Orakei Point village developer OP Trustee Ltd (Kerry Knight & Chong Du Cheng has filed an appeal in the Environment Court over the rejection by Auckland Council’s planning committee of the company’s application for a private plan change.
The committee went close to rejecting the application in February – only avoided when committee chair Chris Darby deferred a second motion on it after an 11-10 vote against accepting it for notification.
On that occasion it wasn’t accepted for notification, but it also wasn’t rejected. Returning on 5 March, the committee struggled to maintain a quorum when some members left for a 5pm appointment, and after an hour’s debate the vote went 10-5 to reject the application, with 8 committee members absent.
The application was intended to enable the developer to shift the position of the proposed the 32-apartment Peninsula building 15.75m and add some apartments.
It was intended to be the first structure in a development totalling 500 apartments, as well as the retail village of 30 businesses already in place.
The company wanted to rezone, to mixed use, a portion of open space that was to have been part of a council-owned coastal pathway but which is no longer required for that.
Knight alleges councillors acted beyond powers
In a complaint to the council on 25 March, OP Trustee director Kerry Knight said: “Last week I watched a liveview stream of councillors debating the Orakei Point private plan change in relation to a property my company owns.
“It is clear from the recording that some councillors acted beyond their powers, notwithstanding being told repeatedly by council officers that they didn’t have the power or statutory duty to do so.
“This issue affects the process & duties of Auckland Council and means the statutory process cannot be relied upon because councillors are taking the law into their own hands.
“In particular, my complaint is against [Councillors] Desley Simpson, Christine Fletcher & Mike Lee. I am happy to provide further information but would like to hear from you what the process is and what the repercussions for those councillors might be.”
The council planning committee has the company’s appeal on its agenda tomorrow, for discussion in the confidential section of the meeting.
Following the March committee meeting, it took the council a week to notify the company, and that only by council principal planner Bruce Young emailing the committee minutes to the company’s planning consultant, John Duthie, who was Auckland City Council’s city development manager leading into the amalgamation of all the region’s councils.
In its appeal to the Environment Court, Orakei Point Village’s barrister, Bal Matheson, wrote: “This email did not purport to be a formal decision for the purposes of clause 25(5) of schedule 1 to the Resource Management Act 1991. About 21 March, in response to a formal request for a copy of the council’s decision, the council’s solicitor simply attached a copy of Mr Young’s email of 12 March 2019, noting that: ‘The attached minutes of the planning committee meeting record the council decision (to reject the private plan change request) and the reasons for the rejection, in accordance with clause 25(5) of Schedule 1 of the Resource Management Act 1991.”
As grounds for the appeal, Mr Matheson wrote: “The decision by the majority of the planning committee to reject the private plan change application was unreasonable & irrational and it did not fall within the restricted grounds for which a private plan change application could lawfully be refused. This was apparent from the live webcast meeting of the entire planning committee meeting, of which evidence will be provided to the court.
“There was no probative evidence before the planning committee that the private plan change was not in accordance with ‘sound resource management practice’: The council staff clearly advised the planning committee of the very limited bases on which the planning committee could refuse the private plan change application and the staff confirmed their advice that they supported the private plan change and considered that the application was in accordance with sound resource management practice.
“The council staff further reminded the planning committee of the need for them to make any decision in accordance with the appropriate [legal] framework, and in a manner that reflected the quasi-judicial nature of that decision.
“There was no other probative evidential basis on which the planning committee could have reached a decision that the private plan change application was contrary to sound resource management principles. lt was apparent from the live webcast that the majority of the votes in favour of rejecting the private plan change application was based on a personal or political preference for some other outcome.
“To the extent that some members of the planning committee relied on other factual information to reach their view, the basis of that information was either incorrect &/or outdated. Furthermore, the failure to put that new information to OP Trustee prior to the meeting, and allow it to respond prior to the meeting, was a clear breach of natural justice.
“The planning committee received no other independent or professional advice to support their assertion that the private plan change was not in accordance with ‘sound resource management practice’.
“On any rational & objective view, the private plan change application was in accordance with both sound resource management principles and (to the extent it is relevant to this procedural decision) it was also in accordance with the ‘Resource Management Act purpose & principles’:
“The private plan change relates to rezoning 413m² of privately owned land at Orakei Point from open space-informal recreation to a business-mixed use zone so as to allow the construction of additional apartments.
“This area of private open space was a remnant of a previous outdated concept plan that is not now going to proceed, and it is appropriate to rezone it to allow additional residential apartments to be constructed. (At the very least, it cannot be said that the request to rezone it to match adjacent zoning was ‘contrary to sound resource management principles.’)
“The private plan change was prepared under the supervision of one of Auckland’s most experienced & senior planning practitioners, and it was a very thorough application addressing all relevant matters. After lodgement, further information had been requested by the council staff, and this had been provided prior to the meeting on 5 March.”
8 March 2019: Council committee rejects Orakei Point private plan change, and developer says he’s had enough
8 February 2019: Orakei Pt apartment building shift knocked back in 11-10 council vote
Attribution: Council meetings, Kerry Knight.