Ap­peal court to rule on chil­dren’s camp

The Horowhenua Mail - - FRONT PAGE - STAFF RE­PORTER

The Court of Ap­peal will de­cide whether a ‘‘chil­dren’s vil­lage’’ of­fends against a le­gal ban on com­mer­cial uses in a well-to-do Para­pa­raumu sub­urb.

Stand Chil­dren’s Ser­vices wants to re­place its long-time Otaki Health Camp, and thinks it has the ideal site on 1.8 hectares of land with a house of more than 1100 square me­tres, a pri­vate lake, ten­nis court and swim­ming pool.

How­ever, prop­er­ties in the Milne Drive sub­di­vi­sion have a le­gal covenant ban­ning ‘‘com­mer­cial’’ uses, and the own­ers of one nearby prop­erty say the chil­dren’s vil­lage falls within the com­mer­cial def­i­ni­tion.

Sev­eral own­ers have al­ready failed to con­vince a High Court judge, who said: ‘‘There is noth­ing com­mer­cial about all this.’’

The trust that owns one of the prop­er­ties has taken the case to the Court of Ap­peal, which re­served its de­ci­sion at a hear­ing on Mon­day.

Stand bought the prop­erty at 132 Milne Drive, and had re­source con­sent granted with con­di­tions. While court pro­ceed­ings con­tin­ued, it was still us­ing its Otaki prop­erty.

In the High Court, Jus­tice Si­mon France said Stand’s in­tended use was clearly not com­mer­cial as that term was usu­ally un­der­stood. Stand was a char­ity giv­ing tem­po­rary respite for chil­dren in need.

Groups of about 20 chil­dren aged 5 to 12 would spend five weeks at a time at the vil­lage if they needed help be­cause of ’’a sig­nif­i­cant risk of harm to their well­be­ing’’ due to the en­vi­ron­ment in which they are be­ing raised and their own com­plex needs.

‘‘Dur­ing the short pe­riod they live at the site, Stand will seek to give the chil­dren some life skills and a good time,’’ the judge said.

Any pro­fes­sional help that was needed would be given, but pri­mar­ily the build­ing would be a tem­po­rary home for the chil­dren.

It would have of­fice and ad­min­is­tra­tive space, up to 17 staff work­ing for short pe­ri­ods when shifts changed, and was funded un­der a gov­ern­ment con­tract.

It was not nor­mal do­mes­tic use, but the re­stric­tion did not say only nor­mal res­i­den­tial ac­com­mo­da­tion was al­lowed, the High Court had found.

‘‘The is­sue is whether it is a com­mer­cial use – and that seems the least likely of all the la­bels.’’

But in the Court of Ap­peal, lawyer John Maassen, for the neigh­bours, said the pur­pose of the no-com­mer­cial uses covenant was to pre­serve an in­tended char­ac­ter. Peo­ple were en­cour­aged to spend a lot of money on high-qual­ity hous­ing.

Stand was com­mer­cial in the sense that it some­times had sur­pluses, one year in ex­cess of $1 mil­lion, which was used to help achieve its pur­poses.

Stand’s lawyer, Paul With­nall, said there was no profit earned in the true sense, and the High Court judge had found it was vir­tu­ally the op­po­site of ‘‘com­mer­cial’’.

The com­ing and go­ing from the prop­erty would not be much dif­fer­ent to what al­ready hap­pened in a res­i­den­tial area where peo­ple cared for chil­dren, With­nall said.

But Maassen said the prop­erty was pro­posed as Stand’s re­gional ser­vice cen­tre, of a size and scale that took it out­side what should be al­lowed in a res­i­den­tial area.

PHOTO: TRADEME

The prop­erty at 132 Milne Drive would have of­fice and ad­min­is­tra­tive space, and up to 17 staff work­ing for short pe­ri­ods when shifts changed.

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