Auckland 2040 Not Happy with ACDC15 Directive

This morning I blogged on the Directive the Unitary Plan Independent Hearings Panel issued on doing a third run of the Auckland Council Development Capacity Model (ACDC15) for the Unitary Plan Residential Zones (see: #UnitaryPlan: Oh Council Wont Like This With the Development Capacity Model Being “Pinged”)

In that post I wrote:

Rather ouch to Council as their re-run of the ACDC15 model in which they were pinning on would show the market feasible would increase from the initial 11% to over 60%. But it seems the Panel is not convinced thus the directive issued above that is going to have implications on the proposed controls for the Residential Zones and later on Topic 081 which is the rezoning exercise.

I am going to take a hunch that what the proposed development controls are for the Residential Zones in the Proposed Auckland Unitary Plan (density controls removed and height limits increased) are fine (unlike the Centres Zones) but where the respective zones are placed will be causing the major issues.

It might be a case of once the Residential Zones hearing is complete next month that initial runs on moving the zones around might need to be done to see how the development feasibility ends up. Of course legally this would open up the Rezoning exercise of Topic 081 for public submissions again to allow natural justice to occur. Just maybe this needs to be done and the Hearings extended six months beyond the nominal time frame of July 2016 to ensure everything to do with the Residential Zones and their spatial placement is correct.

Will see how Council reacts to the Panel Directive this week.

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Well for the most I was right with what I said above, it is that Auckland 2040 reacted to the Directive first before Council did.

Auckland 2040’s Richard Burton sent a memo to the Panel this morning outlying his concerns. At the time I wrote this post the memo from Burton was not on the Unitary Plan Hearings Panel website. However, given the very high public interest in the Residential Zones (Topics 059-063) and the perceived implications (real or not is to your interpretation), and there is no personal information included I have put the memo below as an embed. Disclaimer: I am a Primary Submitter who has given Primary Evidence to Topics 059-063 – Residential Zones to which the Directive on the ACDC15 third rerun and any replies to that Directive such as that memo from Burton have implications on potentially.

The Memo from Richard Burton:

The Key Parts

• I am extremely concerned regarding the IHP directive to parties requiring that a rerun be made of the Capacity for Growth model reflecting the inputs of Messrs Fontein and Thompson. I believe the directive raises significant issues of natural justice and process. This could potentially lead to applications to the High Court for judicial review. I am disappointed that that the work of other parties in mediation and expert conferencing can potentially be undermined through the IHP’s directive.
• At my first meeting of the CFGS team I made the following two observations based on my involvement with models of varying types over many years:
  1. Outputs from models are entirely subject to the assumption set loaded into the model. Many assumptions are subject to significant variables so that the personal belief set of the modeler influences the inputs and accordingly the output
  2. That in my several hundred appearances as an expert witness before the Environment Court I have never seen a model pass the test of cross examination. This is largely because, when the assumptions which control the inputs to the model are examined, even small discrepancies can have a significant effect on the output.
• In the interests of natural justice, due process and fairness to all parties, the following matters need to be considered by the IHP
  1. That the experts who prepared the assumption sets need to be made available for cross examination by any party who wishes to do so. The model has assumed such importance that an opportunity for robust cross examination of those responsible for its preparation is essential
  2. The hearings will need to be deferred by at least one month to allow for the above matters to be addressed
  3. As the results of the first and second model runs have been used by submitters and their expert witnesses to prepare their evidence, there needs to be sufficient time for them to consider the output from the third model run and file revised briefs of evidence if thought necessary
  4. The assumption sets for all three of the model runs should be set out in detail in a manner so that meaningful comparison can be made between model runs for each assumption. The variables behind each assumption and the basis for those variables also need to be available. The input of the full CFGS team, particularly Dr Fairgray and Kyle Balderston is essential for a fair assessment of the assumptions
  5. It is anticipated that the proposed assumption set being prepared by Messrs Fontein and Thompson for the proposed model rerun again will not be fully disclosed to the full CFGS team. It is essential that this occur and the assumption set agreed on before the model is run
  6. It is accepted that the assumptions made by Dr Fairgray and Mr Balderston in the second model run have been challenged by Messrs Fontein and Thompson. As Dr Fairgray is currently overseas, he has no opportunity to comment on those challenges or to participate in the process to ensure that a balanced approach to these important assumptions is achieved.
  7. The IHP originally requested the establishment of a team to advise on the projected demand for dwellings in Auckland and the likely developable capacity based on the PAUP as notified. It is the CFGS team which was asked to advise the IHP. To allow two individuals who participated in the process to essentially dictate to Council the assumptions to be made in the model may lead to justifiable claims of bias influencing not only all submitters but also the Panels role in addressing them.
• I believe that failure to address the above matters could bring into question the integrity of the hearing process. I wish it noted that Auckland 2040 believes the directive of the IHP raises matters of law which if unresolved could necessitate an application to the High Court by way of review. To this end Auckland 2040 is engaging senior counsel. Because our counsel Mr Brabant is overseas and not returning until the first week of October I was not able to refer this to him. However I have taken interim legal advice which has indicated that a challenge could be made to the process being followed by the IHP in reaching its ultimate decision.

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I can see where Burton is coming from in that a third run of the ACDC15 with parameters independently set by Fontein and Thompson could have natural justice concerns given Primary and Rebuttal Evidence to the Residential Zones can not be done on this third model run. This stems from that the third run of the ACDC15 will not be ready until the Hearings start in October meaning submitters like Burton and even myself can not rebut against the model run if we were to do so.

Threatening a Court challenge is something else and Burton is free to do so if he wishes.

It will be very interesting to see where this all ends up.

Again I am publishing this for your information as I deem it the utmost public interest given this will affect every single Auckland citizen living here.