Archive | Okura

Council to fight Crater Hill & Okura appeals, and appeals itself over rural subdivision

Auckland Council said yesterday it would fight appeals by landowners against 2 unitary plan decisions in favour of the council, and will also appeal on a third issue where the council lost.

Almost all 108 appeals against the Auckland unitary plan have been resolved in the Environment & High Courts.

But landowners have lodged appeals to the High Court against 2 of the 3 decisions the Environment Court has issued in the last 2 months. They relate to the location of the rural:urban boundary & zoning in the Crater Hill/Pukaki area at Mangere and at Okura, at the top of the North Shore.

The third recent decision concerns planning controls for subdividing land in rural Auckland. The Environment Court went against the council on that, and the council has decided to appeal.

The council released its decisions on the unitary plan in August 2016.

At Crater Hill/Pukaki, the Self Family Trust & adjacent landowners want their land included inside the rural:urban boundary.

At Okura, Todd Property Group Ltd has appealed against the Environment Court’s decision not to include its land inside the rural:urban boundary, where the company wants to build 1000 houses. That land is beside the Okura estuary marine sanctuary.

Council planning committee chair Chris Darby said yesterday: “We will actively support the Environment Court’s decisions in the High Court through the presentation of legal submissions.

“For a wide range of reasons, the Crater Hill/Pukaki and Okura areas are not suitable for urban development.

“In relation to the recent decision that deals with subdividing land in rural Auckland, our legal advice is that the Environment Court has made a number of errors in law. For that reason, and given the importance of protecting the rural economy’s finite resources such as high quality soils & sensitive rural landscapes, the council has decided to appeal this decision to the High Court.”

Link:
[2018] NZEnvC 087 Okura Holdings Limited & Others v Auckland Council [PDF, 11 MB]

Earlier story:
23 April 2018: Court rejects housing on Crater Hill & peninsula near airport

Attribution: Council release.

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2 courts uphold construction contracts principle of pay now, argue later on Okura project

The Court of Appeal has upheld a ruling on a $3 million Okura subdivision contract dispute requiring developer John Hamilton’s SOL Trustees Ltd to pay for work done before any counterclaim is considered.

Mr Hamilton claimed delays in earthworks by Giles Civil Ltd had cost him more than $1.1 million, so he didn’t make progress payments which came to about the same amount, even though his own engineer to the contract, Mike Lee (Airey Consultants Ltd), had approved about 6 months of extensions to the contract period.

Both High Court associate judge Hannah Sargisson and the Court of Appeal bench of Justices Christine French, Geoffrey Venning & Robert Dobson said Mr Hamilton’s responses to payment claims were inadequate, saying only that they were in dispute without specifying an alternative sum as required under the Construction Contracts Act 2002.

As well as the unpaid claims for work done on the 20-lot lifestyle subdivision at 268-278 Okura River Rd, at the top of the North Shore, Giles issued 2 statutory demands and has now applied to wind up Sol Trustees. 9 of Mr Hamilton’s other property companies have been wound up or removed from the Companies Register.

These 2 judgments emphasise the “pay now, argue later” basis of the 2002 contracts act, over-riding previous legislation which allowed disputes to run on without any payment of a claim for work done.

Under section 21 of the Construction Contracts Act 2002, a payer may respond to a payment claim with a payment schedule. If the scheduled amount is less than the claimed amount, the payment schedule must indicate how the payer calculated the scheduled amount, why the difference and, if it’s because the payer is withholding payment, why.

The Court of Appeal said in its judgments, released on 7 November: “We agree that technical quibbles should not be allowed to vitiate either a payment claim or a payment schedule that otherwise substantially complies with the requirements of the act. The issue in this case is whether the documents SOL relies on can be said to have substantially complied with the requirements of the act.

“It is clearly insufficient to simply assert the amount claimed is disputed, which is as far as SOL’s email responses to payment claims 13 & 14 went. SOL’s attempt to incorporate the earlier spreadsheet [setting out the costs of delay] as part of its payment schedule does not assist it. The spreadsheet cannot, either on its own or taken with the other emails referred to, satisfy the requirements of a payment schedule. At best it is SOL’s calculation of a potential counterclaim or setoff for delay.”

The court said a counterclaim or setoff of the nature SOL sought to raise couldn’t provide the basis for a payment schedule in response to a payment claim under the act: “To allow a counterclaim or setoff to be used in that way would be contrary to the purposes of the act to facilitate regular & timely payment by identifying the amount payable to the contractor for work done.”

Giles began work on the subdivision on 17 December 2012, with a scheduled completion date of 17 May 2013. The work wasn’t completed by then but the engineer to the contract allowed extensions which took the contract period up to 29 November 2013.

Mr Hamilton told Airey on 22 October that claim 10, for $565,000, was disputed, and prepared a cost over-run spreadsheet showing $1.12 million of resulting losses. However, he made a $230,000 part-payment of that claim. Airey certified the next 4 claims, and Mr Hamilton responded to each with an email saying they were disputed.

Counsel for SOL, Ben Molloy, submitted that the short email responses to claims 13 & 14 should not be read in isolation and could be read with the earlier spreadsheet & previous emails. However, the court concluded: “It is clearly insufficient to simply assert the amount claimed is disputed, which is as far as SOL’s email responses to payment claims 13 & 14 went.”

Attribution: Court of Appeal judgment.

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Bral makes new Redvale cleanfill application

Published 3 May 2010

Jurisdiction: Rodney District

 

Neighbourhood: Redvale

 

Applicant: Bral Holdings Ltd (the Alexander family)

 

Application detail: 1575 East Coast Rd, to undertake cleanfilling activities, depositing 295,000m³ (stage 2) in the north-western gully and 167,000m³ (stage 1) in the south-western gully over about 8.8ha (instead of the 280,000m³ approved under the original cleanfill consent in 2005)

 

Notification date: 27 April

 

Submission closure date: Wednesday 26 May

 

Details: The North Shore council opposed the original application, fearing cleanfill materials – including fibrolite, rock, plaster & clay products – would get into the sensitive Okura estuary, then opposed a proposed expansion in 2006.

 

Earlier story:

19 March 2006: Narrow Shore vote against taking over Rodney Okura land

21 August 2004: Shore council votes for appeal against Okura landfill

 

Want to comment? Go to the forum.

 

Attribution: Council notice, story written by Bob Dey for the Bob Dey Property Report.

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ARC grants earthworks consent for Okura subdivision

Published 17 May 2009

Jurisdiction: Auckland Regional Council

Neighbourhood: Long Bay

Applicants: Marvista Ltd (Richard Woodroffe, Belmont), Roger & Beatrice Clarke, Graeme & Lynette Peterson

Application detail: 258 Okura River Rd, 6.4ha of earthworks for a 24-lot residential subdivision

Non-notified consent date: 1 March

Want to comment? Go to the forum.

Attribution: ARC agenda, story written by Bob Dey for the Bob Dey Property Report.

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Narrow Shore vote against taking over Rodney Okura land

Published 19 March 2006


North Shore City Council’s strategic management committee voted 9-7 this week not to support a boundary change which would shift about 140 homes in Rodney District’s south-eastern Okura catchment into the neighbouring city.



But the proposal by 142 Rodney ratepayers will still go to the Local Government Commission – with North Shore mayor George Wood, a supporter of the shift, one of the team giving submissions to the commission against the shift.


Submissions close on Tuesday 21 March.


The 2 councils decided in December to send the proposal to the commission for a decision. But a North Shore report shows acquiring the extra properties in 4 Rodney meshblocks would be cashflow negative for it and it didn’t make sense in catchment terms such as landform & drainage.


North Shore would get an extra $376,000 plus gst/year of rates. It would take over 51km of roads with an estimated $600,000/year of maintenance costs, $500,000 of estimated annualised renewal needs, and likely water & wastewater infrastructure costs.


North Shore strategic planner Phil Chung & senior policy analyst Roger Matthews said in their report that if the land shifted councils, “it is likely that there would be demand for the council to extend its drainage services into the area and the cost to service the land could potentially be expensive:

an estimated $15-20,000/lot for water infrastructure, and
an estimated extra $15-20,000/lot for wastewater infrastructure.

“In addition any servicing of this area by water & wastewater-piped assets would lead to increased growth & development pressures.”


The roading costs picture is complicated because the interchange for the proposed Penlink route to the Whangaparaoa Peninsula would be near Wilks Rd, in the border-shift area. “The potential costs this would bring to the council are not easy to determine.”


There would be planning issues during a transition period – probably not greatly different from having to take 3 plans into account for a consent application in one council area.


While the increased growth pressure would increase costs, no estimate was given of greater long-term returns from that growth.


Shore confirms opposition to Redvale cleanfill


The Shore council committee also confirmed its opposition to an increase in its 280,000m³ cleanfill placement by Bral Holdings Ltd (the Alexander family) at Redvale, in a gully just over the border in Rodney.


Bral got consent last year from Rodney & the Auckland Regional Council to operate the cleanfill but has lodged new applications reducing the volume in the original gully to 160,000m³ and placing 295,000m³ in an adjacent gully, increasing the total fill by 62.5% to 455,000m³, over about 8.8ha.


The Shore council’s primary reason for objecting has been the special status of the Okura Estuary. It said there was potential for sediment to enter the estuary and proposed mitigation measures were inadequate.


If you want to comment on this story, write to the BD Central Discussion forum or send an email to [email protected].


 


Attribution: Council agenda, story written by Bob Dey for this website.

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Shore council votes for appeal against Okura landfill

North Shore City Council is still fighting to stop a proposed cleanfill facility across the border at Okura in the Rodney District.


The 2 councils differ on zoning at Okura, partly from their urban versus rural histories, partly from different approaches in general to ecological & environmental issues.


The Shore council has decided to appeal in the Environment Court against Rodney’s granting of the cleanfill consent to Bral Holdings Ltd (Clinton Brock & John Alexander), involving 20,000m³ of earthworks and unloading 280,000m³ of cleanfill rubbish on the site at East Coast Rd, Redvale.


The council’s strategy & finance committee resolved this week to send its chairman & deputy chairman, Cllrs Tony Holman & Andrew Eaglen, to represent it at a court-assisted mediation session on Wednesday 22 September.


The Auckland Regional Council recently reached agreement with the Bral on an amended proposal.


Shore sticks with “No more dumps” stance


But North Shore is concerned cleanfill materials – including fibrolite, rock, plaster & clay products – will get into the city’s ecologically sensitive Okura estuary.


The Shore council contrasted the other 2 bodies attitudes to its own “No more dumps in Okura” stance, and noted that the Environment Court ruled last year to protect the rural character of the Okura area by severely limiting earthworks.


Cllr Holman – who announced his candidacy for the mayoralty this week – said the councillors’ unanimous decision to keep the appeal alive reflected the depth of feeling on the issue & the strength of North Shore City’s case.


“I’m proud of our council’s firm stance in protecting this environment. We’re concerned about sediment & the long-term effect of noxious leachates from the so-called cleanfill draining into the Okura estuary.


“This proposal could devastate the water quality of the estuary & nearby Okura-Long Bay marine reserve, and could harm its indigenous plants, fish & animals.


“It may not be within North Shore City’s boundaries, but this site is important to us and our position reflects our long-term view for this unique, attractive environment.”


Shore’s strict controls based on Niwa research


The Shore council employed experts from Niwa (the National Institute of Water & Atmospheric Research Ltd) to determine appropriate levels of development in Okura. They found that existing cleanfills in the Okura area were significant contributors of sediment entering the estuary.


Councillor Holman said that as a result of the NIWA findings the council had put strict controls in place.


“We are limiting the amount of earthworks from subdivisions and have prohibited cleanfills from being developed in North Shore City’s part of the Okura area.


“We had hoped our northern neighbour, Rodney District, would join us in protecting this environment and take a cautious approach in safeguarding its part of this sensitive catchment.


“The proposal relies on many steps being taken to avoid major damage and it’s just not worth taking the risk, in our view.


“To give the cleanfill the go-ahead would send the wrong message to landowners, who have been told the environment is sensitive and they should limit earthworks. There needs to be integrated & consistent management within the Okura area as a whole.”


Bral Holdings directors Mr Brock & Mr Vincent are also directors of Alexander Civil Construction Ltd, which has been emptying fill at the councils’ East Coast Rd boundary for years, Huron Holdings No 30 Ltd and Schippers Cleanfill Ltd. Mr Brock is also a director of Badger Investments Ltd.

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Rodney joins appeal process against Shore’s Okura zoning

Northern council wants to protect against unwanted precedents

Rodney District Council has joined the Environment Court appeal process against North Shore City Council zoning at Okura, to protect the district against possible impacts from zone changes the district council doesn’t agree with.

And both councils have the Auckland Regional Council against parts of their rezoning of the Okura catchment.

In Rodney’s case, the regional council opposition extends to countryside living zoning embodied in its plan change 55 (to the existing district plan) and to Rodney’s proposed new district plan, which is to go through submission stages this year.

The Okura catchment straddles the border between North Shore & Rodney, from East Coast Rd across to the coast.
The two territorial councils agree on most aspects of Okura rezoning, but have taken different approaches to some aspects — the city council looking on the catchment as a valuable unsubdivided area needing protection, the district council regarding it partly as a buffer against Auckland’s urban sprawl but also as an area where smaller lot sizes could apply, allowing for 2ha countryside living lots.

The city council has gone through interminable debates on Okura’s future, most councillors preferring larger lot sizes (a 4ha average or minimum) and many expressing concern about matters such as revegetation and impervious surfaces.

Rodney’s forward planning manager, Peter Vari, went to the council today seeking endorsement of the staff’s proposed approach to the North Shore appeal proceedings, but got some conflicting ideas put to him before that endorsement was granted.

Stricter conditions find support

The mayor, John Law, and a few councillors thought some of the stricter conditions the Shore council wants to impose, but aren’t in the district council’s proposals, were good ideas.

One of the Shore rules the regional council wants to impose on Rodney concerns revegetation of slopes greater than 15°. “We don’t know what the cost would be — $10-15,000/ha?” Mr Vari said. “It’s a cost on our ratepayers. We want to know if there’s a resource management justification for it. If it’s proven [that there is justification] we’ll probably have to accept it.”

Apart from wanting 4ha minimum lots, Mr Vari said the regional council also initially wanted Rodney to create structure plans through all its rural areas before offering countryside living zoning. This opposition had now been boiled down to the effect on water in the catchment. “They’ve given up on landscape and those sorts of issues.”

Cllr Elizabeth Foster noted that Rodney had no rule on impervious surfaces or riparian protection, both of which she thought were sensible.

Cllr Rob Thompson felt the North Shore rules gave a better landscape. “Perhaps we should change our rules,” he said.

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May court hearing on Okura

ARC supports Shore provisions, Rodney appealing

Appeals against the proposed North Shore district plan relating to the Okura catchment have been set down for hearing over 3 weeks from 20 May.

The Auckland Regional Council said it would support the North Shore City Council in the introduction of detailed district planning provisions for the North Shore portion of the catchment (the rest is in Rodney). The regional council also wants some of the North Shore provisions amended.

Rodney District Council is also appealing, to make sure outcomes south of the border don’t impinge on Rodney proposals north of the border.

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Okura subdivision rules hearing opens in Environment Court

Council says it sits in the middle of a range of views

The 3-week hearing to determine subdivision rules on the North Shore side of the Okura catchment began before Judge John Bollard & 2 commissioners in the Environment Court today.

“In short, the issue for determination by the court is whether further subdivision should be provided for within the Okura catchment [North Shore side] and, if so, the extent of subdivision which will best ensure that adverse effects on the environment are appropriately avoided, remedied or mitigated,” North Shore City Council’s counsel, David Kirkpatrick, said in opening his submissions.

The council settled on a 2ha minimum subdivision limit and a maximum 1875m²/site earthworks limit. It also decided to require a non-complying-activity resource consent for minor household units to ensure these units can’t be used to increase the level of subdivision & development “beyond that which can be accommodated without adverse effects on landscape values.”

[A report on rural zoning & minor residential units is before the council’s strategy & finance committee today, with a recommendation the await the Okura court hearing outcome before reviewing rural lot sizes and the status of minor residential units.]

North Shore patch is 18% of whole Okura catchment

The Okura catchment covers 2611ha on the North Shore City-Rodney District border, of which 2139ha falls within Rodney and the remaining 472ha within North Shore.

The 2 local councils and the Auckland Regional Council have worked together to formulate plans for the catchment, but there are some differences north & south of the border.

Both councils regard it as a green-belt area, with an ability for some subdivision. The Okura-Long Bay Great Park Society, 1 of several environmental groups making submissions to this hearing, has campaigned for a public park covering the bulk of the Long Bay catchment immediately down the coast from Okura, and incorporating a fair patch of Okura as well.

Smaller landowners, banding together as Protect Rural Okura, want to preserve their ownership rights. 2 large landowners, Okura Estates Ltd and Okura River Farm Partnership, have battled for subdivision rights.

Within the North Shore part of the catchment, the Okura village occupies 13.7ha and has an average lot size of 1164m². Elsewhere in the catchment, lots average 4ha.

Zoned now for future urban expansion

Under the transitional North Shore district plan, the land was zoned rural – future residential, allowing subdivision down to 3ha and separate provision of retirement lots of about 4000m². In the proposed district plan (most of which was endorsed by the Environment Court today to be implemented, but excluding several areas still in contention, such as Okura), the zoning was similar and termed residential expansion.

Also in the picture is the metropolitan urban limit, which was moved north by an Environment Court ruling in 1997, from Glenvar Rd to Vaughan’s Rd, along the ridgeline between the Okura and Long Bay catchments.

Proposed zones split undulating & holly sides

Under the proposed new zoning provisions, the Shore side of the catchment is divided into 2 zones, rural 4(i) to reflect the steeper bushclad western part and rural 4(ii) for the more undulating eastern part.

In rural 4(i), the proposed minimum site area is 5000m² and the average 2ha. In rural 4(ii), the minimum is 2ha.

Cluster housing was the subject of intense debate in the council, which eventually made it a limited discretionary activity in both zones where it complies with a set of rules which include a minimum site area of 20ha, average 2ha density and preparation of a rural structure plan.

Big variation between the parties’ ideas

Mr Kirkpatrick said evidence from the council’s senior environmental policy advisor, Tony Reidy, and Boffa Misekell Ltd landscape architect Rachel de Lambert was that the council proposal would allow 144 more dwellings at Okura. Okura Estates Ltd & Okura River Farm Partnership want comprehensive rural residential development with a 1ha site average, minimum 2500m² site. That would allow for 346 more dwellings. The environmental groups wants a 4ha minimum, which would allow 47 more dwellings.

Their evidence would also show that allowing minor household units to be built as a controlled activity had the potential to double the number of dwellings.

Differences between councils

Rodney District Council’s forward planning manager, Peter Vari, told his council in January the northern council would be represented at this hearing to guard against possible impacts from zone changes that Rodney doesn’t agree with.

The same law firm, Simpson Grierson, acts as solicitor to Auckland, North Shore and Rodney councils and, at the hearing, Mr Kirkpatrick represented both North Shore and Rodney councils. He confirmed for Judge Bollard that “the position of the Rodney District Council is to support the stand of North Shore City” — a view which conflicts with the precautionary stance of Rodney and raises a question about how well Rodney has framed its quest for legal advice.

Earlier stories:

Councillors fluff Okura zoning exercise

Shore councillors support lifestyler-sized Okura subdivision

Shore councillors reject smaller cluster housing lots

Rodney joins appeal process against Shore’s Okura zoning

ARC supports Shore provisions, Rodney appealing

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Shore councillors support lifestyler-sized Okura subdivision

No-subdivision option for part of catchment rejected

North Shore City councillors have knocked out the preservationist land-zoning category for Okura and opted for moderate development of the area at the top of the city.

The council’s strategy & finance committee debated Okura again on Wednesday, after looking at three zoning scenarios in December.

Scenario 1E, the proposed rural 4(i) zone of the previous report and canned by the time recommendations went to the committee meeting, would have allowed no further subdivision on a fair spread of Okura.

The committee decided in December it wanted more options investigated, such as an average 4ha lot size with a minimum of 2500m², and an average 2ha with minimum 5000m², as in the proposed rural 4(ii). In addition, some councillors were concerned at potential inconsistency with the city’s existing rural 2 and 3 zones, and that the strict covenant of the rural 4(i) proposal would penalise owners compared to owners of similar rural-zoned land.

The December meeting also ended with a requirement that the proposals be put to landowners and interest groups for further comment.

2ha average and 2ha minimum sub-zones approved

The upshot of this week’s debate is that the no-subdivision scenario is out, and the committee endorsed the Okura rural 4 zone with two sub-zones, (i) with the 2ha average and 5000m² minimum, (ii) with a 2ha minimum.

Preservationists mostly wanted a 4ha minimum retained. There are some mitigation clauses, such as protecting heritage sites and the marine environment before discretionary subdivision activities are carried out. And there is a rider on rural 4 (i) subdivision requiring covenanting of the balance of the site area where appropriate.

The covenanting issue was agreed unanimously by the committee. Because a large proportion of Okura landowners believed the preservationist scenario would have cut land values, and they therefore argued they wouldn’t want or be able to carry out environmental mitigation measures, they’ll be happy that scenario 1E has been axed.

But they won’t be happy about covenanting, because that would also prevent further subdivision.

Similar to Rodney zoning

The North Shore zones are similar to the countryside living zones of the Rodney District Council, part of Okura. Rodney has also gone for a cluster housing concept on properties exceeding 25ha, but the Shore committee let that possibility slip for the moment. It will come back to the committee for further consideration, probably next month after a workshop.

Because the committee resolutions were drafted to be part of consent order negotiations instead of being a variation to the district plan, they will go to parties who have been involved in negotiation on Okura in the Environment Court.

That means more negotiation and possibly litigation, but not a fullscale resumption of the process from the start, which would take the issue back to where Principal Environment Judge David Sheppard left Okura in 1996, outside the metropolitan urban limits and therefore to remain rural.

December 2000 Okura report

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