The Urban Design Forum, in association with the NZIA and Generation Zero, joined a Unitary Plan Appeal about Carparking Rules as a Section 274 party.
The “Key Retail” Group’s appeal was only possible, under the Auckland Unitary Plan legislation, because the Council (the respondent) chose to stick with their originally notified intention to dispense altogether with minimum parking requirements, despite the Hearing Panel’s recommendation that the requirements be re-instated (for retail floorspace only).
The Panel had been persuaded by the “Key Retail” Group that their precious carparks would be over-run by “freeloading” motorists, who would then wander down the main street to spend their money at a café which had no obligation to build carparks of its own.
We believed that their appeal was not about managing their carparks – but about preserving the competitive advantage for their car-based development model over traditional (and stagnating) mainstreet centres. Removing the requirement for every property to provide carparking in centres could well be the game-breaker that enables intensive redevelopment with mixed-use residential to start happening. That’s more likely to be what the “Key Retail” Group are worried about, rather than managing their carparks against people who may want to have a coffee up the street.
We opposed the Appeal on the basis that: “the imposition of Minimum Parking Requirements imposes unnecessary costs on developers, results in poor design outcomes, and is contrary to the principles of a free market.” In the case of many mainstreet properties, also, it is physically impossible to meet the parking requirements because traffic geometry doesn’t fit within the dimensions or shape of the lots. Two significant Auckland property developers agreed with us and were willing to write evidence in support.
Our position was not as extreme as the respondent Auckland Council, who were additionally trying to impose maximum parking requirements. We thought it would be simpler - in this case at least - to leave it to the market.
The Appeals were lodged in September 2016. Having made the decision to reject the Hearing Panel recommendations in August, the Council held to their position through two mediations (December and February), and the appointment of Judge Smith, who held a pre-hearing conference in May. In June the Council issued their package of evidence, written by six excellent witnesses. As S274 parties, we had to lodge our evidence in July. We sought to complement the Council’s excellent evidence by highlighting practical on-the-ground examples, which illustrated the absurdity of the Appellants’ position.
Then, at a second pre-hearing conference in August, it emerged that the Appellants were trying to negotiate a compromise settlement with the Council. Although they claimed that their compromise arose from fear that a judicial decision could go in unpredictable directions, I like to think – looking at the timing of it – that the logic of our evidence played a role.
At the hearing the appellants no longer tried to run their “freeloading” argument, but their traffic witness focussed on what he claimed were adverse “spillover” effects that would result if the negotiated compromise was not adopted. The remaining Council witnesses now accepted this expert evidence as a given, and narrowed the scope of their evidence accordingly.
The Decision in the end was in favour of the negotiated compromise, with only minor technical amendments. It ran to only 15 pages and focussed largely on the discussion that occurred in the courtroom, with very little reference to the primary evidence, which was taken as read.
As with much else in the Unitary Plan, one can see the glass as half-empty or half-full. In support of the latter viewpoint, I would point to the following “wins:”
1. The negotiated compromise was itself an unexpected and massive concession by the “big box” Appellants. There are no longer Minimum Parking Requirements for proposals that:
• can only be accessed across a Key Retail Frontage overlay
• are subject to a Heritage or Special Character overlay
• involve less than 100m2 of new construction
• cannot fit a circle of 13m diameter on a front site
• are on a site of less than 800m2
While it means that large areas towards the fringes of centre zones will still have a Minimum Parking Requirement, it is likely, as the judge noted, that developers on large sites in peripheral locations will choose to provide carparking anyway. (And nothing in our submission sought to restrict developers from providing parking to whatever scale they wished).
2. Both the Council and the Appellants were explicit that they had agreed the rules in their negotiated compromise with reluctance. They claimed that their concern was the judge’s reputation for active engagement in a case and being more interested in what the RMA required than what parties might have agreed. The Council, for instance, were worried that the Judge might end up with a decision closer to the original Panel recommendation. Early in the case, however, Judge Smith questioned us all and came to the conclusion that the decision should fall somewhere between the compromise position and ours.
3. While, in one sense, it was disappointing that the Decision did not discuss the philosophical position outlined in our primary evidence, in another sense it means that we are not stuck with a judicial precedent that would make future cases more difficult. The judge concluded that the outcomes of either position would meet the Objectives of the Unitary Plan and described the decision as being “by a small margin” and “nuanced.” The inference is that the outcome might be different in another time or place. The carparking issue may live to fight another day.
So what have we learnt from the case?
• Lesson 1: Get cracking early. Don’t wait for the other parties to get their act together, postpone repeatedly, and eventually produce their watered-down evidence. It seems that we may have been eligible for funding from the MfE’s ELAF (Environmental Legal Assistance Fund). If we’d got onto it earlier, maybe we could have funded a traffic/transport expert and a barrister for more robust cross-examination. Maybe we could have served a subpoena on some of the excellent Council witnesses who mysteriously disappeared from the case once the compromise was negotiated.
• Lesson 2: Don’t be discouraged, on the other hand, if you don’t have the firepower or resources that the opposition can afford. Once we were in the court-room, the judge was supportive and friendly, and openly encouraged our participation, even to the extent of inviting us to ask questions of the witnesses (An opportunity we had to be careful to use without descending too much into advocacy). And - after some fairly heavy intimidation to persuade us to withdraw from the case had failed - the other players, once in the courtroom, were also professional and helpful. If there’s a reasoned case to be made, then the Court is ultimately where the RMA has to be played out.
(image: Under-used parking behind the Pukekohe mainstreet shops)