Private and public developers across Auckland could find themselves being challenged in the courts if they fail to provide walkways/cycleways in their plans in future.
This follows an Environment Court decision early last month, which upheld an appeal lodged by the Matakana Coast Trail Trust seeking further conditions on the developer of a large rural subdivision on Moir Hill, between Puhoi and Warkworth.
The trust sought the incorporation of a condition securing a pathway for cyclists and walkers to travel through the site.
It was conceded by witnesses that the Integrated Transport Plan for the development, although prepared, did not include off-road cycling trails.
Given the mandatory nature of the provisions in both the operative plans and the Unitary Plan, this was a significant failure, the court decision stated. Adding that, “Quite simply, there has been a failure to meet these provisions of the Auckland Unitary Plan and this can now be remedied on appeal”.
Initially, the developer Asia Pacific International (API), a branch of multi-billion dollar Shanghai-based company New Development Group, included the pathway in initial consultation. However, this was removed prior to lodging their resource consent application with Auckland Council.
Judge Jeff Smith found that API had relied on erroneous legal arguments to oppose inclusion of the cycleway.
He did not accept API’s argument that a condition requiring a cycleway could only be included to address an adverse effect. However, he added that there was an adverse effect with the current transportation layout due to the lack of connectivity.
The evidence on behalf of the trust established that there was a feasible connecting cycleway route between Watson Road and Dorset Road, and the Court was satisfied that there was no alternative route available.
Barrister for the trust Richard Brabant says the objectives and policies of the Auckland Unitary Plan require that provision for transportation include all modes (vehicles, cycling and walking), an integrated transportation system and connectivity.
“The degree to which cycleways or walkways may be required in a particular development will depend on location and the size of the subdivision,” Mr Brabant says. “It will also depend on whether or not the inclusion of a cycleway could provide a connection as part of a significant and identified cycleway route, as in this case where Auckland Council had signed off on the Greenways Plan.”
The court has given the parties – the trust, API and Council – three months to submit a joint memorandum on whether the conditions of the decision can be met.
Asia Pacific has consent to construct some 207 rural lots on an 1800ha site, which has been severed by the new motorway. Much of the land will be retained by a body corporate, with about 1310ha gradually rehabilitated and maintained as native vegetation. The project was described in Court as “ambitious”, and is likely to take 30 to 40 years to complete.
Transport planner Bevan Woodward estimates it will cost some $500,000 to $700,000 to construct the pathway, excluding consenting and design.