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When is a house not a house?

There is a question mark as to whether Daphne Geisler’s property on Kansas St, Martinborough, can be residentially occupied as it is zoned commercial. PHOTO/HAYLEY GASTMEIER

A zoning dispute between South Wairarapa District Council and a homeowner is proving to be a costly exercise, reports Hayley Gastmeier.

A Martinborough woman has been told she is not allowed to use her house for residential purposes, unless a business is run out of the front of it.

Daphne Geisler and the South Wairarapa District Council have been stuck in an on-going dispute for 18 months over her property on Kansas St, which was built in the 1940s for the postmaster.

Two legal opinions and an expert planning firm agree the property can in fact be lived in, but the council’s planning department is digging in its heels.

Geisler’s property is zoned commercial under the Wairarapa Combined District Plan.

She bought it in 2005, and soon after moved to another property but continued to run her antique store out of it.

She put the house on the market in April last year.

It wasn’t until a potential purchaser was doing due diligence on the property that Geisler struck problems.

“I was informed that my dwelling on Kansas St did not have permitted residential use in the WCDP.

“I found that there was no indication that residential use was prohibited, in fact, the plan clearly states it is permitted.”

Council staff directed Geisler to section 6.5.6 of the plan which states that “any new residential unit at ground level, with frontage on to road” is not permitted and considered “discretionary”.

Because Geisler’s house was used for more than 12 months as a commercial property, residential use would be considered new if resumed, under the Resource Management Act.

Geisler was told by former council planning and environment manager Murray Buchanan that the word “new residential unit” in 6.5.6 should be read as “all residential use”, changing the clause’s meaning.

“But it doesn’t say that,” Geisler argued, and she paid Bell Gully to get a legal opinion.

The firm concluded: “Given the language in Rule 6.5.1 and 6.5.6, we consider that the use of the property for residential purpose is a permitted activity under the district plan.”

Geisler said the council then sought expert advice from expert planners Boffa Miskell.

An email from the firm confirms it agreed with Bell Gully’s opinion.

This information was withheld from Geisler, who months later went to the council and requested the file to her property.

It revealed that the council also sought advice from Hazelton Law, making it clear it was after a contrary opinion to Bell Gully.

Hazelton Law came back saying the case could go either way and suggested the council change the wording of the district plan.

In January, Geisler was advised the council’s decision had not changed and if she wasn’t happy, she could take the matter to the Environment Court.

Geisler said ratepayer money was needlessly spent to prove her wrong.

“And to suggest that a ratepayer go to the vast expense of an appeal to the Environment Court is disingenuous, intimidating and a reckless use of council funds.”

She said her requests for meetings with the council to understand its rationale were declined, until she copied all elected members into a formal draft complaint.

However, the council disputes this.

A meeting was held last month with Geisler, South Wairarapa Mayor Viv Napier, and councillor Ross Vickery, a practising lawyer, who agreed with the legal opinions that “residential use is a permitted activity in a commercial zone”.

But the answer from the council was still ‘no’.

Council chief executive Paul Crimp said under the RMA, Geisler had lost her right to treat the property as a dwelling because it was used as a commercial activity for several years.

“Under the RMA, the rights are lost after one year.

“The rationale for this is that it builds on the integrity of commercial zones, which have different noise and activity constraints to normal residential zones.

“We’ve tried to work with Ms Geisler by requesting her to submit a resource consent application to have the designation changed from commercial to residential.

“By applying for a consent, this allows normal appeal provisions to apply if the result is not what the applicant feels is right.”

But Geisler believes a resource consent is not required.

She said the property was designated as a residential dwelling until two months ago, when the council requested QV change it to commercial without notifying her.

Recently widowed, she said the fiasco had been stressful, expensive, and a waste of time.

She will be addressing the council at the next full council meeting, at 9am on Wednesday December 12 at the Greytown Town Centre.

6 COMMENTS

  1. This happens so often with the Sth Wairarapa Council.
    Rate payers pay the council staff wages indirectly and they need to listen to those of us who voted them in to represent the ratepayers.
    A complaint with this council never seems to be handled graciously and in Daphine Geislers case an absolute disgrace.
    Council members put yourself in her position.Think and act as you would wanted to be treated.
    Act graciously .

  2. Hello
    The CE disputes the fact that my requests for a meeting with him and Mayor to discuss my (draft) complaint were refused until ‘pressured’ by Councillors.
    I made the (draft) complaint 20 July to the CE and Mayor as the complaints procedure states. It was draft in the hope we could have a conversation and avoid a confrontational approach.
    While the PA tried to set up a meeting with the Deputy Mayor (in the Mayors absence) and CE, they chose to not proceed and reply by mail.
    I received a written response from the Manager of Planning on 27th July thanking me for my ‘enquiry’ and restating his view, no rationale about the expert opinions I had found
    I received a written response from the CE on 8 Aug and a refusal to meet with me.
    I lobbied other Councillors and the local MP.
    The CE refused to send information about my complaint to the full Council so I did.
    Finally the Mayor and the Manager of Planning and one Councillor, met with me on 19 Oct, it was a very restricted meeting, the Mayor refused to have the MP or anyone from his office attend, refused to have two Councillors who indicated an interest in the issue attend, the CE did not attend.
    Complaint received 20 July – meeting 19 October I think this shows the reluctance of the Council to have a meeting and address this issue openly and fairly.

    Would the CE please confirm why he is disputing my comment and if he is error please retract the comment and apologize or confirm when he believes a meeting was held. Thank you Daphne Geisler

  3. I have had dealings with the SWDC and its hard to fight them as they have ratepayers money to back them.In my case the council employed unqualified builders to rectify a building problem at my cafe in Featherston after there cock up. The building inspector also checked work but after a phone call from my insurance company the council hired qualified builders and completely rebuilt the toilet in question and then hid the cost and denied any wrong doing.
    I feel for you good luck

  4. SWDC seems to have a reputation for mean-spirited and unecessary pedantry and it seems in this case has also acted deceitfully in withholding its own legal advice from Ms Geisler. Instead of hunkering down and defending the indensible it is long overdue for the Council to fess up, be reminded that they are public servants not overlords, and to consider how to work more kindly and supportively.

  5. Typical of this area.mindless bearucats with small minds are power mad.
    Anything to show the peasants that they are in charge.
    Discraceful

Comments are closed.

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