Dialogue: City planners ignore people's basic rights

DAVID THORNTON* says the AMP building controversy is just one example of Auckland City's widespread misuse of planning consent procedures.

Auckland's Mayor, Christine Fletcher, commenting on the AMP building furore, said recently: "The issue is whether our city councillors and staff have acted properly within the law according to the rules of our district plan and the provisions of the Resource Management Act. Those matters are for the courts to decide."

Totally wrong, Mrs Fletcher.

The issue is the quality of decision-making by the Auckland City Council and staff on resource consent applications all over the city - and making those decisions without giving affected parties and the public the right to comment and make submissions.

The AMP building saga is only the tip of the iceberg.

The Herald has reported on a Lynfield housing development, where even the chairman of the local community board was unaware that the proposal had been approved on a "non-notified" basis.

And yesterday, it told the case of some Grey Lynn residents who spent a fortune trying to obtain justice in another non-notified situation which is literally casting a huge shadow over their homes.

When Lynne Roycroft and Franco Belgiorno-Nettis saw a big sign go up in Scanlan St, they were shocked.

The sign advertised the sale of apartments in a six-storey building to be built right across the road from them. It was obvious the building would cast a huge shadow across their heritage villa.

Until they saw the sign, neither they nor their neighbours had an inkling that the city council had approved such a building without allowing input from the residents.

The proposal for a block of apartments complied in many respects with the district plan. But there were aspects which gave rise to concern, and thus the council would have been within its rights to "notify" the application and call for public submissions.

The council, accepting without question the developer's statement that there would be no shading effect, decided not to notify, and approved the development without consultation.

When the residents finally became aware of the proposal, they were told it was permitted under the district plan and that if they had not made submissions when that plan was open for consultation, they had only themselves to blame.

A council officer later told the residents the only option open to them was to go to the High Court for a judicial review. So off they went to court.

But such a review can deal only with the process by which the decision was reached.

If that process had been followed, it was not open to the court to change the council's decision - even though, in this case, the council could equally have made a decision to notify.

Having lost the High Court case, the residents could have turned to the Court of Appeal. But only on a point of law. And at what cost?

They dropped the legal battle and even had to pay costs to the Auckland City Council.

Had the council taken the other option, of publicly notifying the proposal, the residents could have made suggestions to the developer for changes to the design and height of the building which would have reduced the impact on their homes.

Indeed, such a course of public participation was intended when the Resource Management Act was introduced.

Even had the residents failed at that stage, they would still have been able to appeal to the Environment Court - all at a fraction of the cost of taking the matter to the High Court.

Having left the legal battlefield with many scars, the residents eventually persuaded Mrs Fletcher to pass the case to her complaints review consultant, retired High Court judge Justice Smellie, QC.

Justice Smellie refused to review the High Court decision, but he did find that "although I have exonerated the council and its planning consultant from any wrongdoing, or any improper motivation, with hindsight things could have been handled more appropriately."

He recommended that the council make an ex-gratia payment of $6000 to Ms Roycroft and Mr Belgiorno-Nettis to recognise the fact that their determined opposition had led to changes in the ways things were done at Auckland City. It is totally inadequate compensation for the costs incurred in fighting a battle which could so easily have been avoided.

Auckland City, like many other councils, operates a policy of "if it's in the district plan, it's permitted."

This insists that the council consulted the public on the proposed new district plan in 1993 and if a resident did not make objections known at that time, too bad. No matter that, at that time, many had complained the draft plan was incomprehensible.

The district plan is the Bible, created so by the Resource Management Act. Councils widely advertise new district plans - often hideously complex - which many cannot understand. When that plan is advertised, every resident is expected to read it, understand it and make submissions. Or forever hold their peace.

Such a policy relies on extensive participation by the public in an exercise which, in many cases, takes eight or nine years to complete.

Take North Shore City, for example. Its new district plan was publicly notified in October 1994, yet there are still numerous appeals against decisions arising from that process.

Perhaps the most damning thing about the district plan process is that the result is often incomprehensible to those who administer it, including councillors, staff and expert planning consultants.

The Scanlan St residents forced admissions that there were ambiguities in the plan. Planners are far from perfect. Mistakes can be made in the district plan process. All the more reason for council decision-makers - elected and staff - to ensure that, despite the supremacy of the district plan, there must always be opportunity for public input on sensitive issues and applications.

And there must be public faith in the process.

However, there seems little hope for improvement. Despite many legal judgments advising councils to notify resource consent applications if in any doubt at all, the Auckland City Council continues on its merry, non-notifying way.

Mrs Fletcher may not wish to comment on the AMP building, but she can take steps to put a human face and a soul to the planning organisation of her city, which seems to be running rampant over basic individual rights.

* David Thornton is a commentator on local government and a former member of North Shore City Council.