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Brief Counsel

Unitary Plan now a reality

26 August 2016

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The Auckland Council has signed off on the great majority of the recommendations from the Independent Hearings Panel and has adopted a Unitary Plan with the scope to transform New Zealand’s biggest city.

Early planning in the next few weeks will be important to successfully managing the new consenting risks and opportunities that the Plan will create.

Key points of difference from the Panel recommendations

Below is a broad overview of the key points of difference between the Panel’s recommendations and the Council’s decisions.  It is not comprehensive but focuses on the more significant points of difference from a developmental and growth perspective.

Where the Council has departed from a Panel’s recommendation, it has provided an alternative solution.

Although the Council rejected 78 of the Panel’s recommendations, most of the huge uplift in development opportunity has remained.

The Council has:

  • reaffirmed its commitment to a compact city with policies to focus growth within the existing metropolitan area (although with some flexibility for greenfields expansion)
  • opted for a less expansive policy toward allowing subdivisions on rural land 
  • strengthened the protections for notable trees
  • changed the activity status for subdivision in the Future Urban zone from discretionary to non-complying
  • removed the requirement to provide a minimum number of parking spaces in commercial centres and in Mixed Use Zones (with a view to encouraging intensification and the use of public transport)
  • restored a minimum dwelling size requirement
  • maintained the protection of pre-1940 buildings in the Queen Street Valley Precinct, but accepted the Panel recommendation to delete the blanket protection, and
  • decreased the number of houses that are permitted as of right in the Mixed Housing Urban and Suburban Zones from four houses per site to two houses per site.

From here

Some key areas for you to be considering over the coming weeks are:

Appeal options

If you submitted on the Plan and have any significant or strategic concerns with the Council’s decisions, any appeals must be lodged by 16 September.  Appeals to the High Court are restricted to points of law.  Appeals to the Environment Court are available only where the Council has rejected a Panel recommendation or accepted an out-of-scope recommendation that would unduly prejudice the submitter. The appeal process is complex and different from usual, so don’t leave your review too late.

Existing and new consent applications

Until appeals are determined, there will be some planning uncertainty as to how to apply new rules that have taken legal effect but which are not beyond challenge. Some old rules will still apply.

There may be some debate with council officers about how a new rule should be applied where you have already lodged a resource consent application.  Decision-makers may seek a fresh planning assessment of resource applications which have been lodged before the decision but which are still being processed (although your activity status will not change).

New notification presumptions (non-notified and fully notified) apply to activities in various zones, which will have a direct impact on consent risk and process cost.

Understanding and proactively managing these matters will reduce delays in getting consents lodged and processed efficiently.

Framework plans

Anyone who was looking to rely on a ‘framework plan’ process to get their next big project consented will need to check their position.  The framework plan provisions have been removed from the Plan.  However, some Special Housing Areas may have operative framework plans that survive, which will create some planning complexity.

Pipeline projects

Rezonings, new overlays protecting special areas and features and rule changes may have affected your development opportunities or what can be built near you – for good or bad. It will pay to check how the rules provide for any proposals you have in the pipeline.

Errors/fix ups

We anticipate a variety of ‘fix ups’ may be necessary to remedy errors, defects and the occasional editing mishap. Some of these issues may be significant such as incorrect overlay or zone boundaries and wording anomalies.  There are processes available to deal with these matters.

Infrastructure

Don’t assume that because a site has been up-zoned for development, it will have sufficient infrastructure capacity readily available.  You will need to consult with key service providers ahead of your development plans.

Council capacity

Council’s capacity to physically process resource and building consents may be challenged as development opportunities in the new Plan are taken up.  Pre-discussions with Council will help – as will ensuring that you have a full and complete application and, of course, getting in ahead of the pack. 

If you have any questions about next steps, feel free to contact one of the lawyers featured.