Friday, September 14, 2018

Frank Newman: Sidestepping planners

The government is getting serous about housing, but it's interesting how Labour's view of planning regulations has changed now that it finds itself in the position of being a developer via its Kiwibuild scheme.

It seems the Housing Minister Phil Twyford is now discovering the very same difficulties builders and developers have confronted for quite some time. The only difference being, unlike every other poor sod who is burdened with outrageous planning regulations, the Minister is able to sidestep the obstacles to get the building work done quicker and at less cost.

Minister Twyford plans to establish a new Ministry of Housing and Urban Development and will set up an Urban Development Authority (UDA). The UDA will control between 12 and 15 major government housing projects, mostly in Auckland, and will in effect replace the local council as the consenting authority for those developments. In response to some patsy questions in Parliament last week, the Minister stated he was able to build affordable housing because they could build them quicker than is possible under existing planning rules.

It's fantastic that he has finally acknowledged council delays are a significant problem - it has been a very long time coming. But if it's good enough for central government to sidestep the local council because they are so difficult to deal with, then it's good enough for everyone else! It's an outrage that central government should require everyone else to comply with cumbersome and costly council planning rules but exempt themselves.

The simple truth is that the free market would be able to deliver affordable housing if local council planning rules were ‘enabling’ rather than ‘disabling’. Engaging with council over consenting issues has become a nightmare - even obtaining a building consent takes months rather than weeks, and in many cases home builders find they also have to obtain resource consent because council planners have lowered the threshold bar on issues like vegetation clearance, earthworks, building height, building site, and "reflective" colours.

I have come to the view that the Resource Management Act has become so captured by council planning staff that the planning role should be removed from local councils entirely. The new Ministry of Housing and Urban Development would seem like the appropriate vehicle to take over the job. While this still leaves planning in the hands of legions of planners, most with a self-serving pro-regulation world view which is a problem in itself, at least central government could exercise greater influence in curtailing their excesses. Under the current regime, central government has virtually no control over councils and I think it is fair to say that local councils have lost control of their planning staff.

Here's an example. Every 10 years local councils are required to review their District Plan. The process is that staff rewrite the operative plan which then goes through a public submission process and a hearing before commissioners. Those commissioners are independent, to the extend they are not council employees. They are however appointed by council staff and paid by the council. The commissioners review the plan based on the submissions made to them and release the proposed plan. Submitters then have the option of appealing their decision to the Environment Court and engage in court assisted mediation. Very few private individuals appeal because the court process is complex, time consuming, and costly.

As a result, appellants are usually well funded infrastructure providers and organisations that represent a vested interest like Forest & Bird and the Department of Conservation. It is those organisations that enter into mediation with "council". It's during mediation that the rules are rewritten- whatever the parties involved in the mediation agree becomes planning law.

In this case however, "council" is not councillors. They delegate the mediation role to their planning staff. So when the main parties involved in mediation are council staff, Forest and Bird (who have become increasingly active in planning litigation), and DoC, it's not difficult to see how district plans have become captured, and why they are now so restrictive. The travesty here is that councillors have given their planning staff absolute authority to mediate agreements, without any recourse back to them for signing off! Although councillors are elected as a watchdog for the public interest, at no stage have they been involved in any of the mediations that I have been engaged in.

I was discussing this with a local councillor recently who seemed genuinely shocked to learn of the changes that had occurred to the proposed district plan during mediation, and shocked to learn that the changes could be made without referring them back to councillors!

It seems that councillor did not realise that when he and his colleagues voted to delegate authority to their staff to engage in mediation, they also gave away any right to veto or review the changes made during the mediation.

Therein lies the problem - council staff are smarter than councillors. If councillors are not in control of their planning process, they should be removed from the role. It's as simple as that.

Frank Newman, an investment analyst and former councillor on the Whangarei District Council, writes a weekly article for Property Plus.

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