Community groups are up in arms over repeated exemptions being granted to developers to build above the guidelines in the District Plan. In the wake of an Environment Court decision upholding another exemption for an over-height building, Aaron Watson discovers that the District Plan doesn’t limit building heights as stringently as citizens think.

THE District Plan is developed after much consultation with residents, to guide the future shape of our city.

But increasingly residents are left fulminating, angry and feeling disenfranchised. The Plan is seen as irrelevant as court cases and exemptions render its restrictions meaningless. Karaka Bay residents are up in arms over a proposed development that breaches the plan and would dwarf the neighbouring homes. Oriental Bay residents are distraught at height limit breaches and the change in character of their neighbourhood. The Duxton hotel recently lost a court case opposing resource consent for an over-height development on the site of the Wakefield Market and Rialto Cinemas. The Wellington Civic Trust has labelled the District Plan a sham.

"The District Plan is a document based on community submissions from the public. It was argued in court and in the end reflects the values of the peoples in Wellington. Now it’s meaningless, nothing more than pieces of paper," says Civic Trust spokesperson Di Buchan.

Council planners are understandably touchy at the suggestion they are "soft" on developers and give height exemptions too freely.

WCC Planning Group Manager Jane Davis says council officers regularly turn down applications for buildings that exceed height guidelines, and only over-height developments which have "minor" detrimental effects are granted resource consent.

"We have had lots of developers come in here with plans for an over-height building, who have gone away after a chat with our planners," Davis says.

"It’s a semi-judicial process. We can only make decisions based on the law."

But the way the law as applied is at odds with what the community expects.

Residents expect District Plan height limits to be just that – limits. But in practice those limits are a starting point.

"That [permitted height] is the bottom threshold," says Davis.

"That’s pretty conservative, because we want to have as much control as we can. Anybody can put an application in to go above that, and we have to look at it."

Above an area’s height limit, council planners have discretion to grant a few more metres to developers if they are satisfied the detrimental effects of the extra height will be minor. Say along Oriental Bay – we have a height limit set but on an individual site there may be some deviation.

"Discretion stops Oriental Bay turning into a rigid height, a straight line. If we were to set a maximum height with no room to move, we would have exactly that [a straight line] because developers would build to the maximum height," says Davis.

But it doesn’t stop there. This discretionary height limit, which is above the expectations of the public based on the District Plan, is as flimsy a ceiling as the permitted heights.

"A discretionary height limit is not an absolute limit."

Rather than breaching the District Plan, such exemptions confirm it . Davis says The Environment Court confirmation of the exemption granted to the Watermark building confirms that planners need the flexibility to allow the city to develop properly. Wellingtonians see it as their officers letting them down.

"We’ve got a values-based [Resource Management] Act that doesn’t set black and white planning conditions. Planning a city, you can’t do it on a site by site basis so we have fairly broad rules," says Davis.

So why have a District Plan at all? Why go to the expense of consultation and the trouble of setting limits? Buchan says the system is bordering on farce.

"There’s no assurance at all that the public can rely on the Plan to protect its interests, protect the environment and the things we value, and the public consultation process was founded on," Buchan says.

Among those with an eye on the city, the plan is leaking mana faster than a vegan on diuretics.

That won’t stop courts upholding exemptions, which in any case are allowable under the Plan. The High Court has ruled that as the Resource Management Act does not refer to the integrity of a District Plan, or public confidence in a District Plan, those things do not need to be considered by the Environment Court when exemptions are challenged.