Points of law basis for hotel's appeal bid

An appeal by the company bidding to build a $100 million waterfront hotel in Dunedin takes a ''shotgun approach'' to the decision to refuse consent, one of its solicitors says.

The comments from Phil Page, acting for Betterways Advisory Ltd, came after it was confirmed the company had lodged a four-page appeal, covering 21 contested points, with the Environment Court yesterday.

The appeal followed the Dunedin City Council hearings committee's decision to decline resource consent for the proposed 96m-high hotel and apartment complex at 41 Wharf St.

However, committee chairman Cr Colin Weatherall, responding to the appeal yesterday, suggested the developers would have to compromise if they hoped to negotiate a deal and avoid a lengthy court battle.

A copy of Betterways' appeal, released yesterday, showed the company was taking aim at points of law and criticism contained in the original consent decision. That included whether issues surrounding the hotel's height could be considered at all, and claims the committee erred by criticising the hotel's design and the lack of information in some areas.

The document was prepared by Mr Page, who told the Otago Daily Times yesterday the points represented everything ''we think they have got wrong''.

''In that sense, it's a shotgun approach, because we haven't confined ourselves to one or two issues,'' he said.

However, he denied the wide-ranging appeal was merely a negotiating ploy ahead of possible mediation talks between the parties, which could avoid the need for an Environment Court hearing.

Mr Page said he did not know if talks were continuing about alternatives to the 27-storey hotel plan, despite suggestions yesterday options - including a new site or a revised design - remained on the table.

Cr Weatherall said he welcomed the wide-ranging appeal, which he believed showed Betterways was ''prepared to consider a whole bunch of other things''.

While mediation was a formal step in the Environment Court process, it could be short-lived if parties were not prepared to compromise, he said.

''It would be fair to say that for mediation to have any chance of success, parties involved must show some flexibility.

''He [Betterways director Steve Rodgers] has dealt a new pack of cards, but he's still dealing off the same pack of cards. He hasn't got a new pack.''

The appeal meant the council and all 507 submitters would be invited by the court to join proceedings as a party to the appeal.

Mediation would probably take about three months to begin, but would take place in private, with media and the public excluded, with help from a court-appointed mediator, Cr Weatherall said.

The council would be represented by a legal representative and an elected member, he said.

However, if a full hearing was required, any decision could be a year or more away.

''It's a long process.''

Earlier, Mr Page told the ODT the grounds for appeal included the committee's view of the permitted baseline test, which was used to compare the hotel to what was acceptable as-of-right on the site.

The land at 41 Wharf St was zoned for industrial use, but was not subject to a building height limit and already had a consent attached to the property for an earlier proposed commercial building, he said.

The committee, in its decision, had rejected those arguments, but had failed to make clear whether the ''point of comparison'' was the vacant site, the already-consented building or some other ''notional'' development, he believed.

''Lay people, for very good reasons, go past the site and they see it how it is and then they think about how the hotel might be, and they form their opinion about that.

''What we're saying is the Resource Management Act is not like that. You have to understand what the legal basis is for comparing the development, and we say the comparison should have been different,'' Mr Page said.

The argument had failed to sway the committee during the hearing process, and Mr Page conceded winning the point in the Environment Court would not secure a ''home run'' for the hotel, either.

Other points would also need to be resolved, including traffic and pedestrian connectivity issues, he said. However, he remained confident of success.

''We wouldn't have gone down this path if we didn't feel we were on the right side of it.''

- chris.morris@odt.co.nz

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