Palmerston North developer John Farquhar’s commitment to intensification on an 8ha site above Oteha Valley Rd at Albany hasn’t wavered despite a conflict with officialdom over 18 years, first with the North Shore City Council and, since 2010, Auckland Council & Auckland Transport.
On the Friday before Christmas, Mr Farquhar’s companies, North Eastern Developments Ltd & Heritage Land Ltd, won a telling judgment from the Court of Appeal setting aside decisions of Auckland Council & the independent hearings panel on the council’s new unitary plan, and directing the council & the panel to make new decisions.
The Court of Appeal bench which heard the case comprised Justices Raynor Asher, Graham Lang & Simon Moore.
The central issue in the court’s finding of procedural unfairness was that the panel had relied on council evidence which the council had indicated to Mr Farquhar it would no longer rely on. The council then changed its mind, relied on this evidence but didn’t notify Mr Farquhar & his companies, whose lawyer had obtained permission to cross-examine the council planning witness in question but, unaware of the change of mind, didn’t pursue that cross-examination.
Over a period when the term “crisis” has been in daily use in reference to the lack of provision of new housing in Auckland, the unitary plan hearings panel recommended to the council in July 2016, and the council then decided in August 2016, not to adopt the Albany 5 precinct and not to zone the land within the proposed sub-precinct B business – mixed use.
Those zonings are central to Mr Farquhar’s intention to develop up to 500 apartments, plus some commercial & retail outlets, on 8ha at 56 Fairview Avenue and 129 & 131 Oteha Valley Rd.
Intensification plans date back to 2001
Mr Farquhar, whose family has been heavily involved in development in Palmerston North for 80 years, bought the bulk of his 8.4ha Oteha Valley site in 2001 and a small access lot in 2006. He secured regional land use consents in 2004, but North Shore City Council eventually declined consents for all 3 components of his proposed development in 2009. A joint memorandum resolved the appeals in principle in July 2012.
Then came an application by Auckland Transport to extend Medallion Drive, an arterial route running through the suburbs between the Northern Motorway (State Highway 1) & East Coast Rd, so it would cross Oteha Valley Rd, rising to Lonely Track Rd via Fairview Avenue to improve access for new housing above the old Albany village and the newer Albany City developments. Lonely Track Rd is the boundary between the urban North Shore and a bush precinct above the southern edge of rural Rodney.
The panel recommendation
On the Albany 5 precinct, the unitary plan panel said in its recommendation: “The purpose of the precinct was to establish a policy & rule framework for the land that recognised its potential for intensive residential development to a higher intensity & height than that set as the benchmark for the residential – terrace housing & apartment buildings zone and for a mixed use development fronting Oteha Valley Rd. The precinct sought the inclusion of 3 sub-precincts to provide for differing building heights:
- Sub-precinct A: 27m on the major, more elevated part of the site fronting Fairview Avenue
- Sub-precinct B: 23m for the mixed use area along Oteha Valley Rd, and
- Sub-precinct C: The southernmost and lowest area of the site, 34m or 60m through the residential – terrace housing & apartment buildings zone.
“The underlying zone of the proposed new precinct under the notified proposed unitary plan is mixed housing suburban & mixed housing urban. Those zones provide for a maximum building height of 8m & 11m respectively, and yard controls ranging from 1.3m to 2.5m. The proposed new precinct would more than double the maximum building height limits from those proposed in the underlying zones. The zone controls for building height & yards are set at levels that are appropriate for the zone. A proposal to exceed the height limits can be pursued through a resource consent application. The resource consent process would involve assessment of any dominance, privacy & shading effects on the surrounding neighbourhood.”
Whether or not one planner’s evidence was unfairly submitted, the panel’s suggestion that a proposal to exceed height limits could be pursued through a resource consent application was an abysmal failure to acknowledge 15 years of applications, litigation & decisions relating to more intensive use of land just 2.2km from the Westfield mall at Albany, and on a road where the first serious attempt at intensification was undertaken in the 1980s.
The hearing panel said evidence of Auckland Council planner Terry Conner explained why the council didn’t support the change of zoning Mr Farquhar sought: “In summary, it is inappropriate to encourage more intensive residential development in this area without appropriate assessment of the effects.”
Hearings panel chair David Kirkpatrick, now an Environment Court judge, heard plenty of evidence about intensification of this site in 2013, as a council hearing commissioner.
Ms Conner’s evidence to the hearings panel in January 2016 highlighted these points:
- Do not support change to terrace housing & apartment buildings of either site, due to access concerns, but support an alternative change for 39 Fairview Ave from single house/mixed housing suburban to solely mixed housing suburban to avoid split zoning. Mixed housing suburban is an appropriate zone for properties not close to centres and the regional freight network to recognise the planned suburban built character of the area. Mixed housing urban is proposed to be retained on 56 Fairview. Access to much of this area is constrained by a 1-lane bridge and is not conducive to a safe pedestrian walk to public transport. Retention of the respective zones and the proposed change to mixed housing suburban are the most appropriate ways to achieve the objectives of the mixed housing suburban & mixed housing urban zones and gives effect to the regional policy statement, and
- The outcome of the Environment Court hearing of the proposed Auckland Transport requirement for improvements at Medallion Rd, currently underway, may have a material impact on this issue.
Panel agreed with potential, but adopted council conclusions
The panel said it agreed with Mr Farquhar that “this site has considerable potential for residential development,” but said it wasn’t convinced by the evidence that a precinct as proposed “is necessary or appropriate. The panel supports the evidence on behalf of the council in opposing the precinct provisions.
“The panel has instead agreed with the submitter [Mr Farquhar] that a more intensive zoning is appropriate and has recommended that the entire 8ha site be rezoned residential – terrace housing & apartment buildings zone. The proposed business – mixed use zone for a portion of the land is not supported in this location, which is relatively close to but physically separated from the nearby metropolitan centre at Albany. If any future specific proposal seeks to exceed the height provisions of that zoning, the panel considers that such a proposal would need to be tested by way of a resource consent application.
“The panel is confident that the Auckland-wide provisions, together with the provisions of the residential – terrace housing & apartment buildings zone, will appropriately enable the future development of this site, give effect to the regional policy statement and achieve the purpose of the Resource Management Act 1991.”
The panel then set out its formal recommendations & reasons: “The panel, having regard to the submissions, the evidence & sections 32 & 32AA of the Resource Management Act 1991, recommends that the Albany 5 precinct not be adopted. The rezoning of the land within the proposed precinct to residential – terrace housing & apartment buildings zone is considered the most appropriate way to enable the development of the proposed precinct site and to give effect to the regional policy statement and achieve the purpose of the Resource Management Act 1991.”
A straightforward proposal
Mr Farquhar’s summarised evidence was that the site was eminently suitable for intensification: “This precinct is located between Oteha Valley Rd & Fairview Avenue east of Albany Town Centre. It involves nearly 8ha of greenfield land which is fully serviced and is close to community facilities, employment & transport infrastructure. The precinct presents a rare opportunity for comprehensive development for intensive apartment living together with a mixed use commercial centre on Oteha Valley Rd that serves the adjacent residential catchment.
“A degraded section of the Waikahikatea Stream flows through the site parallel to Oteha Valley Rd, in particular along the interface between sub-precincts A & B. There is potential for this part of the stream corridor to be redeveloped as part of a comprehensive development to provide significant environmental & amenity benefits for the future precinct community as well as effective connections to the surrounding areas.
“Active investigation of development of this land has been underway since 2001.
“There are several sub-components to the precinct (called sub-precincts) where particular outcomes can be achieved through objectives & policies, however the intention is to ensure that while development may occur in stages there is integrated development with each sub-precinct to secure the objectives & policies for this precinct.
The landform & size of the precinct means that it could be capable of accommodating taller buildings than the underlying zones in order to enable the achievement of a vision for the site that includes:
- Extensive redevelopment of the stream corridor along the interface between sub-precinct A & B with intimate connection to adjacent activities
- Clear & generally flat pedestrian connections through & within the precinct
- Maximising underground carparking for residents & the commercial activities
- Maximising functional communal open space through a range of structured spaces
- Strong community focus with a range of community facilities such as gym, swimming pool, childcare
- A mixed use centre providing shops, cafés & restaurants serving not only the precinct but wider catchment
- Access & mobility-friendly design throughout the precinct, and
- Planned points of vehicle access from both Fairview Avenue & Oteha Valley Rd.
“The purpose of the precinct is to provide a policy & rule framework that encourages & supports building efficiencies only available to such large, fully serviced sites and realises the community potential that stems from a comprehensive & integrated development, including benefits to the wider catchment.”
Mr Farquhar’s proposals for the 3 sub-precincts were:
- Sub-precinct A, most of the site, is suited to high density residential apartment living
- Sub-precinct B, the land fronting Oteha Valley Rd, is suited to commercial & retail service activities, with apartments above ground-floor level, and
- Sub-precinct C, the southern part of the site, is suited to high density apartment living; the boundary between sub-precincts A & C is the easterly side of the proposed Medallion Drive extension as proposed by Auckland Transport.
Following a revision by the High Court of its original decisions, the Court of Appeal ruled that costs should be re-apportioned in accordance with the appeal outcome.
Court of Appeal decision 21 December 2018, North Eastern Investments Ltd & Heritage Land Ltd v Auckland Council (2018 NZCA 629)
Independent hearings panel recommendations, 22 July 2016, Changes to rural urban boundary, rezoning & precincts, annexure 4 precincts north (at page 158)
Auckland Transport, Albany developments
27 January 2016: Commissioner agrees long designation period for link road above Oteha Valley, but supports landowner’s fast-track proposal
20 September 2013: Plan change above Oteha Valley approved
16 September 2013: 420-plus homes ready to go, but council might take decade putting road to elsewhere through site
9 May 2007: Rezoning to give greater density above Oteha
Attribution: Court of Appeal, hearings panel.