Latest news on Auckland's governance and judicial decision-making

Marija Batistich, Senior Associate and Julia Harker, Solicitor | Friday 3 August 2007

Landmark decision: commissioners overrule Environment Court judge

In an unprecedented move, Auckland environment commissioners have overruled an Environment Court judge in a decision on the construction of an additional dwelling at an Auckland property.

Commissioners Ross Dunlop and Heather McConachy rejected an application to build a second dwelling on a Reimers Ave, Mt Eden property, overruling Environment Court Judge LJ Newhook in a decision last month in Lobb v Auckland City Council.

The decision addressed two key issues: the residential amenity of the immediate neighbourhood and the implication of Residential 1 zone policies and objectives.

The judge and commissioners disagreed on the intent and effect of Residential 1 zone objectives and policies which seek to preserve the historic form and pattern of subdivisions, buildings and streetscapes in early-established Auckland neighbourhoods.

The commissioners said while there had been "unsympathetic" development in parts of Reimers Ave, the character of the neighbourhood was largely maintained.

Building an additional dwelling would disrupt the form and pattern of the area by introducing a house where there would typically be private open space, undermining the streetscape, particularly for pedestrians, they said..

However, Judge Newhook said Residential 1 policies and objectives lacked clarity and integrity and while there was an emphasis on the streetscape and property frontages, there was no clear definition of what was meant by phrases like "the historic form and pattern of subdivision...and streetscape..."

The judge and commissioners also disagreed over the likely effect on neighbourhood amenity. The judge said the existing topography and vegetation provided adequate mitigation so effects on neighbourhood amenity would be minor.

The commissioners believed there would be inadequate room for plant screening and they raised concerns over the amenity for residents of the second dwelling through lack of windows and doors in its rear.

This case is a controversial departure from the previously accepted practice of unanimous decision-making at the Environment Court and highlights the need for more careful examination of the role of commissioners in the court process.

Bylaw backdown - council governance lessons

Auckland City Council unanimously adopted new signs and billboards bylaws, which came into effect on 2 July. The bylaws are a significant council backdown in the face of overwhelming public criticism. This is particularly apparent from new provisions which protect existing lawful signs and billboards.

The debacle may yet have a lasting impact on council governance, particularly over consultation and the role of councillors.

The bylaws proposal arose from recommendations by councillors Penny Sefuiva and Vern Walsh to phase out excess signage, after their much publicised European study tour. They proposed removing inappropriate and out-of-scale signs which detracted "from the work the city is doing to redevelop Auckland as a truly international city". The proposed bylaws were highly prescriptive in nature, with significant restrictions on existing lawful signage.

A flurry of submissions largely criticised the restrictive nature of the bylaws, particularly over the rights of those with existing signage, and the negative economic impact on businesses, property owners and the advertising and signwriting industries.

Another common complaint from submitters was the lack of council consultation with key stakeholders and resistance to considering alternatives earlier in the policy-making process.

The bylaw was further beleaguered by tensions between councillors, including public accusations of bias and predetermination. Citizens & Ratepayers Now councillors challenged councillor Christine Caughey's right to speak or vote on the issue alleging bias and predetermination. Cllr Caughey was involved in the bylaw review initially but, with fellow Action Hobson councillor Richard Simpson, later proposed an alternative bylaw after talks with aggrieved parties.

The Auditor-General cleared Cllr Caughey of the allegations, finding that public comments she made and the development of an alternative proposal did not indicate a closed mind. The Auditor-General stressed the law on bias should not stop a councillor from "discussing issues and exchanging ideas with members of the public, promoting a particular view during debate around the meeting table, or advocating opinions or policies in public about issues of interest."

These bylaws are a cautionary tale of what can happen where key stakeholders are not actively involved in the early policy-making process, as well as providing useful guidance on the role of councillors in the decision-making process.

Who will run Auckland?

The Government's Royal Commission of Inquiry on possible radical restructuring of Auckland local bodies is only the third Royal Commission in modern history (the others being genetic modification and MMP). It comes amid growing debate as to how New Zealand's largest city should be governed, and follows Government talks on governance with the eight Auckland councils over the last year. The commission's membership and terms of reference are yet to be set but it is hoped it will report in late 2008. The inquiry has the potential to be the biggest local body shake-up in the region since the late 1980s. Among options up for debate is the New Zealand Council for Infrastructure-led "One Auckland" proposal for one Auckland authority and 20 community councils. This is backed by the Employers and Manufacturers Association (Northern). For further details on the proposal, visit www.oneauckland.co.nz

For further information, please contact your usual Bell Gully advisor or:

AUCKLAND

David McGregor
Senior Partner

Marija Batistich
Senior Associate

Josh McBride
Senior Associate

WELLINGTON

Simon Watt
Partner

Carolyn Hintz
Solicitor