Coastal Ratepayers United (CRU) has succeeded once again in its legal challenge against Kapiti Coast District Council (KCDC) in the Environment Court. To date, CRU’s 100 % success rate in challenging KCDC over the Proposed District Plan and in particular, the coastal hazards is indicative of CRU’s commitment to good law and good science.
After the election of 2013, over 2013/14 Council:
1. commissioned 2 independent reports at great expense and accepted all the recommendations in these reports.
2. withdrew coastal hazard areas from the PDP.
3. resolved that the community would be represented in any future work through a Coastal Advisory Group (or CAG).
Unfortunately, Council officers decided not to implement the resolutions of July 2014 accepting of all the recommendations of the independent report. Instead, they
A. decided to keep the old coastal hazard provisions in the current plan
B. withdrew the CAG
C. have carried on developing new coastal hazard provisions without any community input.
When CRU discovered in 2016 that Council had no intention of implementing its 2014 decisions, it took Court action to challenge the legality of what the Council had done. Over 350 submitters on the PDP had lost their ability to present concerns and make submissions about coastal provisions because of the way that Council had proceeded.
The case was heard in November 2016. In July 2017, the Environment Court agreed with CRU and declared that Council had not followed the law in relation to withdrawing a number of PDP provisions.
Despite finding that the Council was not obliged to notify the existing hazard provisions which it intends to maintain, the Court did declare that the Council had used its power to withdraw other provisions in a way which contravened the Resource Management Act. In response to a Council argument that the declaration should not be made because it had subsequently fixed the problems, the Court declined to endorse any specific Council action and pointed to the fact that those actions were only taken because CRU had challenged the process.
Even though Council publicly resolved 3 years ago to set up the CAG and to notify a variation on coastal hazards, the Mayor now says that KCDC had an informal meeting at which most councillors decided to do something quite different. It is not clear to which meeting the Mayor refers because interested community groups and residents were not informed.
CRU’s only option now is to appeal to the High Court. If it is successful, it seems possible that the whole PDP may have to be renotified. It would be too late in the process to make either the simple changes requested by CRU or for the Council to follow the advice that it accepted in 2014. To date, ratepayers have paid over $6 million for a flawed document which should have been fixed in 2014 had the Council only followed the independent advice for which ratepayers paid.
The above presents in layman’s terms the significance of the actions. The court decisions are crouched in the complex RMA terminology which is difficult to follow for those not versed in it.
For some history, here follows Christopher Ruthe’s statement from March 2013 [- Eds]
Last year, those owning coastal properties along the Kapiti Coast received a thunderbolt in the form of a letter from Kapiti Coast District Council. It advised the owners and inhabitants of 1800 homes – more than 4000 people – that their properties would be in the sea within 100 years.
The council had put a warning on the Land Information Memorandum, which tells prospective buyers that this catastrophe was likely. It also proposes highly restrictive policies and rules in its Proposed District Plan.
Coastal Ratepayers United was set up to fight that. It established from an early stage that the Kapiti Coast erosion hazard assessment that has been used to justify the changes was inaccurate, unreliable and overly conservative.
The assessment provides no analysis of the reliability of its forecasts nor the levels of risk in each area and was not adequately peer reviewed. It overstates in many areas the areas of land that are likely to be subject to coastal erosion.
That means the Proposed District Plan is also fundamentally flawed, as it is based on the hazard assessment, and that is why it must be redone.
The assessment has not been adequate under the provision of the Resource Management Act, which requires costs and benefits to be considered. In particular, there has been inadequate consideration of the social and economic effects on owners and occupiers of existing properties within the proposed hazard zones.
It also fails to have regard to the requirements of the Proposed Wellington Regional Policy Statement which requires the identification of areas at high risk from natural hazards because it exaggerates the extent of land likely to be affected by coastal hazards.
The assumptions are combined with a flawed methodology so the hazard lines do not indicate areas “likely” to be affected by erosion within 50 or 100 years. Instead they reflect a worst-case assessment of what is possible.
They are unreliable and speculative, and present an overly alarmist picture that has been used as the basis of the Proposed District Plan.
Despite Mayor Jenny Rowan [defeated in October 2013] saying the council has no policy of managed retreat, the proposed district plan says: “Natural shoreline movement will be accommodated by coastal management options including managed retreat”, and that dune systems will be “enabled to migrate inland in response to natural shoreline retreat”. That amounts to surrendering existing homes to the sea.
Other policies refer to the retreat of buildings and that the use of “hard structures” — buildings — will be actively discouraged.
The plan is incomprehensible in parts, even to experts used by Coastal Ratepayers United. Few affected people will understand the language in it.
As it stands, all the language difficulties, together with its numerous inconsistencies will result in Kapiti ratepayers suffering for the next decade from inconsistent rulings and interpretations by council staff, which will lead to expensive legal costs attempting to resolve matters. The plan needs to go back to the drawing boards.
The effect is the taking of beachfront properties by bureaucratic stealth, without any compensation to thousands mainly retired home owners.
For them, the whole scenario is a disaster, all based on a prediction that is unproven and very unlikely. That is why there is a sense of outrage.