Published 17 April 2009
3 independent commissioners have given short shrift to an Auckland City Council planner’s proposition that a site earmarked for redevelopment should need special consent for the existing buildings to be demolished.
The interpretation was put forward by council staff on applications by a Retail Holdings Group company, Drive Holdings Ltd (Darryl Henry & Haydn Staples), to demolish 4 buildings on Tamaki Drive at Mission Bay.
The company sought certificates of compliance at a hearing in March. Panel chairman David Hill said in the decision issued on 6 April: “The application was put to independent commissioners to determine because of a difference of interpretation of certain provisions of the district plan as between the applicants and Mr (Colin) Hopkins, the reporting planner. Whereas the former submitted that the certificates should be granted because the activity of demolition was a permitted activity on the site, Mr Hopkins considered that the activity of demolition was either discretionary or non-complying at this location and should therefore be declined.”
The commissioners – Mr Hill, Kit Littlejohn & Les Simmons – granted the application in a decision which Mr Hill made very simple: “Notwithstanding that the business 8 zone – Mission Bay concept plan applying to the application sites does not specifically provide for the activity of demolition, the business 8 provisions require consideration of other parts of the plan.
“Demolition of buildings is provided for as a permitted activity under part 4A of the district plan unless limited by the provisions of part 5C Heritage. The business 8 zone at Mission Bay East is not limited by the provisions of part 5C Heritage.
“Taking a purposive interpretation of the relevant provisions of the district plan, demolition is addressed in part 4A and application of that part and the permitted activity rule it contains is not precluded by the specific provisions of the business 8 – concept plan applying to the sites. Accordingly, the activity of demolition of buildings is a permitted activity on the sites concerned.”
Mr Henry said the need for this application had added cost and created uncertainty, although the project would not go ahead in the current economic climate anyway. He said the company was still working on development plans and was not about to demolish the buildings.
But the case is not merely one of a decision – the commissioners’ commentary raised questions about the way the council was handling applications. The commissioners said the business 8 zone was introduced for redevelopment purposes. Although demolition was generally not listed separately in any zone activity tables, it was clearly an essential activity for redevelopment.
They went on to say: “The list of permitted activities in the concept plan is not exhaustive:
The bolded text at the end of the business 8 section makes it clear that the general rules etc apply in respect of both activities & development controlsA literal, on-the-face, interpretation of the district plan is not appropriate as the district plan provisions are not perfectly drafted and therefore requires a purposive interpretationThe council’s in-house legal advice did not support the reporting officer’s position.”
In a plainly worded criticism of the council approach, Mr Hill wrote: “Additional guidelines for the interpretation of district plans are also well established. In summary, if the plain meaning of the text cannot be ascertained, due to obscurity or ambiguity, from consideration of the context of the text at issue, the purpose of the provision and context of the relevant plan is required. In cases where the plain meaning is not clear, it is permissible to refer to the relevant objectives & policies of the plan in question. Importantly, interpreting a rule by rigid adherence to the wording of the particular rule itself would not be consistent with the requirements of the Interpretation Act 1999.”
The commissioners also had some strong words for the politics of the council approach: “It is apparent from material included in the planner’s report that the reporting planner’s interpretation of the district plan in this case reflects an internal
council policy position reached by the ‘planning department’ – a position, we were advised, not adopted by any formal resolution of council.
“Mr Smallburn (resource consents manager Ian Smallburn) also advised us that this was the first time such an interpretation was being taken. We were told that council wished to have the ability to specifically consider demolition proposals on business 8-zoned land by way of resource consent application and that this new interpretation yielded that outcome.
“As will be apparent from our findings on these applications, we do not consider that such an interpretation is possible on the plain provisions of the district plan. We observe that if council wishes to implement a new policy aimed at putting in place a consenting process for the demolition of non-heritage-listed buildings in the isthmus, then the appropriate course to achieve that is by way of a change to the district plan.”
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Attribution: Council hearing & panel decision, story written by Bob Dey for the Bob Dey Property Report.