Dune Madness - Update:

Bureaucrats still running amok in Papamoa                                                      

           

by Jonathan Livingston Seagull

 

April, 2005

 

 

Property-owners on the Papamoa beachfront have no say over what can be done on their own land.  A gentleman called Paul Baunton runs the show.  Who is Paul Baunton, and how did he get the power? He is nominally a ‘development engineer’, but in reality has hijacked the ‘coastal hazards’ department. Ask the Tauranga District Council any question about coastal properties, and you are patched through to Baunton. The legal department joke that they only pay the bills, and refer enquiries about legal matters to Baunton. Write to the manager, you will likely get a reply from Baunton. He is the treasurer of the NZ Coastal Society, a band of men who have every reason to be merry as they rake in a living from coastal ‘hazards’. Papamoa East is a natural target, but its enclave of homes sitting irritatingly close to the dunes provide a clue as to the real motive of Baunton & Co.

 

The council has long had a requirement that Building Act Section 36 notification be entered against titles of properties/ building inside the ‘coastal hazard’ area, which indemnifies the council from any liability for property damage as result of inundation. With liability for the subject property out of the hat, the council has conjured up another rabbit - a hunch it may be exposed to some ‘residual liability’ under the RMA for damage to neighbouring properties. Exactly how this is likely to happen, and the precise nature of this ‘residual liability’ do not appear to have been considered necessary to establish, for liability is merely a patsy, a convenient conduit to the ‘hazard’ industry.

 

Look at a map of the Bay of Plenty and you will notice that Papamoa East juts out from the adjoining coastline, forming a ‘cuspate bulge’ in the deposition-friendly lee of Motiti Island. Despite a well documented history of dune stability to mild progradation, the council hired Jeremy Gibb to construct erosion ‘hazard’ lines using worst case sea level rise estimates. But the only thing about to be eroded was property rights.

 

There were initially four zones. The Extreme Risk zone, the 50 and 100 years zones, and the safety buffer zone, which were appealed in the Environment Court by civil engineer Wayne Skinner.

 

Gibb needed a base line, and the plans and aspirations of the property owners rested with Gibb’ foray along the ‘toe of the dunes’ on a quad bike, GPS in hand. Gibb acknowledges he did not record the state of the beach when he conducted his toe of the dune baseline survey. Without knowing whether the survey was conducted immediately after a storm cut, or after a period of calm and dune build up, Gibb had no way of correcting his data to a fluctuation average.

 

To establish the location of the Extreme Risk Zone (extreme risk zone), or maximum short term fluctuation zone, Gibb used some very bizarre logic. He came across an escarpment about thirty-five metres landward of the toe of the dunes. Because there were no Maori middens on the dune seaward of the escarpment, Gibb attributed an age of 100 or so years, corresponding to European settlement of NZ, to this cutback. Despite having no idea at all of where the toe of the dune had been at the time immediately preceding the cutback, Gibb assumed that it was where it has subsequently built back up to, and induced that this thirty-five metres of dune was the maximum potential short term landward dune fluctuation. For example, it might’ve been a mere 5 metre cutback, with a subsequent buildup of 30 metres, which is far more likely given the historical trend of progradation. But by Gibb’s bizarre ‘reasoning’, adopted by the council and now accepted by the Court, the greater the accretion, the wider the hazard zone.

 

An astute application of probablility theory to short term fluctuation based on historical evidence   demonstrated to the Court the chance of a cutback to the extent defined by Gibb’s extreme risk zone is virtually nil. In laymen’s terms, about as likely as being struck by a meteorite, and significantly less likely than a Mack truck careering off the road into your house.  

 

To establish the position of the 50 and 100 year ‘hazard‘ lines, Gibb used the ‘Bruun rule’, which predicts where the toe of the dune will be based on sea level rise projections. This formula by definition is only applicable to closed sand compartments - it is conventional wisdom that in situations where there is an active sediment supply, even sea level rise does not necessarily cause erosion, let alone reverse accretion. Thus, necessarily, the council’s witnesses had to argue that the sediment supply to the Papamoa coast, responsible for an historically accreting coastline, has suddenly stopped, having been present for thousands of years. Reinen-Hamill’s argument for a closed compartment, accepted by the Court, was inconsistent with his own evidence in support of a recent Port of Tauranga dredging consent, which was predicated on an active sediment supply to the coastline. Reinen-Hamill, in a text book demonstration of adversarial science, was arguing diametrically opposing positions from hearing to hearing, and admitted as much under cross examination.

 

Reinen-Hamill has a plum job, which is to write the ‘Coastal Hazard Building Guidelines’, which dictate what a property owner can and cannot do within the various zones and how they must do it. He also has a mandate to write them over and over again, coming up with more and more restrictive concepts. He’s scratching the bottom of the barrel these days, yet still the Guidelines come, in thicker and thicker tomes. In his latest edition, he has cooked up the idea of banning car sheds in the ‘coastal hazard’ zone, on the grounds that car sheds commonly have concrete floors. Thus car sheds with wooden floors inside the ‘hazard’ are banned because carsheds commonly have concrete floors. False syllogism notwithstanding, another property right falls victim to Reinen-Hamill’s insatiable appetite for new restrictions. At the end of his Guidelines, there is a list of ‘coastal processes engineers’ acceptable to the council. No prizes for guessing that Reinen-Hamill’s name heads the list, and not surprisingly, the other three or four people on the list don’t seem to want the work. The ‘coastal processes engineer’ writes a report which is necessary before building in the ‘hazard’ zone. Although the properties along Papamoa Beach are for these purposes identical, a new report is required for each application, obviating by Gibb’s own admission the original ‘purpose’ of his lines, which were to provide a once and for all quantification of ‘risk’ across the board. The ‘risk’ on property A, at the 100 year line, was therefore supposedly equal by definition to the ‘risk’ at the 100 year line on property B. So Reinen-Hamill, doubling up on the work already been conducted by Gibb, effectively writes the same report over and over.  

 

The Safety Buffer Zone represented a ‘safety factor’ of 30% to the other zones, and took preemption of properties rights to a degree whose absurdity the Court was forced to acknowledge. Thus Skinner and his $330,000 Appeal managed to rid Papamoa East of the ‘safety buffer zone’, but despite presenting extensive evidence which showed consistent bad science and miscalculations, otherwise failed to have Gibb’s lines discredited and removed.  Judge Bollard, however, instructed the council that they must ‘get real about their draconian rules’ and propose ways to ameliorate them (for example, clothes lines (!) were prohibited). Craig Batchelar, for the council [now the principal of Boffa Miskell’s Tauranga office], came back to Court with an addendum of evidence containing some suggestions for improvements, such as permitted activity status for planting trees, letterboxes and clotheslines. (Jeez, thanks Craig) No mention of subdivision. Judge Bollard instructed appellant and respondent to go away and try to negotiate some rule changes. Should the parties fail to agree, they were to submit memorandums which the Court would rule on.

 

The council came back with some loosening of the building rules based on Batchelar’s evidence, but tighter subdivision requirements. Like a shyster taking advantage of a mental patient, they made a mockery of the RMA by proposing to ban protection works for the purposes of protecting private property. To remind us we are living in a technological backwater, a few oddities were tossed in such as a bizarre proposal to prohibit relocation by helicopter. Wayne Skinner did his best to counter the council onslaught, but the council made little effort to negotiate, and both parties eventually presented their respective memorandums to the Court. Despite an objection-deterring denial of this in prior correspondence, the council acknowledged in their final submission some of their proposed amendments lay outside the scope of the Appeal, and were in fact a tightening, not a loosening of the rules as directed by Judge Bollard.

 

The council had a little problem. They wanted to tighten the rules, but subdivision was beyond the scope of the Appeal and the grounds of relief sought by Wayne Skinner. Nor had Batchelar mentioned subdivision in his addendum of evidence. In what appeared to be a clumsy attempt to skew the scope of the reference, Batchelar said in his statement of evidence included with the council’s memorandum he mistakenly omitted reference to subdivision in his addendum of evidence. Come now, Mr Batchelar.

 

Judge Bollard dismissed the Skinner Appeal on (8th Nov 2004) without making any ruling on the rules, and directed the council to pursue a plan change through the normal channels of notification.

 

Former Tauranga council planner Keith Frentz is a busy little fellow. Recently he has also been the council’s non negotiable choice of ‘independent’ planner for processing certain ‘coastal hazard’ applications. Over the same period, he has also been contracted by the council to help write the proposed amendments and plan changes, generating a remarkable clash of interests by  ‘independently’ throwing the book at applications while simultaneously rewriting the rules in such a way as to disallow them. For the applicant paying Frentz’ bills, this can be rather unnerving. Planners don’t come cheap. 

 

In January 2005 Baunton and Frentz presented the proposed plan changes at public meetings, where they teased the battle weary beachfront property owners with a Clayton’s promise of an improvement in the subdivision rules which would graciously now ‘allow’ subdivision.  Under the existing rule 17.2.2(d), which states that subdivision is prohibited within the extreme risk zone, the owners gullibly believed no subdivision at all, including property outside the extreme risk zone, is allowed on any property affected by the extreme risk zone (which is all the beachfront properties in Papamoa East) The erudite and indefatigable Wayne Skinner drew sparks from Baunton with penetrating questions. He queried the successful subdivision applications of 2 Taylor Road and other properties with an extreme risk zone component, but was told that those applications were processed while the plan was still under legal challenge (Skinner Appeal), and 17.2.2(d) was therefore not operative.

 

However, the council has never before interpreted the rule in this way. Since 1999 Baunton has had in hand a legal opinion he requested from Brookfields regarding the activity status of building in the extreme risk zone/ its proposed prohibited status. The opinion was that as that part of the plan was not beyond legal challenge (Skinner Appeal), such activity must be categorized as ‘proposed prohibited’ and ‘non complying’. Later in 1999, Baunton requested another opinion from Brookfields regarding the subdivision of a property with a strip of extreme risk zone along its seaward boundary, with regard to the proposed prohibited status of subdivision within the extreme risk zone. Brookfields replied that ‘it may be open to the Council to give consent to the subdivision’. There was no mention of ‘non-complying’ status, or ‘proposed prohibited’ status in relation to the subdivision of such a property. Based on this advice, the council granted subdivision consent for the property as a ‘limited discretionary activity’. As in the legal opinion, there is no mention of ‘non complying’ or ‘proposed prohibited’. Rather, the Subdivision Consent states ‘the proposal complies with the provisions and requirements of the District plan for subdivision in a Residential Zone within the Coastal Hazard Erosion Policy Area’.

 

Had subdivision of extreme risk zone-containing properties been considered a proposed prohibited activity, as Baunton and Co are now claiming, then, perforce, the advice of its legal advisor would have been followed, and the applications to which Skinner was referring would have been classified as ‘non complying’ and ‘proposed prohibited’, rather than ‘limited discretionary’. It follows that  rule 17.2.2 (d) was not being interpreted to mean subdivision outside the extreme risk zone on the property which contained extreme risk zone was also proposed to be prohibited.

 

Imagine a 1000 hectare property with a 5 metre wide strip of extreme risk zone along its seaward boundary unable to be subdivided because of a prohibition of subdivision within that little strip of extreme risk zone. It wouldn’t happen, just as a 1000 hectare farm with an historic site would be able to be subdivided despite a prohibition of subdivision ‘within historic sites’. A fence would obviously be built around the historic site. Ditto for esplanade reserves. Under such a blanket subdivision across the entire property prohibition the council would be unable to create an esplanade reserve, say on the land between Papamoa East and the Kaituna Cut.

 

Frentz has been involved in processing subdivision applications for such properties. Until the proposed amendments which he helped prepare, he also had made no mention of such an interpretation. To the contrary, he recommended to one such applicant that they wait until the Appeal was resolved to avoid notification. If Frentz was interpreting the rule to mean the application before him would, once the plan was beyond legal challenge, be prohibited, then advising an applicant to ‘postpone’ processing until it became operative would amount to an extraordinary act of deception. Until 2003 Baunton also continued to state that properties affected by the extreme risk zone can be subdivided at any time. Then along came the Skinner Appeal rule change ‘negotiations’, and a window of opportunity to tighten the subdivision rules. All that was lacking was the wherewithal to present the proposed changes not as a tightening, but rather as a loosening in accordance with Judge Bollard’s directions. It seems that even the council was placing little hope in Batchelar’s schoolboyish ‘I forgot’.

 

The council successfully resisted the inclusion of a statement of evidence attached to Skinners memorandum which was endeavoring to point out to the Court that the proposed subdivision amendments were being presented in a misleading manner, and now coastal property owners are being duped as tighter subdivision requirements are being touted as less restrictive by comparing them to a fictitious past where no subdivision at all was allowable, which according to Frentz recently, ‘is the only way the rule can be interpreted’. Otherwise likely objections to the proposed plan change are preempted by this spurious and opportunist re-interpretation of the rules. Under the proposed changes, most of the properties (40 or so) which can currently be viably subdivided under the current plan using the ‘normal’ interpretation will unable to be subdivided due to the proposed contiguity requirement, which states that any building existing or new, inside the hazard zone, must have a 325 sq m alternative building site clear of but contiguous with the ‘hazard’ zone, kept ‘vacant’ at all times. The word ‘vacant’ is not defined, but it doesn’t take a pessimist to conclude that he is going to have to find somewhere else to park his car. Remember Reinen-Hamill has decided that there will be no car sheds in the ‘hazard’ zone, and Frentz has decided that 325 sq m contiguous with, but clear of, the hazard zone will be kept ‘vacant’ in perpetuity or until relocation. Frentz, in a thinly disguised attempt to merely shut down subdivision, disingenuously claims that the contiguity requirement is justified on the grounds that it is the simplest relocation solution. Frentz must be a Luddite. If the only acceptable solutions were the simplest solutions, building permits would be declined on the grounds that it would be simpler to live in a grass hut.

 

The ‘hazard’ industry is alive and well in Papamoa East, and its only competitor is the  nationalization of the dunes. Since the dismissal of the Skinner Appeal, the council is barely trying to hide the subterfuge - the proposed plan change states as a new objective that the council is adopting a policy of ‘managed retreat’. In the proposed amendments, requested by Judge Bollard, the council specified that the prohibition of protection works for the purposes of protecting private property should apply to ‘soft’ as well as ‘hard’ protection works. This would mean that shoveling sand to shore up an embankment would be prohibited.  On private property, the ramifications are obvious. On reserve land adjoining the beach, Cave Creek springs to mind with children playing on dangerous escarpments the council had by its own pen prohibited itself from making safe.

 

Fortunately it can be deduced that not even the council believes its own predictions of inundation and as a corollary, that the ‘liability for hazards’ routine is a hoax. The rates, which fund the council’s enormous coastal ‘hazard’ budget are disproportionately paid by these beachfront owners on properties which, according to the council’s experts and accepted by the Court, will be half under water in 50 years time, are about double those paid on a property second back from the beach. With the prohibition of protection works and a policy of ‘managed retreat’, the beachfront property, its owner unable legally to shore up his own land, would be valueless in 50 years time. Yet the value of the beachfront properties continues to soar as the market mocks the council’s doomsday projections of inundation. Considering the council does not base rates assessments on market value, rather on intrinsic value, it follows that neither does the council believe its own projections. If it did, then the rates on a beachfront property would be less than the property behind, which in 50 years will, according to the council’s projections, become beachfront property by default.

 

Unfortunately, the Baunton & Co coastal ‘hazard’ routine is unlikely to unravel anytime soon. Most property owners now face Hobson’s choice of an existing plan which now ‘prohibits’ subdivision, or  proposed changes which won’t allow subdivision to be viable. Either way, the show will roll on. It took six years from notification of the current plan until it was beyond legal challenge. Until it is beyond legal challenge the second time around, subdivision of all Papamoa East beachfront properties will be prohibited.