Building plans outrage

A council decision to grant a resource consent to a developer, involving land termed "undevelopable", could see neighbouring residents lose hundreds of thousands of dollars on their property value.

A multimillion-dollar property development involving the filling of a Palmerston North gully is set to trigger a costly three-way legal battle between residents, the city council and developer Les Fugle.

Mr Fugle's company Pacific Farms Ltd applied for a resource consent to fill a gully system, including Johnstone Gully, in June last year.

The project could see more than 650,000 cubic metres of dirt used, with preliminary plans suggesting the entire development could allow for 600 sections.

Work to strip the site, alongside Johnstone Drive and Ron Place, began in July - well before consent was approved in October.

But residents who bought homes overlooking the gully did so believing that land was 'undevelopable', as specified in Land Information Memorandum [LIM] reports and the council's district plan.

Some real estate agents had also promoted the land, on the same understanding, as a reserve.

Home owners bordering the development now face several years of construction and the prospect of having new houses built against their rear boundaries.

This, combined with a weakened housing market, has reduced the value of their properties by upwards of $50,000 each.

Andrew Carpenter said he expected to lose close to $100,000 on the sale of his Johnstone Drive home.

He and wife Kirsty purchased it only two years ago.

They have moved to Wanganui but are yet to find a buyer, despite dropping the asking price considerably, he said.

"It's hard to know how much is due to the development or the market. But we've had a lot of people come through only for them to look over the fence, see the diggers going round and that's it, they're not interested," Mr Carpenter said.

"We're reasonably lucky because we found a house here [Wanganui] that is much nicer. But not everyone can afford to do what we have.

"There are others trying to sell who are simply stuck right now."

LJ Hooker sales agent Ivan Johnstone said there had been a big drop in prices throughout the affected area, where he also lives.

"Any large earth-moving operation cannot assist property values and sales," he said.

"[The] quicker the works are completed the better for all concerned."

Residents v council

Residents are considering legal action against the council to have the resource consent overturned.

Those affected are angry about being led to believe the gully was "undevelopable" and angrier still council principal planner Virginia Shaw approved the resource consent without public consultation.

Her decision can only be challenged by Judicial Review in the High Court - at a cost exceeding $50,000.

Ms Shaw cited the Resource Management Act as to why the normal consultation process would not be permitted, explaining that the work was "minor" and that "no person will be adversely affected by the activity".

Her report, dated November 1, 2007, also noted the development "involves a significant amount of earthworks . . . not common in Palmerston North".

A Pacific Drive homeowner, who spoke on condition of anonymity, said the council's stance raised serious questions about whom they claim to represent.

"It's absolutely ridiculous that one council officer can make a decision, even if she thinks she's followed the rules, that has such a massive impact on so many people.

"It's even worse that the council knows the only way we can challenge the decision is by taking them to court. Why should anyone have to pay $60,000 just to be heard?

"Where is the democracy in that?", he said.

"Is the average person supposed to know that 'undevelopable' actually means 'developable with consent'? You can't twist the English language to mean that no matter how hard you try and it's a very serious misrepresentation."

His sentiments are echoed by others, including one Laurie Way couple who have sought legal advice.

Their lawyer, in a written letter, said he believed the residents had a strong case but warned of the cost involved in they took action.

City Contact general manager Peter Eathorne said the council would defend its position if taken to court as they had not made any mistakes in the process.

If another application was received to fill a gully today and it met the criteria, the result would be no different, he said.

"When a staff member under authority - and Virginia is a very experienced planner - is looking at this type of application our legal advisers say we have no grounds to consider anything else other than the geo-technical issues," he said.

"Under the current district plan those are the rules. I certainly have sympathy for the residents. They have looked at the big picture and seen this massive housing development but we can only look at the application to fill a gully. That area has been designated as residential and in principal that's allowed as a right in this city."

Mr Eathorne said the term 'undevelopable' was not a legal definition but an interpretation of the land's current status.

That status can change if an application is made to do so.

"I can understand why they've taken it at face value, however I'm also concerned there were no steps to check what that might mean," he said.

"Nothing in our LIMs should be taken at face value because things are always subject to change."

Council v Les Fugle

The city council has launched three separate prosecutions against Mr Fugle and his company, Pacific Farms Ltd, over the work undertaken to date.

The charges include operating without consent and breaching the conditions of the resource consent after it was approved.

Under the Resource Management Act, a prison term or fine of up to $250,000 can be handed down.

Mr Eathorne said the first council knew of the earthworks was when residents alerted it that the land was being stripped and burnt off in late July.

Since then, the council had received constant complaints over dust, noise and smoke, and abatement notices had been issued, he said.

"The primary driver here is we have a developer who hasn't complied with the council process. He's been quoted in public meetings saying 'if the council prosecute me that's just the cost of business'.

"[Initially] he was carrying out works without consent, then he objected to the consent conditions and carried on anyway. Then finally he got a consent but ignored the conditions," Mr Eathorne said.

"He's fought us constantly but we don't have the power to shut him down, only the courts do."

The council began legal proceedings in October, but a hearing date has yet to be set.

Mr Fugle said he "vigorously denied" the charges laid.

His defence, he said, was that the initial work did not require a resource consent and he had lodged an appeal with the Environment Court over the conditions later put in place. "[The consent] basically said we must be finished within six months. Quite frankly that's poor engineering planning and leaves the entire site open to erosion and dust, which is exactly what the residents don't like. We've vigorously opposed the conditions but the council officer refused to hear our objections."

The council had also breached its own protocols, he said.

"We applied for the consent in June 2007 and they have 20 working days to respond, and can extend that to 40 days under certain circumstances. But it didn't come through until what, October/ November. That's closer to 100 days," he said.

Mr Fugle said his company had invested "millions" in the project, though planning for the land was still in the early stages.

 WHAT IT MEANS

The term "undevelopable" when used in a LIM report does not mean what you might think. Under the Palmerston North City Council's district plan, it is an interpretation of the land's status. But that status can be changed to "developable" if an application is made to restructure it and geo- technical information is provided to support the change.

 

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