KEY POINTS:
The Auckland City Council needs to be more proactive in defending its district plan and less risk averse with cases in the Environment Court.
A review of the isthmus section of the district plan is currently under way and will be notified in April 2010.
Residents and community groups need to feel confident that they are not going through this time-consuming process only to find it later compromised when private property interests clash with the objectives, policies and rules of the plan.
Community groups opposing a development in their neighbourhood are usually ecstatic when they find that they have won their fight. Council-appointed planning commissioners, having considered the evidence of a range of professionals - lawyers, architects, urban designers, engineers and planners - and the views of local residents, have made a decision under the Resource Management Act 1991 to decline the developers' application.
In fact, locals are fortunate that they have even had a say. Approximately 98 per cent of all Auckland City planning applications are granted resource consent on a non-notified basis. Only a tiny number of the notified applications are declined.
In declining the application the commissioners are supporting the stated objectives, policies and rules of the district plan which has been developed after years of community consultation and embodies what the community wants its city to look like.
However, little do community groups and property owners realise that when an application is declined, only a small part of their battle has been won - the part that is open and transparent.
Next can come disillusionment ... the behind-the-scenes negotiations, should the applicant/developer decide to appeal the decision to the Environment Court.
Mediation then begins as the applicant, the council and the Section 274 parties (those groups or individuals who submitted against the original proposal and now wish to be part of the appeal process) enter into discussions to see whether they can reach agreement, so that the case can be settled without a full hearing before the Environment Court.
Now community groups find their costs mounting in this highly legal process where they need to be represented by professional planners and lawyers.
It is understandable that community groups assume that the council will back the decision of its appointed planning commissioners. This is not necessarily so.
Many later complain that, during the mediation, the council has done a deal with the developer and only approached the 274 parties when the deal has already been stitched up. They then find themselves opposing both the applicant and the council.
In Auckland City there are three recent cases where the commissioners' decisions have been appealed to the Environment Court and the council has decided not to defend them.
These are the Gables Tavern, plan change 163, and the Logan Park Hotel.
In these three cases, it is the council's management of the planning process itself that has now been thrown into the spotlight. This process is based on a policy of risk aversion. A bit of a misnomer, since all actions in the court system have risk attached.
Recently, the Environment Court ruled on the Gables Tavern application and supported the original commissioners' decision to decline the application. This was seen as a victory by local residents and community groups.
In contrast, council staff and lawyers took a risk averse position and did not oppose the application. Judge McElrea echoed local community opinion when he stated in his decision: "The essential problem is that the applicant proposes an over-intensive use of the site, leading both to adverse effects on the environment and to conflict with the provisions of the district plan".
Plan change 163, involving Residential 1 and 2 zones, has been back in the news recently. As a result of the Environment Court mediation process between council staff and lawyers and the three parties who had appealed the plan change, council came up with a risk averse compromise that effectively overturned the commissioners' decision on the demolition of houses in Residential 2.
This case is at present on hold due to the intervention of the mayor. The Logan Park application is still before the court.
So why is the council so risk averse when it comes to defending its district plan? Cost appears to be one of the key reasons. A full hearing is expensive and it is less costly for council to reach agreement during the mediation process.
Another is the prospect that the Environment Court decision might put other parts of the district plan at risk, leading to more plan changes and even more costs.
Does the political flavour of council play any part in this? It's my view that it is the process undertaken by the council that can hamstring these committee decisions. Council lawyers enter into mediation and may come back to a committee or subcommittee for a final decision only a few days before the case is due to go to court.
At this stage the deal may be all but done.
Turning back that ship and getting a whole team of new experts up to speed is administratively doubtful. Thus the council, rather than upholding its own district plan, becomes dependant on community groups to do this job for them.
* Glenda Fryer is an Auckland City councillor and a planning commissioner. She was a commissioner on Plan Change 163 and Logan Park.
