Albany North Landowners v Auckland Council
[2017] NZHC 138
•13 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2336 [2016] NZHC 138
BETWEEN ALBANY NORTH LANDOWNERS Plaintiff AND
AUCKLAND COUNCIL Defendant
[Continued over page]
Hearing: 28 November - 2 December 2016 Counsel:
M Baker-Galloway for Albany North Landowers
T Mullins for Auckland Memorial Park Ltd
S Ryan for Franco Belgiorno-NettisR Brabant and R Enright for Character Coalition Inc & Anor M Savage for Howick Ratepayers and Residents Assoc Inc & Anor
R Enright for The Straits Protection Society Inc and South
Epsom Planning Group Inc & Anor
A A Arthur-Young and S H Pilkington for Strand Holdings Ltd
R E Bartlett QC for Summerset Group Holdings Ltd
A A Arthur-Young and D J Minhinnick for Valerie Close
Residents Group
H Atkins for Village New Zealand Ltd
R Brabant for Wallace Group LtdM Casey QC and M Williams for Man OʼWar Farm Ltd R J Somerville QC, K Anderson and W G Wakefield for Auckland Council
C Kirman and A Devine for Housing Corporation New Zealand and Minister for the Enironment
S F Quinn and A F Buchanan for Ting Holdings Ltd
S J Simons and R M Steller for Property Council of New
Zealand
R M Devine for Ngati Whatua Orakei Whai Rawa LtdJudgment:
13 February 2017
JUDGMENT OF WHATA J
ALBANY NORTH LANDOWNERS v AUCKLAND COUNCIL [2016] NZHC 138 [13 February 2017]
This judgment was delivered by me on 13 February 2017 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: …………………………
CIV-2016-404-2298
BETWEEN AUCKLAND MEMORIAL PARK LIMITED Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2323
BETWEEN AUCKLAND UNIVERSITY OF TECHNOLOGY Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2333
BETWEEN FRANCO BELGIORNO-NETTIS Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2335
BETWEEN FRANCO BELGIORNO-NETTIS Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2351
BETWEEN BUNNINGS LIMITED Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2326
BETWEEN CHARACTER COALITION INC LTD & ANOR Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2327
BETWEEN CHARACTER COALITION INC LTD & ANOR Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2322
BETWEEN STEPHEN HOLLANDER Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2321
BETWEEN HOWICK RATEPAYERS AND RESIDENTS ASSOCIATION INCORPORATED & ANOR
Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2320
BETWEEN JPR ENTERPRISES & ORS Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2324
BETWEEN NORTH EASTERN INVESTMENTS LIMITED & ANOR
Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2325
BETWEEN NORTH EASTERN INVESTMENTS LIMITED & ANOR
Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2349
BETWEEN THE STRAITS PROTECTION SOCIETY INCORPORATED
Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2350
BETWEEN STRAND HOLDINGS LIMITED Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2344
BETWEEN SUMMERSET GROUP HOLDINGS LIMITED Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2305
BETWEEN VALERIE CLOSE RESIDENTS GROUP Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2341
BETWEEN VILLAGE NEW ZEALAND LIMITED Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2316
BETWEEN WALLACE GROUP LIMITED Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2331
BETWEEN MAN O’WAR FARM LIMITED
Plaintiff
ANDAUCKLAND COUNCIL Defendant
CIV-2016-404-2302
BETWEEN SOUTH EPSOM PLANNING INCORPORATED & ANOR
Plaintiff
GROUP AND
AUCKLAND COUNCIL Defendant
TABLE OF CONTENTS
Introduction [1] A guide [3] PART A: THE PARTIES [5] Acknowledgment [9]
PART B: BACKGROUND AND FRAME
Establishment of Auckland Council, adoption of Auckland Plan [10] New legislation for development of the AUP [13] Notification of the draft PAUP [15] Section 32 Report [16] Notification of the PAUP [28] The IHP: Role, Function [31] The issue of scope emerges [34] The hearings on zoning and precincts [47] IHP Recommendations [52] Topic 013 – Urban Growth [59]
Topic 016, 017 Rural Urban Boundary, 080 Rezoning and Precincts
(General) and 081 Rezoning and Precincts (Geographic Areas) [65]
Topic 059-063 – Residential Zones [73] Appeal and review rights [84] Thresholds for appeal and review [90]
PART C: THE PRELIMINARY QUESTIONS
Did the IHP interpret its statutory duties contained in Part 4 of the [92] Local Government (Auckland Transitional Provisions) Act 2010 (the Act) Lawfully, when deciding whether its recommendations to the Council
Were within the scope of submissions made in respect of the first Auckland
Combined Plan?
The legislative frame [93] The IHP approach to scope [96] Argument (in brief) [99] Assessment [101] The statutory criteria [104] Policy of public participation [110] The scheme of Part 4 and the RMA [113] Orthodoxy [115] The Clearwater two step test [119] Summary [135]
Did the IHP have a duty to: [137]
(a)Identify specific submissions seeking relief on an area by area basis with specific reference to suburbs, neighbourhoods or streets
(b)Identify when it was exercising its powers to make consequential alterations arising from submissions?
Assessment [139]
Was it lawful for the IHP to: [145]
(a)Determine the scope of submissions by reference to another submission?
(b)Determine the proper scope of a submission by reference to the recommended Regional Policy Statement?
Assessment [148]
To what extent are principles (regarding the question of scope) established
Under the Resource Management Act 1991 case law relevant, whenaddressing scope under the Act [154]
Did the IHP correctly apply the legal framework in the test cases?
The test cases [155]
Identification of relevant submissions [159]
The Maps [161] Overview of test cases on residential zoning [162] The submissions on residential intensification [164] A helicopter view [165] Accessibility of Council website [171] The Council’s change of position [177]
Mt Albert [180] Argument [187] Assessment [189] Glendowie [191] Argument [201] Assessment [203] Blockhouse Bay [210] Assessment [214]
Judges Bay [217] Assessment [221] Wallingford St, Grey Lynn [224] Assessment [228]
Howick [231]
Assessment [233] The Viewshaft on the Strand [241] SHL’s claim [246] Argument [250] Assessment [252]
55 Takanini School Rd [257]
Submissions identified by IHP [264] Preliminary issue [265] Assessment [268]
The Albany North Landowners’ Group site [270] Argument [274] Assessment [276]
Man O’War Farm [279] Argument [286] Assessment [288]
Are the appellants/applicants’ allegations against the Council concerning the IHP’s determination on issues of scope
appealable pursuant to the Act and/or reviewable? [291]
Assessment [294]
What relief can the High Court grant the appellants/applicants if the
IHP and/or the Council acted unlawfully in respect of the IHP’s
determination on an issue of scope under the Act? [300]
Outcome [302] Effect of Judgment/Relief [303] Costs [305] APPENDIX A
APPENDIX B APPENDIX C
Introduction
[1] The Auckland Unitary Plan (AUP) is a combined 30 year plan, incorporating for the first time a regional policy statement, a regional plan and a district plan for Auckland in one document. It represents the culmination of a mammoth undertaking by the Auckland Council (the Council) and an Independent Hearings Panel (IHP) over the span of several years. The scale of this task reflects the significance of the AUP to the people and communities of Auckland and beyond.
[2] This Court’s relatively discrete involvement has been triggered by 51 appeals and judicial review applications. A central issue for 20 of those proceedings is whether the recommendations made by the IHP on the proposed Auckland Unitary Plan (the PAUP) were within scope of the submissions. If they were not in scope, then affected persons have the right to appeal on the merits of the decisions of the Council based on those recommendations to the Environment Court.
A guide
[3] This judgment answers the following preliminary questions agreed by the parties:
(a) Did the IHP interpret its statutory duties contained in Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act) lawfully, when deciding whether its recommendations to the Council were within the scope of submissions made in respect of the first Auckland Combined Plan?
(b) Did the IHP have a duty to:
(i)Identify specific submissions seeking relief on an area by area basis with specific reference to suburbs, neighbourhoods or streets?
(ii)Identify when it was exercising its powers to make consequential alterations arising from submissions?
(c) Was it lawful for the IHP to:
(i) Determine the scope of submissions by reference to another submission? (ii) Determine the proper scope of a submission by reference to the
recommended Regional Policy Statement? (d)
To what extent are principles (regarding the question of scope)
established under the Resource Management Act 1991 (the RMA) case law relevant, when addressing scope under the Act? (e)
Did the IHP correctly apply the legal framework in the specified test cases?
(f)
Are the appellants’/applicants’ allegations against the Council concerning the IHP’s determination on issues of scope appealable pursuant to the Act
and/or reviewable? (g)
What relief can the High Court grant the appellants/applicants if the IHP
and/or the Council acted unlawfully in respect of the IHP’s determination
on an issue of scope under the Act?
(The Preliminary Questions) [4]
In o
rder to properly understand the decisions made by the IHP and the Council,
it is necessary to consider the full context within which they were made. Consequently, the judgment is divided into three key parts. It commences by describing the various parties to the proceeding and the characteristics of each of their particular claims – [5]- [9]. Part B provides the background to the current proceeding, tracing through both the legislative and factual context to the development of the AUP– [10]-[91]. With that background in mind, in Part C I address the Preliminary Questions in the order they are given above – [92]-[302].
PART A: THE PARTIES
[5]
proc
The eeding
(a)
appellant/applicant parties actively involved in the preliminary question on scope are:
Albany North Landowners Group (ANLG). ANLG brings an appeal
regarding the decision made by the Council to adopt recommendations of the IHP to zone the ANLG site as Future Urban Zone, which prohibits the
subdivision and development of its site. ANLG contend no submission
provided scope for the FUZ zoning. (b)
Character Coalition Inc and Auckland 2040 Inc. The Character
Coalition represents over 55 community organisations in the Auckland
area that have a collective interest in protecting the character and heritage
of Auckland. Auckland 2040 is coalition of local groups that have
expressed concern with the implications of the PAUP. These two societies
have brought appeal and judicial review challenges to the decision of the
Council to accept the zoning recommendation of the IHP in relation to
29,000 residential properties, which the IHP said was within the scope of
submissions requesting changes to residential zoning in the notified
PAUP. They argue that the rezoning of the 29,000 properties was out of scope. (c)
Howick Ratepayers and Residents Association Inc (HRRA). The
HRRA made a submission on the PAUP addressing the zoning of land at
Howick. The Council accepted a recommendation of the IHP which
resulted in modified zonings of certain land at Howick being included in
the PAUP. The HRRA has appealed to the High Court to challenge the
rezoning of 65 properties which it argues were not sought by any
submitter or identified by the IHP as being out of scope. (d)
Strand Holdings Ltd (SHL). SHL owns property that was affected by
the Council’s acceptance of the IHP’s recommendation to relocate the
origin point of the Dilworth View Protection Plane (the Viewshaft),
which protects the street view of the Dilworth Terrace houses in Parnell.
The relocated Viewshaft places height restrictions on SHL’s property. SHL brings judicial review proceedings alleging that the IHP made an error of law in not identifying this recommendation as beyond the scope of submissions.
(e) Wallace Group Ltd (WGL). WGL appeals against the decision of the Council to rezone the property owned at 55 Takanini School Road, Takanini (the site) to a Residential Mixed Housing Suburban Zone. WGL owns a property that directly adjoins the northern portion of the site and the rezoning directly impacts its ability to develop and use its land. The notified version of the PAUP retained the status quo zoning, which was split zoning, with the northern portion zoned Light Industry. WGL argues that there were no submissions seeking a change of the status quo zoning.
(f) Man O’War Farm Ltd (Man O’War). Man O’War owns rural property on Waiheke Island that is bounded on three sides by 24 km of coastline. It appeals against the IHP’s recommended definition of coastal hazard, namely “land which may be subject to erosion over at least a 100 year timeframe”, which was adopted by the Council. The issue in its appeal was whether the definition was within the scope of submissions to the PAUP and/or is void for uncertainty.
[6] The Council was the respondent in all proceedings. Its role in relation to the AUP, which will be discussed at [294], was to accept or reject the IHP’s recommendations on the PAUP and to determine the final form of the PAUP.
[7] There were a number of parties that supported the Council:
(a) The Minister for the Environment (the Minister) and Housing New Zealand Corporation (HNZC). The Minister (on behalf of Cabinet) and HNZC, along with the Ministry for Business, Innovation and Employment (MBIE), were submitters on the PAUP and presented at the hearings. In this proceeding, the Minister and HNZC supported the Council in respect of the challenges brought by Auckland 2040 and the
Character Coalition to the Council’s acceptance of specific residential zoning recommendations. These parties contend that their submissions provided scope to upzone the 29,000 properties said to be out of scope.
(b)Ting Holdings Ltd, trading as Ockham Residential (Ockham). Ockham appeared in opposition to Character Coalition and Auckland 2040’s appeal and judicial review application. Ockham undertakes large scale brownfield apartment developments and was a submitter on the PAUP. Its submission was one of the submissions relied on by the IHP to provide jurisdiction and scope for the residential rezoning recommendations made.
(c) Property Council of New Zealand (Property Council). The Property Council is a not-for-profit organisation that represents commercial, industrial and retail property owners, managers, investors and advisors. It made submissions and further submissions on the notified versions of the PAUP, and presented evidence before the IHP. Throughout the hearings process, the Property Council advocated for residential upzoning and intensification. It argues that the residential zoning recommendations on the properties affected by the Character Coalition and Auckland 2040 proceedings were within the scope of the relief sought in its submissions to the IHP.
(d)Ngati Whatua Orakei Whai Rawa Ltd (Whai Rawa). Whai Rawa supported the Council in respect of the Strand Holdings test case. It argued that its submission to the IHP on the Viewshaft brought the IHP’s recommendation within scope.
(e) Summerset Group Holdings Ltd and Equinox Capital Ltd (Equinox).
Equinox have a property interest in the property subject to the WGL appeal. They made submissions on the role of the IHP and the legal principles that should be applied in relation to issues of scope under the Act.
[8] The IHP did not take an active role in the proceedings.
Acknowledgement
[9] I wish to acknowledge the considerable assistance afforded to me by counsel for all parties represented at the hearing of this matter. Given the depth and breadth of those submissions and conversely the requirement for a succinct judgment, I have not been able to cite all argument as fully as might be expected. The relevant themes drawn from submissions should, however, be evident to counsel.
PART B: BACKGROUND AND FRAME1
Establishment of Auckland Council, adoption of Auckland Plan
[10] One of the first priorities for the Council after it was established as a territorial authority on 1 November 2010 was to prepare and adopt a spatial plan for Auckland to provide a comprehensive and effective long-term strategy for Auckland’s growth and development. This became known as the Auckland Plan, which was adopted on 29
March 2012.
[11] Following the adoption of the Auckland Plan, the Council’s next significant planning priority was the development of the AUP consistent with the vision and foundations set out in the Auckland Plan. The AUP was to meet the requirements of the following planning instruments:2
(a) A regional policy statement (RPS): an RPS achieves the purposes of the RMA by providing an overview of the resource management issues of the region and policies and methods to achieve integrated management of the
natural and physical resources of the whole region;3
1 A common bundle was produced by the Council without objection and the information supplied therein has formed the basis of this background narrative, along with the relevant legislation.
2 Local Government (Auckland Transitional Provisions) Act 2010, s 122(2).
3 Resource Management Act 1991, s 59.
(b) A regional plan: the purpose of a regional plan is to assist the Council to carry out its region-wide functions, including:4 (i) the establishment, implementation, and review of objectives,
policies, and methods to achieve integrated management of the natural and physical resources of the region;5 and (ii) Preparation of objectives and policies in relation to any actual or
potential effects of the use, development or protection of land which are of regional significance.6 A regional plan must also give effect to national and regional policy statements.7
(c)
A district plan: a district plan is to assist a territorial authority to carry out
its district level function, including the establishment of objectives, policies and methods to achieve integrated management of the effects of the use, development or protection of land and associated natural and
physical resources of the district.8 The district plan must be consistent
with any regional plan. [12]
It w
as envisaged that, once approved, each of these elements of the AUP would
be deemed to be plans or policy statements separately approved by the Council.9 Out of a concern that the AUP be prepared in a timely fashion, the Council raised with the Government the possibility of legislative changes to provide unique processes for the development of a combined plan for Auckland.
New legislation for development of the AUP
[13] The Government introduced legislation in December 2012, in the form of the
Resource Management Reform Bill, which would speed up the processes for developing
4 Section 63(1).
5 Section 30(1)(a).
6 Section 30(1)(b).
7 Section 67(3).
8 Section 31(1).
9 Local Government (Auckland Transitional Provisions) Act 2010, s 122(3).
the AUP. The then Minister for the Environment, Hon Amy Adams, stated in the first reading:10
I am concerned that under existing law Auckland Council estimates that its first Unitary Plan could take up to 10 years to become operative. No one benefits from long, drawn-out, and expensive processes, during which time Auckland’s development stagnates in a cloud of uncertainty. Auckland’s economy is too important to New Zealand for us to wait up to a decade for the plan to be implemented. Auckland represents some of our most pressing housing affordability issues, and the council needs to be able to make changes to address this issue without long delays.
[14] The expectation was that under the new process the AUP would become operative within three years from notification, instead of the six to 10 years likely under the First Schedule Process of the RMA.11 On 4 September 2013, Part 4 was inserted into the Act, which allowed for such a process to proceed by adopting a one-off hearing process. The hearing process is discussed in greater detail below at [34] – [51].
Notification of the draft PAUP
[15] At the same time as legislation to create a streamlined process was being considered by Parliament, the Local Board, local iwi and key stakeholders were notified of the AUP and were provided an opportunity to consult with the Auckland Council about it and offer feedback. This occurred between September and November 2012. On
15 March 2013 the draft PAUP was notified and public consultation followed until May
2013.
Section 32 Report
[16] The Council was required to prepare an evaluation report in accordance with the requirements in s 32 of the RMA (the s 32 Report).12 Such reports involve examination of the extent to which the objectives being evaluated are the most appropriate way to
achieve the purpose of the RMA.
10 (11 December 2012) 686 NZPD 7331.
11 (27 August 2013) 693 NZPD 12851-12852.
12 Local Government (Auckland Transitional Provisions) Act 2010, s 115(d).
[17] The s 32 process ran parallel to development of the AUP from the initiation of the project in November 2010.13 It involved extensive consultation with the public spanning two years, including with key stakeholders such an HNZC, local boards, Character Coalition and Ockham. The report also refers to engagement with around
16,500 Aucklanders on the draft plan, with feedback analysed by subject matter experts, including the impact on zoning.14 The Report was notified on 30 September 2013. The new Act also required that the s 32 Report be provided to the Ministry for the Environment for auditing as soon as practicable.15 That audit occurred in November
2013.
[18] Significantly for present purposes, the s 32 Report addressed urban form and land supply in detail. The central resource management issue to be addressed is identified as the provision of an additional 400,000 new dwellings over the next 30 years to support an additional one million people living and working in Auckland, referring to the need to accommodate these new dwellings in existing urban areas, as well as ensuring that there is a sufficient supply of greenfield land.16 It notes that the PAUP outlines the expected distribution of dwelling land supply to be 70 per cent in the existing Auckland urban core; that is, 280,000 additional new houses by 2041.17
[19] The urban core was to be marked out by the Rural Urban Boundary (the RUB), which was intended to be “a defensible, permanent rural-urban interface and not subject to incremental change”.18 The RUB was contrasted with the status quo Metropolitan Urban Limit (the MUL), which is the tool used to control the speed of peripheral expansion into greenfield areas around Auckland.19 The MUL is located at the edge of existing urbanised areas while the RUB was proposed to be located some further
distance away.
13 Auckland Council Section 32 Report – Part 1 for the Proposed Auckland Unitary Plan (30
September 2013) at 15.
14 At 45-46.
15 Section 126.
16 Auckland Council 2.1 Urban form and land supply – section 32 evaluation for the Proposed
Auckland Unitary Plan (30 September 2013) at 4.
17 At 5.
18 At 4.
19 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council – Overview of recommendations on the proposed Auckland Unitary Plan (22 July 2016) at 65.
[20] The s 32 Report considered a number of alternatives as to how to accommodate residential and business growth in Auckland:20
(a) The status quo policy of retaining the current RPS policies and approach, using a statutory urban boundary – the MUL, able to be amended by way of plan change;
(b)The preferred alternative – a quality compact Auckland approach using a defensible long term statutory urban boundary – the RUB, with targets up to 70% of dwellings inside metropolitan urban area (as at 2010) and orderly, timely and planned development with the RUB consistent with Auckland’s development strategy; and
(c) A laissez-faire approach – an expansive alternative with no growth management tool, relying on plan changes to accommodate growth in whatever form it may present itself.
[21] In relation to each of these three alternatives, the s 32 Report considered their appropriateness, effectiveness and efficiency. It also took into account economic, social and cultural costs, risks and benefits, as well as the environmental benefits and risks of each alternative.
[22] The preferred approach is said to be an approach:21
… combining targets for both intensification and greenfield areas of Auckland, a planned, staged and orderly land delivery and development capacity process, supported by a long-term, a defensible rural urban boundary (the Rural Urban Boundary), is considered to offer a more robust urban growth management process than other options. This approach is considered to be more pro-active, enabling and integrated when compared with retaining the current RPS provisions or taking a less regulated approach. The RUB provisions and targets, the land supply objectives and policies will provide greater certainty to Auckland’s communities, infrastructure providers and the development sector about the timing and location of growth, while still ensuring all environmental safeguards are in place.
20 Auckland Council, above n 1, at 25-33
21 At 34.
[23] The s 32 Report addresses the implications of the initially proposed five residential zones, namely Large Lot, Rural and Coastal settlements, Single Home, Mixed Housing and Terrace and Apartments zones. The report records that the Mixed Housing zone was split into two zones – Mixed Housing Urban (MHU) and Mixed Housing Suburban (MHS) in August 2013.22 The final description given to these zones in the s 32 Report is noted below at [26].
[24] Capacity modelling based on the March 2013 draft of the PAUP identifies that the capacity for additional residential dwellings is 38,576 on parcels that are vacant and have a residential base zone; 78,584 on parcels that have infill potential and have a residential base zone and 231,004 if all parcels that have a residential base zone are redeveloped to their maximum capacity at the modelled consent category.23 The s 32
Report observes that no technical reports underpin this information.24 The Report then
states:25
Once the Unitary Plan is notified (post all changes made by Councillors) a final model will be developed, along with the required technical reports and documentation. A large proportion of the Draft Model will be able to be reused, but some aspects will need to be redeveloped to reflect the notified rules and spatial data. It is intended that this information and the model can be used to inform the formal public engagement and hearings process with respect to growth issues generally and location specific questions as appropriate.
[25] It is also noted that the capacity information is not fully accurate because the new MHS and MHU zones will likely decrease and increase respectively the number of additional dwellings that were originally zoned Mixed Housing in the March 2013 drafts, and also that minor changes continue to be made to maps and the rules.26
[26] The controls and permitted land use activities for the six proposed residential zones in the notified PAUP are described, namely:
(a) Large Lot: Large Lot zones were applied in locations on the periphery of
Auckland’s urban areas, forming a transition between rural land and
22 Auckland Council 2.3 Residential zones – section 32 evaluation for the Proposed Auckland Unitary
Plan (30 September 2013) at 5.
23 At 7. See also Harrison Grierson and New Zealand Institute of Economic Research Section 32 RMA Report of the Auckland Unitary Plan Audit (November 2013) at 48.
24 Auckland Council, above n 22, at 8.
25 At 8.
26 At 9.
urban land. Development on these sites was identified as being limited to one dwelling per 4000 m2. 27
(b)Rural and Coastal Settlements: The Rural and Coastal Settlement Zone was applied in settlements mostly forming a transition between rural or coastal land and rural production land. Development on these sites was also identified as being limited to one dwelling per 4000 m2.28
(c) Single House Zone (SHZ): The SHZ was applied in settlements on the periphery of urban Auckland, in most historic character and conservation overlay areas and in selected parts of Auckland that do not have good access to public transport. It limited development to one dwelling per 500 m2.29
(d)Mixed Housing Urban (MHU): This was identified as a key residential zone where change was anticipated. The zone is one of transition where some sites would stay in a similar form of one dwelling per 300 m2 and
other sites would be redeveloped for terraced housing or town houses.30
(e) Mixed Housing Suburban (MHS): Identified as one of the broadest residential plans in the AUP. The zone would be one of transition with some sites staying in a similar form of one dwelling per 400 m2 and others being redeveloped for more intensive residential development such as terraced housing or town houses.31
The Report states:32
The Mixed Housing Urban and Mixed Housing Suburban Zones make up approximately 49% of residential land. Both zones allow for four dwellings as a permitted activity provided the dwellings meet the density and development controls of the zone.
27 At 28.
28 At 30.
29 At 32.
30 At 40.
31 At 34-35.
32 At 3.
(f) Terrace Housing and Apartment Zone (THZ): The THZ zone was identified as a key residential zone where change is anticipated and encouraged. The zone would be typically applied between the centres and the Mixed Housing Urban zone, and will be one of transition with some sites remaining in the form of one dwelling until sites can be amalgamated or re-developed by either current or future owners. One dwelling per site would be a permitted activity, two to four a discretionary activity, and no density limits would apply where five or more dwellings are proposed and the site meets certain site size and road
frontage controls.33
[27] After conducting a cost benefit analysis of the proposed zones against the alternatives of (i) the status quo and (ii) removing all rules, the s 32 Report concludes that the package of six residential zones provided for “sufficient variation and housing choice” and that the inclusion of two mixed housing zones “will make a positive impact on housing affordability in the Auckland market”.34
Notification of the PAUP
[28] The PAUP was then required to be notified and submissions invited.35 This occurred on 30 September 2013. Under ss 123(4)–(5) of the Act it was not necessary for copies of the public notice of the PAUP to be sent to affected landowners, except for the owners and occupiers of land to which a designation or heritage order applied.36
[29] At this point, any person was able to make a submission on the PAUP, and further submissions could be made by any person representing a relevant aspect of public interest, any person with an interest greater than the one the public has, or the local authority.37 Many of the parties to this proceeding made submissions on the PAUP and some made further submissions. Overall, more than 9400 submissions composed of
93,600 unique requests and over 3800 further submissions containing over 1,400,000
points were made to the IHP.
33 At 45-46.
34 At 51.
35 Local Government (Auckland Transitional Provisions) Act 2010, s 115(1)(e).
36 Sections 123(4) and (5).
37 Resource Management Act 1991, sch 1 cls 6 and 8.
[30] The Council, in accordance with the RMA, prepared and notified a summary of the submissions, and forwarded all the relevant information obtained up to that point to the specialist hearing panel, the IHP.38
The IHP: Role, Function
[31] The IHP is a specialist panel appointed by the Minister for the Environment and the Minister of Conservation.39 During the first reading of the Resource Management Reform Bill, Hon Amy Adams described the composition of the IHP, and its general role, as follows:40
The Unitary Plan developed by the council after enhanced consultation will be referred to a hearings panel appointed by me and the Minister of Conservation in consultation with the council and the independent Māori Statutory Board, to ensure that the consideration is properly independent. There will be the usual guidelines applied for making appointments, including a high degree of local knowledge, competency, and understanding of tikanga Māori. The process will involve all the dispute resolution options available in the Environment Court, and provide the board with wide discretion to control its processes to ensure that it is easily accessed and understood by all.
[32] It was envisaged that a one-off hearing process carried out by the IHP would “streamline and improve” the development of the AUP, and ensure Aucklanders would have comprehensive input and a “high-quality independent review of the council plan”.41
[33] Its functions are set out in full in s 164 of the Act. Those functions include holding and authorising pre-hearing meetings, conferences of experts and alternative dispute resolution processes, commission reports, holding hearing sessions, making recommendations to the Council and to regulate its processes as it thinks fit. The procedure adopted must, however, be “appropriate and fair in the circumstances”.42 The submission and hearing process was also subject to a strict statutory timetable, with
limited powers for extension.43
38 Schedule 1, sub-cls 7(1)(a) and (b).
39 Local Government (Auckland Transitional Provisions) Act 2010, s 115(1)(g).
40 (11 December 2012) 686 NZPD 7331.
41 (11 December 2012) 686 NZPD 7331.
42 Section 136.
43 Sections 123(7)–(9).
The issue of scope emerges
[34] The IHP chose to structure the hearings according to topics based on the way the Council had grouped its submissions, which resulted in approximately 80 hearing topics. The IHP took an approach that generally moved from the general to the specific, dealing first with topics relating to the RPS then moving through to site-specific issues.44
[35] The IHP provided interim guidance on certain hearing topics to assist submitters. Relevant guidance on Topic 013 RPS included the following note:45
It is appropriate to enable higher residential densities in and around centres and corridors or close to public transportation routes, social facilities or employment opportunities. A broad mix of activities should be enabled within centres. A wide range of housing types and densities should be enabled across the urban area.
[36] At around this time, it became apparent that the Council in the development of the PAUP had “relied on theoretical capacity enabled by the Unitary Plan, rather on the measure of capacity that takes into account physical and commercial feasibility, which the Panel refers to as ‘feasible enabled capacity’, and defines as:46
…the total quantum of development that appears commercially feasible to supply, given the opportunities enabled by the recommended Unitary Plan, current costs to undertake development, and current prices for dwellings. The modelling of this capacity at this stage is not capable of identifying the likely timing of supply.
[37] During the panel session on Urban Growth (Topic 013) on 25 February 2015, the IHP directed extensive analytical work and modelling to be done.47 The IHP convened two expert groups to develop methods to estimate the feasible enabled capacity of the PAUP and of the possible alternatives put to the Panel.
[38] Meanwhile, in July 2015,the IHP also released its interim guidance on “Best
practice approaches to re-zoning, precincts and changes to the Rural Urban Boundary
(RUB)”. The interim guidance requested that the parties should ensure any evidence
44 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 23.
45 Auckland Unitary Plan Independent Hearings Panel Interim Guidance Text for RPS Topic 013 (23
February 2015) at [11].
46 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 49.
47 At 47, 49 and 69.
provided for the hearing on the residential topics should address matters included in the guidance.48 The relevant parts of the interim guidance for present purposes provided:
1.1. The change is consistent with the objectives and policies of the proposed zone. This applies to both the type of zone and the zone boundary.
1.2. The overall impact of the rezoning is consistent with the Regional
Policy Statement.
…
1.11. Generally no ''spot zoning" (i.e. a single site zoned on its own).
[39] The two expert groups convened by the IHP met on several occasions in 2015 and prepared a report which was uploaded to the IHP on 27 July 2016. The results of their capacity forecasts identified a severe shortfall in the PAUP relative to expected residential demand. The results in the report are summarised in the IHP’s “Report to Auckland Council Overview of recommendations on the proposed Auckland Unitary Plan” (the Overview Report):49
The results …found that the feasible capacity enabled by the proposed Auckland Unitary Plan as notified at 213,000 fell well short of the long-term projections for demand for an additional 400,000 dwellings.
[40] The Council responded to this new information in late 2015 by filing in evidence revised objectives, policies and rules for residential zones that enabled significantly greater capacity. These changes removed density rules for the MHU and MHS zones and relied on bulk and location provisions to regulate amenity, which significantly increased capacity estimates.50
[41] The hearings on residential zones (topics 059–063) then commenced on 14–28
October 2015. By this stage the issue of scope had become a major issue. Auckland
2040, Character Coalition, the HRRA and HNZC made submissions challenging or
supporting the Council’s revised position as in or out of scope.51
48 Auckland Unitary Plan Independent Hearings Panel, Interim Guidance – Best practice approaches to re-zoning, precincts and changes to the Rural Urban Boundary (RUB) (31 July 2015) at 1.
49 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 49.
50 Overview Report at 49–50.
51 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing Topics 059
- 063: Residential zones (22 July 2016) at 28-30.
[42] From the available record, the Council filed revised zoning maps on 17
December 2015 based on more intensive zoning around centres, transport nodes and along transport corridors.52 The maps outlined certain areas where the zone change was said to be “out of scope”. This triggered a request to allow affected home owners to make late submissions and a request the IHP to reject such “out of scope” changes as they apply to Westmere. Auckland 2040 also sent a memorandum seeking interim guidance on the IHP’s power to consider “out of scope zoning changes” and asserted that the majority of the changes to zoning that the Council had proposed were “out of scope”. HNZC filed a memorandum in reply on 13 January 2016 stating that the
Corporation and other government submitters’ submissions provided scope for rezoning
and that the Council was in error in referring to some rezoning as “out of scope”.
[43] On 14 January 2016, the IHP issued a direction refusing to grant the requests for waivers for late submissions (both general and specific) and refusing to reject the Council’s material as to its position on residential zoning at that present time. The IHP
notes, in summary:53
(a)
(b)
The IHP has a general power to consider out of scope submissions;
The IHP must adhere to an appropriate and fair hearing procedure and act
in accordance with principles of natural justice; and (c)
It must be persuaded that it would be appropriate for the matter to be the subject of an out of scope submission.
[44]
The
Council’s proposed zoning maps were uploaded to the IHP website on 26
January 2016. Three weeks later, on 18 February 2016, the IHP issued a further
direction clarifying its position. In short, the direction records:54
52 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 50.
53 Auckland Unitary Plan Independent Hearings Panel Topics 080/081 – Rezoning and Precincts: Directions of Chairperson in relation to Auckland Council’s preliminary position on residential zonings and issues of scope and waivers for late submissions (14 January 2016) at 3.
54 Auckland Unitary Plan Independent Hearings Panel Topics 080/081 – Rezoning and Precincts: Clarification of directions of Chairperson in relation to Auckland Council’s preliminary position on residential zonings and issues of scope and waivers for late submissions (18 February 2016) at 1-2.
(a) The panel does not regard itself as having an unlimited power to make out of scope recommendations; (b)
The panel must proceed in accordance with the principles of natural justice, the requirements of the Act and the RMA, including the s 32
requirements; (c)
The submission stage is an important part of the process, as is the
identification of significant resource management issues and methods to address them; (d)
The panel has heard evidence for 18 months and is aware of the range of issues that rezoning may raise including accommodating population
growth and the effect of intensity on residential amenity; and (e)
The panel is conscious that any person affected by an out of scope
recommendation has a full right of appeal to the Environment Court and
that it is a safeguard for any person prejudiced by an out of scope
recommendation. [45]
Ho
wever, the Auckland Council then retracted some of the revised zoning maps
on 24 February 2016 in areas where the Council considered the changes to be out of scope of any submissions made to the IHP. This resulted in a revised set of Council proposed “in-scope” changes to residential zoning.55 The Council resolution retracting the maps records:56
That the Governing Body:
c)note that the proposed ‘out of scope’ zoning changes (other than minor changes correcting errors or anomalies) seek to modify the Proposed Auckland Unitary Plan in a substantial way.
d) note that the timing of the proposed ‘out of scope’ zoning changes
impacts the rights of those potentially affected, where neither submitter
55 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 50.
56 Auckland Development Committee Proposed Auckland Unitary Plan – revised zoning maps incorporating the Governing Body decision of 24 February 2016 (Auckland Council, Council Resolution Number GB/2016/18, 24 February 2016) at 170.
or further submitter, and for whom the opportunity to participate in the process is restricted to Environment Court appeal.
e)in the interests of upholding the principle of natural justice and procedural fairness, withdraw that part of its evidence relating to ‘out of scope’ zoning changes (other than minor changes correcting errors and anomalies).
[46] The IHP responded to the Council’s retraction in the following way on 1 March:
The Hearings Panel has considered this memorandum and notes counsels' advice as to how they may act in accordance with their instructions as set out in the resolution of the Governing Body to withdraw that part of the evidence lodged by the Council relating to "out of scope" zoning changes.
The Hearings Panel will be proceeding with the hearings in accordance with its existing procedures. Parties may present their cases generally as they wish, within the scheduling constraints of this process.
The presentation of personal submissions by submitters and legal submissions by counsel on behalf of submitters is expected to reflect the positions of submitters.
The presentation of evidence by persons who appear as experts must be in accordance with the Code of Conduct for Expert Witnesses. It is essential that a person giving expert evidence does so on an independent basis, and not affected by the position of the submitter calling that witness.
The hearings on rezoning and precincts
[47] Meanwhile, between 15 and 25 February 2016 there were hearings on general rezoning and precincts (Topic 80). HNZC made submissions, but there is no reference to the HRRA, Character Coalition or Auckland 2040 appearing.
[48] On 1 March 2016 the IHP issued interim guidance for Topic 081 Rezoning and precincts (Geographic areas). The purpose of the guidance was to set out the IHP’s approach to submissions on proposals for re-zoning and precincts in the Greenfield areas proposed to be located within the RUB.
[49] Hearings then followed between 3 March and 29 April 2016 on Topic 081. HNZC, Auckland 2040, the HRRA appeared before the IHP on these topics; however, there is no reference to the Character Coalition in the hearing records.
[50] HNZC presented first and among other things called the Council’s retracted
evidence (including mapping evidence) by way of summons and also produced a
combination of new zoning maps for some areas within the region. These are referred to as the “evidence or merits based maps” as they purport to show how the application of HNZC’s rezoning principles could be applied across the region. During this presentation the IHP requested HNZC to provide shape files (i.e. spatial mapping) to illustrate the scope for the zoning changes of HNZC’s primary submission. This request was confirmed in a published memorandum dated 22 March 2016. These maps, together with another set of the evidence or merits maps, were produced on 6 May 2016. As they are based on HNZC’s proximity criteria, they are referred to as the “proximity maps”.
[51] Mr Brabant for Auckland 2040 appeared on 24 March 2016 and submitted on the proposed changes to the SHZ and the subsequent proposal for the substantial upzoning of the SHZ. He argued that these changes were outside the scope of submissions, and provided submissions on whether specific changes to the zone wording or mapping were reasonably foreseeable and whether recommending the requested changes would create procedural unfairness.
IHP Recommendations
[52] On 22 July 2016, the IHP provided the Council with its formal report and recommendations, which was subsequently published by the Council on its website on
25 July 2016. On 19 August 2016, the Council publically notified its decisions on the
IHP’s recommendations.
[53] The following topics, which have been referred to above, are of relevance to the zoning aspects of the present appeal:
(a) Topic 013, Urban Growth;
(b) Topic 016/017, Rural Urban Boundary; (c) Topics 059 to 063, Residential Zones;
(d) Topic 080, Rezoning and Precincts (General); and
(e) Topic 081, Rezoning and Precincts (Geographic Areas).
[54] Broadly, the IHP’s recommendations on these topics address what the Panel identified as the issue of greatest significance facing Auckland: its capacity for growth.57 It states that:58
The overarching approach to a combined resource management plan for Auckland starts with the development strategy for a quality compact urban form as set out in the Auckland Plan…based on existing centres and corridors…
[55] Consequently, the IHP recommended enabling greater capacity by both allowing for greater intensification of existing urban areas and identifying areas at the edges of the existing metropolis suitable for urbanisation.59
[56] The Executive Summary of the Overview Report recorded the following salient recommendations:60
i. Affirming the Auckland Plan’s development strategy of a quality compact urban form focussed on a hierarchy of business centres plus main transport nodes and corridors.
ii. Concentrating residential intensification and employment opportunities in and around existing centres, transport nodes and corridors so as to encourage consolidation of them while:
a.allowing for some future growth outside existing centres along transport corridors where demand is not well served by existing centres; and
b. enabling the establishment of new centres in greenfield areas after structure planning.
…
vi. Supporting the Council’s submission to remove density controls as a
defining element of residential zones.
vii. Revising a number of the prescriptive residential bulk and location standards to enable additional capacity while maintaining residential amenity values.
viii. Promoting better intensive residential development through outcome- based criteria for the assessment of resource consents.
57 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 9.
58 At 9.
59 At 9.
60 At 10-11.
ix. Supporting numerous submissions seeking more flexible residential zones and mixed-use zones around centres and transport nodes and along corridors to give effect to the development strategy in the Auckland Plan by:
a.enabling housing choice with a mix of dwelling types in neighbourhoods to reflect changing demographics, family structures and age groups; and
b. encouraging adaptation of existing housing stock to increase housing choice.
[57] The IHP observed that, unlike the PAUP, its recommended Plan was consistent with the Auckland Plan target of locating 60 to 70 percent of enabled residential capacity in the within the existing urban footprint.61 It considered that the PAUP’s 70/40 capacity distribution between urban and future urban development was not supported by the evidence. It instead “recommended regional policy statement objectives and policies to promote the centres and corridors strategy and quality compact urban form and … deleted the reference to a predetermined 70/40 spatial distribution of that capacity”.62
[58] The recommendations made by the IHP in response to each topic hearing need to be seen in light of this. Among other things, the IHP’s recommendations on matters such as the RUB, residential zoning and rezoning and precincts are guided by a desire to achieve the targets of the Auckland Plan and RPS.
Topic 013 – Urban Growth
[59] Topic 013 addressed the RPS provisions relating to urban growth, the extent to which the PAUP enabled sufficient development capacity to achieve a quality compact urban form, and whether there should be greater recognition of the character and amenity values of existing neighbourhoods with respect to intensification.63
[60] In the Panel’s own words, “urban growth issues permeated most topics heard”,
and thus “the Panel’s response to urban growth issues likewise permeates most topics in
61 At 57-58.
62 At 58.
63 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council Hearing topic 013
– Urban growth (22 July 2016) at 6.
order for the recommended Plan to provide a coherent response to the growth issues
facing the Auckland Region.”64
[61] The Panel recommended a new section B2.4 Residential Growth to address how residential intensification will be provided for. This responded to the Auckland Plan’s envisaged need for 400,000 additional dwellings, and the severe shortfall in the PAUP relative to expected residential demand identified by the two expert groups. The Panel considered the AUP should err toward over-enabling. Many of the corresponding
recommendations on Topic 013 are listed at [54]-[57], including:65
(a) The centres and corridors strategy accompanied by “significant rezoning with increased residential intensification around centres and transport nodes, and along transport corridors (including in greenfield developments)”;
(b)Enabling of capacity in residential, commercial and industrial zones, for example by removing density rules in more intensive residential zones; and
(c) Being “more explicit as to the areas and values to be protected by the Unitary Plan (e.g. viewshafts, special character, significant ecological areas, outstanding natural landscapes, and so forth) and otherwise enabl[ing] development and change”.
[62] On the matter of residential capacity, the IHP projected demand for 400,000 new sites by 2041, and examined the feasible enabled capacity with the PAUP as notified, PAUP with the Council’s modified rules and the IHP recommended Plan. Only the IHP recommended Plan is assessed as providing for the projected demand.
[63] The IHP report on urban growth notes that B2 Urban growth contains fundamental objectives and policies affecting almost all resource management issues in
64 At 6.
65 At 7.
the region and the Panel’s recommendations on this topic influenced its approach to all
other hearing topics.66
[64] The IHP records that the reference documents relied upon by the IHP includes the 013 submission points’ pathway reports and parties and issues reports.
Topics 016, 017 Rural Urban Boundary, 080 Rezoning and Precincts (General) and 081
Rezoning and Precincts (Geographic Areas)
[65] The IHP provided its recommendations on these topics in one report. Previously, on 31 July 2015, it issued interim guidance to all parties about best practice approaches to rezoning, precincts and changes to the RUB. This included observations that zone boundaries need to be defensible and that the IHP would generally avoid spot zoning.67
It also records all parties generally agreed with this overall approach.68
[66] The Panel recommended that the land zoned Future Urban Zone be expanded from 10,100 hectares to approximately 13,000, reflecting that in its view increased residential capacity had to come outside the existing metropolitan limit as well as within.69
[67] An extension of the RUB in the Albany area is recommended “where future development would be an extension of the Albany Village” and “[i]t is easily accessible and infrastructure services can be extended readily to the area given its close proximity to the Village”.70
[68] This report also records that a particular concern for the IHP was the reasonableness of recommended zone changes to persons who were not active
submitters. It observes that where the matter could reasonably have been foreseen as a
66 At 17.
67 Auckland Unitary Plan Independent Hearings Panel Report to Auckland Council – Changes to the
Rural Urban Boundary, rezoning and precincts: Hearing topics 016, 017 Rural Urban Boundary,
080 Rezoning and precincts (General) and 081 Rezoning and precincts (Geographic areas) (22 July
2016) at 5-6.
68 At 8.
69 At 9.
70 At 13.
direct and logical consequence of a submission point, the Panel has found that to be within scope.71 I return this statement of approach below.
[69] The Panel’s approach to precincts and rezoning precincts is said to be in line with the promotion of a quality compact urban form focusing on capacity around centres, transport nodes and corridors.72 This led to recommended upzoning around these features, and while the Panel generally avoided rezoning the inner city special character areas (such as Westmere and Ponsonby), it did so in areas “where other strategic imperatives dominate”, such as Mt Albert.73
[70] The IHP also writes that:74
The Panel’s approach to land use controls has been to, as far as practicable, establish a clear and distinct descending hierarchy from overlay to zone to precinct (where applicable) based on relevant regional policy statement provisions.
…overlay constraints…have generally not been taken into consideration as far as establishing the zoning is concerned. That is, the ‘appropriate’ land use zoning has generally been adopted regardless of overlays. That approach leaves overlays to perform their proper independent function of providing an important secondary consideration, whereby solutions and potential adverse effects can be assessed on their merits. It also avoids the risk of double-counting the overlay issue both at the zone definition and then at the overlay level. In many instances this has resulted in consequential rezoning changes. In Newmarket, for example, the Panel has upzoned the centre to Business - Metropolitan Centre Zone; removed the particular building height restrictions; and relied upon the Volcanic Viewshaft and Height Sensitive Areas Overlay (along with general development controls) to govern individual site structure heights.
As a consequence of the approach to zoning noted above, typically the setting aside of an overlay from a residential site for the purpose of establishing the zoning, has resulted in upzoning of that site by one order of dwelling typology – commonly from Residential - Single House Zone to Residential - Mixed Housing Suburban Zone for instance (indeed, the Residential - Mixed Housing Suburban Zone has become the new ‘normal’ across many parts of the city). This residential upzoning has most commonly arisen from the uplifting of the flooding overlay, which in no way diminishes the relevance of that, or any other, overlay because of its importance in the hierarchy of controls.
71 At 18.
72 At 18.
73 At 18.
74 At 18-19.
[71] The panel also accepted a 400-800m walkability metric from key transport nodes, corridors and town centres from HNZC when applying higher density zones in residential areas, considering that in the long term such zoning was appropriate.75
[72] Finally, the IHP relevantly observes that in areas with dense HNZC property ownership (such as around Mangere township), it has in-filled upzoning across other properties where HNZC sought higher densities to make a more logical block.76
Topics 059-063 – Residential Zones
[73]
follo
The s:77
(a)
relevant overall IHP recommendations relating to residential zoning are as
Provide greater residential development capacity (linked with the spatial
distribution of the residential zones); (b)
Greater development on sites as of right, provided they comply with the development standards; and
(c)
A more flexible outcome-led approach to sites developed with five or more dwellings in the MHS Zone and MHU Zone and for all
development in the THZ.
w
[74] The IHP notes that:78
This report needs to be read in conjunction with the Panel’s Report to Auckland Council – Overview of recommendations July 2016 and Report to Auckland Council – Rural Urban Boundary, rezoning and precincts July 2016 relating to residential zones and precincts, as the combined recommendations provide an integrated approach to residential development – i.e. the various residential zones and the provisions within them and their spatial distribution.
75 At 19.
76 At 20.
77 Auckland Unitary Plan Independent Hearings Panel, above n 51, at 4-5.
78 At 5.
[75] Further:79
In summary the combination of the zonings and zone provisions would not give effect to the regional policy statement’s objectives and policies relating to a quality compact urban form, a centres plus strategy and housing affordability. These are also major policy directives in the Auckland Plan to which the proposed Auckland Unitary Plan must have regard.
It is the Panel’s view that the proposed Auckland Unitary Plan did not have sufficient regard to the Auckland Plan and would not give effect to the regional policy statement as notified nor as amended through the submission and hearing process.
[76] As noted, the issues of capacity for residential growth and spatial distribution of residential and mixed zones are addressed in those reports.80
[77] Specific relevant anticipated outcomes include:81
i. Overall, the residential development capacity has been better enabled by the changes recommended.
ii. The Panel recommends the retention of the zoning structure of the six residential zones, but has recommended a number of changes to the zone provisions…
iii. The purpose of the Residential – Single House Zone has been amended and clarified to better reflect its purpose.
iv. There are no density provisions for the Mixed Housing Suburban, Mixed Housing Urban and Terrace Housing and Apartment Buildings Zones, but development standards and resource consents are applied, as addressed below.
v. Up to four dwellings are permitted as of right on sites zoned Residential – Mixed Housing Urban Zone and Residential – Mixed Housing Suburban Zone which meet all the applicable development standards.
vi. Five or more dwellings require a restricted discretionary activity consent in the Residential – Mixed Housing Suburban Zone and Residential – Mixed Housing Urban Zone
…
xiii. [a number of] development standards, particularly in Residential – Mixed Housing Suburban, Residential – Mixed Housing Urban and Residential – Terrace Housing and Apartment Buildings Zones, have been deleted; some recommended by the Council and others by the Panel…
79 At 10.
80 At 7.
81 At 5-6.
[78] This report also dealt with the type of development enabled by each residential zone. The Panel observed that based on much of the evidence, “residential provisions needed to be more enabling and to provide for greater residential capacity.” 82 The IHP was influenced by the number of submitters including HNZC, Ockham, and MBIE who “considered that the proposed Auckland Unitary Plan fell well short of implementing this strategic direction of providing greater residential intensification.”83
[79] The IHP observed that the combination of zonings and zone provisions would not give effect to the RPS’s objectives and policies relating to a quality compact urban form, a centres based strategy and housing affordability. The IHP referred to and agreed with the evidence given on behalf of HNZC, which suggested that a “bold and innovative approach” which will provide for residential activities and development
would need to include:84
·Moderate increases to the permitted height limits in appropriate locations (being in and around centres, and within walking distance of public transport facilities and other recreational, community, commercial and employment opportunities and facilities);
·Significant reductions in, or removal of, land use density controls (particularly in the Residential – Mixed Housing Suburban and the Residential – Mixed Housing Urban zones);
·A reduction in the currently proposed extensive suite of quantitative development controls, such that a limited number of quantitative controls are retained to address the key matters which have the potential to create adverse effects external to a site, most notably in relation to amenity effects (such as retention of building height, height in relation to boundary and yard, building coverage, impermeable surface controls for instance); with the remainder of controls which relate to potential effects internal to a site being addressed in a more flexible way through the use of design-related matters of discretion and assessment criteria; and
·A simplified yet potentially strengthened, suite of matters of discretion and assessment criteria, particularly in relation to development control infringements (in order to address concerns of neighbours in relation to amenity impacts, and provide clear guidance to processing planner to assist in their assessment), as well as design assessment…
82 At 8.
83 At 10.
84 At 12.
[80] On the SHZ, the Panel referred to a proposal by the Council to recast the SHZ and to the opposing submissions by, among other Auckland 2040. Preferring in part Auckland 2040’s position, the Panel found that the zone applies to:85
i. some inner city suburbs, albeit with the special character overlay;
ii. some coastal settlements (e.g. Kawakawa Bay); and
iii. other established suburban areas with established neighbourhoods (e.g.
parts of Howick, Cockle Bay, Pukekohe and Warkworth).”
[81] The IHP also recommended retaining MHS and the MHU:86
The Panel finds that the Residential - Mixed Housing Suburban Zone will facilitate some intensification while retaining a more suburban character, generally defined by buildings of up to two storeys. The Residential - Mixed Housing Urban Zone will provide for a more intensive building form of up to three storeys, facilitating a transition to a more urban built character over time. The Residential - Mixed Housing Urban Zone also provides for a transition in built character between suburban areas (zoned Residential - Mixed Housing Suburban Zone) and areas of higher intensification with buildings of five to seven storeys in areas zoned Residential - Terrace Housing and Apartment Buildings Zone.
[82] The IHP then recommended the removal of all density provisions in the MHS, MHU and THZ zones, but it rejected an outcome-led approach to development, preferring a combination of a more enabling approach with a rule-based approach.87 For this purpose, some development standards (e.g. unit size) are however recommended for deletion as they do not serve an urban form purpose.
[83] The Report identified submission point pathway reports 059, 060, 062, 063 and
parties and issues reports as relevant to the IHP’s recommendation.
Appeal and review rights
[84] The only appeal rights available in respect of the proposed plan are as follows: (a) The right of appeal to the Environment Court under section 156 or
157 of the Act:
85 At 13-14.
86 At 15.
87 At 16-17.
(b) The right of appeal to the High Court under section 158 of the
Act.
[85] Section 156 and 158 of the Act provide the following rights of appeal (in summary):
(a) Under ss 156 a submitter may appeal to the Environment Court on any decision of the Council accepting a recommendation that was out of scope of the submissions or that rejects an IHP recommendation; and
(b)Under s 158, a submitter may appeal to the High Court on any decision of the Council that accepts an IHP recommendation but only on points of law.
[86] Any decision of the Environment Court may be appealed to the senior courts in the usual way under the appeal provisions of the RMA pursuant to s 308.88 By contrast, appeals to the Court of Appeal are not available pursuant to s 158.89
[87] Section 159 of the Act provides a right to judicially review the decision of the
Council:
159 Judicial review
(1) Nothing in this Part limits or affects any right of judicial review a person may have in respect of any matter to which this Part applies, except as provided in sections 156(4) and 157(5) (which apply section
296 of the RMA, that section being in Part 11 of that Act).
(2) However, a person must not both apply for judicial review of a decision made under this Part and appeal to the High Court under section 158 in respect of the decision unless the person lodges the applications for judicial review and appeal together.
(3) If applications for judicial review and appeal are lodged together, the High Court must try to hear the judicial review and appeal proceedings together, but need not if the court considers it impracticable to do so in the circumstances of the particular case.
[88] As noted in s 159(1), the right of judicial review is subject to s 296 of the RMA, which provides:
88 Local Government (Auckland Transitional Provisions) Act 2010, s 156(4).
89 Section 158(5).
296No review of decisions unless right of appeal or reference to inquiry exercised
If there is a right to refer any matter for inquiry to the Environment Court or to appeal to the court against a decision of a local authority, consent authority or any person under this Act or under any other Act or regulation—
(a) no application for review under Part 1 of the Judicature
Amendment Act 1972 may be made; and
(b) no proceedings seeking a writ of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction in relation to that decision, may be heard by the High Court—
unless the right has been exercised by the applicant in the proceedings and the court has made a decision.
[89] The effect of ss 159(1) of the Act and 296 of the RMA is to prevent a person from bringing a judicial review application where he or she has a right to appeal to the Environment Court against the decision of the Council.
Thresholds for appeal and review
[90] The thresholds for oversight of specialist tribunals are well settled in the RMA jurisdiction.90 This Court is slow to interfere with decisions of the Environment Court within its specialist area.91 The same deference should be afforded to the IHP, having regard to, among other things, the scale, complexity and policy content of its task. But as the question of scope also bears on natural justice considerations, close scrutiny by
this Court is to be expected.92
[91] Accordingly I approach the appellate and review exercises on the following basis. I may test the IHP’s scope decisions for error of law, irrelevant considerations or failure to have regard to relevant considerations, procedural impropriety and/or unreasonableness, which includes a conclusion without evidence or one to which on the evidence it could not have reasonably come.93 The objective of the appeal or review
procedures on the issue of scope is to secure both legality and substantive fairness. To
90 Countdown Properties (Northlands) Ltd v Dunedin City Council (1994) 1B ELRNZ 150 (HC).
91 General Distributors Ltd v Waipa District Council (2008) 15 ELRNZ 59 (HC).
92 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
93 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 90.
this end, I must examine the IHP’s exercise of discretion on scope so as to ensure it was
exercised lawfully and fairly.94
PART C: THE PRELIMINARY QUESTIONS
Did the IHP interpret its statutory duties contained in Part 4 of the Act lawfully, when deciding whether its recommendations to the Council were within the scope of submissions made in respect of the first Auckland Combined Plan?
[92] Several issues arising under this question are addressed in the context of the subsequent questions. The focus of this question at the hearing was whether the frame adopted by IHP for the purpose of identifying out of scope recommendations was correct. I outline the legislative frame on scope and the IHP’s frame below, before turning to the arguments of the parties.
The legislative frame
[93] Section 144 of the Act sets out the IHP’s recommendatory powers:
144 Hearings Panel must make recommendations to Council on proposed plan
(1) The Hearings Panel must make recommendations on the proposed plan, including any recommended changes to the proposed plan.
(2) The Hearings Panel may make recommendations in respect of a particular topic after it has finished hearing submissions on that topic.
(3) The Hearings Panel must make any remaining recommendations after it has finished hearing all of the submissions that will be heard on the proposed plan.
Scope of recommendations
(4) The Hearings Panel must make recommendations on any provision included in the proposed plan under clause 4(5) or (6) of Schedule 1 of the RMA (which relates to designations and heritage orders), as applied by section 123.
(5) However, the Hearings Panel—
(a) is not limited to making recommendations only within the scope of the submissions made on the proposed plan; and
94 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733.
(b) may make recommendations on any other matters relating to the proposed plan identified by the Panel or any other person during the Hearing.
(6) The Hearings Panel must not make a recommendation on any existing designations or heritage orders that are included in the proposed plan without modification and on which no submissions are received.
Recommendations must be provided in reports
(7) The Hearings Panel must provide its recommendations to the Council in
1 or more reports.
(8) Each report must include—
(a) the Panel’s recommendations on the topic or topics covered by the report, and identify any recommendations that are beyond the scope of the submissions made in respect of that topic or those topics; and
(b) the Panel’s decisions on the provisions and matters raised in submissions made in respect of the topic or topics covered by the report; and
(c) the reasons for accepting or rejecting submissions and, for this purpose, may address the submissions by grouping them according to—
(i) the provisions of the proposed plan to which they relate;
or
(ii) the matters to which they relate. (9) Each report may also include—
(a) matters relating to any consequential alterations necessary to the proposed plan arising from submissions; and
(b) any other matter that the Hearings Panel considers relevant to the proposed plan that arises from submissions or otherwise.
(10) To avoid doubt, the Hearings Panel is not required to make recommendations that address each submission individually.
[94] Mandatory relevant criteria for the purpose of making recommendations are listed at s 145. Key among those criteria are ss 145(1)(d) and (f):
(d) include in the recommendations a further evaluation of the proposed plan undertaken in accordance with section 32AA of the RMA; and
…
(f) ensure that, were the Auckland Council to accept the recommendations, the following would be complied with:
(i) sections 43B(3), 61, 62, 66 to 70B, 74 to 77D, 85A,
85B(2), 165F, 165G, 168A(3), 171, 189A(10), and 191 of the RMA:
(ii) any other provision of the RMA, or another enactment,
that applies to the Council’s preparation of the plan.
[95] Section 148(3) also relevantly states:
(3) To avoid doubt, the Council may accept recommendations of the Hearings Panel that are beyond the scope of the submissions made on the proposed plan.
The IHP approach to scope
[96] It is important not to cherry pick parts of the Panel’s explanation of its approach to scope and with that qualification in mind, I find that the IHP approach included the following key elements:
(a) Consideration of:95
(i) The plan provisions as notified, together with any relevant section
32 reports prepared by the Council;
(ii) The submissions and further submissions;
(iii) Material lodged by the Council and submitters;
(iv)The relevant plan-making provisions of the RMA, especially sections 32 and 32AA and the provisions specifically listed in section 145(1)(f) of the Act;
(v) The Auckland Plan; and
95 Auckland Unitary Plan Independent Hearings Panel, above n 19, at 28-29.
(vi)The specialist knowledge and expertise of the members of the Panel in relation to making statutory planning documents based on sound planning principles
(b)An acknowledgement of the power to make out of scope recommendations;96
(c) The guidance afforded by existing jurisprudence on scope;97
(d)The Panel’s recommendations generally lie between the provisions of the Unitary Plan as notified and the relief sought in submissions on the Unitary Plan, including consequential amendments that are necessary and desirable to give effect to such relief.98
(e) Identifying four types of consequential change:99
(i) Format/language changes; (ii) Structural changes;
(iii)Changes to support vertical/horizontal integration and alignment, to give effect to policy change, to fill the absence of policy direction, and to achieve consistency of restrictions or assessments and the removal of duplicate controls; and
(iv)Spatial changes, for example where a zone change for one property raises an issue of consistency of zoning for neighbouring properties and creates difficulty in identifying a rational boundary.
(f) On changes supporting vertical integration, following a top down approach so that consequential amendments to the plan to achieve
integration with overarching objectives and policies, which were drawn
96 At 28.
97 At 26-28.
98 At 24.
99 At 29-30.
from higher level policy statements. Given the logical requirement for a plan to function in this way, these changes would normally be considered to be reasonably anticipated.100
(g)On the issue of spatial consequential changes, where there were good reasons to favour rezoning sought in a submission and good reasons to include neighbouring properties as a consequence, even where there were no submissions from the owners of them neighbouring properties, including the neighbouring properties in recommendations because it saw that the overall process including notification, submission, summarising points of relief, further submission and late submission and further submission windows provided the real opportunity for participation by
those potentially affected.101
(h) Assessing consequential changes in several dimensions, being:102
(i)Direct effects: whether the amendment would be one that directly affects an individual or organisation such that one would expect that person or organisation to want to submit on it.
(ii)Plan context: how the submission of a point of relief within it could be anticipated to be implemented in a realistic workable fashion; and
(iii)Wider understanding: whether the submission or points of relief as a whole provide a basis for others to understand how such an amendment would be implemented.
(i)Framing the assessment of scope provided by broadly couched submissions in response to the resource management issues which can be identified in relation to them and in the context of many other
submissions which are relevant to more detailed aspects of the AUP
100 At 32.
101 At 34.
102 At 30.
| apply the new MHU zone to all residential sites with access off all main arterial and connecting road such as New North Road, Sandringham Road, Dominion Road, Mt Eden Road, Manukau Road, Great South Road, Pt Chevalier Road, Great North Road etc; and reduce the extent of the Single House zone accordingly. Refer to Figure 1 showing arterials and collectors where the MHU should be applied on page 26/92 of the submission. | roads such as New North Road, Sandringham Road, Dominion Road, Mt Eden Road, Manukau Road, Great South Road, Pt Chevalier Road, Great North Road and so on” | |
| 6099-5 | Reduce the size of the Single House zone. | “Decrease the size of the Single House zone.” |
| 6099-6 | Extend the Terrace Housing and Apartment Buildings (THAB) zone to cover all residential sites located with five minutes walking distance of all main arterials and connecting roads such as New North Road, Sandringham Road, Dominion Road, Mt Eden Road, Manukau Road, Great South Road, Pt Chevalier Road, Great North Road etc; and reduce the extend of the Mixed Housing Suburban and Single House zones accordingly. Refer to Figure 1 showing example of where the THAB zone should be applied on page 26/92 of the submission. | “Enlarge the THAB zone to all residential sites located within 5 minutes’ walk of all main arterials and connecting roads – such as New North Road, Sandringham Road, Dominion Road, Mt Eden Road, Manukau Road, Great South Road, Pt Chevalier Road, Great North Road etc and reduce the extent of MHS and Single house zone accordingly.” |
| 6099-7 | Rezone all land within 10 minutes walking distance of train stations and transport nodes (except for Business zoned land) to Terrace Housing and Apartment Buildings zone. | “Zone all land within 10 minutes’ walk of train stations and transport nodes [which is not Business zoned] as THAB.” |
| 6099-10 | Delete all density controls. | “Remove all density related controls for the residential zones and Mixed Use zone except that for the Single House zone a minimum subdivision gross site area of |
| Property Council New Zealand | 6212-2 | Review all rules and requirements in the PAUP to ensure they achieve the RPS objectives and policies 2.1 and 2.3 |
| 6212-3 | Retain policies. |
| 6212-4 | Review all rules and requirements to ensure they achieve the RPS targets for urban growth. | ||
| Auckland Property Investors Association Inc | 8969-2 | Extend the Terrace Housing and Apartment Buildings zone to more sites, particularly along arterial roads and within 700m walk of railway stations and centres. | “We submit that more sites particularly along all arterial roads, within 700 metres walk away from railway stations, town centres and shopping centres should have a THAB zone classification.” |
| 8969-3 | Combine the Mixed Housing Urban and Suburban zones to a single zone encompassing 50% of all residential sites in Auckland and apply the proposed Mixed Housing Urban controls to it. | “We submit that there should be a return to a single Mixed Housing Zone encompassing approximately 50% of all residential sites in Auckland, and this should have the same planning controls of the Mixed Housing Urban Zones as set out in the PAUP notified on 30 September 2013.” | |
| Ministry of Business, Innovation and Employment | 6319-1 | Align policies and rules with strategic objectives to provide sufficient capacity for growth including through appropriate density provisions and zoning. | “MBIE’s concern with the Unitary Plan as proposed is that it does not follow through on its strategic objectives (which are generally supported) with appropriately-aligned policies and rules: - By not providing sufficient capacity through which appropriate zonings and density provisions to meet Auckland’s forecast growth” |
| 6319-2 | Align policies and rules with strategic objectives to provide sufficient capacity for growth including freeing development from complicated policies and rules. | “…By failing to free development from complicated policies and rules that will create high transaction costs, thereby limiting innovation and responsiveness of | |
| 6319-4 | Amend the zoning, overlays and development controls and other rules such that they do not constrain provision of sufficient residential development to meet Auckland’s long term (30 year) growth projections and proactively enable efficient growth in areas of high market demand. | “The general relief sought is that: - Where necessary to achieve alignment with the objectives of the Auckland Plan and the Regional Policy Statement sections of the Proposed Unitary Plan are adjusted and amended such that they do not constrain provision of sufficient residential development to meet Auckland’s long term (30 year) growth projections, and proactively enable efficient growth in areas of high market demand.” | |
| 6319-7 | Enable more residential development through green field expansion and by enabling greater density in existing neighbourhoods. | “Unless supply is increased it is unlikely that a substantial change in house prices will be achieved, given increasing demand and restricted supply, unless the proposed Unitary Plan enables more residential development through both greenfield expansion, and just as importantly, by enabling greater residential densities in existing neighbourhoods.” | |
| 6319-8 | Amend zoning provisions to correct the misalignment between areas of high demand and the areas where growth is provided for. | “…the misalignment between the regional level objectives and the district-level provisions are expressed through: … - A deliberate down-zoning apparent between the draft Unitary Plan released |
| in March 2013, and the proposed version, creating a misalignment between areas of high demand and the areas where growth is provided for, which may create additional uncertainty for infrastructure providers, and additional cost to housing provision as developers challenge through out-of-zone consents, the development rules and zonings in order to achieve economically viable development.” | |||
| 6319-10 | Clarify why many zoning decisions across the city have been made. Inefficient use of market attractive land and protecting the micro amenity of neighbourhoods in the short term will seriously compromise the macro-utility of the city as a whole. | “There is little justification for why many zoning decisions across the city have been made – i.e. why ostensibly market-attractive areas near transport and employment etc have been zoned at low densities (or lower densities than indicated in the draft Auckland Unitary Plan in March 2013). Inefficient use of market attractive land while protecting micro-amenity of neighbourhoods in the short term will seriously compromise the macro-utility of the city as a whole, and detract from the overarching vision of Auckland as the world’s most liveable city – attractive, economically efficient and socially equitable.” | |
| 6319-11 | Amend the zoning, overlays and density rules to re-establish and ensure alignment with the strategic objectives of the Auckland Plan and the Regional Policy Statement to provide sufficient development capacity. | “MBIE seeks amendment to the zoning and density rules pertaining across the region to re-establish and ensure alignment with the strategic objectives of the Auckland Plan and the Regional Policy Statement sections of the proposed Unitary Plan, with the zoning, overlays and development controls and other rules adjusted to provide sufficient residential development capacity and land-supply – particularly in areas of high-market demand – to meet Auckland’s long-term (30 year) growth projections.” | |
| Community of Refuge Trust (CORT) | 4381-2 | Reject the Compact City notion that large segments within the city (Single House + Mixed Housing Suburban zones) can avoid responsibility for intensification based on the argument that their areas are somehow special due to their character, identity and heritage. | “CORT opposes the Compact City notion that large segments within the city (Single House + Mixed Housing Suburban zones) can avoid responsibility for intensification based on the argument contained within 3.3 that their areas are somehow special due to their character, identity and heritage. The Council already has existing tools to protect these characteristics if they are truly unique. To argue that 85% of the city including the Single House, Large Lot, Rural & Coastal and Mixed Housing Suburb zones are all special zones that exclude medium density housing is a counterproductive to the success of the Compact City model.” |
| Tim Daniels | 4600-1 | Retain compact city model approach to intensification. | “I fully support the compact city model approach to intensification, in particular the concept of land within and adjacent to centres, frequent public transport routes and facilities being the primary focus for residential intensification.” |
| 4600-2 | Retain density approaches in zoning particularly the no density provision allowed for in the Terrace Houses and Apartment Buildings and Mixed Housing Urban zone. | “I also fully support the approaches to density in the zoning approaches especially the no density provision allowed for in THAB and within mixed housing urban as this will provide for additional growth in areas where public transport is highest and allows for sustainable development of the city.” |
| 4600-3 | Rezone areas around bus routes along strategic roads (e.g., Great North Road, New North Road and Dominion Road) to Terrace Housing and Apartment Buildings and Mixed Housing Urban. | “When you look at the zoning along the key bus routes along strategic roads such as Great North Road, New North Road and Dominion Road where high frequent buses are currently located and are going to be further enhanced by Auckland Transport investment strategy in coming years the zoning is not as high as it could be in parts. It is suggested that these areas and other similar roads should be re-considered in respect of there zoning and upzoned as appropriate to THAB and mixed housing | |
| Jacques Charroy | 5116-1 | Rezone (e.g. to Terrace Housing and Apartment Buildings) to increase the housing stock close to the city centre ie. in the inner suburbs of Parnell, Mt Eden, Epsom, Mt Albert, Kingsland, Freemans Bay, Ponsonby, Grey Lynn and Arch Hill. | “Transport and housing issues are intimately linked and could be best solved together by increasing the housing stock close to the city center, thereby reducing the need for transport, ie in the inner suburbs of Parnell, Mt Eden, Epsom, Mt Albert, Kingsland, Freemans Bay, Ponsonby, Grey Lynn, Arch Hill etc ... This is where densification of housing needs to happen first and be the most intense, regardless of what the few people living there at the moment want. The effect of this would be a more manageable transport system, giving the residents of these areas the choice of walking or biking to downtown Auckland as an alternative to taking the bus. This would help alleviate congestion much more readily than what the current plan would do.” |
| Habitat for Humanity Greater Auckland Limited | 3600-10 | Delete the Single House zone. | “Habitat submits that the Single Housing Zone be abolished in an effort to ensure that the area within the RUB is able to be developed to its full potential.” |
| Louis Mayo | 4797-106 | Rezone almost all of the Auckland Isthmus area as Mixed Housing, and delete all Single House zone within the Isthmus area. | “[A]lmost all of the Auckland Isthmus area should be included in the mixed housing urban zone. There is no reason for anywhere in the Isthmus to be in the single housing zone as it meets all the prerequisites for high-quality densification.” |
| Ben Smith | 4796-2 | Reconsider allocation of residential zoning to ensure the Auckland Plan requirement of 60-70% of 13,000 new dwellings per year be built within the 2010 MUL. | “The Auckland Plan clearly outlines Auckland's housing shortage and the need for 13,000 new homes in Auckland every year for the foreseeable future. Point 129 of the Auckland Plan outlines 60% to 70% of total new dwellings inside the existing core urban areas as defined by the 2010 MUL. The Auckland Plan also specifies that the Council will be responsive to the strong demand for housing in Auckland and ensure that supply of housing meets demand. Point 132 of the Auckland Plan specifies that ''The Unitary Plan will support this strategy. Auckland Council will implement enabling zoning across appropriate areas in the new Unitary Plan. This will maximise opportunities for (re)development to occur through the initial 10- to15-year life of the Unitary Plan, while recognising the attributes local communities want maintained and protected" … |
| In order to achieve this objective, the Auckland Council should amend zoning allocation, building heights, and building coverage. If the Proposed Plan is not declined, then amend it as outlined below: Pertaining to the zoning allocation of the Unitary Plan: - Re-zone some areas currently planned for Single Housing for the Mixed Housing Suburban Zone. - Re-zone some areas currently planned for Mixed Housing Suburban for the Mixed Housing Urban Zone - Re-zone some areas currently planned for Mixed Housing Urban for the Terraced Housing/Apartments Zone.” | |||
| 4796-1 | Upzone some areas of Auckland to provide for more housing. For example: Rezone areas of Single House to Mixed Housing Suburban, areas of Mixed Housing Suburban to Mixed Housing Urban and areas of Mixed Housing Urban to Terraced Housing and Apartment Buildings [no specific locations provided]. | ||
| Generation Zero | 5478-2 | Retain the compact city model. | |
| 5478-8 | Amend Objective 2: Up to 70 per cent of total new dwellings by 2040 occurs is | “Generation Zero supports the aim for 70% of urban growth over the next 30 years to be within the 2010 MUL….The wording need to confirm that, by 2040, 70 per cent of development is occurring within the 2010 MUL and that no more than 40 per cent of development has occurred outside the 2010 MUL.” | |
| 5478-57 | Upzone across the urban area where this supports the Regional Policy Statement aims of intensifying near centres and in areas accessible to high quality public transport. | “These areas of upzoning alone are not enough to meet the 70% intensification target. Therefore we also give more general support to other areas of upzoning across the urban area where that upzoning supports the proposed Regional Policy Statement aims of intensifying near centres and in areas accessible to high quality public transport.” | |
| Cranleigh | 7491-1 | Rezone to provide for more density around areas where there is a high level of amenity, such as parks and coastlines, not just around town centres | “The PAUP identifies the importance of focusing density around town centres and major transport corridors. However, the principle of placing “greatest density” on |
| and major transport corridors | attached housing and apartment market, then the opportunity to focus this lifestyle where there is a high level of amenity and a market demand for it is a great opportunity – areas such as parks and coastlines are an obvious example of this principle. The PAUP does not deliver on this. |
| APPENDIX C | |||
| KEY FURTHER SUBMISSIONS TO THE IHP | |||
| Submitter | Number | Submissions Opposed | Key Quotes |
| Auckland 2040 | 412 | Oppose: Generation Zero | Support: “The submission by Generation Zero, if allowed, would have the effect of removing the distinction between the MHS and MHU zones.” “Not only would the maximum height and densities be similar but most significantly the requested increase in height would permit unrestricted apartment development across all residential areas other than those zoned SH. The submissions also seek a significant reduction in the SH zone and Character areas.” “The MHU and THAB zones in PUP have been located primarily around arterial roads and commercial centres. These zones encourage removal of the existing housing and its replacement with high density and multi storey development. Auckland 2040 is not opposed to such zonings, but is opposed to development occurring in an uncoordinated, haphazard fashion…They also seek significant extension of those zones which will add further to the issues as expressed above.” |
| Oppose: New Zealand Institute of Architects and Urban Design Forum | “ “ | ||
| Oppose: Property Council of New Zealand | “ “ | ||
| Oppose: Housing New Zealand Corporation | “ “ | ||
Oppose: | “ “ | ||
| Ockham Holdings Limited | |||
| Character Coalition | 2209 | Oppose: Property Council New Zealand | Support: The submission by Property Council, if allowed, would have the effect of removing the distinction between the MHS and MHU zones.” “Not only would the maximum height and densities be similar but most significantly the requested increase in height would permit unrestricted apartment development across all residential areas other than those zoned SH. The submissions also seek a significant reduction in the SH zone and Character areas.” “The MHU and THAB zones in PUP have been located primarily around arterial roads and commercial centres. These zones encourage removal of the existing housing and its replacement with high density and multi storey development. The Character Coalition is not opposed to such zonings, but is opposed to development occurring in an uncoordinated, haphazard fashion…They also seek significant extension of those zones which will add further to the issues as expressed above.” |
| Oppose: New Zealand Institute of Architects | “ “ | ||
| Oppose: Housing New Zealand Corporation | “In order to accommodate Auckland’s residential growth, intensification within our existing suburbs will be required, but Council must ensure a development mix is sensitive to the existing character of Auckland’s residential areas. Council must balance the need for intensification with the desirability, including economic, of retaining the residential character of the majority of the suburbs.” | ||
| Howick Ratepayers and Residents Association | 216 | Oppose: New Zealand Institute of Architects and Urban Design Forum | “The submission by Institute of Architects and Urban Design Forum, if allowed, would have the effect of removing the distinction between the |
| Incorporated | MHS and MHU zones.” “Not only would the maximum height and densities be similar but most significantly the requested increase in height would permit unrestricted apartment development across all residential areas other than those zoned SH. The submissions also seek a significant reduction in the SH zone and Character areas.” “The MHU and THAB zones in PUP have been located primarily around arterial roads and commercial centres. These zones encourage removal of the existing housing and its replacement with high density and multi storey development. Howick Ratepayers and Residents Association Inc is not opposed to such zonings, but is opposed to development occurring in an uncoordinated, haphazard fashion…They also seek significant extension of those zones which will add further to the issues as expressed above.” |
| Oppose: Ockham Holdings Limited | “ “ |
| Oppose: Generation Zero | “ “ |
| Oppose: Property Council New Zealand | “ “ |
| Oppose: Housing New Zealand Corporation | “ “ |
| Support: Howick Ratepayers and Residents Association Incorporated | “It is a grave oversight of the Unitary Plan that Old Howick has not been gazetted as an Historic Heritage Suburb Area. We believe that Historic Howick must be recognised as a special “Village” and that the suburban nature of this Village based around second oldest Selwyn church in NZ and the traditional Pub, market place and village square and memorials to early Maori and Pioneers must be preserved at all costs.” |
| “We reject the progressive whittling away of protection for old Howick as seen in the maps below – from Heritage status to Single House with an overlay, to parts downgraded yet further to the Mixed Housing Suburban zoning.” “We fear the haphazard approach to development which will be fostered any undifferentiated zoning as it stands whereby incongruous newly developed large edifices could be built in areas of predominantly pre 1944 homes leading to an ugly intrusion in a character landscape and devaluing the esthetic (sic) appearance of whole neighbourhoods.” |
23