Morgan Williams: Waitakere heritage bill too imprecise

It is easy to understand why Aucklanders want to protect their iconic Waitakeres landscape. The area contains one of just two remaining large tracts of indigenous vegetation in the Auckland isthmus and defines the city as much as the Harbour Bridge and Rangitoto.

The overwhelming support in Auckland and Waitakere City for special legislation to preserve the Waitakeres' environment reflects just how treasured that landscape is, especially as the urban area expands and the pressure on it intensifies.

Yet looking west from the city to the ranges and foothills you do not see a pristine, untouched wilderness. Eighteen thousand people live there and 7000ha of land are in private hands. Another 18,000ha are in public ownership but the treasured landscape is a lived-in environment modified by human habitation.

So when people talk about protecting the Waitakeres, what is it exactly they are seeking to protect? Some may want to lock it up or return it to its original state. Others may seek to manage change so the area can evolve while retaining the sense of place and identity that make it so special.

People who live in the Waitakeres and Aucklanders who visit might wonder whether it is possible to live and work there without changing the landscape unrecognisably or destroying its ecological value.

Five years ago I released a study which found that unfettered development in the Waitakeres would chisel away at the landscape and lead to "death by a thousand cuts". But the issue was so significant for the rest of New Zealand that it led to another, enlarged, report the following year. Taking the Waitakeres as one of six case studies, Managing Change in Paradise investigated areas under intense pressure at the margins of our towns and cities.

We found a serious challenge existed, not just from subdivisions on the edge of urban areas and more people occupying the space but also from how we allow these environments to develop.

Our research showed that generally communities want to continue to live in and develop them but, at the same time, maintain their special qualities. They want to "protect" a range of biophysical attributes from development and retain them in perpetuity.

These aims can be in conflict and often what underlies them is a tension over property rights. On the one hand some believe that private property ownership confers absolute rights when it comes to choices about how land will be used.

Others believe the community has a legitimate interest in private land use. This tension can lead to the complete breakdown of any planning processes.

A common perception is that traditional common-law doctrine gives property owners absolute rights of use and enjoyment. That is not so. Ownership has always been subject to limitations.

In an environmental context the Environment Court has held that, given certain preconditions, the Resource Management Act allows the limitation of private property rights in the interest of public benefit. These actions may, of course, benefit the property owner, too.

The court has also stated that it is not an object of the act to protect private property rights. A consent authority's decision should be made for the public-law purpose of the act - to promote sustainable management - rather than to enforce private-property rights.

It should be noted that one issue we have not handled well is compensation for people ceding their property rights. Private landowners might well expect to be compensated for conserving public goods, such as natural heritage and amenity values, and foregoing their development rights.

Landowners in the Waitakeres might already feel weighed down by a raft of rules and regulations. Like many others, they might be asking why we need another piece of legislation, the Waitakere Ranges National Heritage Area Bill, when for 14 years the Resource Management Act has been shaping our urban environments.

The problem is that the act is an omnibus piece of legislation. It cannot deal with every specific situation, but the fact it was designed to deal with a myriad of planning, environmental and development details is precisely its weakness.

In the Waitakeres the issue is not detail but the big picture. Each individual Resource Management Act decision for each Waitakere landowner might be sound and rational, but the cumulative effect on the landscape could be disastrous. The act does not do strategy and vision well.

In my 2001 report I found that the system of environmental management and planning might not be capable of promoting the sustainable development of areas on the margins of towns and cities. So it has turned out in the case of the Waitakeres, and hence the bill.

In one sense the bill can be compared to national parks legislation, but with the telling difference that the landscape to be protected is not in a remote part of the country but on the doorstep of its largest city and under intense economic pressure to develop it.

Insofar as the bill embodies Aucklanders' vision for the area, I support it. But it does appear to have some weaknesses. By being too general it will invite litigation. It needs to be more precise and clearly codify what Waitakeres landowners can and cannot do, and to express that vision so all parties can see what lies ahead.

We may well see more of its kind. Development pressure is intense in other parts of the country, such as Banks Peninsula, the Wakatipu Basin, Taupo, the Coromandel, the Tasman district and parts of the Bay of Islands.

The Waitakeres initiative could become a prototype and I see this as a maturing of our approach to environmental legislation and to the management of complex ecosystems.

With regard to many aspects of society, from business to road safety, our law is well developed but our environmental law is in its infancy.

Concern over urban encroachment into valued landscapes is a worldwide concern, and I welcome this attempt to craft a sustainable development framework. I suspect it may attract attention from well beyond these shores.

* Dr Morgan Williams is the Parliamentary Commissioner for the Environment.