IHP Conference on Framework Plans
On 13 April the Hearings Panel held an open conference on the use of framework plans, chaired by Judge David Kirkpatrick. Following on from the Chapter G hearing, the Hearings Panel sought independent legal advice from Dr Somerville QC on the vires of the Unitary Plan provisions which define the activity status of land use, development and subdivision by reference to an existing framework plan. A copy of the opinion can be found here and the summary provided in our last update can be found here.
The Hearings Panel extended an opportunity for parties to provide written correspondence in response to this matter in advance of the conference. The Council’s written response can be found here.
The Council confirmed that it would be progressing the current framework plan provisions based on Chapter G (the version contained in rebuttal evidence for the Council). The Council will seek a Court declaration on the vires of the provisions, but does not believe that any hearings will need to be delayed pending the outcome of the declaration.
Ngati Whatua Orakei Whai Rawa Limited sought that the incentive aspects and vires of non-complying activity status be included within the declaration. Both Ngati Whatua and Tram Lease/Viaduct Harbour Holdings noted that framework plans were inherent in submissions relating to Quay Park and Wynyard Quarter, contained in Topic 050 City Centre (this hearing is scheduled for early May 2015).
The Hearings Panel agreed that a joint set of questions should be prepared for the declaration application; recommended that interested parties inform the Council of their interest; and indicated that the Council should progress its application for a declaration with urgency. The Hearings Panel indicated that it would be happy to release Dr Somerville to support the declaration if required.
The Hearings Panel requested that the declaration be as focussed as possible and that the questions put by the Council to the Court should be carefully framed so that, should the Court rule them ultra vires, the Council can propose the necessary changes required to make them vires. Judge Kirkpatrick indicated that the Principal Environment Court Judge would be willing to convene a judicial conference at short notice to assist the parties to arrive at carefully constructed declaration proceedings. The Hearings Panel directed that the Council should consider the relevant provisions under the Local Government (Auckland Transitional Provisions) Act 2010, in addition to the Resource Management Act 1991.
Finally, the Hearings Panel confirmed that when hearing submissions on Topic 050, it does not want to delay proceedings considering jurisdictional issues. This would leave the Hearings Panel free to consider whether framework plans are the most appropriate mechanism in relation to specific precincts such as Wynyard Quarter or Quay Park (in light of a section 32 analysis, for instance), without conflating substantive questions with jurisdictional questions.
We will report on the outcome of the declaration proceedings in a future update.
Unitary Plan Hearing Procedures – Updated Guidance
On 7 April the Hearings Panel released an updated guidance note on the Unitary Plan hearing procedures, which can be found here. In summary, the key changes are:
- The Hearings Panel has built in additional flexibility in relation to hearings, for example it may make changes to the hearing schedule and to the order of speakers, and may request submitters to attend at a specific time.
- In relation to the formatting of evidence, the note reiterates prior procedural direction that parties are urged to be succinct, focus on matters in issue and to clearly state the reasons for their support or opposition to the provisions in the Unitary Plan, in addition to clearly stating the outcome they seek in relation to the content of all statements of evidence or legal submissions.
- A new Section 17 “Presentation of evidence for other hearing topics” has been added to recognise the interrelationship between topics, and prevent the duplication of evidence and process. The Hearings Panel permits the presentation of evidence in relation to other hearing topics, provided that:
- the evidence is on submission points at the same Unitary Plan level;
- evidence is presented at the earliest session in the order of hearings on the same Unitary Plan level;
- evidence exchange dates in relation to the earliest affected topic are met, so that other primary submitters have notice; and
- submitters who choose to present evidence on that basis are responsible for attending other hearings to which their evidence relates and must accept any consequences that flow from this choice.
- Notwithstanding the new section 17 above, submission points remain allocated as per the Summary of Decisions Requested and Further Submissions Report.
- Primary evidence must address any relevant evidence of other parties presented at any earlier hearings. Rebuttal evidence for a hearing topic should be confined to addressing material raised for the first time in the primary evidence for that topic.
- A new Section 22 “Auckland Council closing remarks” has been added, which provides for the Hearings Panel to call upon Auckland Council to provide closing remarks following submitters’ presentations. This can be orally at the end of the hearing or in writing within five days (and made available on the Hearing Panel’s website) after the hearing, or both. Closing remarks can include an updated mark-up version, but no additional information/evidence may be adduced.
- A new Section 23 “General procedural power” has been included, which provides for the Hearings Panel to reconvene any hearing or call for any expert conferencing or mediation to be undertaken on any hearing topic until 22 July 2016.
Provisional hearing schedule updated
Recent changes to the provisional hearing schedule of pre-hearing meetings, mediation, expert conferences and hearings, last updated on 24 April 2015, are:
- Mediation has been rescheduled for Topic 040 – Lighting, Noise and Vibration from 30 April and 1, 7 and 8 May to 28, 29, 30 April and 1 May; and from 29, 30 June, 3, 8, 9, 10, 16, 17 June to 27 June-7 August for Topic 059-063 – Residential Areas.
- Additional mediation days have been added on 25 and 26 May for Topic 061 – Retirement and affordability, on 23 June for Topic 076 – Major recreation zone and precincts; on 6 May for 043/044 Transport Objectives and Policies and Rules; and on 12 May for Topic 050 – City Centre.
- Mediation for Topic 023 – SEA and vegetation management on 15 April has been deleted. A number of days have been added or mediation days have been changed to become ‘direct discussion’ days for Topics 023 – SEA and vegetation management (28 April), 025 – Trees (24 April) and 032 – Historic heritage schedules (18 June). Direct discussion days allow for submitters to speak with a Council officer for fifteen minutes to try and resolve any minor issues prior to the formal mediation and hearing process.
- Expert Conferencing for Topics 048 – Aquifers and Groundwater and 049 – Discharges, stormwater and wastewater have been changed to mediation. The mediation dates for these two topics have been swapped, with mediation for Topic 048 now occurring on 18 and 19 June, and mediation for Topic 049 set for 15-16 June.
- A workshop has been added on 1 May for Topic 075 – Waitakere Ranges and workshops have been added on 22-26 June for Topic 059-063 – Residential Areas.
- A pre-hearing meeting has been set for 25 June for Topic 079 – Special Character and Pre-1944 Mapping and the pre-hearing meeting for Topic 059-063 – Residential Areas has been moved from 12 May to 18 May.
- The 1 May hearing date for Topic 045 – Airport, has been removed.
- Hearing dates will now be 14-16, 19-20, 22-23, 27-28 October for Topic 059-063 – Residential Areas. The hearing for 078 – Additional Height Controls has moved from 27-28 October to 29-30 October. The hearing for 064 – Subdivision has been moved from 22-23 October to 2-3 November.
Hearing dates continue to change frequently and we will keep you updated as to the most significant revisions to the schedule in future Unitary Plan Updates.
The following mediation dates are currently scheduled for May:
- Topic 042 (Infrastructure) – 4-5 May
- Topic 056 / 057 (Rural Activities and Controls) – 4-6 May
- Topic 020 (Viewshafts) – 6-8 May
- Topic 043 / 044 (Transport) – 6, 14, 15 & 20-22 May
- Topic 046 (Water Quality & Quantity) – 11, 15, 18, 20-22 & 26-28 May
- Topic 047 (Lakes, rivers, streams) – 12-13 & 25 May
- Topic 058 (Public Space) – 13, 18 & 19 May
- Topic 061 (Retirement and Affordability) – 25-26 May
- Topic 025 (Trees) – 29 May
The following hearing dates are currently scheduled for May:
- Topic 050 (City Centre) – 7-8 &11-13 May
- Topic 031 (Historic Heritage) – 14-15 May
- Topic 041 (Earthworks) – 19-22 & 28 May
- Topic 038 (Contaminated Land) – 25 May
- Topic 036 (Maori land and treaty) – 26-27 May
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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