BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA

IN THE MATTER

BETWEEN

AND

AND

AND

Court: Environment Judge C J Thompson Environment Commissioner I A Buchanan Environment Commissioner J R Mills

Decision No: [2018] NZEnvC 3q ENV-2016-WLG-000062 & 064

of appeals under section 120 of the Resource Management Act 1991

WATERFRONT WATCH INCORPORATED and MICHAEL PETER CECIL GIBSON

Appellants

WELLINGTON CITY COUNCIL

Respondent

WELLINGTON CITY COUNCIL -BUILD WELLINGTON

Applicant

WELLINGTON CIVIC TRUST

s 274 Party

Hearing: at Wellington 19 - 22 March 2018. Site visit 26 March 2018 Counsel and parties o J S Laing and E H Wiessing for Wellington City Council - Build Wellington K E Krumdieck for Wellington City Council - respondent M J Slyfieid and J W Burton for Waterfront Watch Inc - appellant M P C Gibson - appellant J McMahon - Wellington Civic Trust - 274 party

DECISIONS ON APPEALS

Decision issued: -,6 APR 2018 The appeals are declined - see para [45]

Introduction

[1] These are appeals against a decision of the Wellington City Council to adopt

the recommendations of independent Commissioners to grant resource consents to

enable the redevelopment of the area known as Frank Kitts Park (the Park) on the

harbour waterfront of Wellington City. Formerly part of the working wharf area, it first

began to be developed as a park in the early 1970s and has existed in more or less

its present form since c1990. The area lies between the shoreline and the busy

six/seven-lane arterial road of Jervois Quay. Immediately to the west of that roadway

are the high-rise buildings of the CBD. To the north of the Park is the redeveloped

Queens Wharf area with the TSB Arena being closest to the Park. To the south of

the Park, towards Cable Street and Taranaki Street, is the Whairepo Lagoon and its

associated buildings and infrastructure. There is no proposal to change anything

about either the TSB Arena end of the Park, the Whairepo Lagoon area, or the

waterfront promenade.

[2] Presently, Frank Kitts Park contains a children's play area in its northeastern

corner. Moving south there is then a grassed area, including what is known as the

amphitheatre, although the raised seating around it is low. There is then open lawn

until one comes to the access to the raised lawn which is in fact on the roof of an

underground carpark building. Between the eastern park edge (which is a high wall)

and the water is a wide promenade, which provides pedestrian, cyclist (and, as

required, vehicular) access north/south between Queens Wharf and Taranaki Street.

The Proposal

[3] The proposed modifications to the Park are these:

(1) Demolition of the existing amphitheatre and associated promenade walls.

(2) Earthworks to level the surface of the park (except above the carparking

building).

(3) The creation of two flat open lawns, the northern-most to be called the

Harbour Lawn and, above the carpark building, the City Lawn.

(4) The expansion towards Jervois Quay and upgrade of the children's

playground, which will include repOSitioning the lighthouse slide structure.

(5) The construction of a Chinese Garden, to be known as the Garden of

Beneficence, which is to be located across the area of the park which marks

the transition between the City Lawn and the Harbour Lawn.

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(6) The removal and replacement of the memorial plaques currently located on

the promenade wall, and the relocation of the Wahine mast (also a

memorial).

(7) The construction of a pavilion structure adjoining the Chinese Garden.

(8) A pergola structure on the southern elevated edge of the site to provide

shelter to that part of the City Lawn.

(9) Related seating, lighting, landscaping and paving.

Activity Status

[4] The modification of the existing open space within the Lambton Harbour Area

requires consent under Rule 13.4.5 as a discretionary (unrestricted) activity. The

construction of structures to form the Chinese Garden will require consent as a

discretionary (unrestricted) activity under Rule 13.4.7. The disturbance of material

over the park surface with cut heights of up to six metres and fill depths of up to four

metres with imported fill being required will require consent as a discretionary

(restricted) activity under Rule 30.2.2. Overall then the proposal would require

resource consents as a discretionary (unrestricted) activity. That means that the

applications are to be considered under s1 04 and Part 2 of the Act.

[5] There is no issue about them, but for completeness we set out the Rules just

mentioned in full:

13.4.5 The development of new, or the modification of existing open spaces in the Lambton

Harbour Area is a Discretionary Activity (Unrestricted). Except that this Rule does not

apply to:

• the maintenance of existing open space (which is a Permitted Activity).

13.4.7 The construction of new buildings and structures, or the alteration of, and addition to

existing buildings and structures in the Lambton Harbour Area which:

• do not satisfy any of the criteria for minor additions and alterations in Rule

13.3.5; or

• are within the Queens Wharf Special Height Area (as shown in Appendix 4)

but do not meet the standards specified in 13.6.1 (activities, buildings and

structures) and 13.6.3 (buildings and structures) are Discretionary Activities

(Unrestricted).

30.2.2 Earthworks that do not comply with the permitted activity conditions under Rule 30.1.3

(Central Area) are a Discretionary Activity (Restricted).

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The parties' general positions

[6] As matters progressed and developed, it became clear that previously raised

issues such as shading of the Park, or its exposure to wind, were not in real contention

(although Ms Yon Yi Sohn for the Civic Trust did raise shading in her evidence, and

there was some, almost passing, reference to wind, and we will return to those

matters). Nor did previously expressed issues about the resiting of the memorial

plaques and the Wahine mast feature in evidence, and we need not deal with them,

as they raise no relevant issues.

[7] For the Waterfront Watch appeal, the real points of difference resolved down to

issues of access to and along the waterfront, and, more prominently, issues about

two viewshafts defined in the District Plan. These are Viewshaft 10 from Lambton

Quay down Hunter Street towards the harbour and, in particular, Viewshaft 11, from

the corner of Lambton Quay and Willis Street, down Willeston Street towards the

harbour.

[8] The Wellington Civic Trust took a limited role in the hearing, in terms of not

wishing to cross-examine other parties' witnesses, but did present evidence from Ms

Sohn and Messrs Jim McMahon (Chair of the Trust), Clive Anstey (planning and

design), and Stephen Dunn (landscape).

[9] Mr Gibson focussed, primarily, on the issue of the safety of the Chinese Garden

for those venturing into it. Shortly put, he argued that its intricate layout of small and

secluded spaces presented the opportunity for ill-intentioned people to threaten,

assault, or otherwise harm innocent visitors. He pointed to the evidence of Dr Frank

Stoks, an expert on Crime Prevention Through Environmental Design (CPTED) as

supporting that concern.

[10] Mr Gibson also called Ms Janice Campbell who, briefly but powerfully, raised

the issue of access to and within public spaces for people who are dependent on

wheelchairs or mobility scooters for their mobility. For the lawn areas of the proposed

redevelopment we see no great issues arising in that context, save of course for the

fact that grass surfaces may be more difficult to traverse than sealed, and allowance

should be made for that. But there is definitely a concern to be taken account of in

'~?0 the final design for the Chinese Garden area, both in terms of the intricacy of spaces, ,,:<" ~\

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[11] There was also a rather more generalised view, across the opposing parties,

that the proposed redesign of the park was unnecessary because the present layout

worked quite adequately. It was also argued that there would be loss of visual amenity

because of the proposed removal of some trees (eg the Norfolk pines presently along

the seaward edge of Jervois Quay) and the relocation of a number of Pohutukawa

trees within the park.

Expert Witness Conferencing - planning documents

[12] As is customary in proceedings in this Court, expert witnesses to be called by

the parties conferred according to their fields of expertise. The expert planning

witnesses for the Council as Applicant - Mr Alistair Aburn; for the Wellington City

Council as Respondent - Ms Lisa Hayes; and for Waterfront Watch Inc - Mr Mark

Ashby, all conferred and agreed that, in terms of planning documents and statutory

instruments the New Zealand Coastal Policy Statement 2010, the Wellington

Regional Policy Statement and the Wellington City District Plan (including a review of

the central area provisions, operative since 16 October 2013), are all relevant

documents. Of them all, the District Plan is the primary statutory document for

consideration. The experts agree that the District Plan is not incomplete or invalid in

terms of consistency with both the Coastal Policy Statement or the Regional Policy

Statement.

[13] The experts also agree that the Wellington Waterfront Framework 2001 is a

relevant non-statutory document. The Framework sets out the City Council's long­

term vision for the waterfront and was prepared following extensive consultation and,

as the experts put it, ... today remains the Wellington City Council's strategic policy

document guiding waterfront development. They consider it to be a relevant other

matter under s104(1)(c). In particular, our attention was drawn to this extract:

There is a concern that the Park faces the City and does not open out to the water's edge.

However, with the exception of the need for improvements around both the Quay edge and the

water edge, and the end of the Events Centre, work in this area is not seen as a priority.

[14] The planners also agree that there is no relevant permitted baseline for

consideration and that issue can be put aside.

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[15] Of all the issues raised by the parties, the experts agree that the argued effects

on Views haft 11 (VS 11) was the primary matter for consideration. We agree. At best

other issues raised were matters of preference, or complaint, and were at best

peripheral in principled RMA decision-making. Viewshaft 10, we should specifically

mention, would not be intruded upon and any changes to what may be seen looking

along it would be trifling. It need not be taken further.

Other background issues

[16] The first development of Frank Kitts Park occurred over the course of 1989/90

and it was reviewed by a Community Consultative Committee in 1996 as part of a

review of the whole Lambton Harbour project. It is interesting to note that the

Committee's report of 1996 (ie 22 years ago) recorded that:

Frank Kitts Park looks tired and uninspiring. The children's area is considered poor quality.

We think that open space areas/parks should be developed in a necklace effect from the existing

Frank Kitts Park to the Overseas Passenger Terminal. This supports the notion of creating

interesting journeys and experiences as a way of encouraging people to move around the

waterfront.

The orientation of Frank Kitts Park is wrong and needs to be fixed. The Jervois Quay edge of

Frank Kitts Park could include a low rise built environment which would create a degree of

protection from the noise of Jervois Quay traffic and, most importantly, a more comfortable and

useable park environment. We note that the Jervois Quay side of Frank Kitts Park is

underutilised due to the proximity of the road.

In conclusion, the Committee's direct recommendation about the Park was:

Frank Kitts Park be redesigned to re-orientate the Park towards the water.

Given the time lapse since that Report, it could hardly be argued (as it was, if only

faintly and in passing) that the redesign process has been rushed and not sufficiently

thought through.

[17] Mr Aburn concludes, and we cannot but agree, that following those documents

through, it is apparent that over the history of the Park, there have been a number of

acknowledgements that improvements could be made to better integrate the Park with

its waterfront context, but until now that has not occurred.

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District Plan provisions

[18] The District Plan provisions of direct relevance are the following Objective,

Policies and Standard:

Objective

12.2.8 To ensure that the development of the Lambton Harbour Area, and its connections

with the remainder of the city's Central Area, maintains and enhances the unique and

special components and elements that make up the waterfront.

Policies

12.2.8.1 Maintain and enhance the public environment of the Lambton Harbour Area by guiding

the design of new open spaces and where there are buildings, ensuring that these are

in sympathy with their associated public spaces.

12.2.8.2 Ensure that a range of public open spaces, public walkways and through routes for

pedestrians and cyclists and opportunities for people, including people with mobility

restrictions, to gain access to and from the water are provided and maintained.

12.2.8.3 Encourage the enhancement of the overall public and environmental quality and

general amenity of the Lambton Harbour Area.

12.2.8.5 Recognise and provide for developments and activities that reinforce the importance

of the waterfront's Maori history and cultural heritage.

12.2.8.6 Provide for new development which adds to the waterfront character and quality of

design within the area and acknowledges relationships between the city and the sea.

12.2.8.7 Maintain and enhance the Lambton Harbour Area as an integral part of the working

port of Wellington.

12.2.8.8 To provide for and facilitate public involvement in the waterfront planning process.

Standard

13.6.3.3.1: No building or structure shall intrude on any viewshaft shown in Appendix 11

Where a proposed development would intrude on a viewshaft, Section 3.2.2.17 sets

out the information requirements for an application:

Where a development intrudes upon an identified viewshaft, line drawings of the development

in relation to the viewshaft must be supplied to demonstrate the level of compliance with the

relevant viewshaft standard. The drawings must be of a scale that allows the accurate

assessment of the visual effects and must be accompanied by a certificate from a registered

land surveyor or person with an appropriate level of professional expertise.

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View Shaft 11 (Wil/eston Street)

[19] As noted, this view shaft became the significant issue at both the expert

witnesses' conference, and at the hearing. At paragraph 47 of the Planners Joint

Witness Statement, they said this:

It was determined that the planning experts would be unlikely to reach agreement on this matter;

however, the following matters were identified as relevant to this assessment:

• First, the focal and context elements of the view shafts;

• Whether or not a focal element can be changed; and

• Whether vegetation should be disregarded when considering view shaft effects.

[20] Viewshaft 11 is defined at Appendix 11 of Chapter 13 of the District Plan. Its

description is:

Viewpoint Location:

Shoreline plaque, western corner of intersection between Lambton Quay and Willis Street at

Stewart Dawson's corner. This location lies along the Golden Mile.

Height of ground: 3.2m

Eye level: +1.5m

Viewpoint: 4.7m (above mean sea level).

Focal Elements:

St Gerard's. Frank Kitts Park

Context Elements:

Clyde Quay Wharf (ie Former Overseas Terminal), Oriental Bay, Roseneath and Te Ranga a

Hiwi Precinct.

The left margin of the viewshaft is given as Southern corner of 22 Willeston Street (Lot 1 DP

328873). The right margin is: Northeastern corner of 5 Willeston Street (Lot 6 DP 10811). The

Base is: Ground level1.8m Jervois Quay.

To explain those margins, the southern corner of 22 Willeston Street is at the north­

western corner of the intersection of Willeston and Victoria Streets. The corner of 5

Willeston St is the southern corner of Wiliest on Street and Jervois Quay. Those points

define the borders of the viewshaft, and it is the space so defined that is protected as

Viewshaft 11.

[21] The term Focal Element is defined in Chapter 3.10 of the District Plan as:

... in relation to a views haft, one of a number of components that are the primary purpose for the

view. Focal elements are the outstanding element (sic) that a view focuses on.

8

... in relation to a Viewshaft, the components that surround focal elements and provide the

setting for those elements. They provide the overall context for the view.

The term Townscape is also defined in the Plan as:

... the visual appearance of a neighbourhood when viewed from surrounding public spaces. It

includes the collective image of, and relationship between, the following elements:

• setting and landscape.

• the lay-out of streets, lanes and footpaths.

• subdivision patterns.

• buildings and structures.

• gardens and open spaces.

[22] So, Viewshaft 11 runs down Willeston Street from Stewart Dawson's Corner,

within the margins given, to the harbour area. Its focal elements - the components

that are the primary purpose for the view - are St Gerards and Frank Kitts Park. The

context elements - those that surround the focal elements and provide the setting for

them - are Clyde Quay Wharf, Oriental Bay, Roseneath and Te Ranga a Hiwi Precinct

[23] The District Plan provision directed at protecting public views is Policy 12.2.6.7

which reads:

Protect, and where possible enhance, identified public views of the harbour, hills and townscape

features from within and around the Central Area.

The methods for giving effect to this provision are indicated as being Rules and

Design Guides. The explanatory note reads as follows:

Specific views of the harbour, local hills and townscape features are an important part of the

cityscape that Council seeks to preserve. Rules in the Plan protect identified view shafts, making

it a Discretionary Activity (Restricted) for developments that intrude upon a listed view.

When assessing an application to intrude on an identified view shaft, Council will consider:

• whether the development frames the view horizontally or vertically from the edges of the

view shaft. The relationship between context and focal elements should be maintained.

• whether the development breaks up the view vertically or horizontally. This in general will

be unacceptable unless the intrusion is minor.

• whether the development intrudes upon one or more of the view's focal elements. This in

general will be unacceptable.

• whether the development removes existing intrusions or increases the quality of the view,

particularly in relation to focal elements.

9

• in the case of proposed verandahs, the extent to which it would be screened by another

verandah or building element in the foreground, or contained within the outline of a building

(that is not a context or focal element) in the background.

It is noted that vegetation intruding into a view shaft will generally be disregarded when assessing

applications, particularly where pruning or a plant's deciduous nature would restore the view

shaft's quality.

The environmental result will be the protection of significant public views.

Discussion of the Viewshaft issue

[24] First, there will be no intrusion into the Viewshaft, in the sense of its margins

being narrowed, or some similar effect. It is plain that there will be no change to the

ability to see St Gerard's from the viewshaft. That can be put aside. Given that Frank

Kitts Park is a focal element of the Viewshaft, what considerations might prevent it

being changed? Are there considerations to be taken account of which are different

from those to be considered in a proposed modification of existing open space in the

Lambton Harbour Area under Rule 13.4.5? (See para [5]).

[25] We cannot see that there are. The part of Frank Kitts Park that is relevant is its

western side, facing Jervois Quay and opposite the eastern end of Willeston Street.

What the observer, standing at Stewart Dawson's Corner, sees of the Park at present

is trees, a small grassed area and, further towards the harbour, a grey concrete wall.

If the redevelopment proceeds, that observer will see trees, a somewhat higher and

closer grey concrete wall and four steel columns with high horizontal bars (ie the

Gateway into the Chinese Garden). The structures of the proposed Garden will be

somewhat higher than what is presently visible from the Viewshaft, but given that

there is presently no view of the harbour itself, and that the view of the other focal

element of St Gerards, and the views of the context elements of Oriental Bay,

Roseneath and Te Ranga a Hiwi Precinct will remain largely intact, with any loss of

the view of, eg, a small area of grass and the presence of a somewhat higher and

closer wall is, at worst, minor. If the observer moves further east on Willeston Street

a wider vista - northwards towards the open space of the Park - southwards towards

the lagoon - will open up. Again, the difference will be minimal - the nett result is no

more than that the viewshaft's focal element of Frank Kitts Park will have a somewhat

different frontage to Jervois Quay.

10

Discussion of the other points of contention

[26] In considering Mr Gibson's position about creating an inherently unsafe space,

we accept of course the logic of the view that relatively small and intricate spaces that

are wholly or partly sheltered from the view of persons in the wider area can present

an opportunity for wrongdoing. That is the point made by Dr Stoks when he says

[para 34 EIC]:

There are also certain inherent, essential, and therefore largely unavoidable aspects of the

design of the garden which create CPTED challenges. These challenges relate to the safety of

people in and around the vicinity of the garden afterhours as well as the protection of the garden

itself and its appointments from damage and abuse.

The short point is that such small spaces are a requisite feature of an authentic

Chinese Garden, and there are ways of minimising the risks.

[27] The identified risk is to be managed by preventing entry at times when darkness

would provide a further and stronger element of opportunity or disguise for

wrongdoers. That, as we see things, will not present any significant disadvantage to

those who wish to enter the Garden simply to enjoy its features - the hours of

darkness will not be the time they would choose to do so. The risk to the gardens and

to law abiding visitors can be responsibly managed in that way, and any residual risk

is well short of justifying a declining of consent.

[28] We accept Ms Sohn's point that, particularly in winter, the expanded playground

at the northern end of the Park will be shaded, wholly or partly, by the high buildings

on the western side of Jervois Quay from relatively early in the afternoon. Over

summer, the shade will arrive later, of course. In either event, we do not see that as

a reason to decline consent for the Park as a whole, and the accompanying

opportunity to provide visiting children with a much bigger and improved destination

playground. In winter, they will likely be well wrapped up and, in summer, relatively

few will be brought to the area late in the day in any event. Issues 9f safety from traffic

hazards, either on Jervois Quay or from delivery and other vehicles moving around

the southern end of the TSB Arena, can be readily and adequately dealt with by

standard fencing - as is already present between the existing playground and the

Arena area.

[29] Called for Waterfront Watch, Mr Richard Reid, an Architect and Landscape

___ --o __ p I';y, Architect, spoke to a series of photographs he had taken in the course of recent

«' ~ents held on the Waterfront, with the existing Park as a focal point. They were the

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Capital Classic Swim, held in January 2018, the Chinese New Year Parade and the

associated Fireworks display, and the Round the Bays Run, both in February 2018,

and the Relay for Life - a running event held on 17 March 2017. The Capital Classic

swim and the Chinese New Year Parade/Fireworks display both show the balustrades

at the top of the wall on the shoreward edge of the promenade being used as informal

viewpoints, with spectators standing behind them and leaning on them, or sitting on

them, while watching the events. The participants and spectators for the Round the

Bays run were focussed on the other edge of the Park - the Jervois Quay frontage,

with the roadway being used as the track for the running event.

[30] We accept that the present layout and design do work for the sort of events Mr

Reid commented on. Between them, the Council staff and the event organisers make

them work well within the space and layouts they have. That is not to say that the

layout might not be improved by making available more flat areas for tents, marquees,

temporary toilet and shower facilities, food stalls, and the like. It can also be improved

by turning the Park's focus towards the Harbour and less focussed on a six/seven

lane arterial road.

[31] Such changes may not be to the taste or preference of everyone, but those are

not the criteria for decision-making under the Resource Management Act.

[32] Waterfront Watch witnesses raised, in a rather generalised way, the view that

the proposed Garden, stretching as it would from east to west across the Park, would

fracture or disrupt accessibility along the Park from north to south. Certainly there will

not be the present easy access from the middle of the lower northern area to the

raised area, or vice versa, because the structures of the Garden will at I~ast partially

obstruct that. But the access at either end of the Garden (ie at the waterfront

promenade, or beside Jervois Quay) will not be hampered, and we see no great issue

arising from that. Further, access across the Park, from the Quay to the waterfront,

or vice versa, will be greatly enhanced by the removal of the high promenade wall,

and the amphitheatre.

[33] There was a suggestion too that the revised layout would make the Park area,

as a whole, more windy. With no wish to seem flippant, we are dealing with an open

area in Wellington. Wind effects are inevitable, but we are conscious of the general

. oj..'" SE.AL o~?''X uidance of Policy 12.2.5.8 - Ensure that the wind comfort levels of important public "v <.<' s aces are maintained. We accept that in a (comparatively rare) south-easterly wind,

12

the absence of the high promenade wall might make the lower lawn area of the Park

area a little more exposed. With a more common north-westerly, it is difficult to see

how the Park area would be more exposed than it is now, but one must accept that

the promenade, deprived of the sheltering wall would likely be somewhat more

exposed. However that may be, we do not see the issue as influential, and certainly

not decisive, in the overall picture.

[34] The removal and replacement of trees presently in and around the Park, really

an issue of amenity, was also raised. Presently there are 10 Norfolk Pines (11 if we

count the one north of the TSB Arena carpark entrance) along the boundary of the

Lagoon and Park, and Jervois Quay. The proposed redevelopment involves

removing them. The Council's urban design and landscape architect witness, Ms

Robyn Simpson, commented that they, or at least some of them, were not particularly

attractive specimens and are of varying heights and circumferences. Observation on

our site visit rather confirmed that, and we see no real issue with the proposal to

remove them and to utilise some of the mature Pohutukawa presently around and

within the Park to replace them along that boundary. They, as has been shown in

other projects around the City, can be successfully resited.

Statutory considerations - s104 and Part 2

[35] So far as is relevant to this matter, s1 04 requires us, subject to Part 2 of the Act,

to have regard to:

(a) any actual and potential effects on the environment of allowing the activity; and ...

(b) any relevant provisions of-

(i) a national environmental standard:

(ii) other regulations:

(iii) a national policy statement:

(iv)a New Zealand coastal policy statement:

(v) a regional policy statement or proposed regional policy statement:

(vi) a plan or proposed plan; and

(c) any other matter the consent authority considers relevant and reasonably necessary to

determine the application ....

13

[36] Strictly, it is not necessary to examine the Part 2 provisions beyond their

coverage in the planning documents1 but we note, for completeness that we have

considered Part 2 - being sections 5, 6, 7 and 8 - and we do not think that there is

anything requiring analysis that has not been considered in looking at the effects of

the proposal and the Plan provisions, with the exception of the matters in the ensuing

two paragraphs.

[37] First, in terms of s6 matters of national importance we can briefly mention that

there is no natural character in this area of waterfront. It was formerly part ofa working

port and it is now plainly a man-made area. That is not to say that either the area, or

the proposed use, are inappropriate. On the contrary, it presently provides a useful,

pleasant and functional recreation area within the City, and we consider that the

proposed redevelopment will enhance those qualities.

[38] Further, it will maintain access to the marine area for the public, and in terms of

Maori connections to the area, we note that the proposal has been given express

approval by The Wellington Tenths Trust and The Palmerston North Maori Reserve

Trust and we may take that as indicating that there are no issues arising under s6(e)

or s8.

[39] We have discussed the actual and potential effects in considering the points of

view and the evidence put forward. We conclude that adverse effects will be

insignificant and the positive effects of the proposal will outweigh them by a good

margin.

[40] The planning documents to be considered resolved to a consideration of the

District Plan provisions which, it was evident, are consistent with the higher order

documents and give effect to them. There is nothing in the proposal that is in conflict

with any provision of the District Plan.

[41] We have mentioned the Wellington Waterfront Framework 2001 as a relevant

and helpful other matter.

[42] We have the clear view that the proposal uses the resources available in a way

that will enable people and the community to provide for their social, economic and

cultural wellbeing. If tastes and demands in the future dictate some other type of

development on the Frank Kitts Park space, there is nothing in the proposal which

could not be undone and remade

Conclusion

[43] We accept of course that reasonable and informed people might have different

views about where a Chinese Garden might best be located in the City, and different

views about the style and layout of the balance of the Park. But we can only deal with

the application put before us, and the evidence about this proposal is what we have

to consider. Shortly put, there was no supportable or sufficient reason put forward to

indicate that the positives arising out of the proposal should be regarded as

outweighed by any negatives and that the resource consents sought should not be

granted. In fact our conclusions are quite the opposite of that - we see the proposal

as having positive outcomes and no adverse effects of any significance, and as being

comfortably within the provisions of the planning documents.

Section 290A

[44] Section 290A requires us to have regard to the Council's decision (ie the

adoption of the Commissioners' decision of 11 November 2016), but that does not

create a presumption that it is correct, or mean that we have to follow it. Implicitly at

least, it would though call for an explanation if we should come to disagree with it. As

will be apparent, the evidence and submissions we heard have led us to the same

conclusion, for essentially the same reasons, and nothing further need be said about

the earlier decision.

Result

[45] For the reasons discussed, the appeals are therefore declined and the resource

consents should be granted.

[46] Draft conditions for those consents were proffered at the hearing. We do not

have any issues to raise about them, but the parties will have 10 working days from

the date of issue of this decision to submit any further suggestions about the content

of them.

15

Costs

[47] Costs are reserved. Any application should be lodged and served within 15

working days of the issuing of this decision, and any response lodged and served

within a further 10 working days.

Dated at Wellington the

For th

C J Thompso~ Environment Judge

day of April 2018

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