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Fifth day of flyover appeal; QC confirms adverse effects on heritage and landscape

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At the fifth day of the High Court hearing of the NZ Transport Agency’s appeal against the rejection of its Basin flyover plan, Dr Matthew Palmer QC stated there was no merit in the appeal which was largely about the weight the Board of Inquiry attributed to evidence. He said the Court should decline the appeal.

Dr Palmer was making a submission on behalf of the Mt Victoria Residents Association and the Save the Basin Campaign.

Dr Palmer said the Board of Inquiry had found that “there were majorly adverse effects on historic heritage and significantly adverse effects on landscape, townscape and urban design. These findings, supported by the hierarchy of planning instruments and part 2 of the Resource Management Act, justified the Board in cancelling the [flyover]. It was not limited to assessing effects only on the basis of what heritage is specifically protected in planning instruments.”

He reminded the Court that the Board of Inquiry had made its decision following
72 days of hearings over 16 weeks, with the benefit of 74 submitters at
the hearing, 69 witnesses and 212 written submissions and site visits. He said the Minister’s reasons for establishing the inquiry were centred directly on the heritage and amenity effects, which the Board therefore had to have regard to.

The Transport Agency’s real problem with the Board of Inquiry’s decision, said Dr Palmer, was its belief that its proposed flyover should have proceeded. “In essence, NZTA disagrees with the Board’s decision on the merits of the proposal. It appears to be particularly embarrassed at the suggestion that its consideration of alternatives was not adequate….

“…the Board noted that witnesses … put options before it to establish that the options were not suppositious, would potentially have reduced environmental effects, and should have been explored. The witnesses were able to identify several such options (e.g. an at grade option such as BRREO, grade separation on the west side as with Option X or variants, and the long tunnel option). NZTA needed to consider such alternatives adequately. The Board was
required by s 171 to have particular regard to whether it had done so. It
was entitled to find that NZTA had not…”

Other points made by Dr Palmer:

The Board examined whether there was an area of historic heritage, just as the
definition permits it to do. The problems in terms of historic heritage
effects were found to be major adverse effects on particular heritage
sites and the cumulative heritage effects in the area …

The section of the Board’s report on the overall evaluation of heritage effects
notes a degree of consensus amongst the five heritage experts as to the overall effect on heritage values. All except Mr Salmond (NZTA’s expert) agreed that the degree of adverse effect was “major”; four experts regarded the dominance of the Flyover in terms of elevation, bulk and location as “major adverse” whereas Mr
Salmond regarded it as “significantly adverse”); four experts regarded the juxtaposition of (visible) vehicular movement next to the recreational ground as “major adverse” whereas Mr Salmond regarded it as “adverse”; four experts regarded the interruption and changing of views to and from the Basin as “major adverse” whereas Mr Salmond regarded it as “significantly adverse”.

The Board also notes that Mr Salmond explicitly qualified his evaluation with the preferatory words “if the need for the Bridge (as a transport management solution) is accepted”. Under cross-examination he accepted that “if one sets aside all other issues then in a heritage context it’s not difficult to agree that the bridge is inappropriate, left solely to that issue.” On this basis the Board concluded that “there would, in fact, be a very high degree of consensus amongst all six heritage experts regarding the magnitude of the overall adverse effect of the Project on historic heritage values if they had been carried out with equivalent assumptions”.

“…The Board’s decision was determined crucially on the basis of its factual findings about the effects of the proposed flyover requirement. None of NZTA’s alleged legal defects would make a difference to that conclusion; even if they were genuine defects, which they aren.t”

Dr Palmer’s submission in full