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Review of Urban Design Case Law

Preface

1 Introduction

2 Urban design subject areas

3 General findings

4 Amenity findings

5 Character findings

6 Heritage findings

7 Density findings

8 Movement findings

9 Commerce findings

10 Urban growth findings

11 Open space findings

Appendix 1: Case law summaries

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, Urban design 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.

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.

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.

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.

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