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.