Auckland Council will proceed to a plan change to get the weighting it wants between the special character overlay & the underlying residential zoning in the region’s 2-year-old unitary plan.
Image above (part of council map): Special character area overlays – residential, across the centre of the Auckland region, showing Birkenhead, Northcote & Devonport north of the harbour bridge, Ponsonby & southern suburbs, plus Parnell & Remuera on the southern side of the bridge.
The council’s planning department took the view that special character overlays should take precedence over the underlying zoning where the 2 were in conflict.
Council regulatory services director Penny Pirrit & resource consents general manager Ian Smallburn said in a briefing in September the council had sought external legal advice, which supported the council view of precedence, but the Environment Court, in a series of judicial review decisions that started last December, had opted for the conflicting view that the rules as written meant the overlay didn’t prevail over or cancel other rules.
Mr Smallburn said: “The court agreed with the council that the unitary plan rules were not clear, but it disagreed with our approach, ruling that both sets of rules – the special character areas overlay rules & the underlying zoning rules – should be considered equally.”
Notification next month
The council’s Auckland-wide planning manager, Phill Reid, told the planning committee today the intention was to publicly notify the plan change on 6 December, but it might be June next year before hearings are held.
The first step in the consultation process would be to talk to local boards at the chairs forum next week.
The application at the heart of this issue, by the London Pacific Family Trust, is to remodel a residential property at 12 Seymour St, St Marys Bay. An application by the owners of a neighbouring property at 10 Seymour St, Craig & Kym Andersen, to remodel their house was due for hearing on 25 October but has been put on hold. The 10 Seymour St owners have been section 274 witnesses (claiming effect as non-parties) in the 12 Seymour St process.
The review process
At the start of these judicial review proceedings in July 2017, the council told the court neighbours & others who were potentially affected had advised the council they considered its approach to administering the new unitary plan to be unlawful, and that this had caused, and would continue to cause, “prejudice to them in the form of loss of amenity, loss of development rights & consequential financial losses”.
In August, council planners identified 420 consents potentially affected by the overlay/zone conflict. That number has since been reduced to 319. Some have had to reapply for resource consent, and the council has waived those processing fees.
As well as clarifying the overlay’s dominance in sections of the unitary plan on development of buildings & subdivision, council planners want to make the wording in 4 other sections consistent – height:boundary, building coverage & paved & landscaped area, yards, and fences & walls.
Resource consents general manager Ian Smallburn told the committee today the council had about 115 potentially affected consents before it to review and had granted 54 of those.
Emotional element, and effect on neighbours
Mr Smallburn said there was clearly an emotional element on top of the planning confusion, and Cllr Mike Lee, whose Waitemata ward contains most of the affected properties, backed that up: “There is another aspect to this, affected neighbours, who have not been told, who apparently are still not being considered. I have had a number of distraught people asking for help, about buildings next door which are blocking out their view or their light, and nothing is done about it.
“It seems to spotlight another problem with the council’s administration of the unitary plan & Resource Management Act, and that is, we deal with the people who apply for resource consents as our customers and we treat the whole process as some sort of commercial contract between us & the customer.
“But there’s more to it than that. The Resource Management Act is a social contract. It’s not between the council & individuals, it’s between the council & the community, including neighbours, and we seem to have drifted away from that. Section 5 of the Resource Management Act, or the definition of sustainability, has at its heart ‘people & communities’ and, in practice, we just ignore it.”
Cllr Lee said the council’s heritage panel at its last meeting asked for the council to make public all of the affected areas or addresses, “so affected neighbours have some notice of what’s happening to their neighbourhood, and to their property, and to their property values. I would urge the council to do that, otherwise we’re inflicting an injustice on way more than the 423 or the 319 who have been inconvenienced by an invalid process.”
For the moment, at least, Cllr Lee’s points were left unanswered as the committee voted to support the process to a plan change.
9, Auckland unitary plan (operative in part) – proposed plan change – special character areas overlay – residential
Summary of proposed changes to the special character areas residential overlay
24 July 2017, council application for declarations
19 December 2017, first interim decision
23 January 2018, second interim decision
15 March 2018, third decision (including declaration)
28 June 2018, costs decision
12 September 2018: Council wants overlay precedence over zone rules, even after court findings
Attribution: Council committee meeting.