropriateness or thoroughness of any approach or analysis within the evidence occurs on a case-by-case basis, with the courts making decisions based on the value of the evidence presented. What is consistently valued by the courts is that all the relevant provisions are thoroughly considered, particularly in the context of the overarching purpose and principles in Part 2 of the RMA, and that the resultant opinion is well communicated, including graphically, as appropriate. A definite trend is evident toward the use of advanced graphics, some of which provide dynamic demonstrations of the effects and issues (eg, micro-simulation models for Review of Urban Design Case Law: New Zealand Urban Design Protocol 5

traffic, photo-real sketches, visual simulations and GIS-based three-dimensional modelling for urban form). 3.5 Integration by structure plan One of the noticeable trends in the case law has been the uptake and application of structure plans by councils (these are sometimes called comprehensive development plans or area development plans). Although not recognised specifically in the RMA (as other plans are), structure plans are typically incorporated into district plans as a plan change or variation. Structure plans are now regularly considered by the courts and are seen as a valid technique for enabling an integrated plan to be developed for a particular area (including such things as street layouts, open space networks, density variations and stormwater management). This, in turn, overcomes the issue of incremental planning by individual landowners, provides clarity around the future urban qualities of an area, enables councils to plan infrastructure systems and set financial contributions with certainty, and helps guide district plan administration and decisionmaking. As a process, the application of a structure plan can also provide an effective vehicle for working through change with the community of interest. 3.6 Reality check that seeks to prescribe a future state or physical environment needs to consider current conditions. This includes appropriate recognition of actions that have already taken place that might affect the shape of an area. For example, the preparation of a structure plan that seeks a new layout for an area within an approved subdivision consent that has a different layout may be considered unrealistic and overly detrimental to the affected landowner. 3.7 Policy presence There are, naturally, some cases in which there is a district plan or other policy that is pertinent to the urban issues at hand and others where there is not (this is broadly shown in the case summaries in Appendix 1). What is clear from the case law reviewed is that the courts use the best guidance they can to decide each case, but they have signalled in some cases that the issue warrants clearer guidance than currently offered within plans. Despite this, the absence of strong plan provisions in many of the cases reviewed has not prevented the courts from grappling with, and resolving, urban design issues; usually relying on Part 2 of the RMA for broad guidance, with detailed guidance provided by expert evidence. 6 Review of Urban Design Case Law: New Zealand Urban Design Protocol

4 Amenity findings The following cases were reviewed that included references to the subject of amenity in an urban context: Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council (W47/05) Foot v Wellington City Council (W73/98) Howick Ratepayers and Residents Association Inc v Manukau City Council (A167/04) Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd (W15/08) Pick v Far North District Council (A64/06) Roman Catholic Diocese of Auckland v Franklin District Council (W61/04) Urban Auckland Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2005] NZRMA 155 (High Court). Some cases also referenced other urban subjects and, accordingly, may or may not be referred to under those subjects. Each case is summarised in Appendix 1. 4.1 Wide definition Amenity is a subject commonly addressed by the Environment Court (the Court) relative to the other urban design subject headings. It provides (given the broad meaning see section 2 of this report) a catch-all for a range of attributes, including the physical, functional, cultural and spiritual characteristics of a place that people enjoy (Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council and Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd). Cross-boundary jurisdictional considerations will also need to be made between district and regional level planning as well as between districts where amenity is appreciated across a wide spatial area (views, for example). 4.2 Recognising amenity A place-specific determination of amenity is an important component on which to base district plan provisions for those areas that have distinguishable amenity attributes. Without such a basis, the adequacy of simple bulk and location rules to address amenity can easily be questioned. If councils have no policy on amenity, but can demonstrate that areas have highvalue amenity attributes (commonly linked to character), the Court encourages those councils to purposefully and adequately provide for these attributes in their plans. (Foot v Wellington City Council; Pick v Far North District Council and Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd). Review of Urban Design Case Law: New Zealand Urban Design Protocol 7

Further, councils are also expected to apply existing policies in their plans (Urban Auckland v Auckland City Council and Howick Ratepayers and Residents Association Inc v Manukau City Council). 4.3 Defining amenity There is no apparent standard for determining the amenity or character of a place. There are, however, several techniques and levels of assessment and identification that have formed the basis for the district plan provisions referred to by the Court. At times, the Court will specifically note the process used to assess amenity and the relative weight it has given it in making its decision (Urban Auckland v Auckland City Council). 4.4 Distinguishing amenity and character The distinction between amenity and character seems well understood by the Court, with references to the character of a place contributing to its amenity (Howick Ratepayers and Residents Association Inc v Manukau City Council). 4.5 Amenity value People place strong emphasis on amenity in terms of the attributes by which they determine where they want to live or the places they gain enjoyment from. It is important to ensure that communities of interest are engaged in the process of determining how these attributes are appropriately provided for in district plans, because these attributes will form the basis of future decision-making (Foot v Wellington City Council). 8 Review of Urban Design Case Law: New Zealand Urban Design Protocol

5 Character findings The following cases were reviewed that included references to the subject of character in an urban context: Affco New Zealand Limited and Richmond Limited and Napier Sandblasting Limited v Napier City Council and Land Equity Group (A82/04) Christchurch Civic Trust v Christchurch City Council (C82/05) Duxton Hotel Wellington v Wellington City Council (W21/05) Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council (W47/05) Foot v Wellington City Council (W73/98) Howick Ratepayers and Residents Association Inc v Manukau City Council (A167/04) Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd (W15/08) North Shore City Council v Auckland Regional Council [1997] NZRMA 59 Omaha Beach Residents Society Inc v Ocean Management Ltd (CIV-207-404-2539) (High Court, 6 September 2007) Roman Catholic Diocese of Auckland v Franklin District Council (W61/04) The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council (C101/01) Urban Auckland Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2005] NZRMA 155 (High Court). Some cases also referenced other urban subjects and, accordingly, may or may not be referred to under those subjects. Each case is summarised in Appendix 1. 5.1 Character recognition Character is recognised in a variety of ways in the case law, including heritage, landscape and streetscape character and the character of particular types of activities. A large number of cases revolve around both character and amenity issues (refer section 4). Based on the analysis of the range of aspects covered in this review, it appears the Court has a strong level of understanding about what constitutes character. The Court also recognises that character is an important part of the amenity of a place (Howick Ratepayers and Residents Association Inc v Manukau City Council). Some of these character considerations (eg, heritage and open space) are covered in other sections of this report. Review of Urban Design Case Law: New Zealand Urban Design Protocol 9

5.2 Character fit There are many cases where the character of a place or an area has been recognised as being adversely affected by the introduction of new forms of development. Key to this is usually the uniformity of the character of the subject area. In Howick Ratepayers and Residents Association Inc v Manukau City Council, the Court found that a proposed mixed-use development comprising retail on the ground floor and residential above was inappropriate given its height and the effects on existing visual amenity, character and heritage values. The Court put weight on the character of the existing area and the fact that the council sought to maintain this character through its objectives and policies. If councils are intent on encouraging changes to density in combination with a mix of residential activities, then this case suggests they would need to carefully target where this occurs, recognising character in the course of doing so. The issue of dominance of a proposed development on a surrounding low-key, less bulky or open environment is sometimes expressed in terms of the lack of fit with character (Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd). 5.3 Uniformity The Court has recognised uniformity as being key to determining heritage and character areas (Christchurch Civic Trust v Christchurch City Council). Diversity in the character of a place, or infrequent distribution of the characteristic places sought to be protected, might prevent outright character protection. Too many non-characteristic components could suggest the boundaries of the area are too widely drawn, or that a different technique might be more appropriate to afford the protection sought. The Court has also found that the character of a place can change over time and district plans need to recognise this. If the effects of a proposal are consistent with the actual character of an area, then the Court could support development that may be outside the objectives sought for that area (The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council). 5.4 Design guidelines and assessment criteria The use of statutory guidelines to help in the management of character has been the subject of several Court decisions and strongly mandated in two of the cases reviewed. The Court has endorsed the use of statutory guidelines as a regulatory tool for managing complex combinations of factors that contribute to character, including streetscape and views (Foot v Wellington City Council). The Court has also put significant weight on the assessment of a project s fit with statutory design guidelines to evaluate development. In particular, it has recognised that the character qualities sought by statutory guidelines, and the detail of the guidelines addressed in a development s design, can justify non-compliance with standard terms and conditions included in a rule (Duxton Hotel Wellington v Wellington City Council). 10 Review of Urban Design Case Law: New Zealand Urban Design Protocol

The Court has stated that there is an overarching requirement to consider the aesthetic under Part 2 of the RMA, so where design assessment criteria are included in a district plan they need to be given due weight (Urban Auckland v Auckland City Council). 5.5 Other design management tools The High Court has found that where private covenants on titles are used to manage building design (eg, by a resident s society/association for a new subdivision) these can override the basic provisions of a district plan. In one case (Omaha Beach Residents Society Inc v Ocean Management Ltd), the Court upheld the ability of a resident s society to decline approval to a new building; it did so on the basis that the building failed to comply with the development s own design guidelines even though it satisfied the standards in the district plan. 5.6 Landscape character Although commonly addressed in open, and often rural landscapes, landscape character has informed decisions of the Court on the development of new urban areas. Landscape character was found to be an important factor in determining the appropriateness of parts of an area identified for urbanisation in establishing metropolitan urban limits (North Shore City Council v Auckland Regional Council). 5.7 Other character The character of a place need not be attractive for the Court to consider it important to maintain. The Court recognises that places with an industrial character are important, too, because they enable industrial activities to operate without the threat of reverse sensitivity from potentially sensitive activities (Affco New Zealand Limited and Richmond Limited and Napier Sandblasting Limited v Napier City Council and Land Equity Group). Review of Urban Design Case Law: New Zealand Urban Design Protocol 11

6 Heritage findings The following cases were reviewed that included references to the subject of heritage in an urban context: Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208 Christchurch Civic Trust v Christchurch City Council (C82/05) Howick Ratepayers and Residents Association Inc v Manukau City Council (A167/04) Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd (W15/08) Pick v Far North District Council (A64/06) The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council (C101/01). Some cases also referenced other urban subjects and, accordingly, may or may not be referred to under those subjects. Each case is summarised in Appendix 1. 6.1 Greater weight to historic heritage? In 2003, one of the amendments made to the RMA elevated historic heritage to a matter of national importance (section 6). There is no direct evidence that this change in status is filtering through in the case law in terms of raising the bar, or giving more weight to heritage matters than would otherwise be the case. It appears that the weight placed on heritage matters is greater now than it was prior to the 2003 RMA amendment. This perceived increase could be a result of many factors, for example, effective advocacy by organisations such as the New Zealand Historic Places Trust, improved policy support, changing economic times or changing cycles of development. There is no doubt, however, that with the 2003 RMA amendment councils now need to give full and proper consideration to historic heritage management through any district plan review process. 6.2 Heritage values recognition It is apparent from case law that the Court will now give full weight to heritage values even if those values are not specifically protected by a district plan. To be able to give weight to the heritage values, however, the Court has to be presented with sufficient evidence that these values exist. In Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd, the Court observed that recent district plan changes identified several heritage areas, but the context for the subject site was not included as one of those areas. The Court determined that even though the subject area was not recognised as a heritage area in the district plan when others around it were, this did not rule out the heritage value of the place. 12 Review of Urban Design Case Law: New Zealand Urban Design Protocol

Similarly, where there are objectives and policies pertaining to the maintenance and enhancement of the special character of an area, the Court has found that a proposal significantly outside of the height and bulk allowed by the rules would be contrary to the district plan and not outweighed by other positive effects, such as traffic efficiency (Howick Ratepayers and Residents Association Inc v Manukau City Council). Recognition by the Court that heritage values exist even where they are not recognised by a precinct or area does not diminish the soundness of this technique. Heritage precincts or areas remain a useful way to highlight the existence of heritage values that apply to a collection of places in close relationship to one another. 6.3 Heritage policy and methods The Court has also observed that, where heritage values exist and this is reflected in policy, recognition should be backed up by methods in the district plan (Pick v Far North District Council). This is a best practice point for all district plan making. It further illustrates to councils embarking on district plan reviews that policy references to heritage are no longer sufficient or appropriate on their own, if not matched with methods of equal weight to the values and status of historic heritage that now exist under the RMA. 6.4 Heritage value identification and management The use of identification techniques, such as precincts or heritage areas, is now well established in planning practice and commonly applied in urban areas. The case law suggests, however, that care is required with delineating the extent of precinct boundaries (Christchurch Civic Trust v Christchurch City Council). The Court found against the approach where a precinct was proposed over an area that contained not only heritage places but a large number of non-heritage places as well. The suggestion is that a precinct approach should be pursued only where heritage values are strong and relatively consistent through an area. The Court also noted that district plan provisions need to keep step with the true character of an area (The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council). The type of rules or policies applied to a precinct will influence community acceptability of such a regulatory provision. Where restrictive rules are used to manage the developmental effects of non-heritage buildings in an identified precinct area, the tests applied to that provision can be expected to be rigorous. Refinements on the precinct approach are also likely as district plans come up for review. One such example is the recent (and so as yet untested in the Court) work of Wellington City Council on its Central Area Heritage Areas (recently promulgated by District Plan Change 48). In this example, the heritage areas identify the key heritage as well as non-heritage buildings. The rules enable the redevelopment of non-heritage buildings with certain guidelines that seek to manage any adverse effects on the heritage values of the whole heritage area. Review of Urban Design Case Law: New Zealand Urban Design Protocol 13

6.5 Heritage and archaeology The Court has recognised mitigation of heritage effects on archaeological values, through preservation areas, protocols and support of Māori, as being sufficient to allow it to approve development. The Court has also suggested that if archaeological values are important they should be reflected at district plan level (Canterbury Regional Council v Waimakariri District Council). This would assist in bridging any potential disconnection between the role of the New Zealand Historic Places Trust and councils in managing archaeological heritage. 14 Review of Urban Design Case Law: New Zealand Urban Design Protocol

7 Density findings The following cases were reviewed that included references to the subject of density in an urban context: Canterbury Regional Council v Christchurch City Council (C61/06 and C105/06) Christchurch Civic Trust v Christchurch City Council (C82/05) Duxton Hotel Wellington v Wellington City Council (W21/05) Frasers Papamoa Ltd, DJ & DJ Holland and Others, Collingwood Trustees Ltd and Another v Tauranga City Council (W90/07) Mitchell v Waitakere City Council (A21/00) Urban Auckland Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2005] NZRMA 155 (High Court). Some cases also referenced other urban subjects and, accordingly, may or may not be referred to under those subjects. Each case is summarised in Appendix 1. Density, in the context of this report, aims to capture the cases within urban areas that relate to intensification, infill and its direct influence on city form such as height. Like many of the urban subjects canvassed here, the linkages between density and the consideration of effects on character, amenity and heritage are strong. This review focuses on density at the larger urban area rather than site-specific scale, where character and amenity are a symptom effect recognised by the Court. Amenity and character subjects are addressed in sections 4 and 5 respectively of this report. 7.1 Increasing density Density, at a city-wide or town scale, has become an increasing focus for councils. This is both in response to growing interest in the sustainability of urban areas and market-driven interest in providing further variety in the choice of residential living environments on offer. Some councils are working toward encouraging different types of development density, but this is at an early stage and has not yet found its way into much of the case law. Several councils, in both metropolitan and smaller urban centres, are examining and preparing density and intensification strategies. The complex nature of this work and the changes these strategies will generate for existing and new urban areas will inevitability see instances where consequential district plan provisions will find their way to the Court for determination. In the several cases that address this subject, the Court confirmed the use of comprehensive development plans (like a structure plan) to manage urban growth and its density in new development areas. In the area of Yaldhurst in Christchurch (Canterbury Regional Council v Christchurch City Council), the Court endorsed plan provisions to provide, on a greenfield site, for a range of densities, an open space network, an integrated approach to treatment of stormwater and provision for public transport and pedestrian movement. In Mitchell v Waitakere City Council, the Court again recognised the approach of managing densities to maintain open space values, Review of Urban Design Case Law: New Zealand Urban Design Protocol 15

through the use of structure plan techniques supported by high standards of analysis and community consultation. 7.2 Density scale Historically, there have always been cases where changes in density (as the development of town houses or flats) have found their way to the Court, but these have tended to be at a site level and less influential on city form overall. They have generally been concerned with the effect of a specific development on character or other localised values. There were few cases identified (such as Duxton Hotel Wellington v Wellington City Council) during this review that addressed the other end of the scale decisions about density and the influence of this on city form and its long-term sustainability. As noted above, perhaps further cases are yet to come. 7.3 City form and height combinations There are few cases that address city form in the third dimension of height where there is a deliberate intention to create a conceptual and physical shape that goes outwards as well as upwards. In one example where this was a consideration (Duxton Hotel Wellington v Wellington City Council) the Court approved a development that was based on the interpretation and application of city form at a site-specific level. The Court found that the overall city form was maintained by a site-specific development that was higher than allowed for by the district plan as of right. The presence of relevant policy and guidelines in such cases provides a useful framework for considering the specifics of a particular site. The absence of such policy guidance may also result in site-specific development decisions that do not fit a council s aspirations for an area. If there is no guidance in a district plan about where growth is expected to occur, but policy exists that encourages intensification, then a council may find the Court applying the broad policy to either support or refuse growth in ways that differ from council expectations. The courts have demonstrated they are capable of applying broad policies with the assistance of Part 2 of the RMA and the expert evidence before them (Frasers Papamoa Ltd, DJ & DJ Holland and Others, Collingwood Trustees Ltd and Another v Tauranga City Council). The Court has recognised the effects of tall development on city aesthetics in a case where it determined that design criteria should have been applied to a building as a whole instead of limiting consideration solely to street level (Urban Auckland v Auckland City Council). 16 Review of Urban Design Case Law: New Zealand Urban Design Protocol

8 Movement findings The following cases were reviewed that included references to the subject of movement in an urban context: Canterbury Regional Council v Christchurch City Council (C169/02) Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208 Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd (W15/08) Landco Mt Wellington v Auckland City Council (A35/07) Roman Catholic Diocese of Auckland v Franklin District Council (W61/04) The National Trading Company of New Zealand v North Shore City Council (A182/02). Some cases also referenced other urban subjects and, accordingly, may or may not be referred to under those subjects. Each case is summarised in Appendix 1. This section focuses on vehicle and other movement, such as pedestrians, within urban areas. It is deliberately referred to as movement, rather than traffic, to recognise that good urban design provides choice in the ways in which people (and their goods) are able to move to and from their chosen destination. Such movement may be a commute but could also be for recreational purposes or for the enjoyment of going out for a walk. 8.1 Trip generation The Court has recognised that land use and vehicle trip generation is an important consideration in the location of new activities both at the scale of urban growth and the site of activities. In terms of new growth areas, the Court has found (Canterbury Regional Council v Waimakariri District Council) that it can be appropriate to locate a new urban growth node away from a regional centre if there is a level of self-reliance associated with the node (there were other benefits in that case as well). That is, a level of amenity and facilities, employment, day-to-day services and easy movement can be accommodated within the node. In Canterbury Regional Council v Christchurch City Council, the Court recognised it is important that any urban extension has an efficient level of connectivity to it. The Court found in this case that one potential growth area, though close to existing urban facilities as the crow flies, was inappropriate for urban expansion because the available roading connectivity was circuitous and thus inefficient. In another case (Roman Catholic Diocese of Auckland v Franklin District Council), the Court considered that locating a school equidistant between two urban centres was efficient in terms of trip generation because it meant both centres would have relatively equal access. Review of Urban Design Case Law: New Zealand Urban Design Protocol 17

8.2 Roads and their purpose Although traffic planning traditionally focuses on maintaining the efficiencies and functionality of the roading network, two of the cases reviewed recognised situations where this did not outweigh other considerations. In Landco Mt Wellington v Auckland City Council, the Court found it was favourable to locate additional housing within an existing urban area regardless of local traffic congestion issues. The Court considered that locating the additional houses within the existing urban area was preferable to siting them elsewhere in the district, particularly because the trip generation would have created other adverse effects. The Court also recognised in this case that the ideal of free-flowing roads was no longer a realistic aim in Auckland City. By contrast, in The National Trading Company of New Zealand v North Shore City Council, the Court upheld the North Shore City Council s decision not to allow a new traffic generator in a congested location. The basis for this decision was the existence of a district plan policy that recognised capacity issues with the existing roading network, along with associated provisions to control the establishment of some land uses adjacent to congested locations. 8.3 Emissions There are also cases where the Court has considered the way in which land uses generate movement trips and associated effects from vehicle emissions. At one end of the scale (Canterbury Regional Council v Waimakariri District Council), the Court found that even though a new town would not be entirely self-sufficient, and future residents would need to move elsewhere (by vehicle) for employment and some services, it was still acceptable. One of the grounds on which it was found to be acceptable was that longer trips did not necessarily equate to more adverse emissions because of warmer engine-running temperatures during longer trips and the capacity of the ambient air environment to cope with emissions further away from Christchurch. 8.4 Movement and amenity The Court has considered amenity associated with streets as places for people to walk or undertake other non-vehicular activities. In one case (Canterbury Regional Council v Waimakariri District Council), it balanced the effects of increased vehicle use associated with an out-of-centre residential development with the benefits of having streets and lanes designed to limit vehicle use and improve pedestrian amenity. The Court has also recognised pedestrian amenity as being important relative to other considerations. In one case, a policy was considered that intended pedestrian amenity to have prominence over vehicle movements. However, because it had not been properly incorporated into the district plan, all related references in the plan were found to be ineffective. But, clear evidence presented on the pedestrian values appreciated by the public enabled the Court to place considerable weight on pedestrian amenity (Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd). 18 Review of Urban Design Case Law: New Zealand Urban Design Protocol

9 Commerce findings The following cases were reviewed that included references to the subject of commerce in an urban context: Affco New Zealand Limited and Richmond Limited and Napier Sandblasting Limited v Napier City Council and Land Equity Group (W82/04) Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208 Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council (W47/05) Howick Ratepayers and Residents Association Inc v Manukau City Council (A167/04) The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council (C101/01). Some cases also referenced other urban subjects and, accordingly, may or may not be referred to under those subjects. Each case is summarised in Appendix 1. In terms of commerce, this section focuses on both business and retail activity types. Most of the case law, however, relates to larger retail activities rather than other urban forms of commerce, such as office, local centres or service-type activities. 9.1 Mixed use A common urban design objective is to provide for mixed-use urban areas, thereby increasing opportunities for people to work and play within the places they live. The mixed-use objective can be frustrated, however, if activities are separated into different zones because this tends to separate employment from residential or residential from commercial locations. Although examples exist where mixed-use approaches have been applied in the development of structure or strategic growth plans (eg, the cases of Canterbury Regional Council v Christchurch City Council), this is an emerging policy area and will require councils to introduce changes to ensure it is embedded into district plans. (Note: none of the cases studied in this review involved challenges to this type of approach.) 9.2 Enabling mixed use over time A major challenge to the future viability of mixed-use development, particularly in new growth areas, is the conditions that exist that support the establishment of commercial activities. Only one case was reviewed that is relevant to this issue: it involved a residential activity that was permitted to temporarily inhabit an area earmarked for future commercial usage (Canterbury Regional Council v Waimakariri District Council). Here, the Court allowed residential activity to establish on the ground floor of the future town centre block until such time as sufficient growth had occurred to support it being used for commercial purposes. Review of Urban Design Case Law: New Zealand Urban Design Protocol 19

9.3 Commercial character The interrelationships between activities with different characters have been considered by the courts, and could be seen as a commerce consideration. In one case (Affco New Zealand Limited and Richmond Limited and Napier Sandblasting Limited v Napier City Council and Land Equity Group), maintaining an area s existing industrial character, given a perceived scarcity of industrial land, was considered important and sufficient enough to disallow a retail development to establish there. In this case, it had been identified there was a shortage of industrial land; hence the Court considered the introduction of a new retail development within the existing industrial area would adversely affect the area s ability to retain and attract industrial activity. Even though the addition of retail may have increased mixed-use opportunities, the empirical data on alternative industrial activities within the overall urban area clearly overrode any potential mixed-use benefits. 9.4 Trade competition Case law frequently focuses on trade competition issues. In one of the cases reviewed, the Supreme Court held that a normal level of trade competition will always occur within and between urban areas (Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council). Where competition is at a normal level, considerations are not given weight. But, where the commercial effect is beyond normal competitive levels, such as might arise when a new regional shopping centre is proposed outside a traditional town centre, the courts may then consider these effects. 9.5 Large-format retail The Environment Court encourages councils to maintain up-to-date plans. This assists the Court when it is considering cases involving urban environments and the changing nature of activities that occur within them. There are cases where non-provision in district plans for large-format retail activities has been considered an insufficient reason to disallow such activities. Where no provisions exist such activities tend, by default, to be located on large sites that are peripheral to urban areas by default (The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council). To address this situation, it would be useful for councils to identify the types of environment they are seeking to create and maintain, and ensure adequate provision is made in their plans to manage the mix of activities likely to occur within these environments. (Note: no case was considered in this review that provides the basis for a council to completely prevent large-format activities from establishing within or on the periphery of urban areas.) 20 Review of Urban Design Case Law: New Zealand Urban Design Protocol