Dune
Madness:
Bureaucrats run amok in Papamoa
by Jonathan Livingston Seagull
November, 1998
The
It has the best
But no. Bureaucratic attention is
concentrated instead on one of the choicest little strips of real estate in the
country at Papamoa East - 120 houses perched siren-like atop a white sand surf
Beach. Nothing like it anywhere else in
Except… The weight of opprobrium has now come down on these pleasure seeking tall poppies like the tsunami that has never arrived. Author Bruce Yandle (in a book called Common Sense and Common Law for the Environment) identifies an unholy alliance between what he calls “the bootleggers and the Baptists”, between those who peddle illicit pleasures and wish the price of such pleasures to remain high, and the wowsers who wish to ban pleasure altogether – in the environmental context this alliance is formed between existing property owners and environmentalists, the former wanting to raise their own property values by exclusionary practices restricting further development, and the latter just wanting to restrict development. Providing fulel to this fire are the twin nonsenses of sea level rising due to global warming (it isn’t, and we’re not) and a bogus erosion scenario on the beachfront (sand accretion rather than erosion appears to be the problem.)
The property owning ‘bootleggers’ and the environmental ‘Baptists’ have a range of weapons in their armoury, not least the Building Act 1991, and our old friend the Resource Management Act 1993. The Tauranga District Council itself, the TDC, in thrall to these combined pressures, has employed diverse measures to discourage would-be builders:
· It has indemnified itself, under Section 36 of the Building Act, against any claims should buildings be subsequently affected by erosion. To do so it has demanded up-front $1000 from would-be builders;
· In the name of “sustainable management” of the sand dunes it has protected the ‘intrinsic value’ of the erosion it claims to be occurring along the coast, and has prohibited actions protecting against such erosion;
· It has determined that intended buildings be removable should sand dunes venture near them, and it has listed the consultants that may be hired to provide proof of expensively provided relocatability;
· It has required that new building owners retain empty land in order to relocate said buildings;
·
It has rejected reasonable
removal contingency plans such as removing buildings off the beach by barge,
instead inviting frivolity.such as atomisation of the joint in the
tradition of Ernest Rutherford; importing a guru from
· It has instituted so-called hazard zones
But this was becoming serious. Every conceivable obstacle was being thrown in the way of property owners seeking a building permit, and TDC's policy was 90% red herring. Septic tanks, for example, had to be replaced by expensive dissolvable models, in anticipation of a rise in the sea level sometime next century, yet Council’s sewerage lines were only a couple of years away (and have since arrived).
One retired gentleman trucked his old bach from his property in order to build his dream retirement home, property in which he had invested his life savings - TDC made every effort to stop him from building. He lost hope. He applied for permission to reinstate his bach. Declined. He asked TDC would he still be required to pay rates as he was not permitted to build on his property. He was forced to continue, and to spend several thousands of dollars more just to find out if he was permitted to build on his own land! In desperation, and faced with the spectre of defeat, the distraught man threatened litigation and hired a ‘consultant’, which of course is what is now required by the legislation – several thousand dollars of your own money to a parasite to find out what you’re not entitled to do on your own property!
His building permit was granted and his house was built, but with severe restrictions.
TDC has driven many others to despair also. And yet a property owner's desire to do what he likes with his property is still a force to be reckoned
with, especially when the reward is
to live atop the silvery strands of
One of the closest of all to the dunes recently sold for $880,000, and you must conclude that the owners are not scared by the TDC's doomsday forecasts.
Section 106 hints at potential liability in the case of a subdivision.But neatly taking care of the rest is Section 31,which charges territorial authorities with the function of "controlling the actual or potential effects of the use...of land, including the implementation of rules for the avoidance or mitigation of natural hazards.." It doesn't take an expensive consultant to figure that this law could easily be used to prevent any building anywhere. Houses line highways, mere inches away from speeding Mack Truckers. On the slopes of Mt Ruapehu. According to conventional vulcanological wisdom, Taupo is due for another Big One sometime in the next few hundred years. You would think that 120 houses at Papamoa would be the least of anyone's worries.
More strangely still, neither Sections 30 or 106 makes any mention of superseding Section 36 of the Building Act. Yet a Section 36 title amendment, at considerable further cost to the landowner, is still required by the TDC, presenting an interesting contradiction. Why should further indemnification be necessary if the Council has already discharged its obligations under the RMA?
The TDC's policy of deterrent is based on the opinion of one coastal geomorphologist, Dr Jeremy Gibbs. Until recently, an "independent" report from Dr Jeremy Gibbs was a TDC requirement of any prospective builder in the "coastal hazard region". These reports, at around $4000 a pop, were not guaranteed to be favourable to his client.
"You may not like my report," he told one prospective beachfront builder, "but there is no turning back the clock".
It was a well kept secret that there were other scientists readily available with the same qualifications as Dr Gibbs, some of whom laugh at his work. This is hardly surprising, as his TDC brief is believed to have been to be conservative. But scientists are not supposed to operate according to political briefs. In contradiction of the very position he developed for the TDC at the ratepayers' expense, Dr Gibbs is also on record as having said that he considers the Papamoa beach to be in a state of equilibrium.
The TDC's new coastal hazards policy, based on Dr Gibbs' hazard zones, is poised to become law. An elaborate set of guidelines drawn up by a consultant coastal engineering specialist continue in the TDC's fine tradition of deterrent. They outline zone by zone whether or not something can be built, what can be built when it is permitted, how it can be built and what consultancy input must be paid for in order for it to be built. No surprises to find the leading consultant on the TDC's list of four to be the one that wrote the guidelines.
The consultants
are all from
Before the decision is made whether or not the applicant can merely proceed, the TDC will also require achitect's plans, proving relocatability, and survey plans in the case of prospective subdivision. Proof will be required that all rainwater coming off the roof of the proposed building can be channelled in a landward direction so that it does not drain, as it had previously, towards the dunes.
The vagueness of RMA Section 31 imparts discretionary powers to local body authorities in deciding when a Resource Consent is necessary. On the face of it, the scattershot approach used so far by the TDC might merely mean saving the occasional applicant the $500 fee.
But there is the darker side. For "imposed and enforced as a condition of a Resource Consent for any building in "All Coastal Hazard Areas", there is a requirement that the structure be relocated "away from hazard areas when they are no longer sustainable in their current location".
In the event that the crest of the dunes approaches within a "trigger distance" of 8 metres of any part of the building, "relocation of the building be undertaken". At his own expense the owner must relocate his building, remove every vestige of occupation and reinstate the dunes to original condition (on his own land).
Imagine your neighbours, who built or renovated before or with a waiver of the Resource Consent requirement, swilling beer and cheering you on from their deck as you systematically demolish your own home.
The Resource Consent will only be granted for the period before which time it is predicted by the TDC's technical advisers that the sea level will encroach. Upon expiry of the Resource Consent, an application must be made for renewal. Anyone for deja vu?
Should the application be declined, or not be made, the owner must relocate his building. Should he not do so, the TDC says it would send in its bulldozers.Putting aside the extreme insult that this would represent to a freehold property owner and his family, why would the TDC preferentially bulldoze a building before it fell onto the beach rather than after?
The TDC flipflops from talk of liability to bulldozers to social responsibility and "prevention of a legacy of collapsed houses on beaches".
It hints at the cost of removal of these collapsed houses, and the psychologically damaging effects this wreckage could have on the psyche of our grandchildren, which are no more likely to trigger a nationwide financial or psychological crisis than are the car wrecks we drive past everyday, and which are removed at nominal expense. Perhaps the TDC should ban cars while it is at it.
Greg Jenks is more convincing than the TDC in his concern over the possibility of wreckage on the dunes.
Greg is an aestheticist who has landed himself a pretty nice job. Actually he's a pretty nice bloke too. "I'm not a bureaucrat", he told me. And no, he's probably not. Rather, he's a professional beachcomber, who runs an Environment Bay of Plenty (EBOP) operation called Dunewatch.
Greg set up a very nice display in Bayfair, the Mt Maunganui shopping centre. Photos of idyllic beach scenes juxtaposed against "Ground Zero" shots of houses falling onto beaches.
" Would you prefer this... or that?" went the caption. It would have convinced virtually anyone except a beachfront property owner, yet cutting through the emotion there was nothing in Greg's photos that a half-decent working bee couldn't take care of in a long weekend.
Besides, interfere as it may with the notion of a perfect beach, the land the house has fallen onto still belongs to the owner of the house. Land title is defined by its surveyed boundaries, not its lithology. Either Greg has overlooked this, or he's keeping quiet. One wonders how much attention Greg would pay to a house should it fall into a swamp in Te Puke..
"What about planting trees on the dunes?", someone asked. Greg almost exploded with enthusiasm. He waxed lyrical about the stabilising effect on the dune system.
“Then why not houses?". Greg freaked. But Greg, houses are built out of trees. Are we merely arguing about round logs versus square ones? About aesthetics, not erosion? If the TDC claims that buildings can exacerbate erosion, so too could trees.
The
Instead where they used to spy on sparrow colonies, they see indolent sunbathers sprawled on the deck of their new million dollar beachhouse.
Fear not, birdwatchers, decks will be taken care of along with fences, both forbidden in many areas under the new rules.
Some samples of rules from a bureaucratic grab-bag:
Get the picture, ratepayer? Note that both property rights and Te Puke Swamp Watch is conspicuous by its absence.
The Papamoa beachfront property owners have been finally galvanised into action by the draconian absudities inherent in the TDC's new policies. A group has formed and is backing an appeal against the TDC's coastal hazard policy by local real estate agent Wayne Skinner.
Some owners who have already built their dream home have been jolted out of their complacency by the realisation that should their house burn down rebuilding options will be severely limiting, in some cases restricted to less than the back half of their sections.
If an old house has been renovated under a Resource Consent, must one remove only the new bits when the crest of the dune reaches the "trigger distance"?
All owners will be powerless to shore up their own section against any such erosion, because "No activity, including earthworks, shall reduce the buffering ability or alter the natural dune landform". So while reducing the buffering ability is prohibited, so too is increasing it.
Others are told they may be able to build several buildings on one site then subdivide, but that they may not subdivide then build the same houses. They ask what liability the TDC could face from a deck in front of their house, or a fence on their boundary, banned by a council busily working on a contingency plan to run a massive concrete stormwater drain right through the same dunes.
Greg Jenks of Dunewatch hadn't known about this plan. When he was told about it, he was furious, and said he would lie in front of the bulldozer.
They object to their loss of property rights, and the effect on property values. Compensation has not been discussed. But no one likes to pay rates on a piece of land they cannot use "in the interests of the community". They are confused whether the potential cost to the community would be monetary, in the event that collapsed houses must be moved off the dunes, or aesthetic in that the houses must be looked at prior to removal, or both.
They object to the ''no cantilevering' rule. Apparently someone got the jump on the planners and cantilevered out over the "Extreme Risk Zone", and it "got up the planners' noses". They responded with a carte blanche ban on cantilevering, ruling out the most obvious solution to being able to build on ones land without putting the foundations at unnecessary risk or compromising the natural landform.
The challenge to the TDC's Proposed Plan will be made on the grounds that the TDC's technical policy is at the very least too conservative, refutable by other technical advice and at odds with its own.
From the District Plan.
"Coastal Hazards are a
particular concern in the District. A large proportion of the
Skinner has masses of facts and figures which all point to the same historical trend of long-term advance, supported by the fact that the area forms a "cuspate bulge" lying as it does in the shadow of Motiti Island.
The TDC is factoring against this trend a projected rise in sea level, any evidence of which it has yet to produce. To the contrary, high water mark has in every single recorded case subsequently moved seaward of the 1994 figures which the TDC uses for its purposes.
Skinner's graphs
show the rate of accretion slowing around the time the
Skinner argues that possibly this rate of accretion could possibly be sped up again by more judicious dumping of sand by the Port of Tauranga, and has exposed rifts in scientific opinion over such basics as what depths comprise the outer limits of the active system.
Rather than take
the soft conservative option and penalise individual property owners, Skinner
wants the TDC to review the
The TDC claims that the 3 million cubic metres of sand that has been dredged to date is minimal compared with the total in the system. But using its own buffering requirement of 140 cubic metres of sand per metre of beachfront (thereby establishing the position on each individual property of the "Extreme Risk Zone") 3,000,000 cubic metres represents buffering for 1071 properties of an average e width of 20 metres. (3,000,000/140*20=1071).
That covers the
entire coastline from Mt Maunganui to Papamoa East.
In other words, the
Skinner has been fighting EBOP and the TDC's coastal hazards policy for years, and seems to have amassed enough technical evidence to shoot them out of the water once and for all. His technical arguments are supported by various councillors, yet still his well-presented submission opposing the adoption of the TDC's conservative coastal hazards policy was rejected out of hand.
Little wonder.
Consider the efficacy of "the citizens remedy" applied to these
submissions made to EBOP on its proposed Regional Coastal Environment Plan by BOP
Federated Farmers of NZ. Proposed
Federated Farmers:
EBOP ought to consult with
landowners of properties located within the coastal marine area, before this
plan is implemented, to ensure that their concerns are addressed.
Landowners, as the holders
of private property rights, ought to be consulted as part of the site
identification process.
They have an inherent
interest in protecting land located within the coastal marine area, and may
have a valuable input into the consultation process.
Staff recommendation: Reject
Group A (354 signatories)
Remove the areas sensitive
to coastal hazards policy which has a detrimental impact on their hapu and iwis capacity to enjoy the
exclusive and undisturbed possession of all their taonga as guaranteed under the Treaty of Waitangi
Staff recommendation: Accept in part
Although it is an unfashionable pursuit, there is more than
enough to whet the appetite of a conspiracy theorist.
Dunewatch claims to be "about the maintenance and protection of a long-term community resource" Good old Dunewatchers just love dunes, they really do.
"But why do they only love the dunes outside my house", wailed one frustrated property owner. Mere metres up the beach, herds of Polled Angus cattle maraud unopposed across the dunes. Not a dune lover in sight for miles right on down to the Kaituna Cut.
Not to be outdone, the Draft Coastal Reserves Management Plan trumpets through its Keeping the Character of our Coast pamphlet that it "looks at the whole sweep of open beaches stretching 17 km south-east from Mussel Rock to the end of the Papamoa East settlement. In some place, the complete dune system is within the coastal reserves, in others there are houses on the foredunes. The whole coast line, though, beach and dune, forms a single interrelated entity."
And this from The Reserves and Facilities Department, in order to "preserve and enhance our sense of national identity":
"We believe dune
vegetation should consist of dune species indigenous to the coastal zone of the
Tauranga Ecological
District, and exotic plants in most
instances will be removed. Replanting will be with indigenous species,...."
For a while it
seemed they were talking about dune stability. While the planners mostly talk
of liability, TDC's District Plan seems to say more:
"Subdivison,
use and development should not compromise the integrity of natural defences to
coastal hazards, the natural
character of the coastal environment
(particularly in areas where little development has occurred), the relationship
of
Maori and their culture and traditions to the coast, or public access to the coast."
EBOP's Regional Coastal Environment Plan almost says it:
'Coastal hazards are not
the only reason why buildings should be set back from the beach. It is common
practice to retain
reserves or building 'set-backs' to
provide for the natural character of the coastal environment, to facilitate
public access
and recreation, and to protect
areas of special significance to tangata whenua."
But TDC's District Plan Methods to deal with Coastal Hazards
wraps it up.
"Identify a Coastal
Protection Area along the currently undeveloped coastline between Papamoa east
and Kaituna river
mouth within which development
will be limited to avoid hazards and preserve natural character, heritage,
public access,
ecosystems and other significant
values."
Other significant values. Like what? Envy? Wayne Skinner's appeal isn't given much chance of success by the TDC. "It all comes down to money", said one planner.
It is vaguely
obnoxious the way the TDC seems to be drawing up battle lines as though
ratepayers are its enemy, insinuating that it will simply outbid Skinner's
bunch in the
[Since the date of writing, the Skinner Appeal has been heard, and soundly rejected.]