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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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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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Unitary plan on track to be fully operational next year

Auckland Council’s unitary plan, promulgated in 2016, could be fully operational next year.

A report to the council’s planning committee meeting tomorrow says 13 appeals remain out of a total 119 to the Environment & High Courts, plus 8 judicial review proceedings.

The council formulated the unitary plan during its first 3 years, after the Government created a super-city council for the region to replace the former 7 territorial councils & one regional council.

The super-city council completed its proposed unitary plan in September 2013, sent it to an independent hearings panel to consider submissions, and the panel sent its recommendations back to the council in July 2016. The council publicly notified its decisions – some conflicting with panel recommendations – in August 2016, making the bulk of the plan operative and triggering appeals for some of it.

The council was served in September 2016 with 67 Environment Court appeals, 41 High Court appeals & 8 judicial review proceedings.

The Environment Court has issued decisions on 2 significant matters in the last 2 months, on the rural:urban boundary at Okura and rural subdivision provisions. The court decision found in favour of the council’s position on Okura, and Okura Holdings Ltd has been appealed the decision to the High Court.

The rural subdivision provisions decision went in favour of the appellants, and the council has appealed to the High Court.

The Environment Court ended up dealing with 72 appeals, and 6 appeals remain. In the High Court, there were originally 41 appeals, rising to 47 via Environment Court appeals, and 5 remain – plus the 2 new ones.

Of the 8 judicial reviews, 3 have been discontinued and 5 have been the subject of High Court decisions. 2 of those decisions have been appealed to the Appeal Court. Each of these High Court decisions related to a judicial review proceeding and a related High Court appeal. The council was successful in each of the High Court decisions.

Planning team leader Tony Reidy said in his report to tomorrow’s planning committee meeting all appeals were expected to be resolved in early 2019.

Planning committee agenda, 7 August
11, Auckland unitary plan (operative in part) – update on appeals & making additional parts of the plan operative

Attribution: Council committee agenda.

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Commissioners decide 7 storeys too high for retirement village in mixed housing zone so soon in life of unitary plan

Council planning commissioners have refused consent for a Summerset Group retirement village proposed for a Meadowbank site in east Auckland because of its overbearing height.

Summerset Group Holdings Ltd proposed 7 buildings containing 344 units, ranging up to 7 storeys high, and 8 storeys at part of one building on the site at 55-57 Ripon Crescent.

36 of the 41 local submitters opposed the village, mainly for its dominance, and the Orakei Local Board said: “The community has reason to expect a built environment character of no more than 3 storeys in the mixed housing urban zone. The height impact of the built form proposed on the wider environment is not acceptable.”

The hearing panel of Mark Farnsworth (chair), Michael Parsonson & Richard Knott agreed. In the decision, issued on 25 July, Mr Farnsworth wrote: “The proposed development will result in actual & potential adverse effects that have not been adequately avoided, remedied or mitigated and are unacceptable, when considered in the context of the local environment. 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.

“While the proposal would have recognised benefits in the provision of retirement village accommodation & the flow-on release of existing dwellings for new occupants, the need for the scale of the proposal has not been established or justified.

“The proposed development would be inconsistent with the more directive objectives & policies of chapters H4 & H5 of the operative Auckland unitary plan to an extent that is not balanced by consistency with other provisions. In particular, the proposed development deviates too far from the reasonably anticipated urban character of the site & its environs, as expressed in those provisions.

“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.

“For completeness, we undertook a part 2 consideration and the proposal in its current form does not promote the sustainable management of natural & physical resources under part 2 of the Resource Management Act.”

A central factor in Summerset’s evidence advocating greater height was the intent of the unitary plan, which has become largely operative only this year, to provide for more intensification – and that, over time, neighbourhoods could be expected to change as they adapted to that.

Mr Farnsworth noted in particular, in his summary of the evidence & submissions presented for Summerset by Russell Bartlett QC: “Mr Bartlett noted that the application represents a serious opportunity to contribute meaningfully to demand in Auckland for additional, and more varied, housing stock.

“He stressed (a number of times) St Johns is a prime location for such a development. He drew our attention to the large size of the site & its zoning – mixed housing urban – which is, in his words, ‘a reasonably high-intensity residential zone, specifically enabling a greater intensity of the development than previously provided for’.

“Front & centre of the zone is the expectation of change. Specifically, the zone description indicates that over time, the appearance of neighbourhoods within the zone will change, with development typically up to 3 storeys in a variety of sizes & forms, including detached dwellings, terraced housing & low-rise apartments.”

25 July 2018, Summerset Meadowbank decision

Attribution: Hearing decision.

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Council to fight Crater Hill & Okura appeals, and appeals itself over rural subdivision

Auckland Council said yesterday it would fight appeals by landowners against 2 unitary plan decisions in favour of the council, and will also appeal on a third issue where the council lost.

Almost all 108 appeals against the Auckland unitary plan have been resolved in the Environment & High Courts.

But landowners have lodged appeals to the High Court against 2 of the 3 decisions the Environment Court has issued in the last 2 months. They relate to the location of the rural:urban boundary & zoning in the Crater Hill/Pukaki area at Mangere and at Okura, at the top of the North Shore.

The third recent decision concerns planning controls for subdividing land in rural Auckland. The Environment Court went against the council on that, and the council has decided to appeal.

The council released its decisions on the unitary plan in August 2016.

At Crater Hill/Pukaki, the Self Family Trust & adjacent landowners want their land included inside the rural:urban boundary.

At Okura, Todd Property Group Ltd has appealed against the Environment Court’s decision not to include its land inside the rural:urban boundary, where the company wants to build 1000 houses. That land is beside the Okura estuary marine sanctuary.

Council planning committee chair Chris Darby said yesterday: “We will actively support the Environment Court’s decisions in the High Court through the presentation of legal submissions.

“For a wide range of reasons, the Crater Hill/Pukaki and Okura areas are not suitable for urban development.

“In relation to the recent decision that deals with subdividing land in rural Auckland, our legal advice is that the Environment Court has made a number of errors in law. For that reason, and given the importance of protecting the rural economy’s finite resources such as high quality soils & sensitive rural landscapes, the council has decided to appeal this decision to the High Court.”

[2018] NZEnvC 087 Okura Holdings Limited & Others v Auckland Council [PDF, 11 MB]

Earlier story:
23 April 2018: Court rejects housing on Crater Hill & peninsula near airport

Attribution: Council release.

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Old $1 million house signals changing impact of unitary plan, and unauthorised work affects apartment sales

A 1950s weatherboard house in Blockhouse Bay was sold for $1 million at Bayleys’ residential auction on Wednesday – just short of the $1.05 million which Quotable Value said this week was the current average value of residential properties in the Auckland region.

A larger Blockhouse Bay section with development consent was passed in.

Since Auckland’s unitary plan started to come into force last year, enabling intensification across suburbia, auctioneers have listed a steady (but so far small) stream of properties highlighted for their consequent development potential.

At first a number were presented from Point England, on the Tamaki Estuary in the south-east, but increasingly they have come from the west of the isthmus, particularly Mt Roskill, Sandringham and across to the Manukau Harbour.


Also at the Wednesday auction, one apartment was sold prior and another was passed in.

A unit at 2 Whitaker Place, off Symonds St in central Auckland’s student area, was passed in at a short-notice offering. The building is affected by an unapproved addition to a penthouse apartment, which also demonstrated the potential effects on other owners in apartment developments.

The auction predisclosure statement said it was noted that the 2015 annual meeting of the body corporate was told penthouse unit 10A had previously added an additional storey to the unit without the body corporate’s permission: “The addition has encroached on the common area airspace. The renovations will have affected the units’ relative value and thus it was agreed that a new unit plan should be deposited. An update of the ownership interest amounts (which are in effect levy allocation) has also been proposed. The current owner has agreed to cover the cost of implementing a new unit plan.”

In 2016, a roof condition report recommended replacing the roof, which also affects the penthouse because the cladding for that unit is connected to the roof. In addition, the complex’s goods lift is out of order and the concrete of the lower carpark extension has cracked and requires securing.

Unit 10A, which has 3 bedrooms & 2 parking spaces, is on the market through Crockers. It has current rates of $2383/year including gst and a body corp levy of $8387/year.


Learning Quarter

Westminster Court, 5 Parliament St, unit 2G:
Features: 2-bedroom corner apartment – for many years an artist’s studio; parking space, storage locker
Outcome: sold prior
Agents: Diane Jackson & Julie Quinton

2 Whitaker Place, unit 5A:
Features: 40m², furnished one bedroom, parking space, storage locker
Outgoings: rates $1240/year including gst; body corp levy $6694/year including water
Income assessment: $550/week current
Outcome: passed in at $420,000, back on the market at $449,000
Agents: Habeeb Urrahman, Steve Kirk & Chris Cairns

Isthmus west

Blockhouse Bay

518 Blockhouse Bay Rd (pictured):
Features: 916m² section, 1950s weatherboard house in terrace housing & apartment building zone, 3 bedrooms, double garage
Outcome: sold for $1.01 million
Agents: Christopher Valladares & Michelle Hicks

31 Margate Rd:
Features: 1639m² section, 3-bedroom cottage, certificate of compliance for subdivision granted, building consent sought for 3 2-level townhouses
Outcome: no bid
Agent: Summer Sun

Attribution: Auction.

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Committee progresses unitary plan changes, city centre masterplan, waterfront, Panuku programme, Onehunga project, land transport, northern corridor, Whenuapai, sites of significance

Auckland Council’s planning committee began its 6-hour meeting yesterday with input from advocates of no port extension into the Waitemata Harbour, and of relocating the freight operation.

Shortly after, the committee gave its support in principle to an inner dolphin off Queens Wharf as the preferred option for berthing large cruise ships.

The public input came from Shane Vuletich for Urban Auckland, Committee for Auckland & Stop Stealing our Harbour, with Richard Didsbury, Sir Stephen Tindall & Julie Stout.

But the bulk of the day’s meeting was about the “refresh” of the council’s overarching Auckland Plan, completed in 2012 and up for its first review.

The committee has held 4 workshops and had numerous presentations on the Auckland Plan, but also on various other planning documents since last October’s election.

The committee approved a streamlined approach rather than fullscale review with the intention of making the plan more strategic, integrated, focused on spatial issues, a smaller document and one that will be digitally accessible.

It approved a process of early targeted engagement with communities from May-June  on Auckland’s big issues and on the high level strategic direction of the refreshed Auckland Plan.

This article is a brief summary of matters the committee considered. I’ll write in more detail in a few days.

Other items considered:

Item 10, city centre masterplan delivery & implementation, 3 projects to be updated:

  • Victoria linear park & midtown east-west public transport
  • Quay St harbour edge boulevard & Hobson St flyover
  • Queen St, issue identification & project implications.

Item 11, Waterfront planning & implementation:

A targeted refresh of the waterfront plan is underway, focusing on development of Wynyard Pt and optimising the use of the central wharves. 

Item 12, Update on Panuku work programme:

The committee endorsed Avondale as an “unlock” location, where Panuku facilitates development opportunities for private sector investment in town centres.

A high level project plan will go to the committee later this year for approval.

Item 13, Onehunga high level project plan:

The committee adopted Panuku Development Auckland’s high level project plan for the transformation of the Onehunga town centre & surrounding area.

Item 14, Submission on draft national policy statement on land transport:

The committee approved the council’s submission.

Item 15, Northern corridor improvements project, political reference group & delegations:

The committee approved extending delegations so the reference group can provide direction & decisions on the council’s position during the board of inquiry hearing on east-west link project.

Item 19, Unitary plan (operative in part) – future plan changes and processing of private plan changes:

A report was presented on future council-initiated changes to the new unitary plan and the committee approved the criteria for dealing with private plan changes over the next 2 years.

Item 16, Draft Whenuapai plan change – approval & public engagement:

The committee approved a consultation process that will allow for the implementation of the Whenuapai structure plan, which the council approved last September. Public consultation will run from 10 April-14 May.

Item 17, Development of plan change to the unitary plan & Hauraki Gulf islands section of the district plan on sites of significance to mana whenua:

The committee gave approval for the council to engage with mana whenua & landowners on 270 nominated sites of significance to mana whenua as the next step to preparing a plan change. 

Item 18, Unitary plan, assessment of errors to produce the first 2 administrative plan changes:

The committee agreed to develop 2 administrative plan changes, one to correct errors, anomalies & technical details to the text & maps and the other to correct errors in the notable tree schedule.

Links – from committee agenda:
9, Auckland Plan refresh, engagement approach & proposed options

<ahref=”http://infocouncil.aucklandcouncil.govt.nz/Open/2017/03/PLA_20170328_AGN_6720_AT.htm#PDF2_ReportName_52321″ target=”_blank”>10, Auckland city centre masterplan (2012): Delivery & implementation, progress update
Addendum (item 11)
11, Waterfront planning & implementation
Mooring options
Inner dolphin section & plan views
12, Panuku work programme, update
13, Onehunga, high level project
14, Draft government policy statement on land transport, submission
15, Northern corridor improvements project, political reference group & delegations
16, Draft Whenuapai plan change, approval & public engagement
17, Development of plan change to unitary plan (operative in part) and the district plan (Hauraki Gulf islands section), sites of significance to mana whenua
18, Unitary plan (operative in part), assessment of errors to produce the first 2 administrative plan changes
19, Unitary plan (operative in part), future plan changes and processing of private plan changes
20, Summary of planning committee information memos & briefings
Attachment A, 2 March, Staff submission on the Telecommunication Act Review: post-2020 regulatory framework for fixed line services
Attachment B, 22 March, East-West Link, submission
Attachment C, 22 March, northern corridor improvements project, submission
Attachment D, 20 March, structure plans, memo to planning committee members
Attachment E, 15 February, future urban land supply strategy, refresh workshop documents
Attachment F, 1 March, city rail link, briefing documents
Attachment G, 1 March, Auckland Plan refresh, workshop 3 documents
Attachment H, 7 March, city-airport briefing documents (not included)
Attachment I, 10 March, central city waterfront, planning workshop documents
Attachment J, 15 March, Auckland Plan refresh, workshop 4 documents

Related story today:
Start with a figure you don’t know, then plan accordingly….

Attribution: Committee meeting, council staff report.

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Maori board fails in appeal over mana whenua sites

High Court judge Ed Wylie ruled yesterday that the independent panel on Auckland’s unitary plan didn’t err in recommending the sites of value for mana whenua be deleted.

The Independent Maori Statutory Board appealed the deletion, but Justice Wylie rejected all the board’s appeal points.

Justice Wylie wrote in his decision yesterday: “In my judgment, the independent hearings panel was entitled to reach the conclusions and make the recommendations it did. It heard evidence from a large number of parties, both for & against retaining (&/or expanding) the overlay. It was for the panel as a specialist independent body to exercise its judgment in evaluating the evidence put before it at the hearings.

“It was open to the panel to recommend deletion of the sites of value to mana whenua overlay on the basis that, without evidence of mana whenua values that provided support for all of the sites in the schedule and in the overlay, the provisions as a whole lacked a sufficient evidential basis.”

When Auckland Council released its draft unitary plan in March 2013, it proposed 2 layers of protection for sites & places of Maori cultural heritage. The first contained a schedule of 61 sites of significance, and the second contained a Maori cultural heritage alert layer which would extend to about 9000 sites.

After feedback, the plan was amended in September 2013 and the second layer was reduced to 3600 sites. However, an error on the planning maps meant the radius of circled sites was doubled to 100m.

In evidence in 2015, the council told the independent hearings panel 2213 sites met the criteria of being Maori, had mana whenua values ascribed to them, and their location was confirmed. The council recommended another 1373 be removed from the schedule.

In March 2016, the council withdrew 593 sites, left 3007 scheduled, and said 2213 were considered to be of Maori origin, had cultural values for mana whenua and their locations had been confirmed.

However, the hearings panel decided to recommend to the council that it delete the schedule in its entirety “until the evidential basis for it has been assembled”.

When the council went through the final process on the plan, going through all the hearings panel’s recommendations and deciding whether to accept or reject them, staff recommended rejecting the panel’s deletion of the Maori places schedule.

The councillors, however, decided to accept the panel’s recommendations, which led the Independent Maori Statutory Board to appeal, eventually, on 9 points of law.

On each one, Justice Wylie found the hearings panel was entitled to reach the conclusion it did.

Auckland University environmental law associate professor Ken Palmer, who appeared on the appeal on his own account, argued that the council’s approach to the evaluation of sites of value to mana whenua didn’t follow the conventional approach, went beyond reasonable regulation and added a layer of complexity & uncertainty to the plan, placing an added burden on the owners of the affected private land.

If the council accepted a recommendation of the independent hearings panel, it didn’t have to give reasons. Justice Wylie accepted that point in dismissing the Independent Maori Statutory Board’s appeal.

Attribution: Judgment.

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