Harbour hotel refusal about law, not politics

So, where are we now? The hearings committee has declined resource consent for the waterfront hotel.

Many, most, are breathing sighs of relief - but what happens next and what can we learn?

The applicant has a right of appeal and 15 days to exercise it.

Jing Song and her husband Ping Cao are out of the country. Their representative Steve Rodgers has indicated the decision will be studied and an appeal considered.

The decision he observed is ''robust'' (ODT 6.6.13). So it is, unusually so and illuminating for this lay reader in what it details about the Resource Management Act and the Dunedin City District Plan and what they have to say in such cases.

Mr Rodgers also said he thought the committee ''was keen to say no''. I disagree and think that's unfair.

Rather, having listened to a great deal of information and unsuccessfully sought more from the applicant and aware that most people, including most submitting against the application, would like to see an investment on this scale in Dunedin, it found the application fell short of the legal requirements.

It went to extraordinary lengths to show there was no back door or attic window it had overlooked which might allow the application to succeed, to make it clear it is not rejecting it on a whim. If the decision is appealed the committee will not be found to have been careless.

One thing that stands out is that while I thought matters such as height, bulk, scale, shading, wind turbulence, traffic hazards and the like might rule this out, the committee chose different grounds for its main objection.

At p94 it identifies the proposal's foremost shortcoming as concerning ''very long-term adverse visual effects that would change the character of the city''. It continues ''it was clear to us that this proposal was so different and so out of character with its surroundings'' it had to be shown the effects had been fully understood.

Backgrounding this in the plan it had earlier (p86-87) referred to Chapter 1 of the District Plan Section 1.5 Part B and the Introduction to Chapter 4.

Quoting the passage saying the city's character is established and that further growth must maintain and enhance this, it concluded ''a fundamental purpose of the plan is to maintain the existing fabric of the city''.

It had also (p84) cited the explanation of objective 4.2.1 that the city has a particular character which is ''highly prized'' and includes ''heritage buildings'' as relevant to its decision.

I hope all developers and everyone interested in promoting development pay this special attention. John Christie, of the Chamber of Commerce, and Mr Peter McIntyre and others who submitted supporting the application should take note.

It is not simply a question of economic benefits, or whether one likes or dislikes the aesthetics of the proposal. Such projects have to pass this test. They have to fit the existing fabric and match or enhance the character. They certainly can't challenge it.

To assist proposals it would help to get developers aware of this requirement before they make applications.

Having said that, in this case it wouldn't have been easy. People have expressed hope the developers will now look at other sites and perhaps adjust their plans.

Robert Clark, the city's property manager, had attempted to point them to sites like the Dowling St car park and for his pains had his knuckles rapped by his bosses.

I had two discussions with the amiable Mr Rodgers and it became apparent the developers had an inflexible formula which wouldn't allow for less floor space or a non-vertical configuration.

Unless they're now prepared to change the formula, or attempt a different project, it is going to be impossible to help them.

In the blogosphere a good deal of nonsense is being vented. A wide misapprehension, shared by supporters and opponents alike, is this is a city council committee making a political decision. It is not. It is making a legal decision and cannot simply throw away the rules.

If it did it would be wide open to appeal. Among the hotel's supporters there is a view that Dunedin has no buildings worth protecting anyway, except perhaps the Railway Station, that they are earthquake prone, of no interest to anyone and generally a liability.

The untruth of this has been pointed out often but what the decision underscores is that a contrary view is embedded in the plan. Perhaps it is bold of Dunedin people to think their city is worth preserving but by a democratic process they have made it law. This is a milestone decision.

Peter Entwisle is a Dunedin curator, historian and writer.

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