A waterfront subdivision has been rejected by the High Court after being allowed by the Environment Court. But the developer has vowed to fight on, says property editor ANNE GIBSON.
Ian Gillespie's dream to subdivide his land into 14 sections on a high plateau overlooking the southern end of Pakiri Beach, near Wellsford, has been dashed by the High Court.
Justice Robert Chambers turned down the Gillespie Property Group's application for the subdivision development, marketed as "unequalled seclusion and views, hard to beat anywhere in New Zealand."
The decision is of considerable importance to planners, developers and environmental lawyers who know the result as "the Arrigato decision" and are watching the outcome closely.
Farmers are also interested in the case, with their last "crop" or their "cash crop" being the subdivision of their land for retirement.
Lawyers refer to the case using the name of one of the companies involved, Arrigato Investments. Evensong Enterprises applied jointly with Arrigato to subdivide the land. Gillespie is a director of both.
His proposal is to subdivide his six existing lots on his 149ha farmland into 14 rural residential lots of between 4ha and 21.5ha, to create the Dovedale Coastal Estate, formerly called the Dovedale Country Estate.
The sections, with expansive views, pedestrian access to the beach and riparian rights, would each sell for between $650,000 and $1.3 million.
The point about the case is not only that it has stopped Gillespie proceeding with the subdivision, but that the High Court decision of September 14 rejected the Environment Court's decision of October 1999 to allow the subdivision. The High Court found that the Environment Court had misinterpreted the law.
"The Environment Court heard evidence in December 1998 and again in April and June 1999," Justice Chambers wrote in his decision last month. "Its decision of October 15 last year was to allow Arrigato's appeal on the subdivision and grant its application for resource consent, subject to conditions."
The Auckland Regional Council appealed against the Environment Court's decision, saying it had made legal errors. Justice Chambers agreed and found: "The proposed subdivision should have been assessed on the basis of its effects on the environment as it exists or as it would exist if the land were used in a manner permitted as of right by the plan. The Environment Court erred in taking into account Arrigato's existing resource consent." He found the Environment Court had "misinterpreted the objectives and policies" of the plan. That meant the application for the subdivision was "wrongly assessed." Justice Chambers has now sent the case back to the Environment Court.
But Gillespie has vowed to fight on. He said this week he would apply to take the matter to the Court of Appeal, despite having already spent about $500,000 on legal and consulting fees.
In addition, he has spent $1.2 million on native trees, planted on the farm to protect and enhance the environment.
Gillespie bought the farm, dam north of Leigh, in 1995 and has already sold three lots there. The land was in six titles when he bought it. It had been cleared of indigenous forest in the late heath century by previous owners, the Greenwoods family, who had transformed it into a pastoral farm for sheep and cattle, the Environment Court noted in its decision.
Justice Chambers set the scene in the opening remarks of his decision: "Pakiri is a magnificent ocean beach north of Auckland. It stretches some 20km up the eastern coast." He describes the area as having "spectacular views up the coast and out to sea."
It is that very beauty that Gillespie is seeking to capitalise on by seeking the right to sell his land in 14 separate parcels.
The Environment Court, headed by Judge Gordon Whiting, had given its approval and noted the importance of the area north of Auckland and the city's rapidly expanding population: "It is almost trite to observe that the whole of that eastern corridor, at least as far as Pakiri, will be subject to increasing coastal development pressure as metropolitan Auckland's population continues to grow and as major highway improvements steadily reduce travel times and thereby improve accessibility.
"In this context, we note that Rodney is the fastest-growing local authority in the Auckland region, its rate of increase having exceeded 20 per cent during each of the last two census periods to 1996. We also note that the contemplated extension of the urban motorway northwards to Warkworth within the next decade or so would bring this part of the corridor within what is then likely to be considered as commuter range of the metropolis."
In its decision, the Environment Court said the subdivision would enhance the area and was not contrary to the objectives and policies of any plans in place for the area.
"Insofar as the effects of the proposal are concerned, it will be clear from what we have already said that we do not consider that the proposal will generate any adverse effects. We come to this conclusion, having viewed the matter holistically."
But Justice Chambers disagreed and said the Environment Court had "misunderstood" those very objectives and policies.
The battle of Pakiri
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