Cost of PAUP Appeals

One of the final reports to be considered by the current Auckland Council's governing body summarised a challenging situation incoming Councillors will be faced with:

Interestingly, despite the statement that "council does not comment publicly on the merits (or otherwise) of the appeals", the Council has chosen to single out for special attention the appeal by Auckland 2040 and the Character Coalition (A2040CC). Since this comment, others have chosen to criticise A2040CC, and to use the opportunity to blame them for Auckland's housing problem.

Even Labour's housing spokesperson climbed on the bandwagon, as this NZ Herald article shows:

He said a High Court appeal by the Character Coalition and Auckland 2040 against provisions for greater intensification could stall implementation of the plan for up to a year.
"Auckland urgently needs the Unitary Plan to be able to build the number of homes required to meet demand," Twyford said.
"National must urgently legislate to make the Unitary Plan operative now, rather than after the lengthy legal process is finished," Twyford said.

 This is disappointing from Twyford who has latterly been consistently raising the demand-managment side of the policy debate. Even Auckland Council concedes that the Unitary Plan by itself will struggle to build a single house, without the other legs of the development planning stool being in place.

The other two legs are area and regional spatial plans; and public realm funding planning. Without these institutional arrangements being in place the PAUP is little more than a list of rules defining the development potential of land areas within the Auckland region. The PAUP, without these legs which are the implementation tools, can't stand up.

MPs and Government Ministers might wish for the PAUP to be all made operative by Act of Parliament - despite the concerns held by the many appellants - but that would deny property owners the rights that go with living and working in a western country which is a democracy. The problem we all face now is the enormous amounts of time and money that these appeals are about to consume. Largely unproductive time and money, because, while this litigation will be good for GDP and generate fees for experts and lawyers, nothing will actually get built. Not only that, but all of this effort will only change specific provisions and lines on maps within the PAUP, which, even when judges hand down their final decisions, will still require the other two legs of the development planning stool.

To digress slightly, many of the community concerns with the PAUP might have been addressed along the way if the other two legs had formed part of the planning environment. For example, many community concerns about development intensity provided for by the PAUP, would have been addressed (not necessarily satisfied) through the collaborative production of Area Spatial Plans and the negotiation of community infrastructure asset plans and their funding. Community fears that their loss of amenity will be a developer's gain are at the heart of much community resistance - which is dismissed quite wrongly in my opinion as NIMBYism. The way I see it, we are all walking in lock-step to a gunfight in the courts where no-one will win (except the lawyers, the urban design experts and the economists). All because we are applying an environmental effects based planning system that works passably for greenfield development, to an urban environment where the receiving environment = communities and people (not grass, streams and native ecosystems).

So what about these appeals. What do they want? I've read about a quarter of them, and unlike Council I am not a party to any of them, and can freely comment, with the aim of roughly informing anyone who's got this far, by sharing my brief notes after an examination of Council's PAUP website....

• There are High Court Judicial Review applications. Weiti Development; North Eastern Development; Vision 2040 and Character Coalition; Waste Management NZ; Straits Protection Society; Strand Holdings; Bunnings. Appeals to the High Court including: South Epsom Planning Group; Federated farmers; Ak Memorial Park; Bayswater Marina; Waitakere Ranges Protection Society; Kiwi Property Group Ltd; Kawau Island Organisation Ltd; Independent Maori Statutory Board. And many appeals to the Environment Court. These are all neatly classified in the website under the same "Topic Numbers" that were used by the Independent Hearings Panel (IHP).
• Looked at Waste Management’s 28 page judicial review application prepared by Chapman Tripp includes detailed statement of claim relating to less than 1 hectare of land at Rosedale Road, tellingly submits: The appellant alleges that the Panel and Council erred as a matter of law in that, in the circumstances presented to the Panel and Council, the only true and reasonable conclusion on the evidence available to them, contradicts the determination made to rezone the appellant’s Site from “Light Industry” to “General Business”. Looks like a minor matter.
• The Straits Protection Soc Inc wants a RUB on Waiheke Island, and argues that IHP made wrong decision to remove it.
• Character Coalition and Vision 2040 judicial review. The decision appealed is the IHP decision to rezone residential properties to other zones when council had no scope to do so; rezone mixed housing properties to other residential areas when it had no scope to do so; resulting in 1000’s of residential homes being rezoned without scope and without opportunity for submitter, landowner and affected person input!! This all gets into s.144 of the LGAucklandTPA – scope of recommendations that IHP is permitted to make. Looking at s.144 suggests the IHP had an enormously wide brief that in law. This appeal really goes to the fundamentals of Auckland amalgamation, the Auckland Plan, and related LGA reforms relating to the PAUP and the IHP.
• Looked at Bayswater Marina’s High Court appeal. Talks about an "Evident logical fallacy"! It appears that IHP made recs distinguishing between 2 area of BM in terms of parking and food and beverage but without giving reasons. They say that BM subs and Council subs are supported – but that IHP took a different view without reasons. Appears the IHP recs were “minor changes” as far as IHP were concerned, but are major as far as BM is concerned.
• Fed Farmers have argued tortuously that the way IHP and Council have responded to King Salmon Case Law and the NZCPS has meant that various Outstanding natural landscapes have been revisited in a way that means basic farming activities are not allowed. The heart of its appeal is that methodology around this should be reviewed – and it was not – that is the error in law.
• Looked at Kiwi Group’s 91 page appeal to Env Court. Re carparking in centre and mixed use zones. “because the Council rejected recommendations of the Hearing Panel that had been addressed by the appellant, and this resulted in alternative provisions being included in the plan – and others being excluded…” (This is a request to relitigate the Panel and Council decisions in EC). Looks pretty simple as an appeal – contains previous submissions. Progressive is also appealing Council’s decision to reject IHP recs re minimum parking provisions. Council removed all parking minimums.
• Looked at VHHL’s appeal to EC re Lighter Quay. Looks like Council rezoned small area left for development so that offices are discretionary – because Council sees area as mixed residential. Looks like a bunfight specific. 
• Looked at Weiji Yang et al’s appeal to EC. This relates to 189 Vaughan’s Road Okura. Object to it being countryside living, instead of future urban. They want the RUB to be changed. They want the Hearings Panel recommendations reinstated in full.
• Todd Property Group (Berry Simons as lawyers) want fundamental changes made by Council to IHP’s recs re urban growth to be reversed. These provisions are in the Regional Policy Statement and require that “urban growth is primarily focused within the metropolitan area 2010….. and quality compact urban form…. Concentrating urban growth within metropolitan area…”. This looks to me as potentially as fundamental as Auckland 2040's appeal. Not sure why Auckland 2040 was singled out, and not Todd Property Group. 
• National Trading Co of NZ appealed to EC provisions relating to kauri Dieback. They only want the provisions to apply where it has been identified. They want Council’s rollback of IHP recs reversed.This pattern was common in appeals I looked at. Appellants generally favour what the IHP recommended and disagreed with Council's changes. The very significant issue that arises here is what role does Council have in deciding its own plan - if, based on internal priorities, it cannot adopt different policy settings. Does it take an environment court to decide between IHP and Council?
• Housing NZ’s appeal to EC is an interesting challenge to Council’s reversal of IHP’s recs re the distinction between special character and historic character. IHP advised that any tighter controls should be the subject of a plan change organised at local level. I see this as a roll back by Council of IHP heritage protection provisions that HNZ supports. (I do wonder why HNZ is doing this….?)

Anyway. Just to give you a bit of a flavour. A lot of these can likely be dealt with quickly. But some could take much longer, demand tracts of expert advice and legal advocacy, when other more practical approaches, on an area plan by area plan basiswould be more productive.