Verissimo appeals; this story looks in detail at the rulings, their soundness or otherwise, their role in regional strategy and the role of regional strategy in single-property decision-making
Manukau City Council’s hearings committee agreed on Tuesday to defend the council’s refusal of consent for a 50-lot subdivision on 101.3ha just over the hill from the East Tamaki housing strip between Manukau City and Howick (the East Tamaki strip is to the left of the site, shown in this aerial vegetation location photo).
The committee also agreed the council’s staff should try to resolve the appeal by Camperdown Holdings Ltd (Chris Verissimo) “by consent if possible.”
That seems most unlikely. The application was a test of local body and regional governance, of the regional growth strategy and regional growth forum’s powers, and of simple horse-and-cart theory.
Mr Verissimo said he had no hope of succeeding when he brought the application to hearing on 6 April, and it was quickly rejected. But development of the land, perhaps in the near future, was not ruled out.
Camperdown’s application was heard jointly by the city council (for the subdivision concept plan land use consent) and Auckland Regional Council (for earthworks and works within watercourses).
The answer of the city council, represented by Logan Carr and Dorothy Cooper, was simple: The application didn’t satisfy the threshold tests of section 105(2A) of the Resource Management Act.
Then came two more reasons: The form and density (particularly the cluster of sites less than 1ha in area, shown in the lower area of picture; click on image for larger version) of development is contrary to the purpose and function of the rural 4 zone and does not take into account the particular environmental constraints of the site.
Thirdly, with the concentration of houses upon the prominent ridgelines, the development would have an adverse visual impact on the landscape of the area.
The commissioners then made a note about local community reaction, that the community wasn’t totally opposed to the development of the site, and their primary concern was the timing of the application just before the release of the Niwa (National Institute of Water & Atmospheric Research Ltd) modelling for the Mangemangeroa catchment, which forms part of the Whitford study being undertaken by the two councils.
The commissioners also noted that the community was concerned that the density of development “may not be at a level appropriate to the whole of the Mangemangeroa catchment.”
Pending study could help applicant, commissioners say
On a positive note for the developer, the commissioners felt the outcome of the modelling, due to be released in September, “may assist the applicant in determining the appropriate future level of development, both in terms of the density and layout for this site.”
They could have reached those conclusions without going to a hearing. The city council commissioners’ views are in accordance with the widening planning powers being taken up through the Regional Growth Forum and the sector management agreements being put together by council planners.
This planning scenario incorporates structure plans and catchment plans, coming into play in priority over future, and likely future, zoning, which has previously received most emphasis from greenfields developers.
Property just over the urban/rural divide, which is moving
So, on the Whitford side of Point View Drive, the present line dividing the Auckland region’s urban area from rural, catchment management research is being conducted by Niwa from the head of the catchment where the Camperdown land is, down to the stud farm area across the Maungamaungaroa Creek (there are several spellings) from Somerville, Shelly Park and Cockle Bay, which look on to the Tamaki Strait from the back of Howick.
The map, from the Regional Growth Forum’s strategy document, shows the Mangemangeroa catchment in green above the East Tamaki expansion zone.
Camperdown’s land is east of the reserve at the foot of the countryside living catchment. Mr Verissimo told the April hearing Niwa’s study had cost $800,000, and Camperdown had spent $400,000 on scientific studies of its own land, including peer reviews “to the point where it’s been reported to death.”
More studies are to come: The regional and city councils have engaged Niwa to undertake the comprehensive Whitford modelling study, to address “risk to the ecology of the Maungemaungeroa, Turanga and Waikopua estuaries and the wider coastal embayment from sediment runoff from the surrounding catchment during the earthworks phase of potential rural development scenarios.”
The three-year study is scheduled to finish at the end of next year, with an interim report due out by November 2001 to help the city council resolve appeals over rural 4 zoning.
Camperdown witnesses say report may just lead to more study
That interim report may in fact be out in September, as suggested by the city council commissioners in their ruling.
But Camperdown witnesses said it was optimistic to regard that as a definitive moment. David MacPherson, Camperdown’s planner at the hearing, said in his experience “many studies with a planning focus end up calling for further work to be done, and I think this is likely to be the case here.”
The brief for this Niwa study “further advises that the output of the study â€˜will provide relevant agencies and the community with a scientific basis for discussion and decision-making.’
“In other words the findings will be an input into the planning process only. It will not in itself provide a framework of planning provisions to direct growth in the catchment.
“In my opinion it will take several years after the Niwa findings are completed before results of this study are fed into the planning process and there is an effective and settled zoning in place.”
For that reason, Camperdown decided not to wait longer to take up its development opportunity. For that to be seen in context, the zoning framework needs to be considered.
Mr Verissimo wants to create 50 rural residential lots on the Camperdown property, zoned rural 4 under Manukau’s proposed district plan, which allows an average of one residential lot to 2ha and a minimum size of 1ha. This proposed zone covers most of the Mangemangeroa Valley, subject of the Niwa study.
Zoning liberalisation appeal still unheard
The ARC appealed to the Environment Court in 1995 against the introduction of the rural 4 zone, and the appeal is still to be heard.
The regional council said at the April hearing the city council needed to demonstrate the Camperdown area could be developed in the manner proposed by the new zoning. Meanwhile, the site is zoned rural 1, which provides very limited subdivision opportunity.
The present zoning suits the restraint of urban sprawl, which accords with the Regional Growth Forum’s strategy of containing 70% of new Auckland housing over the next 50 years within the metropolitan urban limits.
Even so, there is some allowance for sprawl, and this happens to be one of those few places. Manukau City planners presented a paper on changes to the regional policy statement (a movement of biblical proportions in planner-speak) to the Regional Growth Forum’s 9 May meeting.
The report, by Amanda Paul and delivered by Bruce Harland, was to inform the forum of the proposed change to the metropolitan urban limit at East Tamaki, which is becoming Flat Bush.
When the forum was asked last December to endorse staging for the change, Ms Paul said it wasn’t clear whether the staging of the release of land would be done by progressively moving the urban limit or by district plan zoning.
More than 40,000 more people in Flat Bush
Manukau City says the whole of Flat Bush, including the area east of Murphys Rd (running up to Ormiston Rd, almost to the Camperdown property), will be built up over the next 20 years to accommodate a population of 23,000 in the first stage, 1200 in the hills area and 19,500 in the third area. Development of the last of these three areas would be deferred until 2008.
The city planners’ conclusion was that the urban limit would be moved once, with a future urban zoning for deferred stages, and the forum received this report without dissent on that conclusion.
At the Camperdown hearing in April, the regional council had two roles, one as an opponent of the subdivision concept plan land use consent being decided by the city council commissioners, the other to determine earthworks and sediment control consents.
The regional council consent was thus dependent on the land use consent being granted by the city council, while the city commissioners decided their consent should depend on the Niwa study at the heart of regional council planning.
Commissioners narrowed view, then widened their scope
The regional council commissioners chose to narrow their view, for a moment, to “the potential effects that may result from the activities proposed in the two applications lodged with the ARC — the effects of earthworks associated with the construction of two roads and works within the heads of several gullies.”
Having eliminated the need to consider mitigation of sediment discharge from the state of the property now to its state once finally developed, the commissioners then widened their scope by saying development of the catchment and estuary “is unusual in that it has been identified as having very high values, while lying immediately adjacent to the metropolitan urban limits of Manukau City [which, as the commissioners would have noted from the growth forum programme, were about to jump the road and get even closer].
“As a result, it is considered that the values of the catchment must be protected from the effects of development.”
The judicial quantum leap
Frequently, around this point in judicial and governmental decision-making, the quantum leap arrives to transport the decision-makers from the immediate issues to their view of how the future should look, and from there back to the immediate issues.
I find that in this case — where the commissioners have taken the quantum leap to discuss the impossibility of a developer achieving perfection in non-creation of sediment, quickly reaching a conclusion that the effect of this project can’t be determined until Niwa has finished its study and, most importantly, finding that the outcomes of a study such as the Niwa one “are to assist decision-makers in determining the appropriate sustainable level of rural development, including countryside living — the commissioners have studiously avoided the specific target of their required attention by stretching their gaze to “the appropriate sustainable levelâ€¦”
The way out was to say this: “While the applicant is able to roughly determine the potential quantity of sediment that may be generated from the earthwork activities on the site, neither the applicant nor the ARC is able, at this time, to define the effect of these sediment discharges on the wider Whitford embayment.”
Rough criticism strongly rebutted
The applicant said he’d spent $400,000 on scientific analysis of potential impacts on his piece of land, “so we will know if it [the Niwa study] has any standing or is a justification coming through in a computer programme for a philosophy.”
Mr Verissimo continued: “I feel entitled to talk in such a strong manner because on this piece of land I’ve done peer reports on peer reports to the point where it’s been reported to death. We’ve used more than one company. We have done everything we possibly can — and five days ago [before the April hearing] we get a report [saying] ‘You’ve done all that, and it’s wrong’.”
I haven’t read all Mr Verissimo’s scientific evidence or examined all those peer reports, but he did name professional firms as their authors, which makes me highly sceptical about the words “roughly determine” used in the regional council commissioners’ decision.
Extraordinary slant on evidence
Extraordinarily, despite the wealth of study contained in Camperdown’s reports, all of which would form evidence to the hearing, the commissioners said they “do not consider that the applicant presented any specific evidence at the hearing to refute the points mentioned above [I assume, about sensitivity of environments, given the immediately preceding paragraph veered off to Okura, on Auckland’s north-east coast, and finished discussing a range of receiving environments in the region worthy of higher levels of protection], as detailed in the officers report.
“Moreover, the commissioners wish the applicant to know that they are not opposed to development in the catchment, and recognise that many of the mitigation initiatives proposed are likely to be appropriate for future development.”
As with the city council commissioners’ ability to make a decision without ever needing to have set foot in the hearing chamber, the regional council commissioners reached the same conclusion: “Given that the purpose of the Whitford study is to assist in the determination of appropriate intensity of development with[in] the catchment, it is considered appropriate to wait for the study to be complete so that this tool can be used to assist in determining appropriate levels of development.”
Commissioners look to future applications as reason for waiting for study outcome
After refusing consent, Cllrs Paterson and Brooker suggested: “Once the results of the Whitford modelling study are available, applicants will be in a better position to determine the effects and applications can then be considered on that basis.”
Put simply, you can always benefit from more knowledge, but you will also never do anything if you wait for perfect knowledge before starting. That is the developer/regional planning impasse at the moment.
Soft interface envisaged, and commissioners ignore the march of suburbia to this property’s border
The sector agreements provide ways forward, and for Camperdown and other potential developers on the rural fringes of Manukau City the rural 4 zone allowing development down to 1ha lots with an average of 2ha (as Camperdown has done in the second respect, with its 50 lots on 101.3ha) would enable a countryside living belt to be created in the 20 years or so before urban streetscapes arrive on their doorstep.
This brings me back to the city council commissioners’ views on the cluster of lots less than 1ha (13 lots, the smallest three between 5500-6000mÂ²), and the concentration of houses on the prominent ridgelines having an adverse visual impact.
The region’s planners know that within 20 years a concentration of houses on much smaller sections will have marched to the border of this property.
They also know that when the change in rural zoning is approved, to allow more liberal development, and catchment studies finally allow rural-residential development on properties such as the Camperdown one, the only real difference is likely to be in timing.
A focusing of strategy on a timeframe such as 50 years, while beneficial during the early stages in working out approaches through that period, soon becomes a focus on the outcome in precisely 50 years. You work to that outcome. How are we to cope in 50 years and a day, in 51 years, in 70 years? Or does the world end on the dot, 50 years hence?
Adverse impact of housing an ARC bogy, potential for positive statement declined
The “adverse visual impact” seen by the commissioners is a subjective impression of housing as a bogy, as expressed in the regional council approach to any housing at Pakiri: ticky-tacky boxes in the suburbs are fine, any housing outside the suburbs is anathema.
It is very easy to write off housing as an adverse impact, much better to support quality and thoughtful construction, which would come at the time of building consent and could also be written into a concept to encourage better development.
The next stage of the Camperdown saga came with an appeal by the company, received by the city council on 14 May and reported to the council’s hearings committee on 5 June. Mr Verissimo emphasised a point at the hearing, that the property would most likely get into a worse state undeveloped (by being left, or tilled, or grazed) than by being developed. The regional council commissioners opted not to consider that comparison.
Commissioners accused of not promoting sustainable management as appeal grounds stated
The first two points on the appeal list are that the two councils’ decisions “do not promote the sustainable management of natural and physical resources” and “are contrary to sound resource management principles and practice.” Other appeal grounds are:
The “undesirable clustering” reason for declining consent “relies on subjective considerations and insufficient regard for environmental constraints affecting the site that are key determinants in the location of building platforms, including its ruggedness and topography, large areas that have poor stability and areas that should not be built on due to their conservation values”
The councils placed undue reliance on the provisions of the rural 4 zone without allowing for the flexibility needed “if it is to provide for more sensitive planning and environmental outcomes”
In relying on the ridgeline concentration criticism, the councils have taken insufficient account of site constraints and ignored the requirement for land use resource consent approval “to ensure that siting, design and landscape elements are dealt with in a sensitive manner in regard to lessening visual impacts on the skyline”
The sediment control decision “will result in greater long-term sedimentation effects than those occurring under the agricultural use of the land. Insufficient weighting has been placed on the long-term beneficial effects as opposed to the short-term risks and effects during construction.”
In the last appeal point on sediment control and watercourse works, Camperdown has gone on the offensive: “The consent authorities have wrongly concluded that widespread adverse cumulative effects would occur if similar developments took place across the catchment. In ‘trading off’ the short-term construction risks against the long-term post-construction benefits, there would be positive cumulative effects if similar developments took place across the catchment.”The city council hearings committee opted to defend the position taken in the commissioners’ ruling, though the possibility of negotiation was left open. Earlier story: Verissimo’s Camperdown project goes to hearing