The environment and the residents of Woolston/Ferrymead have scored a first minor win against the developer of the Portlink Industrial Park. It should make a visual difference to the local community and it may influence other important decisions that are pending.
Click to enlarge. This is the Portlink Outline Development Plan showing the height restricted area as the shaded zone to the north.
In the game that developers play to try to get their way in the face of regulatory restrictions, the developer of the Portlink Industrial Park in Woolston attempted to force the CCC to grant the development a Certificate of Compliance for the storage of shipping containers to any height thereby maximising the usefulness of its site beside the Ōpāwaho Heathcote River but at the same time creating an eyesore for neighbours and people passing by.
The application for a Certificate of Compliance was an effort to overcome an 11m building height restriction that applies to part of the Portlink industrial area. The CCC previously determined that shipping containers were “buildings” for the purpose of the height restriction and therefore they could only be stacked 3-high in the height-restricted area. The developer obviously disagreed with this decision, insisting that containers were items of outdoor storage and therefore were not able to be height-restricted in a general industrial zone.
The developer endeavoured to force a decision in its favour by applying for a Certificate of Compliance for storing shipping containers in a particular small area of its property only part of which was height restricted. The application stated “The outdoor storage of the items … may include items stacked/stored at any height (including heights exceeding 11m).” In what it no doubt believed was a clever move to force the appearance of “some injustice, absurdity, anomaly, or contradiction”*, the applicant submitted two further applications for Certificates of Compliance, almost identical to the first but itemising the storage of haybales and the stacking of car bodies, both applications stipulating that stacks of these items would exceed 11m in height.
It is the “stack” that is the structure which must comply with the building height restriction of 11m. In future, these stacks will be a maximum of 3-high Click to enlarge.
The applications were placed before two independent Hearing Commissioners for a decision that centered around the core argument about the definition of a container as a “building”. In a fascinating series of steps, the Hearing Commissioners determined that the decision was actually not about whether an individual container was a “building” but instead it was about whether a stack of containers was a “structure” as defined in the Resource Management Act.
Containers will come and go from a storage facility but what remains fairly constant is the stack which very neatly fits within the definition of a “structure”, and therefore does come under the definition of “building” for the purposes of the decision. This made the decision a relatively simple one to make – that the storage of shipping containers in a stack would have to comply with a building height restriction in the industrial area.
In what must have been a great disappointment to the developer and his legal team, hay bales and car bodies in stacks more than 11m high were quickly determined to also be “structures” and therefore they also came under the same building height restrictions.
The Hearing Commissioners declined to issue the Certificates of Compliance because of the exceedance of the height restriction and, in a further blow, the CCC immediately issued a formal abatement notice to the Portlink developer giving him one month to comply with the height restrictions. There are appeal rights to the Environment Court but we suspect that they will not be taken up, such was the clear, comprehensive and well-reasoned consideration given to all arguments by the Commissioners.
So, within the month, we expect to see the stack of containers near the roundabout at the end of Tunnel Road reduce in height to 3-high nearest the river; that will be a welcome change for neighbours and residents driving along Ferry Road. Update: Within days of the abatement notice, the operator of the container yard has adjusted the stack to 3-high (2.89m x 3 = 8.67m) or 4-high (2.59m x 4 = 10.36m) although there are still some stacks that are 4-high of the higher containers ie 11.56m.
Compare this pic taken 17 February 2024 with the one above taken in early 2023. Some stacks are still over 11m, but only just. Click to enlarge
We await now the decision by independent Hearing Commissioners as to the wider Resource Consent for the Portlink development where the setback of the containers from the river, the erection of a 2.4m high fence (or grafitti wall as we might describe it) and the noise of the operation are the major considerations.
There is some hope that the environment may win there as well, at least to some degree.
* Powell v Dunedin City Council sets out the interpretive approach to planning documents and includes that the words of the document are to be given their ordinary meaning unless this is clearly contrary to the statutory purpose or social policy behind the plan in the rules or otherwise produces some injustice, absurdity, anomaly, or contradiction.
More about Portlink
If you are not familiar with the issues that the Portlink Industrial Park has created, you will want to read the following articles by OHRN; just click an image to read the article…
