| Wellington Protects its Golden Mile, and Two proposed changes to RMA |
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| Centre Digest | |
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This is a short digest for two reasons. First the storms of the last few days mean that I have had no internet connection for the last few days, and hence cannot access the documents on the web I had stored for comment etc. Also I am preparing material for Wellington (see below). Wellington Protects its Golden Mile. I am joining a panel in Wellington on Monday, June 30, in which I shall be challenging the Mayor and Planning Officers of the Wellington City Council as to their right to ban large retail stores (the anti "Big Box" rules which are a standard part of Smart Growth packages) in order to protect Wellington's Golden Mile from competition – which might make it "unsustainable", the code word for "unprofitable". The relevant objective of Proposed Plan Change 66 reads: 6.2.1B To ensure that retail activities and integrated retail developments do not compromise the sustainability of the Golden Mile (and where applicable, other Suburban Centre retail areas), compromise the sustainability of the transport network, or result in the unsustainable location of these activities. Don't you love it? The RMA (s104 etc) states quite clearly that consent authorities shall not have regard to trade competition. So if you want to protect your favourite lobby group from competition you simply say you are protecting their sustainability instead. It's so much more PC to protect benevolent Green sustainability than nasty Capitalist profitability. Once again we can only wonder that Orwell himself didn't coin the term. What is a "sustainable" transport network, and how will any Court determine whether some location as been rendered "unsustainable"? Surely the following "explanation" should attract the attention of the Commerce Commission; – Council is actively supporting the Golden Mile through policy and public investment initiatives. This policy and investment support helps to facilitate further private investment in the Golden Mile. It is therefore important to manage the impact of large retail developments on the Golden Mile and to ensure the maintenance of a compact urban form. Again, it appears that Council is giving full weight to this proposed Plan Change even though the submission period is not yet closed and we can be sure that many submissions will challenge its legality, let alone its meaning and intentions. The Centre's proposed reforms to the RMA should stop this kind of economic distortion and anti-competitive behaviour in its tracks. However, in this Digest the Centre would like to put forward two other proposed amendments to the RMA which could restrain other excessive "enthusiasms". Proposed Amendment One: Make Councils Liable for Damage from Protected Trees. These recent gales, which have swept up most of the West Coast of New Zealand, have blown over many trees in both rural and urban areas. The NZ Herald featured a story of a large tree in West Auckland which had blown over and fallen onto the roof of their neighbours' house which had to be evacuated because of the damage and risk to their life and safety. Mayor Bob Harvey was reported as saying that because this was a tree on private property damaging a neighbouring building, also on private property, there was no issue for Council to respond to or deal with. This may or may not be true. There are many cases where landowners have applied to Council to prune or remove trees because the landowners feared for their own safety or for the potential for damage to their property. These applications may or may not succeed but they are always expensive and can cause much friction between neighbours. In a famous case in Australia, council's arborist declared a large eucalyptus safe only a day or so before it blew down and killed the owner of the property in his bed. The distraught wife was dealing with the ambulance when the Council inspector arrived to give her the consent which they had "reconsidered." Council was trying to avoid liability but ended up having to pay $1.5 million in damages. The Centre is routinely approached by people who are trying to have a tree or trees removed because of potential danger or damage only to find their opinions are overturned by arborists and they have to pay the considerable fees. One cannot help wondering if the owners of the tree reported in the Herald, and many other owners of tall and aging trees, have decided not to bother applying to prune or remove the tree because of the high costs and low probability of success. The Centre has no problems with councils protecting trees on public land or protecting trees on private property with the specific consent of the owner. However, it would seem reasonable and just to require that any Council with applies blanket tree protection to trees on private property, especially in built up areas, be held liable for ANY consequent damage as a result of such a tree falling down or being blown down in a storm. And certainly, it should be made clear that arborists who declare a tree safe only to have it blow down or fall down within three years should also be held personally liable for consequent damage. Unfortunately, it seems arborists tend to err on the side of risk because otherwise they may be removed from the list of Council's experts, and hence lose valuable income. Such a requirement in the Act may also restrain councils from imposing these blanket protection rules. Trees blow down. Any thoughts and feedback are welcome. Proposed Amendment Two: Allow Landowners to Claim the Value of Covenanted Land (SNA or Ecological Feature etc) as a Tax Deductible Donation to the QE II Trust or Other Recipient Organisation. We now have a situation where DoC and other organisations appear to be able to declare large areas of bush or wetland on private property as "Significant Natural Areas" or "Ecological Features" which are supported by rules in the District or Regional Plan that prohibit or severely restrict any activity within those protected areas without any requirement for compensation. In other cases, landowners frequently volunteer to protect bush or wetland areas by a deed of covenant as part of the deal making that goes on between applicants and consent authorities. Remarkably, some local authorities then refuse to allow for any discount of the reserve contribution even though the covenanted area is much more valuable than the standard cash contribution. Councils obviously want their cash. While many district plans provide for rates relief, real relief is seldom granted. One argument is that the bush or wetland area is a requirement designed to benefit the National Interest (biodiversity etc) while the cost of the rates relief fall on all other ratepayers who have to make up the difference, and that the districts with the most SNAs and Ecological Features also tend to be among the poorest. US law seems to offer a useful solution. The Internal Revenue code provides that conservation easements are tax deductible if they meet certain requirements in the Code or Regulations. A person who contributes a "qualified real property interest" to a "qualified organisation" exclusively for a "Conservation purpose" can claim an income tax charitable deduction to the extent of the value contributed. Such a deduction can be claimed whether the contribution is made voluntarily or as a result of a rule in a District or Regional Plan. The scope and range of tax deductible donations is being extended by statute next year and this would seem a good time to bring this US rule to bear. (Sorry, no web access yet, so cannot be more precise.) This proposal would encourage and reward voluntary covenant and would align the costs and benefits. Central Government would also be seen to be putting its money where its mouth is. One can often learn more about the way a piece of legislation operates by reading a decision brought down as a result of a dispute brought before the Court. The attached decision (PDF) of the Appellate Court of Illinois is a good example. It demonstrates how the law is written and operates and also suggest how to write a similar law to avoid local disputes along the same lines. In this case the property covenanted is a Heritage House and Garden. Now that is also worth thinking about. Notice too, that the plantiff/appellants had to establish "standing" and this did not seem to give the court any difficulty. Funding. It's that time of year again. Never has the Centre been asked by so many to do so much. And we try to oblige. However, everything costs money and the Government is remorseless in its demands for provisional taxes and GST. And many of our normal sponsors are seriously hurting from the downturn in property and development. We really don't want to fold our tent and creep away so your donations are essential to our ongoing efforts. The Centre donation form is attached. Remember – even a dollar helps! |
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