Residents in one of the country's most exclusive streets are celebrating a court victory that has blocked a developer's plan to remove a 90-year-old house.
Residents in one of the country's most exclusive streets are celebrating a court victory that has blocked a developer's plan to remove a 90-year-old house.
The Remuera locals have spent as much as $100,000 fighting an Auckland Council consent they say would have undermined the unique character of their street.
Their lawyer, Richard Brabant, says the successful court action is rare. The residents say that less wealthy neighbourhoods won't have the finances to mount legal challenges of their own.
"These types of decisions are happening all over the city and most residents don't have the resources to fight them," Seaview Rd homeowner and former Auckland city councillor Christine Caughey told the Herald.
"It's a matter of being able to hold the council [to account] in our city because if this goes then nothing is sacred."
Planning consultant Gary Deeney bought a three-bedroom 1920s bungalow at 48 Seaview Rd in November 2014 for $3.1 million.
Mr Deeney lodged a resource consent application last year to remove the two-storey house in pieces and construct a new building with "villa connotations" on the 1034sq m section.
Though the existing house is not individually listed for protection under the district plan, Seaview Rd has a special character designation because of the number of pre-1940s homes.
The application was assessed by independent commissioners, who at the 11th hour decided to proceed on a non-notified basis, shutting affected parties out of the decision-making process.
Lawyer Richard Brabant. Photo / Supplied
Despite reports from a council heritage expert and planner recommending that the building be retained because its removal would undermine the "building fabric" and character of the street, commissioners granted Mr Deeney consent to replace the historic bungalow with a modern family home.
After learning of the consent decision, riled neighbours joined forces and launched a judicial review - similar to that taken successfully last year by Auckland residents against a wharf extension at the Ports of Auckland.
Though only the direct neighbours at 46 and 50 are listed as plaintiffs in the case, the Herald understands other homeowners offered support to the legal challenge.
They brought in lawyer Richard Brabant who also represents development watchdog group Auckland 2040. He argued that special circumstances relating to the street's character had not been considered, nor had natural justice been followed.
In a just-released decision, the High Court agreed, ruling that the council decision to exclude affected parties was unlawful, and quashing the consent decision.
Justice Mark Woolford said emails showed "an element of confusion or misunderstanding" of relevant law by commissioners and inadequate reasoning given for their decision.
"The notification and substantive decisions are therefore quashed and the application for resource consent is referred back to the council for reconsideration."
Mr Deeney declined to comment yesterday. Auckland Council manager central resource consenting Mark White said: "We have been directed to reconsider our notification decision and will do so if the applicant wishes to proceed ... Auckland Council does not intend to appeal the High Court decision."
Mr Brabant said the finding was a victory for Seaview Rd residents who sought to protect their streetscape.
Incremental demolition of historic homes in areas protected under special character overlays was "death by a thousands cuts", and risked destroying heritage value.
Special zones
• "Special character" zones aim to protect the collective streetscape value of groups of character homes in any one area.
• The district plan identifies several groups of pre-1940 residential dwellings in Seaview Rd as having special character, meaning demolition of more than 30 per cent of a building or removal requires a restricted discretionary activity consent.
