KEY POINTS:
The case of three lawyers almost scuttling an Auckland City heritage protection zone has highlighted the sharp reality of the threat wielded by the Environment Court.
The court hangs like a sword of Damocles over our whole planning process. This was never the intention of the Resource Management Act yet the brutal reality is that the court is often used as a threat by wealthy applicants to force councils and objectors to back down on issues.
A huge amount of time and money went into drawing up the District Plan rule change 169. Planners spent hundreds of hours researching and writing the rules, carrying out community consultations, holding hearings and writing decisions.
Yet when three people threatened to appeal to the Environment Court, Auckland City planners threw in the towel and agreed to delete the entire proposed protection rule.
Such people are motivated solely by self-interest, yet last week they came close to sabotaging the whole of the proposed Residential 2 zone in a back-room deal with council planners.
It is chilling that three people could so nearly subvert an important statutory council process. But what is worse is that they were aided and abetted by the council's senior planners.
Auckland City planners and councillors will have to toughen up if they're to ever resist the attacks on heritage protection from developers, property investors and haulage companies. It's disturbing that councils too often fail to stand by their own rules and their resource consent decisions because of an overwhelming fear of ending up in the Environment Court.
Pragmatism rules the day at the expense of principle. The mere threat by applicants to appeal to the court is frequently all it takes for councils to disregard their district plan rules and come to an agreement.
The reality is that the vast majority of appeals are settled between the parties, often after mediation. On the face of it this is sensible, but too often the parties to the mediation are not equally resourced, leading to a lack of balance and sound judgment in the outcome.
Often the appellants are major financial players with legal and expert advice to match.
As a consequence, council planners often scramble to appease them, and lose interest in the principles of the issue. This often leaves public interest groups and the 'mum and dad' public out in the cold as back-room deals and compromises are made.
It takes nerve and knowledge for the public to take part in an appeal to the Environment Court. Too often ordinary people are put off by a lack of knowledge and the threat of a costly Environment Court process.
To take a case to the court costs somewhere between $50,000 and $100,000 which effectively frightens off all but the wealthy.
There has to be an overhaul of the Environment Court appeal process to give public interest groups the confidence to become involved in these proceedings. There is money available through the Ministry for the Environment's legal fund, which allows up to $30,000 to help with legal and expert witness costs, but this still leaves public interest groups with the risk of major hearing costs of $70,000 or more.
The fund needs to be reviewed to bring funding up to date. In the mean time, the Auckland City Council must show some backbone and defend its rules. Unless it does we'll continue to have pathetic, half-hearted heritage protection in the city.
The council has the statutory responsibility for heritage protection and the expertise to defend this through the appeal process. The planning profession should front up to its responsibility to stand by its ethics and provide leadership to the community and trustworthy advice to its employers.
We are increasingly seeing doctors in the public health system speaking out to expose the poor standards of care overseen by their employers in various district health boards. It's about time planners similarly stood up to be counted for their professional standards, rather than coming to 'agreements' to the detriment of heritage.
I'd like also to dispel some of the fear-mongering and misinformation about the Residential 2 heritage protection zone.The zoning does not mean that every house built before 1940 has permanent protection.
What it does mean is that a resource consent must be applied for and a decision made about whether the building is worthy of retention. The condition of the building, its history and architectural merit will all be taken into account.
A similar zone (Residential 3) has been working in Devonport and parts of Northcote and Birkenhead for many years now. While there has admittedly been some high-profile demolition disasters, the loophole which allowed these has now been closed.
In general, the North Shore rules have worked. Older houses that have no heritage merit have been demolished without public anger and frustration. In some instances Devonport Heritage has supported this, as we accept that not every old building is worth retaining. The proposed Residential 2 zone is nothing to be afraid of and this blanket zoning is the only way of preserving heritage houses that lie in the zone.
What's been demonstrated in Devonport is that heritage protection can work if the community wants it strongly enough.
Clearly throughout Auckland there is a growing tide of support for heritage preservation and the council and planners ignore it at their peril.
* Margot McRae is a spokeswoman for Devonport Heritage.
