Putting people in emergency housing for longer than 28 days in some Rotorua motels is breaching the city's district plan, a Rotorua barrister says.
Rotorua MP Todd McClay said the lawyer's legal opinion showed the Government was trying to sweep Rotorua's homeless problem under the rug.
Rotorua Lakes Council admitted it was aware of the problem - pointing out it was not just an issue for Rotorua - but said it would not change the district plan. The council said it was working with Government agencies and ministers on a solution.
Rotorua barrister Kevin Badcock has prepared a legal paper on the use of tourist accommodation as emergency housing in Rotorua.
In it, he said the council was not complying with its obligations under the Resource Management Act and was taking a "hands-off" approach to enforcing non-compliance with the district plan.
The paper said there were legal issues when land and buildings in a commercial zone, which is the tourism accommodation zone along Fenton St and Lake Rd, have people staying on a non-temporary basis.
Under the district plan, the zone allows temporary tourist accommodation by paying guests for no more than 28 days.
Many of the emergency housing clients are staying in the motels for longer periods.
Section 84 of the Resource Management Act provides that local authorities are to observe and enforce policy statements and plans. Badcock said in his paper there was no evidence of the council complying with its obligations under the Resource Management Act.
Badcock was prompted to look into the issue after seeing Rotorua mayor Steve Chadwick's comment in the Rotorua Daily Post that it was not the council's business to tell motel operators who they could and could not rent their premises to.
He said that comment didn't seem right to him as he was certain the council could dictate such things under the district plan.
"I started doing some research and every avenue I turned came to the conclusion that it's an unlawful use of those motels."
"Seems to me it's an unlawful use and a breach of the district plan and the problem with that, from the council's perspective, is the RMA forces them to enforce the plan."
Badcock said he was not paid by anyone to do the legal paper, was not politically motivated and did not have an "axe to grind" against the council but, like many residents, he was concerned with what he was seeing in Rotorua.
"The intention is to start pushing things along and getting some resolution to this ... What concerns me is the abnormal will become the normal in due course. If the answer in short term is to put homeless people into motels and we don't have enough housing that quickly becomes the norm and we don't need to build houses."
Rotorua Lakes Council chief executive Geoff Williams said as the use of motels for emergency housing had increased, so had the potential for breaches of the district plan.
"This is something we have been discussing with central government as an emerging issue since late last year.
"This is a challenging situation as we try to balance our community leadership role to be part of developing long-term solutions with our regulatory role."
Williams said the current work alongside government officials, which began last month as directed by Housing Minister Megan Woods, would help to manage the short-term situation and provide medium and long-term solutions.
Williams said the Government's current approach to emergency housing did "create some challenges with the district plan" but this was not an issue that is confined to Rotorua.
He said Badcock's paper simply set out what was already in the district plan.
"Council is very aware of what's in the plan and we're focused on working with central government, iwi and others to find long-term solutions that do not involve motels. We doubt that in the meantime our community wants to see children and families being turned out of motels and on to the streets."
Williams said the council did not intend changing the district plan as the current use of motels was not a viable long-term solution and district plan changes could take several years if there were appeals.
Chadwick was asked by the Rotorua Daily Post if she still believed, given the contents of Badcock's legal paper, it was not the council's business to tell motels who they could rent their premises to.
In a written statement, she said: "I am aware of what the community is saying and the concerns that they are raising with [the] council, including what has been outlined in Mr Badcock's paper."
She said she had been lobbying "with a sense of increasing urgency" for solutions for Rotorua and she was pleased the Government has listened to the calls. She said there was now a team working in Rotorua alongside the council and iwi to come up with better options.
"The fact is that for the first time in our country's history, we are confronted with the reality that a generation of New Zealand children is growing up in motels – this situation is untenable.
Rotorua Motel Association chairman Mike Gallagher said he was not aware of the paper or any legal issues with motels offering emergency housing.
He said if the practice was deemed to be in breach of the district plan, he was sure the council would quickly make the changes necessary to allow it to continue.
"These people need a roof over their heads and no one is going to turf them out on the streets. (Prime Minister) Jacinda (Ardern) would never allow that to happen and rightly so."
But McClay said the legal hiccup, in his view, showed the Government did not know what it was doing when it put people in motels.
"They are sweeping aside rules that are important to keep communities safe and are continuing to dump their homeless problem in Rotorua."
McClay said he was surprised the council had not taken such breaches of the district plan more seriously.
"If one of the motels put up a sign in the wrong place, the council would threaten to take them to court for breaching the district plan, I'm sure. I think local people are right to think the council should be doing its job properly. This is a serious issue."
He said allowing it to continue for this long was "totally unacceptable".
"The council cannot turn a blind eye. It needs to enforce the rules of the district plan and the Resource Management Act or somebody will take them to court.
"The point is what is going on is not okay for the residents in that area and we saw that with the public meeting. The council has an obligation to either enforce the Resource Management Act or urgently do something about it."
Woods was asked if the Government was aware of the issue and if it was doing anything to ensure the money it was paying was going to businesses being lawfully run.
However, she declined to comment and referred the Rotorua Daily Post to the Ministry of Social Development.
The ministry was asked the same questions and housing general manager Karen Hocking responded in a statement saying its role was to ensure people with no other housing options were supported into emergency accommodation, usually motels.
She said motels were not a permanent solution but some people were staying for longer periods.
"Many New Zealanders only use motels for a short time depending on availability in the rental market.
"This is not ideal, but it is extremely important to us that people are not left to sleep rough or in cars, while the Government works to provide more housing solutions."
She said compliance with the district plan was the responsibility of the local council but each agency had a specific role to play in alleviating pressure on housing.