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Appendix 1: Case law summaries

Index	Scale	Subject
Affco New Zealand Limited and Richmond Limited and Napier Sandblasting Limited v Napier City Council and Land Equity Group (W82/04)	Building, Precinct/area, Town/city	Amenity, Character, Movement, Commerce
Canterbury Regional Council v Christchurch City Council (C169/02)	Precinct/area, Town/city	Density, Movement, Urban growth
Canterbury Regional Council v Christchurch City Council (C61/06 and C105/06)	Precinct/area, Town/city	Density, Movement, Urban growth
Canterbury Regional Council v Selwyn District Council [1997] NZRMA 25	Building, Town/city	Density, Urban growth
Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208	Town/city, District, Regional	Heritage, Movement, Commerce, Urban growth
Christchurch Civic Trust v Christchurch City Council (C82/05)	Precinct/area	Character, Heritage, Density
Duxton Hotel Wellington v Wellington City Council (W21/05)	Building, Town/city	Amenity, Heritage, Density
Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council (W47/05)	Building, Precinct/area	Amenity, Character, Heritage, Commerce,
Foot v Wellington City Council (W73/98)	Building, Precinct/area	Amenity, Character, Density
Frasers Papamoa Ltd and Others v Tauranga City Council (W90/07)	Precinct/area, Town/city	Density, Movement, Urban growth
Howick Ratepayers and Residents Association Inc v Manukau City Council (A167/04)	Building, Precinct/area	Amenity, Character, Heritage, Commerce
Inner City East Neighbourhood Group v Christchurch City Council (C14/06)	Precinct/area	Amenity, Open space
Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd (W15/08)	Building, Precinct/area, Town/city	Amenity, Character, Heritage, Movement, Open space
Landco Mt Wellington v Auckland City Council (A35/07)	Precinct/area, Town/city	Density, Movement, Commerce, Urban growth, Open space
Mitchell v Waitakere City Council (A21/00)	Precinct/area	Density, Urban growth, Open space
North Shore City Council v Auckland Regional Council [1997] NZRMA 59	District	Amenity, Character, Urban growth, Open space
Omaha Beach Residents Society Inc v Ocean Management Ltd (CIV-207-404-2539) (High Court, 6 September 2007)	Building, Precinct/area	Character, Density, Open space
Pick v Far North District Council (A64/06)	Precinct/area	Amenity, Heritage,
Roman Catholic Diocese of Auckland v Franklyn District Council W61/04; W18/07 and Runciman Rural Protection Soc v Franklin District Council [2006] NZRMA 278	Precinct/area, Town/city	Amenity, Character, Movement, Urban growth
The National Trading Company of New Zealand v North Shore City Council (A182/02)	Precinct/area,	Movement, Commerce
The Warehouse Ltd and Foodstuffs (South Island) v Dunedin City Council (C101/01)	Building, Town/city	Character, Heritage, Commerce
Urban Auckland – Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2005] NZRMA 155 (High Court)	Building,	Amenity, Character, Density
Wilbow Corporation (NZ) Ltd v North Shore City Council (A152/01)	Precinct/area, Town/city	Density, Urban growth

Note: The above table highlights all urban subjects referenced by the listed cases. The shading reflects the terms highlighted in black in the first two columns of the summaries that follow, but not necessarily their mention in preceding chapters. Cases are listed in alphabetical order, and subjects in the order of Chapters 4-11.

Affco New Zealand Limited and Others v Napier City Council and Land Equity Group (A82/04)

Subject	Scale	Policy context	Summary
Amenity Character Movement Commerce	Building Precinct/area Town/city	Urban design rules/policy absent	This related to consent appeals against the Napier City Council’s decision to grant consent for a Large Format Retail (LFR) centre on an ex-woolhouse site zoned Industrial. Key issues included traffic effects, reverse sensitivity and sustainability of the industrial land resource. On traffic matters, the Environment Court observed that forecasting traffic generation is not a precise science, and it is unhelpful to focus on any particular traffic statistic. Rather, looking at the roading infrastructure in the round, the Court observed that roads are not an end unto themselves but there to serve the traffic that requires to use them. It concluded the evidence disclosed few irresolvable traffic issues. The Court found there was no evidence that noise-related sensitivities would arise from the retail activity and that odour-related sensitivities had not, historically, been a problem between the established industrial activities and their non-industrial near neighbours. It concluded there was a possibility of reverse sensitivity from the LFR proposal but on its own this would not warrant declining consent. The major issue was a perceived shortage of available industrial land. The Court found that the loss of this site to a LFR activity could not promote sustainable management of such a scarce resource, observing that retail activity – unlike noxious industry – might have alternative location opportunities. It observed that while the RMA is permissive, plans allocate zones in recognition of the likely effects of types of activities and the zoning in this instance intended to preserve an industrial character that could sustain industrial needs. The Napier City Council’s decision was not upheld, and consent was declined.

Subject

Scale

Policy context

Summary

Amenity
Character
Movement
Commerce

Building
Precinct/area
Town/city

Urban design rules/policy absent

This related to consent appeals against the Napier City Council’s decision to grant consent for a Large Format Retail (LFR) centre on an ex-woolhouse site zoned Industrial.

Key issues included traffic effects, reverse sensitivity and sustainability of the industrial land resource.
On traffic matters, the Environment Court observed that forecasting traffic generation is not a precise science, and it is unhelpful to focus on any particular traffic statistic. Rather, looking at the roading infrastructure in the round, the Court observed that roads are not an end unto themselves but there to serve the traffic that requires to use them. It concluded the evidence disclosed few irresolvable traffic issues.

The Court found there was no evidence that noise-related sensitivities would arise from the retail activity and that odour-related sensitivities had not, historically, been a problem between the established industrial activities and their non-industrial near neighbours. It concluded there was a possibility of reverse sensitivity from the LFR proposal but on its own this would not warrant declining consent.

The major issue was a perceived shortage of available industrial land. The Court found that the loss of this site to a LFR activity could not promote sustainable management of such a scarce resource, observing that retail activity – unlike noxious industry – might have alternative location opportunities. It observed that while the RMA is permissive, plans allocate zones in recognition of the likely effects of types of activities and the zoning in this instance intended to preserve an industrial character that could sustain industrial needs.

The Napier City Council’s decision was not upheld, and consent was declined.

Canterbury Regional Council v Christchurch City Council (C169/02)

Subject	Scale	Policy context	Summary
Density Movement Urban growth	Building Precinct/area Town/city District Regional	Urban design rules/policy present	This case concerned proposed residential zonings of three blocks of ‘greenfield’ land (referred to as Enterprise, PPC and Yaldhurst) on the periphery of Christchurch at Yaldhurst/Masham. The Environment Court held that the ‘Enterprise’ block should not be residentially zoned, because it would not achieve the City Plan objectives and policies on urban consolidation. In particular, the Court found the proposed zoning would promote a dispersed and uncoordinated pattern of development by: failing to shorten private car trips by locating housing close to employment, schools and business areas; failing to increase population density; and failing to enable coordinated development because of a rule that prevented half the land being developed in an attempt to prevent traffic congestion. The Court also found the re-zoning would not meet transport policies aimed at encouraging viable alternatives to car transport. It concluded the re-zoning was inefficient because it failed to adequately satisfy the urban growth and transport policies, and would create the kind of uncoordinated development that was being discouraged in the City Plan. The Court did not have the same concerns about the ‘PPC’ block. Here, it upheld the re-zoning. It considered that almost all of the relevant urban growth policies would be complied with. For the ‘Yaldhurst’ block, the Court concluded that re-zoning might be appropriate, but only if it incorporated improved controls, including proper integration into a larger and more sustainable urban structure. It also concluded that, in order to exercise powers to make appropriate changes to the City Plan (section 293 of the RMA), a fresh application would be required.

Canterbury Regional Council v Christchurch City Council (C61/06 and C105/06)

Subject	Scale	Policy context	Summary
Density Movement Urban growth	Precinct/area Town/city	Urban design rules/policy absent	The landowners of the Yaldhurst block (refer previous case) applied to the Environment Court under section 293 of the RMA for changes to be made to the proposed plan. The owners cooperated closely with the Christchurch City Council and Transit New Zealand to create a development plan for the block. The plan sought to promote a wide range of low-to-high residential densities based on recognised urban design principles. These principles included provision for public and pedestrian transport within a comprehensive open space network, and an integrated approach to the treatment of surface water run-off. The development plan also supported retail and local community service activities and provided for the integration of development in differing ownerships to ensure key infrastructure and density objectives would be achieved. The Court held (in C61/06 and C105/06) that the comprehensive development plan achieved the consolidation objectives of the district plan and affirmed the insertion of the new ‘Living G (Yaldhurst) Zone’.

Canterbury Regional Council v Selwyn District Council [1997] NZRMA 25

Subject	Scale	Policy context	Summary
Density Urban growth	Building Town/city	Urban design rules/policy absent	This case involved a plan change to enable residential development on 7 ha of land adjoining the outskirts of Lincoln, Canterbury. The central issue concerned protection of land versatility. The Environment Court found evidence of growth in demand for residential activity, with only two to seven years of suitably zoned land available to meet this demand (partly because of resistance to infill/intensification). It found that the removal of this land from productivity would not affect the ability of future generations to feed themselves. In considering the appeal, it took into account the difficulties the landowner had experienced farming the land because of the sensitivity of adjacent residential activities and found that, regardless of soil qualities, the land was not of high versatility given its setting. The Canterbury Regional Council submitted that the plan change was premature because final hearings on references to the regional plan were still outstanding. The Court, however, held the landowner was entitled to a decision without the possibility of waiting many years for an outcome.

Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208

Subject	Scale	Policy context	Summary
Heritage Movement Commerce Urban growth	Town/city District Regional	Urban design rules/policy absent	This case appealed against district plan changes to enable 338 ha of rural-zoned land to be consented over 20 years into ‘Pegasus Bay’, a town of 5000 inhabitants. Proposed rules included a 96-ha wetland conservation area, restoration of an ecologically valued lagoon and lake reserve, and creation of an open space reserve to recognise Māori cultural values. The town was to have a small supermarket and associated shopping, a ‘new urbanism’ grid of residential streets with decreasing density further from the centre, neighbourhood parks and reserves, and a primary school. Roading and section designs were intended to discourage internal vehicle trips. There was some resistance by local iwi to the proposal because of the high heritage values associated with the site. But the High Court found the developer had provided exhaustive mitigation. The developer’s additional preservation areas, together with a taonga (treasures) and koiwi (human remains) protocol and support from many Māori, was held to satisfy the provisions of the RMA. The alternative would amount to ‘sterilising’ a large area of land – and ‘inappropriate’ use of zoning powers. The Court also found there was no inconsistency with the Regional Policy Statement (RPS) because the RPS was “almost totally lacking in meaningful directives … in respect of location of settlements and/or the expansion of existing settlements”. Issues arose from the proposal’s lack of self-sufficiency and the consequential transport effects. The Court likened assessment of such matters to ‘crystal ball gazing’ given the 20-year development period. It found that the township would make meaningful contributions to its self-sufficiency; was consistent with regional expansion policies; would have little cumulative effect on Christchurch’s emission problems; and evidence of unacceptable roading infrastructure costs was insufficient. The ‘imaginative’ and ‘innovative’ development was found to meet section 5 of the RMA.

Christchurch Civic Trust v Christchurch City Council (C82/05)

Subject	Scale	Policy context	Summary
Character Heritage Density	Precinct/area	Urban design rules/policy present Urban design rules/policy absent	Referenced by Christchurch Civic Trust (CCT) seeking recognition of the blocks east of Cathedral Square (‘Inner City East’) as a special amenity area (SAM) because of the heritage values and character of its constituent buildings. The Environment Court rejected CCT’s request, finding that the historic heritage buildings were spread too thinly, and over too large an area, for the Court to reasonably conclude that Inner City East had enough of a coherent urban character to warrant recognition as a SAM. The essential character of the area was found to be its wide diversity, although all parties agreed that the two types of development were inappropriate in the area (strips of flats running away from the street and three-storey monolithic blocks). However, the Court concluded that the possibility of modifying the rules to preclude these activities was outside the scope of the appeal because of jurisdictional constraints. It also noted that the issue could be addressed through a review that had been instigated by the Christchurch City Council.

Duxton Hotel Wellington v Wellington City Council (W21/05)

Subject	Scale	Policy context	Summary
Amenity Heritage Density	Building Town/city	Urban design rules/policy present	This case appealed against a consent granted for an apartment and mixed-use building on a central business district (CBD) block. The proposal involved renovating and incorporating an existing heritage building into a non-complying development about three stories above permitted height levels. The Environment Court held that effects on views would be less widespread than that associated with the permitted development potential of the site because of the proposal’s massing of building bulk at one end of the site. It found shading to be a non-determinative issue by reference to the same permitted baseline of potentially ‘worse’ effects. The district plan provisions promoted a city form with differentiating areas of ‘high’ and ‘low’ city, although height limit rules were found to be the sole tool used to maintain that form. Despite this, the Court held that even a building of non-complying height is not ‘automatically repugnant’ to this urban form. Particular regard was had to the surrounding buildings, enabling the Court to conclude the proposal was not inconsistent with its ‘low city’ setting and that it interceded ‘successfully’ between two identifiable low city height thresholds. The Court placed weight on the massing of the proposal at one end of the site, creating a ‘stepped’ form within the site itself, and found ‘permitted’ height levels to be only a ‘first approximation’ of the intended general urban form. The Court assessed the proposal’s ability to meet district plan policies to enhance the public environment, and employed in detail the provisions of a statutory design guide to assess effects on open spaces, surrounding streets, other buildings, the neighbourhood, heritage values, and bulk and scale. The Court concluded there would be no precedent effect because of the proposal’s unusual qualities and consent was granted.

Eldamos Investments Ltd and Gladiator Investments (Gisborne) Ltd v Gisborne District Council (W47/05)

Subject	Scale	Policy context	Summary
Amenity Character Heritage Commerce	Building Precinct/area	Urban design rules/policy absent	Combined plan change and consent appeal to enable a large-format retailing development (The Warehouse). Gisborne District Council proposed a new, more restrictive zoning for Large Format Retail (LFR). The Environment Court found the Council’s motivation was to preclude LFR rather than manage the effects of built form or assist in carrying out integrated management and control of effects of land use. It also concluded that the Council’s position was not founded on a strong public mandate, because it had relied improperly on media reports, consultation with the business community and informal expressions of opinion. On key amenity contentions, the Court found the visual and landscape values were not significant, and did not accept that the site possessed any significant heritage or cultural amenity value. Effects on other retailing were also strongly contested, but the evidence established that the same effects would occur if the development proceeded on any of the alternative sites with less restrictive zoning identified in the central business district (CBD). Consequently, the effects would not exceed those normally associated with trade competition on trade competitors, and the effect on the market would be short-lived and not significant. Accordingly, the Court held the more permissive Fringe Commercial zoning sought by the appellants would meet the provisions of Part 2 of the RMA, and granted that relief. On the consent appeal, the Court was able to consider more detailed effects on design, appearance and orientation of the proposal. It found that the proposal incorporated design elements that distinguished it from the purely utilitarian, and was not out of scale or character with nearby buildings. Wider amenities were also considered, including effects on shading, views, CBD amenity, a nearby heritage reserve, urban pattern and legibility, and pedestrian access. The Court supported the proposal on each of these counts and granted consents subject to conditions.

Foot v Wellington City Council (W73/98)

Subject	Scale	Policy context	Summary
Amenity Character Density	Building Precinct/area	Urban design rules/policy absent	This case referenced the setting of height limits for two blocks of seafront properties in Oriental Bay, Wellington. The issues raised were that proposed increases in height limits would significantly impair the amenities of residents and the public, particularly in relation to effects on views, wind and sunlight as components of amenity, and on urban form and streetscape as wider public issues. The Environment Court (the Court) concluded that council had focused narrowly on developers’ expectations and wider ‘urban form’, and the proposed height controls and limited yard and sunlight access restrictions failed to provide the level of amenity for residents and the public. Given the qualities of Oriental Bay, intensification was found to be justifiable only if approached in a controlled and careful manner, rather than relying on blunt height controls and limited controls on yards and sunlight. Towards achieving integrated management, the Court endorsed the potential development of a statutory design guide that could provide comprehensive terms of reference to manage streetscape and character values for this area. Given the absence of such guidance, however, the Court agreed it was necessary to lower the height limits relating to the subject properties to ensure that adverse effects were appropriately controlled.

Frasers Papamoa Ltd and Others v Tauranga City Council (W90/07)

Subject	Scale	Policy context	Summary
Density Movement Urban growth	Precinct/area Town/city	Urban design rules/policy present	This related to appeals against the Tauranga City Council’s grant of consents for the Papamoa Gateway Proposal, a mixed-density residential development comprising 711 dwelling units on a single 25-ha site at Papamoa. Together with two large neighbouring undeveloped parcels, the site constituted an island of undeveloped land in an otherwise extensively developed area. The range of intensities spanned from stand-alone dwellings to eight-storey apartment buildings spread over seven neighbourhoods, each the subject of its own consent application. Lower intensities were proposed as a buffer along exterior boundaries and the whole was to be governed by a master plan and design guidelines to ensure minimum standards of development. The Environment Court had regard to a broad sub-regional strategic planning document (‘SmartGrowth’) that included growth management policies to enable ongoing demand to be met through more intensive development. It concluded the proposal was consistent with this broad policy direction. There was disagreement over the level of intensity permitted under the plan – the applicant contending 711 dwellings were permitted and the Council contending only 466. The Court concluded the proposal equated to one unit per 213m2, well under the permitted standard of one unit per 325m2, but heard no evidence to suggest that greater intensity in itself would produce any more than minor effects. The critical issues were landscape and amenity effects, in respect of which the Court held that the district plan set out to encourage intensification throughout the residential zone, subject only to broad requirements to maintain and enhance amenity values. The Court found that the tallest buildings of six to eight storeys would be out of scale and would dominate their setting, the surrounding area and existing houses, making them inappropriate and contrary to provisions in Part 2 of the RMA. Likewise, the intensity proposed in the neighbourhood closest to the coast was found to be contrary to the provisions of the plan to protect residential amenity. Consents for those elements were declined, and consents for all other aspects upheld.

Howick Ratepayers and Residents Association Inc v Manukau City Council (A167/04)

Subject	Scale	Policy context	Summary
Amenity Character Heritage Commerce	Building Precinct/area	Urban design rules/policy present	The Howick Ratepayers and Residents Association appealed against consents granted for a seven-level mixed-use commercial/residential building in Howick. Key contentions related to the height of the building and its effect on visual amenity values, local character and heritage. The Environment Court found that the street was characterised by one- and two-storey buildings, and that one of Howick’s amenities is its small village-like atmosphere. Against that, the Court observed the proposal would exceed the permitted height limit by around 100 percent, and would exceed proposed new height limits by 50 percent. Given the magnitude of these margins, and the inability to distinguish between this and surrounding sites, the Court considered that an inappropriate precedent would be created that would undermine the effectiveness of the height control provisions of the district plan. The Court felt the proposal was totally out of scale and sympathy with its surrounds. It also felt it was incompatible with objectives and policies seeking to maintain and enhance amenity values, respect the special character of the area and manage adverse effects on visual amenity. The Court considered the positive traffic efficiency effects of the proposal did not outweigh the adverse effects, and the consent was not upheld.

Inner City East Neighbourhood Group Incorporated v Christchurch City Council (C14/06)

Subject	Scale	Policy context	Summary
Amenity Open space	Precinct/area	Urban design rules/policy present	This case related to an application to ‘stop’ a portion of road (about 220 m x 80 m), between two existing areas of reserve in order to create a large passive recreation area. The evidence suggested there was a shortage of existing recreation reserves in the east side of the inner city. The Environment Court had to be satisfied the stopping would meet the requirements of section 32 and Part 2 of the RMA and, in so doing, had regard to the provisions in the district plan on City Identity, Urban Growth, Transport, Business and Recreation and Open Space. In particular, it noted the plan’s emphasis on increasing population densities, and its aspiration to improve central city amenity and provide for additional open space where deficiencies exist. This enabled the Court to conclude that the stopping would be consistent with the plan’s objectives which, along with other reasons, led it to conclude that the stopping should be confirmed.

Intercontinental Hotel and Others v Wellington Regional Council and Waterfront Investments Ltd (W15/08)

Subject	Scale	Policy context	Summary
Amenity Character Heritage Movement Open space	Building Precinct/area Town/city	Urban design rules/policy absent	This case related to appeals against the Wellington Regional Council’s granting of a consent for a five-storey Hilton hotel on Queens Wharf, Wellington. The Environment Court found that the Wellington City Council’s attempts to incorporate the Waterfront Framework – a strategy document for the waterfront – into the district plan by cross-reference was ultra vires because submitters on the plan had not been provided with an opportunity to make submissions on the contents of the Waterfront Framework document. The Court noted a history of failure to regulate vehicle traffic along the waterfront, and was critical of the Council-controlled organisation responsible for managing this area. Although effects on the wider traffic network were acceptable, and a new ramp and tunnel would improve some traffic issues, the Court considered the Waterfront Framework’s intention that the wharf be managed predominantly for people not vehicles would not be met. In particular, it considered that the volume of service traffic would deter or interfere with pedestrian activity, and detailed traffic design to mitigate these effects should not be left until the post-consent approval stage to resolve. The Court found the proposal’s bulk would compromise its historic setting, overwhelming the scale of the remaining heritage buildings near the site. It accepted that architectural treatments attempted to diminish those effects, but could not adequately do so on a wider scale. Although there would be positive effects on adjacent public space, overall, the proposed bulk and intrusion into the adjacent promenade was detrimental. The Court considered effects on private views, and also found that the effects on protected public viewshafts would be significantly adverse. The Court also found that the loss of berthing space would have an adverse amenity effect on maritime character; the proposal was contrary to many of the regional plan’s policies on waterfront development; and the proposal failed to satisfy Part 2 of the RMA.

Landco Mt Wellington Limited v Auckland City Council (A35/07)

Subject	Scale	Policy context	Summary
Density Movement Commerce Urban growth Open space	Precinct/area Town/city	Urban design rules/policy absent	This case related to district plan change references for the site of the former Mount Wellington quarry in Auckland to enable mixed intensity residential development for about 6000 people, a retail and commercial centre, a school and reserves. A range of zonings was sought, with development to be controlled through existing district plan rules applying to these zones, and a structure plan to be incorporated into the district plan. Development beyond the structure plan would be treated as a discretionary activity. Supported by the Auckland Regional Council and Auckland City Council as being in accordance with the Regional Growth Strategy and the Regional Policy Statement. Traffic was a key issue. The Environment Court considered the proposal should stand or fall on its own merits, not be required to resolve the endemic infrastructure problems of the traffic network (except in a proportional contributory fashion). Given Auckland’s inexorable growth, if 6000 residents did not find housing here they would likely locate further afield, imposing greater demands on the traffic network and resulting in longer vehicle trips. Consistent with the Regional Land Transport Strategy, the Court held the region needed to introduce measures to reduce demand for private vehicle travel. The expert traffic evidence established that, while not perfect, the proposal could be made to work acceptably by upgrading various surrounding roads. The commercial centre was to be limited in size and not be sufficient to satisfy retail demand internally within the site. This would result in unquantifiable benefits to surrounding retail centres. While particular businesses in these centres might lose some business, this was found to be well within the RMA’s tolerances for trade competition. The Court found a small number of townhouses adjacent to the Mount Wellington Domain would be visually intrusive and create a physical barrier that would affect public access to the volcanic cone. Taking into account the visual amenity of the cone, the Court required Landco to submit an amended design for this comparatively small area.

Mitchell v Waitakere City Council (A21/00)

Subject	Scale	Policy context	Summary
Density Urban growth Open space	Precinct/area	Urban design rules/policy absent	Referenced against the Oratia Structure Plan (OSP) provisions of the Waitakere City Proposed District Plan. The Oratia catchment lies in the foothills between the main urban area and the Waitakere Ranges. It is an area that is extremely sensitive to ecological, landscape, stormwater and wastewater issues. An intensification of ‘urban density’ would fail to protect this area. The Waitakere City Council therefore included area-wide density thresholds in the proposed OSP to ensure these values would not be compromised. The thresholds were set following years of exhaustive analysis and community consultation and would provide for sustainable development to a density of 346 lots compared with 126 at present. The Environment Court was supportive of the Council’s attempt to reconcile pressures for subdivision and development whilst defining optimum environmental thresholds. It was also satisfied that a range of restricted discretionary and discretionary subdivision densities in the OSP would ensure all relevant elements of section 5 of the Resource Management Act 1991 (RMA) would be met.

North Shore City Council v Auckland Regional Council [1997] NZRMA 59

Subject	Scale	Policy context	Summary
Amenity Character Urban growth Open space	Districtl	Urban design rules/policy present	The case appealed against a proposed exclusion of 700 ha at Okura/Long Bay from the urban area. The Auckland Regional Council’s (ARC’s) policy of urban containment was not challenged. The Environment Court declined ARC’s attempt to defer the decision until further options were reviewed. It commended ARC’s wish to improve its policy but observed that planning is never settled and it is often possible that further studies may lead to better planning. In the meantime, once notified and challenged, proposed plan provisions had to be determined. North Shore needed 1200 new households per annum over the next decade, and Long Bay/Okura was the only remaining ‘greenfield’ area. The effect on the marine environment was a key issue. The Court found the marine ecology of the estuary was sensitive to sediment run-off and contamination, but the coastal ecology of Long Bay was not. The Court held that only the urbanisation of the land draining onto the estuary would adversely affect the marine environment. Effects on landscape were also a key issue. The estuary qualified as an outstanding landscape, and the Court found urbanisation could not be effectively disguised or adequately mitigated on land situated on the estuary side of the ridge. However, it also found that land on the Long Bay side of the ridge had a landscape value of less significance than the estuary side and would not be adversely affected by urbanisation. The Court did not accept that its decision should be influenced by visual effects on Long Bay Regional Park, commercial effects on the proposed Albany sub-regional centre, or regional transport issues. The Court allowed the appeals to the extent that the boundary of the Metropolitan Urban Limit was shifted to include Long Bay, but not Okura. The decision was upheld on appeal to the High Court.

Omaha Beach Residents Society Incorporated v Ocean Management Limited (CIV-2007-404-2539) (High Court, 6 September 2007)

Subject	Scale	Policy context	Summary
Character Density Open space	Building Precinct/area Town/city	Urban design rules/policy present	This concerned injunction proceedings against Ocean Management Ltd (OML) relating to the development of a single residential lot within a larger residential subdivision. OML had obtained building consent and commenced work in accordance with the district plan. However, the title was subject to a land covenant and OML had, on purchase, signed a deed of covenant with the Omaha Beach Resident’s Society agreeing to become a member and to abide by its constitution. Both the land covenant and the constitution contained development restrictions that were intended to ensure compliance with specified district plan provisions and design guidelines managed by the Society. Although OML had submitted a preliminary design to the Society for approval, OML subsequently made significant changes in light of an advantageous new judicial interpretation of the relevant plan rules. The High Court found OML had satisfied those parts of the covenant and constitution that required compliance with specified plan provisions but had clearly breached the covenant and constitution requirements to obtain final design approval from the Society. The Society’s design guidelines required compliance with a Neighbourhood Plan, which the Court found was an express and discrete requirement and one the Society was entitled to enforce. Even though the primary requirement of the Neighbourhood Plan was compliance with the district plan, the Neighbourhood Plan also created an additional and more restrictive layer of control over building envelopes that OML had not complied with. The Court held it was reasonably open to the Society to withhold its approval, noting it was in a different position from the Council, and was able to take a wider view consistent with its supervisory jurisdiction. The injunction was granted.

Pick v Far North District Council (A64/06)

Subject	Scale	Policy context	Summary
Amenity Heritage	Precinct/area	Urban design rules/policy absent	This appeal concerned the level of heritage protection afforded to the Russell township under the Far North District Council’s proposed district plan. The appellants asserted the plan’s policies and rules failed to carry through its strong objectives to protect historic heritage. The Council argued the level of protection was adequate, that the appellants were confusing heritage with amenity and their suggested proposals would be overly prescriptive. The Environment Court held that both section 6(f) (protection of historic heritage) and section 7(c) (maintenance and enhancement of amenity values) of the RMA were relevant. The Court found there was an attractive village atmosphere in the subject parts of the town, which comprised a distinctive low-density character, that the setting and landscape character distinguished Russell from other urban localities in the district and beyond; that historic heritage and amenity values were interwoven; and these qualities can be diminished by out-of-scale new buildings, alterations and additions. These findings led the Court to conclude that the district plan’s mapping of heritage precincts was insufficient to protect the amenity attributable to historic heritage. It further concluded that broad support was required by way of provisions in the ‘buffer’ areas adjacent to the heritage precincts. The Court allowed the appeals and directed the parties to try to reach agreement on new provisions for inclusion in the district plan.

Roman Catholic Diocese of Auckland v Franklin District Council (W61/04 and W18/07); Runciman Rural Protection Society v Franklin District Council [2006] NZRMA 278

Subject	Scale	Policy context	Summary
Amenity Character Movement Urban growth	Precinct/area Town/city	Urban design rules/policy present	An appeal against the Franklin District Council’s refusal of consent for a secondary school outside the Metropolitan Urban Limits (MUL) between Papakura and Papatoetoe. Traffic effects and loss of productive soils and rural amenity values in the Regional Policy Statement (RPS) did not weigh against granting consent. The key focus was on the aspiration to constrain urban development within the MUL. The Environment Court (EC) held the RPS anticipated some, albeit limited, urban-type activities in the rural zone. It concluded that the school did not represent urban expansion or growth because the district plan provided for schools in the rural zone as discretionary activities, and the proposal aligned with the rural character of the site. Consent was granted.


			On appeal, the High Court found that all the planning experts agreed the school was ‘urban development’ and the RPS had a consistent and clear theme of confining urban development within the MUL. It considered the EC had distracted itself with definitions of ‘urban expansion’ and ‘urban growth’, and held that the EC had asked the wrong question, lost sight of the RPS’s objective and placed too much weight on minor allowances in the RPS for some eventual urban development in rural areas. The matter was remitted back to the EC to reconsider.
			On reconsideration, the EC confirmed the granting of consent. It observed the RPS was not necessarily a decisive factor. Although relevant and important, it was not a hurdle to be overcome before considering section 104 RMA matters or applying Part 2 of the RMA. The proposal’s unusual qualities and substantial benefits meant granting consent would not create a precedent nor affect the integrity of the RPS. Regardless of the weight given to the RPS, Part 2 of the RMA was still pre-eminent. Reasserting many of its factual findings from the first hearing, the EC confirmed the consent.

The National Trading Company of New Zealand Ltd v North Shore City Council (A182/02)

Subject	Scale	Policy context	Summary
Movement Commerce	Precinct/Area	Urban design rules/policy present	The National Trading Company sought consents for a Pak ’N Save in the Wairau Valley. The North Shore City Council declined consent and the Environment Court upheld that decision. The district plan sought to reduce congestion by linking roading capacity with the intended form of urban development and protecting busy roads from adjacent activities that generated high traffic volumes. The Court found that the proposal would not meet these aspirations. A stand-alone supermarket would respond to some community preferences, but would not avoid or adequately mitigate effects on the roading network. Equally, it could not provide the focal point offered by a high-density residential development nor would it respond as fully to the district plan strategy as an alternative use that was focused on providing employment.

The Warehouse Ltd and Foodstuffs (South Island) Ltd v Dunedin City Council (C101/01)

Subject	Scale	Policy context	Summary
Character Heritage Commerce	Building Town/city	Urban design rules/policy present	This case involved a district plan change application by Foodstuffs to replace the existing industrial zoning on the former Caledonian Sports Ground, Dunedin with a zoning that enabled large-scale retailing. A concurrent application by The Warehouse to develop a store on the same 2.1-ha site was also considered. The Environment Court noted the Dunedin City Council’s express objective to limit Large Format Retail (LFR) to three identified areas was clouded by the fact that LFR was a permitted activity in other ‘activity’ zones. It held that the “tail should not wag the dog: objectives and policies drive methods of implementation; not the other way around”. Because the re-zoning was barred by the objective, it could not succeed. The objective itself would have to be changed, which could not be accommodated within the existing appeal. The Court left it open for the referrer to make an application to the Court to exercise its powers under section 293 of the RMA, with notification. As for the consent, despite evidence that some businesses in South Dunedin would not survive, the Court considered that these were trade competition effects and found the proposal would have a net economic and social benefit. An allegation of effects on heritage buildings in the central business district (CBD) was not proved. The Court concluded that remote or consequential effects on the large number of CBD heritage buildings (eg, losing tenants, falling into disrepair) were minor. It found the activity was ‘without a home’ in the plan (perhaps because its effects were not well understood when the plan was prepared), and that the integrity of the ‘industrial’ zone was already undermined by the extent of non-industrial activities in the area. While it was contrary to the policy limiting LFR to identified areas, the Court found the activity was not contrary to the industrial zone’s effects-oriented emphasis. The Court concluded that the apparent inconsistency between different objectives and policies in the plan should be resolved in favour of the proposal given the lack of significant effects on heritage and amenity values.

Urban Auckland – Society for the Protection of Auckland City and Waterfront Inc v Auckland City Council [2005] NZRMA 155 (High Court)

Subject	Scale	Policy context	Summary
Amenity Character Density	Building	Urban design rules/policy present	Urban Auckland appealed to the High Court against the Auckland City Council’s decision not to notify a consent for a 36-level tower in the Queen Street Valley Precinct. The Court held that Part 2 of the RMA “makes the aesthetic an indispensable concern in every planning regime and for every consent authority”. The district plan contained express design assessment criteria for the precinct. The Court considered that the criteria incorporated design principles that extended above street level, including a principle regarding the aesthetic coherence of whole buildings. The Court found the officer and consultant assessments relied upon by the Council failed to give due attention to those design criteria and had failed in its duty to ensure the criteria were adhered to in their intent and detail. Because of the scale of the tower and lack of set-back, the aesthetic coherence of the whole demanded a careful assessment. The Council’s decision was quashed and it was directed by the Court to reconsider the matter.

Wilbow Corporation (New Zealand) Ltd v North Shore City Council (A152/01)

Subject	Scale	Policy context	Summary
Density Urban growth	Precinct/area Town/cityl	Urban design rules/policy present	This case related to a plan reference against the proposed Greenhithe North Structure Plan. The structure plan contained requirements relating to Wilbow’s land (16.32 ha) to limit urban sprawl and provide a community ‘node’ of high-density residential and business activities. Wilbow had already completed 36 lots of a 97 lot development on its land at a much lower density (600 m2 sections). Wilbow sought a residential zoning over the area, which would better fit this lower intensity. A buffer was also sought on neighbouring land to ensure future high-density development did not adversely affect the amenities associated with this lower density. The Environment Court saw little point in retaining the high-density requirements over Wilbow’s land because that concept was unrealistic and already compromised by the existing development. The Court also made adjustments to the rules to control intensity on immediately neighbouring land. The Court commented that the result was rather removed from the North Shore City Council’s original planning expectations, because these had been overtaken by the market. The Court also observed that the background furnished the Council with useful experience to inform future urban planning elsewhere in the district.

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