The issue of the 15 metre setback from MHWS (Mean High Water Springs) placed on private estuaryside properties.
At the heart of this issue is the belief by property owners that, if a local body wishes to place a setback on their private property, then they should be notified, consulted or at the very least informed. A very simple concept, which property owners believe to be a basic democratic premise, a basic premise of natural justice, and a premise expressed in the spirit of the law. So when in late 2009 property owners discovered that Tauranga City Council had placed a setback on their properties without their knowledge, there was much anger. Some property owners therefore took the position that any setback imposed on their properties without their knowledge should be challenged and took the position that they had a right to know to last detail how such a thing could have happened in a supposedly democratic society.
How such a simple issue could result in a six year dispute beggars belief. So it is very important to record how this dispute unfolded over six years as it shines a light on the nature of local government:
Late in 2009 the Tauranga City Council (under Mayor Crosby) offered workshop meetings to explain to residents how the proposed 2009-10 Tauranga City Plan would affect their properties. Several estuaryside residents took the trouble to attend these workshops and were informed that there were no issues affecting their properties other than flooding zones. Despite this, soon afterwards, Waimapu estuaryside resident Mr Hylton Rhodes, wrote a letter to the Editor of the local newspaper, alerting residents that the 2009-10 Tauranga City Plan proposed to place a setback on private estuaryside property, in contradiction to the assurances made by TCC planners at the workshops. TCC were forced by this disclosure to clarify the situation by sending a letter to all estuaryside residents, and eventually property owners learnt that the 2009-10 Tauranga City Plan included a proposal to increase the "existing” 15 metre setback from MHWS to 20 metres. This caused consternation among many property owners because they had no idea that their properties were already subject to an "existing” 15 metre setback from MHWS. In response to this new revelation many property owners submitted their opposition to setback on their properties. Over the summer of 2009-2010 Welcome Bay residents were canvassed and not a single property owner was found who had been aware of the 15 metre setback placed on their property. Many were dismayed that the unencumbered freehold properties that they had paid good money for had become subject to setback without their knowledge. This concern was also expressed in 2010 during the oral submissions of the 2009-10 Tauranga City Plan. I and at least one other submitter enquired about the 15 metre "existing” setback that no one appeared to know about. We were informed that the 15 metre setback had been placed on our properties in 1997. Quite some time later we were informed that the 15 metre setback had been imposed as part of the 1997-2005 Tauranga District Plan. We were also informed by Mr Crosby and by his planners that the 1997-2005 Tauranga District Plan had involved an appropriate consultation process and that there was no cause for property owners to feel in any way aggrieved. However, many property owners were suspicious of this claim because no person could be found who was aware that any consultation had taken place. It was generally felt that the number of submitters to this 'consultation' must have been in fact very low, but just how low would not be disclosed for some years. Because of the suspicion that Mr Crosby and his planners were being dishonest, I and the WBWA, a small association of Welcome Bay and Haukore Street residents that was slowly forming at the time, felt obliged to challenge this claim. It was proposed that we lodge an appeal to the Environment Court (along with any appeals of the 2009-2010 City Plan) to the affect that we could not accept a setback that had been placed on our properties without good faith consultation. However, there was some confusion as to whether the Environment Court could deal with an issue involving a prior process (namely the 1997-2005 Tauranga District Plan). Some property owners were given to understand that the Court dealing with appeals of the 2009-2010 Tauranga City Plan could not deal with a prior process, so I sent a letter to the Environment Court explaining that our appeal of the 15 metre setback on the grounds that there was insufficient consultation related entirely to a previous plan (1997-2005) and did not relate in any way to the 2009-2010 City Plan. I was informed by the Environment Court that I should include this appeal nonetheless, which I did. (In addition to this appeal of a prior process, there were two appeals relating to the 2009-2010 City Plan and concerning the status of the (contentious) setback on private property in relation to the status of TCC harbourside reserves.)
Tauranga City Council persisted with the claim that waterside ratepayers had been well served by the 1997-2005 Tauranga District Plan consultation and in 2011 it was asserted that the setback proposal of the 1997-2005 Tauranga District Plan had been widely consulted and widely accepted. Nevertheless we were still deeply suspicious of this claim because TCC had not provided any evidence to define what was meant by an appropriate consultation or by a widely accepted outcome.
The appeal of the prior process duly went to the Environment Court, along with the appeals of the above mentioned aspect of the 2009-2010 City Plan. The Environment Court Judge, Jeff Smith, dismissed the appeal of the prior process, ruling that no redress of our grievance was available through the Environment Court or by the letter of the law. In his ruling he made two important statements: that "wide consultation is recommended” and that after a certain period of time "the Operative Plan is not susceptible to any arguments by ratepayers as to invalidity." This seemed to provide an explanation as to why TCC (and Mr Crosby in particular as we would later find out) went against the principle of "wide consultation" in favour of withholding information, namely that if the measure could be kept secret long enough, all opposition would be extinguished. It also seemed to explain why, at TCC workshops arranged for the 2009-2010 Proposed City Plan, information about Mr Crosby's plan to increase the 15 metre setback, which no one appeared to know about, to 20 metres was similarly withheld. Plans to keep this measure, as the previous measure, under the radar, however, were thwarted when soon afterwards the above mentioned letter appeared in the BOP Times, in response to which a very large number of submitters opposed the increase. As a result of the judge's comment that "wide consultation is recommended” property owners maintained their belief that they should have been notified, consulted or at the very least informed, of TCC’s plans to place setbacks on their property. The complainants continued to have difficulty reconciling the statement that "wide consultation is recommended” with the fact that no one could be found who had been aware of any "wide” or good faith consultation, despite Mr Crosby’s assurances that such a consultation had taken place.
After the failure, as expected, of the Environment Court to resolve the issue of the original setback, property owners decided to explore other avenues of redress. This involved further correspondence with the Mayor and his planners, who responded dishonestly:
1. They claimed that our appeal of the original 15 metre setback related to the 2009-2010 proposed Tauranga Plan consultation. This was dishonest as neither I nor the WBWA ever challenged the 2009-2010 consultation process, although we were very critical of the unprofessional way it was conducted during its early stages (see above). I had made it perfectly clear to the Environment Court that the appeal of the 15m setback related to a prior process (1997-2005) entirely and related in no way the 2009-10 Plan. (Obviously we had no problem with the 2010 City Plan consultation as the proposal to increase the "existing” setback to 20 metres was dropped by TCC in response to the strong opposition that this proposal provoked.)
2. They claimed that residents, in submitting to the 2009-10 City plan, were endorsing the existing 15m setback. This assertion was rejected by every property owner that was canvassed in the Welcome Bay and Waimapu area.
3. They claimed that the 2009-10 consultation was a confirmation of the earlier plan; but the only information forwarded to property owners in 2009 was that the 2009-2010 City Plan proposed to increase the "existing” setback from 15 metres to 20 metres. We requested from TCC any literature that supported their claim that the 2009-2010 City Plan proposed to re-negotiate or to ratify the 1997-2005 setback, but their failure to provide this information led us to believe that we had yet again been dealt with dishonestly.
Meanwhile the concern over the issue began to spread beyond Welcome Bay and Haukore Street to include complainants from other parts of Tauranga. This enlarged group of up to 100 residents believed that the issue was important enough to take to the Ombudsman’s office. At the same time the group made a request to TCC for information about the 1997-2005 setback consultation. CEO Mr Poole’s response was that the group should pay for any information that would throw light on how a setback had been placed on their properties without their knowledge, and suggested that the group should pay a fee of a minimum of $330 and no limit with regard to the maximum. The group opposed this cost and added this component to its complaint to the Ombudsman’s office. Eventually, perhaps in response to this, TCC relented and provided the information the group had sought about the 1997-2005 Tauranga District Plan setback consultation. It would not be an exaggeration to say that property owners were shocked by this information. The information revealed that the person whose responsibility it had been to notify affected parties of the proposal to place a large setback on their private properties was 'Councillor Stuart Crosby (Chair of the Corporate Strategy Committee which determined the policy provisions and process to be used in developing and notifying the Proposed District Plan)'. This seemed to explain why he was particularly intransigent and unapologetic about the way the setback had been imposed without property owners' knowledge. The information also revealed that a four page circular about the Proposed District Plan had been distributed generally throughout Tauranga but not specifically to property owners. A group of complainants took a close look at the circular and found that the document studiously avoided any reference to setback being placed beside estuaries and, most importantly, studiously avoided any reference to setback being placed on private property. The unanimous view of the group who reviewed this circular was that it would have been impossible for any property owner to have known or even inferred that TCC was planning to place a setback on their property. Bearing this out was the disclosure - the most damning part of the information provided - that TCC had not received a single submission from a single property owner! Finally property owners had full possession of the facts, namely that Mr Crosby and TCC had not provided a single syllable of information about the setback over a period of 12 years; that Mr Crosby and TCC had not provided a single syllable of information before, during or after the so-called consultation. There was disgust that TCC had been dishonest in effectively saying over a period of years that an appropriate consultation was one in which no one took part. The complainants wanted to know why Mr Crosby had not notified property owners in good faith; they wanted to know why he and Mrs Dillon persisted with a consultation that did not include a single property owner rather than take steps to remedy this situation; why, when property owners were conspicuous by their absence, did these two local body politicians simply close their eyes and proceed with a meaningless consultation?
Mr Crosby did not appreciate having these questions put to him. His responses were generally perfunctory and he was clearly unsympathetic to our community. He claimed that the Environment Court case had dealt with the issue "de novo” and that therefore the issue was closed. When he was asked how the Environment Court case was relevant to the members of the group who did not take part in it and who therefore had had no redress of their grievance, he claimed that this and the above questions were bordering on being "frivolous” and "vexatious”, or in other words, that the complainants’ concerns with regard to this issue were not genuine or sincere!
The claim by Mr Crosby that the Environment Court case had dealt with the issue of the prior process "de novo” needs scrutiny. Firstly, many of the complainants were not involved in this case, and some had even been given to understand that the Court could not deal with a prior process. Secondly, at no point during the case was I as appellant aware that the issue of the unconsulted setback was being dealt with "de novo”. It was apparent during the Court case that TCC was devoting much of its $100,000 of ratepayers’ money to convincing the Judge that it was taking exemplary care of our estuaries (See Environment Court), but it was presumed that this was in relation to the two appeals relating specifically to the 2009-2010 City Plan, namely the status of setback on private property in relation to TCC’s harbourside reserves. Thirdly, the issues that were raised at mediation with regard to the setback were not even introduced into the Environment Court case. Fourthly, the Environment Court case did not resolve the issue for our community because at the time of the Court case TCC’s official position was that an appropriate consultation had taken place. The information that contradicted this claim was not received until a long time after the Environment Court case had concluded and so had not been considered in the Court. Lastly, at the end of the court case, the situation remained unchanged and individual property owners had still not been personally involved in decisions taken against their own private property. They could still not reconcile the statement that "wide consultation is recommended” with the fact that not one syllable of information about the setback had been provided them over a period of 12 years! Some residents had found that part or all of their very houses had become subject to setback, yet they had not been deemed important enough to have been notified, consulted or even informed! Over a period of 12 years property owners had not been deemed important enough to merit the cost of a single letter and stamp.
Nevertheless both Mr Crosby and Mr Poole persisted in their position that the Environment Court case had extinguished all rights for anyone, including those who had not been involved in the Environment Court case, to seek redress. Every request for redress was rejected with the phrase: we are not prepared to "relitigate” the case. No matter how many times we said that we were not interested in relitigating the case, they refused to listen and kept parroting this catch phrase. These claims again proved to be dishonest, because the Ombudsman’s Office informed us that redress could be achieved through "change of plan”. This was a new concept for the group, as TCC, during its 12 year period of silence and secrecy on the 15 metre setback issue, never informed property owners of their right to seek "change of plan”.
On the advice of the Ombudsman’s Office, therefore, the group sought redress through the mechanism of change of plan. In response to this, Senior Planner Mr Larking briefed Councillors on the issue. He informed Councillors that I and my fellow appellants had requested in our appeal to the Environment Court that there should be no setback. This was extremely dishonest, as the Appeal was that there should be no setback without consultation. He was forced to retract his statement and then stated that the appellants had sought that there should be only a small setback. This was also untrue, because, with the failure of mediation, the appeal that proceeded to the Environment Court was in its original form, namely that any setback on private property should be consulted.
The collective request for change of plan was put to TCC, which had, as mentioned above, been briefed by Mr Larking. Five Councillors, Crs Curach, Stewart, Grainger, Mitchell and Robson supported the group by acknowledging that the issue was one that could be or should be addressed in some way. However, Mr Crosby, Crs Clout, Morris, McIntosh, Edlin and Cowley voted against the group, holding that no members of this group merited having the issue addressed or redressed. Before the vote, Councillor McIntosh revealed her disdain for me and by extension for the whole group, from which it was concluded that she did not think that New Zealanders should have the audacity to challenge their politicians.
In the event the Ombudsman’s Office did not take up the group's complaint but it was conveyed in their correspondence to the group that they were not endorsing the way Mr Crosby and TCC had carried out their 'notification' and 'consultation' of the 1997-2005 Tauranga District Plan.
After Council voted against the group by a narrow margin, I submitted an individual request for change of plan to CEO Mr Poole. He rejected it, dishonestly claiming that I had no right to do this. I responded by saying that the Ombudsman’s office disagreed with his position and had advised that property owners did have the right to apply for change of plan. So I resubmitted the request to him but he again rejected it because it was not in the right format.
After six years property owners are still seeking redress of their grievance. All they have received so far has been an education. They have learned that there is an unbridgeable gulf between the values of a community of ordinary New Zealanders and the values of Mr Crosby and TCC (or at least some members of it). Most concerning of all has been the ethical dimension of the issue. TCC’s response to property owners' concerns has been characterised by dishonesty and a lack of integrity.
So why is democracy so important to waterside property owners? Firstly, there is the bitter lesson of history. The decision of TCC in the late 1970s to install a sewerage scheme in the Welcome Bay estuary rather than on land was taken without proper consultation and this resulted in devastating environmental harm to the estuary. Some resolved that this type of decision making should never occur again, which unfortunately it did, despite their vigilance. Secondly, by not giving property owners the opportunity to submit to the setback proposal on the basis of their own individual properties, TCC was able to adopt a lazy, 'one size fits all' measure that is notable for its unfairness. Why should some property owners be entitled or allowed to develop almost to the water's edge, while the domestic property shown below, whose waterfront was completely destroyed by TCC in 1979-1980 and repaired by its owners, has had one of the largest setbacks, if not the largest setback, in the whole of Tauranga placed on it? The only way to make sense of this is to conclude that the real purpose of the setback is for TCC to gather revenue. This view is widely held by property owners and seems to be borne out when TCC's overall environmental record is examined.
Lines written to Crosby-Brownless-Dillon upon learning that Tauranga City Council had imposed a large arbitrary setback on private property without consultation and on the pretext of environmental protection:
They look at the map
And draw some lines;
And they are well pleased,
The planners, bureaucrats, accountants,
Councillors, Deputy Mayor and Mayor:
The lines look good on the lifeless paper.
Best not look beyond the map,
Lest you see,
A living world,
Where easily drawn lines
Lest you see,
An estuary sick with neglect;
And lest you see beside that estuary
A property whose beauty and fragrance
Of trees and flowers and memories
Can never mask
The stain and taint