Brian Rudman: Chow brothers court tactic avoids anti-brothel rants

Brothel owners John and Michael Chow are trying to short-circuit widespread opposition to their proposed new inner-city 15-storey house of ill repute by having the planning application heard directly in the Environment Court.

In an application before today's Auckland Council hearings committee, their lawyer, Russell Bartlett, asks that the fast-track provisions added to the Resource Management Act in 2009 be adopted because of the "significant public interest" and "a high probability" that any council decision will be appealed to the Environment Court anyway.

If councillors agree with the strong recommendation of council staff to bow to the Chows' request, the planned hearing before council-appointed independent commissioners will be bypassed.

With all but one of the 219 public submissions being opposed to the new brothel, and 59 of the submitters wanting to be heard in person, it's obvious why the applicants would prefer to have the deliberations moved to a more rarefied venue.

This is especially so as most of the submissions seem not exactly relevant, council officers noting that "the vast majority of the submissions are against the brothel activity" even though "brothel activity is permitted under the district plan in this area, as it is an entertainment and gathering activity".

The "direct referral process" was introduced to avoid duplication of process and costs and avoid the time delays occurring when controversial applications before a council hearing process are then the subject of an appeal to the Environment Court. Which is advantageous to developers and, perhaps, local bodies, but not necessarily so good for the aggrieved citizens who want their chance to fume and rage.

The council bureaucrats acknowledge this when they recommend that if councillors agree to pass the brothel hot potato straight up to the Environment Court, they recommend to the court that a "Friend of the Court (amicus curiae)" be appointed. This "friend" would be there to hold the hand of "lay people" who are "unfamiliar" with legal proceedings and might be deterred from becoming involved "due to potential formality and the cost of expert witnesses".

It's not clear whether such a "friend" would be appointed by the council or the court. In the present situation, if most of the submissions are considered irrelevant by the court, the "friend" might end up with no one to help anyway.

Under the legislation, the council has to provide a summary of all submissions. While there is no provision within the Resource Management Act requiring a council to be a party to the court proceedings, the Environment Court ruled in a 2010 case that by directly referring a case to the court, a council automatically made itself a party to the proceedings and had to be represented.

Thus the council experts will not just prepare the reports and papers that would have been assembled for a council hearing, but will also be able to present its view on the proposal.

But whether the hearing for the proposed brothel is held before independent commissioners or an Environment Court judge, the outrageous catalogue of events that enabled the Chow brothers to propose their 15-storey inner-city brothel is not part of the agenda.

The scandal is that in the middle of a city ruled over by a mayor pledged to preserve heritage, a precious piece of that heritage was reduced to rubble under the Chow brothers' watch, and no one has been held accountable.

We all know the story. In November 2010, the protected three-storey Palace Hotel, one of the city's few remaining brick corner pubs, started to collapse while being converted into a brothel by the Chows. To save neighbouring buildings, the council ordered an emergency demolition. A subsequent engineer's report blamed over-excavation of the basement, exacerbated by the removal of timber and concrete floors "designated to be retained in the approved plans".

An in-house council report declared "structural failure on this scale is almost unheard of in New Zealand" but claimed there was insufficient evidence to prosecute.

For the Chow brothers, the city's loss was their windfall. In place of a modest old pub building, they suddenly gained a bare, unencumbered 522sq m inner-city site opposite the casino.

They're now proposing a 15-storey high-rise. That is permissible under planning rules, but only if the council agrees to every bonus allocation on offer. Otherwise it could be several floors lower.

To me, even one bonus floor is too many in this situation.