Loophole sparks illegal planning controversy

A legal loophole has been closed over a controversial planningdecision to allow a 10-unit retirement complex to be built on an under-sized site.
A lawyer acting for protesting neighbours behind the 11th Avenue property had discovered the Tauranga City Council planner who signed off the project lacked the legal authority to make the decision - casting doubt over the project.
Although the council thought their senior planners had decision making powers, it did not take into account changes to the Resource Management Act made last August which impacted on delegated authorities.
Council planner Stephanie McNicholl, who approved the application, had also decided the retirement complex did not need to be publicly notified because she judged the effects to be less than minor.
The council moved quickly yesterday to shut down the problem by ratifying Ms McNicholl's decision - a retrospective process which chief executive Stephen Town said the council was legally entitled to do.
Other recent planning decisions made under delegated authority have also been caught out by the law change and a list is being prepared for bulk ratification by the council.
Council environmental services manager Terry Wynyard had earlier told the Bay of Plenty Times the worst case scenario was that people would have to reapply for a new consent for something that already existed. The council had assumed its delegated authorities were correct and had acted in good faith.
The vote to ratify the 11th Avenue decision was won 8-2 yesterday, with Councillors Bill Faulkner and Murray Guy opposing.
Mayor Stuart Crosby said the council needed to put certainty into the process and not reconsider the planning application.
Cr David Stewart asked whether it would have made any difference if they were looking at the application anew. Mr Crosby said it would not have made any difference. The council believed the planner had the delegated authority to make the decision.
Cr Faulkner said he was registering a protest against the current system of delegating decision-making authority to staff. The reason he voted against the delegation was to prevent this type of thing happening.
He argued the retirement complex had caused grief in the neighbourhood.
"This joins a rather long list of decisions that some people would have liked to have had input into but were denied."
The three-storeyed building will sit on a 1125 sq m site which, under the council's planning baselines, only qualified for three units. About 20 neighbours are bitter because they thought the most that would compromise their lifestyles and outlook would be three units - not a building large enough to hold 10 units.
And, despite monthly visits by neighbour Dawn Marshall to the council's planning counter from December 2003 to see if a planning application had been lodged for the site, she did not find out until after the apartments' "for sale" billboard went up last October - three months after consent was granted and 10 months after the application was filed.
The council responded to the 42-year-old lawyer's wife that it did not see how it was possible for this to have happened, given the application from Matrix Corporation had been visible on the records since December 2003.