Hearings Committee



Minutes of an ordinary meeting of the Hearings Committee held in the Edinburgh Room, Municipal Chambers, The Octagon, Dunedin, on Thursday 21 July 2016, commencing at 9.00 am





Andrew Noone



Lee Vandervis



Commissioner Colin Weatherall



John Sule (Senior Planner/Committee Advisor), Kirstyn Lindsay (Senior Planner), Peter Christos (Urban Designer), Chelsea McGaw (Consents and Compliance Officer, Water and Waste Services) and Lee Paterson (Senior Geotechnical Engineer, MWH)


Governance Support Officer      Wendy Collard






The Committee considered an application to establish two residential dwellings at 38 Richmond Street, Dunedin under section 95 of the Resource Management Act.


The committee was required to make a thorough assessment of the application using the statutory framework of the Resource Management Act 1991.


The applicant was represented by:


·           Conrad Anderson (Consultant Planner)

·           Laurence Prattley (Applicant)

·           Raewyn Prattley (Applicant)

·           Alison Carey (Architectural Designer)


There was one submitter present at the hearing.


Dale Meredith (Manager, Policy, Otago Regional Council)

Warren Hanley (Resource Planner – Liaison, Otago Regional Council)

Jean-Luc Payan (Manager, Natural Hazards, Otago Regional Council)


Procedural Issues


Mr Anderson raised a procedural issue regarding an article that had appeared in the Otago Daily Times on 21 July 2016 which reported on an Otago Regional Council (ORC) meeting relating to natural hazards in South Dunedin.  He questioned whether this would result in the ORC withdrawing their submission.  The Committee confirmed with the ORC that they would not be withdrawing their submission and the procedural issue was dismissed. 


Presentation of the Planner’s Report


The Planning Officer (Kristyn Lindsay) spoke to a summary of her report and provided an overview of the proposal before commenting on the notification of the application and the submissions received.  Ms Lindsay commented that the activity was a non-complying activity pursuant to Rule 8.8.6(iii) of the operative Dunedin City District Plan.


Ms Lindsay commented on the hazard risk and advised that South Dunedin was typically low-lying with a high ground water table.  She advised that Richmond Street was inundated in the June 2015 rainfall event and had experienced surface flooding and ponding.  Ms Lindsay noted that the proposed development would result in the removal of the existing flood-damaged dwelling; however that no resource consent was required for the removal of the dwelling.


Ms Lindsay recommended that the application be declined on the basis that it did not pass the gateway tests set out in s104D because the adverse effects of the proposal in its current form were not adequately mitigated and that the proposal was contrary to the key relevant objectives and policies of the Operative Dunedin City District Plan.  She commented that she could not identify a true exception.  However, she advised that she would leave the review her recommendation to following the presentation of the evidence.

The Applicant’s Presentation


Conrad Anderson (Consultant Planner and Alison Carey (Architectural Designer) provided an outline of the proposal.


Ms Carey spoke to her pre-circulated evidence and provided an assessment of the composition and character of the surrounding neighbourhood.  She outlined the benefits of modern build design.  Ms Carey responded to questions which related to design elements and whether an elevated floor level would adversely affect the building design.  She advised that in her opinion that it would not, depending on the proposed finished height and commented that the minimum floor level specified by Building Control Services for South Dunedin was 150mm above the crown of the road.


Mr Anderson spoke to his pre-circulated evidence which focused on the design of the proposal, the streetscape, how the water and waste discharges could be managed and the hazard risk.  He provided an outline on the permitted baseline as he viewed it, detailing what could be established on the site as of right.


Mr Anderson commented that there were no specific controls over the streetscape and contested the comments by the Council’s urban designer.  He advised that it was his opinion that the effects of the development on the streetscape and amenity were no more than minor.  Mr Anderson noted that the plans submitted did not show a fence which could be something that could be conditioned.  Mr Anderson advised that Mr Prattley’s preference would be to continue with brick veneer cladding because of its low maintenance.


Mr Anderson commented that he believed that there was an opportunity to mitigate the flood risk by raising the finished floor level; however, he noted that the applicant did not want to depart from a concrete slab foundation design.  Although he conceded it would be difficult, he considered that the buildings could be relocatable despite the proposed concrete foundation and brick veneer cladding.


Mr Anderson advised that the demand on the city’s infrastructure would not increase as a result of the proposal; however was amenable to stormwater management conditions and a low-flow device condition.


Mr Anderson accepted the advice note requested by Heritage New Zealand in their submission and the conditions recommended by Council’s Transportation Planner.  In response to questions, Mr Anderson confirmed that on-site manoeuvring could be achieved for the rear unit. 




The Manager, Natural Hazards, ORC (Jean-Luc Payan) spoke to his pre-circulated evidence and outlined the hazard risk as identified by ORC.  Mr Payan provided detail on the June 2015 rainfall event which had resulted in surface flooding in South Dunedin.  He commented that he considered the rain event in June 2015 flood event was not an unusually heavy rainfall event and that similar events might occur into the future on a regular basis.  Mr Payan advised that during the June 2015 event surface flooding varied in depth from approximately 100mm to 300mm in the area of the subject site. 


In response to questions regarding the risk mitigation, Mr Payan commented that there was still a degree of risk and the potential to transfer risk onto neighbouring properties.  Mr Payan advised that he was reluctant to advise the Committee on a specific floor level to mitigate the risks but indicated that the ORC would assist by providing information.


The Manager, Policy, ORC (Dale Meredith) advised that ORC did not want to see the risk increased by increasing additional people to the hazard risk.  She commented that the ORC were concerned that the proposal would set a precedent. 


Council Officers Evidence


The Senior Geotechnical Engineer, MWH (Lee Paterson) commented on the natural hazards which had the potential to affect South Dunedin and the subject site.  Mr Paterson advised that he disagreed in part with the ORC submission regarding the unusual nature of the June 2015 rainfall event and commented that the rainfall recorded in June 2015 was the second highest on record.  While Mr Paterson considered that the rainfall event was unusually heavy, he acknowledged events of this type were expected to become more frequent.


Mr Paterson commented that overall the building code stated that buildings should be safe from hazards.  With respect to minimum floor levels, Mr Paterson advised that these were generally set at the building consent stage through the Building Act 2004 and that Building Control might accept a floor level of 200mm above local ponding level but this would need to be confirmed by that department.  He commented that MWH had prepared a report in 2012 which identified minimum floor levels at various locations throughout the city.  Mr Paterson acknowledged that assistance would be required from ORC to set alternative minimum floor levels for South Dunedin. 


In respect to the risk of liquefaction Mr Paterson advised that there were design solutions which could be applied at building consent stage to minimise the risk posed by liquefaction and amplified shaking hazard.


It was moved (Noone/Vandervis):


"That the meeting be adjourned until 11.00 am."


Motion carried


The meeting adjourned at 10.45 am and reconvened at 11.00 am.


The Consents and Compliance Officer, Water and Waste Services (Chelsea McGaw) advised that a review of the stormwater and wastewater calculations, subsequent to the pre-hearing evidence exchange, had resulted in the department amending its position.  Ms McGaw commented that Water and Waste Services no longer opposed the application on the basis of the density breach, however Ms McGaw maintained that mitigation measures such as on-site stormwater retention and low flow devices would be required to ensure that stormwater and wastewater issues were not exacerbated by the development.




The Urban Designer (Peter Christos) spoke to his memorandum and reiterated his position regarding the character of the neighbourhood.  Mr Christos commented that, after hearing the evidence put forward by the applicant, he considered that the impact of the proposed dwellings on the streetscape and amenity of the area remained significant.  He advised that it remained his opinion that mitigation would be achieved by requiring low and permeable fences and landscaping. 


It was moved:


"That the meeting be adjourned until 11.30 am."


Motion carried


The meeting adjourned at 11.20 am and reconvened at 11.31 am.


The Planner’s Review of his Recommendation


Ms Lindsay reviewed her recommendation in light of the evidence presented at the hearing.  She commented that having listened to the evidence put; she considered that there were steps that could be undertaken to reduce any adverse effects and to bring the proposal more in line with the policy framework of both the operative and proposed district plans.  Ms Lindsay commented that she disagreed with Mr Anderson’s position regarding the extent of the baseline; however noted that the application of a baseline was appropriate.


Ms Lindsay noted Mr Anderson’s acceptance of the conditions proposed by Water and Waste Services but she considered that the Committee must be comfortable that the existing stormwater conditions would not exacerbated or the wastewater capacity exceeded by the authorisation of a non-complying activity.


Ms Lindsay commented that the application was for a non-complying activity and, should consent be granted, then the Committee could impose any conditions it felt were necessary to avoid, remedy or mitigate adverse environmental effects.  She commented that she disagreed with Mr Anderson’s assertion that, because a specific streetscape was not protected by a District Plan, its amenity values and character were not significant and she held that, where the Committee had the ability to require good design principles, it should take every opportunity to apply these. 


Ms Lindsay recognised that there were no specific district plan controls which addressed hazards on the site at this time, but noted that Mr Anderson had accepted that conditions relating to hazard mitigation would be necessary.


However, it remained Ms Lindsay commented that it was opinion that there was nothing about the proposal that set it apart from others.  She advised that she accepted that the existing dwelling was in poor repair but the removal of the dwelling did not form part of the application.  Ms Lindsay reminded the Committee that application was for a breach of density and considered that the true exception argument had not been adequately made as to why two units should be authorised on the site.


The Applicant’s Response


Mr Anderson reiterated the positive aspects of the application and asked for consent to be granted.  He restated his opinion on the baseline.   Mr Anderson commented that the demand on the water and waste infrastructure would be no more that which currently existed, but accepted conditions related to water and waste management.  He commented that in his opinion, a stormwater management plan would only be required if there was more hard surfacing on the site more than what currently existed. 






Mr Anderson commented that he considered that the proposed units did incorporate good design principles for the development including yard setbacks and living spaces orientated to the front of the site.  He also considered that a condition which related to the fence and landscape treatment would be acceptable.  With respect to hazard risk, Mr Anderson suggested that a floor level could be established through conditions or advice note and specific foundation design could be identified at the time of building consent.  He advised that he considered that if any precedent was set by the granting of the application, it would be a positive one.





It was moved (Noone/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 – 38 Richmond Street, Dunedin

That a right of appeal lies to any Court or Tribunal against the Dunedin City Council in these proceedings.”

S 48(1)(d)


                   Motion carried


The meeting moved into non-public at 11.57 am.



PRESENT:                                       Councillors Andrew Noone and Lee Vandervis and Commissioner Colin Weatherall


IN ATTENDANCE:                            John Sule (Senior Planner/Committee Planning Advisor), Kirstyn Lindsay (Planning/Handling Officer), and Wendy Collard (Governance Support Officer)






The Committee gave consideration to the Planner’s recommendation and to the points raised by the applicant. 


The meeting adjourned at 12.15 pm and reconvened on at 9.15 am on 22 August 2016.




It was moved (Vandervis/Noone):


"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 to establish two residential units at 38 Richmond Street, legally described as Lot 18 Block XVI Deposited Plan 60 (Computer Freehold Register OT 16D/63) subject to conditions imposed under Section 108 of the Act, as shown below:



1     The activity must be carried out generally in accordance with the plans entitled  and the information in the application dated 24 March 2016, except where modified by the following conditions of consent:


2     The consent holder must advise the Council, in writing, of the start date of the works.  The written advice must be provided to Council at least five (5) working days before the works were to commence.


3     The units authorised by the resource consent must have a finished floor level of 500mm above existing ground level. 


4     A stormwater management plan should be submitted and approved by the Resource Consents Manager prior to the lodging of building consent applications for the units.  The stormwater management design for the site must include suitable stormwater retention systems for each unit. 


5     Low-flow water devices must be installed in the kitchen, laundry, bathroom and toilet areas of each unit. Plans must be approved by the Resource Consents Manager prior to the lodging of building consent applications for the units.


6     A site landscape plan must be submitted and approved by the Resource Consents Manager prior to commencing construction of the new units.  The plan would indicate the areas proposed for planting and the proposed species, with particular reference to the outdoor amenity area for Unit 1.


7     Landscaping and planting, as depicted in the plans required by condition six (6) of the consent, must be carried out within six months of the new units becoming habitable, and must be maintained on an ongoing basis thereafter.


8     The boundary fence fronting Richmond Street must be no higher than 1.2m and must have 40% permeability. Design of the front boundary fence must be submitted to the consent authority and approved by the Resource Consents Manager prior to the front boundary fence construction. 


9     The vehicle access to each unit must have a minimum formed width of 3.0m, and be hard surfaced  from the edge of the seal of Richmond Street for a distance of not less than five metres inside the property boundary; and must be adequately drained within the site.


10   Vehicle access to Unit 2 must be formed so that adequate vehicle manoeuvring is provided for the parking space for that unit.


11   The consent holder must take all reasonable measures to ensure noise from activity taking place on the site would not exceed the performance standard set out in Rule 21.5.1 of the District Plan, and does not give rise to adverse effects upon residential activity in the area.


12   Construction work including earthworks must be limited to the times set out below and must comply with the following noise limits for ‘typical duration’ construction modified from New Zealand Standard NZS 6803:1999 Acoustics – Construction Noise:

Day of week


Time period

Maximum Noise Limit

Leq (dBA)

LMax (dBA)









Sundays and Public Holidays

No construction work










Motion carried





Reasons for the Decision


1.     The Committee believed, that subject to the conditions proposed above, the proposal would not give rise to more than minor adverse environmental effects and satisfies the first  gateway test contained in Section 104D of the Act. 


2.     With regard to the second gateway test, the Committee believed that the proposal as amended by conditions of consent would not be contrary to the objectives and policies of both the operative and proposed District Plan.  The Committee had determined that little weight should be given to the proposed District Plan as no decisions have been released.  While the Committee had not been convinced that the proposal was a “true exception”, it believed that the approval of the application would not threaten the integrity of the operative District Plan and nor would it establish an undesirable precedent for future applications.


3.     As the proposal passed both gateway tests set out was section 104D, the Committee was able to consider the granting of consent to the proposal.  


4.     When giving consideration to part 2 of the Act, the Committee noted that with regard to 5(2)(c), the amended proposal including stormwater, landscaping and fencing mitigation and the finished floor level offered by the applicant would avoid, remedy or mitigate any adverse effects of activities on the environment.


5.     In respect of section 6(f), the Committee recognised that the development of the site was reliant on the removal of a pre-1900 house.  The Committee was aware that there were no specific rules within the Operative District Plan which controlled the demolition. The Committee accepted the submission made by Heritage New Zealand, and considered an advice note reminding the applicant of their duty under the Heritage New Zealand Pouhere Taonga Act 2014.  The Committee considered that the granting of consent was not inconsistent with section 6(f) of the Act.


6.     In regard to section 7 of the Act, the Committee noted that, subject to conditions of consent, both sections 7(c) and 7(f) were satisfied.  With respect to section 7(i) which related to the effects of climate change, the application was silent on climate change.  However, subsequently the applicant had offered a ground floor level which was intended to provide a greater level of protection than that suggested by the Council’s consultant engineer at the hearing.  While the proposed floor level did not address the wider climate change issue facing South Dunedin overall, the proposed floor level did offer some level of comfort to the Committee with regard to the specific development.  As such, the Committee considered that the proposal was not inconsistent with section 7(i) of the Act. 


7.     The Committee considered that the proposed activity in its amended form, and with conditions imposed, was not contrary to the objectives and policies of both the operative and proposed Regional Policy Statement for Otago.  The Committee had determined that little weight should be given to the proposed Regional Policy Statement as no decisions had been released.


8.     The Committee recognised that approving the proposal would result in a breach of density under the District Plan.  The Committee acknowledged that in ORC’s submission, it had opposed the density breach and that the opposition was based on potential increase of population exposed to hazard risks.  The Committee, when giving consideration to the ORC’s principled and high level approach to managing hazard risk, had determined that it was appropriate to apply the permitted baseline in this instance.  The Committee believed that the granting of the proposal would not result in more people living on this specific site than could reside in a permitted development.  However, when giving consideration to the baseline promoted by the applicant, the Committee was more judicial in its application.  It considered that the permitted baseline endorsed by the applicant to be fanciful, rather accepting that a single residential unit with a floor area of 155 square metres and up to four bedrooms would not be unanticipated in the area.  This was the permitted baseline against which the Committee had assessed the effects of the proposal. 


9.     The Committee acknowledged the importance of maintaining the interaction between the subject site and the streetscape.  It appreciated the proposed orientation of the residential units to the front of the site and that the proposal complied with the overall bulk and location performance standards identified in the operative District Plan.  The Committee recognised that those bulk and location standards were designed to maintain and enhance amenity and streetscape characteristics and supported the applicant in their incorporation of these standards within the design.  It was noted that the elevation of the dwellings to comply with the increased finished floor level has resulted in slight height plane angle breaches to 72 Nelson Street and 40 Richmond Street.  The effects of the breaches were considered to be less than minor and to be within the margin of error.  As such, any effect on the neighbouring properties beyond that permitted by the District Plan was considered to be indiscernible.  Therefore, the Committee had determined that the neighbours need not be served notice of the change. 


10.   Having familiarised itself with the form and characteristics of the neighbourhood during the site visit, the Committee was very aware of the affect that fences could have on amenity and streetscape values.  During the hearing, the applicant accepted conditions relating to landscaping and fence design.  The Committee considered that a condition requiring a low and open fence was critical to maintaining these values identified above.  The Committee also considered that some landscaping treatment was appropriate to ensure consistency with the existing characteristics of the adjacent area. 


11.   The Committee noted that Mr Anderson had confirmed that on-site manoeuvring could be achieved for the rear unit.  Upon inspection of the plans submitted with the application, the Committee considered that, as currently designed, on-site manoeuvring could not be achieved.  However, the Committee noted that as Richmond Street was a local road and that the site was a front site (albeit with a rear unit), the lack of on-site manoeuvring would not have adverse effects on the transportation network in this instance.


12.   With respect to effects on the safety and functionality of the transportation network, the Committee was satisfied that the effects of the proposal would be less than minor.  The establishment of a second vehicle crossing at the location was acceptable to the Committee, subject to conditions of consent and advice notes.  The applicant had accepted these conditions of consent and advice notes. 


13.   As discussed above, the Committee accepted that the existing dwelling was constructed pre-1900 (built between 1891 and 1895) and that the site was an ‘archaeological site’ as defined in the Heritage New Zealand Pouhere Taonga Act 2014.  The applicant accepted the advice requested by Heritage New Zealand in their submission and the Committee considered that the issue was adequately addressed through the advice note.


14.   The Committee considered that the construction of warm, dry housing stock within the South Dunedin was a positive effect. 


15.   The Committee recognised that subject site had been identified as subject to a flooding and liquefaction natural hazards.  Furthermore, it was considered that future sea level rise would affect the property.  ORC had submitted in opposition to the application on the basis that an increase in density would expose more people to risk, exacerbate the risk and send a wrong signal regarding appropriate responses to natural hazard risk management. The Committee noted that if the proposal was for one residential unit instead of two, there would be no resource consent application to consider.


16.   With respect to seismic events, the Committee accepted the advice of the Council consulting engineer that the underlying soils had a potential for amplified movement and liquefaction during a significant seismic event.  The Committee acknowledged that seismic loading was normally addressed at building control stage and considered that an advice note which advised the applicant that specific foundation design might subsequently be required, or specifically designed ground improvement works would be appropriate in this instance.


17.   The Committee recognised the importance that overland storm water flows were not interrupted and the dwelling should be situated to avoid any adverse effects from local ponding during storm rainfall events.  The Committee considered that proposed floor and ground levels must therefore address the potential for egress of water from the property via secondary flow paths, ensure that construction was not proposed in low-lying areas and that the path of storm water was not displaced from ephemeral flow paths into neighbouring properties.  An advice note was attached to the consent certificate to that effect.  An advice note had also been attached to the advising the applicant that any earthworks necessary to develop the site must comply with the permitted activity rules of the District Plan or further resource consent would be required.


18.   The Committee had considered the floor level offered by the applicant.  It noted that the level offered was consistent with the level suggested by Council’s consultant engineer and discussed at the hearing.  The Committee noted that ORC did not offer a floor level although flood data information provided in their submission was factored into the Committee’s decision.  Based on the June 2015 flood event, the Committee considered that the level would ensure that the habitable area of the dwelling would remain dry should another similar event occur.  While it had not been determined if the floor level was adequate to address potential sea level rise, the Committee noted that there were a range of city wide responses which had yet to be considered to address climate change. The Committee felt that it was inequitable to single out this particular development, given the continuing level of development within the South Dunedin area.    


19.   The Committee was satisfied that any adverse effects of the proposal on the water and waste infrastructure could be adequately managed through conditions of the consent.  The permitted baseline was compelling in this instance.  However, the Committee was acutely aware of the stormwater management issues in the area but also noted that the high groundwater levels observed within the area mean that the stormwater drainage relief usually offered by impervious surfaces would provide minimum benefit at the location.  As such, they considered it appropriate to require stormwater retention for this development. The appropriate level of stormwater retention should be agreed by the Council’s Water and Waste Services through the Resource Consents Manager once the design of the buildings has been finalised.  The Committee also recognised that the applicant had accepted a condition requiring low-flow devices to be installed in the units and considered this appropriate. 





20.   The Committee concluded that, when applying an overall broad judgement, the granting of the consent with conditions would be consistent with the purpose of the Act to promote the sustainable management of natural and physical resources.



The meeting ended at 10.06 am.