Special Housing Areas

Special Housing Areas – Wellington Scoop – Originally published 29 August 2018

Frank McRae’s August 28 article on Council not rolling over 8 special housing areas (SHAs) was chock full of errors.

He is correct that the City needs more housing, especially because of rapid migration driven population growth. I’ve long advocated for a national strategy on population growth and distribution. That is fundamental to sustainability and coherent planning. That’s the national challenge, while at a local level our challenge is to try to accommodate expected population growth without destroying the very things that make Wellington such a great city. That requires the ability to robustly consider effects of proposed developments.

Where is Mr McRae wrong in his article ? Well let’s start by saying that there seems to be an assumption that development only occurs in SHAs. SHA’s almost certainly increase or speed up some development but let’s not overplay that. The fact is less than 1/3rd of consented sections and dwellings in the most recent period were in SHAs.  For the period between 1 March 2017 and 16 July 2018, consents were issued for 1136 new sections and dwellings, with just 360 of them consented within SHAs. The rest were just consented normally under the Resource Management Act (RMA).

Mr McRae says ‘SHA’s do not provide carte blanche to developers’. If you read resource consent decisions (Erskine, Shelly Bay for example) it becomes absolutely clear that the existing planning rules are subjugated. The ‘Housing Accords and Special Housing Areas Act’ (HASHAA) which created SHAs is all about provision of housing. The values in the Resource Management Act regarding sustainable development are of lesser importance, followed by the District Plan and other still ‘lesser’ documents.

What is really frightening is the April 2018 judgement of the High Court on the Shelly Bay decision. This essentially says that because HASHAA put a limit on the maximum height allowed in SHAs at 6 storeys or 27 metres – all developments could therefore be expected to be allowed to go to that maximum level, regardless of the underlying height limit. From watching some of the Court of Appeal recently it is clear that the judges are giving thought to this. Take say a residential area like Johnsonville with a District Plan permitted height limit of 8 metres, what is being argued is that under HASHAA you should expect and allow developments of 27 metres. That was absolutely never the expectation of Council, and indeed we were assured that the District Plan would be fully taken into account when consents were considered.

It’s also become clear that if there are other non-residential values in an area – for example heritage – they can be swept away, trumped by housing provision. Council when first entering into a Housing Accord, and I suspect even the author of the legislation, never anticipated that. So that made ‘rolling over’ an SHA over much of the Central City and Adelaide Road a real problem. Just think about the collection of heritage listed shops on John St corner as just one example. I counted 37 heritage listed buildings within the proposed SHA for the Te Aro area.

The same is true of Open Space zoned land. The Shelly Bay SHA was specifically extended October 2015 to include a significant amount of Open Space B zoned land. Open Space B zoning is crystal clear – and I said this at the time – that buildings of any sort are absolutely not to be expected. That Open Space zoning in the District Plan had been established through submissions, hearings, appeals, but all of that was simply irrelevant when considered under HASHAA. In my view that is just plain wrong.

If you want to see what makes this even worse have a look at the u tube coverage of the Council meeting of 8 April 2015 https://www.youtube.com/watch?v=Vq8pvfr9-Mk when the second group of SHAs including Erskine and Shelly Bay were approved (by split votes). We had been promised when Council entered into a Housing Accord with Government that there would be extensive consultation should any more SHAs be proposed. Here was the second lot (Tranche 2) – 16 SHAs proposed, but no consultation at all! You’ll see the coverage of officer presentation and responses to questions. Starting at 1 hr 31 the officer clearly states that Part 2 of the RMA would apply, the District Plan provisions would still apply and key urban design principles would still apply. At 1hr 42 he answers a question about not consulting and he says that ‘The sites that have been proposed in Tranche 2 are largely residential or areas that have been signaled for residential development so I would not expect that the public would be surprised that residential development might be considered on residential zoned land. I think in terms of consultation if we’d looked at a site for example where it wouldn’t have been the public expectation, rural zone, open space zone, you’d certainly expect extensive consultation.’

So a promise to consult when we entered into the Housing Accord in June 2014 had been discarded by April 2015. Here in April 2015 is the promise of ‘extensive consultation’ should a proposed SHA go into ‘for example’ Open Space zoned land. Just six months later that expectation (shall I say promise) was also abandoned.

I think it is bizarre for Mr McRae to say there ‘would be nothing “undemocratic” about special housing areas established by a democratically elected central government and the vote of a democratically elected city council.’ On that logic Government and Council could do anything they liked without any democratic engagement at any time between elections. No way ! In my opinion HASHAA is a deeply undemocratic piece of legislation from a Government that wasn’t really much given to community engagement. SHAs intentionally and completely undermine democratic processes allowing for the possibility of notification (however limited), and just as significantly they undermine the District Plan established by Council through extensive democratic engagement and statutory submission processes.

Mr McRae is concerned that public notification ‘hands objection rights to every member of the public’. Well the fact is that a tiny proportion of proposals are notified. In my view the number is too low. Nationally the last time I looked it was around 1%, and in Wellington a miniscule 0.8% of all applications were notified. Even 1 ½ to 2 % notification would pick up the most substantial cases. To be notified usually something has to be a significant departure from the policies and rules of the District Plan. Developers don’t like notification so they tend to try to avoid it, and the best way of doing that is to not depart too much from the District Plan, and critically to avoid, remedy or mitigate adverse effects. SHA status means that becomes an issue that can be pretty much brushed aside.

Mr McRae also says that only adjacent property owners can be notified under HASHAA. Correct. What that meant in the case of the Erskine SHA is that on a site which was heritage listed in its totality, and is occupied by two category one listed buildings (the highest category there is, by definition a “special or outstanding historical and cultural significance or value.” ), neither Heritage New Zealand Pouhere Taonga, or Save Erskine College Trust which has rare status as Heritage Protection Authority over a site, got a say in the consent application and non-notified decision was granted to demolish the main college building. With the exception of the severely earthquake damaged Shed 35 on Centreport land (demolished with agreement of HNZPT) Erskine will be the first heritage listed building to be demolished since before the current District Plan was promulgated in 1994, With respect to Shelly Bay SHA status meant nobody got a say. That’s why you are seeing court action now. There are clearly a range of important issues that an RMA process would have had to address in a way the HASHAA process does not.

Mr McRae is also wrong when he says ‘the District Plan approach which, in practice, assumes that the city will retain its existing form and assesses potential developments against its impact on that’. Actually the RMA / DP process assesses developments not against what is currently in place, but against what the Plan allows for. So for example if I want to build a 50 metre tower in a location where the height limit is 48 metres, and the site is occupied by a 2 storey house, then the assessment of effects will be about the difference between 50 metres and 48 metres, not a comparison with the existing building. It is a long established national practice referred to as the ‘permitted baseline’ approach.

That means there is actually very substantial development capacity in the city. The challenge in many cases is whether developing the capacity is financially viable including being supported by infrastructure. That in part depends on the level of return developers seek. Council is doing a lot of excellent analysis on this, and on the areas we will seek to increase development capacity. However we will do this properly, engage with our community about where growth should and should not be accommodated, and then move to reviewing the District Plan to give effect to this. This is a huge piece of work and will involve major community engagement over an extended period. You will see a lot more on this soon.

I agree completely with Mr McRae about Adelaide Road being an ideal area for intensified housing. He is absolutely right that ‘It is a large area, on the fringe of the CBD on a high frequency bus route that may convert to light rail in the future.’  What he has missed is that Council many years ago increased the height limits along Adelaide Road frontage to 18 metres as of right and 12 metres on a large area of properties behind the frontages. What I suspect has held Adelaide Road back is firstly that the costs of development will be more or less the same as closer to the CBD, but properties will be less valuable. Secondly long planned transport and public space development (except Drummond Street) have not happened as they were originally linked with a Basin Reserve solution. Clearly this soon will be addressed as part of Let’s Get Wellington Moving. Thirdly Council has not yet established an Urban Development Agency to advance development, so it is entirely left to the private sector.

A bit further south on Constable Street a very fine and sustainable looking development of 56 units has just been granted consent – no SHA there.

I completely disagree with Mr McRae for all the above reasons when he states that SHAs ‘would enable the city to grow in the most sustainable way possible’. That is the very point. The RMA, which is absolutely founded in the ethos of sustainable development and resource use, is pushed aside by HASHAA’s sole focus on housing. In the words of Joni Mitchell :

They paved paradise
And put up a parking lot
With a pink hotel, a boutique
And a swinging hot spot
Don’t it always seem to go
That you don’t know what you’ve got
‘Till it’s gone
They paved paradise
And put up a parking lot

They took all the trees
And put them in a tree museum
And they charged all the people
A dollar and a half to see ’em
Don’t it always seem to go
That you don’t know what you’ve got
‘Till it’s gone
They paved paradise
And they put up a parking lot

There’s sustainability in a song. Good resource management is making sure that you understand what you have, what you value, and how adverse effects on those natural and built environmental values are properly considered. HASHAA in its design and even more so in its execution deliberately sets out not to do that.

I do completely agree with Mr McRae about the importance of being a compact city. That is essential to sustainability. Over my time Council has done a lot to encourage denser urban form. That’s included allowing mixed use activity and not compelling carparking provision in the Central City and Suburban Centre/Business zones which have been spectacularly successful. It also meant dialing back on rural ‘deferred urban areas’, and creating the Outer Green Belt through extensive land purchase to provide a clear edge to the city. I’d note for him that in fact four of the eight rejected SHAs were greenfields, the other 4 were brownfields, so a bit mixed on the compact city front.

He is also wrong to say that the District Plan is 18 years old and therefore out of date. I have already acknowledged above that increased population growth is putting more pressure on everything including planning, and that we are going to review the Plan in totality. However he should have noted that since 2000 we have been undertaking rolling review of parts of the Plan and most of it has been updated once already. There have been no less than 94 Plan Changes and Variations since 2000. All are listed on Council’s website. The most significant change was the review of both the Centres/Business Areas (Plan Change 73) and Residential (Plan Change 72) parts of the Plan which together cover most of the city. They were notified in 2009 and made operative in 2014.

There are things that I do think need reform in respect of the RMA. In my view the RMA forces Councils as consent authorities to deal with consent applications as they come in. That does lead to often reactive and piecemeal approaches to planning, but at least it allows consideration of effects. All the messing around with the Act, mostly under National Governments has all been about making consenting easier and quicker. I think anyone who has paid any attention would be well aware that our ‘clean green’ image is more spin than substance. We have a long way to go. HASHAA is far worse in all these regards. At least the RMA’s heart is in the right place.