All you wanted to know about the "missing clause" but were afraid to ask
David East was interviewed on Newstalk ZB about the omission of clauses in the District Plan and why he faces a code of conduct hearing. This was a straight forward and honest interview by Councillor East.
This omitted clause in the District Plan is a complicated issue, so to help understand it better here is some back-ground information on why the omitted clause is so very important.
In 2016 the Independent Hearing Panel (IHP) sat and considered all evidence on the HFHMA (High Flood Hazard Management Area) in Chapter 5 of the District Plan.
This was a very complicated process and the local community were at a distinct disadvantage as they did not have the legal representation or access to experts of which the CCC (Christchurch City Council) could provide. Nevertheless, the community and CCRU (Coastal Citizens Residents’ United) prevailed.
The IHP considered evidence from both sides. CCRU stipulated that coastal areas should not have been in the HFHMA as this was primarily designed for high risk flood water areas that would have a rapid rise in water (flooding from rivers) and that may pose an immediate risk to life. CCRU argued that while sea level rise was important to consider, it was slow onset, therefore not an imminent risk to life, and could be adapted to.
The IHP agreed somewhat and stated that the CCC version of the HFHMA was too onerous and that it was not taking in to account the varying risk levels including not much immediate risk at all, and was trying to apply all as immediate risk to life.
For this reason, the IHP asked the CCC to act as a ‘drafting service’. This means purely to write a policy with no view. The Panels (IHP) stated expectation was that the CCC would draft a new rule for the estuary coastal areas that would sit over top of the HFHMA rules, and would give relief to those in the estuary area to build, and extend, as, in the IHP view, these did not pose such a risk to life as river areas. This would be called the RUO- The Residential Unit overlay.
The Panel instructed CCC what rules they wanted them to draft in regards to the RUO and stated that while the panel knew the CCC would being doing the drafting under duress (being they did not agree with the rules) they should follow the Panels’ instructions and then would have a chance at the end to voice their concerns through policy riders.
The original draft had the following clauses:
4.3 It is considered that the existing policy framework contained in Chapter 5, in particular Policy 220.127.116.11(b) will require amending to support the draft RDA rule. I suggest the amended wording below:
In High Flood Hazard Management areas:
(a) provide for development for a residential unit on residentially
zoned land where appropriate mitigation can be provided that
protects people's safety, well-being and property; and
(b) in all other cases, avoid subdivision, use or development
where it will increase the potential risk to people's safety, wellbeing
These above clauses were agreed upon by the Panel and it was their expectation- confirmed by Judge Hansen’s recently released letter- that this is what would be in the final plan. The CCC submitted their final draft, BUT with clause (a) missing.
18.104.22.168.1 Policy - Avoid new development where there is unacceptable risk
1. Avoid new subdivision, use and development, including new urban zonings, where the risk from a natural hazard is assessed as being unacceptable.
This has lead to the planners having no choice but to apply “avoid” to all activities. The community were perplexed as to why they were getting refused consents when the IHP clearly gave them a set of rules as Decision 53 of the Panel explains, that enabled the planners to give consent to building in the RUO under RDA rules. All other applicable maps and rules that are needed are in this section of the plan, but because (a) provide for development for a residential unit…. was left out, the CCC stipulated that none of them could be applied because they must “avoid”.
This is how it works, like the layers of a cake.
1- At the bottom, there is the FMA (Flood Management Area) overlay- this is over many areas of the city. It informs what the height of your house must be off the ground.
2- Overtop of that sits the HFHMA. This includes several areas that are riverside, Aranui, Styx Mill, Moncks Bay and the Estuary side. The rules in this overlay for building are non-compliant. Meaning, it is very hard to comply to build.
3- Sitting on top of the HFHMA in certain areas, is the RUO. Under the Panel's instructions it should have had Restricted Discretionary rules applied, as apposed to non-compliant rules (because of the omission).
The Panel, recognising that the estuary areas were different as they were not going to get flash floods, were seen as less ‘risk to life’. The Panel said, ‘we will give you people less onerous rules. You will still have rules such as in Restricted Discretionary, but they will not be so tough. You will be able to rebuild and extend under certain conditions.’
It must be said here that not all of Redcliff, Southshore or South Brighton are in the HFHMA. The beachside houses of SouthShore and South Brighton are in the FMA only, just like many other parts of the city.
Judge Hansen has said this error has allowed “CCC to take a course that has denied landowners within the RUO the relief clearly granted by the IHP” and indicated that the omission of the clause is an obvious oversight, and that it should be corrected.
The recent RMA (Resource Management Act) hearing outcome regarding the CCC interpretation of the same RUO stated, “in our view the application of a strict avoidance would result in an absurdity that would move perilously close to a prohibition “.
Legally, CCC at this point are unable to change the plan themselves and would need to reach out to the minister for this to occur.
CCRU approached the CCC several times regarding the omission of this clause and asked CCC to partner them in getting it rectified. The lack of will for action lead to CCRU approaching both Regenerate, MP’s and community boards for support in approaching Minister Wood and asking her to use her discretion under Section 71 of the Regeneration Act.