Again Councillors trying to commit Council to an illegal act
After already being made to look silly in regards to trying to alter the Council position on Unitary Plan rezoning last month I see this time 10 Councillors are trying to force a withdraw of effectively Council’s Primary Evidence to the rezoning topic and hearing even though that evidence had to be lodged by the end of last month.
The issue of legal threats, withdrawing Primary Evidence, or opening the Hearings up to further submissions has already been ruled by Unitary Plan Panel Chair Judge Kirkpatrick as stated below:
The judge’s response
Judge Kirkpatrick said in his response he was treating Ms Burlinson & Mr Newman’s positions “as representative of the positions that potentially many landowners & occupiers would be in, rather than being confined to their own properties”.
Given current hearing pressures, he wouldn’t traverse in detail the legal background to the issues of scope to make changes to a notified plan or the exercise of the power to grant waivers for late submissions [but]…. “section 144(5) of the Local Government (Auckland Transitional Provisions) Act 2010… provides that the panel is not limited to making recommendations only within the scope of submissions on the proposed unitary plan”.
In relation to the stage of the hearing – one of the considerations for the panel on accepting late submissions, Judge Kirkpatrick said: “If a general waiver were granted to allow late primary submissions to be lodged in relation to the council’s announcement of its current preliminary position,then the panel would be very unlikely to be able to make its recommendations to the council by the 22 July deadline imposed by section 146 of the Local Government (Auckland Transitional Provisions) Act. Any extension of the hearing process, while potentially assisting those who may now wish to make submissions, would also adversely affect those who have already made submissions by delaying the conclusion of this process and making the plan operative.
“The present process is not the only one available to deal with any rezoning proposals: once the proposed unitary plan is made operative, it may be changed in accordance with schedule 1 to the Resource Management Act (that is Public Plan Changes (led by Council), Private Plan Changes (non Council led) but face a two year stand down once the Plan goes operative, or for submitters to appeal through the Environment Court or High Court depending on the situation – admin).
“Overall, these considerations stand against the grant of waivers for late submissions and also raise the question whether the current process is the most appropriate one in which to consider all aspects of the council’s current position. For those reasons I refuse to grant waivers either generally, as sought by Mr Thomas, or in the particular case of Newman. I also refuse to reject the council’s material as to its position on residential zonings at this preliminary stage.”
On Auckland 2040’s request for guidance on how the panel would deal with out-of-scope submissions, Judge Kirkpatrick said: “Even where a discretion is expressed in unlimited terms, the general law requires a statutory body which makes decisions that could affect people’s rights & interests to act in accordance with the principles of natural justice..
“It is important to bear in mind that the council’s proposals are no more than its current preliminary position. Having notified the proposed unitary plan and then lodged its own submission on it, the council is in no different position to other submitters at this stage in the process. In presenting its case in support of its submission it may advance out-of-scope matters, but in doing so it must satisfy the panel that it would be appropriate for that matter to be the subject of an out-of-scope recommendation. The panel will be exploring this in detail when the council presents its case in relation to these out-of-scope submissions.”
The full text
Effectively it can be concluded that Council withdrawing its Primary Evidence to the rezoning topic would grant a similar response by Judge Kirkpatrick as noted above. There are remedies available once the Unitary Plan goes live in August. These include appeals by submitters, Public Plan Changes by Council itself, and after a two year stand down Private Plan Changes.
Furthermore AND the most important note:
So what the Council lodges as Primary Evidence might not be what the Panel takes forward in its final recommendations.
Also if the 10 Councillors do succeed in forcing a withdraw of rezoning Primary Evidence it puts both submitters like myself and the Panel at an extreme disadvantage. The Council’s Primary Evidence was due last month with submitters due to file their Primary Evidence in support or against Council’s Evidence yesterday. Rebuttal Evidence is due next week with Hearings due to start March 3. Any withdraw by Council means they have to rewrite their Primary Evidence again and the submitters have to rewrites theirs again as well. This will force the Hearings to be late and the Panel to miss their deadline on sending the recommendations to the Council by July.
If this were to happen and given the mood of the Government I would safely wager Government intervention similar to Three Kings would occur.
So do we want ten Councillors playing silly buggers with the Unitary Plan processes jerking submitters and the Panel around resulting in Government Intervention? I rather think not!