Update on Mission Bay development
The proposed 8 storey development in the Mission Bay village continues to slowly work its way through the system.  You will recall that the resource consent application for this development was declined by the Auckland Council Hearing Panel last year, after which the developer appealed to the Environment Court.  The Environment Court requires the parties to participate in mediation to see whether a compromise solution is possible, and this was held over two days prior to the lockdown. The outcome of the mediation was that no acceptable compromise was found, and so the project now proceeds to the Environment Court.

During the first day of mediation, the parties opposed to the development (Auckland Council, Mission Bay Kohimarama Residents Association, Support Mission Bay Inc., and two private residents) laid out their primary objections again.  In particular, we were concerned about the visual impact of the development when approaching Mission Bay from Patteson Ave and Tamaki Drive, where the development would look totally out of character with the surrounding area.  We also outlined serious concerns over the apparent bulk of the development.

The developer undertook to review their design to see whether they could reduce those impacts.  They came back by the second day of mediation with a modified proposal which slightly reduced the height of some of the buildings and changed the appearance of the blank concrete wall facing south towards Patteson Ave.  Unfortunately they left the 8 storey building at the original height, and removed both the movie theatre and the second level of restaurants.  We saw this as a poor compromise; it made minimal improvements to the visual impacts while removing most of the public benefits of the development.  We, along with the other parties, rejected the compromise.

So now we go to the Environment Court.  The developer has now decided that they want to pursue their alternative design, and so will spend the next few months developing the new plans.  After that, we will get an opportunity to review the new design and submit our evidence relating to it, and then we have a court hearing.  This is expected to be early next year.

We find it hard to believe that the developer would even consider modifying a design for a Local Centre Zone in a way which removes local centre services and results in much less restaurant space than we have already, making the development almost purely a collection of apartment blocks.  But that is the approach they are taking and so we will need to engage our experts again to review the new plans and be prepared to testify in court.

We will share the new design once it is available.
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After the resource consent for the proposed 8 storey development at Mission Bay was declined last year, everything went quiet for a while, but it is now coming back to life.  The developer has appealed the decision to the Environment Court, and so we are now embarking on another battle to help the Council defend their decision.

Since the Council’s Hearing Panel made the decision to reject the application, the appeal is directed against the Council.  The Council will be defending their decision, but we are concerned that they may not do so with all the vigour that we would like, or that they might agree to a compromise that we would not like.  We have therefore registered as a party to the appeal, along with several others, so that we can be represented throughout the process.

The process starts with mediation between all the parties; the developer, Auckland Council,  Mission Bay Kohimarama Residents Association, Support Mission Bay, and two individual residents.  This is set down for 2 separate days, the first on 5 February, and then a second, if required, on 16 March.  The developer has indicated that they do not intend to change their proposal at this stage, and so we see little to talk about until such time as they do.  Nevertheless, we will be attending the mediation to hear what they have to say.

The outcome of mediation could be no change, or the developer might reach some form of agreement with one or more of the parties to withdraw their opposition, presumably based on some compromises to the design.  If there is no agreement with all parties, then the appeal will proceed to the Environment Court.  A court hearing would be scheduled, probably late this year.

If there is agreement with some parties but not all, then the same situation prevails.  The appeal would then proceed to the Environment Court, but without any parties who have withdrawn their opposition.

If all parties were to agree to a compromise during mediation, then a resource consent would be issued subject to any changes or conditions agreed, and that would be the end of the matter.

The Environment Court is a far more formal setting than the Council Hearings last year.  There is much less scope for members of the public to present their views, with evidence being presented by calling witnesses, and an opportunity for each party to cross-examine witnesses.  Even more so than for the Hearings, it will be critical for our case to be presented by barristers, with expert witnesses on planning and urban design.

We have applied for funding from a government fund but it will be a few months before we know whether we have been successful or to what extent.  If we have a shortfall, then we may need to ask for further donations from our members and the public at that time.

Regards
Don Stock
Chair
​Mission Bay Kohimarama Residents Association

Drive Holdings have appealed the Council's decision to decline the resource consent for the Mission Bay development.  We, in turn, have filed what is known as an s274 notice to join the Residents Association as a party to the proceedings.  This preserves our rights to be involved in the proceedings right through to the Environment Court, should it get that far.

​We are unsure of the exact process going forward, but basically, all parties have an opportunity to make further submissions on issues already raised, then all parties will be asked to attend mediation to see whether there is any way that the differences can be resolved without going to court, and if there is no settlement, then the case goes to the Environment Court.  The process is expected to take more than a year.

We have been advised that the decision to decline the resource consent has been appealed to the Environment Court.

The main thrust of the appeal is that the panel was wrong in its interpretation of the objectives and policies of the Unitary Plan, and that if you interpret them the way Drive Holdings does, then the application should have been approved. Intertwined within this is that the effects are acceptable.
 
There is no hint anywhere that they are proposing to reduce the scale of the building at this point. It looks as though they will simply proceed with the current application. However, of course that could change if they were wanting to resolve matters at a mediation.

The Appeal is against the Council's decision to decline the application, and so the Council will be responsible in the first instance for defending their decision and opposing the appeal.  Of course, since the Council staff initially recommended approval, it is unclear how rigorously the Council will now defend the Hearing Panel decision.  Part of our job is to try to ensure the Council takes a firm line on this. 

If we want to continue our opposition, and given that nothing has really changed we presumably do, we need to file what is known as a Section 274 which makes us a party to the hearings.

The process typically starts with mediation between the parties to see whether there is a compromise which could be acceptable to all parties.  It may be that Drive Holdings will offer design changes such as reducing the height at this point to try to get the Council to support them.  We need to try to keep the Council honest and discourage them from caving on the basis of a weak compromise.

​The Appeal document can be found here.

The verdict is in and the proposed development has been rejected by the Hearing Commissioners.  All of our hard work has paid off, and we have avoided having an inappropriately tall and bulky development undermining  Mission Bay's character.

While a big part of our success comes down to the quality of the submissions and presentations by our team led by Barrister Gill Chapell, we cannot underestimate the impact of the sheer weight of numbers of people attending the hearings.  This clearly demonstrated that the proposed was not welcomed by the local community, and that so many people felt so strongly about it that they made the effort to come along to the hearings.  This is unusual in hearings of this type, and so made a big impression on the Hearing Commissioners.  Thanks to everyone who was able to support us in this way; you can be proud that your efforts did make a difference.

We don't know what happens next.  The Applicant could file an appeal to the Environment Court, they could just accept the verdict, or they could redesign the project and resubmit it.  All will become clear over the coming weeks.