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IN THE MATTER
AND
IN THE MATTER
of Topics:
059 Residential objectives and policies;
060 Residential activities;
061 Retirement and affordability (in part);
062 Residential development controls;
and
063 Residential controls and assessment
AND
IN THE MATTER
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CONTENTS
1.
INTRODUCTION .............................................................................................................. 3
2.
3.
4.
5.
MINIMUM LOT SIZE FOR UNSERVICED LOTS IN THE RURAL AND COASTAL
SETTLEMENT ZONE ..................................................................................................... 28
6.
7.
8.
9.
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INTRODUCTION
1.1
These legal submissions for Auckland Council (Council) address the submissions
and evidence on the following district plan provisions of the Proposed Auckland
Unitary Plan (PAUP), which have been grouped under Topics 059 Residential
objectives and policies, 060 Residential activities, 062 Residential development
controls and 063 Residential controls and assessment1 (collectively referred to as
"the Residential Topics"):
(a)
Chapter D1.1 General objectives and policies for the residential zones;
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
The Council is conscious of the interim guidance recently received from the Panel on Chapter G, and
the potential implications for the Residential provisions. Given the timing of release of the guidance, the
Council has not had an opportunity to adopt a formal position in response to that guidance. That may
change however and we will keep the Panel updated in that regard as the hearing progresses.
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1.2
We will also refer collectively to these PAUP provisions as "the Residential zone
provisions" throughout these legal submissions.
addressed aspects of the retirement and affordability topic (Topic 061) through
evidence and submissions.
A.
1.3
There are 6,572 primary submission points and 62,116 further submission points
overall for the Residential Topics, with 1,037 primary submitters and 783 further
submitters wishing to be heard.2 The essential information on these submissions is
contained in the Parties and Issues Report (PIR) for the Residential Topics, released
on 25 May 2015. The PIR was accompanied by Submission Point Pathway (SPP)
reports for each Residential topic, dated 29 April3, 27 August4, and 5 October 20155.
1.4
The PIR groups the submission points into the following categories:6
Topic 059 Residential objectives and policies:
(a)
Chapter D1.1 General objectives and policies for the residential zones;
(b)
(c)
(d)
D1.4 SHZ;
(e)
(f)
(g)
(h)
(i)
Site specific.
2
3
4
5
6
(a)
(b)
Site specific.
Auckland Unitary Plan Independent Hearings Panel, Hearing Topics 059, 060, 062 and 063 Parties and
Issues Report (PIR), released on 29 May 2015 for the Pre-hearing Meeting, page 7.
For Topic 060.
For Topics 062 and 063.
For Topic 059.
PIR, pages 8 to 15.
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(b)
(c)
(d)
(e)
(f)
(g)
(h)
Subdivision; and
(i)
Site Specific/Spatial.
(b)
(c)
(d)
Assessment;
(e)
Notification; and
(f)
Site specific/spatial.
B.
Facilitated Workshops
1.5
considered that a two-stage approach should be taken to mediation, and directed that
facilitated workshops and mediations be scheduled.7
1.6
The facilitated workshops took place over 5 sessions from 22 - 26 June 2015. They
were attended by a number of submitters, as well as representatives of the Council.
A 'Workshop Outcomes' document dated 26 June 2015 was prepared by Panel staff,
and has been publicly available on the Panel's website since 29 June 2015. The
Council's presentations at the commencement of each workshop session have also
been available on the Panel's website since 29 June 2015.
1.7
One key outcome from the workshop sessions was the establishment of a working
group of planners representing a range of submitter interests (Working Group). The
key purpose of the Working Group was to discuss how to manage amenity and built
Page
character if density controls were removed, including through giving greater attention
to the notification and assessment criteria for infringing core development controls.
1.8
Those provisions
responded to the outcomes of the facilitated workshops as well as the primary and
further submission points contained in the PIR and SPP Reports. Those marked up
provisions were made publicly available via the Panels website on 17 July 2015
ahead of the mediations.
C.
Mediations
1.9
1.10
(b)
concerns that the development controls in the MHS, MHU and THAB zones did
not facilitate the housing typologies planned for those zones;
(c)
concerns over the proposed shift in focus for the SHZ from maintaining a
detached dwelling suburban character, to limiting growth in areas of constraint;
(d)
concerns over the lack of provision of minor dwellings in the Large Lot zone,
RCS zone, and the SHZ (acknowledging that minor dwellings do not need to be
provided for in the zones without density controls); and
9
10
The Joint Mediation Statement (Joint Mediation Statement) provides a summary of the areas of
agreement and remaining areas of disagreement for the first and second mediation sessions only. For
the rest of the mediation sessions, only summaries of matters discussed at those sessions are set out.
Joint Mediation Statement, pages 1, 9 - 10.
EIC of N Roberts for Auckland Council, Topics 059-063, 9 September 2015, paragraph 11.3.
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(e)
the Working Group continuing to meet to discuss the approach to the core
development controls to maintain built character and amenity.
1.11
The matters concerning the SHZ arose during session 5 of the mediations on the
SHZ provisions when Mr Roberts relayed an 'interim position' for the Council
regarding the SHZ's (purpose) description.
zoning apply to areas which either have historic character or identified natural values,
or areas with significant environmental or infrastructural constraints.11
While we
discuss this issue in further detail from paragraph 1.22 of these legal submissions,
we note at this point that the Joint Mediation Statement records that parties like the
Housing New Zealand Corporation (Housing NZ) and Fletcher Residential Limited
(Fletcher Residential) generally supported the intent of the Council's interim position
on the SHZ.
resident groups including Herne Bay Residents Association Incorporated (Herne Bay
Residents) considered it a "significant policy shift".12 The Joint Mediation Statement
records their concerns with the Council's interim position as follows: 13
(a)
Potentially it will exclude areas with high residential character that are not
currently mapped as special character and potentially coastal fringe areas
currently zoned Single House.
(b)
Because of the number of people this potential change could impact, these
parties considered there was a natural justice issue to address.
1.12
1.13
At this point we think it is important to observe that the notified provisions have
undergone significant review, analysis and discussion with key stakeholders,
community representatives and members of the community who attended the
workshops and mediations. The proposed provisions respond to and give effect to
the proposed Regional Policy Statement (RPS) provisions in the PAUP.
11
12
13
Page
D.
1.14
The proposed changes to the notified provisions are summarised in paragraph 1.8 of
Mr Roberts' EIC (as amended by the changes/refinements summarised in paragraph
1.2 of his EIR, and set out in Attachment A to that EIR). In brief they include:
(a)
(b)
Deleting the density controls in the MHU zone and for those sites over
1000m2 in the MHS zone. Density on sites less than 1000m2 have also been
reduced in the MHS zone to give a density of one dwelling per 200m2.
(c)
Increasing the permitted building height and setbacks within the THAB
zone from 13.5m as notified (or 14.5m where semi-basement parking is
provided) to 16m or 19.5m / 22.5m in areas subject to the Additional
Zone Height Control (AZHC).
Page
the design assessment threshold for the THAB zone for 2-4 and 5+ dwellings
which were Discretionary and RD activities respectively.
(f)
Various amendments to the Activity table for land use activities to adopt an
intensity approach based on numbers of people rather than Gross Floor Area
for
supported
residential
care
(SRC),
boarding
houses,
visitor
Providing for Education and Tertiary Education facilities in the Large Lot zone
as Discretionary activities rather than Non-Complying.
(h)
Providing for care centres and community facilities on sites designated by the
Minister of Education, and offices in identified City Centre and Takapuna
Centre fringe areas as Permitted activities, subject to conditions.
(i)
(j)
Amending the density rule so that it applies to 'site area' rather than 'net
site area'.
Reducing the minimum lot size in the RCS zone from 3000m2 to 2500m2.
(l)
(m)
1.15
With the exception of the proposed amendment to reinstate the AHIRB control in the
MHS zone, all of these amendments are supported by the Council. All the proposed
amendments to the Residential zone provisions are discussed in the Councils
evidence.
1.16
We also note at this point that the PAUP includes an AZHC as a mechanism for
providing site-specific height controls which override the heights specified within
precincts or zones where height is addressed as part of that package of rules. The
AZHC was notified as the 'Additional Building Height Overlay' with a set of
accompanying rules in Chapter J4.2. That chapter, through Council's evidence for
Topic 078 Additional Height Control, is now proposed to be deleted, with the 'overlay'
now being replaced with the 'AZHC'.
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1.17
As is noted in section 26 of Mr Roberts' EIC and the Council's evidence for Topic
078, the AZHC works by delineating a site or area on the planning maps, and
specifying a height limit. For example, the heights specified in the AZHC overide the
applicable zone-wide height control (i.e. the maximum building height for the THAB
zone). Currently the Council has proposed to increase the permitted height in the
THAB zone to 16m (from 13.5m in the notified PAUP), with up to an additional 2m for
roof forms to be assessed on a non-notified basis. The AZHC in the THAB zone
provides for the Permitted height to increase to 19.5m and 22.5m.
E.
1.18
1.19
The Council has taken a strategic approach to implementing the RPS15 in the
Residential zone provisions.
(paragraph 9.5 onwards), the relevant RPS objectives and policies may be grouped
into three key policy themes:
1.20
(a)
(b)
(c)
The Residential zoning strategy sets the overall approach to the region's Residential
zones in order to address these themes. The notified PAUP prescribes six standard
Residential zones, with additional area-specific local variation provided for through
precincts and overlays. Mr Roberts describes these zones (in the PAUP as notified)
in section 13 of his EIC, and we summarise them as follows:
(a)
Large Lot: usually on the periphery of Aucklands urban areas with limited or
no access to a reticulated wastewater network. The zone generally forms a
transition between rural and urban land.
(b)
14
15
EIC of N Roberts for Auckland Council, Topics 059-063, dated 9 September 2015, sections 13-16.
This is the version proposed to be amended by the Council in its evidence on the RPS.
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disposal of stormwater and wastewater as reticulated infrastructure is not
available.
(c)
Single House: One dwelling per 600m2, provides for areas to retain a low
density suburban residential character of detached dwellings in open,
spacious neighbourhoods.
(d)
(e)
(f)
1.21
In the PAUP as notified, each Residential zone comprises the following proportions of
the region (in terms of land area):16
Land area
THAB
5%
MHU
MHS
SHZ
RCS
Large Lot
10%
40%
32%
4%
9%
F.
1.22
16
Auckland Council, Introduction Presentation to the Residential Workshop on 22 June 2015, available on
the Panel's website.
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(Memorandum)17 (which is available on the Panel's website), it is helpful to briefly
overview those proposed amendments at this juncture.
1.23
As Mr Roberts states in section 5 of his EIC, and as set out in the Memorandum, the
proposed changes are intended to clarify the SHZ's purpose.
Specifically, changes
the SHZ's Description to make it clear that the zone's focus is on land which
has either historic character values, identified natural character, or is located
in areas with significant environmental or infrastructure constraints; and
1.24
The Memorandum was drafted in response to the Panel's email request of 6 August
2015 that the Council address the scope issues in relation to its proposed changes,
and the natural justice and fairness issues in relation to the consequential changes to
the zoning maps raised by certain submitters including Auckland 2040 at the
mediation session on 5 August 2015.
(ii)
(iii)
(b)
That there may be consequences for property owners once the PAUP is
operative, and in the event that plan changes were proposed so as to change
areas previously zoned SHZ or MHS. Property owners would, however, have
an opportunity to submit on those plan changes.
It is acknowledged,
however, that unless the zone's objectives and policies were put at issue, it
would be difficult to challenge them at a later time.
17
See Memorandum of Counsel for Auckland Council, Issues Arising in Mediation for the Single House
Zone, 1 September 2015.
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1.25
We note that while considerations of scope are (consistent with case law)
undoubtedly important, the statutory framework applicable to the PAUP is notably
different in light of section 144(3) of the LGATPA, which provides that the Panel is not
limited to making recommendations only within the scope of the submissions to the
PAUP. While no guidance is offered in the LGATPA as to what factors the Panel
should take into account when recommending out of scope changes, an unfettered
discretion of this kind should be exercised in a principled way. We note Dr Royden
Somerville QC's opinion to the Panel on Interim Recommendations that the
jurisdiction in section 144(3) "is not isolated from natural justice considerations"18.
We discuss the relevant law in this area in section 2 of these submissions.
G.
1.26
Given the vast number of submissions to the Residential Topics, the approach we
have taken with these legal submissions is to address the key points of difference
between the matters raised by submitters in evidence and the position of the Council.
By not referring to particular submissions or evidence, this should not be taken to
indicate the Council's acceptance of, or agreement to, the points raised. In terms of
a structure, these legal submissions will address:
(a)
(b)
(c)
(d)
matters concerning the growth and capacity model (in section 12);
(e)
some corrections that are required to the evidence filed for the Council (in
section 13); and
(f)
1.27
our conclusions.
With the exception of the matter noted at paragraph 1.15 above concerning the
reinstatement of the AHIRB control in the MHS zone, the Council's position on the
Residential zones provisions is reflected in Attachment A to Mr Roberts' EIR, dated
6 October 2015.
18
See the legal advice from Dr R Somerville QC to the Panel on Interims Recommendations, 5 February
2015, paragraph 85.
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1.28
1.29
In relation to the subdivision rules for the Residential zones (excluding minimum lot
sizes), the Council's position is reflected in Attachment B to the Joint EIR of
Ms Stewart and Ms Hardman-Miller, dated 6 October 2015 (subject to the
amendment described at paragraph 6.11 below).
H.
Evidence
1.30
The Council is calling evidence from 18 witnesses in support of its position on the
Residential provisions of the PAUP (two of whom are presenting a joint statement19):
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)
Yvonne Weeber (Urban design Subdivision rules for the Residential zones);
13)
Karl Hancock (Transport Planning Shared access Subdivision rules for the
Residential zones);
19
14)
15)
16)
17)
Page 15
1.31
Ms McLaughlan has been excused from attending the hearing by the Panel Chair
due to personal circumstances.
2.
A.
General
2.1
The legal framework applying to the PAUP under the LGATPA and the RMA will be
familiar to the Panel. In short, the PAUP must be prepared in accordance with Part 4
of the LGATPA and the RMA, except where the RMA's provisions are excluded from
applying by, or correspond to provisions in, Part 4 of the LGATPA.20
2.2
We have set out the relevant statutory framework for district plan level provisions in
previous legal submissions, for example in Topics 022 Natural Hazards and Flooding,
041 Earthworks and Minerals, and 045 Airports. With regard to RPS matters, we
refer to the relevant statutory framework text in our legal submissions for Topics 006
and 007 for example, on Natural Resources and RPS Climate Change (each in
section 2), including noting the Panel's directions in the final paragraph of its Judicial
Conference on Interim Recommendations 27 January 2015 Conference minute that it
will "hear and make recommendations on the PAUP as a combined document so that
the proposed plan would give effect to the proposed RPS rather than the presently
operative RPS".21 We adopt the statutory framework provisions in all of those legal
submissions here in relation to the Residential Topics to the extent relevant.
2.3
Mr Roberts also sets out the relevant statutory framework for the PAUP's Residential
zone provisions in section 6 of his EIC. Among other matters, Mr Roberts addresses:
(a)
The pertinent RMA provisions regarding district plans, Part 2 and sections 32
and 32AA;
(b)
Legacy district plans in Auckland, and the general trends in those plans to:
(i)
(ii)
20
21
Page 16
(c)
(d)
By reference to the EIC of Ms McLaughlan for the Council - the Building Act
2004 and the Building Code (in Schedule 1 of the Building Regulations 1992),
and the Housing Improvement Regulations 1947 (HIR 1947).
B.
Scope
2.4
A key aspect of the statutory framework applicable to the Residential Topics relates
to the amendments proposed to the SHZ description, objectives and policies; namely
the Panel's ability to recommend out of scope changes to the PAUP under the
LGATPA.
2.5
(3)
(a)
(b)
2.6
We submit that the Panel's ability to make recommendations outside the scope of
submissions is an important distinguishing aspect of the LGATPA regime. We also
observe in relation to this provision that:
(a)
(b)
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section 144(3) was "not isolated from natural justice considerations"22. While
we do not demur from that general proposition, we do note that the specific
right of appeal available under section 156(2) of LGATPA may be seen as
moderating
natural
justice
(and
similar)
concerns
arising
from
any
There is no express process in place in the LGATPA for out of scope changes
akin to section 293 of the RMA (which envisages consultation with the "parties
and other persons that the Court directs").
Ultimately, we are mindful of previous findings of the courts to the effect that
the Court cannot permit a planning instrument to be appreciably amended
without real opportunity for participation by those potentially affected.23 While
we note that much of the case law in this area relates to submissions filed as
part of the First Schedule process in the RMA, we expect that the Panel will
wish to exercise the unfettered discretion in section 144(3) of the LGATPA in
a principled way.
2.7
Turning now to the relevant case law on scope, we begin with the Environment
Court's recent decision in Environmental Defence Society v Otorohanga District
Council24 (a decision of Your Honour's on the jurisdiction to make a consent order).
In Otorohanga, the Court considered whether a proposed outcome agreed on by the
parties to the appeals in that case, and expressed in the draft consent order, was
within the scope of the Otorohanga Proposed District Plan as publicly notified or as
sought to be amended by an appellants submission on it.25
jurisdictional issue that the parties raised before the Court in that case was "an
essential one in the process for preparing or changing a District Plan"26. The Court's
review of case law noted the emphasis placed on procedural fairness and highlighted
the potential tension between two fundamental principles27:
22
23
24
25
26
27
See the legal advice from Dr R Somerville QC to the Panel on Interims Recommendations, 5 February
2015, paragraph 85.
As noted for example, by the High Court in Clearwater Resort Limited v Christchurch City Council
HC Christchurch AP34/02, 14 March 2003, at paragraph [66].
[2014] NZEnvC 70.
Ibid, paragraph 7.
Ibid.
Ibid, paragraphs 18 and 19.
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(a)
(b)
Second, that care must be exercised on appeal to ensure that the objectives
of the legislature in limiting appeal rights to those fairly raised by the appeal
are not subverted by an unduly narrow approach.
2.8
2.9
We also refer the Panel to the Environment Court and High Court decisions in
Healthlink South Limited v Christchurch International Airport Limited &
Canterbury Regional Council29 (the Healthlink proceedings) relating to the zoning
of hospital land, and whether a residential zoning was within scope. We submit that
the Courts' findings in those proceedings are of some relevance to any finding that
there is in fact scope to make the proposed amendments to the SHZ description,
objectives and policies as they recognise the possibility of "new objectives, policies
and rules" as something potentially within scope, falling between the original PAUP
as notified, and the relief sought in submissions.
Healthlink said (emphasis added in bold):
30
28
29
30
Paragraph 43.
Judge Jackson's decision in C077/99 was appealed to the High Court in AP14/99. See [2000] NZRMA
375.
At page 6 of Judge Jackson's Environment Court decision, and duplicated in paragraph [12] of Hansen
J's decision in the High Court.
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(b)
(c)
reasonable non-expert reader of the summary who was informed of (if not thoroughly
conversant with) the distinction between 'residential activities' and 'other activities' in
the city plan, could have appreciated that residential activities were contemplated for
the hospital land?32 This was viewed as part of the wider test as to whether the
proposed residential zone would lie fairly and reasonably within the submission as a
whole.
2.11
While we note that no single submission to the PAUP is 'on all fours' with the
Council's proposed amendments to the SHZ description, objectives and policies, we
submit that it is apparent from the SDR Report (and the SPP Reports for the
Residential Topics which are based on that Summary) that a number of submitters
wanted to make the differences between the various Residential zones more distinct,
and requested changes to provide more for intensification, which collectively in our
view, merit the amendments now being proposed in Attachment 2 to Mr Roberts'
EIC (as amended by Attachment A to his EIR).33
31
32
33
We also note that the SPP Reports attached to each PIR for various topics in the Panel's hearings
process are based on the Council's Summary of Submissions.
At paragraph 22 of Judge Jackson's Environment Court decision, and duplicated in paragraph [13] of
Hansen J's decision in the High Court.
For example, submissions from Habitat for Humanity Greater Auckland Limited (Submitter 3600)
(Habitat), Patrick Fontein (Submitter 6282) and Housing NZ (Submitter 839) all make references to
changes being required to the PAUP to achieve greater intensification. Habitat requested that the SHZ
"be abolished", and points to the distribution of Single House zoning as "puzzling" and "haphazardly
spread around the city". Habitat considers that for "large tracts of land close to the downtown area"
which have been zoned SHZ, "common logic would suggest that intensification would better meet the
plan's objectives" (See submission point 3600-09).
Stephen Davis (in submission points 4823-18 to 33) considered the SHZ had been "over-applied" and
generally thought that inner suburban Special Character areas should not be zoned SHZ.
A number of submitters like Housing NZ requested (Submitter 839) upzoning changes generally.
Housing NZ's site specific zoning submissions are set out in Table 3c of its original submission to the
PAUP.
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2.12
While we recognise that this would render some of the land presently zoned SHZ as
now not appropriate for that zoning, we submit that the proposed changes relate back
to key RPS themes of a quality compact city (and a driver to intensify), housing
capacity and choice, and quality living environments and residential amenity. As
Mr Roberts explains in section 13 of his EIC (and notably in paragraph 13.19), the
SHZ had been applied to areas where intensification is not appropriate due to natural
hazards, natural or built heritage or identified infrastructure constraints, or in areas
with poorer accessibility and connections to centres or good quality public transport.
As notified, the SHZ had been applied to areas which may be within a walkable
catchment of centres and public transport networks, which would be contrary to the
policy direction seeking to achieve a quality compact city. The application of the SHZ
as notified has also, as noted in a submission by Habitat for Humanity Greater
Auckland Limited for example, resulted in SHZ sites being applied directly adjacent to
a high intensity zone.
2.13
We also submit that there may be some support for a principle-based approach to
scope (i.e. an approach not based purely on the relief sought in submissions) to be
derived from cases such as Johnston v Bay of Plenty Regional Council34. In that
case, a jurisdictional issue was raised as to whether certain disputed wording in a
rule was within the scope of submissions and further submissions. It was common
ground that no submission or further submission expressly sought the introduction of
the part of the rule in question. His Honour's judgment referred inter alia to:
(a)
Other submitters have requested to be upzoned from SHZ to MHU or MHS zoning; a sample list of
which include Housing NZ (Submitter 839), Martin Cooper (Submitter 6042), James Mooney (Submitter
5758), Brendan and Natalie Doherty (Submitter 4680), Patrick Fontein (Submitter 6282), Ockham
Holdings Ltd (Submitter 6099), and Walter Stevens (Submitter 5688).
34
Submitters such as Helena Mayo (Submitter 1957), Howick Ratepayers and Residents Association
(Submitter 2705), Diane Cameron (Submitter 3783), and Grant Lilly (Submitter 52) for example, have
made requests to either retain or expand the SHZ.
A106/03.
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traversed a wide variety of topics; many of these topics were addressed at the
hearing and all fell for consideration by the Council in its decision.
(b)
The finding by the High Court in Royal Forest and Bird Protection Society v
Southland District Council35 to the effect that a submission seeking a change
to one provision of a plan, can be partly allowed by amending another provision
(in that case, the High Court had held that submissions made in relation to the
heritage section of the plan clearly raised the "theme" of greater control upon
activities likely to affect native flora and fauna).
(c)
2.14
Judge Bollard held that while the amendments to a proposed plan were not
specifically requested in submissions, the submissions had in substance effectively
raised the issue, providing the Court with jurisdiction.
2.15
35
Page 22
2.16
For completeness, we also draw the Panel's attention to Wylie J's High Court
decision in General Distributors Limited v Waipa District Council36. The Court's
summary of case law reaffirms the principle that scope is not to be approached from
the perspective of legal nicety:
[59]
In Royal Forest & Bird Protection Soc Inc, Pankhurst J at p 413 adopted the
Countdown Properties test and went on to comment as follows:
it is important that the assessment of whether any amendment was
reasonably and fairly raised in the course of submissions, should be
approached in a realistic workable fashion rather than from the
perspective of legal nicety.
[60]
2.17
This approach requires that the whole relief package detailed in submissions
be considered when determining whether or not the relief sought is
reasonably and fairly raised in the submissions see Shaw v Selwyn DC
[2001] 2 NZLR 277; [2001] NZRMA 399, at para 44.
However we note that the High Court in General Distributors ultimately found that
an explanation for an objective was not within scope (i.e. of a submission/further
submission, nor was it signalled in the notified plan), stating that:
[63]
2.18
In summary, we acknowledge that the issue of scope is a difficult one because this
process provides only one opportunity to 'get the plan right'. It is Mr Roberts' clear
view that the SHZ description and objectives and policies need to change so as to
describe the elements the zone is directed at protecting properly, and we have noted
that he addresses these matters in paragraph 13.19 of his EIC. Those opposing
these changes raise issues of scope and natural justice. They are concerned that
36
Page 23
the zoning of land may change as a consequence of the change to these provisions.
In the Memorandum filed, we signalled that zoning changes could be made in
response to submissions, but also that out of scope changes could be made. It is
important to use this process to develop a district plan that responds as far as
possible to the principles set out in the RPS.
C.
2.19
The Panel will now be well familiar with the various aspects of the relationship
between the Building Act 2004, the Building Code, and the RMA due to this issue
having been raised in a number of topics to date including Topics 022 Natural
hazards and Flooding, and 077 Sustainable Design. We also note that the Panel is
seeking submissions from interested parties on this matter ahead of the hearings for
Topics 080 and 081 on Rezonings and Precincts (General and Geographical Areas).
We will not therefore set out again the Council's approach to the legislative regime
and caselaw as this will be done as a response to the Panel's Direction by
3 November 2015.
Ms McLaughlan holds the position of Policy Manager in the Council's Building Control
team. Her EIC for the Council provides some general explanation of the relationship
between the Building Act and Building Code, but otherwise focuses on the following
matters:
(a)
fitness for dwellings and controls on over-crowding will apply only where the
Building Code is silent on a topic; the provisions dealing with the prevention of
over-crowding being an example of this. While the Building Code does not
specify minimum bedroom sizes for dwellings38, the HIR 1947 restricts the
number of persons in relation to bedroom floor areas which, in Ms
37
38
EIC of R McLaughlan for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 6.1.
Which in Ms McLaughlan's opinion implies that "there is no limit on the number of people that can be
accommodated in a dwelling so long as it remains safe and sanitary".
31606497:631362
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McLaughlan's view, indirectly imposes a limit on room sizes equating to
16.2m2 for one person and 19.2m2 for two people.
(b)
(c)
2.21
2.22
2.23
Finally, it is important not to lose sight of the amenity focus of these provisions in
RMA terms. For example, we refer the Panel to Mr Roberts' discussion of policy
39
40
41
EIC of R McLaughlan for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 11.4
At paragraphs 6.19 6.23.
At paragraph 6.20.
31606497:631362
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theme 3 (quality living environments and residential amenity) at paragraph 1.7 of his
EIC, which lays the broad foundation for his later more detailed discussion of onsite
amenity controls (e.g. at page 109 onwards of his EIC).
3.
3.1
3.2
4.
4.1
The balance of these submissions address the outstanding issues, from Council's
perspective, following mediation and the exchange of evidence. The Council has
filed eight rebuttal evidence statements, including one joint rebuttal statement, from a
number of its witnesses42 addressing these issues. In some instances, the Council
(through the rebuttal of its witnesses) has accepted the amended relief sought in the
evidence filed for some of the submitters, and where this is the case, that has been
noted further below.
4.2
From our perspective, the outstanding issues on the Residential zone provisions
pertain primarily to:
(a)
42
The minimum lot size for unserviced lots in the RCS zone.
Page 26
(b)
Residential Subdivision:
(i)
The minimum lot size and the additional subdivision control in the SHZ
for Point Wells, Matakana;
(ii)
(iii)
(iv)
Removing the net site area from all the subdivision provisions;
(v)
(vi)
(c)
Design Statements:
(i)
(ii)
(d)
Urban Design:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Fences;
(viii)
(ix)
(x)
(xi)
form
and
appearance,
on-site
amenity,
landscaping,
31606497:631362
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(xii)
(e)
Planning:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(f)
Retirement Villages:
(i)
(ii)
43
EIC of D Rogers for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 9.11.
31606497:631362
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corresponding rules to include reference to 'specialist residential
activities' rather than 'Retirement Villages'; and
(iii)
(g)
5.
Affordable Housing:
(i)
(ii)
MINIMUM LOT SIZE FOR UNSERVICED LOTS IN THE RURAL AND COASTAL
SETTLEMENT ZONE
5.1
Another matter of disagreement between the Council and some submitters relates to
the minimum lot size for unserviced lots in the RCS zone. In his EIC for the Council
dated 8 September, Mr Ormiston explained why the proposed minimum lot size of
3000m2 in the RCS zone was justified. In her evidence for Better Living Landscapes
Limited, Ms Pegrume requests that the minimum lot size for unserviced lots in the
RCS zone be reduced to 1500m2. Evidence for Auckland Regional Public Health
supports retaining the 3000m2 minimum lot size.
5.2
44
Mr Ormiston did however conclude, taking into account the matters set out in
paragraph 6.3 and Attachment A to his EIR for the Council, that a minimum lot area
required for a 3 bedroom dwelling in the unserviced RCS zone could be scaled down
to 2500m2, provided the constraints for retaining walls, water bores, steep or unstable
slopes, flooding or shallow groundwater do not result in additional reductions in land
disposal area availability.
44
EIR of A Ormiston for Auckland Council, Topics 059-063, 6 October 2015, paragraph 2.3(b).
31606497:631362
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5.4
Mr Ormiston now proposes in sections 1 and 7 of his EIR that the minimum lot size
for unserviced lots in the RCS zone be scaled down from 3000m2 to 2500m2. We
note that Mr Roberts in his EIR supports the revised minimum lot size promoted by
Mr Ormiston as being the most appropriate method for achieving the RCS zone
objectives, and considers it is consistent with the physical and environmental
attributes of most sites in that zone.45
6.
OUTSTANDING
MATTERS
RELATING
TO
RESIDENTIAL
SUBDIVISION
CONTROLS
6.1
The evidence for the Council and that for various submitters continue to take different
positions on:
(i)
The minimum lot size and the additional subdivision control in the SHZ for Point
Wells, Matakana;
(ii)
Having a definition for "vacant proposed sites" and amending the shape factor
requirement in the THAB zone;
(iii)
(iv)
Removing the net site area from all the subdivision provisions;
(v)
(vi)
The minimum lot size in the additional subdivision controls for Waimauku and
Bombay.
6.2
A.
Minimum lot size and Additional Subdivision Control in the SHZ for Point
Wells, Matakana
6.3
As Mr Blow notes in paragraph 4.2 of his EIR for Watercare on behalf of the Council,
Mr Hessell (for Kevin Glucina) suggests at paragraph 19 of his evidence that it is
unncessary to retain larger lot sizes for all of the Point Wells urban area for the
purpose of avoiding wastewater discharge capacity issues.
45
EIR of N Roberts for Auckland Council, Topics 059-063, 6 October 2015, paragraph 5.3.
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Omaha Wastewater Treatment Plant (Plant) "could likely cope" with future growth
resulting from that.
6.4
Mr Blow is clear that the Plant is currently operating at capacity, and that to reduce
the minimum site size in the SHZ for Point Wells to 800m2 would yield more lots
requiring connections to the Plant, triggering the need for an upgrade. Without that
upgrade, it would mean the Plant would have to operate at peak capacity for longer
periods of time, which is not sustainable. Given that the Plant is not timed for an
upgrade in Watercare's Asset Management Plan until 2018/2019, it is Watercare's
preference that the proposed additional subdivision controls in Table 3 of Rule
H5.2.3.1 for the SHZ at Point Wells, where the site sizes are 1000m2, be retained.46
Ms Hardman-Miller, in her Joint EIR with Ms Stewart for the Council, agrees that it is
not appropriate to amend the additional subdivision control for Point Wells.47
B.
Definition for "vacant proposed sites" and Amendments to the Shape Factor
requirement in the THAB zone
6.5
In evidence on his own behalf, Mr Harland has queried the status of subdivision of
lots within the THAB zone, and requests that a definition for "vacant proposed sites"
be provided for clarity.
6.6
Ms Stewart in her Joint EIR with Ms Hardman-Miller for the Council, does not
consider that such a definition is needed. Ms Stewart's opinion is that a common
interpretation of a vacant lot is one that does not contain any buildings and does not
have a consent to allow for development on the site.48
6.7
Mr Harland has also requested that the site shape factor be reduced to an area of 8m
x 15m for the THAB zone. Ms Stewart does not support Mr Harland's request, and
explains in paragraphs 5.5 of her Joint EIR that the amended requirement of a shape
factor of 15m x 20m is "more appropriate to demonstate that a site could contain a
building of the expected size for the THAB zone", and equates to a 300m2 area.
46
47
48
EIR of D Blow for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 1.2 and 5.4.
Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015, paragraph 10.2.
Ibid, section 5.
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C.
6.8
6.9
Minimum
Net
Site
Area
House 480m
Single
zone
Mixed Housing 320m
Suburban zone
Mixed Housing 240m
Urban zone
6.10
However in her Joint EIR for the Council, Ms Stewart has suggested the following
text be added to Rule H5.2.3.1.1.c to explain how lot size averaging would work:
c.
6.11
When undertaking the averaging calculation for the purpose of clause (b) and
Table 1A above, any proposed site with a net site area greater than 20% of
the minimum average net site area specified for the relevant zone shall be
included in the calculation at exactly 20% greater than the specified
minimum average net site area figure.
Since filing her EIR, Ms Stewart has considered the wording of this control further,
and now considers it should read as follows (further amendments in bold):
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Table 1A: Alternative minimum net site areas
Zone
Minimum
Net Site
Area
Minimum
Average Net
Site area
Single House
zone
Mixed
Housing
Suburban zone
Mixed
Housing
Urban zone
480m
600m
Maximum Net
Site area (for
averaging
purposes)
720m
320m
400m
480m
240m
300m
360m
c.
When undertaking the averaging calculation for the purpose of clause (b) and
Table 1A above, any proposed site with a net site area greater than 20% of
the minimum average net site area specified for the relevant zone shall be
included in the calculation at the figure specified for the relevant zone
under the Maximum Net Site area in Table 1A.
6.12
The Council supports this further amendment to Table 1A and Rule H5.2.3.1.1.
D.
6.13
Evidence from Mr Bennett on his own behalf, seeks the removal of net site area from
all the subdivision provisions, which would enable rear sites to be created (of 600m2
in area), based on the gross site area.
6.14
It is Ms Stewart's opinion that the net site area should be retained for the purposes of
applying the minimum lot size for vacant lots. Ms Stewart reiterates that the purpose
of this control is to ensure that the lots created have sufficient area for development
and are consistent with the expected zoning outcomes.49 Ms Stewart also points out
that the land excluded from the net site area is essentially driveway area, which
cannot be utilised for development.50
E.
6.15
49
50
Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015, paragraph 7.2.
Ibid.
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Anne and George Richardson, with regard to their property at 25 Ferndale Drive,
Kawakawa Bay.
subdivision control for Kawakawa Bay, an average minimum site size of 600m2, and
a minimum site size of 450m2 for this settlement.
6.16
Having reviewed Ms Healy's evidence, and following further investigations into this
and related matters, Ms Hardman-Miller supports amending the planning maps and
Table 3 in Rule H5.2.3.1 to remove the 750m2 additional subdivision control for
Kawakawa Bay.51
6.17
minimum site size for the SHZ in Kawakawa Bay should be 600m2.52 Such a site size
would, in her opinion, continue to maintain a low density built form due to the SHZ's
8m maximum height and 35% maximum building coverage controls. Ms HardmanMiller also notes that Rule 1.b of the Residential subdivision controls provides an
alternative to the SHZ 600m2 minimum site size for sites over 1ha to enable an
average of 600m2 and a minimum of 480m2. Given that provision would apply to the
subdivision of sites zoned SHZ over 1ha in Kawakawa Bay, including the property at
25 Ferndale Drive, Ms Hardman-Miller does not consider it necessary to include
specific averaging controls for Kawakawa Bay.53
F.
The minimum lot size for unserviced lots in Waimauku and Bombay
6.18
Ms Pegrume in her evidence for Better Living Landscapes Limited has sought a
1500m2 minimum site size within the RCS zone on the basis that smaller sites are
able to accommodate on-site wastewater systems. As discussed above in section 7
of these legal submissions, Mr Ormiston disagrees and recommends a minimum site
size of 2500m2 as being adequate to accommodate on-site wastewater systems for a
3 bedroom dwelling in unserviced lots in the RCS zone.
51
52
53
Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015, paragraph 9.3.
Ibid, paragraph 9.4.
Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015. paragraph 9.5.
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6.19
Ms Hardman-Miller notes in her Joint EIR for the Council that both Waimauku and
Bombay are unserviced settlements relying on on-site wastewater systems. In line
with Mr Ormiston's recommendations, she proposes that the 3000m2
additional
7.1
(ii)
A.
7.2
Ms Linzey and Mr Lindenberg for Housing NZ, and Mr Kyle for Ryman
consider that design statements should be deleted from the PAUP
altogether.55
(b)
Mr Bird for Ryman opposes the requirement for design statements on the
basis that they will be undertaken retrospectively, and thus add cost and little
value to the consenting process, which would be more effectively shaped by
non-statutory processes such as the Auckland Urban Design Panel.
7.3
54
55
Page 35
proposals of good design quality that fit well with their existing environment, and
ought to be retained in the PAUP.56
B.
7.4
Mr Burton's evidence for Auckland 2040 is that this table makes no provision for 3-5
dwellings and 6-15 dwellings in the Residential zones to address building form,
character, use and activity, and urban structure matters. It is his opinion that such
matters should be required for developments in the MHS and MHU zones. Likewise
he considers in terms of a design response, that assessment of landscape and open
space should be included.57
7.5
While Ms Ogden-Cork agrees to some of these suggestions, she does not propose to
introduce any further requirements for applications of 3-5 dwellings or 6-15 dwellings.
She also notes that the introductory text to the Special Information Requirements
states that design statements are to include the matters indicated within Table 9 "as
a minimum" and therefore the table does not preclude applicants from providing the
full range of information they consider relevant to their proposal or an integral part of
their design process.58
7.6
56
57
58
59
60
EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 1.5
EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraph 95.
EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 5.45.5.
EIC of A McKenzie for The Character Coalition, Topics 059-063, dated 23 September 2015, Attachment
A.
EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.7.
31606497:631362
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8.
8.1
The areas of disagreement between the Council and submitters on urban design
matters concern:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Fences;
(viii)
(ix)
(x)
(xii)
(xii)
The merits of other suggestions such as the Vic Code, and a competition
design process in lieu of Council design review or urban design review.
A.
8.2
Evidence for Housing NZ contends that outlook spaces should overlap.61 In his EIR
for the Council dated 6 October 2015, Mr McIndoe considers that an overlap of
outlook spaces would "unacceptably compromise amenity"62, and he describes the
various scenarios in which an overlap results in failing to provide a reasonable
standard of visual privacy (which is the intent of the control), and the fact that such
61
62
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 98.3 and Attachment A.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.3.
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poor quality development would be inconsistent with the description of the
Residential zones to provide 'high quality on-site living environments for residents'.63
8.3
8.4
B.
8.5
The evidence for Housing NZ, Ryman and others have requested various
amendments and clarifications to the daylight control.
Mr Burton and Mr Putt in their evidence for Auckland 2040 raise concerns with how
the daylight control is expressed in the Activity table.68 Mr Craig has requested clarity
on the significance of clause 4 (the daylight rule).69
63
64
65
66
67
68
Ibid.
Ibid, paragraph 5.9.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 93.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 100.
EIC of J Kyle for Ryman, Topics 059-063, dated 22 September 2015, paragraph 78 and EIC of C Bird
for Ryman, Topics 059-063, dated 23 September 2015, paragraphs 14-17 and 82.
EIC of I Craig for Fletcher Residential, Topics 059-063, dated 22 September 2015, paragraph 11.5.
31606497:631362
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8.7
C.
8.8
Evidence from Ms Linzey and Mr Lindenberg for Housing NZ is that the building
height modulation control could generate a very uniform roof form/pitch design.71
Their reasons are summarised in paragraph 7.3 of Mr McIndoe's EIR as follows:
(a)
(b)
(c)
8.9
Mr McIndoe disagrees and considers that without the compensation of low roof eaves
for a high ridge for example, the suggested alternative by Housing NZ will also lead
to a risk that substantial parts of a building are permitted to be a storey higher than is
anticipated for the zone.72
D.
8.10
Evidence for Generation Zero, Point Chevalier Residents Against THAB Inc, and
Auckland 2040 requests various minimum dwelling sizes of 30m2, 40m2 plus balcony
and 45m2 in the MHS zone.
8.11
In his EIR for the Council, Mr McIndoe considers the evidence for smaller or
amended minimum dwelling sizes, and it remains his evidence that the Permitted
30m2 studio and 45m2 one bedroom unit sizes are appropriately enabled in the region
69
70
71
72
EIC of I Craig for Fletcher Residential, dated 22 September 2015, section 11.0
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, section 8.7.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraphs 91-92.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 7.4.
31606497:631362
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while at the same time ensuring that matters of amenity are properly considered
should very small dwellings be attempted.73
demonstrates that the Residential zone provisions provide the 'substance' to the
framework provided on these matters in the Building Code and HIR 1947 as set out
in Ms McLaughlan's EIC for the Council.
E.
8.12
Generation Zero expressed a concern that the "assessment criteria imply stricter
requirements than the rules that they replace"74, citing the recommended floor to
ceiling height of 2.7m in assessment criterion 10.2.3 (e)(viii) as an example. It is Mr
McIndoe's opinion that the criterion allows sufficient flexibility, and recognises that the
appropriate heights will vary between situations.75 Furthermore, the 2.7m proposed
minimum is coordinated with the maximum Permitted building heights in the MHU
and THAB zones.76
8.13
F.
8.14
Mr Hollenstein's evidence expresses concerns about the street frontage controls, and
the dwellings being oriented to the street rather than prioritising meeting owner/user
requirements.77 It is Mr McIndoe's opinion that this control is "essential', and that
good design will, at the same time, ensure owner/user requirements are met, albeit
potentially modified slightly to include appropriate address to the street.78
73
74
75
76
77
78
Page 40
8.15
G.
Fences
8.16
Mr Moriarty in his evidence for Summerset and Aria Bay contends that low fences
(1.2m) or fences required to be visually open above this height, cannot achieve the
necessary security for residents of a Retirement village.80 Mr McIndoe disagrees for
the following reasons in paragraph 11.1 of his EIR for the Council:
(a)
(b)
A 1.8m high, 50% visually open fence can provide equal deterrence to
climbing as a 1.8m high closed wall.
There is an element of visibility through a fence, which enhances security as
it reduces potential for concealment.
H.
8.17
Housing NZ's evidence seeks a change in the maximum permitted gradient for a
designated outdoor living space from 1 in 20 to 1 in 12.5.81
8.18
I.
8.19
Mr Putt in his evidence for Mahi Properties Limited seeks a new rule to cover solar
access to outdoor living space.83 Mr McIndoe discusses Mr Putt's request in some
detail in section 13 of his EIR.
8.20
It is Mr McIndoe's evidence that the PAUP gives a greater degree of design flexibility
than Mr Putt suggests, and that the issues with which Mr Putt is concerned are dealt
79
80
81
82
83
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 10.3.
EIC of C Moriarty for Summerset and Aria Bay, Topics 059-063, dated 24 September 2015, paragraph
117.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 83 and Attachment A.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 12.1 - 12.2.
EIC of B Putt for Mahi Properties Limited, Topics 059-063, dated 23 September 2015, section 10.0.
31606497:631362
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with satisfactorily by other means, which are summarised in paragraph 13.1 of Mr
McIndoe's EIR as follows:
(a)
The purpose of control 7.12 Outdoor living space has been amended to
ensure the space has access to sunlight.
There is, as Mr Putt has identified, a new control that ensures that any
designated outdoor living space to the south of a dwelling extends far enough
away from the building to achieve a reasonable degree of sun.
The assessment criteria for multi-unit development at 10.2.3 (e) (on site
amenity) cover sunlight with (v) and (vi) relating to the sun to outdoor living
spaces, both private and communal; and (vii) relating to landscape with
consideration of sun and shade.
Development control infringement criteria 11.2.1 (c) states that particular
consideration will be given to the adverse effects on the amenity of
neighbouring sites when infringing a list of ten controls including building
height and height in relation to boundary; 11.2.2 (a) specifically identifies
sunlight access as an issue; and 11.2.2 (a) (i) requires that particular
consideration will be given to the location of the neighbouring principal
living room and outdoor living spaces.
(b)
(c)
(d)
J.
8.21
Mr Putt proposes in his evidence for Mahi Properties Limited that a non-notified
AHIRB activity be reinstated in the MHS zone as a RD activity.84 Mr McIndoe agrees
with this proposal, and sets out his supporting reasons in paragraph 14.1 of his EIR.
Mr Roberts has also agreed with the reinstatement of this control at paragraphs 5.255.26 of his EIR.
K.
to
retirement
villages,
particularly
neighbourhood
character,
relationship to the street and public open spaces, building location form and
appearance, on-site amenity, landscaping, and references to orientation to the
sun
8.22
84
85
EIC of B Putt for Mahi Properties Limited, Topics 059-063, dated 23 September 2015, section 5.0.
EIC of C Moriarty for Summerset and Aria Bay, Topics 059-063, dated 24 September 2015, paragraphs
128 130.
31606497:631362
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relation to retaining mature trees where these contribute significantly to local
neigbourhood character (paragraphs 17.2 - 7).
8.23
In relation to the criterion on relationship to the street and public open spaces,
Mr Moriarty is of the view that a number of other matters such as orientation of the
site, access to sunlight, views, noise, reverse sensitivity, and air quality are equally
important and should be included.86
paragraph 17.9) that the original criterion should be retained as the relationship to the
street is fundamental to adverse effects on the street.
8.24
Mr Bird opines in his urban design and architecture evidence for Ryman that there
should be an acknowledgement of the functional and operational imperatives of
Retirement villages.87 However Mr McIndoe considers that while the functional and
operational imperatives of Retirement villages should be acknowledged, it need not
be with a bespoke or separate set of criteria. Mr McIndoe considers (at paragraph
17.13) that the provisions need to be amended so that a single set of criteria can
apply to other multi-unit residential types, in particular apartment development as well
as retirement villages.
8.25
He suggests
some wording at paragraph 17.15 of his EIR and further suggests that this could be
usefully applied to all larger scale buildings, not just Retirement villages.
8.26
Mr Moriarty and Mr Bird for Summerset and Aria Bay and Ryman respectively,
oppose the on-site amenity and design criteria in the Retirement village provisions,
stating they are included in the standards prescribed in the Retirement Villages Act
2003 (the RV Act). We have addressed this and related matters in section 10 of
these submissions and consider it is wholly appropriate that these issues are dealt
with in the PAUP.
86
87
88
Page 43
8.27
8.28
8.29
In his evidence for Mahi Properties Limited, Mr Putt suggests that the Council has
'cherry picked' aspects of the Vic Code as a guide for the Residential zone
provisions.92 Mr Putt considers that a more fulsome consideration of the Vic Code
ought to have been undertaken.93
appropriate to use parts of the Vic Code and not others as matters can be dealt with
on an issue by issue basis.94
8.30
9.
9.1
89
90
91
92
93
94
95
(i)
(ii)
EIC of C Bird for Ryman, Topics 059-063, dated 23 September 2015, paragraph 137.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 17.27.
Ibid, paragraph 17.30.
EIC of B Putt for Mahi Properties Limited, Topics 059-063, dated 23 September 2015, paragraph 1.5.
Ibid, paragraphs 1.5 1.8.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 18.3.
EIC of P Hollenstein, Topics 059-063, dated 21 September 2015, paragraphs 2 2.1.
31606497:631362
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(iii)
(iv)
(v)
(vi)
Density and associated control matters including, minimum lot sizes in the
SHZ, minor units in the SHZ;
(vii)
(viii)
(ix)
(x)
Other matters relating to the ACDC Model, site or area specific requests, and
lack of representation of lay people at mediations.
A.
9.2
A number of submitters raised concerns over the approach to the overall zoning
strategy and zone objectives and policies of the SHZ. Some have raised issues that
areas of high amenity value or special character should be included in the SHZ
objectives and policies. Mr Roberts is of the view that the MHS zone should be
applied, unless there are significant environmental or infrastructure constraints to
warrant otherwise.96
9.3
96
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 4.3 4.4.
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B.
9.4
Mr Todd and Mr Kaye in their evidence for Ockham Holdings Limited (Ockham) raise
fundamental concerns with the approach taken to the MHS and MHU zones97 and
consider that the two storeys will not facilitate feasible development. They propose
deleting the MHS zone and expanding the MHU zone in order to enable greater
housing capacity and variety. In their view, the only difference between the SHZ and
MHS is density and minimum lot size, which will not result in a substantial difference
between those zones.98
9.5
In contrast, Mr Roberts disagrees that the differences between the SHZ and the MHS
zone are not significant, and considers that there is a need to distinguish between
areas with a suburban and urban built character for the reasons outlined in his EIR at
paragraph 4.7 as follows (footnotes omitted):
(a)
(b)
9.6
Density and minimum lot size will make a difference in terms of the number
of dwellings and people between the SH and MHS zone, as explained in my
EIC6. It is therefore appropriate to provide for the two different zones to
enable growth to be limited in specified areas; and
The MHS zone and provisions will be appropriate to maintain a suburban
character where population growth does not need to be limited, but three
story, more intensive development is not appropriate. It should therefore be
retained as a zoning option in terms of the overall zoning strategy.
The MHS zone provides flexibility and supports increased housing capacity
while not undermining the role of the MHU and THAB zones to provide
intensification in areas where the greatest gains can be achieved;
(b)
Mr Burton in his evidence for Auckland 2040 specifically supports the height
differences in MHU and MHS zones, and that over 100 community groups
represented by Auckland 2040 are "generally accepting" of the release of
density provided that a two storey 'suburban' built character is retained.100 On
97
98
99
100
EIC of B Kaye for Ockham, Topics 059-063, dated 22 September 2015, paragraphs 24 33; EIC of M
Todd for Ockham for Topics 059-063, dated 22 September 2015, paragraphs 5 - 7.
Ibid.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 4.8 - 4.9.
EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraph 49.
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this basis, Mr Roberts considers that significant expansion of the MHU zone
is unlikely to be acceptable to communities; and
(c)
9.7
In summary, and in contrast with the argument raised in the evidence for Ockham,
Mr Roberts considers that the differences in the zoning strategy for the SH, MHU and
MHS zones are important in the overall zoning strategy that seeks to provide for a
range of housing choices and limit growth in areas with identified values or
infrastructure constraints.102 In Mr Roberts' view, the concerns raised by Ockham are
more related to the spatial extent of the MHU zone, and are therefore matters for
consideration in Topics 080 and 081 on Rezonings and Precincts, and/or any future
Plan Changes. Mr Roberts is clear though, that the MHS zone should be retained as
a tool, though the "appropriate spatial distribution" of the SHZ, MHS, MHU and THAB
zones, should be considered having regard to the RPS objectives.103
The SHZ
stands on its own from a policy perspective and cannot therefore be interchanged
with the MHS zone (one limits growth while the other enables growth).
The
distinction between the MHS and MHU is also justified on the basis of providing a
choice of residential character (two storeys vs three storeys).
C.
9.8
Mr Burton, for Auckland 2040, considers the MHS zone's objectives and policies
should be amended to recognise existing neighbourhood character.104 We note that
recognition of a sites existing character is already reflected in General Objective 1
and submit, in reliance on Mr Roberts EIR105, that it is unnecessary to reflect this
again specifically in the MHS zone.
9.9
Ms Coats, for North Eastern Investments Limited (NEIL) and Heritage Land Limited
seeks a four storey height for the MHU zone on the basis that four storeys with an
101
102
103
104
105
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.9.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 4.6 4.10.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.10.
EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraphs 71 75.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.11.
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elevator would result in better onsite amenity
106
and the observations from submitters during the workshop and mediation process,
we submit that four storey development is generally uneconomic. Mr Roberts states
that three storey development in the MHU zone will provide for greater intensification
and flexibility than the MHS zone, while also providing a less intensive character than
the five storey development enabled in the THAB zone.108
D.
9.10
In her evidence for NEIL, Ms Coats seeks an extension to a six storey development
limit in the THAB zone.109 Mr Roberts considers that the five storey baseline should
be maintained as the optimal balance that recognises the need to manage the
transition of suburban areas to higher density development.110
E.
9.11
Mr Ross has provided evidence on his own behalf in a personal capacity. In his
evidence, Mr Ross seeks the replacement of SHZ and the MHS, MHU and THAB
zones with seven new zones in order to enable much higher intensification in the
higher level zones.111 Mr Roberts considers that the height and intensification levels
proposed by Mr Ross (some up to 60m plus in height) are not (currently) appropriate
to be applied to Aucklands existing residential areas, for the following reasons:
(a)
(b)
they would not provide for reasonable levels of amenity for existing residents
adjacent to new developments, and would therefore not meet the RPS
objectives.112
106
107
108
109
110
111
112
EIC of A Coats for NEIL and Heritage Land Limited, Topics 059-063, dated 23 September 2015,
paragraph 12.
EIC of P Nunns' for Auckland Council, Topics 059-063, dated 8 September 2015.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.12.
EIC of A Coats for NEIL and Heritage Land Limited, Topics 059-063, dated 23 September 2015,
paragraphs 45 - 46.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.13.
EIC of B Ross, Topics 059-063, dated 21 September 2015, paragraphs 2, 7, 16 - 25, 28 - 29.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.14.
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Safety
9.12
Ms Weaver, in her evidence for SafeKids Aotearoa, states that the general objectives
and policies should include references to safety.113 Mr Roberts considers that the
current references contained in General Objective 1 and Policy 1, and the supporting
provisions in the assessment criteria are sufficient to provide for safety within the
residential zones, and no further amendments are proposed to the objectives and
policies of the Residential zones on this matter.114
Historic heritage, character and amenity
9.13
Mr McKenzie, for the Character Coalition, considers that historic heritage, character
and amenity have been inadequately addressed in the residential provisions, and
that this approach does not give effect to the RPS.115 Mr Roberts states in paragraph
4.18 of his EIR that a consideration of the relative value of historic heritage buildings
and historic character areas generally indicates that these are matters for the
schedules and overlays and not the Residential zones (except for where this is
complemented by the SHZ).
9.14
9.15
113
114
115
116
EIC of A Weaver for Safekids Aotearoa, Topics 059-063, dated 22 September 2015, paragraphs 5.3 5.14.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.17.
EIC of A McKenzie for the Character Coalition, Topics 059-063, dated 23 September 2015, paragraph
14.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.18.
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F.
Density and associated control matters including, minimum lot sizes in the
RCS zone and the SHZ, minor units in the SHZ
Minimum lot size in the RCS zone
9.16
Submitters have requested amendments to the minimum lot sizes for the RCS zone.
As we have already discussed in section 5 and earlier here in section 9 of these legal
submissions, Mr Roberts in his EIR (relying on Mr Ormiston's EIR) states that the
minimum lot size for the RCS zone should be reduced to 2,500m2 but not smaller.117
It is Mr Ormiston's evidence that this size provides the best balance between
achieving the RCS zone objectives without creating an expectation that subdivision
could be achieved in areas where onsite discharge would be difficult without
generating significant adverse environmental or health effects.118
Minimum lot size in the SHZ
9.17
The evidence filed for a number of submitters seek amendments to the 600m2
minimum lot size in the SHZ.119 Mr Roberts is clear in his EIR that the purpose of the
SHZ is to limit growth in areas where there are significant constraints or values that
do not support intensification120 (and therefore the zone seeks to limit intensification).
We note that, as discussed in Mr Roberts EIR at paragraph 5.6 (c), reducing the lot
size from 600m2 to 500m2 would increase the number of sites that could be
subdivided by 95%, a significant increase in intensification.
Minor units in the SHZ
9.18
The evidence for a number of submitters have requested that minor units be provided
for in the SHZ.
Roberts' EIR and include for example, Mr Bennett for himself, and Ms Linzey and Mr
Lindenberg for Housing NZ.
117
118
119
120
Page 50
9.19
G.
Development controls
9.20
height controls;
(b)
(c)
(d)
HIRB and building setbacks in relation to driveways, the MHS zone, and the
THAB zone;
(e)
building coverage in the MHS zone and the Large Lot zone, and landscaping
controls in the Mixed Housing zones;
(f)
(g)
(h)
(i)
(j)
extending the application of the water and wastewater controls to all network
utilities.
9.21
Mr Roberts and Mr McIndoe have canvassed, in some detail in their EIRs, the
requests made in the submitters' evidence on these matters. In summary, we note
that:
(a)
on height controls, Housing NZ's evidence is that the roof height flexibility
should be for up to 100% of the roof form and not 50%.122 As Mr McIndoe
and Mr Mead have noted, this approach is inappropriate as it would potentially
121
122
Page 51
enable an additional storey with low floor to ceiling heights which would not
achieve the built character and quality living environment objectives of the
Residential zones.123
(b)
(c)
(d)
on the HIRB and building setbacks for driveways, the MHS zone, and the
THAB zone, Mr Roberts' views and amendments are set out in paragraphs
5.24 to 5.37 of his EIR.
(e)
on building coverage in the MHS zone and the Large Lot zone, Mr Roberts
canvasses the various amendments sought through the evidence of
submitters in paragraphs 5.40 and 5.48 of his EIR.
Mr Roberts' position
remains that set out in his EIC which was to enable a Permitted building
coverage of 35% in the MHS with an additional 5% able to be sought as a
non-notified RD activity.
123
124
125
126
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.15; EIR of
G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 7.2 7.4.
As proposed in paragraph 8.1(b) of the evidence of Mr Lala for multiple parties.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.17.
Ibid, paragraph 5.22.
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(g)
(h)
the submitters' evidence on the outdoor living space control and assessment
criteria is addressed in paragraphs 5.51-5.52 of Mr Roberts' EIR.
He
refinements are agreed to, Mr Roberts maintains his position that these
controls should remain, and that they are the most appropriate method in
achieving the objectives of the Residential zones in relation to daylight access
and development feasibility.
(j)
(k)
H.
9.22
The evidence filed for a number of submitters has requested amendments to various
design assessment criteria.
127
128
129
130
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.50.
Ibid.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.58.
Ibid.
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Mr Roberts in paragraphs 5.59 5.70 of his EIR and the issues raised are many and
varied including requests for criteria that:
(a)
(b)
9.23
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Mr Roberts has responded to each of these requests in his EIR, with the overall
conclusion that aside from refinements/amendments/modifications to the current
assessment criteria to address some of these issues, in the main the criteria in
Attachment A to his EIR are appropriate in the Residential zones.
I.
9.24
131
132
EIC of R Hall for AKA, Topics 059-063, dated 22 September 2015, paragraphs 34 and 40.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.1.
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(b)
Evidence from the New Zealand Fire Service (NZFS) seeks that Emergency
Services be a RD activity subject to the normal tests for notification within the
Residential zones.133 It is Mr Roberts' evidence in his EIC that such activities
may have a range of effects on residential amenity and built character, and
should therefore be assessed as Discretionary activities.134
(c)
(e)
Mr Ogilvie for the Akarana Golf Club Limited seeks a further row in the
Activity table making all development within 30m of the boundaries of the
Akarana Golf course a Controlled activity to reduce potential damage to
proposed development from golf balls.140 Mr Roberts considers this a specific
133
134
135
136
137
138
139
140
EIC of F Blight for the NZFS, Topics 059-063, dated 22 September 2015, paragraph 5.1.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.2.
EIC of P Harland, Topics 059-063, dated 22 September 2015, Attachment 2.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.11.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.11.
EIC of A Liang for Atlas Concrete Limited (Wiri, Silverdale, Mt Wellington, Kumeu, Warkworth, Rosedale
and Mt Rex), Topics 059-063, dated 22 September 2015, paragraph 17.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.12.
EIC of G Ogilvie for Akarana Golf Club Limited, Topics 059-063, dated 18 September 2015, page 3 of 4.
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property issue to be addressed between owners of the golf club and adjacent
residents rather than through planning regulation.141
J.
Other matters relating to the ACDC Model, site or area specific requests, and
lack of representation of lay people at mediations
ACDC Model
9.25
Mr Roberts notes in section 7 of his EIR that a number of evidence statements raise
concerns about the re-run of the Auckland Council Development Capacity 2015
Model (ACDC15) and the interpretation of outputs. Matters concerning this model
are addressed in more detail in section 12 of these legal submissions.
Site or Area Specific Requests
9.26
A number of submitters have raised concerns in their evidence about the zoning
provisions for specific areas. Mr Roberts has set out a sample of these in paragraph
7.5 of his EIR.
Residential Topics, and are best addressed in Topics 080 and 081.
Mediation Process
9.27
9.28
9.29
We also note that the Council cannot control or monitor the level of interest that lay
submitters or community groups display in the PAUP process before the Panel. It
141
142
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.13.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 7.9.
31606497:631362
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has discharged all its statutory obligations in terms of promoting and inviting public
submissions to the PAUP in the lead up to notification in 2013, and participated (and
led to the extent its resources have allowed), in the likes of public information open
days on the Residential zone provisions, and made a considerable amount of related
information publicly available such as tables comparing the Residential zone
provisions as notified with what the Council now proposes for the use and reference
of submitters. The Council has also taken part in a number of offline discussions with
submitters and responded to submitter evidence. Therefore all the Council can do at
this stage is note the views that lay submitters have expressed in their evidence.
10.
10.1
(b)
(c)
10.2
In her EIR for the Council, Ms Rogers disagrees with a number of the amendments
sought in the evidence for submitters on these matters.
A.
10.3
143
144
EIR of D Rogers for Auckland Council, Topics 059-063, dated 6 October 2015.
Dated 8 September 2015.
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(Summerset; Aria Bay), have requested the following amendments to the
"Retirement villages" definition, with which Ms Rogers' disagrees:
(a)
(b)
10.4
Ms Rogers disagrees with a definition that would restrict Retirement villages to those
defined in terms of the RV Act or the HDSSA. It is her view that there is no resource
management basis for restricting the establishment of a housing resource for older
people based on a particular financial tenure (as provided under those two Acts).147
We also note that the proposed more exclusive definition was not sought in the
original Ryman / RVA submission.
10.5
Ms Rogers also considers that providing for disabled people (regardless of age) is
not a primary purpose of a Retirement village and therefore should not be included in
the definition. It is Ms Rogers' evidence that housing provision for disabled people
and those requiring full or part time care is already provided for through the PAUP's
SRC provisions.148
B.
10.6
Issues remain regarding the extent to which objectives and policies should
specifically respond to retirement villages. For example, Mr McGarr for the Selwyn
Foundation and Elizabeth Knox for example, seeks a specific change to Policy 7 in
the MHS zone to replace "retirement village" with "specialist residential activities".
Ms Rogers considers that Mr McGarr's proposed amendment "would go well beyond
145
146
147
148
EIC of C Moriarty for Summerset and Aria Bay, Topics 059-063, dated 24 September 2015, paragraphs
147-148 (and throughout the brief); EIC of J Kyle for Ryman, Topics 059-063, dated 22 September
2015, paragraphs 15, 70-74.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
Attachment A.
EIR of D Rogers for Auckland Council, Topics 059-063, 6 October 2015, paragraph 5.2.
Ibid, paragraph 5.4.
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the originalintention" of the Special Purpose Retirement Village Zone (SPRVZ),
and "has no jurisdiction in terms of what was publicly notified".149
C.
10.7
In his evidence for Ryman and the RVA, Mr Kyle expressed a preference for a
bespoke set of assessment criteria for Retirement village activities over the Council's
proposal to cross-reference those activities to the proposed design and development
criteria for multi-unit buildings.
10.9
10.10 We submit that the RV Act also requires some comment here in light of Mr Birds
statement at paragraph 32 of his evidence for Ryman (when discussing on site
amenity in Retirement villages), that:
149
150
151
Page 59
retirement village operators are registered operators who must design and operate
their villages to meet the standards prescribed under the Retirement Villages Act
2003 and to meet the specific and sometimes specialised needs of residents. In my
opinion, the operators are best placed and informed to manage on site amenity and
internal amenity matters such as outlook and daylight access for their residents.
10.11 Mr Bird refers152, by reference to the corporate evidence of Mr Mitchell153 for Ryman,
to the standards prescribed under the Retirement Villages Act 2003.
10.12 At first glance, Mr Birds statement may suggest that the RV Act prescribes
standards" for design of retirement villages, which registered operators must meet.
It is unclear whether as a witness, Mr Bird considers that the inclusion of criteria in a
district plan relating to on-site amenity in Retirement villages overlaps with or
duplicates those standards under the RV Act, and should be avoided in district
plans for that reason.
10.13 The RV Act deals with matters such as registration, occupation rights agreements
and related requirements and rules, the Retirement Commissioners and statutory
supervisors, dispute resolution, enforcement and penalties, the Registrar of
Retirement Villages, the establishment of a Code of Practice (COP), and various
miscellaneous matters.
10.14 The current COP is the Retirement Villages Code of Practice 2008 (incorporating
October 2013 variations).
requirements that operators of retirement villages must carry out, or make sure are
carried out, to meet their legal obligations under the Retirement Villages Act 2003154.
The COP deals with administrative and management matters such as staffing of
villages, accounts and complaints. It also covers the safety and personal security of
residents, fire protection and emergency management, and construction standards
for new retirement villages or units. In this latter regard, the COP simply states at
clause 44.1 that "Building standards for new retirement villages or residential units
within existing villages must meet the requirements of the Building Act 2004 and the
Building Code.155 Other provisions dealing with the Building Act 2004 and Building
152
153
154
155
EIC of C Bird for Ryman, Topics 059-063, dated 23 September 2015, paragraph 133.
EIC of A Mitchell for Ryman, Topics 059-063, dated 23 September 2015, paragraph 31.
Section 4 of the COP.
Page 39 of the COP.
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Code can be found in clauses 19, 20, 23 and 40 of the COP, and are of a similarly
broad nature.
10.15 Neither the RV Act nor the COP prescribe detailed design standards for Retirement
villages relating to on-site / internal amenity. We submit that it is appropriate for
these matters to be considered as part of a plan review under the RMA.
11.
11.1
As Mr Mead notes in the summary of his EIR for the Council, the key areas of
disagreement between the Council and other submitters on the Affordable Housing
bonuses relate to:
(a)
(b)
the amendments proposed to those bonuses (in the evidence for certain
submitters).
A.
11.2
In paragraph 1.3 of his EIC, Mr Mead sets out that the Affordable Housing bonuses in
the Residential zones were for:
(a)
(b)
11.3
(ii)
Mr Burton states in his evidence for Auckland 2040 that the bonus for the MHS zone:
(a)
would be largely ineffectual as it does not offer any real incentive over and
above that already provided for in the PAUP156; and
(b)
because a large site is required, this will lead to three story apartment
buildings in the MHS zone that will be in "stark contrast"157 to the surrounding
residential development.
156
157
EIC of R Burton for Auckland 2040, Topics 059-063, September 2015, paragraph 106.
Ibid, para 116.
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11.4
Mr Putt in paragraph 4.12 of his evidence for Auckland 2040 and the Herne Bay
Residents, questions whether the additional height will undermine the integrity of the
MHS zone and lessen the difference between it and the MHU zone.
11.5
Mr Mead considers that both Mr Burton's and Mr Putt's concerns could be allayed if
they had considered the requirement for the additional storey to have a 10m setback
from side or rear boundaries, and the fact that a resource consent is required for the
'bonus' development. In Mr Mead's opinion a three storey development can sit within
a one-two storey area provided there is a sense of 'transition', which the 10m setback
rule achieves.
Mr Burton also speculates in paragraph 102 of his EIC that the additional height
bonus in the THAB zone would result in 21m high buildings. It is Mr Mead's evidence
that the bonus provisions state that the building must not exceed 19m outside of the
AZHC areas.
B.
11.7
158
159
EIR of D Mead for Auckland Council, Topics 059-063, 6 October 2015, paragraph 4.6.
Specifically, Te Matapihi and the Auckland Community Housing Providers Network.
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with the main Residential zones controls which refers (in Chapter I7.2 for the MHS
zone) to "50%" of a building's roof.160
12.
12.1
In this section we address the issues that have arisen with regard to the Council's
recent application of the ACDC15 Model to the Council's revised Residential
provisions resulting from mediation.
12.2
(b)
160
161
162
163
EIR of D Mead for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 5.5 - 5.7.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 7.2.
EIC of A Thompson for Property Council New Zealand, Topics 059-063, dated 21 September 2015,
paragraph 4.4).
Refer to the (undated) joint statement from the expert conference group convened as part of mediation
proceedings on the Residential Topics.
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A.
Background
12.3
The development of the different Studies and Models to which Messrs Balderston
and Fairgray refer in their evidence is outlined in Mr Balderston's evidence in chief.
12.4
In brief, the Model on which reliance was placed at the RPS Urban Growth hearing
(Topic 013) is known as the Capacity for Growth Study 2013 (CfGS PAUP).
Following that hearing the Panel directed that:164
further expert conferencing on matters of expected urban land Demand, Supply and
Monitoring, seeking to resolve conflicting evidence on these matters received during
the hearings process.
12.5
Following the expert conferencing a further model for measuring capacity was
developed known as the ACDC15.
12.6
The ACDC15 Model is a very powerful tool to consider what if scenarios in future
planning for the IHP and AC. The ACDC15, in combination with the CfGS model
which feeds it the development opportunities to test, is relatively quickly able to
model the impact of potential changes in zoning rules, overlays, zoning locations etc
on not only plan-enabled capacity, but now also development feasible capacity. This
should be very beneficial for the IHP and AC in months and years to come.
While the ACDC15 results provide a much improved assessment of the likely reality
of how many dwellings will be provided within the 2010MUA, there remain a
number of issues that will affect whether the development attractive identified
parcels within the ACDC15 will be developed, and then the number of dwellings that
are in reality developed, compared to the ACDC15 Model results.
The 013EG was not able to reach a consensus view on the effects of the above issues,
so each of the 013EG members were provided the opportunity to present their
individual thoughts in Appendix D.
164
165
Page 64
12.7
Two key terms, "plan enabled capacity" and "developable capacity" are defined in
paragraphs 1.6 and 1.7 respectively of Mr Balderston's EIC. For convenience they
are:
1.6 Plan enabled capacity, is the estimated net number of additional things (in this
case dwellings) that the planning provisions enable to occur, under a set of
assumptions about how the planning provisions apply. The CfGS (and more
particularly the model that underpins it) is the primary method used to undertake this
capacity assessment by the Council, but it is not a forecasting tool. Capacity is a
measure of potential it shows the upper limit of development that complies with the
modelled parameters, these opportunities may be taken up quickly, be realised over a
longer period of time or not occur at all.
1.7 Developable Capacity, is the estimated net number of additional things (in this
case dwellings) that the planning provisions enable, that a commercially oriented
developer will utilise, under a set of assumptions about how commercial development
decisions are made. The ACDC15 model has been quite recently developed by a
group of Topic 013 Expert Witnesses at the direction of the IHP, and is managed and
run by Auckland Council, and is now the primary method used to undertake
assessment of the commercial feasibility of capacity enabled by Auckland Council,
however it is not a forecasting tool. Feasible capacity is also a measure of potential,
but provides an indication of which of the opportunities enabled have a higher
potential or are more likely to be taken up by commercially oriented developers, than
other comparable plan enabled opportunities.
B.
12.8
In reference to the Report166 (from the Expert Group brought together for the purpose
of caucusing on the Capacity for Growth Study), Mr Balderston recorded in his EIC:
1.8 The Expert Group report describes these two forms of capacity and how the
models work together as follows: The distinction between plan-enabled capacity,
and developable capacity is important. Plan enabled capacity is the number of
additional dwellings which may be developed according to the provisions of the
PAUP. This capacity was estimated from the Capacity for Growth Study 2013
(CfGS13). However, since not all of the plan-enabled capacity will be economically
viable to develop, it is important to consider developable capacity, which is the
number of additional dwellings which are both plan-enabled and are commercially
viable to develop. The modelling therefore starts from the premise that while not all
plan-enabled development will necessarily be developed, a strong prerequisite for
development to be feasible is that it must first be plan-enabled. This also reflects a
practical consideration in that there is no information on which to base a site- scale
assessment of non-plan-enabled capacity, other than noting the potential for it to
occur.
166
Page 65
C.
12.9
It is against that background that the Council determined that it would be helpful to
run the ACDC15 model with the proposed amended Residential zone provisions.
12.10 It is also important to note the following about the use of the ACDC15 Model. Please
note Mr Balderston's EIC at paragraph 1.15:
The ACDC15 Model has been rerun (unchanged), to model the impact of potential
changes in zoning between the two different inputs sets of plan enabled
opportunities output by the CfGS Model what if the rules were changed to those
proposed by the ACAP?:
(a)
One set provided by the PAUP residential and business rules and zonings (as
notified in September 2013) and as reported in the expert group report.
(b)
The other set following adjustments to the residential rules, and termed the
ACAP provisions (the PAUP business provisions have not been amended in
the ACAP run) more fully described in this evidence.
12.11 The results are outlined in paragraphs 1.18 to 1.20 of Mr Balderston's EIC and
analysed by Dr Fairgray. In brief, Dr Fairgray notes in his EIC (footnotes omitted):
C. The amendments to the provisions for the Residential zones have resulted in very
substantial increases to the capacity for more dwellings enabled by the PAUP. They
arise primarily because the Council's revised Residential zone provisions enable more
development and more efficient utilisation of the land resource. The current estimates
from the ACDC15 Model, following the amendments identified to 12 August 2015,
show plan enabled capacity for 598,466 additional dwellings in the Residential
zones.1 This is a very substantial increase over that which was enabled under the
previous provisions.
F. The amount of developable capacity which is currently viable is estimated from the
ACDC15 Model at 150,354 dwellings in the Residential zones. This figure does not
include developable capacity in the Business zones, nor that on land in the
Residential zoned areas which is owned by HNZC, or identified as Special Areas.2
G. The ACDC15 Model outputs provide a snapshot of what development and
redevelopment is currently viable. However, the amount of developable capacity will
change over time, as the Auckland economy grows, and shifts in the values of
residential properties will alter the viability of their redevelopment.
12.12 Evidence given on behalf of two submitters, Mr Thompson for The Property Council,
and Mr Fontein for himself (as a submitter) raises questions about these results
implying that the assumptions underpinning the ACDC15 Model have been changed.
They are incorrect. The Model was simply applied to provide information on the
capacity enabled by the proposed amended residential provisions.
Furthermore
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Mr Fontein alleges167 that there would need to be a peer review "of the data tables
and the formulae that drive the ACDC". With all due respect to him, the data tables
and formulae were not changed. The Model was run so as to provide information on
the extent of capacity enabled by the proposed amended provisions.
12.13 Furthermore, nowhere in the Expert Report is there mention that the ACDC15 Model
is to be limited in its application to the notified PAUP provisions. Were that to be so,
its very utility must be called into question.
Summary specifically makes mention of the fact that it will provide a very powerful
tool to enable the Council and the Panel to model "what if" scenarios in years to
come. Mr Fontein and Mr Thompson were members of the Expert Group and
contributed to the Report.
12.14 On 25 September 2015 the Panel issued certain directions:
Patrick Fontein and Adam Thompson (who were members of the 013 Expert
Group) have filed evidence on the residential topics questioning the assumptions and
judgements used in the re-run of the ACDC model. In their view, these issues are
sufficient to call into question the reliance the Panel should place on the results of this
modelling.
Given the importance of these capacity forecasts for the Panels consideration of the
residential topics the Panel wishes to have clarified the extent to which the
assumptions and judgements critiqued by Patrick Fontein and Adam Thompson
impact on the capacity forecasts. To have this point clarified the Panel directs that
Patrick Fontein and Adam Thompson develop an agreed set of assumptions and
judgements required to re-run the ACDC model to properly reflect the modified
density controls proposed by the Council. The Panel directs the RIMU team to work
with Patrick Fontein and Adam Thompson to achieve and report re-run ACDC model
results prior to 14 October 2015 (commencement of the hearings).
The Panel requests Patrick Fontein and Adam Thompson to identify, compare and
report the key differences in assumptions and judgements used in this re-run of the
ACDC model relative to those used for the Kyle Balderston evidence dated 8
September 2015, and relative to those used in the initial ACDC modelling dated 22
July 2015.
The Panel requests Kyle Balderston to present the results of the re-run ACDC model
in a manner that enables ready comparison with the results presented in his evidence
dated 8 September 2015, and with the results from the initial ACDC model dated 22
July 2015.
167
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12.15 Mr Hill advised by memorandum dated 5 October 2015 that further directions were
issued on 30 September. We have been unable to locate on the website a copy of
that Direction. Mr Hill records the additional directions which include:
1.
2.
3.
By Friday 2nd 5pm changes to all Lookup Tables (inputs and any associated
assumptions to model) to be circulated by Patrick Fontein and Adam
Thompson to Property Development Expert Group (013EG)
The Panel provide IHP mediator David Hill to convene the EG (by e-mail)
over this weekend with view to the 013EG reaching agreement to changes
proposed to Lookup table inputs.
David Hill to report the outcome of this review to IHP and parties by 9am
Monday 5 October
12.16 In his report dated 5 October Mr Hill records at paragraph 11 that "Nil responses
were received from Phil Osborne, Robert Philpott, Dr Michael Rehm, and the Council
and Government representatives."
12.17 For the Council's part, we observe first that the Panel's 25 September direction was
quite clear, insofar as its RIMU unit was to respond to Messrs Fontein and
Thompson's agreed set of assumptions and judgments. That makes sense because
as far as it was concerned, Messrs Fontein and Thompson were driving the matter of
changed inputs and assumptions.
12.18 If the Panel intended by its additional 30 September direction to involve the Council's
witnesses in discussion and agreement, that was not clear to Mr Balderston. As far
as he was concerned, he was simply to await the proposed assumptions and other
material from Mr Fontein (and others) and then run them through the Model.
D.
Outcomes of review
12.19 Both Dr Fairgray and Mr Balderston have filed comprehensive statements of EIR.
They both address evidence filed on behalf of submitters but also the evidence of the
alternative scenarios advanced by Messrs Fontein and Thompson.
12.20 The alternative scenarios that Messrs Fontein and Thompson directed Mr Balderston
to run examined the effects of three substantive changes to the inputs and
assumptions in the ACDC15 Model. Those changes are set out in paragraph L of
Dr Fairgray's EIR as follows:
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L.
The PFAT scenarios examined the effects of three substantive changes to the
inputs and assumptions in the ACDC15 Model:
a.
Changes to the input information in the Lookup Tables (the LUT) to
incorporate extra zone-parcel size-typology combinations for terrace
houses, and amended inputs on modelled dwelling sizes for
typologies;
b.
Changed assignment of dwelling typologies to the zone-parcel sizemarket position combinations, the most significant of which is the
assignment of terrace houses (rather than houses) to most of the 200300m2 parcels in the MHS and MHU zones; and
c.
The addition of an assumed price ceiling mechanism to the Model
results, such that if the modelled prices exceeded the Low or Raised
ceiling, the development was excluded from the estimates.
12.21 The addition of an assumed price ceiling mechanism is new and was not applied to
previous modelling.
12.22 The results of the alternatives are summarised as follows:168
N.
The PFAT No Ceiling scenario is the one which is directly comparable with the
ACAP scenario, because it includes the LUT and assignment changes, but
excludes the effect of the ceiling mechanism. The PFAT No Ceiling scenario
identifies feasible capacity of 162,826 dwellings. This is -18,356 dwellings (10.1%) fewer than the ACAP scenario (181,182 dwellings).
O.
P.
12.23 A key result to note is that when the same No Ceiling scenario is compared with the
Council's ACAP scenario, the difference is only 18,356 dwellings.
12.24 Perhaps the most important point that can be taken from the modelling, and as noted
by both Dr Fairgray and Mr Balderston, is that the Model outputs show that the
amendments to the Residential provisions will act to increase both the plan-enabled
capacity and the amount of feasible capacity, compared with the PAUP as notified.
168
EIR of D Fairgray for Auckland Council, Topics 059-063, dated 13 October 2015, paragraphs N, O and
P.
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13.
CORRECTIONS / UPDATES
13.1
(ii)
(b)
(c)
14.
CONCLUSION
14.1
For the reasons given in these legal submissions and the evidence of Council's
expert witnesses, it is submitted that the amendments proposed to notified Chapters
D1, I1 and H5.2.3.1 as shown in the following attachments to witnesses' evidence are
appropriate and meet the purpose of the RMA:
(a)
(b)
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(c)
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