I hereby give notice that an ordinary meeting of the Auckland Development Committee will be held on:

 

Date:††††††††††††††††††††††

Time:

Meeting Room:

Venue:

 

Wednesday, 10 August 2016

9.30am

Reception Lounge, Level 2
Auckland Town Hall
301-305 Queen Street
Auckland

 

Auckland Development Committee

 

OPEN AGENDA

 

 

MEMBERSHIP

 

Chairperson

Deputy Mayor Penny Hulse

 

Deputy Chairperson

Cr Chris Darby

 

Members

Cr Anae Arthur Anae

Cr Calum Penrose

 

Cr Cameron Brewer

Cr Dick Quax

 

Mayor Len Brown, JP

Cr Sharon Stewart, QSM

 

Cr Dr Cathy Casey

Member David Taipari

 

Cr Bill Cashmore

Cr Sir John Walker, KNZM, CBE

 

Cr Ross Clow

Cr Wayne Walker

 

Cr Linda Cooper, JP

Cr John Watson

 

Cr Alf Filipaina

Cr Penny Webster

 

Cr Hon. Christine Fletcher, QSO

Cr George Wood, CNZM

 

Cr Denise Krum

 

 

Cr Mike Lee

 

 

Member Liane Ngamane

 

 

(Quorum 11 members)

 

 

 

Sarndra OíToole

Team Leader/Democracy Advisor

 

5 August 2016

 

Contact Telephone: (09) 890 8152

Email: sarndra.otoole@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 



TERMS OF REFERENCE

 

 

 

Responsibilities

 

This committee will lead the implementation of the Auckland Plan, including the integration of economic, social, environmental and cultural objectives for Auckland for the next 30 years. †It will guide the physical development and growth of Auckland through a focus on land use planning, housing and the appropriate provision of infrastructure and strategic projects associated with these activities. †Key responsibilities include:

 

         Unitary Plan

         Plan changes to operative plans

         Designation of Special Housing Areas

         Housing policy and projects including Papakainga housing

         Spatial Plans including Area Plans

         City centre development (incl reporting of CBD advisory board) and city transformation projects

         Tamaki regeneration projects

         Built Heritage

         Urban design

 

Powers

 

(i)††††† All powers necessary to perform the committeeís responsibilities.

Except:

(a)†††† powers that the Governing Body cannot delegate or has retained to itself (see Governing Body responsibilities)

(b)†††† where the committeeís responsibility is explicitly limited to making a recommendation only

(ii)††††† Approval of a submission to an external body

(iii)†††† Powers belonging to another committee, where it is necessary to make a decision prior to the next meeting of that other committee.

(iv)††† Power to establish subcommittees.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Exclusion of the public Ė who needs to leave the meeting

 

Members of the public

 

All members of the public must leave the meeting when the public are excluded unless a resolution is passed permitting a person to remain because their knowledge will assist the meeting.

 

Those who are not members of the public

 

General principles

 

           Access to confidential information is managed on a ďneed to knowĒ basis where access to the information is required in order for a person to perform their role.

           Those who are not members of the meeting (see list below) must leave unless it is necessary for them to remain and hear the debate in order to perform their role.

           Those who need to be present for one confidential item can remain only for that item and must leave the room for any other confidential items.

           In any case of doubt, the ruling of the chairperson is final.

 

Members of the meeting

 

           The members of the meeting remain (all Governing Body members if the meeting is a Governing Body meeting; all members of the committee if the meeting is a committee meeting).

           However, standing orders require that a councillor who has a pecuniary conflict of interest leave the room.

           All councillors have the right to attend any meeting of a committee and councillors who are not members of a committee may remain, subject to any limitations in standing orders.

 

Independent Māori Statutory Board

 

           Members of the Independent Māori Statutory Board who are appointed members of the committee remain.

           Independent Māori Statutory Board members and staff remain if this is necessary in order for them to perform their role.

 

Staff

 

           All staff supporting the meeting (administrative, senior management) remain.

           Other staff who need to because of their role may remain.

 

Local Board members

 

           Local Board members who need to hear the matter being discussed in order to perform their role may remain.† This will usually be if the matter affects, or is relevant to, a particular Local Board area.

 

Council Controlled Organisations

 

           Representatives of a Council Controlled Organisation can remain only if required to for discussion of a matter relevant to the Council Controlled Organisation.

 


Auckland Development Committee

10 August 2016

 

ITEM†† TABLE OF CONTENTS††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† PAGE

1††††††††† Apologies††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

2††††††††† Declaration of Interest†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

3††††††††† Confirmation of Minutes†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

4††††††††† Petitions††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

5††††††††† Public Input††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

6††††††††† Local Board Input††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

7††††††††† Extraordinary Business††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 7

8††††††††† Notices of Motion††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 8

9††††††††† Extension of meeting time for Unitary Plan deliberations††††††††††††††††††††††††††††††††††††††† 9

10††††††† Proposed Auckland Unitary Plan Report 1 - Information on process, statutory framework and decision making†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† 11

11††††††† Proposed Auckland Unitary Plan- Report 2† Response to† the recommendations of the Auckland Unitary Plan Independent Hearings Panel on the provisions of the Plan††† 31

12††††††† Proposed Auckland Unitary Plan Report 3 - Response to Recommendations from the Auckland Unitary Plan Independent Hearings Panel Relating to Designations† 33

13††††††† Consideration of Extraordinary Items†


1††††††††† Apologies

 

An apology from Cr AM Filipaina has been received.

 

 

2††††††††† Declaration of Interest

 

Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

 

 

3††††††††† Confirmation of Minutes

 

That the Auckland Development Committee:

a)         confirm the ordinary minutes of its meeting, held on Wednesday, 20 July 2016, as a true and correct record.

 

 

4††††††††† Petitions

 

Due to section 148(2) of the Local Government (Auckland Transitional Provisions) Act 2010, there will be no petition section.

 

 

5††††††††† Public Input

 

Due to section 148(2) of the Local Government (Auckland Transitional Provisions) Act 2010, there will be no public input section (refer also to Standing Orders 7.7.3 and 7.7.4).

 

 

6††††††††† Local Board Input

 

Due to section 148(2) of the Local Government (Auckland Transitional Provisions) Act 2010, there will be no local board input section (refer also to Standing Orders 6.2.2 and 6.2.3).

 

 

7††††††††† Extraordinary Business

 

Section 46A(7) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

ďAn item that is not on the agenda for a meeting may be dealt with at that meeting if-

(a)††††††† The local† authority by resolution so decides; and

(b) †††††† The presiding member explains at the meeting, at a time when it is open to the public,-

(i)†††††††† The reason why the item is not on the agenda; and

(ii)††††††† The reason why the discussion of the item cannot be delayed until a subsequent meeting.Ē


 

Section 46A(7A) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

ďWhere an item is not on the agenda for a meeting,-

(a) †††††† That item may be discussed at that meeting if-

(i) ††††††† That item is a minor matter relating to the general business of the local authority; and

(ii) †††††† the presiding member explains at the beginning of the meeting, at a time when it is open to the public, that the item will be discussed at the meeting; but

(b) †††††† no resolution, decision or recommendation may be made in respect of that item except to refer that item to a subsequent meeting of the local authority for further discussion.Ē

 

 

8††††††††† Notices of Motion

 

At the close of the agenda no requests for notices of motion had been received.

 


Auckland Development Committee

10 August 2016

 

Extension of meeting time for Unitary Plan deliberations

 

File No.: CP2016/16600

 

Purpose

1.†††††† To agree how to deal with timing issues relating to the considerations of the Unitary Plan.

Executive summary

2.†††††† Statute governing the Unitary Plan allows 20 working days from the receipt of the Independent Hearings Panel recommendations to council notification of the plan. Six working days of meetings have been set aside for consideration and decision of the Independent Hearings Panel recommendations.

3.†††††† The detailed consideration of the Independent Hearings Panel recommendations will take place at this committee. In order to deal with the work load, the committee will adjourn at the end of its deliberations each day and reconvene the following day until it has dealt with all the Panelís recommendations.

4.†††††† This committee meeting will continue over a number of days and on any one day its duration may be more than six hours. The standing orders (SO 1.1.3) state that a meeting may not continue beyond six hours without a resolution to continue. The same standing order also states that no meeting can sit for more than three hours continuously without a refreshment break of at least ten minutes unless the meeting resolves to extend the time before a break:

ďSO 1.1.3 - Meeting duration

A meeting must not continue more than six hours from when it starts (including any meal breaks), or after 10.30pm, unless the meeting resolves to continue.

If there is no such resolution, any business on the agenda that has not been dealt with must be adjourned to the next meeting or to an extraordinary meeting.

No meeting can sit for more than three hours continuously without a refreshment break of at least ten minutes unless the meeting resolves to extend the time before a break.

A member of a meeting who has been in attendance at the meeting, or at consecutive meetings for two hours continuously without a refreshment break, may request the chairperson for one. The chairperson may then seek direction from the meeting as to whether to continue or adjourn for a refreshment break.Ē

5.†††††† To ensure that the Unitary Plan decision making is given as much time as is necessary for consideration of such a significant and complex set of recommendations it is proposed that the meeting pass a resolution at the commencement of its deliberations to continue more than six hours. Regular breaks will still be held.

Recommendation/s

That the Auckland Development Committee:

a)††††† resolve to continue its meeting beyond six hours on any one day but still maintain refreshment breaks in accordance with Standing Order 1.1.3.

Attachments

There are no attachments for this report.

Signatories

Author

Warwick McNaughton - Principal Advisor - Democracy Services

Authorisers

Marguerite Delbet - Manager Democracy Services

Phil Wilson - Governance Director

Penny Pirrit - Director Regulatory Services


Auckland Development Committee

10 August 2016

 

Proposed Auckland Unitary Plan Report 1 - Information on process, statutory framework and decision making

 

File No.: CP2016/16901

 

Purpose

1.†††††† This report provides information about the process used to develop the Proposed Auckland Unitary Plan (PAUP) and the statutory framework around the PAUP process and the decision-making requirements placed on the Council by the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA).

2.†††††† This report (Report 1) forms the first of three reports that relate to the PAUP, with the other two reports addressing the recommendations provided to the Council by the Auckland Unitary Plan Independent Hearings Panel (Panel) as they relate to: the Panelís recommended text for the PAUP and recommended planning maps (Report 2); and the designations appearing in the PAUP (Report 3).

3.†††††† Reports 2 and 3 set out the proposed staff response to the Panelís Recommendations, which the committee will be considering and making recommendations to the Governing Body on, during a series of meetings that commence on 10 August 2016.

Executive summary

4.†††††† Following the adoption of the Auckland Plan by the Council, a spatial plan which was required to be a comprehensive and effective long-term strategy for Aucklandís growth and development[1], the next significant planning priority for Auckland was the development of a combined Resource Management plan for Auckland (the PAUP).

5.†††††† The development of a draft Unitary Plan began in 2012, in accordance with the vision and foundations set by the Auckland Plan.† Legislative amendments were subsequently enacted by the Government.† Those legislative amendments created Part 4 of the LGATPA, which provides a streamlined and unique process facilitating the preparation and development of the Auckland Unitary Plan (AUP).† The Part 4 process is described in further detail in Attachment C to this report.

6.†††††† The PAUP was notified for submission between 30 September 2013 and 28 February 2014. The further submission period occurred between 11 June and 22 July 2014. The Panel commenced hearings in September 2014.

7.†††††† In accordance with section 146 of the LGATPA, the Panel provided the Council with its recommendations for the PAUP on 22 July 2016 (supplementing a number of designation reports previously provided on 18 May 2016).

8.†††††† Section 148 of the LGATPA sets out how the Council is required to consider the Panelís Recommendations and notify its decisions on them.† In summary, the Council must decide whether to accept or reject each of the Panelís Recommendations, and must publicly notify those decisions no later than 20 working days after it is provided with the Panelís Recommendations.† Where any of the Panelís Recommendations are proposed for rejection, there are additional requirements that must be satisfied by the Council.† These additional requirements include that the Council must provide reasons supporting the rejection and an alternative solution to the recommendation made by the Panel.† Further information that relates to the Councilís decision-making requirements, and the statutory framework for its decisions, is provided later in this report.


9.†††††† It is in the context of the unique process provided by Part 4 of the LGATPA that the Council is now tasked with making its decisions on the Panelís Recommendations.† In order to assist the Council, staff have undertaken a full review of the Panelís Recommendations and prepared proposed responses which will be considered at the ADC and GB meetings commencing on 10 August 2016.† The proposed staff responses are set out in Report 2 (relating to the PAUP, with the exception of designations) and Report 3 (designations).

Recommendation/s

That the Auckland Development Committee:

a)††††† receive the report.

Background and development of the PAUP

10.†††† The need for an Auckland Unitary Plan (AUP) was recognised by the Royal Commission on Auckland Governance in March 2009, which in turn prompted the newly amalgamated Council to work with the Government to prepare a specific process that would enable the streamlined development of a new combined resource management document for Auckland.

11.†††† A detailed description of development of the PAUP is included as Attachment A, but as a summary the following significant steps have occurred:

a)††††† consideration of how the Council would develop itís Ďcombined planí commenced in early 2011;

b)††††† preparation of the draft AUP commenced in early 2012 after the Auckland Plan was adopted;

c)††††† the draft AUP was released for public discussion and feedback between 15 March 2013 and 31 May 2013;

d)††††† 22 Auckland Plan Committee workshops were held in June, July and August of 2013 to consider the extensive public feedback in the draft AUP.† All local board chairs were invited to attend the workshops;

e)††††† the PAUP was publicly notified for submissions on 30 September 2013. The submission period on the PAUP ran from 30 September 2013 until 28 January 2014, with 9443 primary submissions and 3915 further submissions received by the Council;

f)†††††† hearings before the Panel commenced in September 2014, with 249 days of hearings in total being held before the Panel; and

g)††††† the Panelís Recommendations were provided to the Council on 22 July 2016 (aside from the Panelís Recommendations on designations which were largely received on 18 May 2016).

12.†††† The scale of work undertaken by the Councilís elected members, Council staff, consultants and lawyers engaged by Council, submitters, the public of Auckland and the Panel (and Panel staff) in relation to the PAUP is unprecedented in New Zealand, and it is in this context that the Councilís decisions on the Panelís Recommendations now need to be made.

Decision-making by the Auckland Council

Overview of the Councilís role

13.†††† The roles of the Panel and that of the Council are connected but distinct.† An overview of the Panelís role is set out in Attachment B to this report, with more detail relating to the Statutory Framework set out in Attachment C.


14.†††† This section focuses in detail on the Councilís role as decision-maker, including the extent to which it is entitled to rely on the hearings process conducted by the Panel, a specialist body, as part of its consideration of submissions (and further submissions) and, importantly, the Panelís Recommendations as the critical foundation of Councilís decision-making.

15.†††† Members of the Committee will be aware that under the LGATPA, the Council has 20 working days to make decisions either accepting or rejecting each of the Panelís Recommendations[2] on the PAUP. The decisions made by the Council need to identify the Panelís Recommendations that are either accepted or rejected[3].† For any rejected recommendations, the Council must give its reasons for doing so and decide an alternative solution that may or may not include elements of both the PAUP as notified and the Panelís Recommendations, but that must be within the scope of the submissions made on the PAUP.

16.†††† The Council must publicly notify its decisions on the Panelís Recommendations by 19 August 2016 (unless an extension to that deadline is granted by the Minister for the Environment).

17.†††† It is important to note that the Panelís Recommendations come at the end of an (almost) 2 year hearings process.

18.†††† In this context (and in light of the role of the Panel), the Council will not have had the benefit of hearing all of the submissions and evidence presented to the Panel on the PAUP and it is legally prevented from considering ďany submission or other evidence unless it was made available to the Hearings Panel before the Panel made the recommendation that is the subject of the Councilís decisionĒ[4].† In practical terms, given the statutory deadline for its decisions, the Council will be unable to fully reconsider the evidence and submissions underpinning each recommendation made by the Panel. As such, the Councilís role is not to conduct a full re-evaluation of the submissions, evidence and the Panelís hearing sessions.

The Councilís decision-making role in more detail

19.†††† The Council must assess the Panelís Recommendations within the requirements of the Resource Management Act 1991 (RMA) and the LGATPA, based on the Panelís recommendation reports and the reasons provided within those reports.† The question the Council must ask itself is whether, in deciding whether to accept or reject each recommendation, does it agree that the recommended objectives of the PAUP are the most appropriate way to achieve the purpose of the RMA, and that the recommended provisions (policies, rules, methods, etc) are the most appropriate way to achieve those objectives?

20.†††† There are certain matters that the Council must consider when deciding whether to accept or reject each recommendation, those matters it may consider, and those matters it must not consider.

21.†††† The Council must consider the Panelís recommendation reports and the reasons provided by the Panel for each recommendation (including the accompanying recommended text and maps), in deciding whether to accept or reject those recommendations, and in doing so have in mind:

a)††††† the Councilís functions under the RMA[5];

b)††††† the provisions in Part 2 of the RMA[6];† and

c)††††† any other relevant planning documents, including the New Zealand Coastal Policy Statement and other national policy statements, and the Auckland Plan, which sets the strategic direction for Auckland and its communities[7].

22.†††† The Council may consider submissions or evidence that was before the Panel, and the advice of Council staff in relation to the Panelís Recommendations (particularly as Council staff or advisers have been required to be present at all hearings before the Panel[8]).† The basis for any advice of Council staff is likely to be found in Councilís evidence and closing remarks for any relevant topic (the latter generally identifying and discussing all the competing evidence and outstanding issues).

23.†††† Where the Council considers submissions and evidence that were before the Panel, it needs to be careful not to base its decisions on a selective reading of those submissions and evidence, as this would be unfair to other submitters who had presented their evidence to the Panel.† Therefore, it is important to confine the analysis as much as possible to discussions within the Panelís Recommendations reports.

24.†††† The Council must not, however, consider the following as part of its decision-making:

a)††††† any submission or evidence that was not before the panel;

b)††††† any personal interests (financial or non-financial) other than those in common with the public;

c)††††† trade competition;

d)††††† the Panelís process; and

e)††††† the Panelís interpretation of its recommendations as being either in or out of scope.

Accepting recommendations

25.†††† For each of the Panelís Recommendations that the Council accepts, the Council will be able to fulfil its decision-making role by considering the Panelís Recommendations and reasons only.† This is because the Panel, in formulating its recommendations, was required to comply with all the requirements of section 145 of the LGATPA, including obligations to:

a)††††† ensure that if the Council accepts each/any/all of the Panelís Recommendations, all relevant requirements (and legal tests) of the RMA, and other enactments which apply to the Councilís preparation of the PAUP, are complied with[9]; and

b)††††† prepare, and include with its recommendations, a further evaluation in accordance with section 32AA of the RMA[10].

26.†††† Therefore, among the obligations on the Panel arising from section 145, was a requirement to include in its reports an examination of the extent to which the recommended objectives of the PAUP are the most appropriate way to achieve the purpose of the RMA and the extent to which recommended provisions (policies, rules, methods) are the most appropriate way to achieve those objectives.

27.†††† In other words, the Council is able to place a degree of reliance on the Panel having met the various requirements of section 145, including the obligation on the Panel just described in paragraph 5.14 to ensure that the recommended objectives of the PAUP are the most appropriate way to achieve the purpose of the RMA, and that the recommended provisions (policies, rules, methods, etc) are the most appropriate way to achieve those objectives.

28.†††† Importantly there is no statutory requirement for the Council to provide reasons that support a decision to accept recommendations (unlike the position in relation to rejected recommendations).†

29.†††† As above, the Council is entitled to rely on the Panel having fulfilled its obligation to ensure that, were the Council to accept its recommendations, the provisions of the RMA, or other enactments that apply to the Councilís preparation of the PAUP ďwould be complied with.Ē†

30.†††† The Council may also accept recommendations of the Panel that are identified by the Panel as being beyond the scope of submissions[11].† The Panelís overview report provides a summary of the out of scope recommendations made by the Panel (in Appendix 3) and, as required by section 144(6)(a) of the LGATPA, the Panelís topic reports also specifically identify any out of scope recommendations.

Rejecting recommendations

31.†††† Where the Council decides to reject any recommendation made by the Panel, it must provide reasons for that rejection and prepare an alternative solution for the rejected recommendation[12] (which, given the way in which the Panelís Recommendations have been formulated, could be any matter or PAUP provision recommended by the Panel), together with a section 32AA assessment where necessary.† The preparation of an alternative solution, which more appropriately achieves the purpose of the RMA, may be a complicated task.

32.†††† There are certain requirements relating to the deciding of an alternative solution which are set out in subsections 148(1) and (2) of the LGATPA.† Section 148(1)(b) sets out the key requirements in terms of ascertaining whether there is scope for any alternative solution.† In that regard, for each recommendation, the Council must decide an alternative solution which:

a)††††† may or may not include elements of both the PAUP as notified and the Panel's recommendation in respect of that part of the PAUP (and which therefore may be a combination of the two); but

b)††††† must be within the scope of the submissions.

33.†††† In terms of whether or not an alternative solution is ďwithin the scope of submissionsĒ made on the PAUP, this requires consideration of whether or not the proposed alternative solution was fairly and reasonably raised in one or more submissions.

34.†††† It is important to emphasise that while the Panel was able make recommendations that were beyond the scope of submissions, the Council may not decide to adopt any alternative solutions that are out of scope of submissions made on the PAUP, the Council should also be satisfied that any alternative solution will meet the relevant requirements of the RMA.

35.†††† Where the Council decides to reject any of the Panelís Recommendations it must also prepare reasoning that supports that decision, including a section 32AA report (a requirement of the RMA) which assesses (among other matters) the benefits and costs of the alternative solution, unless a section 32 report or section 32AA report has already been prepared as part of the development of the PAUP and / or the Councilís case team evidence for the hearings before the Panel, which relates to that alternative solution.

Appeal Rights / Judicial Review

36.†††† There are unique appeal rights under the LGATPA, which differ from the standard appeal rights under the RMA.† Following the public notification of the Councilís decisions on 19 August 2016, limited rights of appeal are available to the Environment Court and the High Court.

 

37.†††† In brief, in relation to the Environment Court:†

a)††††† if the Council accepts a recommendation made by the Panel that is identified by the Panel as being beyond the scope of submissions made on the PAUP, any person, whether that person made a submission on the PAUP or not, may appeal to the Environment Court in respect of the provision or matter at issue if that person ďis, was or will be unduly prejudicedĒ by the Councilís decision[13].† Any appeal must be lodged within 20 working days after the public notification of the Councilís decisions.

b)††††† if the Council rejects a recommendation made by the Panel, a person who made a submission on the matter or provision at issue may appeal to the Environment Court in relation to that matter or provision[14].† Again, any appeal must be lodged within 20 working days after the public notification of the Councilís decisions.† If the Councilís alternative solution includes elements of the Panelís recommendation, the ďright of appeal is limited to the effect of the differences between the alternative solution and the recommendationĒ[15].

38.†††† There are separate rights of appeal to the Environment Court in relation to decisions on designations and heritage orders, as set out at section 157 of the LGATPA.† In short:

a)††††† a person who is an owner / occupier of land to which the designation / heritage order relates, and who made a submission, may appeal to the Environment Court, against any aspect of the decision on the designation;

b)††††† a person who was a submitter, but who is not an owner / occupier of land to which the designation / heritage order relates, has a more limited right of appeal to the Environment Court (which is limited to the extent to which the relevant Panel or Council recommendation was rejected); and

c)††††† the Council itself has a right of appeal to the Environment Court against the decisions of other requiring authorities.

39.†††† In relation to the limited rights of appeal to the High Court, which must be made on questions of law only[16]:

a)††††† if the Council accepts a recommendation made by the Panel which either resulted in a provision being included in the proposed plan, or a matter being excluded from the proposed plan, then any person, so long as that person addressed the provision or matter at issue in their submission on the PAUP, can appeal that decision to accept to the High Court on a question of law[17].

b)††††† in relation to decisions of requiring authorities other than the Council that accept the Councilís recommendations to it, where a person is not an owner or occupier of land to which a designation or heritage order applies, and that person made a submission that referred to any aspect of the decision to accept the Councilís recommendation, that person may appeal to the High Court on a question of law against that aspect of the requiring authorities decision[18].

c)††††† in relation to decisions of the Council as a requiring authority that accept the Panelís Recommendations, where a person is not an owner or occupier of land to which a designation or heritage order applies, and that person made a submission that referred to any aspect of the decision by the Council to accept the Panel's recommendation, that person may appeal to the High Court on a question of law against that aspect of the Councilís decision[19].

 

Statutory Framework

40.†††† So that the PAUP would be developed in a timely manner, the Government and the Council (following the creation of the Council pursuant to the Local Government (Auckland Council) Act 2010) worked together to prepare a special piece of legislation that would provide a streamlined, unique process for the preparation of the PAUP.

41.†††† That special legislation is the LGATPA[20], with Part 4 of the LGATPA varying the traditional RMA process for the preparation, change and review of policy statements and plans.† Key provisions from Part 4 of the LGATPA are attached to this report as Attachment C.

Description of the Panelís Recommendations

Formulation of the Panelís Recommendations

42.†††† The Panelís Recommendations comprise three distinct parts, broadly described as follows:

a)††††† Part 1 - The Panelís Recommendation Reports:† these comprise an overview report, which generally addresses all of the Panelís Recommendations, and 58 separate recommendation reports, relevant to the topics that were heard before the Panel (albeit with some of those hearing topics being combined together in one Panel recommendation report);

b)††††† Part 2 - The Recommended Plan: which comprises a ďcleanĒ version of the Panelís recommended text for the PAUP; and

c)††††† Part 3 - The Recommended Maps / GIS Viewer: which comprises the Panelís recommended version of the PAUP planning maps, created in the Panelís GIS viewer.

Collectively, the above reports are referred to in Reports 1, 2 and 3 and in the proposed resolutions as the ďPanelís RecommendationsĒ.

43.†††† The Panel states in its overview report (section 2.1.2, page 18) that ďit is important to read the Overview and relevant topic reports when comparing the Panelís recommended version with the notified proposed Unitary PlanĒ.†

44.†††† Section 2.1 of the Panelís overview report explains that the Panelís report and its recommendations are made up of these three parts, with each of those parts either containing recommendations, or being the Panelís recommended version of the provisions or planning maps for the PAUP.†

45.†††† In the case of the Panelís separate recommendation reports, it is noted that recommendations are often provided throughout the body of each report (including the overview report).† Significantly, the Panel indicates in its overview report (page 14) that recommended changes to the text of the PAUP (which are numerous and not tracked), and the recommended changes to the planning maps, are to be read as recommendations.

The Panelís Recommendations

46.†††† Both the hearing topic reports and overview report also contain a number of ďrecommendationsĒ that do not relate to the content of the PAUP, including recommendations that encourage the Council to undertake future plan changes, consult with various parties or advocate for certain outcomes, etc.† Council staff have considered these additional suggestions and formed the view that because these suggestions do not relate to the content of the PAUP, they are not recommendations that require a decision of the Council in terms of section 148 of the LGATPA.† Those additional helpful suggestions have, however, been noted and will be considered by the Council moving forward.

47.†††† For the avoidance of any doubt, the proposed response to the Panelís Recommendations has focussed on only those recommendations that relate to the content of the PAUP.

Response to the Panelís Recommendations

48.†††† The proposed staff response to the Panelís Recommendations is provided in Reports 2 and 3.† Report 2 addresses the Panelís recommendations relating to the text and maps for the PAUP, while Report 3 addresses the Panelís Recommendations for the designations appearing in the PAUP.

49.†††† The staff reports to committee have separated the Panelís Recommendations into four categories, outlined as follows:

a)††††† proposed acceptances Ė where the Panelís Recommendations on any particular matter or topic do not represent a policy shift from the Councilís closing position before the Panel;

b)††††† proposed acceptances Ė where the Panelís Recommendations on any particular matter or topic represent a policy shift from the Councilís closing position before the Panel, but where Council staff consider that the policy shift is acceptable (as supported by reasons in the committee report);

c)††††† proposed rejections - where the Panelís Recommendations on any particular matter or topic represent a policy shift from the Councilís closing position before the Panel, and where Council staff consider that the policy shift is unacceptable and propose rejection (these scenarios are supported by reasons in the committee report, an alternative solution and a section 32AA evaluation where necessary); and

d)††††† proposed rejections - where the Panelís Recommendations on any particular matter or topic do not represent a policy shift from the Councilís closing position before the Panel, but where Council staff consider that the recommendations contain technical difficulties to the workability of the Plan that require rejection and the development of an alternative solution (these scenarios are supported by reasons in the committee report, an alternative solution and a section 32AA evaluation where necessary).

Local board views and implications

50.†††† Local Boards have played a significant role in developing the PAUP. Workshops have been held with local boards throughout the process, and local board chairs have been invited to attend all relevant committee workshops and meetings. Views from local boards on the notified version of the PAUP were also included in the local board section of the Council submission on the PAUP. All local boards who provided views in the Council submission were informed of the topics going into the hearings and given the opportunity to present their views to the Panel (in situations where their views differed from that of the Governing Body).

51.†††† Local Board chairs were invited to the Auckland Development Committee information meetings on the PAUP that occurred between April and July 2016.

Māori impact statement

52.†††† Hui were held between the Council, Mana Whenua and Mataawaka in developing the PAUP. The process of developing the PAUP has assisted in fostering a positive relationship between the Council and Mana Whenua.

53.†††† The Independent Māori Statutory Board and all 19 Mana Whenua entities made submissions on the PAUP. These submissions supported the overall approach to addresssing issues of significance to Mana Whenua and suggested amendments to lift the responsiveness of the PAUP to Mana Whenua. Most Mana Whenua entities were active participants in the hearings.

54.†††† Where the Panelís recommendation are likely to have a specific impact on Maori, those impacts are discussed in Report 2 under the relevant topic heading.

Conclusion

55.†††† This report provides information that relates to the background to the development of the Proposed Auckland Unitary Plan, the Councilís decision-making role in relation to the Panelís Recommendations and the Councilís approach to responding to the Panelís Recommendations.

56.†††† The proposed staff responses to the Panelís Recommendations (i.e. the proposed decision to either accept or reject each of the Panelís Recommendations), is found in Report 2 (which relates to the Panelís Recommendations for the text and maps of the PAUP) and Report 3 (which relates to the Panelís Recommendations for the designations appearing in the PAUP).

Attachments

No.

Title

Page

aView

Background and development of the PAUP

21

bView

The Panel and its role in the PAUP Process

25

cView

Key provisions from Part 4 of the LGATPA

27

Signatories

Authors

Celia Davison - Team Leader Unitary Plan

Tony Reidy - Team leader Unitary Plan

Authorisers

Linley Wilkinson - Team Leader Unitary Plan

John Duguid - General Manager - Plans and Places

Penny Pirrit - Director Regulatory Services


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Proposed Auckland Unitary Plan- Report 2† Response to† the recommendations of the Auckland Unitary Plan Independent Hearings Panel on the provisions of the Plan

 

File No.: CP2016/16868

 

Purpose

1.†††††† To provide an analysis of the Auckland Unitary Plan Independent Hearings Panelís (the Panel) recommendations on the Proposed Auckland Unitary Plan (the PAUP) contained within the Panelís recommendation reports and recommended version of the Auckland Unitary Plan (provisions and maps).

2.†††††† To provide recommended responses to accept or reject the Panelís recommendations.

3.†††††† The report was not ready when the agenda went to print and will be distributed as an addendum agenda prior to the meeting.

Attachments

There are no attachments for this report.††††

Signatories

Author

Tam White - Democracy Advisor

Authoriser

Penny Pirrit - Director Regulatory Services


Auckland Development Committee

10 August 2016

 

Proposed Auckland Unitary Plan Report 3 - Response to Recommendations from the Auckland Unitary Plan Independent Hearings Panel Relating to Designations

 

File No.: CP2016/16675

 

Purpose

1.†††††† The purpose of this report is to provide information to enable the Council to make decisions in response to the Auckland Unitary Plan Independent Hearings Panelís (the Panelís) recommendations relating to designations included within the Proposed Auckland Unitary Plan (PAUP).

Executive summary

2.†††††† A designation allows works and activities by a Ďrequiring authorityí (such as a council, government organisation or network utility operator) in a particular location, without the need for a land-use resource consent. Designations can apply to both privately-owned land and land owned by a requiring authority. Designations that apply to privately-owned land restrict what landowners and occupiers can do.

3.†††††† Under the Resource Management Act (and the special legislation applying to the PAUP), while designations included as part of an plan review are subject to submissions and a hearing, there is a different process for who makes the decisions on the recommendations from the Panel. For CouncilĎs own designations, Council must make a decision on the recommendations from the Panel. However for the designations owned by other requiring authorities it can only recommend to those authorities to accept or reject the Panelís recommendations. The requiring authorities make the final decisions (subject to appeal) on whether they will accept or reject the recommendations.

4.†††††† The majority of the designations included in the PAUP were already included in the various sections of the Councilís operative district plan and were simply Ďrolled overí into the PAUP. Some new designations were also included in the PAUP. All designations included in the PAUP were open for public submissions between 30 September 2013 and 28 February 2014.

5.†††††† At this point in the process, the Council is required to make the following decisions:

∑††† decisions relating to Chapter G1.3 and Part 7 Designations of the PAUP

∑††† decisions relating to the Councilís own designations included in the PAUP

∑††† decisions relating to the recommendations it will make to other requiring authorities in respect of their designations included in the PAUP.

6.†††††† The Council is not required to make any decision relating to designations that were Ďrolled overí without modification that did not attract any submissions. These designations will be included in the Councilís decision version of the PAUP

Recommendation/s

That the Auckland Development Committee:

a)††††† accept the Panelís recommendations in the Introductory Designations Report set out in Attachment E Part 1 to this report, including the Panelís recommended amendments to the explanatory text in the Proposed Auckland Unitary Plan relating to designations, together with the further amendment to the explanatory text set out in Attachment E Part 1 to this report (to ensure the correct map colours are referred to).

 

b)††††† accept the Panelís recommendations on Auckland Council designations set out in the Specific Designation Reports listed in Attachment E Part 2 to this report.

c)††††† accept the Panelís recommendations on the designations of other requiring authorities set out in the Specific Designation Reports listed in Attachment E Part 3 to this report, with the minor typographical corrections to the Panelís recommendation on Counties Power designation R3008 noted in Attachment E Part 3, and adopts them as the Councilís recommendations to those requiring authorities.

d)††††† request that the General Manager Plans and Places notifies the other requiring authorities of the Councilís recommendations in respect of their designations.

Comments

7.†††††† Designations in the PAUP comprise existing designations Ďrolled overí from legacy district plans and new proposed designations. The Council lodged submissions on some of the Ďrolled overí and new proposed designations.

8.†††††† The purpose of the Councilís submissions was to:

a)††††† correct errors of fact, such as:

i.†††††† replacing references to organisations that now no longer exist (e.g. Transit New Zealand, which has been replaced by New Zealand Transport Agency);

ii.††††† replacing references to Acts of Parliament and codes of practice that have been repealed or superseded;

iii.†††† deleting references to specific rules in the various sections of the Councilís Operative District Plan that will no longer exist in the PAUP and replacing them with equivalent provisions;

iv.†††† correcting parts of designations that are unlawful; and

v.†††† correcting the mapped boundaries of designations.

b)††††† clarify the wording of designations that were considered to be unclear, unnecessarily complicated or did not adequately protect the Councilís interests.

9.†††††† The Council did not oppose any designations included in the PAUP, and the Council did not have an active role in the assessment of third party submissions on designations; other than where the Councilís own designations were involved, or where the Council was also a submitter.

10.†††† On 18 May 2016, the Panel released a report on the explanation sections of the PAUP relating to designations. The report also addressed two issues concerning a number of designations included in the PAUP (one relating to lapse dates and the other relating to cross-referencing). The report is entitled ĎReport to Auckland Council Hearing Topic 074 Designations May 2016í (Introductory Designations Report) (Attachment A).

11.†††† The Introductory Designations Report includes recommendations from the Panel on ĎChapter G1.3í and ĎPart 7 Designations: Using Part 7í (now proposed by the Panel to be located in Chapter K of the PAUP). The Panel supports the Councilís preferred text amendments presented in evidence at the hearing.

12.†††† On 18 May and 22 July, the Panel also released a series of reports (Specific Designation Reports) (Attachment B) giving its final recommendations on individual designations included in the PAUP. These reports recommend amendments to the designations of Auckland Council and the other requiring authorities. The Specific Designation Reports received on 18 May 2016 cover all designations in the PAUP on which the Panel was required to report, except for:

 

 

 

∑††† Auckland International Airport designations;

∑††† Kiwirail designations; and

∑††† NZ Transport Agency designation 6727 (Newmarket Viaduct).

The Panel delivered its recommendations for these outstanding designations on 22 July 2016 (Attachment C).

13.†††† The Specific Designation Reports contain the Panelís recommendations on:

a)†† Notices of requirement for designations that are already included in the various sections of the Councilís Operative District Plan that a requiring authority wishes to be included in the PAUP, but with modifications.

b)†† Notices of requirement for new designations that a requiring authority wishes to be included in the PAUP.

c)†† Submissions by a requiring authority seeking further modifications to a designation in the PAUP.

d)†† Submissions by other parties on notices of requirement for designations that were included in the PAUP.

14.†††† The Local Government (Auckland Transitional Provisions) Act 2010 does not allow the Panel to make recommendations on any existing designations that were Ďrolled overí unmodified and did not attract any submissions.

15.†††† The Council is deemed to have approved these designations without further formality. The Council is not required to make any decisions relating to them and they will be included in the Councilís decision version of the PAUP. A list of these designations is included as Attachment D.

16.†††† This report recommends that the Council, in its decisions on the Panelís recommendations, accepts all the Panelís recommendations on the designations identified in Attachment E to this report (with the minor alterations noted below). Attachment E is divided into three parts:

a)†† Part 1 lists each recommendation in the Introductory Designations Report that is proposed be accepted, including one minor alteration.

b)†† Part 2 lists the Panelís reports on individual designations (i.e. the Specific Designation Reports) relating to Auckland Council designations that are proposed be accepted.

c)†† Part 3 lists the Panelís reports on designations (i.e. the Specific Designation Reports) relating to other requiring authoritiesí designations that are proposed be accepted (with the minor typographical corrections to the Panelís recommendation on Counties Power designation R3008).

17.†††† A copy of Sections 148, 151 and 152 of the Local Government (Auckland Transitional Provisions) Act 2010 is included as Attachment F.

Consideration

Local board views and implications

18.†††† Local boards were provided with the opportunity to include their views on the designations included in the PAUP as part of the Council submission. No issues were raised by the local boards during the submission or hearings process and council staff have not identified any recommendations from the Panel that would have adverse implications for local boards.

Māori impact statement

19.†††† In making its recommendations to the Council in respect of the designations included in the PAUP, the Panel is required to consider the various matters in Part II of the Resource Management Act that relate to Māori, as well as matters relating to the Treaty of Waitangi . Council staff have not identified any recommendations from the Panel that would have adverse impacts on Māori.

Implementation

20.†††† An overview of the implementation process for incorporating designations into the Councilís decisions version of the PAUP is included as Attachment G.

Attachments

No.

Title

Page

aView

The Panel's Introductory Designations Report

37

bView

The Panel's Specific Designation Report delivered on 18 May 2016

39

cView

The Panel's Specific Designation Report delivered on 22 July 2016:† (a)Auckland International Airport designations;
(b)KiwiRail Designations; and
(c)NZ Transport Agency Designation 6727 (Newmarket Viaduct).

41

dView

Designations deemed to have been approved by the Council under clause 17(1) of Schedule 1 of the RMA

43

eView

Proposed response to the recommendations from the Independent Hearings Panel relating to designations

51

fView

Sections 148, 151 and 152 of the Local Government (Auckland Transitional Provisions) Act 2010

93

gView

Implementation of designations into the Proposed Auckland Unitary Plan

97

Signatories

Author

Celia Davison - Team Leader Unitary Plan

Authorisers

John Duguid - General Manager - Plans and Places

Penny Pirrit - Director Regulatory Services


Auckland Development Committee

10 August 2016

 

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[1] ††††††††††††† See section 79(1), Local Government (Auckland Council) Act 2009.

[2] ††††††††††††† The statutory deadline prescribed in section 148(4) of the LGATPA, unless that deadline is extended under section 149.

[3] ††††††††††††† See section 148(4), LGATPA.

[4] ††††††††††††† See section 148(2)(b), LGATPA.

[5] ††††††††††††† See sections 30 and 31, RMA.

[6] ††††††††††††† See sections 5-8, RMA (sustainable management purpose of the RMA; matters of national importance; other matter to have regard to; the Treaty of Waitangi; other relevant planning documents including the National Coastal Policy Statement and other national policy statements and the Auckland Plan).

[7] ††††††††††††† See sections 61, 66 and 74, RMA.

[8] ††††††††††††† See section 137, LGATPA.

[9] ††††††††††††† See section 145(1)(f), LGATPA.

[10] ††††††††††† See section 145(1)(d) and (f)(i) and (ii), LGATPA.

[11] ††††††††††† See section 148(3), LGATPA.

[12] †††††††††††† See section 148(1)(b), LGATPA.

[13] ††††††††††† See section 156(3), LGATPA.

[14] ††††††††††† See section 156(1), LGATPA.

[15] †††††††† See section 156(2), LGATPA.

[16] ††††††††††† See section 158(4), LGATPA.

[17] †††††††††††† See section 158(1), LGATPA.

[18] †††††††††††† See section 158(2), LGATPA.

[19] †††††††††††† See section 158(3), LGATPA.

[20] ††††††††††† The Government introduced the Resource Management Reform Bill on 11 December 2012 and the Local Government and Environment Committee reported back on that Bill on 11 June 2013, recommending that changes be made to the Local Government (Auckland Transitional Provisions) Act 2010 with broad political support for a combined plan for Auckland.