Auckland Transport was offered a solution to a suburban roading problem 3 years ago and didn’t pick it up. Instead, it was in the Environment Court last week seeking yet another extended lapse period for a designation blighting private land earmarked for over 500 apartments.
That pitches the Auckland Council-controlled organisation against efficiently upgrading infrastructure – which you might have thought was its job – and also against accelerating the provision of housing, which both mayor Len Brown and Housing Minister Nick Smith have been clamouring for under the government-council housing accord.
The solution? Instead of Auckland Transport waiting until the 2021-22 financial year for budgeted funding, the developer that has owned the land since 2001 would build the road, incorporating it into its development, and offset the costs against the estimated $14 million-plus of development contributions.
Unitary plan implications
The road application also has unitary plan implications. Originally, North Shore City Council’s application for an extension of Medallion Drive from Oteha Valley Rd up to Fairview Avenue at Albany (taken over by Auckland Transport when it was created in 2010) was to service new housing. Most of that had already been built or was underway, including the Fairview lifestyle village at the bottom of the slope, facing northward State Highway 1 traffic, but some new subdivision is being developed.
When David Kirkpatrick (as a hearing commissioner; he’s now a judge and chairing the independent panel on the unitary plan) heard the notice of requirement application in 2013 and agreed to a 10-year designation, there was no mention of the importance of a semi-arterial route winding its way between State Highway 1 & East Coast Rd, from Apollo Drive off Constellation Drive at the southern end, along Hugh Green Drive & McClymonts Rd before becoming Medallion Drive.
The proposed 170m extension north of Oteha Valley Rd would eliminate either one or 2 T junctions, depending on whether the foot of Fairview Avenue across a one-lane bridge was stopped, creating a roundabout on Oteha Valley Rd, to be replaced by signals in due course.
The land-owning opponents, developer North Eastern Investments Ltd & landowner Heritage Land Ltd (John Farquhar), presented evidence from transport engineer Brett Harries that the T junctions were more efficient.
From the top of this proposed extension, Fairview Avenue would wind its way as it does now to Lonely Track Rd, on the ridge above Albany, where it marks the metropolitan urban limit.
Under Auckland Council’s proposals in the new unitary plan, that border would be replaced by a rural:urban boundary which, at this part of the map, would be in exactly the same spot. The view north from Lonely Track Rd is to remain bush & rural, although pressure is inevitable for housing to spill over the ridge.
The question then becomes: Is Auckland Transport trying to set up an eventual arterial route crossing that ridge to serve the new housing to the north which currently Auckland Council opposes?
The notice of requirement
The Environment Court hearing is in 2 parts. It began before Judge Jeff Smith and commissioners Kathryn Edmonds & David Bunting on 23 January, with Auckland Transport’s opening by Gerald Lanning followed by cross-examination on its 10-year notice of requirement to take land owned by North Eastern Investments & Heritage Land, and smaller amounts from 4 other owners, for the Medallion Drive extension.
Mr Farquhar’s evidence, led by Matt Casey QC, opened on Monday and will resume on 18 February. After completion of the notice of requirement evidence, the appeal by the Farquhar companies against refusal of development consent – notably for the positioning of 2 apartment blocks shadowing a kindergarten – will be heard. Repositioning those 2 blocks relies on the outcome on the notice of requirement for the road.
The affected development
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 in 2012 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.
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.
Mr Farquhar, of Palmerston North, 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, and he anticipated a final consent memorandum would be lodged with the Environment Court soon after – “provided the notice of requirement problem is resolved”.
Bad faith alleged
In court on Monday, Mr Casey alleged Auckland Transport had continued the bad faith Mr Farquhar said the North Shore council had shown in not negotiating transparently – or, on a number of resolvable issues, at all – with him.
Mr Farquhar has argued that Auckland Transport doesn’t need his land because it can upgrade roads it already owns satisfactorily. Mr Casey outlined to the Environment Court how Mr Farquhar’s hand had been forced to provide for the council-preferred road although it had no legal status. He said comparable effects hadn’t been properly analysed and Auckland Transport had provided no assessment establishing claimed benefits.
Auckland Transport effectively held a veto over the Farquhar development because the designation land, wider than the carriageway, overlapped his building footprint. One Auckland Transport witness said agreement on earthworks could be reached to enable either development to proceed first.
Judge Kirkpatrick picked that point up in his recommendation in 2013. But, Mr Casey said: “It is now 2016 and no such agreement has eventuated. This has not been due to a lack of willingness on the part of NEIL (North Eastern Investments Ltd)…
“NEIL accepts that the court cannot compel Auckland Transport to pursue another option, but nor can the court compel Auckland Transport to implement its chosen option, even if it confirms the notice of requirement. All it guarantees is that NEIL will not be able to do anything within the designation area that Auckland Transport does not agree to.
“NEIL has an abiding concern that, once Auckland Transport properly understands the real cost of the project, it simply will not be funded and it will languish.”
Because of the ongoing inaction & uncertainty, Mr Casey said NEIL wanted the lapse period for the notice of requirement cut from 10 years to 2 years to ensure Auckland Transport stayed focused & committed: “Auckland Transport assured both NEIL & this court over 4 years ago that it intended to commence acquisition discussions in parallel with the notice of requirement process, rather than awaiting its completion. It has not done so and now – remarkably – claims it requires a longer lapse period to allow it.
“It was always open to Auckland Transport to initiate land acquisition earlier, but it chose not to. Having opted not to commence acquisition, Auckland Transport should not now demand a longer lapse period to do so.
“The court’s suggestion that Auckland Transport might be given 2 years to complete land acquisition is strongly resisted by NEIL. Auckland Transport’s evidence is that it has funds available to acquire the land now. There is no good reason why it should take more than 6 months for any acquisition to be completed.
“Auckland Transport advised the court (in the appeal against North Shore City Council’s plan change 32) that it had funding available and would commence acquisition negotiations with NEIL in December 2011. In August 2012 it sent Mr Farquhar information that the construction would commence in 2017 and be completed by 2018.
“Nothing Auckland Transport says about timing & the availability of funding can be relied on at any level.”
Image at top: South from Lonely Track Rd to Constellation Drive. The Medallion Drive extension would become the new route to Oteha Valley Rd for residents of the nearest group of houses.
1 November 2013: Commissioner agrees long designation period for link road above Oteha Valley, but supports landowner’s fast-track proposal
16 September 2013: 420-plus homes ready to go, but council might take decade putting road to elsewhere through site
Attribution: Court hearing, unitary plan.