Published 3 August 2012, additions & changes 4 August 2012
Environment Judge Laurie Newhook has struck out the Auckland Council’s proposal to subject 2 Remuera residential properties to demolition controls under plan change 163, intended to protect heritage properties in the residential 2 zone on the Auckland isthmus.
In doing so, the judge gave the council a tongue-lashing for non-performance.
The successful applicants for a partial strikeout of the council’s case were Carol Faull & Henry Hall, owners of properties on Ranui & Coombes Rds, who’d joined in the plan change 163 proceedings their properties’ inclusion in the demolition control area.
The controls are intended to preserve the character created by the zone’s pre-1940 homes.
Judge Newhook said in his 26 July interlocutory decision the 2 properties hadn’t originally been included in the former Auckland City Council’s mapping of properties it wanted to be covered by the demolition controls, but came into contention as a result of a submission by the Remuera Heritage Society.
The society withdrew from proceedings but was replaced by environmental lawyer Richard Brabant (acting as a Remuera resident), who’d sought to maintain the controls on these & numerous other properties.
In April 2009, the old city council said it was carrying out a new survey of the zone to check which parts should be subject to demolition controls. Debate over mapping continued and, in May this year, the new council circulated evidence of heritage architect Jeremy Salmond, attaching one-page assessments of each of the 2 properties in question (among others).
Mr Hall & Ms Faull asked the court to strike out the controls, arguing they were frivolous, vexatious and in abuse of procedure in that they contained no assessment addressing the settled criteria. One of the criteria was “a coherent repetition of building of similar styles” and the other applied to buildings which could be of diverse styles, were pre-1940 structures of individual architectural value (only one of these 2 houses was pre-1940) and contributed significantly to the distinctive quality of streetscape character.
The second set of criteria applied to these 2 properties. Counsel for Ms Faull & Mr Hall, Russell Bartlett said Mr Salmond’s assessment didn’t identify the houses constituting the group, said the only “quality of the built environment” identified for the group was its diversity, but this wasn’t put forward as a distinctive quality of this particular streetscape.
Mr Bartlett said the council’s position should have been given in evidence-in-chief but the council thought it could do this through rebuttal. However, his clients didn’t propose to give evidence so there would be nothing to rebut. Mr Bartlett went on to say the council’s hoped-for method of filing evidence would be the antithesis of the code of conduct for expert witnesses and the court’s consolidated practice note.
Counsel for the council, Bill Loutit, said the whole body of Mr Salmond’s evidence displayed a thorough level of analysis, but Judge Newhook said that couldn’t disguise the absence of analysis of these 2 properties against the clear conjunctive criteria. The judge said it could be seen as “something of a substantial leap of faith” for Mr Salmond to move from a bald description of typical streetscape elements to asserting the need for demolition control.
Judge Newhook then questioned Mr Loutit’s attempt to show the public law element of the Resource Management Act’s purpose had more importance than private law rights. The judge agreed the purpose of the act stated in section 5 was overarching, but said public law elements could also be found in the court’s practice note and compliance with its code of conduct.
“Neither should it be overlooked that what people may do with their properties can be considered to come within the definition of sustainable management in section 5 (2), the enabling of people to provide for their social, economic & cultural wellbeing….
“Neither can I accept Mr Loutit’s plea that some leeway should be offered Mr Salmond & the council because of the sheer amount of work that has had to be done in relation to this plan change.
“The proceedings are very old and, indeed, the council has had the better part of the last 2 years to endeavour to get its mapping & assessments correct, with the assistance of its professional advisors. The shortcoming on this occasion is simply too great & fundamental.”
With a substantive hearing on the plan change 163 appeals due to start on Tuesday 7 August, Judge Newhook said there was hardly time for Ms Faull & Mr Hall to go through all the required briefing and exchanging of evidence. And, in any case, “this aging proceeding has suffered enough procedural twists & turns without introducing another of a fairly extreme nature….
“The failings in this case are those of the party seeking to impose the controls, the council – even if it inherited an interest in doing so from a party that has now departed the proceedings. This case is different from those in which inexperienced, self-represented litigants might have fallen short of procedural requirements and might be accorded a modicum of leniency.
“I accept Mr Bartlett’s point that, on this occasion, the council might at least before this interlocutory hearing (heard 24 July) have obtained from Mr Salmond a statement of supplementary evidence that it would seek leave to tender. If it had followed that course, the court might at least have been informed as to whether such evidence would actually be available from the witness, rather than leaving the court & the parties until 1 August to see whether that would be the case.”
3 August 2012: Newhook strikes out demolition controls on 2 Remuera homes (original short version)
13 June 2010: Residential 2 demolition maps out for consultation
11 July 2008: Heritage plan change revisions out for consultation
19 February 2007: Residential 1 & 2 recommendations back in April-May
4 September 2005: Council moves to stop pre-40s demolition
17 September 2004: Money allocated for review of Auckland’s special character zones
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Attribution: Judgment, story written by Bob Dey for the Bob Dey Property Report.