123 Vogel St, an action about council process?

123 Vogel St before external building changes [Google Street View]

At Facebook:


Where to start. Here we have an award winning redevelopment of a substantial old warehouse for new commercial use. Reading the Otago Daily Times today we learn a local businessman questions council process on consenting grounds – apparently, there was an ‘administrative error’ with a set(s) of drawings, and a condition of the resource consent issued for 123 Vogel St was neither correctly tracked or enforced.

Rightly, the businessman doesn’t wish to litigate the matter through the newspaper.

The building owner to his credit has made a large and worthy investment in the building structure and its upgrade for commercial occupancy, revitalising a large segment of the block running between Vogel and Cumberland streets.

Why then would an ungenerous attack by one party not closely involved in the proposed warehouse precinct, be lobbed at this one building owner in such negative and disastrous fashion.

What is at stake. More importantly, what does bringing the action do to enhance the historic built environment, commercial property development, and council processes – if ad hocism (planning rules enforced here, and not there?) is argued as ‘state of play’. Is there any good in an Environment Court challenge – is it ‘vexatious’.

Impartiality, transparency, technical proficiency and fairmindedness is the hoped-for collective quality to be seen in any council operation, particularly in regards to planning matters. How far can ‘the managers’ of the District Plan, a community owned living document, seek room to breathe —or indeed, treat every resource consent application on its individual merits ….for positive precinct and in-zone outcomes, for the avoidance of new (adverse) precedents or laxity of interpretation where the rules go swimming. Where does the line bite.

In practical terms we read that what was built (window-wise at second floor level) does not accord with what was granted by resource consent.

We see minorly dropped sills (pretty? hmm) and a small extra pane of glass added for greater daylighting and liveability, done in such a way that the original scale and depth of the windows remains readable. The intervention isn’t screaming. It is very quiet, and reasonable? Why then did someone fudge the option to be consented. Who did not enforce the agreed design solution? Were affected parties given all proper information as the application processed to decision? Does the error set a precedent for destruction of protected facades and heritage townscape? This most certainly can be argued and tested generally and legally – but probably not with 123 Vogel St hauled to centre stage, pointing up administrative error or wilful and confused intention at DCC if that could be shown…. The second generation district plan public consultation process is perhaps the best place to locate the discussion. Not here, unless there is something else forming the agenda for the current challenge.

Recently, there has been another example of ‘sill dropping’ in the precinct (TH13) at the corner of Rattray and Cumberland Sts. Most people – heritage advocates included – would view the degree of change to sill height as rather subtle in the context of the overall historic heritage ‘Save’. But these details niggle aesthetes and the conscientious.

Is the effect (of design subtleties – a broad tradition….) to cumulatively – with more than minor effect – destroy ‘old’ townscape in the Vogel Street Heritage Precinct, other heritage and townscape precincts, and more widely across the central city —the ‘sense of place’ (held by ‘original’ built fabric) that District Plan policy and rules are designed to constrain, curbing overt changes to external building appearance?

How on earth did this happen at the council? Perhaps the challenge and subsequent ruling (win or lose) will ensure that all comers receive the same level of service in the adminstration of consents and conditions, and the intent of District Plan rules is more strictly adhered to by council planners.

Everyone is entitled to their day in court. The other hope is that DCC is meeting all of Mr Barnes’ legal costs.

If that was the fight advertised on page 1 today.


OPTION ONE STAYED IN THE CONSENT DECISION …. Option one would have had a new sash and two panes of glass, instead of what was built.

### ODT Online Tue, 20 Jun 2017
Building owner baffled over court action
By David Loughrey
The owner of an award-winning Dunedin warehouse precinct building has been called to face the Environment Court in a case he described yesterday as “vexatious”. The court action calls on 123 Vogel St owner Chris Barnes to remove windows on the second floor and replace them with a design applicant Dunedin businessman John Evans says should have been built under the building’s resource consent. Court documents from Mr Barnes’ counsel describe the action as “utterly baffling”. Mr Barnes has questioned the intentions of Mr Evans, and the court documents ask who Mr Evans is representing, and whether he is “receiving funds from a third party”. Some people involved would not speak on the record but one claimed property interests in “the big end of town” were behind what they saw as an attack on the precinct. […] Mr Evans’ application referred to a condition in the resource consent.
Read more

Related Posts and Comments:
19.6.17 Vogel Street parking on a quiet Sunday afternoon #petroltheft
1.6.17 Oh noes! One adverse slip of the pen and it’s Over Rover #warehouseprecinct
3.2.17 MORE DCC bull dust and poor investment #Sammy’s
18.12.16 DCC set to take away CBD car parks without Economic Impact research
9.10.16 Vogel Street Party 2016 #randoms
3.10.16 Vogel Street Party 2016 #Dunedin
10.4.16 spilt milk, tears, Unnecessary
23.1.16 Zoning issues: Vogel Street activities
16.12.15 DCC: Restriction of Vehicles from Parts of Jetty Street DECLARED
18.11.15 SAVE Sammy’s (former His Majesty’s Theatre & Agricultural Hall)
24.10.15 DCC and the AWFUL 2GP ‘threat of THREATS’
7.10.15 Vogel Street Party —Sat, 10 October
17.3.15 Dunedin Heritage Re-use Awards
13.3.15 Making heritage work | Dunedin New Zealand
28.10.14 Dunedin’s “period architecture”, not so quaintly….
19.10.14 Dunedin: Randoms from inside warehouse precinct 18.10.14
15.10.14 Vogel St. Street Party | Saturday 18 Oct 3pm – 11pm [2014]
5.8.14 DCC staff-led CBD projects that impact ratepayers | consolidated council debt
22.6.14 Vogel Street Heritage Precinct (TH13)
13.7.13 Cities: Organic renewal3.3.11 Dunedin can provide vacant buildings, warehouses and offices #eqnz
8.3.13 Stupid bid for two-way highway ditched for now #DCC
31.10.12 Cull’s council takes business away from retailers
21.2.11 Dunedin Heritage: Central government should be contributing
19.2.11 Dunedin, are you ‘of a mind’ to protect Historic Heritage?
19.2.11 Reed Building, 75 Crawford Street for demolition?
7.4.10 DScene alerts commercial building owners to responsibilities
24.3.10 DScene features heritage/issues!

Posted by Elizabeth Kerr

This post is offered in the public interest.


Filed under Architecture, Business, Construction, DCC, Democracy, Design, Dunedin, Economics, Education, Finance, Heritage, Heritage NZ, Media, Name, People, Politics, Project management, Property, Proposed 2GP, Public interest, Resource management, Site, Structural engineering, Town planning, Urban design

13 responses to “123 Vogel St, an action about council process?

  1. Gurglars

    Q. Why do you have a sash in a window?
    A. To open it.

    Please explain to me just how this window would work and is it a facade or a farce?

  2. Elizabeth

    Originally, this was a grain warehouse that very likely required good airflow thus the opening sashes. If the adaptive re-use relies on a mixture of mechanical ventilation and natural ventilation then not all windows need to open.

    • Gurglars

      Form follows function Elizabeth!

      • Elizabeth

        Not always, Gurglars – thank god for ancient and contemporary architecture by the ‘non-modern-masters’! And even the modern masters cheated on the fff epithet in their construction detailing.

      • Hype O'Thermia

        Form usually has to change when function changes. Isn’t the important thing, to adapt in a way that is in keeping with the overall style while making the building fully supportive of re-use for a new purpose?

  3. Elizabeth

    It would be useful if ODT published the four options.

    At Facebook:

    Chris Barnes Option one has a new window sash with two panes of glass. The option we went with, option 3 I think, kept the original 2 pane window and inserted a new 3rd double glazed sash underneath. We then retro double glazed the original window. A more expensive way to do the job but best from a heritage point of view as the original windows retained. (link)

  4. Hype O'Thermia

    I’m sure this is helluva important from *some* point of view.
    Trouble is, I’m even surer that there are some errors, lapses, whatever one wants to call them that are better ignored until such time as there is money and time enough to get all the bigger issues dealt with, and the example of where sensible blind-eyeing would have been the wise course of (in)action is Wests. Yes, there is a rule/law/bylaw. No, nobody was bothered by the situation as it was, until nuisance action was taken by a jobsworth, same thing looks like happening with Brockville Four Square Supermarket. Police aren’t obliged to clap handcuffs on every offender for every offence. Egregious rorting & 3 shells games are blind-eyed by govt authorities. Matters that really and truly have adverse effects are nimbly hoppity-skipped over by local authorities when it suits them, which is rather often.
    Sometimes sleeping dogs deserve a peaceful kip after eating their Tux and burying a bone for later.

  5. Diane Yeldon

    Where to start, indeed! ‘Ad hocism’ (planning rules enforced here, and not there?) is definitely a problem, especially when, as recently seen with the Regional Council, breaches of planning rules start being dealt with in an ad hoc or privately negotiated and non-transparent manner (as Rob Hamlin recently drew attention to). Then the public cannot be sure whether the consent authority is acting fairly or not.

    In this case, I’m inclined to think a distinction might be reasonably made between a case of a ‘victimless crime’ (apart from the public interest in the preservation and appearance of buildings) and a case where any new, unaccounted-for adverse effects actually or potentially infringe on any other property owners’ rights. So, in a case like this where all parties acted in good faith, there was a slip up and no other property owner could be said to have actually or potentially suffered any loss, then I think the litigation is ‘vexatious’. There’s such a thing as ‘best effort’. Will be interesting to learn the decision.

    • Elizabeth

      From what I hear, some contortion of fact/story – evidentially, things will stay interesting. That straying from truth is not attributed to Mr Barnes.

    • Gurglars

      Where to start, indeed! ‘Ad hocism’ (planning rules enforced here, and not there?) is definitely a problem, especially when, as recently seen with the Regional Council, breaches of planning rules start being dealt with in an ad hoc or privately negotiated and non-transparent manner (as Rob Hamlin recently drew attention to). Then the public cannot be sure whether the consent authority is acting fairly or not.

  6. Elizabeth

    Oh dear, as partly foreseen, the action was way too late – or rather the action could have been something else …that was way too late. Why did the protagonists think they could win out against the logical reaction of a judge in the circumstances. A whimper.

    Thu, 13 Jul 2017
    ODT: Warehouse windows dispute thrown out
    By David Loughrey
    An Environment Court judge has thrown out a case against the owner of an award-wining Dunedin warehouse precinct building. Judge John Hassan described Dunedin businessman John Evans’ application to require changes at 123 Vogel St as “an adversarial and misdirected lack of respect” for the developer. Mr Evans had applied to have the building’s owner, ADL Properties’ Chris Barnes, remove what Mr Evans said were non-complying second-floor windows, and replace them with another design. But Judge Hassan, who decided on the case in chambers, said the proper course of action was “to refuse the application”. Cont/

  7. Elizabeth

    Coffee house ponderings these last weeks:

    Was the 123 Vogel case connected in some way to the 4WD that towed a trailer deliberately losing its furniture (twice), in Vogel St ?!

    Don’t think so unless Police manage to identify the driver and find some obscure and oblique link. Does DNA suggest a pool of possible drivers ? LOL

    Dunedin is a funny/weird and extreme kind of place.

    Owner of 4WD served with two notices to identify who was driving the vehicle at time rubbish was dumped…. see Video at the story:

    Thu, 22 Jun 2017
    ODT: Owner of couch-dumping car identified
    Police have identified the owner of a four-wheel-drive which was involved in an illegal furniture dumping incident in central Dunedin last month. CCTV caught a green Toyota Prado being driven erratically in Vogel St on May 7, shaking derelict furniture from its trailer. […] Dunedin road police and the Dunedin City Council became involved in an effort to identify the driver. Cont/

  8. Elizabeth

    Further to my comment about lateness – it appears, this via an interested party, that John Evans wasn’t terribly late in approaching DCC with his genuine concerns about the windows as built….. but DCC were rather tardy in replying to him. Why were DCC late in reply? And if this query of Mr Evans might have brough the wider DCC into the knowledge that the wrong window option had been built, why was there no consenting process initiated by DCC for a Variation. After all, there had been an “administrative error” over which window treatment option was consented. Or so we are told.

    Did anyone within DCC attempt to subvert, or manage to subvert, the consenting process, knowingly ? How can we tell, and what is the evidence to support that theory – is the evidence likely to be substantial ?

    More to come.

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