This was written by Bob Dey on the 19th of November 2010 after the council approved the Westfield expansion plans.

Published 19 November 2010

When the new Auckland Council approved Westfield (NZ) Ltd’s private plan change to double the size of the St Lukes mall on Wednesday, the decision came with a great deal of debate & position-stating.

While the council is likely to be able to work far better as a unit than many of its predecessors, political stances came to the fore in this debate.

The mayor, Len Brown, salvaged the centre with a proviso attached to approval of the plan change that he lead mediation between all affected parties under the Environment Court’s mediation process. He also wants the council to ask the court to defer formal hearing of any appeals against the plan change until he’d concluded his process.

One aspect of the St Lukes plan change process wasn’t discussed at all during the debate: While Auckland City Council planning staff recommended approval and the 3 independent commissioners who considered it came to that conclusion, the Auckland Regional Council insisted in its submissions to the hearing that a structure plan should be put in place first.

Westfield has proposed rezoning land adjoining the shopping centre & owned by Westfield to business 8, enabling the doubling of maximum gross floor area to 92,500m², including 15,000m² for offices, in accordance with a concept plan.

As I wrote when Auckland City Council first deferred a decision in September, the commissioners saw the need for a structure plan – and made “an informal recommendation” that the council initiate one as a matter of priority – but said the significant positive effects of the plan change and the fact that it was a design-led process emerging out of a masterplanning exercise meant the commissioners “do not view the lack of a structure plan as being a fatal flaw. The proposed plan change 8 & the development it will enable do not foreclose the option of a structure planning process being undertaken at a later date.”

I also wrote in September that the commissioners said in their report none of the agencies advocating a structure plan – the regional council, regional transport authority & NZ Transport Agency – had asked for the plan change to be declined because of its omission.

But, I added then: It’s hard to see how the hearing panel could approve fundamental street changes and the addition of nearly 50,000m² of commercial & retail space, with the expectation that this would lead to further intensification & more multi-storey buildings in the surrounding suburbs, yet not require a structure plan to be in place first.

The regional council’s role in assessing development proposals was to do so from a different perspective from the way territorial authorities looked at change. Now both roles are within the one unitary authority, but on Wednesday nobody made it clear how the regulatory role & the strategic assessment would be done.

Cllr Cathy Casey opened Wednesday’s debate, arguing that doubling the size of St Lukes would sound the death knell for possibly 13 little shopping centres around the west of the isthmus. Her second point was that the traffic effects of a doubled St Lukes would be far greater than the hearing panel acknowledged. After Cllr Casey had made her points opposing the plan change’s approval, councillors left & right found the opportunity to make wider-ranging political statements.

What follows in this story is a roundup of the debating points, first with Cllr Casey’s opposition, then the mayor’s statement of goals, then the views of other councillors:

Cllr Casey said: “Just recently we’ve been looking at the strategic direction for Auckland, and we should be looking at the smaller centres. Where they’re resilient they survive better. How do you make them resilient? You provide the things they need, and one of those is a shopping centre. We need to support those local communities & those local shopping centres.”

On the increase in traffic resulting from the St Lukes expansion, she said: “You have to wait at least half an hour to get up to the motorway, and for a big event like Eden Park or Pacifika, you’ll be gridlocked. So do we really want to create the biggest mall in New Zealand in the middle of the Albert-Eden-Roskill ward? A resounding no is all I’ve heard. Only Westfield (wants it). This is a proect driven by Westfield. Their website says they give a lot back to the community. They have not engaged over this plan.

“They sponsor Style Pasifika, that’s admirable, but they don’t do terribly much else for the community. They (the community) don’t want Westfield there, it’s a Westfield empire.

“The reason this decision is here and we’re not rubberstamping a decision of the commissioners is we have political oversight, we are a new council and we can say this is not what we want for our communities, it causes businesses to close down and it’s not for the people.”

Cllr Richard Northey noted that the hearing panel was only to make a recommendation, not the final decision: “Auckland City Council’s city development committee decided that because this was such a huge & complex issue the commissioners were only given the delegation to recommend to the council on this matter.”

He believed the application should be sent back to another hearing so full consideration could be given to a number of urban design issues not addressed in the original decision – inconsistency with the regional policy statement, doubling an already large retail centre in the heart of suburbia, transport effect, economic impacts of imposing 2 huge shopping centres in one relatively small area (Westfield is also expanding at Newmarket).

Enter the mayor: “We’ve been asked to answer a relatively straightforward question: Did the commissioners carry out their appropriate task? On all the advice - and we’ve got to operate on the basis of that, not my gut feeling – it’s appropriate to enable this to proceed in terms of what has been requested by the applicant.”

Mr Brown then launched into a statement of goals – his own, what he believed the council should aim for, what Auckland should aim for:

“During the course of the last 12 months, people often asked me why did you want to be the mayor in the first term - it will be a shemozzle, why not the second term? My answer was this: The first mayor, with his/her council, gets to set the values of the city. It’s not even about imposing your vision, it’s actually the spirit of this place and what values you want to build it on.

“On my 5 key values, I believe we can deliver an extraordinary vision. My first is inclusiveness, but my second is fairness. And so we get to set the first values. This is, more than anything, about the affirmation of how we lead forward and fairness is a part of that. Following due process is a critical way of how we go forward - be fair & be consistent, so we want a single leader & a single plan and a very clear definition of how we go forward. Mostly what people are asking for is a fair interpretation and a fair set of rules for everyone, and mostly they wanted us to stop mucking around, getting to a decision whether we agree or not. Am I uncaring about the community? No, I know there is a better way forward.... We need to show every one of our people we will abide & make our judgments on fairness.”

During later debate on the 3-tiered council structure – the full council, committees & forums, Mr Brown said the idea of the forums was to drive strategic policy debate: “This is a council that’s going to be seriously into analysis, which is certainly different from where I’ve been in the last 15 years. There’s going to be a step up in the quality of debate.”

Under this structure there’s a danger of points being relitigated as they’re passed up to the next level, but councillors generally agreed that shouldn’t happen, that where an issue had been debated fully at a forum, it should then be put forward for adoption rather than further debate. And some committees will be committees of the whole council, so their decisions wouldn’t go through a second round of debate at the full council.

One of those committees will deal with the Auckland spatial plan, a new concept overlaying the regulatory framework. Both the Auckland City & Manukau City Councils completed a large body of work on their parts of the spatial plan, and it’s a concept councillors are eager to involve themselves in.

It’s a concept that will come in over the top of plan changes & resource consents that approach Auckland piecemeal – such as Westfield’s plan change 8. So, while councillors were pleased to have a new toy, could they impose the spatial plan on a plan change already in the system? Traditionally the answer is no, that a development proposal will be considered under the law existing at the time it was lodged.

The mediation proposal might be seen as an attempt to impose future planning ideas, as yet incompletely formed, on a development scheme which has been properly processed.

Cllr Cameron Brewer, who previously ran the Newmarket Business Association, said: “Business wants a fair process. We have gone through an exhaustive process (on St Lukes). They (Westfield) have been talking about this since they came into New Zealand 10 years ago. Just because some councillors don’t like what those independent commissioners have come back with doesn’t mean we should have a rehearing.

“Yes, it has been a hospital pass by the former city council. I disagree it (deferral) was because they had concerns about the recommendations, it was a lot more political than that, it was a lot more about St Lukes sitting in the midst of a marginal seat 2 months before a local body election.

“We have to decide where is the best place for the western side (to shop). The regional policy statement has identified 16 town centres and that includes the wider St Lukes area - we’re going to see all of these town centres expand in time. St Lukes isn’t in the perfect place, it would be better near the rail line.

“Let’s also give some respect to Westfield - this is not about taking jobs away, there will be a lot of people employed in the centre, it’s not about giving Australians jobs. Also, Westfield have not been about building rubbish in the last 10 years - for example, Nuffield St (in Newmarket). They have actively worked with communities in the past.

“People expect attractive shopping centres. We need world-class amenities and a world-class shopping centre is what Westfield want to build, that’s what the public want.... And having a world-class shopping centre is good for house prices.”

Cllr Mike Lee, former regional council chairman, now councillor for the Waitemata (cbd) & gulf ward, took a predictably different tack: “I fail to see anything fair about the council setting with the world’s biggest mall owner against the community. But letting fairness aside, I don’t believe the decision of the commissioners is rational in the wider context of (planning of) Auckland. The process in my view was most unfair.”

Cllr Lee said the long-term effects needed to be considered. “This was a cynical political manoeuvre by the former Auckland City Council to defer making a decision on this matter and to hold it over to this council - absolutely odious & repugnant, which is why I don’t want to be an accessory after the fact. The community’s relatively powerless in this, they can’t afford all the lawyers Westfield can and we (the council) can, the only power the community has is voting and by the cynical manoeuvre that was taken away from them.

“After this shoddy manoeuvre, the (council) officers couldn’t wait to get this on the agenda soon enough, but in the light of our special responsbility to draw up a spatial plan, in light of the strategic decision this was remiss.

“This will double the size of a shopping centre which planners all agree is in the wrong place. If you hear the officers’ advice, the options are between yes & yes. No, we can say no. It’s bad for Auckland, for God’s sake.

“There’s tremendous waste of time & resources. If we go along with the Westfield plan they will be externalising a huge amount of cost on Auckland for time to come. They will double parking. St Lukes Rd has a 7-day average of 15,000 traffic movements, that’s virtually the same as State Highway 1 between Puhoi-Wellsford and the Government is determined to spend $2 billion to fix that. This is going to increase that traffic right in the heart of the isthmus.

“Wastewater hasn’t been addressed, the spatial plan hasn’t been addressed. The prime minister himself kind of lectured us about the need to get the spatial plan done before the Government would entertain things like the cbd rail loops. That’s the rules he has set and this council will have to play along with those rules. It applies to the rail loop, it has to apply to this mall.

“Westfield doesn’t speak for business in New Zealand, they speak for their own multinational company. This will suck the commercial life out of a whole lot of genuine town centres, including Queen St and even Newmarket.

“People have an expectation this council will be different. Sacrifices have been made, people have lost their jobs, been inconvenienced. I think the vision for Auckland was worth that cost, but along with the structural change & cultural change, what I see in this is business as usual, the same old Auckland City Council culture,- yes minister, put it off when it suits, the same old legal advice banging on about natural justice for big corporates. Its’ worse than a crime, it’s a mistake, that’s what we will make if we go along with this.”

Cllr Lee said there had been complaints of overt bias: “There is a concern that while Derek Nolan, the leading counsel for Westfield, was advocating this plan change, he was interviewing officers for the new council. It’s not a good look and that’s not a good process either.

“The key point, why this needs to be heard again: Halfway through this (consultation & hearing) process, after the submissions closed, another parallel process was under way in which Westfield was involved in a general appeal to the regional policy statement changes. They managed to persuade the officers at the ARC to call St Lukes a town centre. The people who wrote submissions were unaware of this, but the commissioners, when they made their decision, placed a huge amount of weight on St Lukes being a town centre officially. The public submitters did not know this. This is a profound flaw in the whole process, it should go back to the people who submitted (so they) know this has been officially declared a town centre so they can submit on that.”

Cllr Christine Fletcher, a former Auckland City mayor, now one of the 2 councillors for the Albert-Eden-Roskill ward (but on the opposite side of the political fence from the ward’s other councillor, Cllr Casey) and, with Cllr Lee, appointed to the Auckland Transport council-controlled organisation on Wednesday, said there were challenges in urban intensification as the region grew towards a population of 2 million.

On the St Lukes plan change, she said: “There is nothing I would like more, I would like to be able to reconsider this on a fresh piece of paper, I would like the spatial plan (to be in place).... We are dealing with some laws which frankly are a bit antiquated, holding populations together while expansion takes place. (I’d like to) look at the merits of this thing, but the reality is we are simply looking at process with the debate we are having today.

“What I want to draw attention to is the only thing I think we can deal with today, which is whether the concerns raised by the community were adequately considered and whether the decision of the commissioners was flawed. Was the extent of that a breach of natural justice? And neither the officers nor senior legal counsel have been able to establish that.

“I spoke to traffic expert Wes Edwards yesterday (Tuesday) and he said, ‘I don’t like the outcome but I will stand by the process. He said the 3 independent commissioners were very experienced commissioners. We are casting aspersions on them & their process if we vote any other way (than to approve the change).

“Conway Stewart (one of the commissioners) has a track record of standing up for the community if he is required to. I would love to see a change in the culture, and perhaps we are saddled with decisions of the former council which I would not have supported... As much as I would like to see a different proposal on the table, I am going to side with the mayor, and as much as I would like to be the local hero on this ..... we have to apply some discipline.”

Cllr Wayne Walker, from the Albany ward: “I’m concerned about the choices and I think we have a number that were not put before us. One is timing - we do not have to make a decision on this today and I do not think that is unreasonable. I’m not at all comfortable with rubberstamping the decision of those commissioners. I don’t agree with it – on sustainability & transport, I think the decision is flawed and a number of things not adequately considered. Rubberstamping affects mediation.”

But Cllr Walker’s former mayor at Rodney, Penny Webster (now the Rodney ward councillor) took an opposing stance: “Why don’t we defer it? That’s what the old Auckland is all about. We’re here to make decisions. One of the hopes is, if we go to a different hearing panel were going to get a different decision. The councillors can all be on a mediation but they can’t be on a hearing panel because they’ve all declared their position.”

Cllr Noelene Raffills, from the Whau ward: “If you read the decision, it clearly shows that the commissioners had a lot of discussion, they did not feel that issues were cut & dried, and on one particular issue, the traffic, there was a passage where they had 2 different sets of expert witnesses and agreed with one, they did consider carefully and did consider all the sides & all the decisions around it, they didn’t agree with the submitters on every issue.”

On process, she said: “Once we deviate from that we are in a pickle. Is the process finished with this decision today? No. Will changes occur? I think yes.”

Deputy mayor Penny Hulse supported mediation, saying that would allow the council to show it was a new council with a new vision and a new way of doing things. “We can work to ameliorate most of the community’s concerns.”

She supported local shopping & resilient communities and added: “Westfield will not guide this spatial plan. It (the Auckland City deferral) was a hospital pass but we’re stuck with it, we’re stuck with the Local Government Act and the processes available to us.”

Cllr Jami-Lee Ross, from the Howick ward: “The reputation of this council and the message we want to send to the world on how we want to be seen by the world, whether we’re a good place to do business -  we’re going to have the eyes of Auckland, New Zealand on us.

“The investment community, they want Auckland to be a place that’s good to do business in, where they can have reliance on the regulatory process, that they can rely on reasonable decisions. Do we want to send a message to the world that Auckland is a good place to do business in, that you can rely on the laws, or send a message if you try and invest in Auckland there’s a risk the politicians may decide to overturn an independent & very thorough process because they don’t like the outcome?

“I know it (the St Lukes decision) is not perfect. Now is not the time to throw it all up in the air and send it back to a rehearing where we might get the same decision. We would be a laughing stock around the country & the region. We need to follow through with it - we all know about having our communities on our backs because they don’t like something. We need to decide what’s good and send good messages out to the community. Will big development kill shopping centres? Howick has had a huge lot of development - Botany & Highland Park - developed around them. The challenge really is to find their point of difference. We shouldn’t be using commercial competition as an excuse to turn something down.”

Cllr Sandra Coney, Waitakere, spoke about the delegations process and how Auckland City Council had ensured the hearing panel’s recommendation went back to the council for decision: “Auckland City Council had developed its plan, owned its plan, and it’s a very serious thing to take a private plan change and change the plan, so Ii could only see it came back to the council because it wanted to decide if it wanted to change its plan.

“There’s a great flood of expectation from the public about this new council, I’ve been surprised at the expectation that we’re going to solve the problems of Auckland - the same old problems of the past are destroying our villages, sucking the life out of our cbd. This proposal completely undermines our brand new start with the spatial plan, a dagger at the heart of the spatial plan before we even start.

“2 things go on through Resource Management Act processes. One is the process and 2 is the result. We’re not hearing ‘I can live with it‘ in this. If the council accepts the commissioners’ recommendations we will be bound to defend that (in any court appeal). That’s not something I would like to risk. (Alternatively) we went back to the drawing board and the local people at the end of it felt heard.”

Cllr Des Morrison, Franklin, who was also a member of the Regional Growth Forum: “I’m very process-driven. What I’ve learned from experience is if you make ad hoc decisions, you are caught and the decision you have previously made will come back and haunt you.

“What’s missing today is the spatial plan. We do have an idea of where we’re trying to take Auckland, and we do have an idea there is intensification and that St Lukes is a sub-regional centre. The commissioners talked about the need for a structure plan, is this going to be a sub-regional centre and what does that mean, what is required? Should we put it off? Of course not. I’m in support of mediation.”