Hearings Panel recommendations on the Proposed Auckland Unitary Plan focus on capacity for growth

Thursday 28 July 2016

Authors: Andrew Beatson, Marija Batistich and Natasha Garvan

​​​​The Auckland Unitary Plan ​Independent Hearings Panel (the Panel)’s recommendations on the Proposed Auckland Unitary Plan (PAUP) were delivered to Auckland Council on 22 July and publicly released yesterday. The recommendations have a clear focus on providing capacity to meet Auckland’s growth, identifying new areas suitable for urbanisation and paving the way for increased intensification of existing urban areas.

The Minister for Building and Housing, Dr Nick Smith, has already indicated that he is ‘encouraged’ by the recommendations subject to undertaking a comprehensive review of several thousand pages of documentation. He has also quite properly signalled that he wants to give the Council some ‘clean air’ to digest the recommendations and make its decision.

The notification of the Panel’s recommendations marks another milestone in the largest planning process in New Zealand to date. The PAUP will replace Auckland’s existing Regional Policy Statement and 13 district and regional plans, and will be the key planning document guiding the future development of Auckland.

The Panel has provided a 123 page overview of its recommendations, as well as separate reports on individual topics, and a recommended version of the PAUP (including text and zoning maps). These documents can be found here, on Auckland Council’s website.

Capacity for growth

The Panel recognises that the most significant resource management issue facing Auckland is its capacity to meet housing demand and urban growth. It recommends that the Unitary Plan enable greater capacity both by identifying areas at the edges of the existing metropolitan area which are suitable for urbanisation and by allowing greater intensification of existing urban areas with a strong focus on the existing centres. To achieve this, the Panel proposes a number of recommendations and argues that if these are implemented together the Unitary Plan can appropriately manage growth.

The Panel recommends the region should be re-zoned in such a way that 422,000 new dwellings could be built by 2041. Unsurprisingly this is generating mixed responses, including significant concern by those who face high rise development over the back fence of their suburban lot.

Key recommendations

The Panel’s overview document lists 28 ‘headline’ recommendations. Significantly, the Panel has recommended the retention of the Rural Urban Boundary and its expansion to include 30 per cent more land. Importantly, the Panel has not accepted the Council position that the boundary should be inflexible, and recommends that it be able to be changed by private plan change.

In addition, the Panel has recommended the removal or reduction of requirements for on-site parking, and the deletion of the pre-1944 building demolition control overlay.

Another ‘headline’ recommendation is the deletion of the Schedule of Sites of Value to Mana Whenua until the evidential basis for these has been assembled. Blanket references to cultural impact assessments and design statements are also recommended for removal, leaving reliance for cultural protection on the standard requirement for an assessment of effects on the environment.

The Panel is supportive of new precincts as a place-based response to local planning issues and to enable greater and more targeted development opportunities.

The legality of Framework Plans was the subject of Environment Court declaration proceedings earlier this year. The approach initially being promoted by Council was not supported by the Court. Included in the ‘headline’ recommendations is the deletion of provisions for Framework Plans and the enabling of comprehensive consenting processes for subdivision, including earthworks and provision of infrastructure.

What’s next?

Auckland Council has 20 working days (from 22 July 2016) to consider the Panel's recommendations and decide whether to accept them in part or in full, or reject them. The Council must publicly notify its decision by 19 August 2016, unless one extension of 20 working days is granted upon request by the Minister for the Environment.

In its overview report, the Panel has stressed that it has given a great deal of thought to ensuring that its recommendations are integrated and consistent, and that the Council’s decision should consider the consequential changes that may need to be made to maintain overall integration and consistency if the recommendations are not accepted in their entirety.

What should you do now?

Check the recommendations carefully for any errors in the recommendations and relay any found to the relevant council officer for your area. Consider whether you support the Panel’s position and are happy with the recommended approach. Council is yet to accept these recommendations and Councillors will be debating the changes in open forum from 10 August 2016.

Once the decision is issued by Council, there are limited grounds of appeal, with separate processes depending upon whether the Council has accepted or rejected a recommendation and whether these are within scope of submissions. A person will be able to appeal to the Environment Court if:

  • ​​The person made a submission on the PAUP on the particular matter under appeal, and
  • The Council rejected a recommendation of the Hearings Panel on that matter and decided an alternative solution, which resulted in a provision being included in the PAUP or a matter being excluded from the PAUP.

However, if the Council’s alternative solution includes elements of the Panel’s recommendation, the right of appeal is limited to the differences between the alternative solution and the recommendation.

A person may also appeal to the Environment Court if:

  • The Council’s acceptance of a recommendation of the Panel resulted in the provision being included in the PAUP or the matter being excluded from the PAUP, and
  • The Panel identified the recommendation as being beyond the scope of submissions on the PAUP, and
  • The person is, was, or will be unduly prejudiced by the inclusion or exclusion of the provision.

Given the wide ranging submissions received, aspects that are out of scope are relatively confined.

Appeals to the High Court can arise where the Council accepts a recommendation of the Panel and where a person raised the matter their submission. These may only raise a question of law.

The Courts will need to develop a process that co-ordinates the hearing and determination of appeals, particularly where matters under appeal to different Courts overlap or have knock on effects.

As a result of these limited appeal rights, there may be implications for people who did not submit on the PAUP but are affected by the decisions made by the Council. Please contact your usual Bell Gully advisor for advice on the implications of the recommendations and next steps.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Andrew Beatson

    Partner Wellington
  • Natasha Garvan

    Senior Associate Auckland
Related areas of expertise
  • Property and real estate
  • Residential property
  • Environment and resource management