Paihia waterfront. Photo / RNZ, Peter de Graaf
By Peter de Graaf - RNZ
A group of Paihia property owners are taking their council to court over a proposed new heritage rule requiring a resource consent to dig a hole more than 500mm deep.
The landowners, whose informal Far North Community Group so far has 33 members, said they were “blindsided” by the proposal.
Spokesman Ian Palmer said when the Far North District Council first proposed expanding the district’s nine heritage areas in 2021, it made no mention of a 500mm rule or indeed any limit on excavation depth.
Instead, the heritage area earthworks limit was based on volume, with any excavation of more than 200 cubic metres triggering the need for a consent.
At that time, most objections were related to the proposed expansion of heritage areas to cover wider areas of towns such as Paihia and Mangōnui.
The second round of submissions in 2022 still made no mention of a depth rule.
Palmer said property owners first heard of the 500mm rule in April this year – long after consultation on heritage areas had closed.
The proposal was impractical, because even digging a posthole for a fence or deck would typically go deeper than 500mm, and therefore require a consent.
He said the rule also didn’t make sense from a heritage perspective, because in a recently settled country like New Zealand, most archaeological remains were found in the top 500mm.
Palmer, whose Mangōnui property was also in a heritage zone, said the group had asked the Environment Court to issue an interim enforcement order.
If granted, that would stop the council progressing the heritage rules, until the court had a chance to consider the group’s request for more substantial orders.
Palmer hoped the council would be ordered to renotify the Proposed District Plan heritage rules and seek fresh submissions.
An interim enforcement order in the Environment Court is similar to an urgent injunction in other courts and is typically used by councils to order companies or individuals to immediately stop activity that is harming the environment.
However, Palmer believed the law could be used the other way around, by individuals who wanted to stop councils acting in ways they believed were unlawful. He did not know if the law had been used successfully in that way before.
“Our understanding of the law, under the RMA, is that once a council notifies a proposed new plan, if they want to change it significantly, they have to renotify it and invite submissions again,” he said.
“They didn’t do that and that’s the essence of our claim, but what we really want is for them [the council] to dump the whole expanded heritage areas and start again, using reputable, local heritage experts.”
The Environment Court confirmed to RNZ it had received the group’s application on Friday and a judge was considering it, although the decision’s due date was unknown.
Palmer said the council had used a private, Auckland-based consultancy to develop the proposed new heritage rules. That company had since gone into voluntary liquidation.
A Hearings Panel was currently considering the heritage proposal and, unless the court ordered a halt, it would make a recommendation for councillors to vote on next May.
However, at a candidates’ meeting in Kerikeri on Wednesday night, councillor and hearings panel member Hilda Halkyard-Harawira told the public not to worry about the 500mm rule, because it would be voted down.
RNZ asked the Far North District Council for comment.
Earlier, planning and policy group manager Roger Ackers said the council remained committed to progressing the Proposed Far North District Plan, which was now well advanced.
He said it was important to note that the heritage rules, which formed part of the plan, were now being considered by a hearing panel.
“No decisions have been made at this stage of the process,” he said.
Once a decision had been made, people who did not agree and had previously submitted against the heritage rules had the right to appeal to the Environment Court.
People who had not previously submitted could still have a say at that point, by working with an existing submitter, Ackers said.
The council had previously said 179 Paihia properties could be affected by the changes.
The total number of properties that could be affected by the 500mm rule across the district was not known, but the Far North Community Group estimated it was about 2000.