Media release

Hamilton City Council set to appeal Variation 21 ruling

Posted On: Friday, 4 June 2010

Hamilton City Council is preparing to appeal a High Court decision relating to consultation over a city planning change.

Mayor Bob Simcock has expressed bitter disappointment at the outcome of court action taken by Tainui, which is in a privileged position of being both the local iwi and a substantial commercial property owner in the city.

“I am astounded by this court decision which effectively means Tainui’s commercial entity has more rights than any other property owners in the city“ Mr Simcock said.

Tainui had sought a judicial review of Council’s public notification of Variation 21, saying Council had a duty to consult with them as the local iwi. The High Court has ruled in Tainui’s favour.

Last September, Council publically notified the variation, a bold planning measure to better manage retail and commercial activities in the city.

The variation introduced new assessment criteria intended to maintain the CBD as the principal retail and commercial hub of the city, in the face of increasing retail and commercial growth in the city’s north.

Council’s argument centred around the fact Tainui is both the local iwi and commercial property owner, with extensive property interests, including The Base.

At a Court hearing at the High Court in Hamilton in late March, Tainui lawyers claimed Council had an obligation under the Resource Management Act to consult with them, as local iwi, prior to the plan being signalled to other property owners.

But Council argued that had Council consulted Tainui, it would have gained commercial advantage over other property owners, as it would have been in the position to lodge pre-emptive planning applications under the old permissive rules thereby undermining the intent of the plan change.

Mr Simcock called for a review of the Resource Management Act relating to consultation obligations if this decision intends to confirm iwi as developers have greater rights than everyone else.

“If it is the law that consulting with iwi gives economic advantage to iwi, people need to know this, and Parliament needs to take a fresh look at this law,” Mr Simcock said.

Mr Simcock emphasised this was not a judgement about the merits of Variation 21, but it is about the issue of consultation.

“This is not about stopping The Base. It is such an important issue for the city, protecting the integrity and function of the city centre, and it is something we intend to fight for and defend.”

Mr Simcock questioned whether it was right for the law to effectively allow one group to control planning in the city.

Despite the outcome of the judicial review, he said Council was firmly committed to the principle of having a vibrant central business district.

ENDS