FACT CHECK: Was the Boathouse Bay decision predetermined?
The decision by Auckland Council to grant resource consent for a 33-dwelling intensive development called Boathouse Bay has shocked many in the sleepy seaside settlement of Snells Beach. The way that the decision was made should give many in council nightmares.
Following the first set of information released under the Local Government Official Information and Meetings Act (LGOIMA), the transparency of what was taken into account when reaching the decision is disturbing. Don't just take my word for it, see for yourself.
PREDETERMINATION?
When a council receives an application, it needs to act impartially. When an application is for a non-complying activity, there is a 'two gateway' test where a proposal needs to either cause less than minor effects or not be inconsistent with the policies and objectives of the district plan.
The Auckland Unitary Plan is new and the old plan is partially still operative. Public scrutiny would ensure that all the relevant information is used to reach a decision as well as ensuring that the right process is followed.
On 7 October 2016, there was this email:
The circulation of draft conditions is usually an internal process as part of the decision-making process to test whether conditions can adequately avoid, remedy, or mitigate adverse effects on the environment. The problem is, the council planner (who no longer works at the council) shared it with the applicant before a decision was made. Or was the decision already made?
The applicant had already booked a full page feature for the January 2017 issue of Junction Magazine that the development was 'underway' and would be on sale over Summer 2017.
Pretty presumptuous, huh?
It was shortly after that letters started to appear (then disappear) in local newspapers raising concerns about the proposed development and how it should be publicly notified. Turns out, the council was being barraged with phone calls and emails concerned about the development. Here is one from a concerned neighbour:
But, don't worry, the council hadn't made a decision whether to publicly notify the application:
Even though the council was satisfied that it had all the relevant information to start writing the decision in October 2016, what information could notification possibly add?
You would think that a council would let a concerned neighbour know about anything that might DIRECTLY happen on their land, especially considering the applicant went to so much effort to avoid them being notified.
Gee, what could that possibly be?
So, it's only after the resource consent was issued that a landowner finds out that a developer can come onto their land and upgrade a so-called 'public stormwater pipe.' Please.
Let's be clear about another thing. The applicant went to Richard Didsbury to provide written approval so that a person who bought a property off Didsbury wouldn't be notified about a development that literally goes onto their property and rips it up? And then they are told that it would benefit them?
Here's what might benefit the neighbour: HAVING A SAY ON WHAT'S GOING ON NEXT TO THEM!
If the neighbours were notified, they would have been in a good negotiating position to... I don't know... remove the pipe and easement from their property. That would require moving the houses on the development further from their boundary.
But no. Instead, Didsbury got a right of way removed from his development and got a bargain on two of the lots of the subdivision.
After the letters to the editor and the inquiries with the council, the applicant sent this letter to the consultant planner:
So, the applicant was getting anxious to get a decision before any other information could come to light. What else might be a problem?
So, the local councillor, chair of the local board , and editor of a local newspaper were alerted. Surely, the council planners would exercise their discretion to publicly notify the application. Beth Houlbrooke told the Snells Beach Residents and Ratepayers that no decision had been made about notification. Even in July, this submission was forwarded:
At the time of that email, the final decision was already being drafted. The decision was issued on 25 July. The first the public (including elected council officials) had heard of the decision was when the chainsaws turned up 21 August.
RELEVANT INFORMATION?
The greatest problem with the application is the transparency, independence, and quality of the information used to make the decision. Ultimately, the bucks stops with the planner processing the application:
So, the decision maker needs relevant information to make a decision. They are the person expected to ask the tough questions:
So, what information changed her mind? Here is an excerpt from Boffa Miskell's February 2017 assessment amending the application to include the felling of the Norfolk pine:
Oh, goody, the applicant contracted an expert. And what did they find?
That's interesting. Boffa Miskell paid an expert and only quoted one sentence from the report. Surely there must be more?
So, the council relied on a sentence quoted from a report they haven't seen? There is also no records of correspondence with the historian to verify what research was conducted and what sources were used.
But, if you didn't notice, in the planner's March email she didn't see in the February Boffa Miskell report any justification to fell the Norfolk. Instead, the planner - seeing that the tree would end up being on public esplanade reserve - turned to the Parks Department to see if they supported the removal of the tree.
So, what other information did the council planner rely on?
Yup, the applicant had two meetings with Stan. When were those meetings?
Let's check those dates. When the application was lodged, was it?
Just a minute. That was a pre-application meeting. The application was lodged on 23 December 2015.
And what was discussed at that meeting?
So, before the application was lodged, the removal of the Norfolk pine was already planned.
OK, the applicant said that the "plans reflect the discussions/agreement". The consultant planner said that "I understand that there were no concerns from Parks regarding the proposed tree removal.'
Here is an excerpt from the 15 December 2015 Boffa Miskell landscaping plans at the time of the application being lodged:
Yup, the Norfolk is to be retained. So, was Stan the man at council who said it was OK to fell the tree?
But Stan was the man who said it was OK! You can't find anything?
Quick, we've already made our decision and now we're looking for the reasons to justify it! There must be some records from the two meetings that said that felling the tree was OK. Anything?
Panic! The applicant is getting really pushy. It takes six weeks to book the guys with the chainsaws!
In the end, no one could find the information from Stan that said that it was OK to fell the tree. Consent was issued on 26 July 2017. The council couldn't find (they didn't look very hard) any information that would prevent the tree from being felled.
Looking back at the processes followed, the council effectively made their decision before the application was lodged and then looked for reasons to support it. In the absence of information, they made assumptions. In the absence of their own impartial expertise, they relied on the information provided by the applicant. Instead of notifying, they bowed to unsubstantiated assurances from the applicant.
To read more articles by me about Boathouse Bay, please visit these links: