The Commissioner welcomed those in attendance and outlined the meeting procedure.

Minutes of a meeting of a Commissioner Hearing OPEN Time and date: 9.00am, Monday, 26 October 2010. Venue: Commissioner: In Attendance: Committee Advisor: Council Chamber, Garden Place, Hamilton. Mr A Bickers Mr D Radich - Planner Mrs S D Collins SECTION A: DECISION MADE UNDER DELEGATED AUTHORITY FOR NOTING BY COUNCIL 1. 48/P11-8. Limited Notified Application for Land Use Consent at 106 Pembroke Street by WM & JE Gallagher. The Commissioner to consider the above application, evidence and reports from consultants, staff and submitters. The Commissioner welcomed those in attendance and outlined the meeting procedure. At the invitation of the Commissioner, the Planner, Mr Radich, presented an overview of the report, the location of the subject site detailing plans, and the issues to be considered. EVIDENCE BY THE APPLICANT Appearance on behalf of WM & JE Gallagher: P H Cooney - Legal Counsel for the Applicant W M & J E Gallagher - Applicant R D Hewison - Surveyors Ms L Smith - Planner Mr Cooney read from his written statement which outlined the reason Mr & Mrs Gallagher were applying for retrospective consent to approve structure wall encroachments into the boundary set-back and height plan along a right-of-way boundary to the north/west of their property at 106 Pembroke Street, Hamilton. The applicants are seeking retrospective consent for the following:- ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 1 of 16

a) A height exceedence for the structure wall on the north/west right-of-way boundary of up to about 40cm above the 53.830 datum level (height of 3.88m). This translates into an increased wall height of about 4.2m measured from the lowest relevant gradient point on the right-of-way. b) Due to ground level changes, a height exceedence of up to a maximum 40cm above 1.8m approved in 2007 for the eastern section of the structure wall along the north/west rightof-way, and c) A height exceedence of up to 1.2m for the fence/balustrade on the recessed wall on the north/west right-of-way boundary. This exceedence has come about through changes to the ground level. This application seeks approval to establish buildings within the boundary set-back and the boundary height plain. Mr Gallagher read from a written statement on behalf of himself and Mrs Gallagher on how the circumstances developed. The dwelling was originally a large three storey dwelling build in about 1929 by Dr Brewis. The large section was subdivided in 1962 to form the sections now owned by neighbours the Sommervilles and the Corkills. As part of the subdivision, the top driveway was surveyed at a width of 6m but built to 4-5m, with the lower driveway surveyed to 4.6m but formed to the west of our property at approximately 3.5m wide. This meant that our original boundary wall encroached historically into the legal driveway. Mr & Mrs Gallagher purchased the Pembroke Street property in May 1981, and the Sommervilles and Corkills purchased their respective properties later in time. In December 2007, construction started on the foundations/subterranean room as building consent had been obtained and we were told that the foundations could encroach into the side yard. After this work had commenced the Councils building department advised that the existing building, to be renovated above the basement level, had to be removed for a number of reasons, including sub-standard timber framing. In 2008 consent was applied to approve a number of changes to the building design, including the foundations/wall that was encroaching into the boundary side yard. As the work progressed, Council advised that a retrospective consent for the slight increase in the height of the foundations/wall along the driveway. Mr Hewison read from a written statement. The applicants are seeking the following:- a) Consent to retain the height of the wall located above the pile cap at the height it has been built. The top of the wall will be higher than the 53.830 metres above datum by approx 40cm. b) Consent to retain the height of the wall located between Sections RP1 and RP2 as shown on DataPlan Waikato plan RC2-1 dated 22 October 2010 at the height it has been built. Part of this wall will be above the 1.80 metres ground level as shown in the 2007 application to a maximum of 40cm. c) Consent to exceed the height to boundary rule at Sections RC2-6 and RC2-7 as follows: RC2-6 - at the top of the closed fence and the fence post balustrade post approved at 56.710 in 2007. Increased intrusion of 1.2 metres. RC2-7 at the top of the balustrade fence and the balustrade post. The later was approved at 55.960 in 2007. Increased intrusion of 0.8 metres. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 2 of 16

Ms Smith read from a written statement outlining why this application seeks minor amendments to the non-notified 2008 plan approval. The new changes to the proposal fail three standards, where these three standards have already been encroached and approved via previous approvals; being height, structure within side yard setback and height to boundary. The extent of the new non-compliances are minor and do not significantly alter the proposal as approved in 2008. The proposal enhances traffic safety for those parties who lodged a submission and therefore has enhanced this residential aspect for the submitters. This improvement in traffic safety is considered a significant mitigating factor against the increased height of the structure. It was Ms Smiths opinion that the effects on any person are less than minor and the proposal conforms to the relevant objectives and policies and with the purpose and principles of the Resource Management Act. SUBMITTERS Mr & Mrs Corkill spoke from the submission outlining their opposition to the application for a change of condition to amend the approved site plan of resource consent by Mr & Mrs Gallagher at the site address of 106 Pembroke Street, Hamilton. The following points are their objections to the proposed alterations to the Gallagher dwelling are as follows:- 5 th April 2007 a letter was received from Mr & Mrs Gallagher outlining their intentions to date. The crucial points of the letter were to give assurance that the redevelopment works had not changed from those which had previously been given approval. With this knowledge in mind the Corkills signed the letter and this letter was then used by the applicant to support their application for the May 2007 resource consent to the Hamilton City Council. Mr & Mrs Corkill have never been privy to any further plans, plan changes or applications for amended resource consent until 27 th August 2010. Granting approval to remove planter boxes is not the same as granting approval to build an over height wall in the 1.5m side yard. The applicant is seeking retrospective resource consent for a second time with respect to this particular aspect of their redevelopment works. The works changed form Garden to Wall The submitters would like Council to have an independent survey report to clear up the two different height levels of the wall. The submitters now have a massive, unsightly, sheer wall on the driveway entrance to their dwelling, when they had only approved the low stepped planter boxes. The Commissioner adjourned for lunch (12.15pm-1.00pm) Dr Sommerville spoke from a written statement and submission outlining her opposition to the application for a change of condition. The following points are her objection to the proposed alterations to the Gallagher dwelling at 106 Pembroke Street:- The application is misleading on several levels, there has been no lowering of the driveway level with the original driveway, the driveway adjacent to the wall must be higher to enable drainage of water, the degree of infringement/measurements in the application is ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 3 of 16

markedly different for council measurements, the height of the wall is inconsistent and the Gallagher plans are labelled 2007 and the Council copy of the plans is dated 2008. The submitter has given no further consent since they signed the plans in 2005. The Affected party Assessment report by Louise Smith is one sided. Ms Smith has failed to consider the danger of having a solid plastered 4.33m wall on the corner of a single lane driveway and that until you round the corner is impossible to see who else is on the driveway. The wall devalues the submitter s property as it makes the driveway appear narrow and dangerous due to the towering effect of the wall. The wall is not in keeping with surrounding properties. The surrounding properties have abundant plantings and gardens. The submitter strongly opposes this further retrospective amended application, which if approved would significantly devalue their property, the plans are now grossly different to the only plans the submitter consented to in 2005. PLANNER S REPORT This is an application to change the approved site plans of granted resource consent for alterations to a dwelling at 106 Pembroke Street. The applicant seeks to alter the approved plans to reflect the changes which have resulted form lowering the ground level at the northern boundary of the site adjacent right-of-way. Currently there is an existing wall located within the 1.5m setback from this right-of-way boundary, and as the ground level has been lowered this has resulted in this wall appearing larger, in addition to this because of the lowered boundary, a recalculation of height in relation to boundary has resulted in two small infringement beyond the height control plane. There will be minor effects on the amenity of the surrounding properties as this wall is a large structure with a maximum height of 3883m. The effects on the amenity will be minor as the oversized structure is sufficiently separated from the nearest residential dwelling, (approximately 15m), is on a different topographical level to other properties, there is existing mature vegetation which will buffer some of the view of the wall to adjoining properties. The structure is adjoining a right-of-way and does not shade any outdoor living areas or habitable rooms. The structure does not prevent the view of any natural features that hold high amenity values. For these reasons the effects on the environment will be less minor and the affects on adjoining properties will be minor. For the reasons stated above and the reasons contained within the report, it is Radish s recommendation that the change of condition can be granted. The Commissioner adjourned the hearing at (2.00pm 2.30pm) for the applicant to explain to the Council Planner and Submitters the changes to the plans between Thursday, 21 October 2010 and Tuesday, 26 October 2010. The parties failed to come to an agreement following the above adjournment, the Commissioner decided to adjourn the hearing to have a site visit. The Commissioner adjourned the hearing at (2.45pm - 3.45 pm) for a site visit. The Commissioner requested the following timelines for all parties. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 4 of 16

Applicant to produce a set of drawings that clearly outline the scope of the site to the Committee Advisor by Friday, 5 November 2010. Planner and Submitters to make submissions on new plans and the Planners Report, to Committee Advisor by Monday, 15 November 2010. Mr Cooney to provide his Right of Reply to the Committee Advisor by Friday, 26 November 2010. The Commissioner advised that he would close this meeting and forward his decision at a later date. The Hearing was closed at 4.50 pm DECISION OF HEARING COMMISSIONER 1. Introduction 1.1 W M and J E Gallagher ( the Applicants ) have applied to the Hamilton City Council ( the Consent Authority ) for retrospective resource consent to approve encroachments into the boundary set-back and height plane along a right of way boundary to the north/west of their property at 106 Pembroke Street, Hamilton. 1.2 The site of the application comprises two allotments with a total area of 1447m 2 and is located on the western side of Pembroke Street, Hamilton City, approximately 300 metres north of Waikato Hospital. The site is accessed via a slip road off Pembroke Street. The application site contains a substantial dwelling which is in the process of completion. 1.3 A right of way lies to the north of the site, providing access to two lower level residential lots as well as the subject site. A further right of way lies immediately to the north serving the residential properties to the north. Residential properties are situated on the western and southern boundaries of the subject site, and to the north of the right of way. The site overlooks Lake Rotoroa (Hamilton Lake). 1.4 The Applicant has applied for a change of conditions of resource consent (2007/030NN) to amend the approved site plan specifically in relation to walls located on the northern boundary of the site on the right of way. The Applicant is seeking retrospective approval for the works which have been constructed. The Applicant seeks this approval to reflect the height exceedences from the consented conditions currently applicable which they claim have resulted from lowering the ground level at the northern boundary of the site. The lowering of the finished ground level has resulted from the removal of a concrete block wall and associated earth banks along the boundary. 1.5 The Consent Authority s file reference is 11/2010/00007176.004. 1.6 The legal description of the property is Lots 1 and 2 DPS 2225. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 5 of 16

1.7 The Consent Authority appointed Alan Norman Bickers pursuant to s. 34A (1) of the Act as the Commissioner to hear and determine the application. 2. Background 2.1 On the 15 June 2007 Hamilton City Council granted consent (010/2007/7176 2007/030NN), to construct additions and alterations to the Applicants existing detached dwelling resulting in an infringement of the height in relation to boundary plane, maximum height, and site coverage controls which was assessed as a Discretionary Activity. This resource consent required the written approval of adjoining neighbours. Subsequently, three changes of the conditions of this consent were granted leading up to this current application. The previous changes of consent were granted by the Consent Authority on a non-notified basis and concerned amendments to the site plan. 2.2 The current application seeks to retrospectively amend the approved plans to reflect the asbuilt construction of the wall and the lowered the finished ground level at the northern boundary of the site. The existing wall as constructed is located within the 1.5m setback from this right-of-way boundary and the lowered ground level has resulted in the wall creating two infringements beyond the height in relation to boundary plane. 2.3 The Applicants seek approval for two amended conditions as follows: 1. That the development be in general accordance with the plans and the information submitted with the application on 3 May 2007, and as amended by the revised plans submitted on 8 June 2007, the revised information submitted 14 June 2007, and as further amended by the revised plans and information submitted 31 October 2008 with reference to the drawings entitled Additions & alterations Bill & Judy Gallagher 106 Pembroke Street Hamilton, DataPlan Waikato Architectural Services Revised Resource Consent Revision B sheets 1 to 23 inclusive, and the drawings entitled Bill & Judy Gallagher 106 Pembroke Street Hamilton, June 2007 Consent DataPlan Waikato, Amended with October 2008 Reference numbers, Sheets C1 to C20 inclusive, and together with the information as detailed in Appendix A of the 31 October application and amended plans from DataPlan Waikato Architectural Services Plans showing a lowered right of way level and amended elevations received as part of this change of condition application 2007/030NNC3 dated 22 June 2010. 3. The proposal shall not exceed the height in relation to boundary encroachments shown on the approved plans, submitted on 8 June 2007 and further amended plans from DataPlan Waikato Architectural Services Plans showing a lowered right of way level and amended elevations as part of this change of condition application 2007/030NNC3 dated 22 June 2010. The proposal shall not exceed the heights of the dwelling, nor encroach closer to the southern boundary of the site than those that existed prior to the application being submitted to Council and as shown on the additional and approved plans, submitted 31 st October 2008. At the consent holder s expense, a licensed cadastral surveyor shall certify to Council in writing that the proposal does not exceed the encroachments shown on the approved plans. Further the certificate shall state that the building does not encroach closer to the southern boundary than the location of the dwelling that existed prior to works commencing on the site. No works shall proceed beyond the framing stage where a position near to the southern boundary has been identified until receipt of such certification, to the satisfaction of Council s Planning Guidance Manager. No works shall proceed beyond the roof framing stage where a particular encroachment has been identified, ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 6 of 16

until receipt of such certification, to the satisfaction of Council s Planning Guidance Manager. No works shall proceed beyond the roof framing stage where the height of the ridge and the roof has been identified, until receipt of such certification, to the satisfaction of Council s Planning Guidance Manager. Works may proceed beyond the roof framing stage elsewhere on the building where there is no identified height position, building position or height to boundary encroachment. The parts of the building for which Surveyor s certification is required are as follows: (i) (ii) (iii) (iv) (v) the southern wall of the dwelling that existed prior to the application being made to Council the heights of the east west ridge line the heights of the north south ridge line for each ground floor encroachment for each upper floor encroachment which involves: Master bedroom Master bathroom Turreted bath area adjacent to the master bedroom The lift on the west side of the bedroom 2 The roofed part of bedroom 3 and it s ensuite. 2.4 The application can be considered under the provisions of s.127 of the Act change or cancellation of consent condition on application by consent holder. S.127(3) provides that an application to change to a condition of consent shall be treated as if it were a discretionary activity and s.95, 95A to 95F of the Act apply with regard to notification. S.127(4) states that for the purposes of determining who is adversely affected by the change, the consent authority must consider every person who originally made a submission and is adversely affected. S. 95A of the Act requires that a consent authority must publicly notify an application for a resource consent if it considers that the activity will have or is likely to have adverse effects on the environment that are more than minor. S. 95B relates to limited notification and states that If a consent authority does not publicly notify an application for a resource consent for an activity, it must decide (under s. 95E and 95F) if there are any affected persons in relation to the activity and give limited notification to those affected persons. Upon reviewing the information included with the application at the time of lodgement under section 95D for the purposes of determining whether notification is required, the consent authority was satisfied that the activity would lead to a no more than minor effect on the environment. Consequently, it considered that the requirements of s. 95D of the Act were fulfilled and the application did not require public notification. However under s. 95E and 127 (4) (a) and (b) the proposal required the written approval of those persons that were considered to be potentially affected by the changes sought. The Applicants requested that the application be notified to those persons as they believed that they would not be able to obtain the written approval of all parties deemed to be affected by the proposal and, therefore, the proposal was assessed under the process of limited notification. For the purposes of determining who is adversely affected by the proposed change or cancellation s.127(4) requires that the consent authority must consider, in particular, every person who (a) (b) made a submission on the original application; and may be affected by the change or cancellation. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 7 of 16

The Consent Authority considered that in this case the proposed change would affect the two parties who utilise the right-of-way for access to their land and that no other parties were affected. The affected parties who were notified were: Barbara & Nigel Corkill (104 Pembroke Street) and Diane Sommerville (108 Pembroke Street). 2.5 As a discretionary activity the application must be considered under s.104 of the Act: s.104 states that when considering an application for a resource consent, the consent authority must, subject to Part 2 of the Act, have regard to (a) Any actual and potential effects of allowing the activity; and (b) Any relevant provisions of a plan or proposed plan; and (c) Any relevant provisions of a regional or national policy statement; and Any other matter considered relevant and reasonably necessary to determine the application. Section 104B states that when considering an application for a resource consent for a discretionary activity, a consent authority After considering an application for a resource consent for a discretionary activity or non complying activity, a consent authority (a) may grant or refuse the application; and (b) if it grants the application, may impose conditions under section 108. 2.6 The main effects on the environment identified in the application relate to residential amenity resulting from the height and visual impact of the wall. 3. Summary of Submissions Received 3.1 Submissions in opposition to the application were received from both potentially affected parties who were notified (refer 2.5). 3.2 B & N Corkill opposed the application seeking that low planter boxes be installed in accordance with the original plans. Much of their concern related to the administration by the Consent Authority of the series of applications which had approved changes to the original consent. They also referred to adverse amenity affects resulting from a massive, unsightly sheer wall in the driveway entrance to (their) home. 3.3 Dr Diane Somerville also opposed the application seeking that it be declined and that the other changes approved by the Consent Authority be reviewed. She also referred in some detail to adverse amenity effects that resulted from the requested approval of what had been constructed. 4. Hearing 4.1 Mr Paul Cooney appeared as counsel for the Applicants and called Mr W M Gallager and a number of witnesses to give evidence. 4.3 Both submitters appeared and spoke to their submissions. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 8 of 16

4.4 David Radich appeared as the Hamilton City Council s Planner who had prepared the planning report under s.42a of the Act. 4.5 A site visit was conducted during the course of the hearing which was attended by the Applicants, counsel, witnesses and submitters. 5. Procedural Matters 5.1 During the course of the hearing and site visit it was obvious that there was some misunderstanding about the extent of non-conformance with the current conditions of consent that the Applicants sought to have retrospectively approved as a result of the application. Consequently, I issued directions for the provision of further information from the Applicants to clarify the extent of non-conformance that they sought to have retrospectively approved. I adjourned the hearing pending receipt of the further information sought and supplementary submissions in response. 5.2 While the Applicants complied with the timeframe specified in the issued directions, some unavoidable delays occurred within the Consent Authority s administration which would not have allowed the two submitters a reasonable time to consider the application and prepare any supplementary submissions they deemed necessary. 5.3 Consequently, on 11 November 2010 I issued a further direction amending the timetable specified in my original direction. The table below sets out the amended timetable and the dates that parties completed the required actions: ACTION REQUIRED DATE REQUIRED DATE COMPLETED Applicants drawings to be distributed to Submitters not later than Planner s amended s. 42A report to be distributed to submitters not later than Submitters to file any further submissions with Consent Authority not later than Further submissions to be referred to Applicant by Consent Authority not later than Applicant s right of reply to be filed with Consent Authority not later than 12 November 2010 Further information dated 5 November 2010 but not distributed to submitters 12 November 2010 Report dated 12 November 2010 22 November 2010 Submissions dated 16 November (Corkill) and 17 November (Somerville) 26 November 2010 24 November 2010 6 December 2010 Submissions dated 29 November 2010 Having received the right of reply on behalf of the Applicant from the Consent Authority s administration on 3 December 2010, I closed the hearing on the same day. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 9 of 16

6. Evidence and Submissions 6.1 Mr Cooney, counsel for the Applicant, presented written submissions to the hearing in which he referred to the following matters: The Applicants right to seek retrospective consent; That the Act did not require that there were no adverse effects, but whether they were acceptable; The potential effects were loss of daylight and privacy, loss of views or loss of amenity values and these did not arise except in the last matter, and only to a minor extent. Mr Cooney stated that the scope of the retrospective consent application covered: (a) (b) A height exceedence of 400 mm above the 53.830 m datum increased wall height of 4.2 metres measured from the lowest point on the right of way; A height exceedence of up to 1.2 metres for the fence/balustrade on a recessed wall. He submitted that refusal of consent would be out of proportion to the benefits gained from granting the application. 6.2. William Gallagher (one of the Applicants) gave evidence in which he noted that his original boundary wall encroached into the right of way. In 2007, construction commenced on the foundations/subterranean room for their proposed renovations. It was found that because of substandard timber framing that was existing in the basement, changes were needed to the design resulting in the encroachments that were now the subject of the application. This involved substantial piles and a cap beam. 6.3 Richard Hewison, a Licensed Cadastral Surveyor, gave evidence and an expert witness. He said that he had provided input to the original planning application and later applications for change of consent conditions. He referred to the construction issues, including the piles and cap beam which resulted in deletion of the original plans for a stepped garden and planting. Mr Hewison said that as a result of the removal of the original wall and construction of the new foundations that the natural ground level had been lowered and having regard for definitions in the District Plan, that: This has increased the amount of the intrusion of the structure into the height to boundary control planes and has had the added effect of making the wall appear much higher than the approved height. It is accepted that there has been approximately two horizontal runs of concrete blocks erected at the top of the wall above the 53.830 metres above datum height as shown on the 2008 plans. Mr Hewison summarized the scope of the application as follows: A. Consent to retain the height of the wall located above the pile cap at the height it has been built. The top of the wall will be higher than the 53.830 metres above datum by approx 400 mm. B. Consent to retain the height of wall located between Sections RP1 and RP2 as shown on DataPlan Waikato plan RC2-1 dated 22-10-2010 at the height it has been built. Part of this wall will be above the 1.80 metres ground level as shown in the 2007 application to a maximum of 400 mm. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 10 of 16

C. Consent to exceed the height to boundary rule at Sections RC2-6 and RC2-7 as follows: RC2-6 RC2-7 At the top of the closed fence and the fence post balustrade post approved at 56.710 in 2007. Increased intrusion of 1.2 metres. At the top of the balustrade fence and the balustrade post. The latter was approved at 55.960 in 2007. Increased intrusion of 0.8 metres. 6.4 Louise Smith, Planning Manager of KEA Consultants gave evidence as an expert witness. She referred to the Residential zone provisions of the Hamilton City Proposed District Plan, which she considered were applicable and, in particular, the definition of natural ground level which was... (b) the finished level of the ground as the result of building construction work, or (b) the finished level of the ground as a result of any subsequent works. She concluded that, in terms of minimum building set back requirements under Rule 4.1.2(f) and the 1.5 metres of structure which had changed from a 1.8 metre high fence to a 2.2 metre building without Dr Somerville s consent that the status of the application was a discretionary activity. Ms Smith stated that possible effects of such an application were: Loss of sunlight and daylight; Loss of lake view; Towering effect; and Loss of scale. Of these, her opinion was that the towering effect was the only one of relevance and that was not considered to have more than minor effect. Ms Smith concluded that there were no actual or potential effects created by the increase in height that can be considered anything but less than minor and no person is adversely affected. She also analysed the relevant provisions of the Proposed District Plan and considered that the application was consistent with that. 6.5 Nigel Corkill spoke in support of his submission. He referred to the 2005 plans to which he consented showing indicative planting and that the various changes to consent approved on a non-notified basis. Mr Corkill concluded that the result was a massive ugly concrete wall instead of attractive planter boxes. He considered that the Consent Authority s handling of the non-notified consents was flawed and should be reviewed. 6.6 Barbara Corkill submitted emails and spoke in support of her submission. She highlighted the confusion about the detailed scope of the application in terms of the height to be approved. She noted that it was Mr Hewison who had identified the reasons why the planter boxes were not constructed, noting that decision was made in the October 2008 consent plans when there was still reference to a garden above the pile cap. She said she would like a 1.8 metre high wall with planter boxes. 6.7 Dr Diane Somerville spoke in support of her submission and also referred to emails. Among the various points highlighted by her were the following: The Applicants did not own the right of way and have carried out work to lower the ground level without her authority; ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 11 of 16

The removal of the planter boxes had an adverse effect on amenity because they would have softened the impact of the wall; The baseline against which the application should be considered was not 53.830 metres. Dr Somerville considered that there were adverse effects on her property, particularly towering. She was particularly critical of the Consent Authority s processing of the three changes following the original consent on a non-notified basis which had kept her out of the loop. 6.8 David Radich, the reporting Planner, spoke to his s.42a report. This identified the following matters: The existing wall, located within the 1.5 metre setback from this right-of-way boundary, and the lowered ground level has resulted in the wall creating two infringements beyond the height in relation to boundary plane. The first infringement was 400 mm and the second infringement 200 mm. The current approved maximum datum height of the wall was 53.830 m based on the existing consent and subsequent changes approved. The structure is adjacent to a right-of-way and there were be no shading effects on any outdoor living areas or habitable/non-habitable structures, any shading effects would be limited to the asphalted right of way. The amenity values of the right of way were not high and the effects of the wall within the required setback were no more than minor. The wall did present a blank institutional facade which appeared uninteresting but there were no rules within the District Plan which required any sort of treatment to the canvas of the wall. There will be some effects on residential amenity due to the scale of the wall and its orientation towards other properties but these effects were minor for the following reasons. a. Any shading effects will be limited to the right of way. b. The wall is some distance from other sites and habitable buildings. c. The wall is on a different physical level than other sites. d. There is no signification vegetation, archaeological or historical context of this environment. e. The right-of-way is for access purposes and any possible amenity effects will be when someone walks or drives past the wall. 6.9 Following the site meeting, the hearing was adjourned so that the Applicants could provide further information to clarify the extent of the height exceedances for which approval was sought (refer 5.3). 6.10 By way of memorandum from Mr Cooney, the Applicants submitted plans which clarified the scope of the application. Two options were submitted for consideration of the Consent Authority: Plans RC2-1,2 (5 November 2010) Option 1 depicting the as-built situation; and Plan RC2-3,4 (5 November 2010) Option 2 showing a 1 metre high planter box wall established on the boundary. This option was proposed as mitigation against the visual impact of the wall and would involve planting compact ornamental trees. The height of the wall approved in the 2008 change of conditions was summarised: ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 12 of 16

Maximum * Height Maximum Datum Level Maximum Height above 45 o Plane Area 1 3.883 m 53.830 m Nil Area 2 5.566 m 55.960 m 0.171 m Area 3 1.800 m 55.946 m Nil Note: * Maximum height is measured from existing ground level at boundary (preexcavation). Area 1 is the north and western section or wall. Area 2 is the balustrade. Area 3 is the eastern section of the wall. The current height of the wall for which approval is sought was summarized below: Maximum * Height Maximum Datum Level Maximum Height above 45 o Plane Area 1 4.323 m 54.270 m 0.440 m Area 2 6.042 m 55.988 m 0.961 m Area 3 3.055 m 56.000 m Nil Note: * Maximum height is measured from finished driveway level at boundary. 6.11 Mr Radich reported that having considered the amended plans, it was his professional opinion that Option 2 would improve the amenity values of the wall and right of way. He considered that the effects were less than minor and recommends granting of the consent based on Option 2. 6.12 Mr & Mrs Corkill s supplementary submission claimed that the height of the ballustrade s infringement had increased several times and that an infringement of 0.960 m was not minor. They reiterated that the issue remained one of height and bulk and rejected Option 2 as the planters would narrow the driveway. 6.13 Dr Somerville s supplementary submission claimed that the wall was illegal as it had exceeded the approved datum level of 53.830 metres. She claimed that the towering effect was extreme, the wall would constitute a traffic hazard and she would be deprived of a loss of lake view while driving or walking down the right of way. Dr Somerville submitted that regard should be had for s.7(c) maintenance and enhancement of amenity values, and (d) maintenance and enhancement of the quality of the environment. Dr Somerville also referred to various provisions of the District Plan, including Size and scale of buildings; Off-street parking and manoeuvering areas; Vegetation in residential areas; Site coverage. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 13 of 16

She argued that encroachments were more than minor and the application should be declined. Dr Somerville was skeptical of the proposed mitigation planting shown on Option 2. 6.13 In his right of reply on behalf of the Applicants, Mr Cooney referred to the extent of exceedances summarised on the plans (refer 6.10) for which retrospective consent was now sought. He submitted that when compared to the 2008 approvals and viewed in the context of the existing lawful built environment, the differences can only be described as minimal to minor. He agreed with Dr Somerville s submission that Area 3 was not included in the 2008 application and was the area of greatest difference because of the lowering of the ground level. In 2008 the Applicants were entitled to build up to 1.8 metres as a permitted activity prior to lowering the ground levels resulting in a maximum datum level of 56.000 m but the datum level was unchanged. Mr Cooney rejected the arguments of the submitters concerning adverse effects and District Plan provisions on the basis that the effects were minor. 7. Main Findings 7.1 Mr & Mrs Corkill and Dr Somerville have submitted that review the three past decisions of the Consent Authority to approve changes of the conditions of the original consent on a non-notified basis. I have no jurisdiction to carry out such a review, as the terms of my appointment and delegation under the Act are confined to hearing and determining the current application (refer 1.7). 7.2 In assessing the application, it is necessary for me to consider the actual and potential effects on the environment in allowing the application. In this case the application is for retrospective consent for a structure that has been built and, therefore, its effects are able to be objectively assessed. The environment that must be considered is that which currently exists, inclusive of the consents which have been approved and implemented, but excluding the matters covered by the application. Hence, the permitted baseline against which effects must be assessed is the heights which were applicable in 2008. In this case the relevant effects that need to be considered are the incremental effects resulting from the wall exceeding the heights specified in the approved conditions of consent. The extent of exceedance must, therefore, be as shown on the 5 November 2010 drawings of Area 1 0.440 m (54.270 m datum); Area 2 0.961 m (55.998 m datum). 7.3 In terms of adverse effects, the following matters have been raised by submitters: Loss of amenity, Towering effect, Loss of lake view, Traffic hazard. The evidence and submissions have identified the potential loss of amenity through the appearance of a plane, large concrete wall. Submitters decried the removal of stepped plant boxes. Both Planners, Ms Smith and Mr Radich, referred to the appearance of the wall, but ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 14 of 16

concluded that the effect was less than minor. The submitters have rejected the Applicants Option 2 to install planting as mitigation for the bland appearance of the wall, on the basis that plantings would be unlikely to survive and the width of the driveway would be narrowed. I respect that position, albeit that I was surprised that Option 2 was not accepted, given many of the comments in the submissions that there was a need to soften the appearance of the wall. The towering effect is a relevant matter for consideration. Ms Smith addressed that in her evidence, concluding that the additional height... is not considered to have more than minor towering effect. Mr Radich did not consider the amenity values of the right of way were high and effects on the right of way were minor. The submitters did not accept these conclusions. Having visited the site and had the submitters point out their concerns, I am not persuaded to reject the professional opinions expressed by Ms Smith and Mr Radich. As for the other possible effects identified by the submitters, there was nothing submitted which I considered represented a compelling argument that adverse effects had resulted from the construction. 7.4 Dr Somerville raised a wide range of matters concerning District Plan provisions. Most of these are outside of the matter which I have to determine in this application. Ms Smith and Mr Radich considered that in their professional opinions, there were no relevant District Plan issues. In relation to the exceedance in Area 2, Dr Somerville argued that 0.961 metres was not a minor matter. It is evident from the drawings that this exceedence arises from the lowering of the ground level after 2007 and the extent of exceedence concerns a very small area of the balustrade and the datum level of that is unchanged. 7.5 I have accepted the views of the Planners that when measured against the permitted baseline of the 2008 consent, the effects are minor. The bland appearance of the wall could potentially be mitigated with the proposed planting in Option 2, but this is rejected by the submitters. Consequently, I have not considered this option any further but the Applicants could, nevertheless, install such plantings if they desired provided that these were within their property and the conditions of consent were complied with. 7.6 In relation to Part 2 matters, Dr Somerville has referred to s.7(c) and (d) being matters to which I should have particular regard. The scope of this application is limited to the height of a wall currently infringing the lawful height control plane and, as such, the incremental effects that arise from such exceedence. To apply the significant provisions of s.7 to such a matter would be disproportionate to the scale of the application. S.7 matters would have formed part of the Consent Authority s consideration of the original application. No other Part 2 matters have been identified by the Planners as being of significance and I am satisfied that the application is not inconsistent with Part 2 of the Act. 8. Decision and Reasons 8.1 Having regard to the assessment of environmental effects, the evidence to the hearing and the submissions, I am satisfied in terms of s.104 of the Act that consent should be granted. 8.2 My reasons for this decision are as follows: ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 15 of 16

(a) The application has been assessed in accordance with s. 86 of the Act under which a rule in the Proposed District Plan has legal effect once a decision on submissions relating to that rule has been made and publicly notified. As submissions to the Proposed District Plan are now through the notification process, and as there are no references to the relevant provisions of the Proposed District Plan, the Residential Zone Rules of the Proposed Plan have legal effect. (b) Limited notification of the application was undertaken in accordance with Section 95 of the Act. As a result of this process two submissions were received in opposition to the application. An assessment of the activity has determined that the adverse effects on persons deemed to be potentially affected by the application and the environment will be no more than minor as the structure is adjoining the right of way and there will be no shading effects of outdoor living areas or habitable/non-habitable structures. (c) (d) I have considered the following relevant provisions of the Act in assessing and determining this application: Part 2 Sections 86, 95, 104 and 108 Resource Management Act 1991 I have considered the following relevant provisions of the Hamilton City Proposed District Plan (References Version): a. Rule 4.1 Residential Zone b. Objectives and Policies 4.1 (e) I have reached the conclusion that the changes sought to the subject consent will not result in additional adverse effects over and above what has previously been consented for the site. The above minutes of a Commissioner Hearing before the Council. Resolved: (Crs Hennebry/Westphal) That the decision be noted. ADJOURNED COUNCIL 23 FEBRUARY 2011 - OPEN Page 16 of 16