Campaign also includes submission on urban limit shift at East Tamaki
Peter Mawhinney & his Kitewaho Bush Reserve Co Ltd occupied a fair part of the Auckland Regional Council’s strategic policy committee meeting today, over separate issues concerning the metropolitan urban limit and the Auckland inner drainage area.
Mr Mawhinney has been fighting for several years to subdivide land just on the wrong side of the urban limit (MUL) boundary at Swanson and another piece nearer the Rodney District border.
The urban limit is being extended above Henderson, taking in the 80ha of Babich land, and it’s also intended to take in the Penihana block at Swanson in the next 5 years. The urban limit line skirts the Penihana block on 2 sides, while the drainage area line goes round the other 2 sides, incorporating it in the inner drainage area.
Mr Mawhinney has a 6.8ha block across Christian Rd from the Penihana block, looking across to the Swanson station & facing the foot of Tram Valley Rd. That puts his block immediately outside the drainage area and, when Penihana is included within the urban limit, immediately outside that as well.
Kitewaho application made in 1996
Hugh Jarvis, policy implementation manager for the regional council, told the committee in a report on the Environment Court decision on Kitewaho last year, and a proposed costs appeal to the High Court by the Waitakere City Council, that Mr Mawhinney’s companies tried to get non-notified consent in 1996 for various subdivision proposals on Anzac Valley Rd, which runs from the start of Bethells Rd.
“The subdivision applications were complex, involving bush lots, glasshouse lots & unit titles, but the objective was to achieve an average lot size well below the 4ha minimum lot size in the new district plan,” Mr Jarvis said.
“The normal procedure would be to treat the applications as non-complying and process them accordingly. However, Kitewaho sought to classify the applications as permitted, controlled or limited discretionary to oblige Waitakere City Council to process them on a non-notified basis.”
City council insisted on full assessment
The city council invoked s91 of the Resource Management Act to require Kitewaho to apply for consents from the regional council, ensuring a full range of effects could be assessed.
The court didn’t uphold any of the consent declarations Kitewaho sought and confirmed they were non-complying applications.
But Mr Jarvis said Environment Judge Treadwell made findings on the use of s91 & s92 of the Resource Management Act by the city council which that council felt should be appealed because of its “potentially far-reaching consequences: if applicants were to routinely refuse to comply with sections 91 &92 requests then this could have significant implications on the council’s ability to process resource consent applications.”
Judge ticks off council
Mr Jarvis said the city council was concerned about the judge’s comments because, in a related legal action, Mr Mawhinney was suing the council for development losses due to alleged council delays in processing his applications.
The city council’s solicitors said Judge Treadwell had erred I his finding, where he said: “Should the council endeavour to use s91 or s92 for the purpose of avoiding making a decision, if a decision is requested by an applicant, then it may find itself facing an order for costs.
“The sections are not to be used as a delay mechanism.
“If an applicant states he is not prepared to comply with s91 & s92 requests, and requests a decision, then council can simply refuse consent, leaving the matter for later determination by the court.”
Council says it doesn’t work that way
Too simplistic, the city council’s solicitors said.
“Whether or not an applicant for consent agrees that further consents or further information is necessary is irrelevant: the legal test is whether the additional consents are required and will better assist council’s understanding of an application (s9 of the Resource Management Act) or whether additional information will assist council to assess an application, including its effects (s92).
“Otherwise it makes it too easy for an applicant to refuse to co-operate, with the net effect being that council officers then have to continue processing a poorly prepared application. Inevitably that will result in officers having to spend more time undertaking their own appraisal of an application — so that they can prepare the planner’s report, as required by the Resource Management Act.
“It is simplistic for the judge to suggest that an application can simply be refused if an applicant refuses to comply with s91 or s92. Council is still required to determine the status of an application (eg, controlled, discretionary, non-complying), assess its relevant effects, assess who may be affected by the application, assess whether to notify an application, and ensure that a holistic appraisal of an application, taking into account all relevant effects, is undertaken.
“To undertake these activities council must be able to rely on its powers under s91 & s92, and not have to rely upon the agreement of an applicant.
“The suggestion by the court that sections 91 & 92 cannot be used as a ‘delay mechanism’ is also rejected: those provisions can legitimately be used to ‘stop the clock’ where an application is inadequate.”
The city council decided to lodge its appeal on 19 December and the regional council decided to support that appeal.
Drainage area application a separate matter
The regional council’s strategic policy committee considered reports last year on applications by Ecowater Solutions (Waitakere) and Manukau Water (Manukau City) to extend the inner drainage area, and Watercare has started the formal process under the Auckland Metropolitan Drainage Act, notifying the requests on 4 October and sending the petitions along to the Governor-general to alter the boundary.
Then along came Mr Mawhinney, the sole submitter, asking Watercare to include an extra area outside the metropolitan urban limits — the Swanson block.
Regional council senior planning officer Geoff Winn said this was most unusual: “Watercare staff cannot recollect any such submissions in the last 15 years when previous changes were advertised. I cannot recall any such submissions in my 33 years’ service with the ARA/ARC. Notwithstanding their infrequency, the act provides for submissions to be made by the public if they wish.
Under the drainage act, the Local Government Commission will conduct an inquiry, but Watercare said the scope of that inquiry hasn’t been settled. Watercare’s solicitors & the Internal Affairs Department want it limited to considering the extensions Watercare has proposed, leaving Mr Mawhinney’s land out.
Although the Penihana block is one inconsistency, being outside the metropolitan urban limit but inside the drainage line, the regional council doesn’t support creating another.
“Given the issues raised by Mr Mawhinney’s submission and the importance of the MUL & IDA for controlling future urban development, it is considered that the ARC should advise the Minister of Internal Affairs that it would like to be consulted and make representations to the inquiry that will consider his submission,” Mr Winn said in his report.
“We need to stress to any commission of inquiry that the appropriate procedure for planning & integrating urban growth & infrastructure services is through the district & regional planning processes under the Resource Management Act, and that the subject land should not be included in the IDA as it is outside the MUL.”
The committee endorsed Mr Winn’s report.
Conflict on what issues are
When Cllr Bill Burrill started discussing where the Mawhinney blocked drained to — thinking it might drain towards the Penihana block (soon to be urban), the regional council’s strategic policy director, Craig Shearer, said the Mawhinney application “is not an issue of whether it should be urban or not, but drainage. The issue at the moment is, can we have this area included in the inner drainage area.”
Technically, Mr Shearer is right: that’s what the Mawhinney application is immediately concerned with.
But Mr Winn acknowledged the wider urban planning complications of the Mawhinney application: “If you went into this block of land [extending the drainage area to the Mawhinney land at Swanson] there’s no end.”
The catchment stretches back up to the Waitakere Ranges regional park, so once either the drainage line or urban limit is breached at Swanson, any future restriction would be purely arbitrary.
Afraid of increasing urban pressure
Mr Winn said in his report that “to bring the area into the IDA when it is outside the MUL would inevitably add to the pressures for urbanisation of this area. As things now stand, a very clear signal is being sent that this area is rural land, outside both the MUL & the IDA. This area therefore should not be brought into the IDA and Watercare should be advised accordingly.”
Penihana is different. In the 1980 district scheme it was rezoned, from future urban to rural 3, which Mr Winn told the Planning Tribunal at the time would be appropriate for 20 years, though ultimately it would be needed for urban purposes.
Waitakere City recently released a draft structure plan for the Swanson catchment, reviewing future urban development requirements and recommending the Penihana block be returned to the inside of the metropolitan line.
So what’s wrong with the Mawhinney block? Mr Winn said neither the city council structure plan for Swanson nor a review by the city council of future growth areas for the west identified the Mawhinney land “as being either suitable, or needed, or appropriate for urban growth.”
Chance will come in Penihana submissions
Mr Winn said Mr Mawhinney would get his chance when the change to the Auckland regional policy statement to include the Penihana block in the metropolitan area is notified. The public could make submissions on the precise definition of the MUL and would have the right of appeal to the Environment Court, he said.
Of course, experience tells you that a member of the public (even one with a large block across the road) making submissions at such a hearing — and hoping to have land included which was not subject to all the environmental studies mentioned in the Waitakere appeal over sections 91 & 92 — would be told they should come back another day with their own application, and that the hearing would be about the Penihana land, nothing else.
That’s what Mr Mawhinney is likely to be told when he presents his submission on proposed change No 1 to the regional policy statement, which is to amend the urban limit at Flat Bush-East Tamaki (diametrically on the opposite side of the region) to give effect to the regional growth strategy.
Mr Winn gave a fair indication in his report of how others are likely to treat this application: “In his submission to proposed change No 1, Mr Mawhinney seeks that the boundaries of the MUL include his land at Swanson, not withstanding that proposed change No 1 deals only with the MUL in Flat Bush-East Tamaki.”
Mr Winn expected that a change to include the Penihana land inside the urban limit should be advertised late this year.