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Unitary Plan Update – April 2015

Home Insights Unitary Plan Update – April 2015

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Contributed by: Francelle Lupis, Michael Doesburg and Samantha Beattie

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Published on: April 02, 2015

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IHP Meeting on re-zonings and precincts

On Tuesday 24 March the Hearings Panel held an open meeting with Auckland Council to examine the proposed approach in relation to site-specific re-zonings and precincts, in light of previous direction given by the Panel in Procedural Minutes 6 and 7.

It is evident that the Panel is still hopeful that mediations and hearings for re-zoning submissions can begin to be scheduled later this year. For that reason, the Council was requested to provide an overview of:

  • its methodology for the assessment of site-specific re-zoning and precinct requests;
  • a timeline to complete its analysis;
  • recurring themes and locations with concentrations of submissions;
  • the proportion of submissions that might be dealt with on the papers, consist of errors or minor changes, or which may benefit from direct discussions rather than mediation or hearing; and
  • a programme for site-specific submissions to proceed.

As a result of its discussions with the Council team, the Hearing Panel considers that the re-zoning submission points largely fall into three categories:

  • Minor errors, mapping issues and corrections which can be dealt with directly by Council.

  • Submission points which Council should focus on, and which will be the subject of detailed discussions, mediation and hearings.

  • Submissions where further work is required to support the requested change.

With respect to that third category, Judge Kirkpatrick suggested that the Council might be minded to reduce the number of submissions in some topics by considering a series of plan changes immediately upon the PAUP becoming operative.

The Council team provided a comprehensive update of work undertaken to date. To explain the magnitude of the task, the Council summarised the submissions as follows:

  • There are some 4,276 primary re-zoning requests, with over 20,000 individual submission points.
  • 6,223 of those submission points originate from Housing NZ’s submission, relating to some 22,000 properties.
  • There are 918,562 further submission points from 2,476 further submitters.
  • There are 72 “major” submitters, all of whom will be contacted for direct discussions. 
  • 10% of all re-zoning submissions and 18% of all precinct submissions have been categorised as “complex”. 
  • On the basis of its analysis to date, the Council estimates that approx. 21% of re-zoning submissions will benefit from direct discussions, 17% will benefit from mediation, and a 62% should proceed straight to hearing. However that number will be refined as the Council completes its analysis of submissions.

The Council is still working its way through the submissions, grouping by theme and geographic location, with a view to proposing a schedule of mediations/hearings and updated pathways (which will also address minor errors and corrections). The Council intends to provide a detailed programme to deal with the submissions on 15 June, and considers that re-zoning requests should not be scheduled until after that date. 

The exception to that is some of the Special Purpose re-zoning requests, which might be dealt with earlier, including Quarries, Cemeteries, Major Recreation, Maori Purpose, Minor Ports, and Healthcare. Coastal and Public Open Space re-zonings might also be able to be set down much earlier than the remainder of the re-zoning subs.

We expect that a further conference will be held to confirm the approach following the release of Council’s proposed programme on 15 June.  

Further documents relating to re-zoning requests, including the Council’s responses to Procedural Minute 6, can be found here.

Interim guidance

The Hearings Panel has released its interim guidance on the remaining Topic 013 – RPS Urban Growth sections. This guidance is to be read in conjunction with the previously released interim guidance on Topic 013 (B2.1 – Providing for growth in a quality compact urban growth and B2.3 – Development capacity and supply of land for urban development) and Topic 011 – RPS Rural (B8.3 – Rural Subdivision).    

The Panel has indicated that it will provide guidance on the remaining Topic 011 – RPS Rural sections by late March. The Panel is no longer releasing interim guidance on the Waitakere Ranges precinct, and no other guidance is scheduled to be released at this stage.

A summary of the Topic 013 guidance:

  • B2.2 – A quality built environment – The Panel considers that the RPS should promote diversity, innovation and choice in building design. At present, the Panel considers the district-wide provisions do not give effect to that intent in the RPS as the proposed controls are overly detailed and restricted. The Panel has highlighted that this will need to be addressed in later topics including 021 – Built environment, 054 – Business controls, 062 – Residential controls and 077 – Sustainable design.
  • B2.4 – Neighbourhoods that retain affordable housing – The Panel agrees that the Unitary Plan can and should assist with approving the affordability of homes by addressing issues of limited land supply and avoiding overly restrictive development controls. However the Panel does not consider that the proposed policies and methods to directly control prices, or to favour certain forms of home ownership, are suitable ways to intervene in the housing market.
  • B2.5 – Rural and coastal towns and villages – The Panel considers that some growth and development outside of the RUB, including the possibility of new rural or coastal villages, should be provided for. Any substantial growth must be undertaken in accordance with the structure plan process in Appendix 1.1 of the Unitary Plan. The Panel also considers that there should be no distinction between serviced and un-serviced villages, as that will be a key component of future structure planning exercises.  
  • B2.6 – Public open space and recreation facilities – The Panel does not consider that any substantial change to this section is necessary.
  • B2.7 – Social infrastructure – As set out in its guidance on Topic 012 – Significant Infrastructure and Energy, the Panel does not regard social facilities as infrastructure, but does consider that social facilities and the activities they support merit separate recognition and promotion. In particular, in response to submissions, the Panel has recognised that social facilities should be able to use their sites efficiently by providing for ancillary activities and complementary business activities.   
  • B3.1 – Commercial and industrial growth – The Panel supports commercial growth on transport corridors as well as in centres. The Panel has also indicated that resource management policies should not be concerned with the viability of activities, including centres of activities, and has therefore raised a concern that some of the mediated objectives and policies are contrary to s61(3) of the RMA, which prohibits the RPS from having regard to trade competition or the effects of trade competition. The intent of those provisions will need to be addressed in the Business zone provisions, which will be the subject of mediation in June.

Framework plans – legal advice

On 13 March the Hearings Panel released a legal opinion it had requested from Dr Somerville QC examining the vires of the Unitary Plan’s “framework plan” process (aka comprehensive development plans). A copy of the opinion can be found here.

Dr Somerville QC considered seven questions, with the central issue being whether the framework plan process (as proposed to be amended at the Chapter G: General hearing), which determines activity status by reference to the presence of a framework plan, is legal. He also considered the legality of the proposed “incentives” regime to encourage the use of framework plans, and the requirement for framework plans to integrate with neighbouring sites.

Dr Somerville QC examined the case law (including the recent case of Queenstown Airport Cort Ltd v Queenstown Lakes District Council [2014] NZEnvC 93) as well as the relevant parts of the RMA’s statutory framework. In the Queenstown case, the Environment Court found that it may not be ultra vires for a rule to link activity status to the existence of another resource consent. However, that could only be the case where section 77B of the RMA (as it then was) did not stipulate that an activity must comply with any standards or requirements of a plan or proposed plan. Upon a close review of section 87A of the RMA (the successor to section 77B, the subject of the Queenstown decision), Dr Somerville QC concluded that, because each subsection in 87A of the RMA requires compliance with the “requirements, conditions and permissions” of a plan or proposed plan, there is a risk that the Unitary Plan approach of linking activity status to the presence of a framework plan will be ultra vires.

Dr Somerville QC also considered that “incentives” for obtaining and complying with a framework plan (non-notification, additional development potential and less restrictive activity status) were inconsistent with the general precinct notification provisions, ultra vires section 76(3) of the RMA and ultra vires section 87A, respectively. In respect of consistency between framework plans and neighbouring sites, Dr Somerville QC was of the view that such requirements would not be ultra vires section 76(3) of the RMA, which requires regard to be had to the actual and potential effects of activities on the environment, which necessarily includes integration with neighbouring sites.

The Panel invited parties to provide correspondence in respect of the opinion by 27 March. Responses were received from the Auckland Volcanic Cones Society, the National Trading Company of New Zealand, Karl Schweder, City Works Depot Site Limited, Fletcher Construction/Tamaki Redevelopment Company and Kauri Tamaki Limited, Ngati Whatua and Auckland Council (requesting additional time to consider the opinion).

A judicial conference will be held to consider the opinion and responses at 2pm on Monday 13 April at the Environment Court. If you wish to attend that conference you must RSVP to the Panel by Thursday 2 April

Provisional hearing schedule updated

On 27 March 2015 the Hearings Panel updated its provisional hearing schedule of pre-hearing meetings, mediation, expert conferences and hearings:  

  • Mediation has been rescheduled for Topic 042 – Infrastructure from 16 and 17 April to now be held on 21 and 24 April and 4 and 5 May. 

  • Additional mediation days have been added for Topics 039 – Hazardous Substances and ITA (10 April), 058 – Public Open Space (13 May), 023 – SEA and vegetation management (28 April), 046 – Water Quality (11, 21, 22, 26 and 27 May), 025 – Trees (29 May), and 032 Historic Heritage Schedules (13-15 July).

  • Additional hearing dates have been added for Topics 036 – Maori land and treaty (27 May), 058 – Public Open Space (3 July), 032 Historic Heritage Schedules (23 September) and 023 – SEA and vegetation management (10 August). The hearing date for Topic 042 – Infrastructure has been rescheduled from 5 June to 25 June and 1 July.

Hearing dates continue to change frequently and we will keep you updated as to the most significant revisions to the schedules in future Unitary Plan Updates.

Upcoming deadlines

The following pre-hearing meeting dates are currently scheduled for April:

  • Topic 058 (Public open space) – 24 April
  • Topic 061 (Retirement and affordability) – 24 April

The following mediation dates are currently scheduled for April:

  • Topic 036 (Maori land and treaty) – 1-2 April
  • Topic 038 (Contaminated land) – 8-9, 13-14 April
  • Accidental Discovery Protocols in Topics 031 / 037 / 038 (Historic Heritage / Mana Whenua sites / Contaminated land) – 10 April
  • Topic 037 (Mana whenua sites) – 7-8, 13-14 April,
  • Topic 029 / 030 (Special character / Pre 1940) – 13-14 April
  • Topic 023 (SEA and vegetation management) – 15 and 28 April
  • Topic 056 / 057 (Rural) – 20-22 April
  • Topic 039 (Hazardous substances and ITA) – 10 and 20 April
  • Topic 029 / 030 (Special character / pre 1940) – 20 April
  • Topic 042 (Infrastructure) – 21 and 24 April
  • Topic 043 / 044 (Transport objectives and policies / Transport rules and other) -–22-23 April
  • Topic 055 (Social Infrastructure) – 23-23 April
  • Topic 025 (Trees) – 24 April
  • Topic 019 (Natural features, landscape and character) – 29 April
  • Topic 040 (Lighting, noise and vibration) – 30 April

The following hearing dates are currently scheduled for April:

  • Topic 033/044 (Coastal Marine zones) – 30-31 March & 1-2 April
  • Topic 022 (Natural Hazards and Flooding) – 7-9 April
  • Topic 018 (RPS General) – 10 April
  • Topic 045 (Airport) – 28-30 April

Please refer to the provisional admin schedule for further details. 

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The publication is intended only to provide a brief summary of the subjects covered. It does not constitute legal advice and should not be relied on as such without first obtaining specific professional advice based on your unique circumstances.

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