Court case part of a major battle over regional spread
This article delves into the battle between the preservationists of the natural landscape and those bent on developing the northern half of the Auckland region. It examines a double court case which came before Justice Robert Chambers in the High Court last week, the Auckland Regional Council appealing against subdivision consents granted to Ian Gillespie at Pakiri and Russell Dye at Kumeu.
It also examines the rights of the individual to object to development, as presented in a judicial review which formed the third part of the issues Justice Chambers had before him. And it pulls in the debate over Auckland’s expansion as presented through the regional growth forum, set up in 1996 to get a logical pattern to this expansion. All that makes this an unusually long article for this website.
Since Ian Gillespie bought the farm at the southern end of Pakiri Beach in 1995, he has been trying to subdivide 149ha of it into lots of between 4ha and 22ha.
Rodney District Council gave up trying to stop him last year but returned to its cause this week in support of an Auckland Regional Council appeal against the proposal, which is now for 14 lots (18 including a pa site reserve and some land already sold).
A local, Greg McDonald, also joined the fray in the Environment Court last year and, because of Maori ancestry, was allowed to continue formal opposition. His attempt to overturn the subdivision plan through judicial review was rejected on all grounds bar one by Justice Salmon in March, and in the High Court last week Justice Chambers worked overtime trying to establish any basis for a second judicial review attempt before reserving his decision on it.
Justice Chambers (right) also reserved his decision on the appeal, and on the regional council’s appeal in a second rural subdivision case, that of Russell Dye, who wants to break up his small property near Kumeu. With many similar arguments in the two cases, and with the same legal counsel involved, they were heard in one three-day sitting.
Judge acknowledges he’s new to the subject
At the end of it, Justice Chambers was apologetic: he was thankful for the patience of counsel “because, as is well known, this is not an area where I have a great deal of experience or knowledge. I am much better informed now.”
Throughout the trial, the judge asked questions and sought explanations of detail relating to the Resource Management Act in particular, and to regional and local policies and plans of which he was mostly ignorant. You could argue that with some resource management specialists on the High Court bench, putting a novice in charge of what is probably going to be a benchmark case is not sensible, or likely to result in quality justice. Equally, however, it became plain during the hearing that for all his lack of experience in the subject matter, Justice Chambers would waste no effort in becoming familiar with what is unquestionably extremely difficult law.
Difficult, because despite all the rules put in place, in the end it can be simply subjective. Unlike murder, rape and pillage, where legal black and white lines can often be drawn, and unlike city property cases where the territory is well defined, resource management of areas on the fringe of a growing city is highly subjective.
The regional council argues in favour of keeping pristine coastlines (or what’s left of them) untouched, as far as can be, by the wanton damage of human behaviour, yet installed large gilded picture frames in its regional parks, the better for us to focus on the spectacular view. Some people argued these frames shouldn’t be there either, an example of how what is right or wrong in this area is very much in the eye of the beholder.
In the Environment Court, regional council witnesses poured scorn on the landscape improvement techniques of Mr Gillespie’s consultant, Dennis Scott. Among criticisms, they said it would take years for the coastal forest to grow out of the grass of a century’s farming, the windy and salty environment would prove too harsh and the trees would never gain much stature.
In one small way the same point was raised in the High Court last week, as counsel and the court noted that regional and district policies and plans reward preservation of existing native bush and forest, but that no provision is made for growing such forests afresh, where they used to be before we became a nation of sheep.
Compared to the relative immediacy of houses popping up along the ridgeline, the Scott forest is a slow process, certainly not the kind of thing a now-generation would take into account.
“It hasn’t been one of the screaming issues, people wanting to go out and plant the next century’s forests… It might start to be fitted in [to plans],” Ian Cowper (right), counsel for the regional council, said.
Planning law benchmark v rapid actual urbanisation
The High Court case, a hearing of points of law rather than of the facts presented in the Environment Court, has every chance of being a benchmark in planning law for the impact it may have on growth, and particularly of urban creep, around the Auckland region.
But it may end up being a benchmark only in planning law terms. In the actual world, the carve-up is so advanced and the unstoppable potential of more subdivision so defined that it is easy to see lifestyle blocks stretching unbroken all the way north from the top of the Waitemata Harbour to Whangarei, then continuing on from there.
West Auckland is well subdivided — the case before the court of Russell Dye, seeking to cut 16.5ha just outside the Kumeu township into five lots plus an access lot is one of many continuations of that trend, with a constant stream of new applications to cut up that area and Coatesville, at the top of the harbour, coming before Rodney District Council (or, for the moment, its principal hearings commissioner, Ken Graham).
Mr Dye’s application, opposed on the same “cumulative effects” basis as many others which win the Auckland Regional Council’s stamp of disapproval, would see new lots ranging in size from 6.4ha down to 1.4ha.
The council has applications before it to cut a 3.5ha Waimauku site in two.
Two applications have been approved recently for 14-lot subdivisions in the Ridge Rd area above Coatesville. From there down to the flats towards Riverhead, 4ha lots were the norm but they are also being chopped up.
Turning north, evidence of the gigantic carve-up abounds, around Warkworth, Wellsford, Omaha and through Matakana towards Leigh, and over the ridge which takes Matakana Valley Rd to the northern end of Pakiri.
On Woodcocks Rd, Warkworth, subdivision of a 2.6ha property into three rural-residential lots has been allowed.An application is before the council to subdivide 17.6ha on the northern outskirts of Wellsford into seven rural-residential lots. On Matakana Rd, the owner of a 4.3ha property wants to subdivide it into 1.4ha and 1.9ha lots, with 1ha vested as esplanade reserve.
Others are changing the scene around Pakiri
Under Rodney District Council’s plan change 55, which revises all the district’s rural zonings but is not yet operative, transferable title rights are introduced and they have been used in an application to create 13 rural-residential lots off Matakana Rd, using rights obtained by fencing off 82ha of forest on the nearby 1000ha Millbrook Station.
Millbrook extends from the ridgeline of Mt Tamahunga down to cleared farmland just behind Pakiri Beach, a few kilometres north of Mr Gillespie’s proposed subdivision.
Plans are afoot to break up farmland on Rodney Rd, the ridge high above Pakiri, Leigh and Omaha, which offers views stretching far to to the south towards Auckland’s cityscape. Some of the breakup is into a greater variety of rural uses, but even then much of the change is into lifestyle-block dimensions.
So the longer Mr Gillespie’s coastal subdivision proposal takes to eventuate, the more likely it will become that it will be fitting into a changed scene, not leading the change.
While his trees are not yet forest-canopy height, the nursery crop is growing quickly. One ARC objection to the subdivision was on the basis that subdivision ought not be granted as an exchange for growing some trees. It would not be absurd to say that, within perhaps three years, the subdivision would take place within an existing forest of juvenile proportions.
The court cases over the Gillespie (Arrigato Investments, Evensong Enterprises) Pakiri subdivision and Dye Kumeu one fit into a wider battle between the forces for preservation, the entrepreneur developers who see a piece of land and work out how to carve into profitable bites, and the group who have already established the next stage in the urbanisation of the whole 120km between Downtown and the Brynderwyns.
This last group incessantly removes the uncomfortable rural bits from their domain, creating more and more small lots to be sold off to pay for their initial purchase.
Growth forum sanctions higher-density blueprint
The Auckland Regional Growth Forum of the past four years had greenfields developers along as invited guests, but was always planner-led with a design for more intensified living within the existing metropolitan urban limits. That planning aim has been supported by another group of developers, this one wanting to develop on transport corridors and other business-zoned land — which is cheaper than existing residential stock.
The aim of greater intensification won the signed support of the region’s mayors last year, giving greater authority to the campaign to stop greenfields schemes and the encroachment of non-productive rural residential development. The outlying districts of Franklin and Papakura in the south, Rodney in the north, will see proportionately far greater increases in their populations, but the region’s four cities (Auckland, Manukau, Waitakere and North Shore) will still see a far greater increase in numbers.
Developers will see it as their task, with profit as the primary motive, to first fudge the urban limit lines, then spread beyond — through Whitford and Clevedon in the south-east, into the Waitakeres and up towards Helensville in the north-west, and in the race towards Whangarei that this story is about, in the north-east.
Spreading of a better motorway network will send the emissaries faster and further afield, increasing the carve-up, raising prices more rapidly and increasing the need for services in areas which have traditionally had nothing more than an annual service from the county grader and a quick spray of the verge to offend the sensitive.
In lower Northland, the cowsheds will disappear.
‘No’ to dogma
When Mr Gillespie’s subdivision proposal came before the Environment Court, council witnesses challenged the claim by Mr Gillespie’s landscape architect, Dennis Scott (left), that plants on the seaward side would reach 3m in five to seven years. They said development of a canopy would take decades — and an inference I have taken throughout the hearings is that because it would take so long, it shouldn’t be tried.
No attempt has been made in either the Environment or the High Court to dispel that inference.
Environment Judge Gordon Whiting and his two supporting commissioners were plainly unimpressed by the dogmatically negative, stifling, oppressive and suppressive approach of the planning brigade, and came to view the approach of Mr Scott as enlightened planning.
The court rejected terms such as “trade-off” and “justification for subdivision”. In its ruling last October, the court said; “Such labelling in our view shows a narrow interpretation, if not a failure to comprehend the design methodology of Mr Scott.
“As Mr Scott said, ‘I believe we must move from seeing enhancement subdivision as the outcome and see instead a more holistic view. The approach I favour is comprehensively linked to broader patterns of landscape and land use management and demography in a regionally wide context.'”
To him, the primary aims of planting are the inhibition of soil erosion and encouragement of moisture retention. By contrast, the court found the evidence of council landscape witnesses “seemed to be founded on the perception that buildings are inherently negative visual elements in this coastal landscape.”
Framework laid out
In the High Court, the regional council’s lawyer, Ian Cowper, laid out the planning framework, starting with directives in part II of the Resource Management Act and the New Zealand Coastal Policy Statement, through regional and district planning policies and documents, and said the Environment Court had expressly misapplied or disregarded it.
The coastal policy statement states a national priority to preserve the natural character of the coastal environment by “encouraging appropriate subdivision… where the natural character has already been compromised and avoiding sprawling or sporadic subdivision…” and “avoiding cumulative adverse effects of subdivision…”
Pakiri Beach is among the coastal protection areas of the Auckland Regional Plan and the local council’s plan change 55 identifies 10 special character activity areas, of which the strip from Mangawhai to Te Rere Bay, just south of Pakiri, is one.
It recognises the attraction of this area for its extensive open coastline and remote non-urban character and says: “The introduction of further living opportunities and other non-rural production-based activities has the potential to detrimentally affect the high natural environment values and the landscape quality of the area.”
Mr Cowper said in his submissions: “While there may be some merit in revegetation, the implications of allowing subdivision whenever land is to be revegetated is one which requires some careful analysis, and consideration of the impact of it on the remainder of the district as a whole.”
Cumulative effects, plan subversion
The ARC’s junior counsel, John Burns, took up the cumulative issue: “The consequence of the [Environment] Court’s decision is that such an assessment of the effects on the environment has not been made.
Rather, the applicant, having first obtained a resource consent for a lesser development, now seeks consent to a greater level of development by comparison, not with the existing environment, but with the environment as he says it may be modified by the previous consent.
“If consent is granted on that basis, the applicant could then apply for a greater level of development again, contending that the comparison of effects should now be with the level of development allowed under this consent, not the previous consent or the environment as it actually exists.
“In this way, through a series of applications, the end result might be a level of development which has, compared with the existing environment, considerably more than minor effects, but nevertheless has gained eventual consent through a series of incremental applications and consents.”
From there, he moved on to the potential cumulative effects of such a consent triggering other applications for development which could not be carried out as of right or as controlled activities, “and as a consequence the effects would be major and significant.”
Mr Burns said the ARC contended in the Environment Court “that not only would this subvert the provisions of the relevant planning instruments, but would lead to cumulative effects up and down the coastline throughout Rodney.”
Protests misplaced, says Brabant
Richard Brabant (right), for Mr Gillespie, said the Environment Court correctly “had regard to” the statutory instruments as required, and the court was not required to “give effect to” that framework without considering the particular case before it.
“If it were an error of law for the Environment Court to reach its own conclusions on the evidence before it as to the effects of activities in the face of regional policies or district rules in planning documents, then the majority of decisions made by that court would be wrong at law.
“It is submitted that the role of that specialist tribunal on appeal is to apply the provisions of the act in a meaningful way to promote its overriding purpose. That role should not be usurped by territorial authorities constructing ‘planning frameworks’ and ‘values’ which may defeat that role.
“It is submitted that if that were the intention of the act, it is certainly not reflected in the wording of section 104 or the relevance given generally in the act to objectives and policies in district plans.”
Mr Brabant argued that the Environment Court judgment was in accordance with the regional policy statement, and supported its policies and objectives.
The issue of revegetation is not contemplated by the policy statement or in plan change 55 as a development bonus. Said Justice Chambers, in considering the Dye subdivision, which also proposes revegetation: “I’m still grappling in my mind with what you do with what’s not expressed. The court seems to have implicitly invented a policy. It may be a very good policy, but not one which so far has commended itself to the plan makers.”
Bill Loutit, for the district council, argued that “making up a rule in the plan” in this fashion “must be an error in law.”
Side issue: the notification process
At the end of the list of issues before the High Court was the question of how people are told about this sort of activity. Do people read public notices in the newspaper or signs at the roadside? And how far down the phone directory must a developer go in search of potential objectors?
Justice Chambers could not, as hard as he tried to winkle out a justification, find that Greg McDonald was harshly done by in the Rodney District Council’s initial ruling on the Gillespie subdivision, which was to refuse consent. “You couldn’t have done better,” the judge told Mr McDonald.
What Mr McDonald has done since, however, is to add to the delay with his quests for judicial review, and add to the developer’s costs through his legal aid-funded quest. He at first claimed a right to object as representative of a Pakiri iwi, but is now stating his opposition as an individual from the iwi.
Mr McDonald wants the Gillespie scheme’s consent overturned. The ARC wants the High Court judge to send it back to the Environment Court, which the ARC then hopes will find a new sense of reason and turn it down. As for the Dye subdivision, the ARC wants that consent overturned.
Flooding danger raised
Mr McDonald’s lawyer, Russell Lawn, presenting a confused and wandering submission on why his client’s review application might be considered, said they had just discovered the day before the hearing that a district council register disclosed a flooding risk at Pakiri and that this should have been presented originally by the council planner.
“The point is, if the planner said ‘There’s a flooding problem, who’s affected?’ you might have got 25 parties giving notice [of objection in 1997 to the original consent application before the district council.”
Said the judge: “All it would have done was lead to exactly the same result.”
Mr Lawn: “The problem is transmitted up the line if you don’t notify all the people who should be notified. The people who aren’t notified can’t get back into the process.”
Justice Chambers asked if the council had a duty “to disclose everything it’s got in its files to everyone who lives in the area.” On the fact that the Environment Court did not give notification of its hearing, the judge said “That’s a different issue entirely, that there’s some obligation on the Environment Court to readvertise.”
Mr Lawn: “Even a person living in Invercargill might have hoped the notification process would be carried out properly.”
Justice Chambers: “But there’s nobody in Invercargill affected. It’s your client’s rights that we’re looking at. Tell me the legal basis on which Mr McDonald was entitled to see a flood plan.”
Mr Lawn: “The council has to take into account… everything.”