Hotel/Apartment Tower decision to be appealed

Updated 2.7.13

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### RNZ News Updated 24 minutes ago
Dunedin hotel plan heading to court
The developer planning a 27-storey waterfront hotel in Dunedin is taking its case to court. A Dunedin City Council panel declined resource consents for the $100 million project three weeks ago, saying it failed a key legal test and the glass tower would be too high for its industrial-zoned site. The five-star hotel and apartment complex has been hotly debated since being announced a year ago. On Tuesday afternoon, the company behind the project Betterways Advisory Limited, announced it will be appealing to the Environment Court against the council’s decision. The appeal will mean the court will attempt to broker a compromise between the developer, the council and any of the public submitters who want to get involved.
However, it seems likely that the court will have to hold its own full hearing into the project, probably early in 2014.
RNZ Link

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We really love Jing Song, Steve Rodgers, and their gift that keeps on giving. FO.
A source reveals Betterways’ appeal cites Consultancy House as a precedent. Interesting, the owners of Consultancy House strongly objected to the application in their submissions.

Related Posts and Comments:
18.6.13 Hotel: COC’s greasy spoon race. Ugh!
5.6.13 Hotel decision . . . (the vacuum)

Posted by Elizabeth Kerr

[screenshot]ODT 25.6.13 Hotel decision to be appealed [screenshot]

53 Comments

Filed under Business, Construction, DCC, Design, Economics, Heritage, Hotel, Media, Name, People, Politics, Project management, Property, Site, Tourism, Town planning, University of Otago, Urban design, What stadium

53 responses to “Hotel/Apartment Tower decision to be appealed

  1. Related Posts and Comments:
    18.6.13 Hotel: COC’s greasy spoon race. Ugh!
    5.6.13 Hotel decision . . . (the vacuum)

    For more, enter *hotel* in the search box at right.

  2. Peter

    Talk about shoving their ‘gift’ down our throats. These people are ruthless. Not surprised by the decison to appeal.

  3. Chris

    Herpes Tower

    • ### stuff.co.nz Last updated 18:12 25/06/2013
      Developers persevering with Dunedin hotel
      By Wilma McCorkindale
      Backers of a proposed 27-storey hotel in Dunedin are not giving up. Chinese developers Jing Song and Ping Cao have asked their lawyer to lodge an appeal with the Environment Court after being knocked back by a Dunedin City Council (DCC) hearings committee. It declined them consent for the five-star hotel this month. The couple’s lawyer, Steve Rodgers, said his clients were not going to walk away from the project. He is representing the couple through applicant company, Betterways Advisory Ltd. Rodgers said the couple reached their decision after professional guidance but they had also been buoyed by the encouragement from residents and businesses across Dunedin. Betterways’ resource consent application attracted a record 500 submissions to the DCC, most opposed to the proposed hotel’s height and size. Dunedin Mayor Dave Cull said the council recognised the benefits a five-star hotel would give Dunedin and would continue to work with the developers. “But clearly any proposal needs to pass all relevant planning requirements and fit with the expectations of our community as expressed in our District Plan,” he said.
      Stuff Link

  4. Ro

    What are your reasons for believing the DCC wanted to see this decision go to the environment court, Elizabeth?

    And who do you mean by the “DCC”? Do your mean the hearings committee? the planning department staff? the councillors? Some smaller number of any of these?

    I ask in the interests of trying to understand whether you made this claim because you have some inside information or whether you’re just letting off steam.

    • Ro
      DCC means DCC – not the hearings committee which is another beast.
      Shared intelligence.
      As you may know I said this long before the news came out today, in the lead up to the hearings on the application and since.

  5. Here’s classic Dave Cull again. Ten bob each way. Geez! can’t he see the wood from the trees? He said “the council recognised the benefits a five-star hotel would give Dunedin and would continue to work with the developers”. That’s not the argument Dave, it’s does the city folk think they want/need an enormous ‘five star’ hotel? Obviously not many do, including the Post Office owner. As the decision said, it simply doesn’t fit the city’s environmental plan nor the height and location. Appeal by all means but come up with an alternative which fits. Not too difficult I would have thought.

    • Calvin, I dare say the press in the days ahead will be an interesting read.

      We have to go back to the same legal team with the same manipulations that we saw for the harbourside plan change appeal, and to what they pulled off to their advantage, which was: getting as much as they possibly could for their clients from the ‘conferencing’ process – we saw Colin Weatherall in the hotseat then as chairman/mediator – and (as we know from another Environment Court appeal in process now) there’s more that can be got from ‘expert caucusing’ too (this rules out participation of those who are not ‘experts’ in the Court’s eye). Thus getting considerable mileage “their way” (the initiators) without having to confront a Judge “in court”.

      It is quite a despicable process and it is one that, with the harbourside plan change, resulted in the subject site at 41 Wharf Street being left by the wayside zoning-wise for the proposed hotel/apartment tower application to eventuate. From this gross manipulation there has been NO improved access for the general public to the waterside which was one of the major collective aims of the DCC and members of the general public including professional groups (later turned submitters) that had participated in urban design workshops and consultation before the plan change was notified.

  6. Mike

    Anyone know – does this mean previous objectors have to make a new submission to the environmental court, or does one’s existing submission just roll on over? also I know a number of people who didn’t make a submission last time around but wish they had, can they now make new submissions to the court?

    • Mike
      No, being a submitter does not just roll over into ‘appeal’.
      You have to be registered to host or participate in an appeal to the Environment Court.

      And No – if they were not a submitter on the application heard, they are too late, unless they want to work with an appellant/respondent in strengthening the appellant/respondent’s case in some way. Environment Court is about examining points of law –

      Guidelines are easily googled. For example:

      An Everyday Guide to the Resource Management Act Series 6.1:
      Your Guide to the Environment Court – Ministry for the Environment.

      http://www.mfe.govt.nz/publications/rma/everyday/court-guide/

      How do I appeal?
      Proceedings begin in the Environment Court once someone has correctly lodged the notice of appeal or application with the Registrar and paid the filing fee. Appeals cannot be lodged with the court on applications which have been decided by boards of inquiry or the Environment Court instead of the local council. Any appeal on these decisions must be made to the High Court and can be on points of law only.

      For decisions issued by a local council, you can appeal if you:

      were an applicant for a resource consent
      made a submission on a resource consent application or designation
      made a submission on a proposed plan
      have been issued with an abatement notice.

      ****

      Practice Notes – Lodging Appeals
      http://www.justice.govt.nz/courts/environment-court/legislation-and-resources/practice-notes/lodging-appeals.html

      Appeals to the Environment Court
      http://www.qualityplanning.org.nz/index.php/plan-steps/making-decisions/appeals-to-the-environment-court

      ****

      What are the implications of being a s274 party?

      The primary implication of being a s274 party is that you have a right to be involved in all Environment Court proceedings, and, in particular, have speaking rights at the Court hearing. This gives you the ability to speak to your submission or any evidence that you produce at the hearing (or have others speak on your behalf).

      You also have the ability to cross-examine other parties, which allows you to ask questions. However, you may also be subjected to cross-examination.

      As a s274 party, you do not have to present a submission, produce evidence or cross-examine – it simply gives you that option.

      Being a s274 party also allows you the right to participate in any mediation or pre-hearing conferences. Refer to the Ministry for the Environment’s booklet, You, Mediation and the Environment Court for more information about the mediation process. You may also become involved in resolutions, such as consent memoranda or orders, which can be reached by the Court before the hearing occurs.

      A further implication of being a s274 party is that you are potentially liable for costs. However, it is generally unlikely that costs would be awarded against you in a direct referral case, unless the matters you have raised are considered by the Court to be frivolous or vexatious. Generally, the bulk of the costs will rest with the applicant. Refer to the Ministry for the Environment’s booklet, The Environment Court: Awarding and Securing Costs for more general information about costs.

      As a s274 party you may also appeal a Court decision.
      http://www.mfe.govt.nz/publications/rma/direct-referral-process/

      • ### 3news.co.nz Tue, 25 Jun 2013 9:38p.m.
        Dunedin hotel battle to go to court
        The company behind a proposal to build a sleek and shiny $100-million five-star hotel on Dunedin’s waterfront will appeal the Dunedin City Council’s decision to decline resource consent. Betterways Advisory director Steve Rodgers has confirmed he has received instructions from his client, Jing Song, to lodge an appeal in the Environment Court, the Otago Daily Times reports. Earlier this month, the council declined resource consent for the 27-storey hotel and apartment building, which would have been built on a long and narrow stretch of vacant industrial land. Opposition to the Shanghai-style tower, which would by far be the tallest ever in the city, has been strong, with a record 507 people opposing* the plan, most seeing the structure as a monstrosity and a blight on Dunedin’s heritage landscape. The hotel was the brainchild of 26-year-old Chinese-born Otago University graduate Ms Song and her husband. Ms Song has said that while it is a high risk project, she wanted to give something back to the city. NZN
        3News Link

        *Note: This is incorrect.
        507 submissions were received. 457 were opposed, 43 were in support and 7 were neutral

        JingSong [3news.co.nz]Twenty-six-year-old Jing Song says she wants to give back to the city
        [Image: 3news.co.nz]

        • “Sheriff, that two-timing (Roy) Rogers is the most hated man in town.”
          His ‘imperial’ sidekick (26) is good for a downing in the water barrel, that’s all.

          Ms Song said in a statement yesterday Dunedin was home to New Zealand’s first ”skyscraper” in Consultancy House. ”The promoters of that building did not give up easily … so we are not going to walk away from this.”

          ### ODT Online Wed, 26 Jun 2013
          Hotel bid off to court
          By Chris Morris
          The company bidding to build a $100 million waterfront hotel in Dunedin is taking its fight to the Environment Court. The decision by Betterways Advisory Ltd was confirmed by its director, Dunedin lawyer Steve Rodgers, yesterday. Mr Rodgers told the Otago Daily Times the grounds for the appeal were ”the whole decision” by the Dunedin City Council’s hearings committee.

          ”We think the whole decision is wrong.”

          The decision came after Betterways’ bid to build the 27-storey hotel was rejected by the hearings committee on July 5. The committee, chaired by Cr Colin Weatherall, cited a lack of information from the developers, concerns about the hotel’s 96m height and the impact it would have on its surroundings.
          Mr Rodgers said the team behind the hotel bid had obtained ”significant legal advice” before deciding to appeal. He would not pinpoint the exact grounds for the appeal yesterday, but said the committee erred in the way it weighed evidence in statutory tests set out by the Resource Management Act. ”We think they weighed the evidence the wrong way … basically, across the whole lot. We aren’t happy with any of their decisions where the evidence found against us,” he said.
          Lodging the appeal meant the parties – including all 507 submitters – would be notified by the court and given one month to decide whether to join proceedings. It would also open the door to mediation between the parties, including between the council and Betterways, which Mr Rodgers hoped might yet pave the way for a negotiated solution to the standoff.
          Read more

        • Facebook:

          Mayor of Dunedin Dave Cull
          8 June via Mobile
          The recent harbourside hotel proposal decision is subject to a 15 working day appeal period, so I am constrained in my ability to comment on it. However I believe there is widespread misunderstanding of the Resource Management Consent process that has to be followed whenever there is an application for a project.
          First the application is considered and determined by a HearingsPanel, not Council. Indeed there is no stage at which Council decides on the proposal. Secondly the Hearing Panel is required to apply a number of statutory tests to any proposal. In this case the panel determined that the proposal failed those partly because of lack of information.
          So either praising or condemning the Council for the decision is inappropriate. The decision comes out of a Hearing Panel and a statutory process dictated by the Resource Management Act and the District Plan.

          http://www.facebook.com/DunedinMayor?fref=ts&filter=1

        • RNZ News Updated at 9:35 pm on 25 June 2013
          http://www.radionz.co.nz/news/regional/138503/dunedin-hotel-plan-heading-to-court

          RNZ National Checkpoint
          http://www.radionz.co.nz/national/programmes/checkpoint/audio/2559885/dunedin-waterfront-hotel-plan-heads-to-court.asx [audio]

          RNZ National Morning Report 26 June 2013
          Dunedin waterfront hotel developers head to court ( 3′ 03″ )
          08:25 Developers are taking their fight to build a 27-story hotel on the Dunedin waterfront to the Environment Court, despite strong opposition.
          http://www.radionz.co.nz/national/programmes/morningreport/audio/2559950/dunedin-waterfront-hotel-developers-head-to-court.asx [audio]

        • ### ch9.co.nz June 26, 2013 – 5:59pm
          Council to continue to work with company behind hotel
          The DCC says it will continue to work with the company behind the 28 storey hotel in Dunedin. Mayor Dave Cull responded to news the company had appealed the verdict that stopped the hotel in its tracks recently. He said with the issue headed to the Environment Court, he was limited in what he could say. But the council recognised the benefit of the $100 million investment, and would work with the company to encourage that. Betterways spokesman Steve Rodgers diverted inquiries today to hotel backer Jing Song. She was overseas and did not respond to emails.
          Ch39 Link [No video available]

          ****

          Dunedin City Council – Media Release

          Council statement on Betterways Appeal

          This item was published on 26 Jun 2013.

          As a result of the announcement by Betterways to appeal the decision of the Hearings Panel to the Environment Court, the Dunedin City Council will be a party to those proceedings as the respondent and is limited in its ability to comment.

          Dunedin Mayor Dave Cull says the Council recognises the significant benefits a five star hotel would make to Dunedin and will continue to work with Betterways Advisory Limited.

          “We will continue to work with Betterways to encourage the investment in our city, but clearly any proposal needs to pass all relevant planning requirements and fit with the expectations of our community as expressed in our District Plan. “

          The application to build a waterfront hotel and residential apartments in Dunedin was declined last month by the Hearings Committee, having failed to meet the required standards thresholds for a non-complying activity.

          Contact Dave Cull Mayor of Dunedin on 477 4000.

          DCC Link

  7. Mike

    Thanks Elizabeth

  8. Mayor Dave Cull is constantly commenting on the hotel decision thus giving it his overt support. As Mayor this is tantamount to saying he wants it here. Fair enough, some might say but I have serious misgivings about the whole project.
    There is one glaring detail which does not appear to have been queried by anyone, and that is the credentials of the would be developers. We know only that they are Ms Jing Song 26, (who apparently resides in Queenstown when she is in NZ) and her husband Ping Cao. Has he ever been seen? He is reputably a big time builder in China. But is he? How do we know? Mr Rogers fronting Betterways has never divulged any details of the man or his asset situation. Has he ever been asked to declare his financial position? Just because he is riding the construction boom in China doesn’t automatically indicate much.
    I well remember the high flyers of the late eighties here in NZ and think about the Chase Corporation, Equiticorp and many others which crashed in flames when the ‘bubble’ burst. We’ve seen it again with the demise of untold numbers of ‘Financial’ institutions recently with the loss of many $millions.
    If anyone – including Mr Cull – bothered to do a wee bit of research into the current Chinese economy in particular to the incredible indebtedness of the wild construction industry. High speed trains going to nowhere, or to newly built unoccupied entire cities. The banks now starting to tighten up the lines of credit and interest rates starting to climb. How do we know Mr Ping Cao is not involved in this sort of business. He could be currently asset rich but leveraged to the eyeballs and a potential debt bomb. The problem is we just don’t seem to know anything about him.
    To me, it smacks of ‘Homer Simpson’s’ Springfield “Monorail Deal” which was foisted on the community. I am simply saying that before this goes any further the party concerned needs to front up and show a verified detailed account of his financial position. If he is a genuine businessman he would do that without demur. If not, then the city ought to be very careful. All fair enough to say it is no cost to the city as the developer is to fund it. But what if it gets the go ahead, gets a distance down the track and goes “turkey up” and we are left with the residue? Does anyone consider this aspect? Not as far as I am aware.

    • Calvin, we have all considered it but the RMA is not about the financial wherewithall of any applicant – a resource consent application is not tested on its financial viability, the developer is ‘free’ to fall over at any point.

      And yes, of course, uncompleted (defunct) construction projects abound everywhere – even in the most strategic locations.

      No New Zealand developer has to show their cards in being an applicant – the investment at 41 Wharf St is of completely insufficient value to interest the Overseas Investment Commission or any other like body.

      The question that may hinge on the proposed tower development is what will Mr Cao bring to the mixed use zone south of the Steamer Basin. Tower as carrot, care of COC and the GOBs.

  9. Rob Hamlin

    Interesting to see in McPravda today:

    “Mr Rodgers told the Otago Daily Times the grounds for the appeal were ”the whole decision” by the Dunedin City Council’s hearings committee.”

    Now this rather vague target of discontent suggests to me that the DCC consents committee did a VERY good job of dotting all their legal ‘I’s and crossing all their procedural ‘T’s’. It looks like there are no specific procedural handles for this lot to hang their horsehair wigs on.

    Now, up ‘til today, I thought that the Environment Court and the DCC’s resource consent process enjoyed a position similar to that between the Court of Appeal and the High Court. A relationship in which the former reviews the decisions of the latter – usually on matters of law and due process. However, Wikipedia’s entry on the Environment Court states the following:

    “In particular, the Environment Court hears appeals on decisions on applications for resource consent on a ‘de novo’ basis. The Environment Court does not review the decision: it hears any evidence it requires and makes its own decision, which replaces that of the local authority. It focuses on “the merits and substance of the particular decision at issue, not the deliberative process of the executive authority that made the initial decision.”

    ‘De novo’ – ‘evidence it requires’!! – Now that’s bizarre – What’s the point of having a local planning consents process if an appellant with long pockets who wishes to breach the community’s district plan for their own personal benefit can as of right have the whole process taken right back to square one in a higher court with no guarantee that ALL the evidence for and against the proposal will be revisited? In the majority of appeal court procedures, appeals are made on the basis of law, due process and occasionally new evidence that has emerged since the original trial took place. However, if new evidence requires parts of the case to be heard de novo – then the verdict at most is set aside and the case goes back to the original arena for reconsideration. David Bain’s appeal to the Privy Council and subsequent retrial and acquittal in the High Court being typical of the process. This situation is entirely different

    It’s all very disturbing. Councillors may be members of the right country club, but the decisions they make when they act on these panels can carry significant consequences for them when they answer to the communities on whose behalf they made these decisions. I presume that this mandate acting as a potential antidote to the big quiet money that can attend such decisions is why these panels contain a majority of elected members when they are constituted – as a matter of pubic reassurance if nothing else.

    By contrast, judges may also be members of the same country club. But they have neither the same local mandate, nor do they risk the same immediate consequences as elected representatives when making decisions on these big planning cases if they decide to pursue a course of action that is quietly suggested to them in the tap room of said country club by interested parties.

    If the Environment Court decides to overrule, then presumably the reassurance of due process that was delivered by the elected mandate is presumably replaced by the reassurance that judges are in some way ‘better people’ than the rest of us. The population to which we all belong contains a certain percentage of liars, thieves and corrupt personas, and I do believe that judges are representative of this wider community of humanity from which they are drawn – rather than of some higher judicial super-race whom we are from time to time invited to believe that they belong. It also goes without saying that any unelected and largely unsupervised individual who routinely and over a long period of time is involved in making multiple decisions of a very similar nature that also carry a very high monetary value to specific parties within the community may well attract the attention of those who have a stake in influencing the outcomes of such decisions. Is it reasonable for our community to put a specific group of non-superhuman individuals in a position that they may be subjected to such long-term pressures/temptations?

    This bizarre child-like belief in the super-humanity of judges manifests itself clearly in this legislation. This legislation assumes that the community is benefitted by allowing the judges of a remote Environment Court to decide ‘de novo’ that they will hear whatever evidence they feel like hearing and then, on the basis of this potentially partial evidence , overrule a local decision made by a committee. This committee consisting of elected councillors and independent experts supported by other expert advisors and the details of the district plan while also being informed by the case made by the appellant and by a complete body of public submissions that they are required by law to fully take into consideration.

    This assumption can only consistently hold good if the judges in question have superhuman levels of relevant local knowledge, local planning experience, memory, wisdom, incorruptibility and personal disinterest. I personally believe that for this community to have such consistent expectations of any specific group of human beings IS wholly unreasonable, and that for its own good, the Environment Court’s powers need to be clipped back to ensure that judges do not decide on cases ‘de novo’ but are only required to deal with appeals based on matters that match what judges’ specific training and expertise undoubtedly makes them better at than their elected counterparts – namely, the study, use and appropriate policing of the due processes that went into forming these decisions in the first place.

    Perhaps this is one aspect of what the proposed (but apparently now defunct) reform of the Environment Court was really trying to achieve?

    {Link added. -Eds}

    • Further to Rob’s comment on de novo methodology, a relevant excerpt from one of my earlier posts:

      8.2.09 If to Environment Court

      The Resource Management Amendment Act 2005 changed Environment Court procedure. “Rather than the ‘de novo’ hearing, the Court must now consider the decision made by the consent authority, and the evidence that was presented at it. This provision avoids the need to re-hear entire cases, and will speed up Court proceedings. However, there has been a corresponding increase in the documentation that consent authorities are required to make for consent hearings.” http://www.rmalink.org.nz/view-subprocess.php?id=3

      Other reading:

      CHALLENGES AND CHANGES IN THE ENVIRONMENT COURT
      Paper presented by Acting Principal Environment Judge Laurie Newhook to 3rd Annual Environmental Law and Regulation Conference Wellington, 16 and 17 April 2013
      http://www.justice.govt.nz/courts/environment-court/documents/challenges-and-changes-in-the-environment-court

      • We come back to the meaning of fanciful in regards to the application, as established at law. And argument ‘around’ permitted baseline.

        ### ODT Online Thu, 27 Jun 2013
        Points of law basis for hotel’s appeal bid
        By Chris Morris
        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.
        Read more

  10. Nobby of Neasden

    No vagabonds in the ‘hood is fine, but spare a thought for the raggle taggle gypsies (Oh). They too have their story. Ej, why did you include ‘al’? Fairfax columnists do this: ‘Out and about with Mrs Frescoe et Al’. I guess ‘Old Boys’ are the Tartan Mafia. I went Universal Jacobite, for the clanless. They let anyone join.

  11. Phil Cole

    Perhaps the ‘revised’ hotel might end up being located at Blackhead Quarries and look like this…compare this ‘5-Star’ Hotel with the one that might be foisted upon Dunedin…
    http://www.telegraph.co.uk/travel/ultratravel/the-next-big-thing/10144578/Five-star-cave-hotel-to-open-in-China.html?placement=mid1

    • Phil Cole, that is quite brilliant – thanks for the link (with more pictures).
      Blackhead Quarry Revisited. A number of locals want Betterways sunk in the quarry hole, this adds considerable pep and glitz to the enterprise – we could have a rip-off resort to delight Jing Song’s princesses in Swarovski Crystals. A better steal than the ‘UN’ Building at NYNY.

      InterContinental Hotel [HAP-Quirky China News - Rex Features]
      The InterContinental hotel group is siting the hotel in Songjiang district, near Shanghai. British design company Atkins is behind the build and intends to make the property as green as possible. [Image: HAP/Quirky China News/Rex Features via telegraph.co.uk]

      • The SongCao BS continues…

        ### ch9.co.nz June 27, 2013 – 6:30pm
        Hotel design change not out of the question
        The woman behind a proposed $100 million waterfront hotel, says a design change to the hotel is not out of the question. Jing Song says the decision to go to the Environment Court wasn’t taken lightly. She’s fully committed to the project and is preparing to work with the council and submitters towards a favourable outcome.
        Video

        • ### ODT Online Fri, 28 Jun 2013
          Hotel compromise offer
          By Chris Morris
          The woman behind the controversial $100 million waterfront hotel bid in Dunedin says she will compromise to secure a deal with the Dunedin City Council. Jing Song said from Singapore she was prepared to reconsider the hotel’s design, including its height and possibly its location, if that was what it took. The building would still need to be economic, and she could not say what changes would be acceptable- or how many floors could be lost – ahead of mediation talks expected to begin in a few months’ time. The ball was in the council’s court while the developers waited to hear what they might consider acceptable, she said ”We will wait for their next move.”
          Her comments came after the council’s hearings committee this month declined resource consent for the hotel, citing concerns about a lack of information, the hotel’s height and the impact on its surroundings.
          Read more

        • Received today by postal mail [scanned]:

          Betterways Advisory Limited v Dunedin City Council – Notice of Appeal 24.6.13

          If you were a Submitter to the resource consent application for the proposed waterfront apartment/hotel development (LUC-2012-212) you may apply to the Environment Court to become a Party to Appeal. As it states on page 5 of the Notice of Appeal, to do so you will need to use Form 33.

          Form 33. Notice of person’s wish to be party to proceedings. Section 274, Resource Management Act 1991.
          Form 33 (format only) is available here:
          http://www.justice.govt.nz/courts/environment-court/documents/33.pdf (PDF, 227 KB)

          Repeating this information from an earlier comment made in reply to Mike:

          What are the implications of being a s274 party?

          The primary implication of being a s274 party is that you have a right to be involved in all Environment Court proceedings, and, in particular, have speaking rights at the Court hearing. This gives you the ability to speak to your submission or any evidence that you produce at the hearing (or have others speak on your behalf).

          You also have the ability to cross-examine other parties, which allows you to ask questions. However, you may also be subjected to cross-examination.

          As a s274 party, you do not have to present a submission, produce evidence or cross-examine – it simply gives you that option.

          Being a s274 party also allows you the right to participate in any mediation or pre-hearing conferences. Refer to the Ministry for the Environment’s booklet, You, Mediation and the Environment Court for more information about the mediation process. You may also become involved in resolutions, such as consent memoranda or orders, which can be reached by the Court before the hearing occurs.

          A further implication of being a s274 party is that you are potentially liable for costs. However, it is generally unlikely that costs would be awarded against you in a direct referral case, unless the matters you have raised are considered by the Court to be frivolous or vexatious. Generally, the bulk of the costs will rest with the applicant. Refer to the Ministry for the Environment’s booklet, The Environment Court: Awarding and Securing Costs for more general information about costs.

          As a s274 party you may also appeal a Court decision.
          http://www.mfe.govt.nz/publications/rma/direct-referral-process/

  12. Hype O'Thermia

    Yeah, propose something outrageously frightful then “compromise” with something that’s still on the nose but quite a bit less horrendous and wait for the grovelling & desperate to kiss your butt in gratitude. You’ve got your original scheme, possibly with fewer restrictions than if you’d proposed it that way in the first place, and your butt has shiny glow from all those Dunedin lips.

  13. amanda

    The woman and the people behind her are starting to almost scare me. They seem to think we are stupid. Fair enough, we are a city that allowed a bunch of muppets to foist an economic lemon on us all. No doubt Song and Dunedin backers are hoping the same incompetents on council will green light the stadium; free rate funds for all.

    • Wouldn’t trust her as far as I could could kick her, which given her build is quite a long way!

      Apologies to regular contributors for comments going to moderation – we have ramped up our filters.

  14. Phil Cole

    When is a ‘gift’ not a gift?

    Wikipedia describes a gift as…’an object given without the expectation of payment. Although gift-giving might involve an expectation of reciprocity, a gift is meant to be free.’

    The following quote from one of the apartment/hotel development parties reveals that all may not be as it seems…

    …’costs were a mounting concern, as the developers faced a substantial – and rising – bill for design, planning, legal and other expenses. If mediation failed and the appeal went to court, that bill would rise “well above” $500,000. “If the bills keep ticking and the clock keeps ticking…eventually those costs will pass down to the apartment buyers or the hotel owners. It comes down to how economically viable it is,” she said.

    So…the ‘costs’ of the apartment buyers or the hotel owner? These costs will, presumably meet the developers full outlay so that they won’t be out of pocket – a ‘gift’ that cost them nothing!. And that good old catchphrase ‘economically viable’? Not one you would normally associate with a ‘gift’. Surely a $100 million ‘gift’ should be free as the definition of ‘gift’ is to be understood. But, alas, the COC and others involved have had the wool pulled over their eyes once more…

    And therefore we see the ‘gift’ for what it actually is and always has been – a pure development opportunity and speculation where the developers make a profit and the $100 million sum attached to it is purely hogwash. We still haven’t seen any evidence of how they have arrived at this ‘$100 million’ price-tag – one of the first things you would have expected the COC to have asked when they first met up with them…

    Of course, if no hotel operator steps in to buy the hotel once construction is underway or near completion (because of the cost) then that leaves a very interesting scenario…and we are left with a wonderful ‘gift’ that only cost us legal fees…and the costs of demolishing the ‘free’ gift…

  15. El ShockEd of The Flat

    Kick her, Elizabeth? God, you can be as tearaway as Witherspoon at times. Still, as a unit of measure, if the booted one doesnt go very far, are they ergo more trustworthy?

  16. Phil Cole

    Thanks for that, Elizabeth…haven’t had time to go to ODT pages…I’m just glad I’m not the only one thinking like that! Phew!!

    • Your sentiments are shared by many. Good for you.

      I think it may be time to revisit the Shane McGrath yellow balloon happening of April – to reappraise the size of the building threat. Hmmm, will send Shane the Notice – although, pretty sure he’ll be keeping tabs here :)

  17. Phil

    The so called “compromise” was always the plan in my opinion. No one would seriously have put forward that monstrosity as a genuine plan. They always knew it would fail at the first hurdle, and now they get to look like the good guys. They will reduce the size by several floors, taking away the height argument. Those deleted floors will just “happen” to be the floors that were designated to be “hotel rooms”. What is left ? An apartment building for wealthy Chinese students. The plan all along and now with the full blessing of Council and DCC. Obvious, but cunning.

    • We should put that in lights, Phil Cole.
      Same as tying a cruise ship up at the wharf, permanently – the whole package deal… achieved by rolling over DCC, with the ropes on for anchor – merciless drowning of ratepayer funds in assistance.

      • Injudicious Liability Cull, plonker!

        Mr Cull said yesterday he wrote to Ms Song on June 11, days after the decision to decline consent for the hotel was announced, offering independent planning advice to try to find a way forward.

        ### ODT Online Sat, 29 Jun 2013
        Hotel appeal could be dropped, mayor says
        By Chris Morris
        An appeal by the company bidding to build a $100 million waterfront hotel in Dunedin could be dropped as a result of negotiations with Dunedin City Council staff, Mayor Dave Cull says. Mr Cull said he was encouraged by the ”very positive” comments from hotel developer Jing Song, of Queenstown, reported in yesterday’s Otago Daily Times.
        Ms Song, a director of Betterways Advisory Ltd, said she was prepared to compromise on the hotel’s design, including its height, and possibly even its location, if it meant the project could proceed.
        Read more

  18. Parties to Appeal
    As yet, no count of how many submitters on the resource consent application, opposing the waterfront apartment/hotel development, have notified the Environment Court of their intention to appear as s274 parties to the appeal brought by Betterways Advisory Ltd.
    In close circles I know of three s274 notices served, and I’m one of them – but how many others? We will soon find out.

    • Mr Page, the eternal optimist for his client…

      Betterways remained committed to making the site at 41 Wharf St work ”for both the hotel project and the city”.

      ### ODT Online Mon, 12 Aug 2013
      Waterfront hotel options emerge
      By Chris Morris
      The developers behind Dunedin’s proposed $100 million waterfront hotel say work is continuing as they attempt to address concerns about the project. They insist, however, they remain committed to their Wharf St site, despite suggestions two other locations might be emerging as frontrunners. The comments from Phil Page, the lawyer for Betterways Advisory Ltd, came as it was confirmed nearly 40 parties had lined up to join the Environment Court proceedings later this year.
      Read more

      • Received from the Christchurch Registry of the Environment Court:

        —– Original Message —–
        From: Christine McKee
        To: [mailing list]
        Sent: Monday, July 29, 2013 3:32 PM
        Subject: ENV-2013-CHC-73 – Betterways Advisory Limited v Dunedin City Council

        Good afternoon

        ENV-2013-CHC-73 – Betterways Advisory Limited v Dunedin City Council

        Attached is a full list of parties (as at 29 July 2013) who have joined the above appeal.

        Please note that the list also includes the following parties who have filed their notice late:

        Christopher Hyndman
        Islay Little
        Meg Davidson
        Simon Jenkin
        The Otago Chamber of Commerce

        Unfortunately some of the notices filed have been in the old form (in which the period for filing notices used to be 30 working days). That period changed in 2009 to 15 working days so the above 5 parties are now required to file an application for waiver of time to file (we have also received a notice and waiver on behalf of Capri Enterprises Ltd). Because we may still receive further late notices Judge Jackson has advised we are to wait until the 30 working period has ended and then refer them all to him at once for a decision.

        Mediation

        Judge Jackson is referring this appeal to mediation – most parties have agreed to participate with the exception of Jack Austin (Florence Stone & Susan Harvey have not advised whether they agree). All parties are welcome to advise (or change) their view on mediation at any time.

        Mediation is likely to be set down at the start of November (potential dates will be sent out in the next couple of months). This gives the applicant time between now and then to respond to matters raised in the council’s decision so that the mediation will be more productive.

        Please let me know if you have any queries (I have also attached a copy of the waiver application for the parties who have filed their notices late).

        A hard copy of this email has been posted to the parties who have not supplied an email address.

        Kind regards

        Chrissie McKee
        Case Manager
        Environment Court Christchurch
        Ministry of Justice

        List of parties (contact details removed) as at 29.7.13

        *Contact details removed by Whatifdunedin.
        Note: The s274 parties listed are not recorded here as being for or against the Dunedin City Council resource consent decision.

  19. NEWS
    The Christchurch Registry of the Environment Court has today provided the List of Parties to the appeal:

    ENV-2013-CHC-73 – Betterways Advisory Limited v Dunedin City Council

    There are 38 Interested Parties (s274, RMA 1991), of which 5 parties filed their notice late.

    The Court says:

    Unfortunately some of the notices filed have been in the old form (in which the period for filing notices used to be 30 working days). That period changed in 2009 to 15 working days so the above 5 parties are now required to file an application for waiver of time to file (we have also received a notice and waiver on behalf of XXXXX [name deleted]). Because we may still receive further late notices Judge Jackson has advised we are to wait until the 30 working period has ended and then refer them all to him at once for a decision.

    Mediation
    Judge Jackson is referring this appeal to mediation – most parties have agreed to participate with the exception of XXXXX (XXXXX & XXXXX have not advised whether they agree). All parties are welcome to advise (or change) their view on mediation at any time.

    Mediation is likely to be set down at the start of November (potential dates will be sent out in the next couple of months). This gives the applicant time between now and then to respond to matters raised in the council’s decision so that the mediation will be more productive.

  20. Rumours abound that the proposed 27-storey waterfront hotel is not proceeding at 41 Wharf St. With the usual number of male grunts and posturings at Facebook including from mayoral candidate Andrew Whiley – who doesn’t visit here to educate us #fb BUILD the HOTEL

    Joke. [another pre-election terror…]

  21. ”Now that I’m through the election I can pay a little bit more attention to it.” –Cull

    ### ODT Online Wed, 16 Oct 2013
    Cull to meet waterfront hotel backers
    By Chris Morris
    Options to progress a $100 million waterfront hotel in Dunedin will be on the agenda when Dunedin Mayor Dave Cull meets the project’s backers in Auckland today, it has been confirmed.
    Mr Cull flew to Auckland late yesterday and would spend today discussing the hotel with Betterways Advisory Ltd representatives, including director Jing Song, and other professionals associated with the project.
    Mr Cull told the Otago Daily Times he was attending to ”listen and explore options” with the developers.
    Read more

    • ### ODT Online Thu, 17 Oct 2013
      Mayor encouraged by hotel meeting
      By Chris Morris
      Dunedin Mayor Dave Cull says he is ”delighted” by the continued interest of developers pushing to build a $100 million waterfront hotel in Dunedin. However, it seems all eyes remain fixed on the proposed site at 41 Wharf St, despite earlier indications the company – Betterways Advisory Ltd – might consider a move to an alternative location.
      Mr Cull was in Auckland yesterday to meet the proposed hotel’s developers, Jing Song, of Queenstown, and husband Ping Cao, the owner of a Chinese construction company. Mr Cull, speaking to the Otago Daily Times afterwards, said the meeting had been positive, although no agreement had yet been reached. In the meantime, the developers would need to decide whether to proceed with an Environment Court appeal by the end of month.
      Read more

  22. Damn glue! Dave, you just can’t rely on anything these days.

  23. Back on 24 Jul 2013:
    [post] Tauranga: Office leases to cover potential losses from hotel

    ****

    Now this, be warned Dunedin…

    ### stuff.co.nz Last updated 05:00 22/12/2013
    Investors sue hotel developer for $12m
    By Matt Nippert – Sunday Star-Times
    Investors in 4-star Nelson hotel complex Monaco are suing the developer for $12 million for alleged Securities Act breaches relating to insufficient disclosure. The hotel, now trading as the Grand Mercure Nelson Monaco Hotel and Resort, was initially developed by Mike Geep and Roderick Duke (not the Briscoes managing director of the same name). It was taken over by hotelier Scott Sanders in 2005 after the project ran into trouble and opened in 2008. Investors, who each sunk hundreds of thousands of dollars to buy units at Monaco, complain that the leases left their promised share of profits almost completely eaten up by operational costs and fees paid to Sanders’ management company.
    Read more

    • Scown says his Chinese buyers, who also want to build a hotel in Auckland and possibly one in Christchurch, liked the Frankton Rd site because the hard work obtaining a resource consent has already been done.

      ### scene.co.nz 19 Dec 2013
      Chinese snap up prime Queenstown site
      By Philip Chandler
      China-based investors have snapped up a prime local site destined for a new hotel – and it’s tipped to boost Chinese tourism into Queenstown. Local Ray White agent Buzz Scown confirms a group of investors based in China has bought an excavated, hotel-consented 1.2-hectare site, behind Frankton Road’s Pounamu Apartments, for $3.6 million. The same group has also bought an adjacent 1923sq m site, off Panorama Terrace, for $1.1m, he adds. Scown says the Chinese are keen to build a hotel using the resource consent originally obtained for the site in 2008 [Hilton], by a company belonging to bust developer Dan McEwan. Mr Scown added that, unlike apartment developers, they were not interested in selling down individual units.
      Read more

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