KEY POINTS:
The current debate over the protection of pre-1940 houses against demolition and removal in the Residential 1 and 2 zones of Auckland City (known as Plan Change 163) has arisen because the majority of property owners and residents in the areas have ceased to tolerate a minority -
the minority who would seek to exploit the character and other amenity values of the areas, but in the process destroy those values.
So, there are those who want to enjoy the established ambience of the areas but prefer to do so through the plate-glass windows of their modern houses.
Then there are property developers who don't really care about the ambience of the areas other than as a means to make money by chipping away at them with more intensive and non-conforming developments.
Developers know that if they bought up whole blocks of the area and tried to remove all the houses at once, they'd not get away with it.
There is, anyway, good money to be made by parasitic development - that is to say, feeding off the established character of the area by selectively removing vulnerable properties.
Plan Change 163 is no different in kind to any other zoning restriction, such as one that stops individual property owners from putting commercial buildings into residential zones, or erecting a tower block in a low-rise residential zone. All such restrictions are likely to reduce the value of the property of an owner who wants to stand apart from the scheme.
But letting individual owners depart from the scheme also shifts part of the collective value of the area to that individual. There is nothing in the history of the common law that privileges the individual owner against zoning that is adopted democratically.
One can expect too that Plan Change 163 will operate more flexibly than a use, or a height, zoning when discretionary applications for departure from the scheme are made.
It has been argued in relation to the Residential 2 zone that it is already a low-density zone and strict criteria apply to replacement homes, in a way that makes Plan Change 163 unnecessary.
But part of the argument of those opposing the plan before the Environment Court is that the low-density housing that existed in 1940 is not sustainable, which rather belies the argument that Remuera will remain a leafy and pleasant land despite the plan.
There has, of course, been a change of Auckland City Council since Plan Change 163 was approved, but I venture to suggest that the plan retains broad support, not just from outsiders (including tourists) who might visit the areas to admire them, but also from the valued ratepayers who reside within them.
This is an issue that cuts across party lines. Certainly, when the plan went through the planning process there were few objectors (including notably the organisation that represents the house-shifting industry). It is not as if this were not a live issue at the time, and the Herald contained regular stories reflecting community concern about the rapid disappearance of heritage buildings in the zones.
Central government, too, has imposed statutory obligations on local authorities to recognise and provide for the protection of "historic heritage", a concept that is defined to include historic areas as well as single sites.
* Peter Watts, a professor of law at the University of Auckland, is also a party supporting Plan Change 163 before the Environment Court.
