New Zealand: Unitary plan to re-write Auckland's planning landscape

Brief Counsel

The Unitary Plan currently being drafted by Auckland Council will re-write Auckland's planning landscape and guide the implementation of the Council's strategic and long-term direction for the region.

This means that the Plan will have big implications for anyone with exposure to the Auckland property market or infrastructure services.

A draft for informal comment is scheduled for release in March 2013 after which the proposed plan will be publicly notified for submissions in September 2013.

We recommend you get involved at an early stage.

Overview

The Unitary Plan (the Plan) will replace the Auckland Region's seven district plans, various regional plans and Auckland Regional Policy Statement. Excluded for now is the Hauraki Gulf Section of the Auckland City District Plan, which is currently in the final stages of being updated. This Section will be incorporated into the Plan at a later stage.

The Council intends the Plan to be simple, bold and innovative, rather than just a revision and amalgamation of the existing plans. The Council aims to improve consistency across Auckland by providing a one-stop shop for Auckland's district and regional planning policies and rules, while still recognising the characteristics of different areas in Auckland.

The Plan will also contain some of the concepts discussed in the Auckland Spatial Plan, for example the extent and location of the Rural-Urban Boundary (the former Metropolitan Urban Limits).

Innovations

Key innovations in the Plan include:

  • providing greater certainty regarding public notification of resource consents
  • integrating regional and district rules to avoid repetition, and
  • reducing the number of zones across Auckland.

How we use the Plan is going to be very different from the status quo. The Plan will be released online as an "e-plan" (with limited hard copies available). The software will allow users to search for planning restrictions for a particular site or to determine which zones permit certain activities to take place.

The Council also intends to make the Plan more user-friendly by using plain English and including diagrams and illustrations.

A controversial bid for efficiency?

The Council recognises that, given the Plan's scope and size, the appeal provisions in the Resource Management Act (RMA) could absorb significant amounts of time and the resulting planning uncertainty could ham-string Auckland's development.

To avoid this, the Council has asked the Government to provide a new statutory process for the Plan which would:

  • remove the right to appeal to the Environment Court on merits, thereby limiting appeals to errors of law in the High Court
  • remove the normal RMA further (or cross) submission processes, and
  • entrust the hearing of submissions to a hearing panel chaired by an independent chair (e.g. a current or retired High Court or Environment Court judge), and a mix of independent commissioners and councillors. The hearing panel would have the ability to seek specialist advice.

Ms Penny Pirrit (Manager, Regional and Local Planning, Auckland Council) indicated at a recent seminar on the Plan, that the Council may not know the Government's position on the Council's proposed legislative changes ahead of the Plan being publicly notified.

Given this uncertainty, the Council is pressing on with its plans for enhanced engagement pre-notification. This engagement will be led by the local boards and will involve key stakeholders and community workshops. A detailed consultation schedule will be reported back to the Auckland Plan Committee next month.

Chapman Tripp comments

The Council's goal of reducing the amount of time needed to make the Plan operative is commendable and clearly of benefit to Auckland's economic development. We consider, however, that it can be achieved without removing the right to make further submissions.

With respect to appeal rights, we note that the Plan is a substantial piece of work being prepared under tight timeframes, and query whether Auckland Council can "get it right" without rights of appeal.

With so many property rights and competing interests at stake, a robust and fair system is needed. The RMA's existing appeal rights "on the merits" (i.e. de novo):

  • are generally more comfortable for lay people
  • allow many issues to be resolved without the need for appeal, or Court involvement, and without the need for cross-examination, and
  • allow for Court-assisted mediation.

We will be following developments on this front closely. Meanwhile, the possibility that appeal rights may be removed makes early involvement in the Plan even more crucial.

Developers and land owners should also be aware that, as work on the Plan continues, there will be no Council plan changes and no Council-adopted private plan changes (although the option of pursuing private plan changes will remain).

The Plan has the potential to improve certainty and consistency across Auckland by providing a universal set of regional and district policies and rules. We recommend you engage with the Council before the Plan is publicly notified.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

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