First Test of Unitary Plan: Rymans Granted

The decision to grant the controversial Rymans Retirement Village in Devonport is a test case of the application of Auckland Unitary Plan provisions contained in its Mixed Housing Suburban Zone - particularly in relation to the intensification of Navy/Ngati Whatua land precincts.  

The hearing of the application by Ryman Healthcare Limited to build a retirement village in Devonport, Auckland (see my critical preliminary posting here) was undertaken on behalf of the Auckland Council by Independent Hearing Commissioners Kitt Littlejohn, Dave Serjeant and John Hill. The majority decision to grant the application (dated 13 January 2017) has just been released. The decision to grant the resource consent was made by Commissioners Littlejohn and Hill, as a majority of the Commissioners appointed to hear and determine the application. For reasons that are separately recorded in the decision, Commissioner Serjeant would have refused consent to the application.

Cross section of proposed development - from application

Photoshop of left-right expanse of proposed development from Mt Victoria

The application was publicly notified on 16 September 2016. A total of 392 submissions were received, with 73 in support, 14 neutral and 305 in opposition. Twenty-nine submissions were received late, of which 2 were in support, 2 were neutral and 25 were in opposition.

It is likely the decision will soon be available here (scroll down to "37 Ngataringa Road").

In my view the critical aspects/turning points in the decision include the following findings:

34. During the processing of the application the Council notified its decisions on the recommendations of the Independent Hearings Panel on the Proposed Auckland Unitary Plan (PAUP) under clause 10(5) of Schedule 1 of the RMA. Subsequently, on 15 November 2016, the Council gave notice pursuant to clause 20 of Schedule 1 of the RMA that those parts of the PAUP not challenged by appeals were now operative. These statutory changes to the planning framework for the assessment of the application have had the effect of amending rules which had immediate legal effect upon notification of the PAUP (which the application addressed on lodgement), making other rules (and associated objectives and policies) in the PAUP legally applicable (and most recently operative) to the application, and making obsolete other rules and provisions of legacy plans that applied at the date the application was lodged.

35. In advance of the hearing the Commissioners directed the reporting officer and applicant to confer and agree on the relevant rules and other policy provisions that applied to the application at the date the hearing commenced. A joint statement was filed and we have relied on it as describing the consent requirements and policy framework now applicable to this proposal. Most notably, the applicant and the reporting officer considered that rules that had earlier applied to the proposal that classified aspects of it as non-complying, had been superseded with the effect that the proposal was now classified as a fully discretionary activity. No party to the hearing contended otherwise and we have therefore proceeded with our assessment and determination of the application on that basis. (my bolding)

Thus the application has been considered in terms of the provisions of the Unitary Plan, making it one of the first. It is therefore significant. The next stages in the decision relate to the most contentious aspect namely the need for a land use consent for an integrated residential development in the Mixed Housing Suburban Zone (MHS) and also within the Devonport Peninsula Precinct (DPP). Both of these provisions have rules and policies which need to be complied with. These are all set out in the decision. The decision progresses:

49. The MHS zone standards are expressly varied for this site by virtue of the DPP provisions and therefore take precedence (OAUP Rule C1.6(4)). Of particular relevance is the standard in relation to building height, which in Precinct F (this site) is varied from the MHS zone permitted height of 8-9 metres to, depending on the location within the site (by reference to Precinct Plan), 8-9, 11-12 and 16-17 metres.

It transpires that the main heighjt control for the site is 16-17 metres, and because there are some exceedances of that control, the application becomes fully discretionary.

The written decision summarises the evidence provided by the applicant, by submitters, and by Council officers, and notes that the applicant's right of reply included two alternative proposals involving reductions in the height of buildings B02 and/or B04. Before deciding on the key issues, the decision report considers what is the permitted baseline for the site. This is interesting because there is nothing already there in Devonport, or in Ngataringa Road to use for a permitted baseline:

150. .... we do accept that the applicant’s “anticipated development” baseline (or the reporting officer’s ‘complying development’ concept) is something that we should have due regard to as a relevant matter...

and

152. In combination, the MHS zone and DPP rules classify an integrated residential development on this site that complies with the varied height and other related bulk and location standards in the DPP as a wholly restricted discretionary activity. Under the DPP provisions such an activity can be considered without public or limited notification, or the need to obtain written approval from affected parties, except in special circumstances (Rule I508.5 Notification). 

 (note here that the application does not comply with the height control - which makes it discretionary)

153. We find that this is an important indicator as to the OAUP’s approach to the management of effects on the environment at this location and the extent to which it has enabled development at this (and other) DPP locations. Put simply, subject to the specific assessment matters, we find that building development of the scale anticipated by the rules and standards must be considered to be consistent with the policy and objective framework of the DPP; after all, the former methods only exist to achieve the later provisions (in a plan hierarchy sense)....

and

155. Accordingly, in summary, we give weight to the effects on the environment that might result from development of the site in accordance with the applicant’s anticipated development scenario, which is based on a ‘compliant’ restricted discretionary (as far as land use is concerned) proposal....  we have no trouble in finding that the scale of the anticipated buildings and their enabled height on the site is considerable and that the differences between that anticipated scale of buildings and the scale of buildings for which consent is sought are comparatively small. We will bear these differences in mind when we look at the specific assessment matters that the OAUP provides us with when looking in particular at the design and external appearance of the proposed buildings.

The bold section is interesting. The words "enabled height" reference the development potential inherent in the increased height control permitted by the MHS and the DPP, and "comparatively small" is the decision's pivotal description of the height differences between what is permitted and what is proposed.

The decision report then moves on to consider the main issues in contention. These include: Construction effects; Effects on the Duder Brickworks; Effects on the coastal edge; Traffic and transport effects; Built form (external appearance, height, bulk and location) and related landscape, visual and urban design effects. In this post I concentrate on the last issue. The decision goes on:

173. The aspect of the proposal that was the focus of many at the hearing and also our own deliberations is the bulk, location and external appearance of the proposed retirement village buildings. We have been assisted in our analysis of these matters by the assessment criteria and matters for discretion for integrated residential development found generally in the MHS zone and specifically, for the scale of such development anticipated at this site, in the DPP. 

 Important DPP assessment criteria come into play and are referred to in the decision:

179. Assessment Criteria (I508.8.2.1) for such restricted discretionary activities are:

(1) Whether building height establishes an integrated built form that is in accordance with Policy I508.3(1)(a), (b) and (c) and also:

(a) is in keeping with the form and function of existing and proposed streets, lanes and open space;

and (b) ensuring a mix of building heights and a variation of built form when viewed from streets, public open space and residentially zoned areas and in particular, views of higher buildings should be broken up by buildings of a lesser height to reduce dominance and bulk....

The crucial finding then follows:

181. We find that the bulk, height and location of the proposed buildings establishes a built form on the site that avoids wider dominance or visual effects. Our assessment of the proposal from the most distant viewpoints we were provided is that although it will be noticeable as a large built form, it will still sit comfortably in the urban residential landscape when viewed from those elevated locations. It is assisted in this outcome by the extent of foreground vegetation to be retained, the fact that it does not dominate a ridgeline or the horizon, and that its architectural forms and appearance are not uncommon features in these views.

This finding is justified by further descriptive paragraphs including:

183. We observe here that the enabled greater building height for the site is the method chosen by the DPP provisions to achieve the policies against which the proposal is then to be assessed. Consequently, a finding that a building of a complying height did not achieve the policy would be illogical. Of course here we are assessing buildings that do not fully comply with the DPP height limits. But in relation to the assessment matter, we are not persuaded that the additional areas of height result, overall, in the development having wider adverse dominance and visual effects. As the montages and elevations of the alternative options offered by the applicant show, it is difficult to discern the difference at first glance.

I wonder whether this throw-away comment might come back to haunt! The reasoning in this paragraph may be why the decision does not engage with the Ryman offer to reduce the height of two of its higher buldings. At this point the decision engages with the dissenting assessment of Commissioner Serjeant.

186. Finally on this topic we turn to the key point of difference between ourselves and Commissioner Serjeant, whose dissenting reasons (set out later) we have had the benefit of reading in draft. We refer here to the assessment criteria which direct us to consider whether the building height establishes “an integrated built form” that ensures a mix of building heights and variation of built form when viewed from streets, public open space and residentially zoned areas with views of higher buildings being broken up by buildings of lesser height, thereby reducing dominance and bulk.

187. We consider that the proposed retirement village buildings do provide a mix of building heights and variation of built form when viewed from the outside in. Undoubtedly, the design of the buildings could have incorporated a greater mix of height and variation of built form. We accept the analysis of Commissioner Serjeant in this regard. However, we do not wish to be drawn into a debate on architectural design to achieve what are essentially qualitative criteria, particularly in circumstances where we are not satisfied on the evidence that requiring greater variation in height and built form is necessary to avoid or mitigate an adverse effect on the environment of the development. We also observe that the anticipated height and built form of a complying development on the site would not likely bring with it any greater variation than is currently proposed.

The decision report then proceeds to grant the orginal application subject to conditions, and concludes with Commissioner Serjeant's dissenting opinion and assessment, extracts now follow:

197. At the outset, it needs to be clear that the area of dissention lies only in relation to the bulk, location and design of the buildings, and even then only Buildings 2, 3 and 4. I consider that the adverse effects of these buildings and their inconsistency with the objectives and policies for the Devonport Peninsula Precinct are such that the application should be declined. The Precinct objectives, policies and related assessment criteria focus on both intensification and a quality built environment, and I consider that to fail in either of these matters is to fail overall....

203. ...the critical issue in this dissenting view is the performance of the application against the matters raised in 1508.8.2.1.1  (ed: DPP). In particular:

• Wider dominance and visual effects;
• The mix of building heights across Area 1 such that views of higher buildings should be broken up by buildings of lesser height to reduce dominance and bulk;
• The variation of built form when viewed from streets, public open space and residentially zoned areas.

207. Assoc Prof Bird was engaged as an independent urban design and visual assessment expert following the design process. His assessment utilised photo montages of the proposed development, and illustrations of “buildings built to the Proposed Auckland Unitary Plan decision [representing] the additional height permitted, enabled by the Devonport Peninsula Precinct”. The applicant’s evidence was that the proposed development had similar effects as to ‘permitted’ buildings. My view is that the images of the PAUP buildings cannot be relied on for a comparative assessment as the only buildings that are permitted on the site are those complying with the MHS height limit, with all buildings taking advantage of the DPP height limits requiring assessment under the criteria. As such it is not realistic to suggest that ‘complying’ buildings would look anything like what was depicted in terms of probable bulk and location (see for example the higher buildings in Drawing RC40A)....

208. .....viewpoints are particularly important, as viewpoints from public open space are an essential part of the criteria. Assoc Prof Bird came to the conclusion that the proposal will have ‘less than minor’ adverse visual, dominance or overlooking effects on its various receiving environments. That is clearly not the case from Viewpoints 7 and 8 in particular, and likely other viewpoints from the south such as Viewpoint 17 on Lake Road where the buildings appear as a continuous line of multi-storey buildings, which is not the outcome sought by the criteria.

In his conclusion, Commissioner Serjeant makes a number of points about the environmental and planning consequences of other integrated developments based on the decision's interpretation of the effects of the Unitary Plan provisions.

210. My conclusion is that the application should be declined. Unlike the majority decision, my finding is that the application fails on the facts in terms of its ability to meet the assessment criteria, and this failure is sufficient to decline that application given the strong focus on design issues in order to meet the DPP description. This application is the first to be tested against the provisions of the DPP that provide for the intensification of six areas, beyond that otherwise provided for by the underlying zoning. This intensification will generate significant change in each of these areas, subject to the assessment criteria referred to above (and likely no public input, given the non-notification provision). While acknowledging that this application is for a retirement village, and not a typical apartment development, it would be unfortunate if the interpretation of the DPP provisions were seen to support the proliferation of large bulky buildings that have little or no variation in built form and adopt an undifferentiated 16m height limit within Area 1. While the achievement of greater intensity is supported, this does not have to be at the expense of the existing environment or a quality outcome.

I believe this is a very important test case for the future of Auckland - particularly an Auckland that aims to be the most liveable.