An Auckland Council duty commissioner told council staff an application to demolish a 90-year-old Remuera house should be notified – then, 3 hours later, issued a decision not to notify it.
Other commissioners went on to approve the house’s removal, although it’s in a group identified for demolition control.
But, in a ruling last Friday, Auckland High Court judge Mark Woolford quashed the notification decision, and consequently also quashed the substantive decision.
Marche Ltd (Chris Lord) and a neighbour of the Seaview Rd property, Jocelyn Armstrong, sought judicial review of the 2015 notification & demolition decisions, which were in favour of planning consultant Gary Deeney, in his role as a developer.
Mr Deeney sought to remove the house built in 1926 at 48 Seaview Rd. Justice Woolford didn’t go into the merits of Mr Deeney’s application, but focused on the uncertainty & errors apparent from the notification commissioners’ correspondence, and particularly on the failure to give any reason for non-notification.
The judge’s decision is especially apt this month, as a campaign builds to get the council to withdraw revised zoning maps it provided in December to the independent panel hearing submissions on Auckland’s proposed unitary plan.
Justice Woolford released his decision on the last day of a fortnight of evidence to the unitary plan panel on pre-1940 & heritage housing, which rezoning opponents say is under siege in the council’s drive to enable more intensive development on the isthmus.
The unitary plan hearings panel chair, Judge David Kirkpatrick, declined to reopen submissions on the council’s proposed zoning changes, saying in directions issued in January that accepting new submissions on the recent council proposals would very likely mean the panel would miss its 22 July deadline for delivering recommendations on the unitary plan to the council.
Opponents of more intensive development on the isthmus and of loosening of the ability to demolish houses over 70 years old are likely to have their input more severely curtailed under the Resource Legislation Amendment Bill introduced last November, though there will still be scope for judicial review.
In the Seaview Rd ruling, Justice Woolford said he would express no view on whether the application should be notified, but said the council or independent commissioners would have to make a fresh decision: “The fresh decision should make reference to the evidence considered & the key factors taken into account and explain why the particular decision is made.”
Council planner Harry Halpin had recommended Mr Deeney’s application be refused, but commissioners David Hill (chair) & Richard Knott approved it last August. Duty commissioners Mark Farnsworth & Cherie Lane had approved non-notification in May.
The duty commissioners wrote in their decision: “Having read the application, supporting documents, specialist comments & the council planner’s report & recommendations on the application, I [both commissioners] am satisfied I have sufficient information to consider the matters required by the Resource Management Act and to make a decision under delegated authority on notification. Under sections 95A, 95B & 95C of the RMA, this application shall proceed without public or limited notification because:
- Rule 18.104.22.168 of the operative district plan enables the application to be considered without the need for public notification or either obtain the written approval of affected persons or notify them
- There are no protected customary rights groups or marine title groups in the region affected by this proposal
- Having regard to the general discretion to notify under section 95A(1) and whether there are any special circumstances under section 95A(4), we find that there are no relevant reasons to warrant public notification.”
Justice Woolford said the plaintiffs before him alleged that the commissioners made a number of errors of law, failed to take relevant considerations into account, had regard to irrelevant considerations and failed to have regard to natural justice considerations & the right of members of the public to be heard.
Mr Farnsworth wrote in an email to council staff member Celia Chan hours before issuing the non-notification decision: “All of the houses, with the exception of the [neighbouring] house at 46 Seaview Rd, are well maintained and contribute positively to the special character. We came to an initial viewpoint that the demolition of the house 48 Seaview would incrementally detract from what we consider the obvious special character of the area and therefore should be notified.
“In terms of section 95 we are considering whether ‘special circumstances exist’ which would provide grounds for notification.
“The complicating issue for us is the clause in the Auckland district plan which exempts this type of application (the demolition) of buildings in Residential 2C from notification; does this clause ‘trump’ section 95 special circumstances? We are seeking clarification on the above matters.”
Ms Lane commented in another email exchange that a workshop for commissioners would be helpful: “Was good working with Mark on this one. But it was a bit of a tricky one… We found the rule that such activities (demolition in the residential 2 zone) not be notified, to be particularly vexing!… Hope this sort of forum can be organised soon – would be really appreciated.”
Justice Woolford said the email exchanges showed an element of confusion or misunderstanding on the part of the commissioners. He said clause 22.214.171.124 of the district plan specifically provided: “’Except as provided for in section 95A(4) of the act, [demolition or removal] will be considered without public notification or the need to obtain the written approval of or serve notice on affected persons.’ It is inappropriate to refer to that clause as trumping section 95A(4) special circumstances. The provisions sit side by side. One does not trump the other.
“Secondly, it is difficult to understand Mr Farnsworth’s reference in his email of 2:11 pm to proceeding on a non-notified basis ‘as long as the application is amended as per rule 126.96.36.199’. Rule 188.8.131.52 does not deal with the amendment of applications.
“Ms Lane filed an affidavit setting out her qualifications & experience and the documents she had before her when making the notification decision. She also confirms that she visited the site the day before with Mr Farnsworth and discussed her initial impressions with him, but does not elucidate her reasons for making the decision not to publicly notify the application. We are left then with the decision itself.
“However, the notification decision itself presents further difficulties. It states that the commissioners had regard ‘to the general discretion to notify under section 95A(1)’. Section 95A(1) is, however, not applicable to the current application. It enables a consent authority, in its discretion, to decide whether to publicly notify an application for a resource consent. The application was, however, to be dealt with under sections 95A(3) & (4).
“In this case there was a rule which precluded public notification of the application, that being rule 184.108.40.206.”
Summing up, Justice Woolford said: “I am unfortunately unable to discern the reasons for the decision. The finding of ‘no relevant reasons’ raises more questions than it answers: What factors were considered by the commissioners? What weight was given to the factors considered by the commissioners? How was the decision on relevance reached?”
Justice Woolford was curious about the reference to marine title groups – given Seaview Rd is well uphill from the harbour in the middle of Remuera – and found “almost exactly the same wording was used in non-notification decisions by commissioners on 31 October 2014 & 23 December 2014 in relation to applications by Ports of Auckland Limited to extend Bledisloe Wharf, where a reference to marine title groups may have more relevance.
“A template can be beneficial to good decision-making, but care must be taken to ensure that it is appropriate to the case at issue.”
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Attribution: Judgment, RMA, Council hearing decisions.