KEY POINTS:
The Auckland City Council has taken the rare step of publishing legal advice to defend growing criticism over lifting demolition controls for thousands of heritage homes.
Advice from council lawyers Simpson Grierson and David Kirkpatrick has appeared in the council's weekly news sheet, City Scene, under the headline
"Protecting heritage from legal challenge".
The article said Simpson Grierson suggested a "more targeted approach" for demolition controls in the heritage zone covering affluent, leafy suburbs such as Remuera, Epsom, Parnell, Herne Bay, Mt Albert, St Heliers and Kohimarama.
The advice was reviewed by barrister David Kirkpatrick, who said there were risks trying to defend the demolition controls. Prospects of success in the Environment Court were low, he said.
The council did not respond to a request by the Herald for a full copy of the legal advice.
Heritage groups and residents are outraged at plans by the council to lift demolition controls on 4128 of the 8112 houses in the Residential 2 zone.
The council undertook a "fine-grained analysis" of the heritage zone with a view to settling a legal row with three Remuera lawyers, Derek Nolan, Brian Latimour and Tim Burcher. The lawyers oppose the new rules that require people to obtain resource consent before removing or demolishing pre-1940 homes in the zone, and have lodged an appeal in the Environment Court.
Planning lawyer Richard Brabant, who is seeking to join the court action, yesterday acknowledged that some houses did not meet the standard for demolition or removal, but did not believe the council was acting on sound advice.
He said the so-called "garden suburb" test had no basis. Nor did he accept the criteria used by the council - visibility from the street and clusters of houses, and was alarmed at the wholesale changes being proposed.
Mr Brabant also questioned the council for selectively quoting from a commissioners' report that approved the new rules.
In the article, city development chairman Peseta Lotu-Iiga said the commissioners had predicted difficulty in assessing the character of Residential 2 homes and called for greater analysis to coincide with a review of the district plan next year.
"Rather than wait, we have undertaken a street-by-street assessment, which provides the basis for our proposed changes," Mr Lotu-Iiga said.
Mr Brabant said people needed to read the whole report, including a statement from the commissioners "that the conservation of the heritage/landscape qualities of identified residential areas was justified".
The Herald has asked the council to release any advice about the appropriateness of a blanket ban at the time of drawing up the rules in 2005, and has not received a response.
Lawyer John Hart, who lives in a 126-year-old villa in Epsom, said the council should "have more balls" and stand up to the Remuera lawyers.
"Our neighbourhood ... has suffered enough as a result of the construction of ugly townhouses and other dwellings by developers with the blessing of the council," he said.
City Vision councillor Glenda Fryer is pressing city development general manager John Duthie to allow people to address the council with their concerns after feedback closes on August 7.
She said groups like historical societies, which were not part of the Environment Court appeal, might have evidence to help the council decide which streets or clusters of houses should be protected.
Parnell Heritage spokeswoman Kate Tolmie-Bowden, whose group is also seeking to join the fight in the Environment Court, said the City Scene article showed the council was caving-in.
"We should not be saying we will give away half of the protection because some lawyers have said it may be a problem," she said.