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Governing Body
29 September
2016
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Proposed
Auckland Unitary Plan - Information on appeals and process for making the
Proposed Auckland Unitary Plan "Operative in Part"
File No.: CP2016/20846
Purpose
1. This
report provides information on the appeals lodged against the council’s
decisions on the Proposed Auckland Unitary Plan and outlines the process for
making the Proposed Auckland Unitary Plan operative. The report also seeks
decisions from the Governing Body to make the Proposed Auckland Unitary Plan
“operative in part”, and to refer the Regional Coastal Plan
provisions of the Proposed Auckland Unitary Plan to the Minister of
Conservation for approval.
Executive
summary
2. 106
appeals have been filed in relation to the Proposed Auckland Unitary Plan
(PAUP). The appeals comprise 65 appeals to the Environment Court and 41 appeals
to the High Court. In addition, 8 applications for Judicial Review have
been filed with the High Court.
3. The
majority of the appeals are confined to specific locations or discrete
provisions within the PAUP, however there are proceedings filed by a smaller
number of appellants, in particular Auckland 2040 and the Character Coalition,
that are considerably broader. A list of the appellants is contained in
Attachment A.
4. As
these matters are now in a judicial process, it is important that the council
does not comment publicly on the merits (or otherwise) of the appeals.
5. Under
the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA), parts of the PAUP that are not subject to appeal are deemed to have
been “approved” by the council on and from the date on which the
appeal period expires. The appeal period expired on 16 September 2016. Other
than those parts of the PAUP relating to the coastal marine area, designations
and heritage orders, the remaining parts of the PAUP
that are not subject to appeal can now be made “operative” (i.e.
the final step in the plan-making process). Despite the Auckland 2040 and the
Character Coalition proceedings (and others of a broad nature), the council can
now make substantial parts of the PAUP “operative”.
6. In order to assist users of the PAUP with consenting, council staff are currently preparing an annotated version of the PAUP
Decisions Version which will mark the parts of the PAUP Decisions Version that
remain subject to appeal.
7. The
parts of the PAUP that comprise the Regional Coastal Plan provisions will be
made operative by way of a separate process that requires approval by the
Minster of Conservation. The council is unable to make those parts of the
PAUP “operative” until the Minster’s approval is received. It
is therefore recommended that the Regional Coastal Plan provisions of the PAUP
are referred to the Minister for approval.
8. The case management of the appeals and judicial review applications
before the Courts will be determined by those Courts at case management
conferences in mid-late October (the High Court conference is set down for 14
October 2016). The case management conferences will address a range of
issues including: appropriate grouping of appeals, issues of high precedent
value, overlapping appeals before both Courts and timetabling (including
timetabling for any settlement discussions).
9. Given the timing of
these matters before the Court and the expiry of the term of current elected
members (16 October 2016), staff recommend that a delegation to Councillor
Cashmore and the Chief Executive should be in place if urgent decisions are
required that may assist to resolve any matter. The question of
delegation can be reconsidered by the newly reconvened Governing Body at its
inaugural meeting on 1 November 2016. Staff consider that the need to use
such a delegation will be unlikely, given that there is only two weeks between
the first case management conference and the swearing in of the reconvened
Governing Body on 1 November 2016.
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Recommendation/s
That the Governing Body:
a) agrees
to make those parts of the Proposed Auckland Unitary Plan that are not
subject to an appeal or other challenge “operative”
b) requests
that the Chief Executive refers the Regional Coastal Plan provisions of the
Proposed Auckland Unitary Plan that are not subject to challenge to the
Minister of Conservation for approval
c) delegates
to Councillor Cashmore and the Chief Executive the
authority, during the period between the expiry of
the term of current elected members on 16 October 2016 and the inaugural
meeting of the newly reconvened Governing Body on 1 November 2016, the
ability to make decisions on how to resolve matters
if through discussion with appellants and/or other parties, matters can be
resolved without recourse to a hearing; and
d) requests
that the Chief Executive completes, as soon as practicable, the necessary
statutory steps to public notify the Auckland Unitary Plan (Operative in
Part).
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Comments
Update on appeals / judicial review
10. The
LGATPA provides for limited appeal rights against the council’s decisions
on the Independent Hearings Panel’s (the Panel’s) recommendations
for the PAUP, which differ from the normal appeal rights provided under the
Resource Management Act 1991.
11. In
brief, the LGATPA provides for appeals to the Environment Court in limited
situations (where the council either rejects a recommendation made by the
Panel, or accepts a Panel recommendation that is identified as being beyond the
scope of submissions on the PAUP) or to the High Court on questions of law.
There are separate rights of appeal to the Environment Court and High Court in
relation to decisions made on designations and heritage
orders included in the PAUP, that are subject to different appeal timeframes.
12. 106
appeals have been filed, which comprise 65 appeals to the Environment Court
and 41 appeals to the High Court. In addition, 8 applications for
Judicial Review have been filed in the High Court. The majority of the appeals
are confined to specific locations or discrete provisions within the PAUP,
however there are proceedings filed by a smaller number of appellants, in
particular Auckland 2040 and the Character Coalition, that are considerably
broader.
13. The
relief sought by Auckland 2040 and the Character Coalition prevents the zoning
of land as set out in the PAUP from becoming “operative”. As
a result, most development on land within Auckland will need to be assessed
against the PAUP and the relevant legacy district plan or the legacy Auckland
Regional Plan: Coastal until the appeals are resolved.
14. A
list of the appellants is contained in Attachment A. The list may need to be
updated as the council’s records and those of the Environment Court and
High Court are reconciled in the coming days.
Making the
Proposed Auckland Unitary Plan Operative in Part
15. Pursuant to section 152(2) of the LGATPA, each part of the PAUP, other than the parts relating to the coastal
marine area, designations and heritage orders, is deemed to have been approved
by the Council under clause 17(1) of Schedule 1 of the RMA at a certain point (i.e. the point at
which those parts are not under appeal).
16. Section
152(2) provides as follows:
152 Proposed
plan deemed approved or adopted on and from certain dates
(2) Each part of the proposed plan,
other than the parts relating to the coastal marine area, designations, and
heritage orders,—
(a) is
amended in accordance with the decisions of the Council; and
(b) is
deemed to have been approved by the Council under clause 17(1) of
Schedule 1 of the RMA on and from—
(i) the
date on which the appeal period expires, if no appeals relating to that part of
the proposed plan are made under section 155 of
this Part:
(ii) the
date on which all appeals, including further appeals, relating to that part of
the proposed plan are determined, if appeals are made under that section.
17. The parts of
the PAUP that comprise the Regional Coastal Plan provisions will be made
operative by way of a separate process that requires approval by the Minster of
Conservation, pursuant to Clause 19 of Schedule 1 of the RMA. The council is
unable to make those parts of the PAUP “operative” until the
Minster’s approval is received. It is therefore recommended that the
Governing Body agrees to refer the Regional Coastal Plan provisions to the
Minister for approval.
18. While parts of the PAUP that are not subject to appeal are
deemed to have been “approved”, the final step in the plan-making
process is to make those parts “operative”. Despite the added costs
to the community and complexities that are created by the broader appeals, the
majority of the Regional Policy Statement, Regional Plan and District Plan
provisions contained within the PAUP can now be made “operative”.
19. Over the coming days, council staff
will be preparing and publicly releasing (on the council Unitary Plan webpage),
an annotated version of the PAUP Decisions Version which will mark the parts of
the PAUP Decisions Version that remain subject to appeal.
20. Designations contained within the PAUP follow a different
timeline for appeals and are not required to be made “operative”.
21. The Environment Court and High Court will direct the
process and timetable for resolving the appeals. Prior to any mediation or
hearings, council staff will prepare reports for the relevant committee of the
incoming Governing Body seeking confirmation of the council’s
position.
Consideration
Local board views and implications
22. Due
to the procedural nature of this report, the views of local board have not been
sought in preparing this report.
Māori impact statement
23. Due to the procedural nature of this report, the recommendations
made in this report will not have any specific impact on Māori.
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No.
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Title
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Page
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a⇩ 
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Proposed Auckland Unitary Plan Appeals (21 September
2016)
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9
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Attachments
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Authors
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John Duguid - General Manager - Plans and Places
Tony Reidy - Team leader Unitary Plan
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Authorisers
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Penny Pirrit - Director Regulatory Services
Stephen Town - Chief Executive
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Signatories
