Minutes of an ordinary meeting of the Hearings Committee held in the Edinburgh Room, Municipal Chambers, The Octagon, Dunedin, on Wednesday 24 August 2016, commencing at 9.00 am
Cr Andrew Noone
Cr Lee Vandervis
Cr Andrew Whiley
Kirstyn Lindsay (Senior Planner/Committee Advisor) and Shane Roberts (Consultant Planner)
Governance Support Officer Wendy Collard
1 RESOURCE CONSENT APPLICATION SUB 2016-34, 10 RICCARTON ROAD WEST, MOSGIEL
The Committee considered an application for a subdivision to create two lots at 10 Riccarton Road West, Mosgiel.
The committee was required to make a thorough assessment of the application using the statutory framework of the Resource Management Act 1991.
The Chairperson advised that Martin Dillon from the Mosgiel Taieri Community Board would no longer on the hearings panel for this application.
The applicant was represented by:
· Kurt Bowen (Registered Surveyor)
· John and Dianne Sebelin (Applicants)
There was one submitter present at the hearing.
· Brian Miller
There were no procedural matters raised.
Presentation of the Planner’s Report
The Consultant Planner (Shane Roberts) spoke to a summary of his report and provided an overview of the proposal before commenting on the notification of the application and the submissions received. Mr Roberts commented that a Resource Consent was sought to subdivide two existing certificates of title into two new lots. He advised that proposed Lot 1 would comprise of 19.6ha and would front Riccarton Road West, while proposed Lot 2 comprised of 19.4ha would be a rear site which utilised a leg-in from Riccarton Road West. Mr Roberts commented that the Owhiro Steam ran through the site, along with a series of drainage runners and an ORC scheduled drain. He noted that the current use of the site was vacant farmland; however a land use consent was granted on 22 January 2016 for a second residential dwelling on the property of 10 Riccarton Road and, therefore, two residential units were currently authorised for the 10 Riccarton Road property. Mr Roberts commented that LUC-2015-577 was assessed as controlled activity and, as such, the Council was obliged to grant the consent but could impose conditions. Conditions imposed on the land use consent defined the location of the two proposed houses by two 40m by 40m building platforms, the minimum floor level for the dwellings and an upgrade to the access to the site.
Mr Roberts acknowledged that under the Operative Dunedin City District Plan, the site was zoned Rural and the proposal complied with the 15ha lot size requirement and was therefore a restricted discretionary activity. He commented that under the Proposed Dunedin City District Plan, the site would be zoned Rural – Taieri Plains. Under the proposed plan, both proposed lots were less than the 40ha requirement for the zone and the activity was assessed as a non-complying activity.
Mr Roberts reminded the Committee that the Dunedin City Council sought a declaration from the Environment Court to make the rules which related to the minimum site size for rural zones to have immediate legal effect therefore the proposal was also caught by those provisions. However he commented that little weight could be afforded to the provisions of the Proposed District Plan because submissions had been received in opposition to those rules and no decisions had yet been released.
Mr Roberts concluded that the principal effects for the subdivision were less than minor, particularly when he had regard to the land use consent that existed for two dwellings on the site. He commented that he also considered that, in terms of the objectives and policies of the relevant district plans, the proposal was consistent with the objectives and policies of the Operative District Plan, but contrary to those of the proposed district plan which he noted was a reflection in the change of density outcomes sought. As the proposal passed one of the section 104D gateway tests, he advised that the Committee were able to consider granting the consent. Overall, Mr Roberts recommended that the Committee grant consent.
Kurt Bowen (Registered Surveyor) tabled and spoke his evidence. Mr Bowen commented that essentially the proposed subdivision was a boundary alignment between two existing titles and would not result in additional lots or any greater residential development than that which was already approved for the property through LUC-2015-577. He advised that he agreed with the processing planner’s assessment of the relevant rules of both the operative and proposed District Plans.
Mr Bowen noted in respect to the Otago Regional Council’s (ORC) submission that building platforms and minimum floor levels had been identified at the time that the land use consent (LUC-2015-577) was approved. He commented that these platforms were positioned on higher areas of the site and the elevated floor levels were intended to reduce the flood risk to the dwellings. Mr Bowen advised that the proposed subdivision would not interfere with the operation or function of the ORC scheduled drain; noting specifically that the residential activity approved by the land use consent was to be located some distance from the drain. In response to questions, Mr Bowen advised that he considered that the boundary could be configured so that the drain was contained entirely within one lot. He advised that he disagreed with ORC that the granting of the proposal would set a precedent and believed that once the proposed plan became operative any precedent would be extinguished. Notwithstanding, his view on precedent, Mr Bowen commented that the existing land use consent and underlying title configuration set the application apart from others.
Mr Bowen commented on the neutral submission by the New Zealand Fire Service which requested that if the Committee were of a mind to grant consent, that conditions relating to adequate firefighting water supply and suitable access to the site be imposed upon the consent. Mr Bowen advised that the applicant accepted these conditions.
Mr Bowen acknowledged the neutral submission of Mr Charles Bradfield and Ms Katherine Brooks and the opposing submission of Mr Brian Miller which raised issues of the widening of Riccarton Road West, the impact on rural amenity and high class soils and the use of the right-of-way (ROW) access off Riccarton Road West by an adjacent nursery. Mr Bowen advised that he considered that the issue of road widening fell outside of the scope of the consent; however noted that a building line restriction along the Riccarton Road West frontage of the subject site would be carried down onto new Lot 1. With regard to the access to the site, Mr Bowen advised that the use of the access, by the nursery located at 70 Riccarton Road, was a right imposed on the certificate of title and that the applicants had no control over this use. He advised that the applicants could lawfully use the driveway to access the two units which were authorised by LUC-2015-577. With respect to the impacts on rural amenity and high class soils, Mr Bowen reminded the Committee that land use consent had already been issued for the site and suitable building platforms had already been authorised. He acknowledged that reducing the flooding risk to the dwellings had been the primary concern in the positioning of the building platforms rather than the protection of high class soils. However, Mr Bowen advised that he also noted that the 40m by 40m building platforms were a small percentage of the high class soils on the site overall.
John Sebelin (the applicant) spoke to the application and advised that the immediate legal effect of the rural subdivision rules in the propose plan had taken them by surprise. Mr Sebelin commented that they had always intended to subdivide the site as they headed into retirement and were dismayed when they realised that the development potential of the site had been reduced by the proposed plan. He noted that the pastoral use of the site would continue. Mr Sebelin requested that the consent be granted.
Brian Miller spoke to his submission and in particular the widening of Riccarton Road West; the use of the access by the nursery located at 70 Riccarton Road West; and the location of the building platforms over high class soils.
Mr Miller commented that he felt that it was unfair that a portion of his property had been identified for road widening and that he felt the applicant could more easily supply any land required for the proposed road widening and that this should be considered as part of this application.
Mr Miller sought clarification as to how the ROW used by 70 Riccarton Road had come to be established and what rights this conveyed. Mr Miller queried the lawfulness of the use of the driveway by the nursery and maintained that the use of the driveway for residential access could conflict with the existing nursery use and result in further safety issues. The Committee advised Mr Miller that they would investigate the lawfulness of the use of the driveway by the nursery prior to making their decision.
Mr Miller commented that he believed that it was not an efficient use of the land to establish building platforms over high class soils.
Mr Bowen tabled a copy of the deed which showed the ROW had been lawfully established in 1899.
It was moved (Noone/Vandervis):
That the meeting be adjourned until 10.45 am.
The meeting was adjourned at 10.24 am and reconvened at 10.45 am.
The Planner’s Review of his Recommendation
Mr Roberts reviewed his recommendation in light of the evidence presented at the hearing, maintaining his recommendation to grant consent.
Mr Roberts reminded the Committee that they might only consider the effects on the environment which would arise from the granting subdivision. Mr Roberts outlined what could occur on the site as of right and commented that the right to establish two residential units on the site had already been confirmed. He advised that little weight could be given to the proposed district plan at this time. Mr Roberts commented that it was his opinion that the granting of the subdivision would not create an undesirable precedent and he reiterated his opinion that consent to subdivide the site should be granted.
Applicant's Right of Reply
Mr Bowen reiterated the positive aspects of the application and asked for consent to be granted.
It was moved (Noone/Whiley)
That the meeting be adjourned.
The meeting adjourned at 11.00 am and reconvened on Wednesday 31 August 2016 at 12.00 pm.
It was moved (Whiley/Vandervis):
“That the public be excluded from the following parts of the proceedings of this meeting, namely, Item 1.
The general subject of each matter to be considered while the public is excluded, the reason for making this ruling in relation to each matter, and the specific grounds under Section 48 (1) of the Local Government Official Information and Meetings Act 1987 for the making of this ruling are as follows:
General subject of each matter to be considered
Reason for making this ruling in relation to each matter.
Ground(s) under section 48 (1) for the passing of this resolution.
Resource Consent Application – 10 Riccarton Road West, Mosgiel
That a right of appeal lies to any Court or Tribunal against the Dunedin City Council in these proceedings.”
MINUTES OF THE NON-PUBLIC PART OF A MEETING OF THE HEARINGS COMMITTEE, HELD IN THE EDINBURGH ROOM, MUNICIPAL CHAMBERS, ON 31 AUGUST 2016, COMMENCING AT 12.10 PM
PRESENT: Councillors Andrew Noone (Chairperson), Lee Vandervis and Andrew Whiley
IN ATTENDANCE: Kirstyn Lindsay (Senior Planner/Committee Planning Advisor) and Wendy Collard (Governance Support Officer)
1 RESOURCE CONSENT APPLICATION SUB 2016-34, 10 RICCARTON ROAD WEST, MOSGIEL
The Committee gave consideration to the Planner’s recommendation and to the points raised by the applicant and submitters. A site visit was undertaken during the non-public section of the meeting.
It was moved (Noone/Vandervis):
"That pursuant to Section 34A(1) and 104B and after having regard to Part 2 matters and Sections 104 and 104D of the Resource Management Act 1991, and the provisions of the Dunedin City District Plan and the Proposed Second Generation Dunedin City District Plan, the Dunedin City Council granted consent to a non-complying activity being a two lot subdivision at 10 Riccarton Road, East Taieri, legally described as Lot 1 DP 10269 (Computer Freehold Register FR OTB1/697) and Part Section 5-6 Block III East Taieri Survey District (Computer Freehold Register OTB1/698 Ltd), subject to conditions imposed under Section 108 of the Act, as shown below:
1. That the proposal should be undertaken in general accordance with the application and in particular the scheme plan prepared by Paterson Pitts Partners Limited (attached as Appendix 1) and the relevant details and information submitted with resource consent application, SUB-2016-34 received by Council on 10 May 2016; except where modified by the following conditions:
2. Prior to certification of the cadastral dataset pursuant to section 223 of the Resource Management Act 1991, the subdivider should ensure the following:
a) If a requirement for any easements for services, including private drainage, is incurred during the survey then those easements should be granted or reserved and included in a Memorandum of Easements on the cadastral dataset.
b) The Proposed ROW Easements “A” and “C” over Lot 2 in favour of Lot 1 as shown on the scheme plan should be duly reserved and granted and shown in a Memorandum of Easements on the cadastral dataset.
c) The internal boundary between new lots 1 and 2 should be configured such that the Otago Regional Council Scheduled Drain is wholly contained within one Lot and shown on the cadastral dataset.
3. Prior to certification pursuant to section 224(c) of the Resource Management Act, the subdivider should complete the following:
a) That the access over the Rights of Way A and C should be duly formed with a suitable all-weather surface, to a minimum width of 5.0m, for their entire length, except that the access should be hard surfaced from the edge of Riccarton Road West to a distance at least 5.0m inside the property boundary. The entire length of the rights of way should be adequately drained.
b) That a plan should be prepared for Lots 1 and 2 showing the positions of the building platforms as approved by LUC-2015-577 and shown on the application plan for SUB-2016-34. The platforms should be clearly dimensioned and the distances to the two closest boundaries shown. The plan should be attached to the consent notice of conditions 3(d) and 3(e) below.
c) That a consent notice should be prepared for registration on the CFRS of new Lots 1 and 2 for the following on-going conditions:
i) The minimum formed width of vehicular access to the dwelling should not be less than four metres wide and had a vertical clearance of no less than four metres high to ensure New Zealand Fire Service appliances had sufficient vehicular access to the property.
ii) The proposed dwelling must be provided with an adequate firefighting water supply in accordance with SNZ PAS 4509:2008 in order to reduce the fire risk.
iii) Underground tanks or tanks that were partially buried (provided the top of the tank is no more than 1 metre above ground) might be accessed for firefighting purposes by an opening in the top of the tank whereby couplings are not required. A hardstand area adjacent to the tank was required in order to allow a fire service appliance to park on it and access to the hardstand area must be provided as above.
iv) Any vehicle access or hardstand located on the site should not divert overland stormwater flows onto adjacent properties.
d) That a consent notice should be prepared for registration on the CFR of new Lot 1 for the following on-going condition:
i) Residential development, including any residential accessory buildings, should be fully contained within the building platform shown on the plan attached to this notice. The building platform identified the most elevated area and suitable building location within the Lot. Farm buildings could be built in any location provided all bulk and location planning provisions applying at the time were met.
ii) That a dwelling built on the building platform should have a minimum floor level of 14.2m amsl.
e) That a consent notice should be prepared for registration on the CFR of new Lot 2 for the following on-going condition:
i) Residential development, including any residential accessory buildings, should be fully contained within the building platform shown on the plan attached to this notice. The building platform identifies the most elevated area and suitable building location within the Lot. Farm buildings could be built in any location provided all bulk and location planning provisions applying at the time were met.
ii) That a dwelling built on the eastern building platform should have a minimum floor level of 15.5m amsl."
Reasons for the Decision
1 The Committee considered that the proposed activity was consistent with the relevant objectives and policies of the District Plan but contrary to the objectives and policies of the Proposed District Plan and failed one of the gateway tests in section 104D of Act.
2 The Committee believed that the proposal would not give rise to more than minor adverse environmental effects and therefore satisfied the other gateway test contained in Section 104D of the Resource Management Act 1991. As such, the Committee were, therefore, able to consider the granting of consent to the proposal.
3 The Committee found that the subdivision was consistent with the objectives and policies of the Regional Policy Statement for Otago and proposed Regional Policy Statement for Otago.
4 The Committee considered that it was appropriate to apply the permitted baseline in this instance. In making its assessment, the Committee acknowledged that the right to establish two residential units on the site had already been confirmed by LUC-2016-577. Furthermore, the site already comprised two computer freehold registers and as such they felt its consideration of environmental effects was limited to those which arose from the rearrangement of cadastral boundaries of the two subject computer freehold registers.
5 In addition, the Committee noted that in applying the baseline, the issue of high class soils raised by Mr Bradfield, Ms Brookes and Mr Miller in their submissions, including the issue raised at the hearing by the submitter Mr Miller that the proposal was contrary to policy 5.5.2 of the regional policy statement, was unable to be considered as the location of the building platforms on the high class soils had been established by LUC-2015-577. The Committee noted that the vast majority of the site would continue to be used for a predominantly pastoral use.
6 The Committee noted that LUC-2015-577 authorised a “second residential dwelling on the property of 10 Riccarton Road West, Mosgiel, being held in CFRs OTB1/698 and OTB1/697”. It was the Committee’s opinion that once the subdivision was given effect to the property at 10 Riccarton Road West, Mosgiel held in CFRs OTB1/698 and OTB1/697 would no longer exist and it would not be possible to establish a second residential unit as authorised by LUC-2015-577. The Committee noted that if the consent holder gave effect to the subdivision but did not establish residential activity on both lots 1 and 2 before the proposed district plan was made operative, then residential activity on the new lots would be subject to the new district plan. The Committee strongly recommended that if there would be any delay in building the new lots, the consent holder apply for a certificate of compliance to secure their right to build under the operative district plan.
7 With regard to the submission from Otago Regional Council regarding natural hazards, the Committee found comfort with the location of the building platforms and minimum floor levels required by LUC-2015-577 and considered that these provided for suitable locations to establish residential activity on the site. However as discussed above, the Committee were mindful that once the subdivision had been given effect to, LUC-2015-577 would no longer be required to establish residential activity on the site as residential activity at the density was a permitted activity under the operative district plan. In order to ensure that residential activities were contained within the building platforms and that minimum floor levels were met, even if LUC-2015-577 was not given effect to, the building platforms and minimum floor levels identified in LUC-2015-577 should be included as a consent notices to be registered on the titles of both new lots.
8 With respect to the ORC scheduled drain, the Committee noted that the applicant offered to configure the internal boundary of the subdivision so that the drain was contained entirely within one lot. The Committee considered that this would enable more coherent management of the drain and require this to be a condition of consent.
9 In respect to the firefighting provisions requested by the New Zealand Fire Service in their submission, the Committee acknowledged the acceptance of the conditions recommended by the Consultant Planner in his recommending report. Having reviewed these conditions the Committee believed that these conditions were appropriate and should be imposed on the consent.
10 With regard to access to the site, the Committee noted the permitted baseline and that the two residential units might currently access the site over the shared ROW. Upon request of Mr Miller, the Committee sought information regarding the legality of the use of the ROW by the activities occurring on 70 Riccarton Road. The Committee were satisfied that the use of the ROW for the wholesale nursery activities at 70 Riccarton Road was lawful and that the consent in 2007 sought to separate the retail activity traffic from the wholesale activity traffic. All subsequent consents for 70 Riccarton Road and 58 Ayr Street provided for access to the sites from Bush Road. The Committee recognised that Mr Miller noted this in his evidence stating that the “2007 resource consent provided for all new nursery activities to access the site from an access on Bush Road.” (My emphasis).
11 The Committee recognise that the access into the ROW is narrow and would benefit from being widened. However, they considered that requiring the access to be widened as part of the subdivision would be unreasonable, especially when applying the permitted baseline. It noted that only Lot 2 would gain access over this ROW and, as such, any traffic effect arising from the use of the access by one lot would be less than minor. Trimming the vegetation which flanked the access-way might improve the visibility and enhance ease of movement. The Committee had recommended these improvements as an advice note.
12 The Committee further noted that, while the proposed district plan could be afforded little weight at this time, the proposal was a non-complying activity under the proposed plan and the rural subdivision rules did have legal effect. The Committee considered that the property was already held in two titles and two residential units were authorised for the site, and that this set the site apart from other properties. As such, the Committee considered that the granting of consent would not threaten the integrity of the District Plan or establish an undesirable precedent for future applications.
13 Overall the Committee concluded that the granting of the consent would be consistent with the purpose of the Resource Management Act 1991 to promote the sustainable management of natural and physical resources.
The meeting ended at 12.40 pm.
C H A I R P E R S O N