Archive | Property rights

At issue: private property rights versus communal rights

Published 19 February 2006

Auckland City Council’s environment, heritage & urban form committee was led into its meeting at the start of February with a criticism of council performance over heritage by campaigner Allan Matson, followed by a defence, then some spirited debate on property rights.

Citizens & Ratepayers Now leader Scott Milne got a motion on heritage preservation on to the agenda. But he’s not a member of this committee, didn’t front to support his motion and the CitRats there were no match for City Vision & Labour councillors more skilled & experienced in council procedure. It was defeated.

It didn’t help the Milne proposal, which was about property rights & effect on value, that the council majority headed by Cllr Bruce Hucker was in the process of formulating its own position and didn’t want to be pre-empted.

While Mr Matson argues for acknowledgement of history and preservation of quality from the past, a wider debate has begun: Private property rights versus communal rights.

The argument for communal rights is essentially this: A city isn’t just a collection of independent creations, whose owners can change them as they choose, but is a fabric owned by the community as a whole, in which the individual property owner may alter a part so long as the communal fabric isn’t harmed.

Steady move towards recognising community’s rights over the individual’s

There has been a steady move, during the 16 months of this Auckland City council term, towards exercising the greater rights of the community over the rights of the individual, which you would expect on a left-leaning council. But whereas in the past there might have been sound & fury, now there is effect.

Not enough on some crucial buildings as far as Mr Matson is concerned, but effect all the same.

The urban design panel was a concept the council began moving towards during the 2001-04 term as it was confronted by demolitions and by the rules of consent processing which meant applications couldn’t be stopped. Councillors, then, found themselves obliged to abide by planning rules and weren’t prepared to include the somewhat amorphous “urban fabric” as something that needed considering.

That changed at the end of 2004 when Justice Patrick Keane issued a High Court judgment in favour of the Urban Auckland lobby group against development of Paul Doole’s Antipodean project on the St James on Queen St. The judge told the council it could – and should – take design into account when it considers consent applications.

Urban design panellists meet in 2 groups every week now to consider development proposals. There are flaws in the process, but from the council perspective it has introduced a checking mechanism which enables the council to be proactive rather than purely reactive.

Last year, mayor Dick Hubbard set up the mayoral taskforce on urban design, which produced its recommendations in May. As I wrote then, “They are a natural extension of the mood which brought about the design panel – that developers can’t be trusted to do a good job voluntarily.”

Since then, members of the council’s planning fixtures and planning & regulatory committees have become far more forthright in their views on design issues, and in some cases have worked to prevent demolition.

Matson vigilant on heritage status

When Mr Matson addressed the environment, heritage & urban form committee in its public forum on 3 February, he raised issues concerning 3 buildings in particular – the small office building at the top of Wakefield St which was the Fitzroy Hotel in the 19th century, the former Red Cross headquarters just up the street and the Jean Batten Building, which the Bank of New Zealand wants to demolish to make way for a new Auckland headquarters.

Mr Matson said the Red Cross building, although quite new, “appears never to have been assessed” for heritage value, particularly as an example of a notable architect’s work. On the BNZ proposal, he said: “The council is satisfied with the [new] design which has been submitted. I think you should put a heritage order on this building.”

Variation or new consent?

The Wakefield St issue is trickier. An apartment building was designed for the site before assessment by the urban design panel became mandatory, demolition of the old building was approved but the developer, Golden City Developments Ltd (Zhong Lin), agreed to consider council proposals to include the existing structure in the redevelopment.

The new proposal includes new pillars cutting through the old building – retained, but not retained. The developer wants a variation to the consent, not a new consent, which raises further issues for the council, the chief of which is: How far from the original can you depart before it’s not a variation but a new consent is required? That question hasn’t been answered by the council’s planners yet.

Cllr Faye Storer, who chairs the planning fixtures committee, defended councillors for trying to prevent demolition of some buildings. The Canvas City building at 152 Hobson St, on the corner of Mayoral Drive, has survived but its neighbours have been demolished to make way for an apartment development. “The Canvas City building has some protection in the new development, which was not an easy thing to do,” Cllr Storer said.

But on the Red Cross building, she asked: “I just wonder at which point an architect is famous. I’m wondering where it stops.”

Mr Matson: “It at least warrants an assessment. I’m saying not that it should have been saved but that it should have been looked at.” Cllr Storer said she assumed it didn’t get added to the list of possible heritage schedulings when the council asked the public for input last year.

While Mr Matson wanted every cbd building assessed, environment, heritage & urban form committee chairman Christine Caughey said: “This council has taken a strong stand on heritage. We are working as bets we can within those extra resources [but] we haven’t got the resources at this point to assess every single building.”

Among the new resources is a chair in urban design at Auckland University, for which the council agreed on partial funding in December. Cllr Storer also suggested a partnership could be entered into with the relevant university departments (not necessarily just with Auckland University) “to do a study of heritage values of buildings in the city.”

Milne’s 2-pronged quest: Respect for private property rights (& compensation)

When the council asked for suggestions on buildings & places which might merit heritage status last year, it got 10,700 names back. Since then, a handful have been proposed for heritage status.

Cllr Milne proposed in his motion: “All councillors acknowledge the need & desirability of preserving the city’s heritage features & buildings, noting it is important that processes & procedures are transparent, ethical & respect private property rights.”

On that basis, he said, council staff should be asked “to investigate the incorporation of the following principles into procedures:

that property owners are informed immediately any submission is received to consider their property for a change in heritage status
that the current ad hoc selection process be replaced by clearly articulated & publicised guidelines on the criteria for heritage listings & classifications, and
that reports recommending a change in heritage status contain an assessment of the effect of this change on the property value.”

Cllr Milne also wanted council staff to prepare a report on “options that could be used to compensate property owners for costs & loss in value caused by a change in heritage status, noting that this could include rates reductions, cash contributions from development levies and reduced compliance & consent costs.”

As background, Cllr Milne said: “There is widespread support for an improvement of heritage protection within council & the city at large. However, this goodwill is & will continue to be quickly eroded if the process is seen to be arbitrary and results in financial penalty for an individual property owner for what is essentially a public-good purpose.

“The principles of fairness, equity & respect for private property need to be preserved by making the recommendation changes.”

Farrant says most won’t get past first base

Council heritage manager George Farrant told the committee: “When a place is being seriously considered, one can’t do research without people being told. But many [of the 10,700] won’t get past first base. So rather than inflaming 10,700 people, we do a first cut. The ones in the top 2 categories are the ones likely to lead to contact.”

Cllr Douglas Armstrong (CitRat): “The whole lot should be notified immediately someone presents their proposal to the council, and if that involves 10,000 letters….. at least they’re in the picture. It is quite devious of the council not to do it that way.”

He said this was an aspect of private property rights: “There’s apparently a quite ad hoc selection process. That needs to be open & transparent. Sometimes the values of properties are enhanced by the status accorded them. Often they’re not.”

However, independent councillor Bill Christian said: “The motion stems from a lack of knowledge of designation. I don’t believe the current selection process is ad hoc. And I can’t see the point in B3 [of the motion, recommending an assessment of the effect on property value]. It [the motion] is lightweight. It smacks of inexperience & certainly no appreciation of the work we do to support people with heritage properties.”

Deputy mayor & City Vision councillor Bruce Hucker said: “The arguments in support of this motion lack a suitable clarity.” On immediate notification, he said: “That approach could lead to attempts to pre-empt activity in the common good. It could lead to them attempting to get in before decisions are made.

“The removal of the jacaranda from Parliament St [outside a site where Perron Group Ltd is to develop apartments] was taken probably with an awareness by the developers that there were moves to schedule those trees.”

Hucker says heritage fund could be expanded

On compensation options, Cllr Hucker said the council had a heritage fund “which can be used to get compensation. It’s my view that we should extend that fund.” However, he said, “Auckland Citizens & Ratepayers Now have opposed throughout this debate any additional rates increase by this council. The city has needs to be met that have been neglected in the past. They have to say how they’re going to be funded. I oppose this because it hasn’t been well enough formulated in policy terms.”

Sefuiva defines property owners as custodians

Cllr Penny Sefuiva (City Vision): “To actually start alarming people unnecessarily is absurd. We can’t undermine our own scheduling & processes or we’ll end up losing legally.

“We are unusual as a country in putting so much bloody-minded emphasis on property rights. They [property owners] are custodians of their properties.”

Cllr Sefuiva cited developer Michael Friedlander (Samson Corp Ltd) as a classic example of someone who found acceptable ways of improving old properties: “He actually adds to properties. It is a matter of cultural change, people understanding & appreciating that this [heritage status] does have value over time.”

Cllr Storer: “We have a pioneering slash & burn approach. We have to get past that part [and the notion that] the values of a heritage building have been so great we couldn’t pay for it, and to say ‘That is not your property to do with as you wish’.”

Cllr Linda Leighton (Citizens & Ratepayers Now): I think this committee has leapt on the wrong words. We’re not talking about scheduling, we’re talking about selection. If there are guidelines, show us the guidelines.” (Check the council website listed below).

Cllr Milne’s motion was defeated 7-2 (Cllr Hucker, not a committee member, was able to vote as deputy mayor, Cllr Armstrong, also not a member, couldn’t vote).

Council website: Heritage selection process


Earlier stories:

10 February 2006: Specialists consider cbd framework & open space plan

2 December 2005: Council agrees to fund startup for university chair in urban design

5 November 2005: Conversations on urban design

5 November 2005: Mayor wants councillors to think 50 years ahead

28 August 2005: Art Deco Society files appeal against Jean Batten demolition consent validation

7 August 2005: Extending the debate on urban fabric, or hoping to

13 June 2005: Council to shift another $523,000 into urban design, expects litigation over “‘No!’ to bad design” proposal

3 June 2005: Council ushers in urban design details

1 June 2005: Enough of the appalling buildings, says Hubbard

1 June 2005: Public gets a role in advancing better urban design

1 May 2005: Urban design panel session on Batten building reveals serious process flaws

5 April 2005: Councillors hold up Hobson St demolition with theme of “heritage capital”

22 March 2005: Urban design taskforce meets

11 November 2004: Councillors vote Fitzroy category B heritage status

8 July 2004: Councillors turn down category A proposal for Fitzroy

20 June 2004: Campaigns prompt council to get proactive about heritage

18 June 2004: Councillors decide Parnell house facing demolition should have heritage order on it

6 May 2004: Historic Places Trust enters Fitzroy action

3 May 2004: Independent commissioner OKs Golden City’s demolition of ex-Fitzroy

27 April 2004: Commissioner to decide if Fitzroy to get reprieve

4 April 2004: Councillors vote to schedule 1850s building as developer promotes replacement apartment block


If you want to comment on this story, write to the BD Central Discussion forum or send an email to [email protected].


Attribution: Council meeting & agenda, story written by Bob Dey for this website.

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