DECISION OF THE QUEENSTOWN LAKES DISTRICT COUNCIL RESOURCE MANAGEMENT ACT 1991 Applicant: RM reference: Location: Proposal: Flax Trust (Mr F van Brandenburg) RM150185 Birchwood Road Wakatipu Basin Application under Section 127 of the Resource Management Act 1991 (RMA) to change Condition 1 of the RM130766 to enable the construction of an earth mound that is greater in height and volume than approved (Northern Mound) Legal Description: Zoning: Activity Status: Lot 2 Deposited Plan 359067 held in Computer Freehold Register 240689 and Lot 3 DP 359067 contained in Computer Freehold Register 240690. Rural General Discretionary Notification Date: 10 August 2015 Commissioner: Commissioner Clarke Date: 14 January 2016 Decision: The application be DECLINED
Under the Resource Management Act 1991 IN THE MATTER OF an application by Flax Trust to the Queenstown Lakes District Council to change condition 1 of RM130766 to enable the construction of an earth mound that is greater in height and volume than approved. An application for land use consent is also sought to enable a greater volume and height of earthworks to be undertaken than that approved by RM130766. Council File: RM150185 DECISION OF DAVID CLARKE HEARING COMMISSIONER APPOINTED PURSUANT TO SECTION 34A OF THE ACT Introduction and Proposal 1. A description of the proposal is clearly laid out in the application and in the reporting planner s s42a report. I use these documents in my description of the proposal to avoid repetition. It should be noted that the application only concerns the northern mound created on the site. A separate application has been lodged for the southern mounds. 2. The site is legally described as Lot 2, DP359067 and Lot 3, DP359067. The site is accessed off Birchwood Road via Domain Road which is located approximately 700 metres south-east of the intersection with Speargrass Flat and Littles Roads, Queenstown. 3. The site has had extensive earthworks undertaken on it. These earthworks form access, ponds and mounds. The eastern and southern boundaries are defined by post and wire fences while shelterbelt plantings of various heights have been established within adjoining properties along all common boundaries. 4. Consent (retrospective) is sought to change the design and height of an approved mitigation earth mound (to the north) associated with the subdivision approved by Resource Consent RM120327. It is proposed to achieve this by changing Condition 1 of resource consent RM130766 (which approved earthworks on the site) to approve new plans which detail a mound of greater height than previously approved. 5. The earthworks have since been undertaken, however not in accordance with the RM130766 earthworks plan. The north-western mound that was approved at a height of 2.7m above the original ground level has been constructed to a height of approximately 5.17m. 6. Resource consent is sought to consent the constructed northern earth mound at the current design and height (being a maximum of 5.17m above the original ground level). The applicant has advised that the proposed mound design will require an additional volume of 2,147m 3 of earthworks to be undertaken.
7. The applicant has also confirmed that the landscaping required to be planted on the site by RM120327 will still be implemented. Procedural Matters Scope 8. The reporting planner has concluded that the application was able to be processed as a condition variation under s127 of the RMA. She concluded that the proposal will not substantially alter the scope of the underlying consent RM130766. This consent sought to undertake a subdivision along with associated earthworks which included earth mounds. I concur with this view. Submitter s timeframes 9. The objection of Speargrass Holdings Limited was lodged via e-mail, 3 working days outside the timeframe. The council has the ability, pursuant to s37 and s37a of the Resource Management Act, to accept late objections. This can be done at an officer level. The consultant reporting planner recommended accepting the late submission, noting that the applicant would not be prejudiced as the matters of primary concern were raised by the other submitter, and that the time extension would not impact on the interests of the community in achieving adequate assessment of the proposed activity or result in any unreasonable delay. 10. I accept the planner s recommendation and the late submission is therefore received and considered. Recommendation of the Reporting Planner 11. I was pre-circulated with the reporting planner s s42a report. 12. The recommendation of the reporting planner was that the application be refused for the following reasons: The proposal does not promote the overall purposes of the Act. The adverse effects will be more than minor. The proposal is inconsistent with a number of objectives and policies of the Operative District Plan, Plan Change 49 and the Proposed District Plan. Notification and Submissions 13. The application was notified on a limited basis on 10 August 2015 to 3 neighbours to the immediate north of the subject site. Two submissions were received in opposition. Issues Raised in Submissions 14. One submission in opposition was from Jean Francois Tarquet who resides at 76 Speargrass Flat Road to the north of the subject site. His submission related to earthworks in general on the applicants site and the adverse effects of the construction. I have not considered this in my decision. He also submitted that the best form of screening between the subject property and the submitters property would be by planting as originally proposed and this does form part of my consideration.
15. The second submission in opposition was from Speargrass Holdings Limited. The owners of this property at 88 Speargrass Flat Road have begun construction of a new dwelling and associated buildings. This property is also situated to the north of the applicant s site. This submission states that the earthworks have been created illegally and that the mounds are inappropriate, contrary to the objectives and policies of the District Plan and will have adverse effects that are more than minor. They ask that the application be declined and that the earth walls are reshaped to comply with decision RM130766. Planning History 16. There are a number of previous decisions that are relevant to this application: RM120327 heard in November 2012, granted the eight allotment subdivision that is the subject site. The application came up with two configuration options for the subdivision. (Option A and B) Condition 12 of RM120327required that a landscape plan be submitted to Council s Principal Landscape Architect. The purpose of the condition was to provide screening that appropriately mitigated the visual effects of future dwellings from neighbours, provide internal privacy and amenity for future occupants of the sub-division, provide a green frontage to Birchwood Road, provide for the formation of a walkway adjacent to the site s eastern boundary and it also sought to create a landscape treatment that was compatible with the landscaping already undertaken on surrounding sites. How this was to be achieved was outlined in 6 bullet points as follows: 1) Provide landscape screening that appropriately mitigates potential visual effects of future dwellings within the residential building platforms as viewed from the immediately neighbouring dwellings or building platforms to the east, north-east, west and south of Lots1-8 by using landscape measures that are within Lots 1-8 themselves. This landscape treatment may take the form of clumps and stands of planting or other measures including mounding. 2) Provide privacy and amenity for future occupant of Lots 1-8. Given that fencing is not permitted, planting and/or landforms shall be used to delineate spaces around the residential platforms in an informal way to achieve an overall park-like setting. 3) Provide in the context of Option B only for an internal area of open character that is centred on the proposed common lot. This will require some space within Lots1-8 to contribute to this open character area. This area is envisaged as providing some village green, common open space purpose, and to provide some aggregated open land that brings relief from enclosure. 4) Provide an attractive, green frontage to Birchwood Road. The proposed mounding in this area should be finished in gentle, naturalistic grades. Tree planting should combine with the proposed mounding to filter and partially screen visibility of future dwellings but need not necessarily take the form of hedgerow type planting.
5) Provide for the formation of a walkway adjacent to the site s eastern boundary within the existing pedestrian right of way easement. Planting and landscape treatment in this part of the site shall provide a pleasant amenity for walkway users and provide some privacy for future dwelling occupiers, although complete screening is not envisaged. 6) While it is recognised that the sites that surround the subject sites are somewhat disparate in terms of their style of landscape treatment, the landscape design for the subject sites is to seek to coordinate and accord with these surrounding sites as much as is practicable. This coordination may take the form of some continuity in the layout, species or colour of plantings. Two landscaping options were proposed. Option A and Option B. The applicant has chosen to proceed with Option A. RM130766 was granted non-notified in January 2014 to undertake earthworks relating to RM120327 Option A. This allowed consent for 43,000m³ of earthworks over an area of 51,500 m². The consented maximum height of the mound located in the north western corner of the subject site was 2.7 metres. The application for this consent specifically noted 2.7m as the maximum height and the plans submitted identified this. The 2.7m maximum height is recorded in the decision and in the attached engineering report. Planning Framework 17. Resource Consent is required for the proposal for the following: RESOURCE MANAGEMENT ACT 1991 A discretionary activity resource consent pursuant to section 127(3)(a) of the RMA, which deems any application to change or cancel consent conditions to be a discretionary activity. It is proposed to change Condition 1 (development to be in accordance with the approved plans) of Resource Consent RM130766 to enable an amended design for the north-western earth mound. 18. Overall, the application is considered to be a discretionary activity. 19. The application is not affected by provisions of Plan Change 49 (Earthworks) and the Proposed District Plan (notified on the 26 August 2015). The Hearing 20. The hearing was convened in Queenstown on Wednesday 2 December 2015. The applicant, Mr van Brandenburg presented his evidence supported by his son. 21. In attendance from the Queenstown Lakes District Council (QLDC), was Ms Anita Vanstone, the reporting planner and Ms Helen Mellsop, consultant landscape architect. Mr John Edmonds a planning consultant presented a submission on behalf of Speargrass Holdings Limited. 22. I am familiar with the site, having undertaken a site visit where I walked around the n both the applicants land and Speargrass Holdings land. I have read the relevant information attached to the application.
23. At the conclusion of the hearing, I reserved the decision while I sought some additional information. The last of this information was received on 14 December and is discussed later in the decision. Assessment 24. In terms of assessment the application needs to be considered in terms of: Effects on the environment District Plan Provisions Part 2 of the RMA Landscape Category 25. It was agreed by all parties that the subject site in within an Other Rural Landscape (ORL). Assessment Effects on the Environment 26. Because the application is a retrospective consent, the additional earthworks sought have already been established. This does have the benefit of being able to assess the actual effects of the increased mounding. 27. Limited public views are available from outside the site due to its location away from public roads and public places and because other mounding has already been created. There will be some views from Birchwood Road and the proposed walking access on the eastern boundary of the site. The mound however is very visible from properties to the north and northwest 28. Ms Vanstone in her s42a report noted that because the development is occurring in an ORL landscape any assessment is: More concerned with the effects of development on adjacent neighbours and promotes developments that are complementary and sympathetic in form and topography of neighbouring properties 1 29. As this ORL zone is intensified, it is not necessary or expected that all views of other dwellings will be eliminated when viewed from any one site. Development in this area is becoming more akin to the rural lifestyle/residential zones where there is an expectation you will see glimpses of neighbours dwellings screened by plantings, and in this case, naturalistic mounding. 30. Condition 12 of RM120327 is integral to this decision. In terms of planting and mounding, its intent (noted in bullet point 1 above) was to mitigate the visual effects of future dwellings that were to be built on the Flax Trust subdivision Lots 1-8), thus protecting immediate neighbours outside of the subdivision. The effect of any screening would obviously work in both directions, but Mr van Brandenburg places too much emphasis on role of the mounds removing views of all other dwellings outside the Flax Trust site. 1 Reporting planner s s42a report. Agenda p12
31. Similarly planting and mounding proposed internally on the Flax Trust land, was to provide privacy and amenity (noted in bullet point 2) for the future occupants of Lot 1-8. Once again it is recognised that this works both ways but the mounding and planting was not to be established for the exclusive benefit of the Flax Trust subdivision. 32. I find that Mr van Brandenburg also overstates the loss of privacy that is going to be created by the proposed Meehan dwelling (Speargrass Trust Limited). There may be some loss of privacy initially until planting is established, but from the plans presented, most of the view shafts, living spaces and outdoor recreating that will occur at the Meehan house, will be to the north, facing away from the Flax Trust subdivision. 33. The earth mound that has been constructed and for which consent is sought, clearly blocks the present construction (the barn) on the Meehan property when viewed from Lot 2 of the Flax Trust land, but as you move back towards the south of the Flax Trust subdivision you will see views of Meehan house, albeit from a greater distance. This is unavoidable. 34. In decision RM120327 Commissioners Whitney and Cocks considered the landscaping proposed (vegetation and mounding) to be consistent with what has occurred on the neighbouring sites of Palmer and Reflections. Bullet point 6 of condition 12 sought a co-ordinated approach with the landscaping treatment of these neighbouring properties. The proposed mound is now inconsistent with this approach. 35. In decision RM130766, Consultant Landscape Architect Michelle Snodgrass supported the proposed earthworks that would be implemented to satisfy Condition 12 of RM120327 stating the variation in heights of the mounding and breaks in it will allow the occasional view into the development, avoiding any tendency to a fortress like, and completely enclosing landform. 36. Clearly, this was the expectation of all parties as to what would be established but in seeking to eliminate views of a neighbouring dwelling, a much higher mound has been created. 37. In her landscape report for this application, Ms Mellsop clearly has concerns about the effects of the northern mound, both on the Flax Trust s Lot 2, but also on the neighbour directly to the north (Speargrass Trust Limited- Meehan). While she considers the mound achieves the screening effect sought by the applicant, she also considers the lots on both sides of the mound will be adversely affected in terms of amenity and views. The mound creates what Ms Snodgrass was keen to avoid and that is a fortress. 38. I agree with Ms Mellsop when she states: The higher mounding on the northern boundary would fulfil the objective of screening a future dwelling on Lot 2 RM120327 from the neighbouring properties to the north. It would also provide privacy for future occupants of Lot 2. However the amenity of the of the lot would be reduced by the high mounding, which forms a wall of earth directly north of the building platform on the lot and restricts views out to the wider landscape.. In my assessment the increased height of the mound and its proximity to the boundary mean that it would significantly detract from the rural amenities of the neighbouring sites to the north (Lots 3 and 4 DP441466) While boundary planting on lot 3
DP441466 would over time partially screen the mound, the landform would remain a visually dominating wall up to 5.5 metres in height and would obscure views south towards the Remarkables and Ferry Hill 2 39. The question must be asked- what has the greater effect in terms of amenity on Flax Trust s Lot 2, a high wall of earth to the north of or glimpses of a neighbouring house viewed through planting? 40. I reject Mr Geddes submission in the application as notified, when he stated: and further: The previous earthworks approved under RM130766 were considered to offer significant landscape amenity to the site and the surrounding area. The proposed works are considered to further this amenity upon the site and the surrounding areas. any adverse effects upon the visual amenity of the site or the surrounding area are considered to be de minimus 3 41. Mr van Brandenburg expressed concerns about how two consents relating to the Meehan land were processed (RM 110186 and RM 110820- limited notification and non-notified). 42. Similarly Mr Meehan had concerns about how the consent relating to the Flax Trust earthworks RM130766 was processed (non-notified). While I have read these decisions, the question of how they were processed is irrelevant to this hearing and my decision. Some conditions of consent that arise from the above decisions do however have relevance and they relate to mounding and planting. 43. Mr van Brandenburg stated at the hearing that he disliked the northern mound as it has now been constructed, but stated he was moved to raise the height of the mound after seeing building had begun on a dwelling on the Meehan property. He stated that he was unaware that the building platform had been changed via decision RM110820 and that buildings were going to be 8 metres in height and closer to his northern boundary than anticipated. He took the action to maintain what he saw were the intentions Condition 12, being screening and privacy. This has already been addressed above. 44. Mr van Brandenburg also stated that as part of the landscaping plan for RM110820, Mr Meehan was required to plant a number of Cedrus Deodara trees to help mitigate the change in the building platform and the visibility of the Meehan buildings from the Flax Trust development and other adjacent properties. He stated this had not been undertaken and was a requirement before any Meehan building began on the site. 45. I considered this to be a valid submission as it relates to this application, as the planting of the Cedrus Deodara trees will help with screening the Meehan development combined with the mounding and planting required as part of the Flax Trust development. 2 Helen Mellsop Consultant Landscape Architects Report.p99 of the agenda 3 Clark Fortune McDonald application p125 of the agenda
46. At the conclusion of the hearing I sought additional information via Ms Vanstone relating to the status of this planting. Ms Vanstone sent an email to me on December 10 which stated the following: I visited Mr and Mrs Meehan s property on the 9 December 2015 at 10am. I confirm that the Cedar Deodara have not been planted, which is contrary to the requirements of Condition 12 of RM110820 (Approved landscape plans attached for your information). This condition states: The landscaping shown on the approved planting plans under Condition 1 shall be implemented within the first planting season of following commencement of construction on site, and the plants shall thereafter be maintained and irrigated in accordance with that plan. If any plant or tree should die or become diseased it shall be replaced within the next available planting season. It would appear that all other planting required in RM110820 has been planted. Mr and Mrs Meehan have agreed to plant the Cedar Deodara trees by the 31 January 2016. I have asked Mr and Mrs Meehan to confirm when this planting has taken place and I will monitor this early February. 47. I accept this assurance that the planting will be undertaken and note that significant planting of other trees and shrubs has already been undertaken. 48. I am not convinced by Mr van Brandenburg s submission, including the use of a scale model at the hearing, that because the Cedrus Deodara and other plantings on the Meehan side will ultimately hide much of the mound, then this mounding should stay in place until the planting grows up, upon which time he would remove it. 49. I agree with Mr Meehan s submission that this would create a precedent that overrides a condition of consent and the reason why it was put in place. 50. I find that the consented mound with established plantings, coupled the planted trees on the Meehan side will afford glimpses of the landscape beyond for all parties while maintaining the intended level of screening and privacy. 51. In terms of engineering considerations, a brief memo from the Council s engineer Mr Richard Flitton, stated he was satisfied, based on the revised plans, that the existing engineering conditions were appropriate and adequate for the higher and steeper mound. His proviso was an additional condition stating that: No permanent batter slope within the site shall be formed at a gradient that exceeds 1:1 4 52. I am not sure if Mr Flitton undertook a site visit and while clearly this is not my field of expertise, I would imagine the steepness of the mound would make it prone to scouring in heavy rain events. While not an engineering consideration, the steepness of the mound would certainly make it hard to maintain in terms of noxious weed control and plant maintenance. 53. At the conclusion of the hearing I also sought to establish the as-built dimensions of the mound, as there was some confusion as to the information contained in Figure 3 of the agenda (cross section drawings) compared to what has actually been 4 Engineer s report p 94 of the agenda
constructed. I was interested to know the exact heights across the mound and asked the following: Regarding the height of the berm/mound I am still somewhat confused. Are you saying the height of the berm Mr van Brandenburg referred to in the hearing (via a cross section) is the maximum height of the berm (4.5 metres) or just a cross section at a particular point. What I want established is the height of the berm at its highest point, because from my eye (which is reasonably experienced) it seemed to me the berm had a reasonably universal height over much of its length that looked to be over 5 metres. Can you get Mr Geddes to confirm this and if he is not able to do so, can someone else do it? 54. Mr Geddes of Clark Fortune McDonald responded in an email on 14 December 2015. You ask to confirm if the attached plan is an accurate representation of the mound which is not easy as the attachment contains three drawings; One topographical drawing of the mound approved in RM130766, one drawing of a cross section (Section A) and one drawing of a long section (Section B). I would suggest the most accurate representation of the mound is depicted by Long Section Drawing (Section B) of the second sheet. 55. Two plans were submitted to me in response. One was a topographical map of the mound as approved by RM130766 and the other was the same cross sections already provided in the agenda. Both had been drawn in January and April 2015 and were not what I was seeking. In the absence of an accurate plan as to what has been built and therefore what is sought as a variation, I am left to conclude that the highest point of the mound is 5.17 metres and that this maximum height extends across a larger area than what has been proposed in the application. District Plan Considerations (Operative and Proposed) 56. I am required to consider the application in terms of the relevant provisions of the Operative and Proposed District Plan, and the Regional Plan and Policy Statement Operative District Plan (ODP) 57. There are a number of objectives and policies in the ODP to be considered in relation to the application. They relate to Part 4 (District Wide issues) and Part 5 (Rural Areas) Part 4 (District Wide Issues) 4.2 Landscape and Visual Values 58. Objective 4.2.5: Subdivision, use and development being undertaken in the District in a manner which avoids, remedies or mitigates adverse effects on landscape and visual amenity values. 1 Future Developments
(a) To avoid, remedy or mitigate the adverse effects of development and/or subdivision in those areas of the District where the landscape and visual amenity values are vulnerable to degradation. (b) To encourage development and/or subdivision to occur in those areas of the District with greater potential to absorb change without detraction from landscape and visual amenity values. (c) To ensure subdivision and/or development harmonises with local topography and ecological systems and other nature conservation values as far as possible. 59. Although it has been established that the subject site is in an ORL landscape it still has considerable landscape and visual amenity values that need to be protected. The application is contrary to the above objective and policies as it does not protect landscape and amenity values and creates a mound that does not harmonise with the local topography. While it is accepted the underlying landscape is flat and any undulations that have been created in this area are largely man made, there is an acceptance among landscape architects and plannners as to what constitutes mounding that is harmonious with local topography. There is also a desire to make the mounding that has been created consistent and the proposal does not achieve this. Consequently the mound creates adverse effects on neighbours that detract from their landscape and visual amenity values. 60. Policy 8 concerns cumulative effects and states : 8 Avoiding Cumulative Degradation (a) To ensure that the density of subdivision and development does not increase to a point where the benefits of further planting and building are outweighed by the adverse effect on landscape values of over domestication of the landscape. (b) To encourage comprehensive and sympathetic development of rural areas. 61. Decision RM130766 supported the above objective and policy. What is now proposed does not constitute comprehensive and consistent development in this area and is therefore contrary to policy (b) above. Earthworks 62. Objective 4.11.3 and associated policies seek to avoid, remedy or mitigate the adverse effects from earthworks on water quality, landforms, land stability and flood potential, the amenity values of neighbouring properties, and cultural heritage sites. 63. Decision RM130766 was consistent with the above objectives and policies but the proposal is not. Although I have concerns about the stability of the mound as it has now been created, the council s engineer does not have any issues and I accept that. The earthworks do however have adverse effects on neighbours and any future owner of Flax Trusts Lot 2. Part 5 Rural Areas 64. I agree with the reporting planner that the objective and policies below are relevant to the application Objective 5.2.1 Character and Landscape Value
To protect the character and landscape value of the rural area by promoting sustainable management of natural and physical resources and the control of adverse effects caused through inappropriate activities. Policies: 1.1 Consider fully the district wide landscape objectives and policies when considering subdivision use and development in the Rural General Zone. 1.2 Allow for the establishment of a range of activities, which utilise the soil resource of the rural area in a sustainable manner. 1.3 Ensure land with potential value for rural productive activities is not compromised by the inappropriate location of other developments and buildings. 1.4 Ensure activities not based on the rural resources of the area occur only where the character of the rural area will not be adversely impacted. 1.5 Provide for a range of buildings allied to rural productive activity and worker accommodation. 1.6 Avoid, remedy or mitigate adverse effects of development on the landscape values of the District. 1.7 Preserve the visual coherence of the landscape by ensuring all structures are to be located in areas with the potential to absorb change. 1.8 Avoid, remedy or mitigate the adverse effects of the location of structures and water tanks on skylines, ridges, hills and prominent slopes. 65. I find the proposal is contrary to policy 1.6 above for reasons already outlined Objective 3 - Rural Amenity Avoiding, remedying or mitigating adverse effects of activities on rural amenity. Policies: 3.2 Ensure a wide range of rural land uses and land management practices can be undertaken in the rural areas without increased potential for the loss of rural amenity values. 3.3 To avoid, remedy or mitigate adverse effects of activities located in rural areas. 66. I find the proposal is contrary to the above objective and policies. 67. In summary the proposal is not consistent with a number of objectives and policies in the Operative District Plan. Plan Change 49- Earthworks 68. Plan Change 49 also needs to be taken into consideration as some objectives and policies contained within this Plan Change are relevant to the proposal. Objective 1 Earthworks and Environmental Effects
Enable earthworks that are part of subdivision, development, and access, provided that they are undertaken in a manner that avoids adverse effects on communities and the natural environment. Policy: 1.1 Promote earthworks designed to be sympathetic to natural topography where practicable and provide safe and stable building sites and access with suitable gradients. 69. The proposal does not create earthworks that are sympathetic to natural topography. Objective 2 - Visual Amenity values - Avoid, remedy or mitigate the adverse effects of earthworks on rural landscapes and visual amenity areas. 2.3 Ensure cuts and batters are sympathetic to the line and form of the landscape. 70. The proposal creates a mound that is not sympathetic to the line and form of the landscape. 71. Although Pan Change 49 has been appealed the points of contention are not related to issues raised in the application. I agree with Ms Vanstone that weighting can be given to Plan Change 49 Proposed District Plan (PDP) 72. The Queenstown Lakes District Council publically notified its Proposed District Plan on the 26 August 2015. 73. The subject site is located in the Rural Lifestyle Zone of the PDP. This zone has a number of objectives and policies. Chapter 22 Rural Residential & Rural Lifestyle 22.2.1 Objective - Maintain and enhance the district s landscape quality, character and visual amenity values while enabling rural living opportunities in areas that can avoid detracting from those landscapes. 22.2.1.5 Maintain and enhance landscape values by controlling the colour, scale, location and height of permitted buildings and in certain locations or circumstances require landscaping and vegetation controls. 74. I find that the proposal is not consistent with the objective and policy above. The districts landscape with be degraded rather than enhanced by the proposal. 75. In summary the proposal is contrary to a number of Objectives and Policies in the Operative District Plan, the Proposed District Plan and Plan Change 49 Part 2 of the Resource Management Act 1991 76. Section 5 outlines the purpose of the Act:
(1) The purpose of the Act is to promote the sustainable management of natural and physical resources. (2) Sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while (a) (b) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment. 77. I find that the proposal is contrary to section 5 in that it does not promote sustainable management of natural and physical resources and does not avoid, remedy or mitigate adverse effects on the environment. 78. Regard must also be given to Section 7 of the Act-Other Matters (b) (c) (f) The efficient use and development of natural and physical resources The maintenance and enhancement of amenity values Maintenance and enhancement of the quality of the environment. 79. I find for the reasons already stated, that the proposal is contrary to (c) and (f) above. It does not maintain and enhance amenity values and it does not maintain and enhance the quality of the environment. Both are compromised by the high, unnaturally contoured mound. 80. I find that the proposal is contrary to the purposes and principles of the Act. Decision 81. Mr Edmonds in his submission said the hearing was about a dispute between two neighbours and to some extent it is. This is evident after reading the e mail exchange between the parties that was included as part of the agenda. 82. In planning terms however it is about considering conditions of consent that have been implemented to mitigate the effects of the underlying Flax Trust subdivision. 83. The applicant instructed contractors to undertake earthworks that were not consented and now seeks to ratify this retrospectively. Whilst understanding the motives for doing this, the mound that has been created is not only inconsistent with condition 12 of RM120327, but it has significant adverse effects on the neighbour to the north (Meehan) and to a lesser extent the neighbours to the North West. The proposal is inconsistent with a number of objectives and policies of the Operative District Plan, Plan Change 49, the Proposed District Plan and Part 2 of the RMA.
The proposal does not align with the intent of condition 12 of decision RM120327 or the intent of Decision RM130766. The proposed mound is inconsistent with the landscaping treatment in the Palmer and Reflections subdivisions, when it was required to be consistent with them. The proposed mound creates a fortress like effect when viewed from the Meehan land to the north and from Lot 2 of the Flax Trust land. It is not natural in appearance and will be difficult to maintain. The proposal is contrary to the purposes and principles of the Resource Management Act 1991. 84. For the reasons outlined in this decision, the application by Flax Trust is DECLINED pursuant to Section 104 of the Resource Management Act 1991. It is my recommendation that the mound should be reinstated as per consent RM130766. Dated 14 January 2016 David Clarke Independent Hearing Commissioner