059, 060, 062 and 063 - hrg - auckland council - legal submissions

8/20/2019 059, 060, 062 and 063 - Hrg - Auckland Council - Legal Submissions

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BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL

IN THE MATTER of the Resource Management Act 1991(RMA) and the Local Government

(Auckland Transitional Provisions) Act2010 (LGATPA)

AND

IN THE MATTER of Topics:

059 Residential objectives and policies;060 Residential activities;061 Retirement and affordability (in part);

062 Residential development controls;and063 Residential controls and assessment

AND

IN THE MATTER of the submissions and furthersubmissions set out in the Parties and

Issues Report

LEGAL SUBMISSIONS ON BEHALF OF AUCKLAND COUNCIL

FOR TOPICS 059 RESIDENTIAL OBJECTIVES AND POLICIES; 060 RESIDENTIALACTIVITIES; 062 RESIDENTIAL DEVELOPMENT CONTROLS AND 063 RESIDENTIAL

CONTROLS AND ASSESSMENT

(CHAPTER D1 RESIDENTIAL ZONES OBJECTIVES AND POLICIES, CHAPTER I1RESIDENTIAL ZONES RULES, AND CHAPTER H5.2.3.1 SUBDIVISION DEVELOPMENT

CONTROLS FOR RESIDENTIAL ZONES)


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CONTENTS

1. INTRODUCTION .............................................................................................................. 3

2. RELEVANT STATUTORY FRAMEWORK ..................................................................... 153. AGREED AMENDMENTS TO NOTIFIED PROVISIONS AS A RESULT OF

MEDIATION .................................................................................................................... 25

4. OUTSTANDING ISSUES AND THE COUNCIL'S POSITION ........................................ 25

5. MINIMUM LOT SIZE FOR UNSERVICED LOTS IN THE RURAL AND COASTALSETTLEMENT ZONE ..................................................................................................... 28

6. OUTSTANDING MATTERS RELATING TO RESIDENTIAL SUBDIVISION

CONTROLS .................................................................................................................... 29

7. OUTSTANDING MATTERS RELATING TO DESIGN STATEMENTS........................... 34

8. OUTSTANDING MATTERS IN RELATION TO URBAN DESIGN.................................. 36

9. OUTSTANDING PLANNING MATTERS ........................................................................ 43

10. OUTSTANDING MATTERS RELATING TO RETIREMENT VILLAGES ........................ 56

11. OUTSTANDING MATTERS RELATING TO AFFORDABLE HOUSING ........................ 60

12. CAPACITY FOR GROWTH ............................................................................................ 62

13. CORRECTIONS ............................................................................................................. 69

14. CONCLUSION ................................................................................................................ 69


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MAY IT PLEASE THE PANEL

1. 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) Chapter D1.2 Large Lot zone;

(c) Chapter D1.3 Rural and Coastal Settlement (RCS) zone;

(d) Chapter D1.4 Single House zone (SHZ);

(e) Chapter D1.5 Mixed Housing Suburban (MHS) zone;

(f) Chapter D1.6 Mixed Housing Urban (MHU) zone;

(g) Chapter D1.7 Terrace Housing and Apartment Buildings (THAB) zone;

(h) Chapter l1.1 Activity table;

(i) Chapter l1.2 Notification;(j) Chapter l1.3 Land use controls;

(k) Chapter l1.4 Development Controls – Large Lot zone;

(l) Chapter l1.5 Development Controls – RCS zone;

(m) Chaper l1.6 Development Controls – SHZ;

(n) Chapter l1.7 Development Controls – MHS zone;

(o) Chapter l1.8 Development Controls – MHU zone;

(p) Chapter l1.9 Development Controls – THAB zone;

(q) Chapter l1.10 Assessment – Restricted discretionary activities;

(r) Chapter l1.11 Assessment – Development control infringements;

(s) Chapter l1.12 Special information requirements; and

(t) Chapter H5.2.3.1 Residential Zones (subdivision development controls for

Residential zones).

1 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, theCouncil has not had an opportunity to adopt a formal position in response to that guidance. That maychange 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. We note also that we have

addressed aspects of the retirement and affordability topic (Topic 061) through

evidence and submissions.

A. Primary and Further Submissions

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) D1.2 Large Lot Zone;

(c) D1.3 RCS zone;(d) D1.4 SHZ;

(e) D1.5 MHS zone;

(f) D1.6 MHU zone;

(g) D1.7 THAB zone;

(h) General Matters (Submissions on D1.2-1.7); and

(i) Site specific.

Topic 060 Residential activities:

(a) Activity Table; and

(b) Site specific.

2 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 7.3 For Topic 060.

4 For Topics 062 and 063.5 For Topic 059.

6 PIR, pages 8 to 15.


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Topic 062 Residential development controls:

(a) Development controls: Large Lot Residential;

(b) Development controls: Rural and Coastal Settlements;

(c) Development controls: SHZ;

(d) Development controls: MHS;

(e) Development controls: MHU;

(f) Development controls: THAB;

(g) Development Controls: General/multi zone;

(h) Subdivision; and

(i) Site Specific/Spatial.

Topic 063 Residential controls and assessment criteria:

(a) Land use Controls – Density;

(b) Land use controls – conversion of a dwelling;

(c) Land use controls – other;

(d) Assessment;

(e) Notification; and

(f) Site specific/spatial.

B. Facilitated Workshops

1.5 There was no expert caucusing for the Residential Topics. However the Panel

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

7 PIR, pages 15 - 16.


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character if density controls were removed, including through giving greater attention

to the notification and assessment criteria for infringing ‘core’ development controls.

1.8 Following the workshops, Council officers produced a marked-up (track changes)

version of the Residential zone provisions for mediation. 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 Panel’s website on 17 July 2015

ahead of the mediations.

C. Mediations

1.9 Facilitated mediation sessions took place on 27 - 31 July, 4 - 7 August and 10 - 11

August 2015.

1.10 The Joint Mediation Statement, prepared by Panel staff and released on

12 August 2015, outlines for some8 of the mediation sessions, areas where

agreement was reached between the parties present and a summary of the matters

which remained outstanding.9 The remaining matters of dispute are addressed in the

evidence in chief and rebuttal for various submitters that have been filed with thePanel. In his Evidence in Chief (EIC) for the Council, Mr Roberts summarised some

of the key matters that arose in mediations as including:10

(a) concerns about linking development potential to infrastructure provisions in the

MHS, MHU and THAB zone objectives and policies;

(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

8 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.9 Joint Mediation Statement, pages 1, 9 - 10.

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. In particular, that the Single House

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. However Auckland 2040 Incorporated (Auckland 2040) and other

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 Following mediation, the Council’s witnesses further considered the provisions

generating debate and / or disagreement. The proposed updated tracked provisions

are set out in Attachment 2 to Mr Roberts' EIC dated 9 September 2015, and are

further updated in Attachment A to Mr Roberts' Evidence in Rebuttal (EIR), dated

6 October 2015.

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 Joint Mediation Statement, section 11.1, page 16 of 40.12

Ibid.13

Ibid.


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D. Proposed Changes to the Notified Provisions

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) Amending the SHZ description, and various objectives and policies.

(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) In relation to building height in the THAB zone:

(i) 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).

(ii) Enabling an additional 2m in height to be sought as a non-notified

Restricted Discretionary (RD) activity in the THAB zone.

(iii) Replacing the setback control within the THAB zone with a permitted

HIRB consistent with MHU zone and an Alternative Height in Relation toBoundary (AHIRB) control in the THAB zone (as a non-notified RD

activity).

(d) Rationalising a number of development controls, specifically:

(i) Amendments to provide matters of assessment which better clarify

when resource consent applications to infringe development controls

may be approved or declined.

(ii) Deleting some of the development controls relating to onsite amenity

and addressing that matter through design assessment criteria instead.

(iii) Improving the clarity of the purpose of the development controls, better

linking them with the development control infringement criteria, and

improving the connection of the controls to the objectives and policies.

(iv) Amending the assessment criteria for infringements for clarity and

consistency.

(v) Deleting clause 2 of the wastewater development controls in 7.20 for the

MHS zone, 8.21 for the MHU zone, and 9.18 of the THAB zone.

(e) Reducing the design assessment threshold for a non-notified RD resource

consent from 4 to 3 dwellings in the MHS and MHU zones, and increasing


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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

accommodation and care centres.

(g) 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) Amending the introduction, objective 2a and policy 6 in section 1.1 General

objectives and policies for the residential zones.

(j) In the MHS zone:

(i) Amending the density rule so that it applies to 'site area' rather than 'net

site area'.

(ii) Reinstating the AHIRB control.

(k) Reducing the minimum lot size in the RCS zone from 3000m2 to 2500m2.

(l) Applying the AZHC to identified sites at Stonefields and 1 Domain Drive,

Parnell.(m) Amending the definition of "Landscaped area" to enable paths up to 1.5m

(instead of 1.0m) in width to be included.

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 Council’s

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. Council's Strategic Approach to Residential Zoning

1.18 It is worth outlining at this point, the Council's strategic approach to Residential

zoning. Mr Roberts sets this out in Part B of his EIC.14

1.19 The Council has taken a strategic approach to implementing the RPS15 in the

Residential zone provisions. As Mr Roberts outlines in section 9 of his EIC

(paragraph 9.5 onwards), the relevant RPS objectives and policies may be grouped

into three key policy themes:

(a) A quality compact city;

(b) Housing capacity and choice; and

(c) Quality living environment and residential amenity.

1.20 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 Auckland’s urban areas with limited or

no access to a reticulated wastewater network. The zone generally forms a

transition between rural and urban land.

(b) Rural and Coastal Settlement: Unserviced rural and coastal settlements,

providing for a “village” residential character and for onsite treatment and

14 EIC of N Roberts for Auckland Council, Topics 059-063, dated 9 September 2015, sections 13-16.

15 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) Mixed Housing Suburban: Spatially the largest residential zone, provides

flexibility of housing choice at a range of densities while retaining a relatively

spacious quality.

(e) Mixed Housing Urban: Flexibility of housing choice by enabling attached and

detached housing typologies at an urban scale characterised by larger

buildings than in an area with more suburban character.

(f) Terrace Housing and Apartment Buildings: Supports growth and housing

choice by encouraging intensive housing to be established on the periphery of

local, town and metropolitan centres, and in areas with good public transport

accessibility.

1.21 In the PAUP as notified, each Residential zone comprises the following proportions of

the region (in terms of land area):16

Residential zones in urban Auckland Land area

THAB 5%

MHU 10%

MHS 40%

SHZ 32%

RCS 4%

Large Lot 9%

F. Proposed Amendments to the SHZ

1.22 In light of the Council's Residential zoning strategy, and as we mentioned earlier in

paragraph 1.11, the Council proposed amendments to the SHZ description,

objectives and policies at the mediation session on 5 August 2015. While we note

that matters concerning this issue from the Council's perspective are addressed in a

Memorandum of Counsel for Auckland Council dated 1 September 2015

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

are proposed to:

• 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

• the SHZ's Objectives and Policies to reflect these characteristics.

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. The Council's position is summarised in

section 5 of that Memorandum as follows:

(a) That the proposed changes:(i) are important and necessary to ensure a clearer distinction between

the SHZ and MHS zone;

(ii) are consistent with submissions in support of intensification,

submissions requesting upzonings, requests to retain/increase the

size of the SHZ, and requests to amend various SHZ controls; and

(iii) will not result in the rezoning of properties unless there is a

submission to support a rezoning request (noting that rezonings may

also be proposed on an 'out of scope' basis).

(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. Approach Taken in Legal Submissions

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) the relevant statutory framework (in section 2);

(b) the matters agreed at mediation (in section 3);

(c) the outstanding matters of disagreement (forming the bulk of these

submissions) (in sections 4 – 11);

(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) our conclusions.

1.27 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 In relation to the Affordable Housing bonus provisions, the Council's position is

reflected in Attachment A to Mr Mead's EIR, dated 6 October 2015.

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) Nicholas (Nick) Roberts (Planning);

2) Don Munro (Auckland Transport);

3) David Blow (Watercare Services Ltd (Watercare));

4) Graeme McIndoe (Urban design – General);

5) Peter Nunns (Economic analysis of development controls);

6) Tracy Ogden-Cork (Urban design – Design Statements);7) Kevin Wong-Toi (Transport planning);

8) Dr Claudia Hellberg (Impervious surfaces and water sensitive design);

9) Rose McLaughlan (Building Act and Building Code);

10) Alexander (Sandy) Ormiston (Wastewater engineering in the RCS zone);

11) Elizabeth (Liz) Stewart and Rereata Hardman-Miller (Planning – Subdivision

rules for the Residential zones (excluding minimum lot sizes));

12) Yvonne Weeber (Urban design – Subdivision rules for the Residential zones);

13) Karl Hancock (Transport Planning – Shared access – Subdivision rules for the

Residential zones);

14) David Mead (Planning – Affordable housing);

15) Deanne Rogers (Planning – Retirement villages);

16) Kyle Balderston (Economic – capacity and feasibility modelling); and

17) Dr Douglas (Doug) Fairgray (Economic - development capacity).

19Elizabeth Stewart and Rereata Hardman-Miller.


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1.31 Ms McLaughlan has been excused from attending the hearing by the Panel Chair

due to personal circumstances.

2. RELEVANT STATUTORY FRAMEWORK

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 thatthe 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) enable low density development as a permitted activity; and

(ii) enable higher density development in appropriately zoned areas

through a resource consent process requiring design assessment for

multiple dwellings;

20 Section 121 LGATPA.

21 Dated 9 February 2015.


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(c) The Auckland Plan, including its specific focus in Chapter 11 on Auckland’s

housing, with an overall aspiration of ensuring that all Aucklanders have

secure, healthy homes they can afford; and

(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 As we mentioned earlier in paragraph 1.25, while scope is important, the statutory

framework applicable to the PAUP is notably different in light of section 144(3) of

LGATPA, which reads:

144 Hearings Panel must make recommendations to Council on proposed

plan

…(3) However, the Hearings Panel—

(a) is not limited to making recommendations only within the scope of the

submissions made on the proposed plan; and

(b) may make recommendations on any other matters relating to the proposed

plan identified by the Panel or any other person during the Hearing.

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) No guidance is offered in the LGATPA as to what factors the Panel should

take into account when recommending out of scope changes.

(b) We note the view expressed by Dr Somerville QC to the Panel on Interim

Recommendations, Dr Somerville QC considered that the jurisdiction in


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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

amendments recommended by the Panel that are out of scope.

(c) 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!" ). This may be seen as a

deliberate decision by the legislature, for instance to avoid potential delays to

the process due to the initiation of further processes of notification.

(d) 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 appellant’s submission on it.25 We note that the

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 See the legal advice from Dr R Somerville QC to the Panel on Interims Recommendations, 5 February

2015, paragraph 85.23

As noted for example, by the High Court in Clearwater Resort Limited v Christchurch City CouncilHC Christchurch AP34/02, 14 March 2003, at paragraph [66].

24 [2014] NZEnvC 70.

25 Ibid, paragraph 7.26

Ibid.27

Ibid, paragraphs 18 and 19.


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(a) First, that the Court cannot permit a planning instrument to be appreciably

amended without real opportunity for participation by those potentially

affected; and

(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 The Court found that fundamentally, in determining a matter of jurisdiction, it is an

"objective assessment based on the text of the relevant documents rather than on

the personalities of any participant or the circumstances of tenure or use of the land",

yet it must allow a degree of latitude in its application so as to be realistic and

workable rather than a matter of legal nicety.28

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. The Environment Court in

Healthlink said (emphasis added in bold):30

I hold that, as part of the ultimate question as to whether an amendment to a proposed

plan is fairly and reasonably within the submissions filed, the local authority must

consider whether interested persons would reasonably have appreciated that such an

amendment could have resulted from the decision sought by the submitter assummarised by the local authority. As the Full Court pointed out in Countdown this is

very much a question of degree. An amendment to a proposed plan may, as a result of

other submissions and further deliberation, be in quite different words but to be

“fairly and reasonably” within a submission, the amendment must at least bear a

family resemblance to:

(a) the original proposed plan; or

28 Paragraph 43.

29 Judge Jackson's decision in C077/99 was appealed to the High Court in AP14/99. See [2000] NZRMA

375. 30

At page 6 of Judge Jackson's Environment Court decision, and duplicated in paragraph [12] of HansenJ's decision in the High Court.


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(b) a submission and the relief sought as summarised by the Council, or

(c) something in between[24] (a) and (b) - including possibly new objectives,

policies and rules.

An amendment to a proposed plan cannot be the opposite or completely different

from the relief in at least one of the local authority's clause 7 summaries[25]. If it is,then such a procedural defect can be just as fatal[26] as a substantive decision going

outside the scope of a submission.

2.10 The Summary of Decisions Requested (SDR) report notified by the Council on

11 June 201431 (and on which the further submissions are based) is therefore

relevant. In Healthlink the Courts found it was relevant to consider whether a

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 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.32 At paragraph 22 of Judge Jackson's Environment Court decision, and duplicated in paragraph [13] of

Hansen J's decision in the High Court.33

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 tochanges 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 theplan's objectives" (See submission point 3600-09).

Stephen Davis (in submission points 4823-18 to 33) considered the SHZ had been "over-applied" andgenerally 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 thePAUP.


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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) The following well-known passage from Countdown Properties (Northlands)

Ltd v Dunedin City Council [1994] NZRMA 145, at 165:

Councils customarily face multiple submissions, often conflicting, often

prepared by persons without professional help. We agree with the Tribunal

that Councils need scope to deal with the realities of the situation. To take a

legalistic view that a Council can only accept or reject the relief sought in any

given submission is unreal. As was the case here, many submissions

Other submitters have requested to be upzoned from SHZ to MHU or MHS zoning; a sample list ofwhich include Housing NZ (Submitter 839), Martin Cooper (Submitter 6042), James Mooney (Submitter5758), Brendan and Natalie Doherty (Submitter 4680), Patrick Fontein (Submitter 6282), OckhamHoldings Ltd (Submitter 6099), and Walter Stevens (Submitter 5688).

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, havemade requests to either retain or expand the SHZ.

34 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 Council

35

to the effect that a submission seeking a changeto 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) Judge Bollard also referred to the element of “flexibility” allowed by clause

10(2) of the First Schedule in relation to “consequential alterations” and “other

relevant matters” provided that they arose out of submissions or were raised in

submissions. The equivalent provision in the First Schedule is now

clause 10(2)(b), which is in turn largely replicated in section144(7) of the

LGATPA as follows:

The report may also include—

(a) matters relating to any consequential alterations necessary to the

proposed plan arising from submissions; and

(b) any other matter that the Hearings Panel considers relevant to the proposed plan that arises from submissions or otherwise.

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 We submit that a similar argument is available here to the Council. We noted in

paragraph 5(b) of our Memorandum that a number of submissions raised matters in

support of intensification, requests for upzoning from SHZ, requests to increase or

retain the size of the SHZ to reflect special character values of certain city-fringe

suburbs, and submissions seeking to amend various SHZ development controls

which have, in Council's view, effectively raised the issue of a need to rationalise the

approach to the SHZ and the MHS. These matters are broadly addressed in section

13 and paragraphs 15.26 – 15.36 of Mr Roberts' EIC.

35 [1997] NZRMA 408.


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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] 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.

2.17 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] In my view councils, and the Environment Court on appeal, should be

cautious in making amendments to plan changes which have not been sought

by any submitter, simply because it seems that there is a broad consistency between the proposed amendment and other provisions in the plan change

documentation. In such situations it is being assumed that the proposed

amendment is insignificant, and that it does not affect the overall tenor of the

plan change. I doubt that that conclusion should be too readily reached.

Lawyers and planners will often seek to bolster their arguments by reference

to particular provisions contained in a plan, and that it is difficult in advance

to predict how significant or otherwise certain passages or words in a plan

may prove to be. To reason that an amendment can be made because it is

consistent with the broad tenor of a plan change, begs the question — why is

it being belatedly sought by one side and why is it being resisted by the

other?

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 (2008) 15 ELRNZ 59.


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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. Relationship between RMA and Other Legislation

Building Act 2004 / Building Code / HIR 1947

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. However, we draw the Panel's attention to the evidence of

Ms McLaughlan and Mr Roberts, which will be of relevance to the Panel'sdeliberations on issues concerning the relationship between the different statutory

regimes, in the context of the Residential Topics.

2.20 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) The HIR 1947 – Ms McLaughlan notes37 that the minimum standards of

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 EIC of R McLaughlan for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 6.1.38

Which in Ms McLaughlan's opinion implies that "there is no limit on the number of people that can beaccommodated in a dwelling so long as it remains safe and sanitary".


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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) Daylight, Ceiling Heights, and Circulation Space – Ms McLaughlan notes

in paragraph 11.3 that "[m]inimum requirements apply in terms of daylight,

ceiling heights and circulation space particularly in service areas". The Panel

is referred to the witness's evidence for an explanation of the scope and limits

of the relevant controls found in the Code.

(c) Universal access – Ms McLaughlan also notes that "[u]niversal access does

not appy to residential properties and is not specifically addressed in the

Code unless there are common spaces contained within the building".39

2.21 Against the backdrop of the information provided in Ms McLaughlan's evidence, Mr

Roberts in his EIC touches on the interrelationship (and differences) between the

Building Act and the RMA40. In his planning opinion, the "key difference is that the

Building Act focuses specifically on the use of buildings, whereas the RMA focuses

on wellbeing and health and safety within a broader ‘environment’ context"41. As

Mr Roberts notes in paragraph 6.21 of his EIC, Mr McIndoe's EIC refers to there

often being a disconnect in the timing of resource and building consent applications.Mr Roberts notes that resource consents "are often sought at a preliminary design

stage, prior to developing the level of detail required for a building consent."

Consequently, Mr Roberts considers it important (from a planning perspective) to try

and align the health and well-being objectives relevant to both the RMA and the

Building Code on matters such as daylight access, as much as possible at the

resource consent stage.

2.22 We submit that such an approach is good planning and resource management

practice. The Residential zone development controls provide the 'substance', from a

RMA perspective, to the minimum requirements set out in the Building Code on

matters concerning daylight, ceiling heights and apartment sizes.

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 EIC of R McLaughlan for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 11.440

At paragraphs 6.19 – 6.23.41

At paragraph 6.20.


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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. AGREED AMENDMENTS TO NOTIFIED PROVISIONS AS A RESULT OF

MEDIATION

3.1 All the parties in attendance at mediations agreed to certain amendments to the

notified Residential zone provisions in Chapters D1, I1 and H5.2.3.1. These are set

out in the Mediation Joint Statement, Hearing topic 059, 060, 062 and 063 Mediation

sessions on Residential Provisions, released on 12 August 2015, the PIRs for each

topic as updated on 27 August 2015, and are also reflected in green text in

Attachment 2 of Mr Robert’s EIC and Attachment A to his EIR.

3.2 In addition, a number of amendments were agreed by the planners' Working Group.

In general however, the agreed amendments relate to General Objectives and

Policies and Zone Objectives and Policies.

4. OUTSTANDING ISSUES AND THE COUNCIL'S POSITION

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) The minimum lot size for unserviced lots in the RCS zone.

42 Specifically, Mr Blow, Mr Ormiston, Ms Ogden-Cork, Ms Rogers, Mr Mead, Mr McIndoe, Mr Roberts,

Ms Stewart and Ms Hardman-Miller.


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(b) Residential Subdivision:

(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) The wording of a lot size averaging control;

(iv) Removing the net site area from all the subdivision provisions;

(v) Implementing a 450m2 minimum lot size in Kawakawa Bay; and

(vi) The minimum lot size in the additional subdivision controls for

Waimauku and Bombay.

(c) Design Statements:

(i) Merits of Design Statements; and

(ii) Amendments to Table 9: Special Information Requirements for Design

Statements.

(d) Urban Design:

(i) Refinements to development controls on outlook spaces; overlap,

internal corners, reduction in outlook space dimension;

(ii) Amendments to daylight control; whether it should be an assessmentmatter and not subject to notification tests, the title of the table, and

stepping back;

(iii) Modifications to the proposed building height modulation control;

(iv) Minimum dwelling size;

(v) Floor to ceiling height;

(vi) Street frontage control;

(vii) Fences;

(viii) Gradient to outdoor living space;

(ix) Solar access to outdoor living space;

(x) AHIRB in the MHS zone;

(xi) Appropriateness of certain matters of discretion and assessment

criteria being applied to retirement villages, particularly neighbourhood

character, relationship to the street and public open spaces, building

location form and appearance, on-site amenity, landscaping,

reference to orientation to the sun; and


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(xii) Merits of other suggestions such as the Victoria State planning

provisions (Vic Code), and a competition design process in lieu of

Council design review, urban design review.

(e) Planning:

(i) SHZ – overall zoning strategy, zone description, objectives and

policies;

(ii) Strategy for MHS and MHU zoning;

(iii) Amendments to MHU Objectives and Policies;

(iv) Six-storey heights as a baseline in the THAB zone;

(v) Matters such as requests for additional zones, non-residential

activities, specialist residential activities, safety, historic heritage,

character and amenity, incompatible land uses;

(vi) Density and associated control matters including, minimum lot sizes in

the SHZ, minor units in the SHZ;

(vii) Development controls generally; height controls; application of

standard notification test to any height infringement in the AZHC

areas; AZHC in Tennyson Avenue; HIRB and building setbacks in

relation to driveways, the MHS zone, and the THAB zone; building

coverage and landscape in specific zones; the definition of"Landscaped Area"; amendments to the outdoor living space control

and assessment criteria; outlook and daylight controls; minimum

dwelling size control; and the water and wastewater controls;

(viii) Amendments to specific design assessment criteria;

(ix) Amendments to methods for managing specific activities, namely early

childhood centres, fire stations, tertiary and education facilities,

offices, the status of activities near industrial zones and golf clubs;

(x) Other matters relating to the ACDC Model, site or area specific

requests, and lack of representation of lay people at mediations.

(f) Retirement Villages:

(i) Ms Rogers' proposed amendments to the definition of "Retirement

villages"43;

(ii) Further amending the objectives and policies relating to Retirement

villages, including suggested amendments to specific policies and

43 EIC of D Rogers for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 9.11.


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corresponding rules to include reference to 'specialist residential

activities' rather than 'Retirement Villages'; and

(iii) The application of certain development controls and assessment

criteria to Retirement Village activities vs. having a bespoke set of

assessment criteria for Retirement villages (and SRC).

(g) Affordable Housing:

(i) Effects of the Affordable Housing bonuses; and

(ii) Modifications to the Affordable Housing bonuses.

5. 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 1500m

2

. Evidence for Auckland Regional Public Healthsupports retaining the 3000m2 minimum lot size.

5.2 In response to Ms Pegrume's evidence, Mr Ormiston reviewed the implications for

safe onsite wastewater management of reducing the minimum lot size for a 3

bedroom dwelling for unserviced lots in the RCS zone. He found that a minimum lot

size of 2000m2 would not have sufficient area for a 3 bedroom dwelling onsite

wastewater system, and therefore neither would a 1500m2 lot. For this reason,

Mr Ormiston could not agree with Ms Pegrume's request.44

5.3 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).


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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 3000m 2 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) Wording of a lot size averaging control;

(iv) Removing the net site area from all the subdivision provisions;(v) Implementing a 450m2 minimum lot size in Kawakawa Bay; and

(vi) The minimum lot size in the additional subdivision controls for Waimauku and

Bombay.

6.2 For completeness, we also draw the Panel's attention to Ms Hardman-Miller's Joint

EIR, in which she proposes an 'out of scope' amendment for Manurewa for the

reasons outlined in paragraph 8.9 of that statement.

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. This is because the

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 800m 2 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 EIR of D Blow for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 1.2 and 5.4.

47 Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October2015, paragraph 10.2.

48 Ibid, section 5.


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C. Lot Size Averaging Control

6.8 The outstanding area of disagreement is how Rule H5.2.3.1.1.b should read.

6.9 Ms Stewart is supportive of a proposal by Mr Craig for Fletcher Residential, to amend

the wording of the lot size averaging control in Rule H5.2.3.1.1.b, which currently

appears in Attachment B to Ms Stewart's and Ms Hardman-Miller's EIR as follows:

b. In addition to the controls As an alternative to the controls in table 1,

subdivision of a parent site of 1ha or more and where 15 30 or more vacant

sites are proposed, each site that will contain a building must comply with the

minimum net site area for the zone outlined in table 1A below, provided that

overall the total sites that will contain a building comply with the minimum

net site area average area:provided that the proposed site size is no more orless than 20 per cent of the average net site areas:

Table 1A: Alternative minimum net site areas

Zone Minimum

Net Site

Area

Minimum Average Net Site

area

Single House

zone

480m! 600m!

Mixed Housing

Suburban zone

320m! 400m!

Mixed Housing

Urban zone

240m! 300m!

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. 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 specifiedminimum average net site area figure.

6.11 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

Maximum Net

Site area (for

averaging

purposes)Single House

zone

480m! 600m! 720m!

Mixed

Housing

Suburban zone

320m! 400m! 480m!

Mixed

Housing

Urban zone

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. Subdivision and Net Site Areas

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 600m 2

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. Implementing a 450m2 minimum lot size in Kawakawa Bay

6.15 Ms Hardman-Miller discusses in section 9 of her Joint EIR with Ms Stewart, the

evidence filed by Ms Healy on behalf of herself and her husband, and her parents,

49 Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October2015, paragraph 7.2.

50 Ibid.


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Anne and George Richardson, with regard to their property at 25 Ferndale Drive,

Kawakawa Bay. Ms Healy seeks the removal of the current 750m2 additional

subdivision control for Kawakawa Bay, an average minimum site size of 600m 2, 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 An outstanding area of disagreement however, is the implementation of Ms Healy's

proposal for a 450m2 minimum lot size. It is Ms Hardman-Miller's view that the

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 Hardman-

Miller 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 includespecific 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 Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October

2015, paragraph 9.3.52 Ibid, paragraph 9.4.53

Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October2015. 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

subdivision control for Waimauku and Bombay be scaled down to 2500m2.54

7. OUTSTANDING MATTERS RELATING TO DESIGN STATEMENTS

7.1 The outstanding areas of disagreement in relation to design statements between the

Council and submitters pertain to:

(i) the merits of the requirements to have them; and

(ii) the proposed amendments to Table 9 (Special Information Requirements for

Design Statements).

A. Merits of design statements

7.2 The evidence of:

(a) Ms Linzey and Mr Lindenberg for Housing NZ, and Mr Kyle for Ryman

consider that design statements should be deleted from the PAUPaltogether.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 Ms Ogden-Cork disagrees with Housing NZ and Ryman's evidence. Ms Ogden-Cork

notes that Housing NZ's evidence in the Residential Topics is consistent with the

relief it sought in Topic 077 Sustainable Design. It is Ms Ogden-Cork's evidence that

design statements are a key method to assist applicants with creating development

54 Ibid, paragraph 11.2.

55 See Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September

2015, paragraph 115 and Attachment A, page 72 where they propose to delete the design statement

requirements and Table 9 from section 12 (Special Information Requirements) in their entirety, and theEIC of J Kyle for Ryman, Topics 059-063, dated 23 September, paragraph 63. Mr Kyle's request is inrelation to design statements for Retirement villages only.


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proposals of good design quality that fit well with their existing environment, and

ought to be retained in the PAUP.56

B. Proposed amendments to Table 9 (Special Information Requirements)

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 Mr McKenzie's evidence for the Character Coalition sets out a number of

amendments to the Special Information Requirements for design statements59 with

which Ms Ogden-Cork disagrees. An example is the reinstatement of the column

"Additions and alterations to buildings in the THAB zone", which is deleted from the

attachments to Mr Roberts' EIC and EIR. Ms Ogden-Cork notes that additions and

alterations to buildings in the THAB zone are Permitted. She also notes that, any

substantial addition to such would be creating a 'new residential dwelling' or space for

a non-residential activity, and therefore would still be required to provide a design

statement.60

56 EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 1.5

57 EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraph 95.

58 EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 5.4-

5.5.59 EIC of A McKenzie for The Character Coalition, Topics 059-063, dated 23 September 2015, Attachment

A.60

EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.7.


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8. OUTSTANDING MATTERS IN RELATION TO URBAN DESIGN

8.1 The areas of disagreement between the Council and submitters on urban design

matters concern:

(i) Refinements to development controls on outlook spaces; overlap, internal

corners, reduction in outlook space dimension;

(ii) Amendments to the daylight control (whether it should be an assessment

matter and not subject to notification tests, the title of the table, stepping

back);

(iii) Modifications to the proposed building height modulation control;

(iv) Minimum dwelling size;

(v) Floor to ceiling height;

(vi) Street frontage control;

(vii) Fences;

(viii) Gradient to outdoor living space;

(ix) Solar access to outdoor living space;

(x) AHIRB in the MHS zone;

(xii) Appropriateness of certain matters of discretion and assessment criteria

being applied to retirement villages, particularly neighbourhood character,relationship to the street and public open spaces, building location form and

appearance, on-site amenity, landscaping, reference to orientation to the sun;

and

(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. Refinements to development controls on outlook spaces: overlap, internal

corners, reduction in outlook space dimension

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 Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,paragraph 98.3 and Attachment A.

62 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 Mr Moriarty's evidence for Summerset raises an issue of overlap of outlook space at

the internal corners of buildings around a central courtyard or garden area.

Mr McIndoe responds that with appropriate window design, it will be possible for the

overlap of outlook spaces to occur and avoid direct overlook into another living area.

Mr McIndoe also points out that assessment criterion 11.2.4(a) specifically identifies

the means by which a departure from this control might be acceptably achieved.64

8.4 Ms Linzey and Mr Lindenberg's evidence for Housing NZ raises concerns about

compliance with the proposed Reduction in outlook space dimension control.65

Mr McIndoe considers their concerns in some detail in paragraphs 5.10 - 5.18 of his

EIR, but generally is of the view that with some modifications, this control remains

appropriate.

B. Amendments to daylight control - whether it should be an assessment matter

and not subject to notification tests, the title of the table, and stepping back

8.5 The evidence for Housing NZ, Ryman and others have requested variousamendments and clarifications to the daylight control. The joint evidence from

Ms Linzey and Mr Lindenberg questions whether it may be better treated as an

assessment matter for multi-unit development and not subject to the notification

tests66. Mr Bird's and Mr Kyle's evidence for Ryman is that the control will require a

complex checking process and should be deleted from applying to Retirement

villages.67

8.6 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 Ibid.

64 Ibid, paragraph 5.9.

65 Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,

paragraph 93.66

Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,paragraph 100.

67 EIC of J Kyle for Ryman, Topics 059-063, dated 22 September 2015, paragraph 78 and EIC of C Birdfor Ryman, Topics 059-063, dated 23 September 2015, paragraphs 14-17 and 82.

68 EIC of I Craig for Fletcher Residential, Topics 059-063, dated 22 September 2015, paragraph 11.5.


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8.7 It is Mr McIndoe's view that while a number of clarifications may be made to this

control, it should remain a control.70 He also supports the modifications to this control

as set out in Attachment A to Mr Roberts' EIR.

C. Modifications to the proposed building height modulation control

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 o

059, 060, 062 and 063 - hrg - auckland council - legal submissions

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