Auckland Council is facing a backlash from homeowners and neighbours caught up in the emotional and financial fallout of a planning blunder.
An Environment Court ruling has left hundreds of homeowners and developers in limbo over building projects in the city's older suburbs, and neighbours having to consider legal action to stop works.
The Herald has learned of neighbours only finding out about possible unlawful building projects after work has started, home renovators being advised to stop work, talk of a class action against council and one long-time elderly Grey Lynn resident thinking of selling up.
A council mistake should lead to a council solution.
Grey Lynn resident Tandi Wright said her neighbour Gary, who was in his 80s and had lived all his life in Beaconsfield St, was so depressed over a renovation next door that would see him lose all his sunlight, views and privacy, that he may move.
One couple said the council had advised them to stop work on the nearly finished rebuild of their house and seek legal advice.
"Never mind the 10 tradespeople we have on the go. Never mind that every day costs money ... they are tipping us on our heads," said the couple, who did not want to be named.
The problems stem from the council's interpretation of new rules in the Auckland Unitary Plan for character suburbs.
After initially applying one set of rules, the Environment Court ruled the council needed to apply two sets of rules that gave a greater say to neighbours and tighter height, bulk and setback controls.
This has left the council advising about 430 people that there was a risk their resource consent could be cancelled by the High Court and to reapply for a new consent under both sets of rules.
Homeowners Gerald and Anita Miller outside their home and neighbouring renovation. Photo / Jason Oxenham
Neighbours affected by potentially unlawful works could make an application to the High Court seeking a judicial review. Alternatively, they could seek mediation with the consent holder.
The problem applies to consents issued between December 1, 2016 and December 19, 2017, when the council began applying both sets of rules.
Council resource consent manager Ian Smallburn acknowledged it was a very difficult situation for a lot of people, but said the council had a team of 13 staff working case by case to resolve matters quickly and alleviate people's concerns.
He said the council had undertaken 181 reviews of the 430 consents and found 73 were not affected. Twenty-four people had sought new consents and four had been approved. The others were still being assessed.
Heritage groups said the council needed to "own" the problem. Heritage Devonport deputy chairwoman Margot McRae suggested affected parties band together and take a class action against council.
Character Coalition spokeswoman Sally Hughes said the court decision showed the rushed nature of the unitary plan, where council flatly refused calls for greater public input into what happens in character suburbs in the drive for intensification.
She was furious people were now having to take court action for what should have been their right in the first place.
"A council mistake should lead to a council solution. It isn't right they are putting it back on other parties," said Hughes.
Planning lawyer Alan Webb said that morally the council should be getting in, "boots and all", and doing more to sort it out, but was switching into legal mode and saying its hands were tied.
The council, he said, was saying it had no power to undo the decisions and, at a high technical level, that was correct.
"I actually think the council is being a bit lazy and a bit disingenuous about the whole thing. There must be a way they can do something about this," Webb said.
Waitemata councillor and Heritage Advisory Panel chairman Mike Lee.
Smallburn said the council was taking concerns seriously by waiving fees for new consents and offering mediation services, but needed to consider its legal obligations.
The council would consider compensation to affected parties on a case-by-case basis, but so far no compensation had been paid, Smallburn said.
Waitemata councillor Mike Lee, who heads the council's heritage advisory panel, said the council was working under an ideology that favoured "the developer, the newcomer, the intruder" instead of mediating with the aspirations of the existing community.
The council should act under provisions in the Resource Management Act to protect the amenities, property values and civil rights of affected neighbours and the community, he said.
Retired couple wake up to find massive development stealing their sun and privacy
The large renovation overlooking the Miller's home in Rattray St, Devonport. Photo / Jason Oxenham
Two months after Gerald and Anita Miller moved into a villa in Devonport for their retirement they woke up one morning to find scaffolding going up on their boundary.
In no time at all, the scaffolding was wrapped in plastic to create a two-storey high wall, affecting the morning sun and privacy of their backyard. Neighbours on the other side have lost the afternoon sun.
The developer, the Viet Trust, is converting a neglected villa with a bungalow plonked on top into two flats with four bedrooms each and one car park in quiet Rattray St, a cul de sac off Devonport's shopping village.
When the couple rang council to find out "what the hell is happening", they were told the developer did not have to notify the neighbours because the do-up was within the rules of the unitary plan.
The Millers disputed this, saying the development had gone back 6.3m overlooking their property, well beyond the permitted 2m of the old lean-to. The council has now told the developer the plans required a new resource consent.
"Work should be undone and built to the specs and proper rules," says Gerald, a retired farmer.
"What I'm afraid of is council will say we made a mistake, sorry about that, here's your new consent and walk away," he said.
Anita does not blame the developer, a local businesswoman, who came by last week and asked the couple to sign approval for a new consent.
"That was a fairly short conversation. We wouldn't sign. I would like to see work stop and a new consent considered properly with input from neighbours," she said.
The couple were planning on getting legal advice and were wary of an offer by council to facilitate mediation between consents holders and neighbours.
"We don't have much faith in council. We've already been betrayed once already," Anita said.
A member of the Viet Trust, who would only give her first name, Jane, was not happy with the council requiring the trust to get a new resource consent, saying it was not fair and incurred extra costs for a planner and architect.
Council resource consent manager Ian Smallburn said the council had received an application from the developer for a new consent and was assessing it.
Talking generally, he said, if the council felt a neighbour was adversely affected then the consent would be limited notified and that person could make a submission which would go to a hearing for a decision by independent commissioners.
Devonport Heritage deputy chairwoman Margot McRae said the Miller case was a personal disaster that should never have happened.
"A solution has to be found and it probably does involve taking apart some of the extension."
