Skip to main content.

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.

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).

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).

 

[ |