[36] .... the Council was required to follow the processes and procedures laid down by the Local Government Act. That statute was fully effective from 1 July 2003. Those procedures were put in place "to provide for democratic and effective local government that recognises the diversity of the particular community". They were intended to provide a framework for analysis to facilitate good decision-making by local authorities, in the interests of its constituents.
[37] Those procedures must be read in conjunction with the Local Government Act's more general statements about the purpose of local government. One of the purposes is to promote efficient and effective performance of decision-making tasks, in a manner appropriate to present and anticipated future circumstances.
[38] The Local Government Act contemplates a local authority's business being conducted "in an open, transparent, and democratically accountable manner". That is consistent with accepted notions of public accountability to those whom the elected Mayor and Councillors represent. The Council is required to "make itself aware of" and "have regard to, the views of all of its communities". It must also have regard to the interests of future, as well as existing communities.
[39] Those general purposes and principles are reinforced by more prescriptive provisions that aim to provide a framework for compliance. For present purposes, Pt 6 of the Local Government Act is relevant. It deals with planning, decision- making and accountability. It prescribes processes to be followed when a Council is making major decisions....
And in the next part of the decision it will become clear what matter Justice Heath's decision related to:
[40] It is common ground that the nature of the decision to build the sewage treatment plant required the Council to follow the "special consultative procedure", to which s 83 of the Local Government Act refers. That procedure was invoked because payment for the project had to be achieved over a number of rating years. That meant that the development of the project had to be part of a long-term plan, as defined.Given the sums of money involved and the location of Downtown Auckland, it is not unreasonable to treat Auckland Council plans for the redevelopment of this area as a "proposal" and argue that it should follow the "special consultative procedure" to comply with Local Government Act purpose and principles summarised in this judgement. But that hasn't happened.
[41] Section 83 identifies a number of mandatory steps that a Council must take to facilitate meaningful consultation with ratepayers. In summary, the Council must:
(a) Prepare a statement of proposal to identify what it is that the Council wants to do, and put that on the agenda for a meeting of the Council.
(b) Make the statement of proposal available for public inspection at places to which residents and ratepayers are likely to have reasonable access.
(c) Give public notice of the proposal and the consultation being undertaken by the Council.50 The public notice must state how persons interested in the proposal can obtain a summary of information about it, and inspect the full proposal.
(d) Include in the public notice a statement of the time within which public submissions may be made to the Council and ensure that any person who makes a submission has a reasonable opportunity to be heard by the Council, if the submitter so requests.
(e) Generally, ensure that every meeting at which submissions are heard or the Council deliberates on the proposal are open to the public.
It is common knowledge that the Downtown redevelopment project has not followed this process and it is among the reasons for the growing public concern. In recent weeks various procedural steps that do require public notification and participation have been forced on Council and Precinct Properties. The first is Plan Change 79 which aims to change the planning controls and provisions over Queen Elizabeth Square - essentially to stop it being public space and enabling it for private development and also allowing it to be shaded by the tower that is proposed next to it. The second is the need for a "Road Stop" process on Queen Elizabeth Square which then allows it be sold privately.
Submissions to these processes ended respectively on or about 13th July 2015 and 28th July 2015. This posting quotes some of those submissions. Submissions in opposition have come from Auckland Architects Association Inc (AAA); Urban Auckland Inc (UA); Auckland Branch of New Zealand Institute of Architects; the Auckland Urban Design Forum, and Walking Streets Aotearoa Inc.
Plan Change 79
The private Plan Change promoted by Precinct Properties relates to land currently owned and managed by Council that is subject to a conditional sale agreement pending road closure and the change of zone to city centre zone to provide development potential on Queen Elizabeth Square (QESQ) land. According to Item13 of the Auckland Development Committee agenda for the meeting held 11 June 2015, to achieve this purpose the Plan Change proposes to change the District Plan for the Central Area as follows: Amend Planning Overlay Maps 1-7; Amend Figure 14.2 (Central Area open space facilities and locations) by removing the ‘Existing Public Open Space’, ‘Pedestrian Routes / Open Spaces to be enhanced’ and ‘Queen Elizabeth Square’ text from the subject land.... etc
You can see all of AAA's submission here, along with other submissions. AAA extracts include:
9. AAA involves itself from time to time in the planning of downtown Auckland in pursuit of architectural excellence and the production and protection of great pieces of city. AAA’s experience in regard to QESQ is not recorded in the background provided in the s.32 analysis supporting the Plan Change which does not cover the planning period which gave Auckland the HSBC Tower and led to design outcomes which have contributed to Queen Elizabeth Square’s poor performance as a civic square. This early history, which also includes an account of AAA’s involvement at the time, can be read at: A Short History of Downtown Auckland (Published in Architecture NZ). This account describes Auckland Harbour Board’s focus on a level of development density that would not support the public space provision envisaged by urban planners of the day, and which led to the construction in 1973 of what was then known as the Air New Zealand Tower, despite submissions by the Auckland Branch of the Institute for Architects, and AAA submissions about shading and a wind tunnel model demonstrating the predictable winds that would arise on Queen Elizabeth Square.
10. Little changed until the past decade when Westfields – the owner of much of the site before Precinct Properties – sought non-notified consent for a 41 storey tower at the corner of Lower Albert and Custom Street West which was granted in 2008. Restrictions were tight because of the Harbour Edge Height Control Plane. The proposed tower exceeded the height control by some twenty metres, but such a penetration was permitted by the District Plan provided equivalent open space was provided. The non-notified processing of this consent by Auckland City Council at the time meant there were no public submissions, or public awareness of this project. It was also a factor in Auckland Regional Transport Authority being largely ignored despite its need to protect the Central Rail Link route before any potential tower foundations took planning precedence.
11. That five year resource consent was renewed before expiry in 2013 by Auckland Council in April 2011, again on a non-notified basis. Shortly thereafter Precinct Properties purchased Westfield’s interests in the downtown site and negotiations between Council and Precinct Properties proceeded in relation to the CRL project and Precinct Properties plans to redevelop the site. AAA notes that until now, despite numerous newspaper reports and conjecture about what might happen, there has been no opportunity for public submissions regarding redevelopment proposals for the downtown precinct.
12. The supporting s.32 for the Plan Change provides an account of the Downtown Framework (“Framework”) which was released in September 2014. Council’s website describes it: “Led by Auckland Council's City Centre Integration Team it brings the City Centre Masterplan, Waterfront Plan, Regional Land Transport Programme, Economic Development Strategy and Auckland Unitary Plan to life.” In AAA’s view the Framework is vulnerable to criticism in that its purpose is primarily to enable CRL enabling works, to facilitate Downtown development, and to justify the sale of QE Square land – without providing any certainty as to commensurate replacement public space, or how dislocated public transport interchange facilities would be provided. The Framework text, direction and themes all prioritise CRL enabling works and downtown development. Public spaces, parks and squares are mentioned but not taken seriously, despite the advice given by Reset Urban Design in its assessment of public space in central Auckland. No public submissions have been sought by Council in regard to the Downtown Framework.
13. Despite the significance of public space as an issue in downtown Auckland, and the public controversy there has been over the proposed sale of QESQ, the present Plan Change is the first opportunity to make submissions on its future.
16. AAA notes that the Plan Change in part responds to Auckland Council decisions that when QESQ is developed then the eastern edge of Lower Queen Street should be built to a minimum height with verandahs and suchlike, and that the shade controls that presently protect QESQ shall be removed thus permitting the shading that is likely to be cast from the tower proposed at the corner of Lower Albert and Custom Street West. However AAA finds itself unable to respond meaningfully to these proposals because they are essentially presented in a vacuum. For example, no information is provided about how Lower Queen Street will be used by public transport or by other modes of transport which will affect the way pedestrians interact with buildings on either side of Lower Queen Street, and how the public space that is left will be used. AAA submits that meaningful submissions could be prepared should a Precinct wide plan change be promulgated and notified which would allow an integrated assessment and consideration of effects and outcomes.
17. AAA understands that a sum of some $27.2 million is projected from the sale of QESQ, which will be available to reinvest in public space, though the options that have been canvassed are all already in public ownership (sections of Queens Wharf, Port of Auckland Admiralty Steps, sections of Quay Street or/and Lower Albert Street). AAA submits that more appropriate options for providing downtown public space exist - given that the whole of downtown west area is to be redeveloped. A more successful public space than the present QESQ could be provided within the existing downtown west footprint. It could, for example, front onto Lower Albert Street. Or it could front onto the corner of Lower Albert and Quay Streets. Such locations would be away from the shading effects of both 1 Queen Street and the proposed tower, and would benefit from and be of benefit to the kinds of activated frontages that could be built as part of the redevelopment. These alternatives should be considered as part of this downtown Auckland redevelopment. They are the kinds of alternatives that AAA would expect to see canvassed in a framework plan or structure plan that should be produced within or as part of a Precinct wide plan change.
18. AAA submits that significant adverse effects of allowing and proceeding with the Plan Change that is under consideration now include: that integrated planning for the area will be impeded; that integrated consideration of transport effects and land uses will be avoided; and that giving effect to the RMA in regard to the provision of scarce public space will impossible.
19. AAA considers that the present approach is reminiscent of Ports of Auckland’s failed attempt to expand Bledisloe Wharf where public access to Captain Cook Wharf was suggested in exchange. Here the possibility of some yet to be identified public space (nothing remotely similar in character to QESQ has been mentioned) is being offered in exchange for the loss of QESQ.
30. Planning Overlay Map 1 shows the Precincts and Quarters that are provided for in the District Plan. As mentioned these include: Quay Park, Britomart, Viaduct Harbour, Wynyard Quarter. AAA submits that the areas of Central Auckland where problems currently exist in terms of defining public spaces and protecting them for public purposes share one thing in common: they have not been protected by plan changes that have established those areas as Precincts or Quarters. Places with public space problems are: Princes Wharf (public space provision is poor and ambiguous), Queens Wharf (public space provision is frequently challenged by transport, parking and cruise ship operations) and Downtown (the present emphasis on private development and public transport services is at the expense of public space). AAA submits that the District Plan provides the rationale for the promulgation of a Downtown Precinct wide Plan Change in order to satisfy the Central Area policies contained in the District Plan and to deliver the RMA objectives, whereas the proposed Plan Change does not.
37. AAA does not support the Plan Change in its present form for the reasons set out in these submissions.
38. AAA would welcome a Precinct wide plan change for the downtown west precinct that would include provisions set out in the Plan Change that is the subject of these submissions. This Precinct wide plan change should include provisions relating to transport planning, particularly provisions for bus stops and bus interchange services. It should also incorporate commensurate public space provision that replaces any of QESQ that is lost consistent with the statutory planning framework that relates to central Auckland generally and to downtown west in particular.
Road Stop Notice
Local Government Act 1974 Legislation Sections 319 and 342, and Schedule 10 of the LGA. Section 342 of the LGA provides for the stopping of road. The key provision is schedule 10 of the Local Government Act. Of significance is the fact that if AAA’s objection - or any other party's objection to the Road Stop notice - is not accepted by Auckland Council, then those objections MUST be referred to the Environment Court for it to decide them. And the Environment Court is required to look at: The District Plan; The plan of the road proposed to be stopped; The Council's explanation, and any objections made to the proposed stopping. Thus this process could all be headed for the Environment Court. Parts of AAA's objection are shown below Not sure where the other objections might be displayed. Objections are to Auckland Transport - which is now Auckland's road controlling authority:
1. AAA objects to the Queen Elizabeth Square Road Stop proposal that has been notified by Auckland Transport (“AT”). This objection is primarily because the loss of scarce CBD public open space that would be the outcome of this proposal is not compensated for by the contemporaneous or certain future provision of commensurate or better equivalent public open space in the area, despite this resource issue being identified in relevant District Planning documents, and despite relevant District Plan objectives and policies which protect CBD public space.
4. AAA understands that the land that is the subject of the Road Stop Notice (QESQ), is part of a substantial redevelopment under the control of Precinct Properties of an area of downtown Auckland that is bounded by Lower Queen Street, Quay Street, Lower Albert Street and Custom Street, and which is located at ground level above a section of the planned Central Rail Link (CRL) project.
5. While AAA supports the CRL project and could support the level of development of QESQ that is envisaged by the Plan Change, AAA’s support is conditional upon the provision of commensurate public space, and the protection of public spaces and streetscapes from effects arising from the provision of bus and other public transport infrastructure in the area after the planned removal of the Lower Queen Street bus terminal and the planned introduction of at-grade light rail infrastructure on Lower Queen Street.
6. AAA notes that District Plan Section 3.6 recognises such issues: “Council intends the Central Area to be a safe and attractive environment that exhibits excellence in urban design. The impact of private development on public spaces, and built and streetscape character is of prime concern to the Council as this directly affects the quality of the environment. The design and appearance of new development will be influenced by the Plan controls in order to ensure that new buildings do not adversely affect public spaces.” And notes District Plan policy 3.6.3 to address these issues “Certain parts of the Central Area have a definite character or specialist role. The Plan applies specific provisions to these areas, termed ‘Precincts’ or ‘Quarters’. In some cases the Plan ensures that special characteristics that make areas distinctive are retained. In other areas the Plan allows specific buildings or activities and seeks to manage any adverse environmental effects associated with those buildings or activities.”
13. In June 2014 Reset Urban Design were commissioned by Auckland Council to undertake an independent evaluation of current and future public space provision in the downtown area of Auckland City Centre. The work was commissioned as a consequence of an in principle decision by Auckland Council’s Auckland Development Committee to dispose of Queen Elizabeth Square. AAA has read this report and notes the following extracts which are relevant to this objection.
14. In terms of recreation needs, the Reset Urban Design Open Space Evaluation (“ROSE”) found: “Historically the provision of public open space has not been planned and currently it is under provided; there is an increasing inner city population and tourist numbers; surveys reveal strong demand for a range of additional facilities…” (Pg 5)
15. In describing the transformation of this area of Auckland from Port use to civic and other uses, during the period 1909 to 1974, ROSE finds: “Beginning of twentieth century huge changes with mechanisation and consolidation of Port; Public excluded for safety and security reasons, red fence constructed; Several key public buildings built reinforced the civic nature of the precinct..” (Pg 7). One of the key buildings was the CPO – now the Britomart Station.
16. In describing the Downtown Context and opportunity for change in the vicinity, ROSE notes and advises: “Currently in the downtown area there is massive amount of comprehensive redevelopment; Nothing specifically considered for Queen Elizabeth Square which is in the centre of the downtown area?; Strategic relationships and fit should be a major focus for best joined up outcomes… (Pg 22). AAA strongly supports this advice.
17. ROSE makes international comparisons in its considerations of open space and urban fabric, and states: “High quality open space is a critical part of a successful urban fabric; Auckland’s fabric is strongly structured along the Queen Street axis which runs out to the Waitemata; Historically the spine/axis is anchored by civic open space both ends; The picture of open space currently is not one of a strongly coherent element; Huge potential for more varied, greater volume and more coherence and connectivity; Since 2000 there has been more open space added e.g. Wynyard Quarter and Britomart; More to come in areas such as Queens Wharf” (Pg 23, 24).
18. AAA notes that ROSE recommends the divestment of QESC, and that loss be largely compensated for through transforming Lower Queen Street into a high quality public gathering space with any development on QESC not exceeding three stories. AAA notes that the Road Stop proposal as presently drafted only makes references to internal rights of way, and makes no reference to the future treatment of Lower Queen Street.
Best Practice in Road Stop procedures in an urban setting
19. AAA has conducted research into the appropriate processes and considerations for Road Stop procedures in urban New Zealand. It is clear from various contested Road Stop notices in other parts of New Zealand that pedestrian users of pieces of public land that are formally zoned “road” have a significant interest in what happens to such pieces of land, and that their views carry weight in the Road Stop process. A good example of this is the process that is reported to Wellington City Council’s (“WCC”) Regulatory Process Committee (5 December 2013) and which is entitled: “Proposed Road Stopping / Land Exchange – 47 Manners Street”. The purpose of the report was to seek approval from Council for the stopping of a section of unformed legal road in Victoria Street, and in exchange acquiring two parcels of land to facilitate the Lombard Lane Upgrade project which includes the extension of another public space. In this case a private developer that wanted to construct a commercial building with food court, ‘high street’ and ‘boutique’ retail tenancies sought a piece of open space land ‘comprising park benches, low planters with trees’. The two areas to be purchased in the swap are described as ‘dark blue area currently occupied by single storey commercial building… while the light blue area is a sealed car parking and storage area…’.
20. The WCC report summarises the ‘strategic fit’ of the proposal as being: ‘in line with Council’s financial principles, assets that are declared surplus to strategic or operation requirements are sold; the sale of legal road, where surplus to strategic requirements, is mandated under Council’s Road Encroachment and Sale Policy (June 2013); the paper will ultimately support the Council’s strategic direction for a People Centred City…’
21. AAA notes that WCC treated this sensitive urban public space matter essentially as a land swap. The pieces of land bought and sold are within the same city block and satisfy criteria of being commensurate. Applying this approach to Downtown Auckland is what is required, AAA considers, so that QESC is essentially swapped for commensurate public space provided on the sunny and less windy side of the block and fronting onto Lower Albert Street or/and Quay Street. The current QESC Road Stop proposal falls short when considered against Wellington City’s approach to such matters – hence AAA’s objection to it.
39. AAA objects to the Road Stop notice in its present form for the reasons set out in these submissions.Auckland Council and Auckland Transport have driven Auckland public interest agencies into a corner because public space and amenity outcomes have been largely disregarded in the regeneration planning for Downtown Auckland. This is not just a story about notification - or the lack of it. Nor is it a story about consultation - or the lack of it. It is fundamentally about the failure of Council to provide sufficient safe and high quality public spaces and places in the heart of downtown Auckland.
40. AAA would welcome a Precinct wide plan change for the downtown west precinct that would be accompanied by an appropriate QESC Road Stop notice which properly compensated for the loss of that public space. This should incorporate commensurate public space provision that replaces any of QESQ that is lost consistent with the statutory planning framework that relates to central Auckland generally and to downtown west in particular. Any Precinct wide plan change should include provisions relating to transport planning, particularly provisions for bus stops and bus interchange services that will affect pedestrian amenity in surrounding streets and public spaces.
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