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Governing Body
27 August 2015
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Notice of
Motion to revoke a Governing Body resolution
File No.: CP2015/17788
Purpose
1. This report
sets out background information and legal considerations relevant to the Notice
of Motion to revoke a 2014 Governing Body decision to recommend to the Minister
that the 545 Oruarangi Road site be declared a Special Housing Area (SHA).
Executive
Summary
2. The Oruarangi
land now declared by Order in Council to be an SHA is privately owned. It is
land that the Environment Court directed Council in
2012 to zone as “future development zone,” despite the then legacy Council and
others having argued in the Court that the land should be zoned public open
space. The Proposed Auckland Unitary Plan (PAUP) reflects the 2012 Environment
Court’s direction.
3. Following the
2014 Governing Body decision to recommend the Oruarangi SHA to the Minister,
the Oruarangi Road, Mangere special housing area was declared by the Housing
Accords and Special Housing Areas (Auckland) Amendment Order 2014 (Amendment
Order), dated 30 June 2014. That Amendment Order was then incorporated into
the Housing Accords and Special Housing Areas (Auckland) Order 2013 (relevant
extract of the Order at Attachment A).
4. As a matter of
law, the council cannot revoke an Order in Council declaring any area a SHA.
Only the Minister can recommend the revocation of an SHA. Section 18 of
Housing the Accords and Special Housing Areas Act 2013 (HASHAA) provides that
an Order in Council revoking an SHA may only be made on recommendation of the
Minister. The Minister must and may only recommend the making of
a revocation order if the Minister is satisfied that one or both of specified
criteria exist, namely:
a. the SHA no
longer meets the mandatory criteria in s16(3) of HASHAA, namely:
Ø Adequate
infrastructure to service qualifying developments (QDs) in the SHA exists or is
likely to exist; and
Ø There
is evidence of demand to create QDs in specific areas of the region; and
Ø There
will be demand for residential housing in the SHA.
b. the region or district in which
the SHA is in ceases to be a scheduled region or district.
5. The Housing Project Office (HPO) does not consider that any of the
criteria under which the Minister could disestablish the SHA exist in this
case. As Auckland is a region specified in schedule 1
of HASHAA that is identified as having significant housing supply and
affordability issues for the purposes of HASHAA, this second limb is not
applicable.
6. The Minister
has advised that he does not consider there is a basis to revoke the Order in
Council declaring the Oruarangi Road SHA (Attachment B).
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Recommendation/s
That the Governing Body:
a) note the
contents of this report.
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Comments
Background to
zoning of Oruarangi SHA (545 Oruarangi Road, Mangere)
7. The Oruarangi
Special Housing Area (SHA) at 545 Oruarangi Road Mangere sits within an area
known by the former Manukau City Council as the Mangere Gateway Heritage Area.
The subject land, which adjoins the Otuataua Stonefields Historic Reserve, was
zoned Mangere Puhinui Rural in the 2002 Manukau Operative District Plan.
8. The land in the
SHA is in the private ownership of Gavin H Wallace Limited.
9. Manukau City
Council wanted the land to be public open space and sought to have it
designated as such. The land owner appealed the Council’s notice of
requirement to declare the land public open space.
10. Appeals were
heard before the Environment Court in 2011 and 2012. The new Auckland Council
defended the position of the former Manukau City Council to maintain the notice
of requirement for the public open space at the Environment Court. Other
parties, notably Makaurau Marae Maori Trust Board Incorporated and Te Kawerau
iwi Tribal Authority Incorporated, were also parties to the appeal and both
opposed urban development of the subject land.
11. On 15 June 2012
the Environment Court issued a decision on the appeals and it effectively
cancelled the notice of requirement for public open space and directed the
Council to zone the land for “future development zone”. The Court determined
that the public work (the public open space designation) “is not reasonably
necessary to achieve the Council’s objectives” and that “a well thought out
structure plan could recognise significant features and values and could address
landscape [amongst other matters]”).
12. The Council was
directed by the Court, in consultation with all other parties to the appeals,
to make the appropriate changes to the Auckland Council District Plan (Manukau
Operative Section). That was done and the changes were confirmed in
Environment Court decisions dated 20 December 2012.
The PAUP
and 545 Oruarangi Road
13. The Auckland
Council identified the subject land as a Future Urban zone in the PAUP and also
identified it as sub-precinct D. The sub-precinct D requires a structure plan
for the subject land. The PAUP, as publicly notified in September 2013,
requires a structure plan and clearly identifies that the structure plan on the
subject land must take into account significant culture heritage and landscape
values; and must include consultation with mana whenua. This approach is
consistent with the 2012 Environment Court decisions.
Timeline
for assessing Oruarangi SHA request
14. It took
approximately 6 months from the formal request on 1 November 2013 (by Harrison
& Grierson on behalf of the owner Gavin H Wallace Ltd) for an SHA at 545
Oruarangi Road before the Governing Body recommended on, 1 May 2014, that the
Oruarangi SHA be one of 41 SHAs in tranche 3 being recommended to the Minister
of Housing.
15. The SHA
assessment included:
a. A Māngere-Ōtāhuhu
Local Board workshop in November 2013
b. A Māngere-Ōtāhuhu
Local Board meeting 19 March 2014
c. A combined Auckland Development
Committee / Local Board Chairs Special Housing Area Workshop on 31 March 2014
(4 slides on Oruarangi including clear identification of proximity to the
Papakainga and Otuataua Stonefields).
d. The formal Auckland Development
Committee meetings that considered tranche 3 SHAs, including Oruarangi, were
held on 2 April and 14 April 2014. (The powerpoint presentation on 14 April
2014 contained 5 slides on Oruarangi SHA and clearly identified “significant
iwi concerns”).
e. The Governing Body meeting at
which the resolution to recommend to the Minister of Housing that the Oruarangi
Road SHA be established was held on 1 May 2014.
Iwi views on the
Oruarangi SHA
16. The Housing
Project Office (HPO) has been communicating with iwi groups about SHA process
since before the Housing Accords and Special Housing Areas Act 2013 (HASHAA)
was enacted, and continues to do so.
17. The due
diligence undertaken for the Oruarangi SHA included information on iwi issues.
The significance of the area was noted, including that iwi had originally
wanted this area for public open space.
18. The PowerPoint
presentations that the HPO prepared and that were discussed at the ADC
committee meetings in April 2014 included slides on the Oruarangi SHA and these
slides included a key point “significant iwi concerns” as well as summarising
the Environment Court decisions affecting the subject
land.
Current
status of the plan variation and QD consent – Oruarangi SHA
19. Fletcher
Residential Ltd applied to the Council for a Plan Variation to the PAUP in June
2015 to rezone the Oruarangi SHA from Future Urban to a combination of Mixed
Housing Suburban, Public Open Space – Conservation, and Green Infrastructure
Corridor.
20. In preparation
of the Plan Variation Fletcher Residential Limited has consulted with iwi.
Cultural Impact Assessments (CIA) have been prepared by Te Kawerau a Maki and
Te Akitai to outline issues of relevance to iwi and potential cultural impacts
at the request of the applicant to meet the requirements of the PAUP. These
CIAs outline the cultural landscape values of the site (eg burial caves; lava
caves and association with the maunga). These have influenced the design
response of the applicant including a buffer zone of public open space
adjoining the Otuataua Stonefields and a lower height limit to maintain views
of the maunga.
21. The applicant
intends to create a second reserve in later stages and also to ensure that
caves and other heritage features are incorporated into the wider park.
22. In addition, at
the start of the project, HPO contacted all iwi who have mana whenua status and
asked the various iwi to “self-select” who wished to be involved in preparing a
CIA for the project. Although many parties responded, they deferred to the two
iwi above.
Legal
position in relation to the Oruarangi Road SHA
23. The Oruarangi
Road SHA was created in accordance with the provisions of the HASHAA.
24. The creation of
an SHA involves, firstly a recommendation from the Council to the Minister of
Housing that an SHA be established, secondly a recommendation from the Minister
of Housing to the Governor-General that the SHA be created, and finally the
promulgation of an Order in Council (effectively a statutory regulation) by the
Governor-General declaring the SHA.
25. Once the Council
has made a valid recommendation under HASHAA it does not have the power to
revoke that recommendation once it has been communicated to people who have
relied upon it.
26. As a matter of
law, the Council cannot revoke an Order in Council declaring any area a SHA.
Only the Minister can recommend the revocation of a SHA. Section 18 HASHAA
provides that an Order in Council revoking an SHA may only be made on
recommendation of the Minister. The Minister must and may only
recommend the making of a revocation order if the Minister is satisfied that
one or both of specified criteria exist, namely:
a. the SHA no
longer meets the mandatory criteria in s16(3) of HASHA, namely:
Ø Adequate infrastructure to service QDs
in the SHA exists or is likely to exist; and
Ø There is evidence of demand to create
QDs in specific areas of the region; and
Ø There will be demand for residential
housing in the SHA.
b. the region
or district in which the SHA is in ceases to be a scheduled region or
district.
27. The Housing Project Office (HPO) does not consider that any of the
criteria under which the Minister could disestablish the SHA exist in this
case. As Auckland is a region specified in schedule 1
of HASHA that is identified as having significant housing supply and
affordability issues for the purposes of HASHA, this second limb is not
applicable.
28. The Minister has
advised that he does not consider there is a basis to revoke the Order in
Council declaring the Oruarangi Road SHA (Attachment B).
Consideration
Local
Board views and implications
29. Staff from the Housing Project Office met with the Māngere-Ōtāhuhu Local Board
in November 2013 and on 19 March 2014.
30. By resolution on 19 March 2014, the Māngere-Ōtāhuhu
Local Board resolved that they did
not support the suitability of the Oruarangi Road, Māngere, site as a
Special Housing Area.
31. This report
provides detail to respond to the NoM. If further steps are required,
staff will ensure that Local Board views and preferences are sought.
Māori
impact statement
32. Iwi originally
wanted the area covered by the Oruarangi Road SHA to be public open
space. Manukau City Council and subsequently Auckland Council pursued
this approach but Environment Court hearings on the issue resulted in the land
being zoned for future urban development.
33. When providing
information on the proposed SHA to the Auckland Development Committee the
Housing Project Office included as a key point the fact that there were
significant iwi concerns about residential development in the area covered by
the proposed SHA, as well as summarising the Environment Court decisions
affecting the subject land.
34. As part of the
preparation for an application for a plan variation and resource consent
(qualifying development) within the SHA the applicant has consulted with iwi
and cultural impact assessments (CIAs) have been prepared by Te Kawerau
a Maki and Te Akitai. The CIAs have influenced and resulted in
modifications to the applicant’s proposal.
Attachments
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No.
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Title
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Page
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aView
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Housing Accords and Special Housing Areas (Auckland)
Order 2013 extract
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9
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bView
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Letter from Minister of Housing
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13
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Signatories
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Authors
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Mike Moodie, Senior Solicitor, Legal
Services
Ree Anderson - Project Director for Housing
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Authorisers
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Katherine Anderson - Director Legal and Risk
Dean Kimpton - Chief Operating Officer
Stephen Town - Chief Executive
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