Mission Bay development
We have been fighting a proposal to build a complex of up to 8 storeys and 28m high on the corner of Tamaki Drive and Patteson Ave. This is completely out of line with the Unitary Plan rules which envision 4 storeys or 16 m height, and it is also totally inappropriate for the Mission Bay environment.
We are thrilled to report that that the Environment Court decision on the Mission Bay development appeal has just been released and it has been declined in full. The proposed 8 storey development will not be built, and the developer will have to go back to the drawing board. Hopefully any future plans will be designed to complement the local environment.
The decision takes a much harder line against the development than we had anticipated, basically saying that the developer was simply trying to maximise their development at the expense of the community and residents, and that the court saw no reason to grant any additional height over that set out in the Unitary Plan rules.
In fact, they indicated that a generous 4 stories was the anticipated height for the area, and that even 5 stories would have to demonstrate some benefit to the community. This is a much firmer line than the impression we gained in court, and makes it clear that developers cannot just consider the Unitary Plan rules as a starting point for negotiations.
So, a comprehensive win.
This is a win for our community, but it is also a win for Auckland more generally as it provides some more common sense guidance as to how the Unitary Plan should be interpreted in future scenarios. Many of us were really disturbed that while the Unitary Plan appeared to set out clear rules, it turned out that these rules were not absolute and that lawyers could argue that pretty much anything could be approved. Even a 28m high building when the rules were for 18m! Fortunately, this decision reaffirms that the rules do have meaning, and while they can be exceeded in some circumstances, they can only be exceeded when there is clear community benefit to justify the breach.
This case has now established this principle in case law and will guide the assessment of breaches in all future resource consent applications.
We have received a new proposal for the development. We have not yet had a chance to go through it, but it appears to be a 7 storey proposal rather than the original 8 storeys.
You can view the proposal by clicking on the "Revised proposal 1 June 2021" link on the right of this page. We can't show the photo montages yet as these are too large for our software, but we will get them to you shortly.
Environment Court hearings
Latest update 26 May
We have had 3 days of evidence presented by the developer so far, and this has helped clarify the core issues in dispute. Judge Smith and the two supporting commissioners (Mr Mabin and Mr Kernahan) have visited the area to get a feel for the type of development already in the area, and to check the various viewpoints that have been used to develop before and after photo montages. They also visited three private houses that have been used for photo montages.
As the hearings have proceeded, and particularly following the site visit, it has become apparent that the panel have identified concerns over the excess height represented by levels 6-8. Drive Holdings have recognised that such concerns might damage their chances, and this afternoon announced to the court that they intended to submit another revised proposal. They have given no indication of what changes might be coming, but it can be reasonably inferred that they will be reducing the height.
Drive Holdings have undertaken to get the revised design to us by 5pm on Tuesday 1 June. Until then we will have no idea what changes will be proposed, and therefore no idea how this might impact our case. We don't even know whether this will replace the original proposal or simply be an alterantive, a Plan B in case the court doesn't accept Plan A. The court will convene again next Thursday to consider the implications arising from the changes and how this might affect the ongoing hearings.
While we welcome the developer's rather delayed recognition that the full 8 storeys might not be a good fit for Mission Bay, a potentially major change at this late stage of proceedings makes life very difficult for us. Potentially, our entire evidence may need to be reevaluated and rewritten to reflect the new design, and given that the Urban Designer's evidence alone amounts to some 80 pages, this is not a trivial task. While the Judge is hopeful that we can simply resume the hearings on Thursday, this is heavily dependent on the degree of change proposed. Anything other than just a minor change or, alternatively, a comprehensive change meeting all of the Unitary Plan controls, is likely to result in substantial work for our team. This work cannot realistically be accommodated within just a few days. We would therefore have to ask for an adjournment, delaying the hearings substantially.
This is sort of good news overall indicating that we are less likely to be stuck with an inappropriate 8 storey building, but it may also make our job harder going forward.
We are holding a public meeting to provide an update to everyone just before the resource consent appeal goes to the Environment Court next week. We will also be providing an update on our proposal to reclaim Tagalad Reserve (the old bowling club) as a community centre and gardens.
7pm Tuesday 18 May
Selwyn College Theatre
We hope to see you there.
The Applicant has made available updated proposed plans which they are taking to the Environment Court for approval. These are based on the alternative plans shared at mediation and rejected by us. You can view the full proposal with floorplans and photo montages here - drive.google.com/file/d/1uZ1JChBjVfWPYoafO0_CYs8hF_2vc8F4/view?usp=sharing
The new plan maintains 100 apartments while reducing the height of some buildings. This is achieved by replacing space previously designated for retail with apartments and facilities for their private use.
The 8 storey building on the corner is unchanged except for the addition of an extra .9m for lift shaft - these are added to all buildings. The gaps that were between the buildings have been filled which gives a more solid bulky look.
The theatre is removed completely and becomes a recreational space available only to the apartments. That building is now reduced in height to be compliant. Everything at 2nd level (restaurants, balcony dining, and the podium level outdoor and dining areas) is now removed from public use. Everything from Level 2 to 8 is now apartments and their facilities. The only remaining space for local convenience needs is ground floor restaurants on Tamaki Drive and Patteson Ave sides. Retail space on the site will be significantly less than available today.
The height of buildings on Patteson has not changed significantly but the gaps between buildings have been filled and the facade on the Marau Cres end has changed to remove the solid concrete with "porthole" windows.
Our experts, along with Council experts, are reviewing these plans to fine tune our legal arguments. We expect the Environment Court Hearings will take place around March 2021.
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.
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.
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.
Revised proposal 1 June 2021
Revised photo montages 1 June
Revised proposal Sept 2020
Submissions to Hearings
Gill Chapell - Legal
David Wren - Planning
Don Stock - written evidence
Don Stock - graphics
Support Mission Bay graphics
All evidence - Council website