Design row exposes planning flaw

Design guidelines for Omaha South are in doubt.

The Omaha South residents' society is taking court action to try to stop the building of a house that bypassed its design review committee.

Vetting of designs by the residents' committee is a condition of purchase at the 600-lot subdivision, where sections sell for $250,000 to $1 million.

The condition was partly meant to assure property buyers at the popular Rodney beach resort that views would not be blocked.

But a house being built on land owned by Aucklanders Katie Miller and Graham Stirling has upset the strict body corporate-type vetting rule.

It has also turned on its head a Rodney District Plan rule which sought to protect views.

When the concrete foundation slab was laid, residents complained to the district council that the slab was too close to the reserve behind.

Construction stalled when the council issued an abatement notice.

The builders appealed to the Environment Court on December 7 and in a reserved decision, Judge Craig Thompson says the abatement notice has no basis.

Council issues resolution officer Andrew Braggins said the District Plan rules for Omaha South called for a rear yard of 7.5m against the southern boundary with a reserve leading to the beachfront.

This meant the slab infringed the rear yard requirement.

But the builders' lawyer, Sue Simons, argued that the correct interpretation of the District Plan meant there should be a side yard against this corner site's southern boundary.

The side yard was 2m and so the foundation slab did not infringe that.

The judge agreed that the boundaries against the reserve and its neighbouring lot required side yards and no rear yard.

He said a diagram with the District Plan, meant to help people determine whether rear or side yards applied, actually conflicted with the definition in the plan.

The builders had done what any reasonable person would have done in checking on a number of separate occasions with the council whether the boundary was a side yard.

As well as oral advice, Ms Miller's husband, Lance Ludolph, had written confirmation in August.

Mr Braggins said the judgment would change how the council interpreted the yard requirement rule for Omaha South.

The change would advantage some of the houses still to be built and potentially affect the views of others.

"Some sites will get different results because what might have previously been a rear yard will become a side yard and vice versa.

"It will change where a house is allowed to be situated on the property and this may be further away or closer to some boundaries and some people's views will be affected."

Now the project faces a separate action from the residents' society.

It says all owners had to join the society and submit their building plans to its review committee for approval before starting work. Approval was not given for the house on the Miller and Stirling property.

The case will be heard by the High Court in August.

No comment was available from the landowners.