Archive | Spatial plan

Orakei Pt apartment building shift knocked back in 11-10 council vote

The developer of the Orakei Point apartment & mixed use precinct beside the Orakei railway station has been turned down – sort of – in an 11-10 council committee vote over a proposed 15.75m shift in position of the Peninsula apartment building.

The “sort of” above arises because the majority vote was against accepting the private plan change application for notification. Without a follow-up recommendation, the proposal was left in abeyance, and there was no subsequent proposal to adopt the plan change request (which would require the council to take it forward), or to reject it, or to deal with it as if it was a resource consent application.

Instead, committee chair Chris Darby resolved that the committee should defer a decision on the application to its next meeting.

Orakei Point Trustee Ltd (headed by Kerry Knight) has 5.9ha of partially redeveloped land on the Hobson Bay side of the small peninsula between Hobson Bay & the Orakei Basin, and in earlier development proposals it was this company’s & previous developer Tony Gapes’ intention to take development over the railway tracks, incorporating a station in the new structure, but neither Auckland Transport nor KiwiRail wanted that, citing maintenance as their major obstacle.

The development masterplan has been put in place with the section of it over the tracks eliminated, although it could be revived. KiwiRail was also keen to get a 5m gap between the tracks & development, but was turned down on that score when the masterplan was signed off.

Orakei Point Trustee Ltd’s new proposal is to rezone 413m² from open space–informal recreation to business–mixed use, enabling the 32-apartment Peninsula building to be moved 15.75m westward. The building would have up to 9 floors as stage 1 of a larger development.

But members of Auckland Council’s planning committee focused on encroachment by the repositioned building on open space – which is privately owned – around the edge of the Orakei Point peninsula.

The outcome of the 11-10 committee vote was not to reject the application for a private plan change enabling the repositioning, but not to accept it.

Aftera half-hour lunch break, committee chair Chris Darby opted to defer a decision until the committee’s next meeting instead of pursuing his immediate post-vote intention to move the plan change be rejected.

The open space belt around the peninsula’s edge was set aside to provide public access to the Hobson Bay walkway & cycleway, and to landscape the edge. However, principal planner Bruce Young said in his report to the committee the council’s parks & recreation policy staff no longer supported acquiring that land for access to the walkway, preferring a route along Orakei & Ngapipi Rds.

Council central south planning manager Celia Davison said the new area for the building was privately owned open space: “They want to move the zoning because they believe it would give a better outcome. Our open space team are not interested in that piece of land… The designation is quite a long way from rail. They want to move the building to give better distance between rail & their building.”

On the basis of the building occupying that open space, the Orakei Local Board opposed the change. The board’s former chair, Desley Simpson, in her second term as Orakei ward councillor, was concerned that the development could detrimentally affect rail in future, and told staff a lot of information was missing from their report.

Cllr Wayne Walker raised his regular concern about climate change impacts, although principal planner Mr Young said the new site was “not significantly lower” than the previous one. Cllr Walker, like Cllr Simpson, said he had “real concerns about the futureproofing of our transport network”.

Cllr Mike Lee commented: “The unitary plan & the masterplan, I was under the impression settled the controversy and a sound planning decision was made to protect that coastal edge, and that was part of the delay. Now after all that expense the owner has decided they want to encroach on that public open space [as above, it’s not public]. Obviously the owner wasn’t required to make a reserve contribution. Can we have some background into the idea of this requirement that the edge be open space?”

Ms Davison said she’d find out.

There was a lot more debate on both this plan change & one for Warkworth North around the politicians’ role. I’ll return to that in a further story.

Earlier story:
1 September 2018: Equinox wins consent for Peninsula at Orakei Bay Village

Attribution: Council committee meeting & agenda.

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Council opts for slower course of accepting rather than adopting Warkworth North plan change

Auckland Council’s planning committee opted on Tuesday for the slower course of accepting a plan change for a potential 1200 houses at Warkworth rather than adopting it. Under the second option, the council would have picked up the plan change and guided it through its regulatory processes.

The difference is a matter of timing. In this case, the slower process means the developer, Turnstone Capital LP (Mark Francis, chief executive of NZX-listed Augusta Capital Ltd), may miss the next earthworks season, pushing housing availability back a year.

The committee also went into a long round of debate on issues not really relevant to this decision, which I may return to later.

Image above: Warkworth’s future urban zone is in yellow, the Warkworth North structure plan area is outlined or coloured in purple, and the Turnstone plan change area is hached.

The cause of council planners’ concern, reflected in the committee debate, was that the council has its own Warkworth North structure plan also going through the hoops, and the planners want that in place first, rather than find differences requiring a variation. The difference in timing is only a matter of months, but in terms of conditions for starting construction could end up being a year.

Council plans & places general manager John Duguid said structure planning was nearing a conclusion for 4 areas around Warkworth, including the north: “We are close to a timeframe for consultation in the next couple of weeks, back to the committee as a final structure plan in May or June for the whole of Warkworth.

“To release all of that land at the same time would be at a significant cost. The decision was made to release the land in the north first, east & south later, in the second & third decades.”

The entire Warkworth future urban area covers about 1000ha, mostly in rural uses, which will be rezoned to residential & business zones.

The estimate is that Turnstone’s 99ha up for rezoning (out of a total 125ha site) could take 1000-1200 new dwellings, 13ha of light industry & a new 3000m² neighbourhood centre.

It’s just over 2 years since the Auckland unitary plan was made partly operative. Since that event in October 2016, the council has been progressively making more of it operative, as appeals are resolved. The unitary plan covers the whole region, covering the area which until 2010 contained 4 cities & 3 districts, each with its own district plan. In addition, the regional council had a regional policy statement, which is also now incorporated in the unitary plan.

Now that most of the unitary plan is in place, developers can be more certain about what’s allowed, and Mr Duguid said a stream of private plan changes enabling development was expected.

Planning committee agenda, 5 February
9, Auckland unitary plan (operative in part) – Privateplan change request from Turnstone Capital LP – Warkworth North
Attachment A – Request part 1 S32 report & appendix 1 planning maps & precinct provisions (78 pages)
Attachment B – Request part 2 appendices 2 – 22 (1239 pages)
FULSS – Future urban area sequencing Warkworth

Attribution: Council committee meeting & agenda.

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Corrected: Whenuapai plan change delayed another 6 months as council committee agrees to recommended variation

Published & corrected 8 February 2019 (the Simpson Grierson lawyers mentioned below were the Defence Force’s, not the council’s):
I’ve long been under the impression that the Air Force, as the Navy does with its dinghy, would take its C130 transport plane out for a drive once/month to use the fuel allocation, and the plane would glide back to base using Greville Rd at Albany as the guide.

But there’s more to the airbase than using suburban arterials as a map to guide the plane home. Although the base’s P3 Orions will be replaced by Boeing P8-A Poseidons, to be based from 2023 at Ohakea in the Manawatu (where the State Highways 1 & 3 intersections at Bulls & Sanson are probably good roadmarkers to guide the planes home), in the meantime the Whenuapai planes make a lot of noise from time to time.

The Defence Force produced noise evidence the day before the hearing began last May on plan change 5, to rezone 360ha beside the airbase at Whenuapai, then produced updated evidence on noise contours in November.

When the council’s planners proposed in December either withdrawing plan change 5 altogether, or varying it to take account of the new noise contour research, the QC acting for subdivider submitters Cabra Developments Ltd & Neil Construction Ltd, Russell Bartlett, said in a 21 December letter to the council the Defence Force’s original evidence “had exaggerated the noise effects of engine testing”, but in any case the hearing panel had the skills “to bring policy considerations into the necessary decision-making”.

The Defence Force’s legal advisors at Simpson Grierson, Padraig McNamara & Sarah Mitchell, told the council on 18 January the short way to resolution could be for the hearing commissioners to confirm amended contours & zoning.

The council’s planners responded with a report identifying 4 options, preferring option B (to initiate the variation, based on the noisiest week). That goes against the Simpson Grierson advice, which noted that the testers felt the noisiest week was an outlier and the busiest week represented a more appropriate worst case.

The whole plan change 5 area comprises 360ha. Plan change 5 proposes rezoning 113ha of it to light industrial & the 274ha balance to a range of residential zones, anticipated to enable development of 6400 houses on land currently used for horticulture, rural production & lifestyle blocks.

The proposed plan change variation would restrict development of 410 housing lots until 2023 because they’d be within contours where the noise level would be deemed unacceptable.

The council’s north-west planning team leader, Eryn Shields, said in his report to Tuesday’s council committee meeting that the Defence Force had decommissioned taxiway D at Whenuapai because its surface was in poor condition (and the move to Ohakea relatively imminent), but that taxiway was more central than taxiway F, which was still in use & closer to the future boundary housing considered to be most affected.

The council planners’ preferred option would enable an additional 14ha to be zoned mixed housing urban, providing 370 more houses than under the present variation 5, and more land could be zoned for medium to high density once the Ohakea move has occurred.

Mr Shields said opting for the variation would delay a hearing decision by about 6 months, until late August.

To committee members’ suggestions that the zoning decision could wait until the Defence Force provided more certainty on its moves, Mr Shields said: “We can’t be paralysed, we have to act.“

Mr Shields told Cllr John Watson, who’d said a no-complaints covenant would prevent future residents complaining about noise: “We don’t consider that’s an appropriate way to manage the noise. We continue not to support them [the Defence Force position on covenants].”

Independent Maori Statutory Board members Tau Henare & Liane Ngamene baulked at the suggestion that the final decision on the variation be left to “a sub-group” of the committee.

But that’s what happened. The council planners will complete their work, present it to the sub-group for approval and the variation to the plan change will proceed to public notification & submissions.

The variation’s intent is to change the proposed zoning of about 120ha adjoining the NZ Defence Force airbase at Whenuapai, within the 65dB Ldn noise boundary, or between the 57-65dB Ldn noise boundaries, based on the additional noise data the NZ Defence Force provided the day before the hearing began. The noise data relates to noise effects from engine testing at the Whenuapai airbase.

The hearing on plan change 5 to the Auckland unitary plan began on 4 May 2018, continued on 7 & 10 May and was to have resumed in August, but was postponed.

The commissioners made a site visit in June and chair Robert Scott issued a long list of questions to council planners on:

  • aircraft noise
  • infrastructure funding mechanisms
  • transport infrastructure requirements
  • indicative open space
  • zoning (and potential further intensification) of land bounded by Trig Rd, Upper Harbour Drive & Hobsonville Rd because of its proximity to the Westgate & NorthWest shopping centres
  • the reasons for a lower intensity single house zone at the coastal management area boundary, in addition to coastal setbacks, and
  • out-of-scope submissions on seeking to be added to the plan change, and a light industry zone.

The parties haven’t been back to the hearing room since Mr Scott sent his list, so the answers to all those questions are also awaited.

Original plan change 5 documents
Committee meeting, 5 February 2019 documents:
8, Auckland unitary plan (operative in part) – proposed plan change 5 Whenuapai 3 precinct – next steps 
Plan change 5 area    
Proposed Whenuapai 3 precinct plan 3   
Whenuapai Airbase engine testing locations    
Engine testing scenario 7    
Engine testing scenario 5    
Engine testing scenarios 6 & 8    
Correspondence from Cabra Developments Ltd, Neil Construction Ltd & NZ Defence Force
Plan change 5 variation livestream

Attribution: Council committee agenda & meeting in room where microphones didn’t always work.

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Market Economics finalises Auckland spatial economy model

Market Economics Ltd has finalised the development of an updated spatial economy framework to describe & examine business & residential activity in Auckland.

The company, headed by Doug Fairgray, played a key role in establishing land requirements for urban expansion when Auckland Council was developing its unitary plan.

Senior consultant Rebecca Foy, responsible for developing the company’s models that integrate information about the housing & employment markets, said in a market update: “The updated framework codes all meshblocks according to their primary unitary plan zone type (centres, business areas, special purpose zones, future urban zones, rural zones & residential zones). This tool provides a mechanism to understand spatially how people use the region for residential & business activity.

“The first step to create the framework was to overlay the Auckland unitary plan zoning with meshblocks. This enabled us to classify all meshblocks according to the primary intended activity. Certain activities were given a higher level of significance than others, for example centre zonings were more important than business zonings, which in turn were more important than residential & other activity uses. The cascading priority approach has been adopted to ensure that as much of the business activity that is relevant to assessments of retail activity & impacts, urban form & function, and industrial & commercial land demands can be captured to provide a context for new or adapted land uses.

“This capability allows us to join other spatial information to the framework to understand how many people, households, businesses & employees there are in each location, to compare that activity with other locations within the region, and to look at change over time. We can also calculate standard metrics such as employment & household density and compare them by location & zone type.”

The model can show population & households; businesses & employees by industry; household & employment densities; and retail store types, sales & floorspace estimates.

“Our experience in resource management & policy arenas has shown us that understanding the scale & composition of household & employment activity on the ground is critical to influencing future development. We expect developers & policymakers to be interested in using this tool for a wide range of activities, including understanding competitor centres to place their own performance in the wider context and to understand the potential for retail & other business activity in specific growth areas based upon regional & sub-regional averages.”

Market Economics

Attribution: Company release.

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Appeal Court tells council & unitary plan panel to issue new Oteha Valley decisions

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.

Central issue

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.”

Fairview Avenue to the Westfield mall at Albany – across State Highway 1, past the Albany bus station, 2.2km.        

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

Earlier stories:
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.

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Council votes for plan change to clarify overlay status

Auckland Council will proceed to a plan change to get the weighting it wants between the special character overlay & the underlying residential zoning in the region’s 2-year-old unitary plan.

Image above (part of council map): Special character area overlays – residential, across the centre of the Auckland region, showing Birkenhead, Northcote & Devonport north of the harbour bridge, Ponsonby & southern suburbs, plus Parnell & Remuera on the southern side of the bridge.

The council’s planning department took the view that special character overlays should take precedence over the underlying zoning where the 2 were in conflict.

Council regulatory services director Penny Pirrit & resource consents general manager Ian Smallburn said in a briefing in September the council had sought external legal advice, which supported the council view of precedence, but the Environment Court, in a series of judicial review decisions that started last December, had opted for the conflicting view that the rules as written meant the overlay didn’t prevail over or cancel other rules.

Mr Smallburn said: “The court agreed with the council that the unitary plan rules were not clear, but it disagreed with our approach, ruling that both sets of rules – the special character areas overlay rules & the underlying zoning rules – should be considered equally.”

Notification next month

The council’s Auckland-wide planning manager, Phill Reid, told the planning committee today the intention was to publicly notify the plan change on 6 December, but it might be June next year before hearings are held.

The first step in the consultation process would be to talk to local boards at the chairs forum next week.

The application at the heart of this issue, by the London Pacific Family Trust, is to remodel a residential property at 12 Seymour St, St Marys Bay. An application by the owners of a neighbouring property at 10 Seymour St, Craig & Kym Andersen, to remodel their house was due for hearing on 25 October but has been put on hold. The 10 Seymour St owners have been section 274 witnesses (claiming effect as non-parties) in the 12 Seymour St process.

The review process

At the start of these judicial review proceedings in July 2017, the council told the court neighbours & others who were potentially affected had advised the council they considered its approach to administering the new unitary plan to be unlawful, and that this had caused, and would continue to cause, “prejudice to them in the form of loss of amenity, loss of development rights & consequential financial losses”.

In August, council planners identified 420 consents potentially affected by the overlay/zone conflict. That number has since been reduced to 319. Some have had to reapply for resource consent, and the council has waived those processing fees.

As well as clarifying the overlay’s dominance in sections of the unitary plan on development of buildings & subdivision, council planners want to make the wording in 4 other sections consistent – height:boundary, building coverage & paved & landscaped area, yards, and fences & walls.

Resource consents general manager Ian Smallburn told the committee today the council had about 115 potentially affected consents before it to review and had granted 54 of those.

Emotional element, and effect on neighbours

Waitemata ward councillor Mike Lee.

Mr Smallburn said there was clearly an emotional element on top of the planning confusion, and Cllr Mike Lee, whose Waitemata ward contains most of the affected properties, backed that up: “There is another aspect to this, affected neighbours, who have not been told, who apparently are still not being considered. I have had a number of distraught people asking for help, about buildings next door which are blocking out their view or their light, and nothing is done about it.

“It seems to spotlight another problem with the council’s administration of the unitary plan & Resource Management Act, and that is, we deal with the people who apply for resource consents as our customers and we treat the whole process as some sort of commercial contract between us & the customer.

“But there’s more to it than that. The Resource Management Act is a social contract. It’s not between the council & individuals, it’s between the council & the community, including neighbours, and we seem to have drifted away from that. Section 5 of the Resource Management Act, or the definition of sustainability, has at its heart ‘people & communities’ and, in practice, we just ignore it.”

Cllr Lee said the council’s heritage panel at its last meeting asked for the council to make public all of the affected areas or addresses, “so affected neighbours have some notice of what’s happening to their neighbourhood, and to their property, and to their property values. I would urge the council to do that, otherwise we’re inflicting an injustice on way more than the 423 or the 319 who have been inconvenienced by an invalid process.”

For the moment, at least, Cllr Lee’s points were left unanswered as the committee voted to support the process to a plan change.

Committee agenda:
9, Auckland unitary plan (operative in part) – proposed plan change – special character areas overlay – residential
Summary of proposed changes to the special character areas residential overlay

Court decisions:
24 July 2017, council application for declarations
19 December 2017, first interim decision
23 January 2018, second interim decision
15 March 2018, third decision (including declaration)
28 June 2018, costs decision

Earlier story:
12 September 2018: Council wants overlay precedence over zone rules, even after court findings

Attribution: Council committee meeting.

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Intensifying urban face could support Dominion Rd project revisit

Published 31 August 2018
One of the principles of New Zealand planning law is that you don’t make conditions worse for others.

A proposal by Auckland Council urban development arm Panuku to redevelop the corner of Dominion Rd & Valley Rd in Mt Eden would dominate neighbours and put them in the shade, according to the decision by council-appointed planning commissioners to reject the proposal.

One part of the argument supporting the Panuku scheme was that more new development would follow, under the more intensification-oriented Auckland unitary plan.

But hearing chair Janine Bell wrote in the panel’s decision document that the commissioners couldn’t take account of other future developments which might not proceed. The permitted baseline for the panel to consider, therefore, was what is, not what might be.

That’s the same approach as commissioners took in July in declining a retirement village development in St Johns. Summerset Group Holdings Ltd proposed 7 buildings ranging up to 7 storeys high, and 8 storeys at part of one building, but the hearing chair Mark Farnsworth said in the decision to reject it: “The height, bulk, form & appearance of the proposal are not appropriate for the site and the potential adverse effects of the proposal do not do sufficiently balance its benefits…. The interface of the zoning of the site with the zoning of surrounding properties imposes development constraints & anticipated outcomes that will not be achieved to an acceptable extent.”

Mr Farnsworth recognised, as Ms Bell has done, that things might change. In the eastern suburbs, Mr Farnsworth noted a submission that neighbourhoods would change as development raised height levels, typically up to 3 storeys at first, including detached dwellings, terraced housing & low-rise apartments.

The same is likely to occur along Dominion Rd, assuming it becomes a light rail route from downtown Auckland to the airport. It’s not hard to see a dramatic revision of the landscape if Eden Park is replaced as a sporting venue and housing or a mixed neighbourhood is developed there. In that event – occasionally contemplated, not in any immediate plans but likely to be raised more frequently – the present lowrise suburban streetscape from Sandringham Rd at Kingsland across to Dominion Rd would quickly be intensified – and the argument over this Valley Rd corner would be ended.

Proposal “not without merit”

In the decision on the Panuku application, Ms Bell wrote: “In our view, the proposal was not without merit, as we can see the positive benefits that residential intensification would offer to this part of the inner city. As set out in our preceding discussion, it was the scale, bulk & intensity of the proposed development within this part of the business local centre zone that we find is not in keeping with the planning outcomes identified in the unitary plan for the surrounding environment, in particular the special character values of the Eden Valley area and the reduced height limit imposed by the height variation control.”

Panuku proposed the construction of a multi-level mixed use development on the 8 adjoining sites at 198-202, 214-222 Dominion Rd & 113-117 Valley Rd, Mt Eden. This would involve demolition of all existing buildings, including 2 character-supporting buildings, and development that would result in 102 apartments & 9 shops.

A new approach is not out of the question, indicated by a comment from Ms Bell in the decision: “Redevelopment of the site, with mixed use development, is both anticipated & supported. This position was confirmed by all experts & submitters. We agree. However, we consider that site redevelopment in this location – being a local centre zone where both a special character area overlay and a height variation control apply – is required to take account & provide for a wider project scope than simply ‘high intensity/urban intensification’.

“While we find that the proposal addresses these project parameters to a large degree, there remain elements of the design that result in a built form that is not compatible with the intent & purpose of the special character area values.”

For a new development approach in the near future, it would have to take account of some specific concerns raised by the hearing panel:

  • Building A exceeds the 13m maximum total height standard on its eastern elevation by about 5m, and is about 17.5m from its eastern boundary
  • Building C exceeds the 13m height standard by 7.5m, and is about 10.5m from its northern boundary
  • The height infringement associated with Building D is less easily defined, but of a lower order than Buildings A & C, and in part complies with the terraced housing & apartment buildings zone standard of 16m for a short distance
  • This end of the building also infringes the height:boundary standard to its northern boundary by between 3.8-1.4m.

Panuku: Dominion & Valley Rds
Full hearing decision

Earlier story:
3 August 2018: Commissioners decide 7 storeys too high for retirement village in mixed housing zone so soon in life of unitary plan

Attribution: Panel decision.

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Council wants overlay precedence over zone rules, even after court findings

Published 31 August 2018

The Environment Court has ruled against Auckland Council planners’ view that special character overlays should take precedence over sometimes-conflicting zone rules, but the council is adamant that its view should apply.

That will mean a rewrite of the unitary plan section relating to special character areas residential overlays, which could take another 12 months.

The court found that the overlay shouldn’t take precedence, and that both the overlay & zone rules should be applied together.

As the court’s view holds sway, the council said on Wednesday it had begun contacting about 430 property owners to alert them to a potential issue with decisions made on their resource consent applications in 2017.

Of the 430 owners, 137 have also had a building consent issued and might have site works underway. “These consent holders are a priority for the council to resolve any issues,” Mr Smallburn said.

The resource consents, decided between 1 December 2016 & 19 December 2017, relate to properties zoned single house where the special character areas residential overlay also applies.

Council regulatory services director Penny Pirrit & resource consents general manager Ian Smallburn said the council had sought external legal advice, which supported the council view of precedence, but the court had opted for the conflicting view of no precedence in a series of decisions that started last December.

The special character areas residential overlay is one of 27 overlays in the Auckland unitary plan, which replaced the district plans of the 7 territorial councils merged into the super-city Auckland Council in 2010, and also incorporated the regional policy statement previously managed by the 8th entity forming the new council, the Auckland Regional Council.

The unitary plan largely became operative in November 2016.

The court bench that considered the issue – through a judicial review relating to a dispute between neighbours on Seymour St, Ponsonby – comprised Principal Environment Judge Laurie Newhook, Environment Judge John Hassan & 2 environment commissioners, Ross Dunlop & Ian Buchanan.

The course the council has taken

Mr Smallburn said the final unitary plan wording of the rules for special character overlay areas & single house zones were inconsistent in places and created some uncertainly about which should take precedence: “To ensure we were making the right decisions, the council obtained external legal advice once the unitary plan was in place. Our initial approach was consistent with that advice.

“Even with that advice, the council continued to receive a number of queries about how to apply the rules. To clarify the rules, we then sought a declaration from the Environment Court on the correct interpretation to provide certainty for property owners, developers & planning professionals.

“The court agreed with the council that the unitary plan rules were not clear, but it disagreed with our approach, ruling that both sets of rules – the special character areas overlay rules and the underlying zoning rules – should be considered equally.

“Once the Environment Court made its decision, we took immediate steps to implement the correct practice in December 2017.

“Because Auckland Council did not consider the underlying single house zone rules when determining the resource consent, they are vulnerable to judicial review from a third party.”

Mr Smallburn said the council would contact all affected resource consent holders in the next 3 weeks.

“We are strongly recommending that all resource consent holders apply for a new resource consent as soon as possible and contact the council’s planning department.

“The council will be helping resource consent holders to manage this issue as best we can, including all processing & pre-application fees being waived for a new consent.

“In addition, we will offer consent holders advice as to how they can amend their design to reduce any amenity impacts of the proposed development and facilitate mediation between consent holders & neighbouring property owners if needed.

“We will be providing additional resources to ensure we can cope with the extra work that will create, and not affect the business-as-usual process of the consenting team.

“We are committed to working with all affected parties to ensure that the issue can be dealt with as quickly as possible.”

Differences between overlay & zone

The court, in its interim decision issued last December, gave examples of how the overlay & zoning rules treated similar tasks differently. One example is that the overlay specifies, as a permitted activity, minor alterations to the rear of buildings that use the same design & material as the existing building, whereas the zone classifies alterations to an existing dwelling as a permitted activity subject to specified standards on height, height:boundary, building coverage, yards, impervious areas, landscape treatment, fences & walls.

“The converse applies for demolition. It is a permitted activity in the zone but a restricted discretionary activity in the overlay. Similarly, additions in the zone, internal & external alterations & new accessory buildings are each permitted subject to compliance with specified performance standards, whereas they are restricted discretionary activities in the overlay.”

Most restrictive rule generally wins

The standard in New Zealand planning law is that the status of a proposal will be determined by the most restrictive rule which applies to it, and that standard is contained in the unitary plan.

Judge Newhook wrote: “That would mean, for example, that activities such as demolition, alteration or other building activities would be restricted discretionary activities on land to which the overlay applies, despite being classified as permitted activities in the zone. Conversely, minor alterations that are treated as permitted activities in the overlay but that would contravene specified zone-permitted activity standards would generally be rendered a restricted discretionary activity.”

In addition, an activity classed as a permitted activity but that does not comply with one or more of the standards applying to that activity is a restricted discretionary activity unless otherwise specified by a rule applying to the particular activity.

In the unitary plan, every special character area (other than Howick) is supported by a statement identifying the key special character values of the area. They relate to built form, streetscape and adverse effects of subdivision, use & development.

In the single house zone, the focus in equivalent explanatory statements and related objectives & policies is predominantly on amenity values.

The council produced a revised set of development standards in the overlay and argued it would be inefficient & impractical to apply both the overlay & zone performance standards and would result in anomalous outcomes.

In response, counsel for the affected neighbours in the Ponsonby dispute, Alan Galbraith QC, submitted that the council’s approach amounted to treating the overlay as a replacement zone, which would give rise to significant amenity & other effects for neighbours – including removing their ability to have their concerns considered, particularly when the council’s approach resulted in a non-notified application.

Judge Newhook said Mr Galbraith had noted particular concern about the council’s practice note, “in effect to misguide its officers & independent commissioners to take a narrow, restrictive & unsound approach to the relationship of the overlays to the zones”.

Suzanne Janissen, appointed an amicus curiae for the judicial review, said that, from her consultation with potentially affected interest groups, a commonly expressed view was that the true effect of the unitary was that overlays don’t supplant zone or Auckland-wide rules, but supplement them.

The court agreed, as Judge Newhook wrote: “We find that the interpretation of the relevant unitary plan provisions proposed by the council in its opening submissions is unsound in being contrary to statutory interpretation principles.

“Fundamentally underpinning the council’s interpretation is its assumption that the overlay’s performance standards for its specified classes of activity are ‘a complete set of development standards’ which represent a ‘replacement package’ for corresponding standards in the single house zone. That assumption is flawed in that it fails to account for the immediate context of related general rules and objectives & policies.”

Possible to subordinate rules, but judge says nothing in plan supports it

Judge Newhook wrote that the court accepted “it is at least conceptually possible for a district plan to set amenity values as subordinate to other values such as special character, including in a residential environment. However, while we understand that theory to be part of the council’s argument in support of the initially requested declarations, the flaw presented is that nothing in the unitary plan properly supports the council’s interpretation to that effect.

“What became more apparent from court questioning of counsel is that the council has based its interpretation on what it terms ‘cues’ (meaning inferences) rather than on anything stated in any part of the unitary plan or related background documents. That is also the position for its reference to the intentions of the independent hearings panel [on the draft unitary plan]. The same can be said for the theories advanced in the council’s affidavit evidence about these matters.”

Administrative inefficiency? Do your job properly, says judge

Part of the council’s argument was that treating the overlay & zone performance standards as both applying would lead to administrative inefficiency, and “absurd” or “anomalous” outcomes. Judge Newhook countered: “We do not agree that applying an integrated management approach would give rise to any untoward or unacceptable consequences. For instance, even in cases where overlay values as identified in the various statements in the appendix would be best advanced by specifying a higher building height or a smaller front or side yard clearance and so forth, that does not dictate a need to put aside competing amenity value considerations.

“Rather, it is in the essence of an experienced consent authority’s task to consider those competing considerations on the evidence and in light of directions given by objectives, policies & other provisions, to come up with a sound & informed outcome.

“On the other hand, Mr Galbraith’s submissions assisted to illustrate the potential for potentially very significant resource management impacts to go unchecked by consenting processes if the council’s approach were applied.”

The council wrote a practice note for its planners telling them the overlay provisions would override those of the zone. Following the court’s reaction, that practice note has been withdrawn.

Cementing in precedence still intended

However, Mrs Pirrit indicated on Wednesday that the council still wanted the overlay to take precedence, which would require a plan change.

She conceded that could take a long time: “The quickest in my experience you can get a plan change through without any submissions is 6 months. We’re talking about mid-to-late next year, without submissions.”

Attribution: Media conference, council release, court decisions.

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We have a super-city plan, now change it

Auckland council planners say the Government’s proposals for national planning standards will conflict with important features of the Auckland unitary plan, which took 6 years to formulate and is close to becoming fully operative.

110 pages of the council planning committee’s agenda last Tuesday were devoted to the draft standards and the council staff’s proposed submissions on them.

The big issue for councillors was to ask – or, to varying suggested degrees, tell – the Government & Ministry for the Environment the council would need more time to put the standards in place. The proposal is 7 years but Auckland wants 10.

The big issue for staff is the complexity, including likely needless doubling up of terminology for 2 large plan changes coming up soon, and that will mean extra cost.

Linley Wilkinson, the council’s lead planner on Auckland-wide planning, whose previous role was to lead the integration of the old councils’ plans into the super-city Auckland Council’s unitary plan, told the committee the idea of national standards had been around for a long time, especially when the Resource Management Act was introduced in 1991.

Now that the draft has been written, the Ministry for the Environment wants the standards gazetted by next April.

The draft’s aim is to standardise the structure & form, chapter layout, spatial planning tools, zone framework, metrics for noise & vibration and digital & planning requirements for plans & policy statements throughout New Zealand.

Ms Wilkinson said some of the standards would have significant impacts for Auckland, which had the most complex & largest plan in the country, combining both regional & district plans (assessments previously separated into the functions of regional & local councils).

“We’ve really scrutinised each standard to see what impact they will have on the unitary plan. There is quite a lot of significance. The zoning framework does not cover the full sweep of what our plan moves in. They are pitching these standards at more medium-sized councils. It has been a little bit disappointing for us, and we feel some of the standards will substantially unpick some of the unitary plan.”

She said that if the council was forced to produce a revised plan in 7 years, it wold have to start work on it 2-3 years earlier than projected.

Auckland Council’s planners generally supported the standardisation intent to achieve consistency & improve accessibility. But they said the standards would have a significant impact on the regional policy statement, regional coastal plan, zone framework & definitions.

Main points in the council submission

The standards:

  • would challenge the Auckland unitary plan’s policy direction
  • would reverse agreements or decisions made in partnership with iwi or other stakeholders
  • don’t reflect the outcomes the community anticipates
  • would reduce the number of zones
  • didn’t contain a section specifically on urban growth, and
  • didn’t contain a section specifically relating to mana whenua.

The council planners are concerned that reducing zone numbers will mean revisiting the whole underlying policy framework, after they’d gone to great lengths to harmonise the legacy zonings of the pre-super-city councils. Instead of relitigating those issues, the council planners say the council should build on work already completed through the unitary plan – that one, point 3.6 in the submission, is likely to leave the standards writers about as confused as I am at what is meant.

Perhaps the biggest conflict will come in the naming & basis of zones. The council used names to describe zones whereas the standards proposal is for residential zone names based on density.

The submission: “This does not make sense in the Auckland context, where 3 of the residential zones in the Auckland unitary plan have no density limit. Instead, the zones are names in accordance with the housing typology provided for.”

While the key concern at the committee was around how mayor Phil Goff might best convey the council’s unhappiness at conflicting versions, members generally ignored that – as with the way different versions of the old councils’ plans were worked through to reach an agreed formula – the best course might be a delay in gazetting the current draft.

In that case, the debate ought to have been about how to present a delay in a good light.

That good light could be:

  • To agree some more complexity for large urban regions than would be needed for smaller towns & cities
  • To spend another year getting more agreed uniformity,
  • Alternatively, educate members of Parliament before the draft is gazetted on what unworkable sections will cost the country, landowners, developers, home owners.

Links, Auckland Council planning committee agenda 7 August 2018:
12, Draft national planning standards – Auckland Council submission
Process for developing national planning standards
Planning standards relevant for the unitary plan
Auckland Council submission on draft national planning standards

Attribution: Council committee meeting & agenda.

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Council committee insists on promised consultation over Tamaki reserve land swaps

Auckland Council’s planning committee agreed last week to remedy the council’s failure to consult the public over plans for reserves in the Tamaki regeneration area.

Consultation had been promised, but council staff arrived at last Tuesday’s meeting with a recommendation to notify the proposed open space plan change without that prior notification going ahead.

However, the committee agreed public consultation should be carried out on the Tamaki open space network plan before proposed rezoning & land exchanges of Taniwha Reserve, Maybury Reserve West & Boundary Reserve are progressed.

Planning team leader Tony Reidy said the council had acquired about 200 land parcels on subdivision over the last year, including the 3 Tamaki reserves & some land swaps in the Tamaki regeneration area.

The council-controlled organisation in charge of its land management & disposal, Panuku Development Auckland, had discussed with council departments & iwi the rezoning of 10 land parcels as part of its land disposal & rationalisation process, and intended to bundle them into one open space plan change to dispose of them efficiently & cost-effectively.

Quizzed by former Tamaki-Maungakiekie Local Board chair Josephine Bartley – who was elected as a councillor last year, replacing Denise Lee after she was elected to Parliament – Mr Reidy said the local board had consulted “at a broader level”.

He told Cllr Bartley the current batch of changes were for land swaps and were more straightforward than a number of others where more controversial changes were proposed, and on these later changes the board had asked for community consultation.

While Mr Reidy said the board had told staff they were comfortable with these 3 reserve changes proceeding, but wanted to see consultation on others, Cllr Bartley commented: “It’s a very piecemeal approach… They’ve almost given up hope on the consultation. I don’t think that’s good enough – the local board are just another tick in the box, and one that has implications for other areas of Auckland. It doesn’t make sense to do it this way.

“The only implication I can see is timing [for the Tamaki regeneration project], but this is just doing it the right way in the community that has lost trust. The good thing is that trust could be rebuilt.”

Links for 7 August 2018 planning committee agenda:
9, Auckland unitary plan (operative in part) – proposed open space plan change Recommendation   
Proposed open space plan change maps [published separately]   
Proposed open space plan change section 32 evaluation report [published separately]   
Panuku land disposal & rationalisation process    
Open space zoning guidelines

Attribution: Council committee meeting & agenda.

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