Local Boards will not be consulted on final form of Auckland’s Unitary Plan

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The Unitary Plan is approaching its denouement.

The decision of the Hearings Panel has been provided to Auckland Council and Council officers have been analysing the report all weekend.  It is anticipated that the report will be publicly available this Wednesday.

It is a shame that the documents were not put into the public domain immediately it was provided.  This would have allowed the public to have more time to consider the matter and look at the source documents themselves.  Having them filtered through officer report can result in some of the nuances being missed and some of the effects of changes being understated.  There are apparently a thousand pages of recommendations and 60 associated reports so as much time as possible should be allowed.  Apparently most of the reports were received on May 18, 2016.  The delay in releasing the information is more inexplicable given that most of the information was available two months ago.  And in saying this I find myself in the unusual situation of agreeing with Dick Quax.

Council is now required to make a final determination by August 19, 2016 unless an extension is granted and given previous government responses this is unlikely.

And the Government appears to be relaxed with the results so far and backing away from a threat to replace Auckland Council with commissioners.  It makes you think they must have had a quick peek at the results.

From the Herald two days ago:

Bill English is optimistic the Auckland Council will make good decisions when final recommendations for the city’s new rulebook, or Unitary Plan, are given to councillors next week.

The Finance Minister said the council has a pretty good understanding of the importance of its decisions for Auckland and the wider economy.

“It also understands the need to enable more supply and I am optimistic it will make good decisions.”

The comments are a softening of English’s previous warnings that the Government could step in if the council does not accept a Unitary Plan that allows supply to meet demand.

The panel yesterday handed over its recommendations to council chief executive Stephen Town. They will be released to councillors and made public next week. Councillors will meet next month to make final decisions on the plan.

There has been some concern at the ongoing role of local boards.  We have been told very clearly that Council will not consider any further input from us.  Councillors were advised in these terms:

As a decision maker I can take into account the local board views and preferences that were attached to the Council’s submission, and as expressed by Local Boards at the [Independent Hearings Panel] hearings, but I cannot take into account any other or subsequent views.”

With the greatest of respect this cannot be correct.  The legislation states that when the Council reviews the IHP recommendations it “is not required to consult any person or consider submissions or other evidence from any person; and … the Council must not consider any submission or other evidence unless it was made available to the Hearings Panel before the Panel made the recommendation that is the subject of the Council’s decision.”

Basically the section says the Council is not required to consider submissions from local boards or anyone else for that matter.  But this is not the same as a blanket prohibition.  Of course there is a floodgates argument and if Council allows a further round of consultation then it will not be able to meet its legislative imposed deadlines but if there is one group who should have some rights to present further it should be local boards.  In the interests of the concept of co-governance and given our mandate to represent local interests if there are any organisations that should be allowed a further say it is local boards.

 

There has also been some controversy about whether the matter should be considered by Council itself or the Auckland Development Committee.  Briefings were meant to be made to the Auckland Development Committee which has had control of the issue so far and this briefing paper (page 61) suggests that the ADC was going to be briefed on the issue.

The Committee has as its members all members of Council and the Mayor as well as two representatives from the Independent Maori Statutory Board.  Council itself has no IMSB members.  If the transfer is made there will be no independent Maori input into the form of the final plan.

 

I have said before that the process has been designed by a masochist and the Government is the body that should be held to account.  Expecting Councillors to calmly and coldly review a complex plan during the intense heat of an election campaign is asking for trouble.

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  1. Penny Bright says:

    25 July 2016

    Request for Speaking Rights at Auckland Council Governing Body meeting Thursday 28 July 2016, 9.30am Auckland Town Hall.

    Mayor Len Brown,

    My intended subject matter is to raise my deepest concerns about the following of the ‘Rule of Law’ by Auckland Council elected representatives and staff, regarding the findings of the Independent Hearings Panel and the Proposed Auckland Unitary Plan.

    In my considered opinion, under the following legislative provisions, as I understand it, there is no statutory arrangement for any Council Committee (such as the Auckland Development Committee) to consider the recommendations of the Independent Hearings Panel – that is the statutory duty – as I understand it, of the Auckland Council Governing Body.

    There is significant public interest in the Proposed Auckland Unitary Plan, and, in my considered opinion, as Mayor of Auckland Council, you need to ensure that ‘Justice is done and is seen to be done, and the rule of law prevails’.

    Please ensure that all elected representatives, and Auckland Council staff follow the following lawful, statutory provisions, and matters relating to the Independent Hearings Panel and the Proposed Auckland Unitary Plan, are not shunted off to any other Council Committee but the Auckland Council Governing Body, and please ensure the maximum openness and transparency in these proceedings.

    Please be reminded of the decision-making responsibilities of the Auckland Council Governing Body as outlined in the local government (Auckland Council) Act 2009:

    http://www.legislation.govt.nz/act/public/2009/0032/80.0/DLM2322321.html

    15Decision-making responsibilities of governing body
    (1)
    The governing body is responsible and democratically accountable for—
    (a)
    the decision making of the Auckland Council in relation to any regulatory responsibility, duty, or power conferred on, or applying to, the Council under this Act or any other enactment (for example, the responsibilities, duties, or powers conferred on, or applying to, a local authority under the Resource Management Act 1991, the Health Act 1956, the Building Act 2004, and the Civil Defence Emergency Management Act 2002); and
    (b)
    the decision making of the Auckland Council in relation to—
    (i)
    transport networks and infrastructure; and
    (ii)
    any non-regulatory activities of the Auckland Council that are allocated to the governing body in accordance with section 17; and
    (c)
    the decision making of the Auckland Council in relation to the establishment and maintenance of capacity to provide, or ensure the provision of, services and facilities (including local activities) by the Auckland Council; and
    (ca)
    the decision making of the Auckland Council in relation to the governance of its council-controlled organisations; and
    (cb)[Repealed]
    (d)
    the decision making of the Auckland Council in relation to compliance with section 101 of the Local Government Act 2002 (which relates to the financial management of a local authority); and
    (e)
    the agreement reached with each local board (as set out in each local board agreement) in respect of local activities for the local board areas.
    (2)
    Before making a decision described in subsection (1)(a) to (d), the governing body must—
    (a)
    comply with any requirements of this Act; and
    (b)
    comply with any requirements of the Local Government Act 2002 and any other enactment; and
    (c)
    consider any views and preferences expressed by a local board, if the decision affects or may affect the responsibilities or operation of the local board or the well-being of communities within its local board area.

    ______________________________________________________

    Also – please be reminded of the following statutory provisions of the Local Government (Auckland Transitional Provisions) Amendment Act 2013:

    http://www.legislation.govt.nz/act/public/2013/0064/latest/DLM5464013.html

    “148Auckland Council to consider recommendations and notify decisions on them
    “(1)The Auckland Council must—
    “(a)decide whether to accept or reject each recommendation of the Hearings Panel; and
    “(b)for each rejected recommendation, decide an alternative solution, which—
    “(i)may or may not include elements of both the proposed plan as notified and the Hearings Panel’s recommendation in respect of that part of the proposed plan; but
    “(ii)must be within the scope of the submissions.
    “(2)When making decisions under subsection (1),—
    “(a)the Council is not required to consult any person or consider submissions or other evidence from any person; and
    “(b)the Council must not consider any submission or other evidence that was not made available to the Hearings Panel.
    “(3)To avoid doubt, the Council may accept recommendations of the Hearings Panel that are beyond the scope of the submissions made on the proposed plan.
    “(4)The Council must, no later than 20 working days after it is provided with the report under section 146,—
    “(a)publicly notify its decisions under subsection (1) in a way that sets out the following information:
    “(i)each recommendation of the Hearings Panel that it accepts; and
    “(ii)each recommendation of the Hearings Panel that it rejects and the reasons for doing so; and
    “(iii)the alternative solution for each rejected recommendation; and
    “(b)electronically notify each requiring authority affected by the decisions of the Council under subsection (1) of the information referred to in paragraph (a) that specifically relates to the decision recommending that the authority confirm, modify, impose conditions on, or withdraw the designation or heritage protection order concerned.
    “(5)Subsection (6) applies if the Council decides that it wishes to accept a recommendation but alter the recommendation in a way that has a minor effect or to correct a minor error.
    “(6)The Council may notify the recommendation as accepted, but only if, when complying with subsection (4)(a)(i), it sets out the alterations to the recommendation.
    “(7)A recommendation to which subsection (5) applies must, for all purposes, be treated as a recommendation of the Hearings Panel accepted by the Council.
    “(8)Subsection (4) is subject to section 149.
    ___________________________________________________________

    (My bolding and underlining).

    Penny Bright

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