It’s taken 10 years for an intensive housing & commercial development of 420-plus residential units above Oteha Valley Rd, Albany, not to go ahead. And it could take another 10 years for it still to be able to proceed if Auckland Transport is allowed to extend the timeframe for a roading notice of requirement out to 2022.
This case, which went before Auckland Council hearing commissioner David Kirkpatrick on Thursday & Friday last week, shows how work might proceed under Auckland’s new housing accord with the Government – or how it might not because, although the accord carries a promise of infrastructure going in ahead of development, that’s not going to happen everywhere.
Even on land inside the existing metropolitan urban limit and otherwise ready to go.
Auckland Transport applied for a notice of requirement to run the 210m Medallion Drive road link between Oteha Valley Rd & Fairview Avenue to improve access for new housing above the old Albany village and the newer Albany City developments, through to Lonely Track Rd.
No figure was given for how much new housing would get better access, and Auckland Transport counsel Gerald Lanning said the council-controlled organisation didn’t expect to seek funding for the roadworks until the 2020-21 financial year, which would enable construction to be done the following year.
John Farquhar, director of landowner Heritage Land Ltd & development company North Eastern Investments Ltd (NEIL), wants more certainty than that. He asked the commissioner to put a 2-year limit on the notice of requirement and to make the footprint more precise.
Mr Lanning said the notice might be able to be brought forward a year, but that would still leave Mr Farquhar hanging – with no certainty that Auckland Transport would, eventually, go ahead with the road link, no ability to develop the land in the notice and no ability to reconform his housing plans.
Mr Farquhar’s proposals are for 419 apartments in 23 blocks and a mixed-use development fronting Oteha Valley Rd containing 45 apartments & just over 3000m² of commercial space. The East West apartment blocks, for which consent was declined late last year because of the requirement for road access beyond the site and for shading of a kindergarten, would have 32 units in an 8-storey building and 28 units in a 7-storey building.
Mr Farquhar told the hearing he didn’t need the road link and believed upgrading the existing Fairview Avenue – at much less cost – would provide the necessary access for others. He said Auckland Transport hadn’t properly costed alternatives to its proposed link, or done the work required under the Resource Management Act to show this link would be a better option.
Traffic coming down Fairview Avenue now has to cross a one-lane bridge and can only turn left. Mr Lanning said the link would do away with that access and create a new link on to Oteha Valley Rd, with traffic lights. He said vehicle movements along Oteha Valley Rd were projected to increase by 75% by 2030 give a figure for how much traffic the new link road was expected to carry.
He said NEIL had provided for the link road in its resource consent applications and it was consistent with what had been agreed in caucusing on NEIL’s 2009 Environment Court appeal – declined until better access to the top of the hill is provided. Auckland Transport had also agreed – but only orally in these submissions at the start of the hearing – to shift the designation by 5-10m to address NEIL’s concerns.
The 210m of link road would have a 22m carriageway enabling 2 lanes plus a buffered foot & cycle path on each side and a planted berm. In addition, Mr Lanning said, “The designation footprint itself is necessarily wider than the 22m operational cross-section. This is because earthworks will be required to construct embankments or retaining walls. Regional consent for these works does not form part of this process and will be sought closer to the likely date of construction, when detailed design is completed. Once construction is completed, Auckland Transport will ‘pull back’ the boundaries of the designation to the area necessary to operate the road.”
That sounds eminently sensible, except that it leaves Mr Farquhar’s companies in a state of uncertainty. Like Mr Farquhar, CDL Land NZ Ltd wants construction advanced to 2014-15 to enable development to occur earlier. CDL Land, a subsidiary of NZX-listed CDL Investments (NZ) Ltd, has supported the designation.
Mr Lanning said it was arguable that effects on NEIL’s proposed development should not be considered because it didn’t have resource consent and, even if it did, “there is no evidence establishing that it is ‘likely’ to be implemented.
“Accordingly, the strict legal position is that NEIL’s proposal does not form part of the ‘future environment’…. Nonetheless, and without prejudice to the view that there is no legal obligation to do so, Auckland Transport has responded to NEIL’s concerns and agreed to modify the designation footprint by shifting it to the south-west so it corresponds with the alignment agreed in caucusing.”
Council principal planner Christopher Turbott said in his report for the hearing land use consents for high density residential development of 56 Fairview Avenue were lodged, but no corresponding subdivision consent applications were lodged. Independent hearing commissioners declined those land use consent applications and the Environment Court declined one on appeal, leaving 2 other appeals undetermined.
Additionally, a private plan change to enable high density residential development at 56 Fairview Avenue was lodged with the council in September 2012. Mr Turbott said processing of this plan change request was on hold pending a response to a council request for information.
Most of the area Auckland Transport seeks to designate is on Heritage Land’s 56 Fairview Avenue – 7881m² of the total 10,864m². 2837m² is on 4 other properties and 146m² is for a creek crossing.
The Environment Court reduced the residential density provided by North Shore plan change 32 in May 2012, on the grounds that the additional residential capacity sought in the plan change couldn’t adequately be serviced by the existing road network, and said a new plan change could be lodged when the improved access was decided.
Auckland Transport pushed that out by initially seeking a 15-year lapse period for its notice of requirement – 10 years longer than provided for under the Resource Management Act – but subsequently brought its request back to 10 years, with a $10.325 million budget allocation.
Auckland Transport’s northern manager of investigation & design, Jacqueline Robson, told the hearing: “A lapse period of 15 years is more desirable from a project management perspective as it builds in contingency for unexpected events. A lapse period of 10 years is the bare minimum that Auckland Transport can have, based on funding being available in the 2021-22 financial year.”
Mr Farquhar, whose family has been heavily involved in development in Palmerston North for 80 years, bought the bulk of his 8.4ha Oteha Valley site in 2001 and a small access lot in 2006. He secured regional land use consents in 2004, but North Shore City Council eventually declined consents for all 3 components of his proposed development in 2009. A joint memorandum resolved the appeals in principle in July 2012, making the council & Auckland Transport submissions on developer progress a pedantic view of reality – especially in light of the souped-up intent of the housing accord which the council agreed to sign last week.
Mr Farquhar said in his evidence to the hearing on Friday he anticipated a final consent memorandum would be lodged with the Environment Court in the next 3 months – “provided the notice of requirement problem is resolved”.
While Mr Lanning said NEIL didn’t have any consent yet and there was no evidence that one was likely to be implemented, Mr Farquhar countered that “NEIL was denied consents to develop its land, due in large part to North Shore City Council officers giving some legal status to a ‘road’ which turned out to be nothing more than a line on a map.”
Mr Farquhar said he’d always done his development proposals with a view to enabling the Medallion Drive extension but, in retrospect, that was a mistake: “NEIL was misguided, believing that it was actually doing the right thing but, in fact, it was putting a noose around its own neck. Providing a corridor for the road had always been a reluctant position on NEIL’s part because the road is not required to service development on its site….
“NEIL has consistently resisted attempts by North Shore City Council officers to require NEIL to construct the Medallion Drive extension at NEIL’s expense. It is very clear to me that one of the main reasons the consenting of the development has been so difficult is because NEIL has strongly resisted pressure to bear the full cost of building the new road itself.
“North Shore City Council & Auckland Transport’s actions are tantamount to bullying, attempting to strong-arm NEIL into providing a public benefit when they have no legal basis for doing so. The ongoing costs to NEIL have been enormous and include direct costs, holding costs & lost opportunity costs.”
Mr Farquhar said the “trigger rule” holding back development came last year after the Shore council introduced plan change 32 to reduce the minimum lot size of 2 low-density areas, areas A & B, within the Albany structure plan to increase their development potential. NEIL’s land was in area D so it didn’t make a submission, but the commissioners decided last year to introduce their trigger rule as a traffic solution for the other areas, stipulating that the additional development rights couldn’t occur until the Medallion Drive extension was completed.
Although the Environment Court determined that the trigger rule was too uncertain and not the most appropriate method, and therefore suggested the new plan could be lodged once road upgrading was complete, Mr Farquhar said plan change 32 seemed to have been given a lot of weight on consideration of his own application for Heritage Land’s East West Apartments project last November, declined until the roading issue was sorted out.
In his evidence last week, Mr Farquhar brought out more dirty washing than the authorities would like, using their own documents against them. He said a memorandum to the Environment Court signed by Auckland Council & Auckland Transport in August 2011 stated that neither the council long-term plan nor the regional land transport plan had funding for the Medallion Drive extension but, in the 2012-22 long-term plan, $4 million was proposed for 2015-16 and $2 million for 2016-17.
Mr Farquhar told the hearing: “I now view this document as deceptive and consider that it was intended to entice me into not withdrawing my offer to sell Auckland Council the land it needed for the proposed road link. Subsequent to the hearing, Auckland Transport & Auckland Council did nothing that they told the court they would do.
“Auckland Transport & Auckland Council advised the court in December 2011 that Auckland Transport had secured funding to advance a notice of requirement earlier than it had anticipated. This was also misleading. This was not substantive funding as anticipated in the context of its 30 August 2011 memorandum, but only to start a process, not to buy the land or build the road.”
When the notice of requirement was notified, Mr Farquhar discovered it didn’t match up to the agreed alignment the experts had agreed in their 2011 memorandum: “Auckland Transport was well aware that NEIL placed total reliance on Auckland Transport & Auckland Council honouring the agreed alignment in amending its proposed development plans at significant expense. The prospect of that reliance having been defeated was unsurprisingly very disturbing.
“Such behaviour reflects the arrogant attitude of Auckland Transport & Auckland Council, particularly the flouting of its written & verbal statements & undertakings to 2 different Environment Court judges in 2 different hearings.”
Mr Farquhar drew more conclusions from the official line in unitary plan deliberations: “Auckland Council has seen fit to downzone NEIL property in its draft unitary plan. Given all the comment on intensification, only one conclusion can reasonably be drawn – Auckland Council is attempting to devalue the land to favour its acquisition purposes. To reduce density so close the Albany park & ride, Albany Centre & the motorway is illogical.
“The draft unitary plan as published in May 2013 appeared to take no account of the intensification proposed in plan change 32 as if it has been ignored. This of course creates another interesting situation because, if the density is reduced, the consequence is less traffic from the remaining undeveloped land. I query whether proper consideration has been given to the justification for this road…..
“Of course, at the end of the lapse period, Auckland Transport may simply decide that it does not want the road. I consider once Auckland Transport understands the full cost of acquiring the land required for the road, that is a very likely outcome.
“For NEIL, that would mean it has developed around a large unusable corridor of land of an impractical shape which could not be used for the planned purpose – that is assuming the footprint of the notice of requirement is reduced to the road take only.
“If the designation is confirmed for the full notified area – ie, the parcel of land remains similar in size to what has been notified – then all the planning of the intensive residential is jeopardized and that would be fatal to all the planning to date…..
“It is not viable to just not build the affected buildings – 5 in total plus Heritage East West on the west of the proposed road – and to wait 15 years for Auckland Transport to make up its mind about when & what it might do.”
The housing accord between the Government & council will take a step forward tomorrow when the council’s Auckland Plan committee decides – in the closed part of its agenda – on the first batch of special housing areas to be given priority for development.