This posting contains a few highlights from the 5 day hearing.
In fact, the court hearing is not quite over, after 5 days and over 2000 pages of evidence and annexures. On Wednesday next week the court will hear the closing submissions for Auckland Council, Auckland Transport and Precinct Properties - these apparently deal with new matters that have arisen during the hearing. One of arose from questions from Judge Newhook about the kinds of conditions or requirements the Court might be able to impose relating to the certainty (budget and delivery for example) of the proposed waterfront spaces that have been offered in exchange for QE Square - should it be sold. In effect the Court is seeking - perhaps case law or other authorities - guiding potential decision-making - so the Court can have some authority over the Council and AT - in regard to decisions that are based on Council resolutions, and on which the future of proposed waterfront public spaces at Queens Wharf and across Quay Street from PWC building depend. That will be interesting. And because there may be new materials introduced in those submissions, Counsel for Auckland Architectural Association Inc and Urban Auckland Inc have been offered the opportunity to reply to those on the Monday following. Which will bring this comprehensive and engrossing hearing to an end. The court has indicated it will aim to produce its decision 3 or 4 weeks after that.
Can Auckland reply on Council decisions?
As mentioned above, this question kept coming up from the bench. Right from day 1 Judge Newhook raised questions about the certainty of funding for proosed waterfront spaces. He wanted to know how the court might enforce those commitments, because it's finished when it's made its decisions. Counsel for AT and Council suggested that perhaps the court might impose conditions regarding timing. I'd say, given my experience of the relationship between RMA and LAG, good luck with that. As commissioner hearing council consent applications for emergency wastewater discharges under the RMA, we were endlessly advised we were unable to do anything or decide anything that required new Council spending that had not been through the LGA and Annual Plan public processes of consultataion and decision. But you never know these days. These are strange times.
When can Plan Change rules be changed later by non-notified consent?
This was an extraordinary discovery for me. Commissioner Dunlop asked questions throughout the hearing about whether it was possible for the rules in the plan change (that relate to building height, east west laneway width etc) to be changed later simply though an RDA - a restricted discretionary consent. This was a new area for me. I'd always thought we were dealing with a plan change - one that changed the zoning over QE Square from public open space to another that allowed commercial development - both zonings already sitting in the District Plan. But it isn't as simple as that. What we were dealing with here is a Plan Modification (Plan Modification 79 - PM79), rather than a Plan Change. So while one thrust of the modification was to change the zoning, the other thrust was to impose some specific rules. One focus of the rules is the East West laneway that connects Lower Albert Street bus interchange (and the downtown shopping centre) to Lower Queen Street. This laneway is to be on privately owned land, but over which there is a contractual agreement with Auckland Council and AT (costing $2.5 million) whereby Precinct provides 7/24 public access. Not the same as an easement - but similar in effect. So in PM79 there are rules relating to this lane. Commissioner Dunlop was aware that these rules are development controls, and - as such, can be changed by means of a subsequent resource consent application. He wanted know, for example, could Precinct decide not to build a lane at all, and support that with an RDA, and of so, would that consent application need to be notified. These matters had not come up before.
I think the old Auckland City Council approach to CBD development control rules and similar approaches has been at the heart of how consents to build 40 storey towers can be handled without any public notification. The approach still exists in the operative district plan. There was ome discussion in the court of the Proposed Auckland Unitary Plan provisions for the CBD, but it wasn't at the heart of this hearing.
I have to say I found it very disturbing that public infrastructure - like an east west laneway, and other public interest matters - like the height control for the proposed retail development fronting Lower Queen Street, are essentially controlled by rules that can be changed by a subsequent resource consent application. They are rules that do not have the same certainty as those that are in District Plan zonings. Counsel for Precinct was at pains to convince the court that any such subsequent resource consent application would have to be publicly notified. But I'd observe the track record of public notification, and the scant regard for public interest matters (such as open space) evidenced by Auckland Council behaviour, suggest otherwise.
How good are the proposed alternative waterfront spaces?
Questioning from Judge Newhook in particular focussed attention on the funding, delivery and purpose of the proposed waterfront spaces. There are 3 on the table. One across Quay Street from the Price Waterhouse Cooper building (a new space consisting of a platform over the seabed), one broadly in front of the Ferry building (another new platform built out over the seabed), and the Queens Wharf breastworks between Queens Wharf and Captain Cook Wharf (wharf and Quay street edge infrastructure owned and used by Ports of Auckland Ltd). The court largely focussed on the first two. (Listening between the lines you'd have to say that POAL isn't going to let any of its space go anytime soon. One of the deals it was keen on was to be permitted Bledisloe extensions in exchange for Captain Cook and breastworks. While the future of the port hangs in the balance there is little chance of public space being released).
A couple of issues emerged from the discussions about the new space discussions. First, the proposed platforms would require consent. Not so easy in Auckland CBD to get consent to effectively take waterspace. Second, the priority for Council is the repair of the whole seawall that holds reclaimed land in, and the sea out. This seawall is at risk of collapse (seismic or other forces) and needs repair and strenghthening. That is the focus of the budgets that were presented to Court. It appears that work would be done by Council. Work on possible platforms would be done by Auckland Transport it appears - primarily because those platforms form part of proposals to re-arrange wharf and berthage infrastructure for ferries. (You can see that this hearing strayed into all sorts of inter-connecting areas - that was inevitable). Questions were asked about the need to provide for ticketing, where passengers might wait and suchlike. Also about what was to happen with the Waiheke wharf (to be demolished). None of these projects are easy. It is hard to escape the oberservation that the proposed public open space is little more than an expanded ferry terminal constructed on a repaired seawall. We all love waterfront spaces but they are different from CBD public spaces and perform different functions. As Commissioner Kernohan observed, you're not replacing like with like.
Key moment
There were many key moments in a hearing like this, which was conducted with a great deal of decorum and where everybody and (I think) all relevant issues got a good airing and hearing. And maybe I'll write about more of them another time. David Gibbs (Architect and CEO of the Construkt Architectural firm) is one of AAA's expert witnesses. During his cross examination he became engaged in a rather delightful exchange with Commissioner Kernohan who is himself an architect. They traversed the original Professor Kennedy Plan for the waterfront, and its emphasis on providing an East West access fronting the CPO (Britomart railway station building). The discussion included the windtree sculpture which was commissioned for the combined QE Square and Lower Queen Street space - and how it was vandalised and later relocated to Wynard Quarter (where it continues to be vandalised). It was a delightful architectural discussion. Gibbs said that because Queen Square (we used Queen Square as a descriptor to include the combination of QE Square and Lower Queen Street spaces) was enclosed it has great potential as a civic square. Then Kernohan asked a final question.
I don't remember what it was.
The court transcript will reveal it.
But I will remember David's reply for a long time.
Queen Elizabeth Square is the Yin to the Yang of Lower Queen Street.
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Sunday, July 24, 2016
Update After Day 5 QE Square Court Hearing
This posting contains a few highlights from the 5 day hearing.
In fact, the court hearing is not quite over, after 5 days and over 2000 pages of evidence and annexures. On Wednesday next week the court will hear the closing submissions for Auckland Council, Auckland Transport and Precinct Properties - these apparently deal with new matters that have arisen during the hearing. One of arose from questions from Judge Newhook about the kinds of conditions or requirements the Court might be able to impose relating to the certainty (budget and delivery for example) of the proposed waterfront spaces that have been offered in exchange for QE Square - should it be sold. In effect the Court is seeking - perhaps case law or other authorities - guiding potential decision-making - so the Court can have some authority over the Council and AT - in regard to decisions that are based on Council resolutions, and on which the future of proposed waterfront public spaces at Queens Wharf and across Quay Street from PWC building depend. That will be interesting. And because there may be new materials introduced in those submissions, Counsel for Auckland Architectural Association Inc and Urban Auckland Inc have been offered the opportunity to reply to those on the Monday following. Which will bring this comprehensive and engrossing hearing to an end. The court has indicated it will aim to produce its decision 3 or 4 weeks after that.
Can Auckland reply on Council decisions?
As mentioned above, this question kept coming up from the bench. Right from day 1 Judge Newhook raised questions about the certainty of funding for proosed waterfront spaces. He wanted to know how the court might enforce those commitments, because it's finished when it's made its decisions. Counsel for AT and Council suggested that perhaps the court might impose conditions regarding timing. I'd say, given my experience of the relationship between RMA and LAG, good luck with that. As commissioner hearing council consent applications for emergency wastewater discharges under the RMA, we were endlessly advised we were unable to do anything or decide anything that required new Council spending that had not been through the LGA and Annual Plan public processes of consultataion and decision. But you never know these days. These are strange times.
When can Plan Change rules be changed later by non-notified consent?
This was an extraordinary discovery for me. Commissioner Dunlop asked questions throughout the hearing about whether it was possible for the rules in the plan change (that relate to building height, east west laneway width etc) to be changed later simply though an RDA - a restricted discretionary consent. This was a new area for me. I'd always thought we were dealing with a plan change - one that changed the zoning over QE Square from public open space to another that allowed commercial development - both zonings already sitting in the District Plan. But it isn't as simple as that. What we were dealing with here is a Plan Modification (Plan Modification 79 - PM79), rather than a Plan Change. So while one thrust of the modification was to change the zoning, the other thrust was to impose some specific rules. One focus of the rules is the East West laneway that connects Lower Albert Street bus interchange (and the downtown shopping centre) to Lower Queen Street. This laneway is to be on privately owned land, but over which there is a contractual agreement with Auckland Council and AT (costing $2.5 million) whereby Precinct provides 7/24 public access. Not the same as an easement - but similar in effect. So in PM79 there are rules relating to this lane. Commissioner Dunlop was aware that these rules are development controls, and - as such, can be changed by means of a subsequent resource consent application. He wanted know, for example, could Precinct decide not to build a lane at all, and support that with an RDA, and of so, would that consent application need to be notified. These matters had not come up before.
I think the old Auckland City Council approach to CBD development control rules and similar approaches has been at the heart of how consents to build 40 storey towers can be handled without any public notification. The approach still exists in the operative district plan. There was ome discussion in the court of the Proposed Auckland Unitary Plan provisions for the CBD, but it wasn't at the heart of this hearing.
I have to say I found it very disturbing that public infrastructure - like an east west laneway, and other public interest matters - like the height control for the proposed retail development fronting Lower Queen Street, are essentially controlled by rules that can be changed by a subsequent resource consent application. They are rules that do not have the same certainty as those that are in District Plan zonings. Counsel for Precinct was at pains to convince the court that any such subsequent resource consent application would have to be publicly notified. But I'd observe the track record of public notification, and the scant regard for public interest matters (such as open space) evidenced by Auckland Council behaviour, suggest otherwise.
How good are the proposed alternative waterfront spaces?
Questioning from Judge Newhook in particular focussed attention on the funding, delivery and purpose of the proposed waterfront spaces. There are 3 on the table. One across Quay Street from the Price Waterhouse Cooper building (a new space consisting of a platform over the seabed), one broadly in front of the Ferry building (another new platform built out over the seabed), and the Queens Wharf breastworks between Queens Wharf and Captain Cook Wharf (wharf and Quay street edge infrastructure owned and used by Ports of Auckland Ltd). The court largely focussed on the first two. (Listening between the lines you'd have to say that POAL isn't going to let any of its space go anytime soon. One of the deals it was keen on was to be permitted Bledisloe extensions in exchange for Captain Cook and breastworks. While the future of the port hangs in the balance there is little chance of public space being released).
A couple of issues emerged from the discussions about the new space discussions. First, the proposed platforms would require consent. Not so easy in Auckland CBD to get consent to effectively take waterspace. Second, the priority for Council is the repair of the whole seawall that holds reclaimed land in, and the sea out. This seawall is at risk of collapse (seismic or other forces) and needs repair and strenghthening. That is the focus of the budgets that were presented to Court. It appears that work would be done by Council. Work on possible platforms would be done by Auckland Transport it appears - primarily because those platforms form part of proposals to re-arrange wharf and berthage infrastructure for ferries. (You can see that this hearing strayed into all sorts of inter-connecting areas - that was inevitable). Questions were asked about the need to provide for ticketing, where passengers might wait and suchlike. Also about what was to happen with the Waiheke wharf (to be demolished). None of these projects are easy. It is hard to escape the oberservation that the proposed public open space is little more than an expanded ferry terminal constructed on a repaired seawall. We all love waterfront spaces but they are different from CBD public spaces and perform different functions. As Commissioner Kernohan observed, you're not replacing like with like.
Key moment
There were many key moments in a hearing like this, which was conducted with a great deal of decorum and where everybody and (I think) all relevant issues got a good airing and hearing. And maybe I'll write about more of them another time. David Gibbs (Architect and CEO of the Construkt Architectural firm) is one of AAA's expert witnesses. During his cross examination he became engaged in a rather delightful exchange with Commissioner Kernohan who is himself an architect. They traversed the original Professor Kennedy Plan for the waterfront, and its emphasis on providing an East West access fronting the CPO (Britomart railway station building). The discussion included the windtree sculpture which was commissioned for the combined QE Square and Lower Queen Street space - and how it was vandalised and later relocated to Wynard Quarter (where it continues to be vandalised). It was a delightful architectural discussion. Gibbs said that because Queen Square (we used Queen Square as a descriptor to include the combination of QE Square and Lower Queen Street spaces) was enclosed it has great potential as a civic square. Then Kernohan asked a final question.
I don't remember what it was.
The court transcript will reveal it.
But I will remember David's reply for a long time.
Queen Elizabeth Square is the Yin to the Yang of Lower Queen Street.
In fact, the court hearing is not quite over, after 5 days and over 2000 pages of evidence and annexures. On Wednesday next week the court will hear the closing submissions for Auckland Council, Auckland Transport and Precinct Properties - these apparently deal with new matters that have arisen during the hearing. One of arose from questions from Judge Newhook about the kinds of conditions or requirements the Court might be able to impose relating to the certainty (budget and delivery for example) of the proposed waterfront spaces that have been offered in exchange for QE Square - should it be sold. In effect the Court is seeking - perhaps case law or other authorities - guiding potential decision-making - so the Court can have some authority over the Council and AT - in regard to decisions that are based on Council resolutions, and on which the future of proposed waterfront public spaces at Queens Wharf and across Quay Street from PWC building depend. That will be interesting. And because there may be new materials introduced in those submissions, Counsel for Auckland Architectural Association Inc and Urban Auckland Inc have been offered the opportunity to reply to those on the Monday following. Which will bring this comprehensive and engrossing hearing to an end. The court has indicated it will aim to produce its decision 3 or 4 weeks after that.
Can Auckland reply on Council decisions?
As mentioned above, this question kept coming up from the bench. Right from day 1 Judge Newhook raised questions about the certainty of funding for proosed waterfront spaces. He wanted to know how the court might enforce those commitments, because it's finished when it's made its decisions. Counsel for AT and Council suggested that perhaps the court might impose conditions regarding timing. I'd say, given my experience of the relationship between RMA and LAG, good luck with that. As commissioner hearing council consent applications for emergency wastewater discharges under the RMA, we were endlessly advised we were unable to do anything or decide anything that required new Council spending that had not been through the LGA and Annual Plan public processes of consultataion and decision. But you never know these days. These are strange times.
When can Plan Change rules be changed later by non-notified consent?
This was an extraordinary discovery for me. Commissioner Dunlop asked questions throughout the hearing about whether it was possible for the rules in the plan change (that relate to building height, east west laneway width etc) to be changed later simply though an RDA - a restricted discretionary consent. This was a new area for me. I'd always thought we were dealing with a plan change - one that changed the zoning over QE Square from public open space to another that allowed commercial development - both zonings already sitting in the District Plan. But it isn't as simple as that. What we were dealing with here is a Plan Modification (Plan Modification 79 - PM79), rather than a Plan Change. So while one thrust of the modification was to change the zoning, the other thrust was to impose some specific rules. One focus of the rules is the East West laneway that connects Lower Albert Street bus interchange (and the downtown shopping centre) to Lower Queen Street. This laneway is to be on privately owned land, but over which there is a contractual agreement with Auckland Council and AT (costing $2.5 million) whereby Precinct provides 7/24 public access. Not the same as an easement - but similar in effect. So in PM79 there are rules relating to this lane. Commissioner Dunlop was aware that these rules are development controls, and - as such, can be changed by means of a subsequent resource consent application. He wanted know, for example, could Precinct decide not to build a lane at all, and support that with an RDA, and of so, would that consent application need to be notified. These matters had not come up before.
I think the old Auckland City Council approach to CBD development control rules and similar approaches has been at the heart of how consents to build 40 storey towers can be handled without any public notification. The approach still exists in the operative district plan. There was ome discussion in the court of the Proposed Auckland Unitary Plan provisions for the CBD, but it wasn't at the heart of this hearing.
I have to say I found it very disturbing that public infrastructure - like an east west laneway, and other public interest matters - like the height control for the proposed retail development fronting Lower Queen Street, are essentially controlled by rules that can be changed by a subsequent resource consent application. They are rules that do not have the same certainty as those that are in District Plan zonings. Counsel for Precinct was at pains to convince the court that any such subsequent resource consent application would have to be publicly notified. But I'd observe the track record of public notification, and the scant regard for public interest matters (such as open space) evidenced by Auckland Council behaviour, suggest otherwise.
How good are the proposed alternative waterfront spaces?
Questioning from Judge Newhook in particular focussed attention on the funding, delivery and purpose of the proposed waterfront spaces. There are 3 on the table. One across Quay Street from the Price Waterhouse Cooper building (a new space consisting of a platform over the seabed), one broadly in front of the Ferry building (another new platform built out over the seabed), and the Queens Wharf breastworks between Queens Wharf and Captain Cook Wharf (wharf and Quay street edge infrastructure owned and used by Ports of Auckland Ltd). The court largely focussed on the first two. (Listening between the lines you'd have to say that POAL isn't going to let any of its space go anytime soon. One of the deals it was keen on was to be permitted Bledisloe extensions in exchange for Captain Cook and breastworks. While the future of the port hangs in the balance there is little chance of public space being released).
A couple of issues emerged from the discussions about the new space discussions. First, the proposed platforms would require consent. Not so easy in Auckland CBD to get consent to effectively take waterspace. Second, the priority for Council is the repair of the whole seawall that holds reclaimed land in, and the sea out. This seawall is at risk of collapse (seismic or other forces) and needs repair and strenghthening. That is the focus of the budgets that were presented to Court. It appears that work would be done by Council. Work on possible platforms would be done by Auckland Transport it appears - primarily because those platforms form part of proposals to re-arrange wharf and berthage infrastructure for ferries. (You can see that this hearing strayed into all sorts of inter-connecting areas - that was inevitable). Questions were asked about the need to provide for ticketing, where passengers might wait and suchlike. Also about what was to happen with the Waiheke wharf (to be demolished). None of these projects are easy. It is hard to escape the oberservation that the proposed public open space is little more than an expanded ferry terminal constructed on a repaired seawall. We all love waterfront spaces but they are different from CBD public spaces and perform different functions. As Commissioner Kernohan observed, you're not replacing like with like.
Key moment
There were many key moments in a hearing like this, which was conducted with a great deal of decorum and where everybody and (I think) all relevant issues got a good airing and hearing. And maybe I'll write about more of them another time. David Gibbs (Architect and CEO of the Construkt Architectural firm) is one of AAA's expert witnesses. During his cross examination he became engaged in a rather delightful exchange with Commissioner Kernohan who is himself an architect. They traversed the original Professor Kennedy Plan for the waterfront, and its emphasis on providing an East West access fronting the CPO (Britomart railway station building). The discussion included the windtree sculpture which was commissioned for the combined QE Square and Lower Queen Street space - and how it was vandalised and later relocated to Wynard Quarter (where it continues to be vandalised). It was a delightful architectural discussion. Gibbs said that because Queen Square (we used Queen Square as a descriptor to include the combination of QE Square and Lower Queen Street spaces) was enclosed it has great potential as a civic square. Then Kernohan asked a final question.
I don't remember what it was.
The court transcript will reveal it.
But I will remember David's reply for a long time.
Queen Elizabeth Square is the Yin to the Yang of Lower Queen Street.
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