Interviewing the greats: Russell Bartlett QC

Russell Bartlett QC is the second candidate in our “Interviewing the Greats” series. Russell specialises in Resource Management Law, representing clients in Council hearings and through the Judicial and Court system. He is very successful and rarely, if ever, loses a case.

He has a unique ability to show case incompetence, usually at a Council bureaucratic level and does not take kindly to Council usurping their already wide authority. His bluntness cuts through the crap but is usually done with a sense of humour that softens the obvious exposure of ill thought proposition.

The names he uses for me are “Boy” and “Einstein”. I take these to mean that I am still young with a lot to learn – almost compliments! Working alongside Russell means you must be well prepared and competent or you will suffer the same fate as the opponents that he spends time working over. Russell is a resident in The Hobson catchment and works from Shortland Chambers in the CBD.

By profession you are a Barrister, a QC and a Resource Management Lawyer. Can you give us a brief rundown on what this all means?

University legal training is followed by completing professional law courses that allow admission as a barrister and solicitor. A common career path is for people to become senior solicitors or litigation partners within a firm before setting up on their own account as a barrister.

Shortland Chambers has around 30 barristers each running his or her own practice. Half of those are Queen’s Counsel, having been appointed to that senior rank. However, it’s not quite like it sounds. Like anyone else, you will not hear from Her Majesty personally until you turn 100.

When did you graduate from law school and how did you go from lawyer to planning lawyer?

I was admitted to the Bar about 40 years ago. As happened then, in a mid-sized city firm, I was exposed to a range of District Court litigation. My particular interest became property law and planning and as a result I became increasingly involved in planning work.

You seem to enjoy what you do. Can you expand on this and why?

Most of my work concerns the future – representing people, usually risk takers, who want to create something. That is much more enjoyable than litigating to recreate the past where typically all parties have done something that they now regret but are slow to admit.

I do admire my colleagues who spend all their energy on making the best of messy personal or financial situations, while I spend my time with people who are not in trouble.

Give us a general example of a case you have been involved with and then what your role is and how this plays out.

No two cases are the same. Some very large projects where there are no significant non-compliances with the rules are processed without delay and objection. Much of my work does involve notified projects where opponents make submissions and want to be heard, often with the intention of lodging an appeal.

I have made a study of how community objector groups work, and have repeatedly seen how the tamest proposal can create a local frenzy from which people can struggle to back down – even when they finally receive qualified advice that their fears and apprehensions are misguided. It is very difficult to strike out parties even where they have no case, so often the applicant just has to let things run their course.

The RMA, the Resource Management Act 1991 is New Zealand’s primary planning and environmental legislation. Do you prefer this effects based approach to the more activity based approach of the previous regime and why.

I think the “effects based approach” has been overstated. There are still plenty of examples of Councils sticking to rules for rules’ sake even where the policy behind the rules is hard to understand.

The RMA is now 16 years old and has been amended many times.  The RMA has been blamed for many things. If you could change it what would you do and why?

After Nick Smith, the biggest problem with the RMA is the extent of discretion it bestows on Council officers. Many of whom have private agendas that have nothing to do with the rules and who operate unsupervised.

They are in a position to delay and sometimes to decline consents. Ideally, I believe Council staff should do no more than process applications. All decisions as to requests for further particulars, notification, consenting, and imposing conditions would be undertaken by Independent Commissioners.

The Auckland Unitary Plan has in part been derived to help solve a housing shortage in Auckland. Will it achieve the goals of more housing than the previous district plans?

The Unitary Plan provisions on density are quite radical. Already we are seeing a number of in-fill housing proposals being developed. So long as it costs half as much to build a two-storey terrace house as it does an apartment of equivalent size, the market solution will be through the considerable in-fill now allowed in the urban and suburban areas.

The concept of Urban Design has grown in NZ over the last 10 years. The ideology has merit. What about the on the ground day to day reality of trying to get consents?

Councils are generally giving a strong lead in respect of quality urban design for public places. Wynyard Quarter and the shared spaces in the CBD are good examples. Residential standards of design have also improved.

Unfortunately, many of the urban designers engaged by Councils are social engineers trying to impose their own political values – most of which are not the values held by ordinary families.

They will make you go to extraordinary lengths to conceal your garage door or your shop’s carparking – no matter how much land it wastes or how much inconvenience is caused. They will tell you how high your front fence should be and where to put the front door. They will tell my very experienced retirement village clients what sort of outdoor spaces their prospective customers will want.

As we saw in the Unitary Plan process they tried, unsuccessfully, to introduce as plan rules some new design obligations that went beyond lawful requirements under the Building Act.

You battle against the Council on a regular basis and have a track record of winning. It’s as though history just keeps repeating all at ratepayer’s expense? Why do you think this is so?

The underlying problem here is that Councils reserve discretions as to design quality without saying what the criteria are, and then delegate decision-making randomly to staff whose private agendas and missions may have nothing to do with the Resource Management Act or the District Plan.

As I have said, a number of projects are approved by Councils without conflict. Because we have a contestable process with rights of appeal there will always be arguments, and that keeps everyone on their toes. I must say however, the quality of Council decision-making has improved significantly with the advent of independent Commissioners. And yet, people will always oppose change.

Despite the fact that New Zealanders travel widely abroad, it remains firmly ingrained that anything in this country over two-storeys is a large building with potentially adverse effects. There is still nostalgia that in moving away from 1/4 acre residential sections we have somehow “lost something” even though typically they were and remain unattractive, unlandscaped and unused.