Stephen Franks: Parliament trumps the lawyer/clerics – blow against ‘heritage blight’

What a delight to see Minister Chris Bishop using Parliamentary sovereignty to roll over the heritage numpties. Sound resource management law would have made it unnecessary. Those claiming benefit from the ‘heritage values’ in the Gordon Wilson Flats should have been forced to compensate the losers from planning paralysis in Wellington. Thousands of young people paying exhorbitant rents, and young families forced to commute from Upper Hutt. Just a serious possibility that the decision-makers would have to bear the costs of their decisions would have seen replacement of that building decades ago.

Wellington suffers hugely from the powers of its incompetent and pious councillors. They can impose their personal aesthetic and cultural preferences without even knowing what they cost, let alone having to pay. They can cause others to waste $millions in opportunity costs. We’ve suffered more than a decade’s dereliction of the Gordon Wilson Flats for no gain whatsoever.

This is so obvious that many people were puzzled early last month when the Minister announced his decisions to over-ride a number of dumb Wellington City Council decisions, but did not exercise his power to lift the heritage status of Gordon Wilson Flats. He explained that he did not have enough information.

To judicial review experts the reason was obvious. The courts can review and overturn Ministerial decisions. Sometimes they have little more justification than lawyerly elite cultural or aesthetic preference. Even if the courts ultimately respect Parliament’s law, upholding the decision of an elected Minister, constipated court processes could delay certainty for many years, especially if the case went all the way to the Supreme Court.

Now the Minister has acted decisively. There is no appeal against de-listing by Act of Parliament.

If only other Ministers were as bold. Many of the projects currently winding through the processes under the Fast Track Approvals Act should have been directly authorised by Parliament. That Act contains too many opportunities for lawyers to divert them to the judicial (even slower) track. There is a serious prospect that this government’s term will end, before more than a fraction of the fast track projects have got off the ground. Many will not have emerged from the approvals quagmire.

Even more useful would be Bills to reverse rogue judgments of the Supreme Court. That court needs a sharp reminder that in a democracy elected representatives change the law. People who can be sacked by voters should decide if and when law (like Three Strikes) should be revoked – not unelected judges. The job of judges is to apply the law, predictably, economically and speedily. They do none of those three things presently. If Parliament made it clear that judicial frolics in law-making will be reversed, judges might decide to stick to their knitting.

Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at www.stephenfranks.co.nz.