Agenda of Planning Committee

Planning Committee

02 July 2020

Spatial Land Use Frameworks for Supporting Growth Transport Detailed Business Cases

File No.: CP2020/07992

Te take mō te pūrongo

Purpose of the report

1. To seek approval to prepare and consult on spatial land use frameworks for the Kumeu-Huapai and Wainui Silverdale Dairy Flat Future Urban zoned areas to support and inform the Supporting Growth Transport Detailed Business Case (DBC) process.

Whakarāpopototanga matua

Executive summary

2. The Supporting Growth transport project is preparing Detailed Business Cases (DBC) for key transport projects in the North West and North to support the growth anticipated in the Future Urban zones.

3. The DBCs will include detailed technical investigations for each of the projects in the transport networks, particularly the Rapid Transit Network (RTN). This will lead to a specific route protection process over the next two to three years to ensure that the land needed to build and operate the routes in the future is set aside and protected in advance of the transport projects being constructed and the Future Urban zoned land being developed.

4. To support the DBCs, spatial land use plans are required for the Kumeu-Huapai and Wainui Silverdale Dairy Flat areas to show the key land uses that the transport projects will be servicing and impacting upon.

5. The Auckland Plan Development Strategy provides a starting point for identifying land uses that are key to the delivery of the transport projects.

6. The land use scenarios are proposed to be developed through the preparation of Spatial Land Use Frameworks. These will identify the location and general scale of key land uses such as centres, business land, and residential areas that are critical to decision making on the transport projects being considered in the DBC process.

7. The Spatial Land Use Frameworks will be prepared under the Local Government Act (2002) and include public consultation. Te Tupu Ngātahi/Supporting Growth Alliance will also be consulting on the DBCs for appropriate transport projects.

8. Approval is sought to prepare Spatial Land Use Frameworks for the Kumeu-Huapai and Wainui Silverdale Dairy Flat areas for the Supporting Growth DBC process.

9. The DBC process is to occur over the next 12 months.

Ngā tūtohunga

Recommendation/s

That the Planning Committee:

a) approve the preparation of Spatial Land Use Frameworks for the Kumeu-Huapai and Wainui Silverdale Dairy Flat areas for the Supporting Growth Detailed Business Case process

b) establish a Political Working Party of the Chair of the Planning Committee, the Councillor for the Rodney Ward, the Rodney Local Board Chair, and an Independent Māori Statutory Board member to approve the draft Spatial Land Use Frameworks for consultation in conjunction with the Supporting Growth Detailed Business Case process.

Horopaki

Context

10. The Supporting Growth Alliance (Supporting Growth) is a collaboration between Auckland Transport, the Waka Kotahi NZ Transport Agency and Auckland Council to plan transport investment in Auckland’s Future Urban zoned areas over the next 10 to 30 years.

11. Most of Auckland’s growth is planned to occur within existing urban areas, however around a third will go into Future Urban zoned areas (greenfields) identified in the Auckland Unitary Plan. These currently rural areas are being or will be rezoned over the next few decades and are located within:

· Warkworth, Wainui, Silverdale and Dairy Flat in the North

· Kumeū- Huapai, Redhills, Whenuapai and Riverhead in the North West

· Takanini, Opāheke, Drury, Paerata and Pukekohe in the South

Indicative Business Cases

12. In July 2019, Auckland Transport and the NZ Transport Agency confirmed via a series of Indicative Business Cases the Indicative Strategic Transport Network for the greenfield areas.

13. The Indicative Business Cases (IBC) for transport infrastructure are based on the most detailed land use plans available. In most cases the land is either ‘live’ zoned or there are council Structure Plans that show the future layout of land uses (e.g. Warkworth, Silverdale West Dairy Flat, Drury-Opaheke). However, there are two significant areas in the north (Wainui Silverdale Dairy Flat) and north west (Kumeu-Huapai - including Riverhead and Red Hills North) that have not been structure planned. In these areas, the IBC is based on the broad land use scenarios in the Auckland Plan 2050 Development Strategy (2017).

14. The IBC recommended a Northern transport network as shown in Figure 1 which includes:

· A rapid transit network to serve the North

· New and improved motorway interchanges

· A network of strategic road connections

· An integrated system of arterial roads

· A strategic active mode network to provide a high-quality network of strategic walking and cycling connections

· Safety improvements on key rural corridors

Figure 1 – Northern IBC

15. The IBC also recommended a North Western transport network as shown in Figure 2 which includes:

· Proposed public transport facilities to support and rapid transit services

· Further development of a walking and cycling network

· Safety upgrades and improvements for the roading network

· State highway upgrades including an alternative route for SH16 to support greater growth in Kumeū-Huapai.

Figure 2 – North West IBC

Detailed Business Cases

16. Supporting Growth is now working on Detailed Business Cases (DBC) for the North and North West. These will include more detailed technical investigations for each of the projects in the networks, particularly a Rapid Transit Network (RTN). This will lead to a specific route protection process over the next few years. This is to ensure that the land needed to build and operate the routes in the future, is set aside and protected in advance of the transport projects being constructed and the land being developed.

17. The DBC process involves:

· Identifying land use and transport outcomes

· Option development

· Option assessment

· Identifying a recommended option

· Public consultation

· Developing a preferred option

· Option approval.

18. Fundamental to the development of the DBC is a strong collaborative approach between Te Tupu Ngātahi/Supporting Growth Alliance and council staff to ensure integration of land use with appropriate transport networks.

19. The strategic projects identified in the North by Supporting Growth for DBCs to be prepared are:

· Rapid Transit Corridor (RTN)

· SH1 corridor upgrade (Albany to Silverdale)

· Silverdale interchange upgrade

· Strategic Cycleways (within SH1 and RTN corridors).

20. Of these projects for the North, the most critical in terms of the inter-relationship with land use will be the RTN. This will pass through the entire future urban area from Redvale in the south east to Milldale in the north.

21. The strategic projects identified in the North West by Supporting Growth for DBCs to be prepared are:

· Rapid Transit Corridor (RTN)

· Alternative State Highway for Kumeu Huapai

· Kumeu Huapai upgraded arterials

· State Highway 16/18 connections.

22. Of these projects for the North West, the most critical in terms of the inter-relationship with land use is the RTN and the alternative State Highway route.

23. To support the DBCs, land use scenarios are required for the Kumeu-Huapai and Wainui Silverdale Dairy Flat Future Urban areas to show the key land uses that the transport projects will support and impact upon.

Tātaritanga me ngā tohutohu

Analysis and advice

Spatial Land Use Frameworks

24. The land use scenarios to support the DBCs for the transport network are proposed to be developed through the preparation of Spatial Land Use Frameworks. These will identify key land uses that are critical to decision making on the transport projects, particularly the RTN, being considered in the DBC process.

25. In the normal course of events, detailed structure plans would be prepared for Future Urban zones. However, apart for the Silverdale West Dairy Flat Industrial Area, structure plans are not planned to commence for the Kumeu-Huapai and Wainui Silverdale Dairy Flat future urban zones until approximately three years before the development ready dates set out in the FULSS of 2028-2038 and 2033-2038 respectively.

26. As structure planning is some time off, it is important that council planning staff work with Supporting Growth to integrate land use and transport.

27. The Spatial Land Use Frameworks will not be as detailed as, nor replace the need for, structure plans. However, the identification of the key land uses must be robust enough, and of sufficient detail, to enable the transport options, particularly the RTN, to be assessed and preferred options arrived at that can then go to the route protection stage.

28. The Spatial Land Use Frameworks therefore sit between the high level Auckland Plan Development Strategy and the more detailed structure plans that will be prepared prior to land being rezoned for development in the future.

Auckland Plan 2050

29. The starting point for the Spatial Land Use Frameworks is the Auckland Plan Development Strategy.

30. Auckland Council’s strategic direction for growth in Auckland is set out in the Auckland Plan 2050 (2017) and includes the urbanisation of the Future Urban zone at Kumeu-Huapai and Wainui Silverdale and Dairy Flat.

31. The Auckland Plan Development Strategy shows how Auckland will physically grow and change over the next 30 years. It takes account of the outcomes to be achieved, as well as population growth projections and planning rules in the Auckland Unitary Plan.

32. The Development Strategy shows the future urban growth areas including the Kumeu-Huapai and the Wainui Silverdale Dairy Flat areas including, at a high level, possible future centres and business land. These are shown in Figures 3 and 4 respectively below.

Figure 3 Auckland Plan 2050 (2017)

Development Strategy Northern West (Kumeu-Huapai)

Figure 4 Auckland Plan 2050 (2017)

Development Strategy Northern (Wainui Silverdale Dairy Flat)

33. The identification of centres is significant for the DCB process as they are a key land use in considering options for RTN routes and station locations.

34. Spatial Land Use Frameworks will therefore be prepared on the basis of the Development Strategy for Kumeu-Huapai and Wainui Silverdale Dairy Flat to ensure there is land use and transport integration.

35. Approval is sought to prepare Spatial Land Use Frameworks for the Kumeu-Huapai and Wainui Silverdale Dairy Flat areas for the Supporting Growth Detailed Business Case process.

Timing

36. The detailed timeframes for the DBC process are still being developed but are broadly as follows:

· Option development – now to end 3^rd quarter

· Public consultation – 4^th quarter 2020

· Preferred option refinement and selection – 1st - 2^nd quarter 2021

· Approvals – 3^rd quarter 2021

37. The feedback from public consultation and a recommended final Spatial Land Use Framework will be reported back to the Planning Committee for adoption before the DBCs are finalised and reported to the AT and NZTA Boards.

Consultation

38. As noted above, the DBC process has a landowner and public consultation phase. It is therefore also important that the Spatial Land Use Frameworks be consulted upon as well. Consultation on the Spatial Land Use Frameworks will occur as part of the DBC process as they are inextricably linked to the DBC transport projects and are being prepared to support them.

39. It is recommended that a Political Working Party made up of the Chair of the Planning Committee, the Ward Councillor for Rodney, the Rodney Local Board Chair, and a member of the Independent Māori Statutory Board is established to approve the draft Spatial Land Use Frameworks for consultation in late 2020 in conjunction with the Supporting Growth DBC process.

Tauākī whakaaweawe āhuarangi

Climate impact statement

40. Council declared a climate emergency in Auckland, in June 2019. The decision included a commitment for all council decision-makers to consider the climate implications of their decisions. In particular, consideration needs to be given in two key ways:

· how the proposed decision will impact on greenhouse gas emissions and the approach to reduce emissions

· what effect climate change could have over the lifetime of a proposed decision and how these effects are being taken into account.

41. The decision to prepare Spatial Land Use Frameworks does not in itself impact on climate change. However, the subsequent outcomes of preparing them and the DBCs, will have impacts on climate change. Key in this is the work looking at providing for RTNs and walking and cycling networks.

42. The future development of greenfield land for urban activities will likely lead to an increase in the region’s greenhouse gas emissions. The growth will result in increased traffic movements, which are currently Auckland’s largest single contribution to greenhouse gas emissions.

43. However, there are several aspects of the Spatial Land Use Frameworks supporting the DBCs that go toward mitigating the effects of emissions from vehicles. These include the following:

· a Rapid Transit Network

· provision for walking and cycling

· ultimately at later stages. the provision of land for additional employment in the areas to help reduce trips for new and existing residents to employment.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

44. Auckland Transport are part of Te Tupu Ngātahi/Supporting Growth Alliance which reports to AT as well as NZTA.

45. Watercare will be more impacted in the future at the structure plan stages when detailed consideration will be given to the supply of water and wastewater.

46. Various internal council teams including Parks, Healthy Waters, and Community Facilities will be involved in the development of the Spatial Land Use Frameworks.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe

Local impacts and local board views

47. The Rodney Local Board has been, and will continue to be, briefed by the Supporting Growth project. The Board was also consulted during the preparation of the Auckland Plan. No specific consultation has as yet occurred with the Board on the Spatial Land Use Frameworks, but the Rodney Local Board will be consulted by council staff if approval is given to proceed with the project.

Tauākī whakaaweawe Māori

Māori impact statement

48. Mana Whenua are part of Te Tupu Ngātahi/Supporting Growth programme and were involved in developing the IBCs. They will continue to be involved in the DBC process. The following Mana Whenua groups are involved:

· Ngāti Whātua o Kaipara

· Te Kawerau a Maki

· Te Ākitai Waiohua

· Ngai Tai ki Tāmaki

· Ngāti Whanaunga

· Ngāti Maru

· Te Patu Kirikiri

· Ngāti Manuhiri

· Ngāti Pāoa Trust Board

· Ngāti Te Ata Waiohua.

49. Engagement with Mana Whenua on the Spatial Land Use Frameworks will continue through the Supporting Growth DBC process.

Ngā ritenga ā-pūtea

Financial implications

50. The project cost can be met from within Council’s existing budgets.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

51. There is the risk that the Spatial Land Use Frameworks will raise landowner expectations of particular land uses in particular areas. However, the Spatial Land Use Frameworks will not change the timing planned for development that is set out in the Future Urban Land Supply Strategy 2017 and the Auckland Plan 2050.

Ngā koringa ā-muri

Next steps

52. The draft Spatial Land Use Frameworks will be prepared and then reported back to the proposed Political Working Group before the Supporting Growth consultation phase begins on the DBCs.

53. The feedback from public consultation, along with a recommended final Spatial Land Use Framework will be reported back to the Planning Committee for adoption before the DBCs are finalised and reported to the AT and NZTA Boards.

Ngā tāpirihanga

Attachments

There are no attachments for this report.

Ngā kaihaina

Signatories

Author

Dave Paul - Principal Planner

Authorisers

John Duguid - General Manager - Plans and Places

Megan Tyler - Chief of Strategy

Planning Committee

02 July 2020

Auckland Unitary Plan – Drury East Private Plan Change Requests – Overview

File No.: CP2020/08528

Te take mō te pūrongo

Purpose of the report

1. To provide a comprehensive overview of three private plan change requests to the Auckland Unitary Plan Operative in Part (AUP) received from Kiwi Property No 2 Ltd, Fulton Hogan Land Development and Oyster Capital by providing analysis of issues common to all three requests, and to introduce the options available to the Council for making the ‘clause 25’ decision on these requests.

Whakarāpopototanga matua

Executive summary

2. Three private plan change requests to the AUP have been lodged by Kiwi Property No. 2 Ltd., Fulton Hogan Land Development and Oyster Capital that collectively seek to rezone approximately 330 hectares of land in the Drury East area from Future Urban to a mix of residential, business and open space zones. See Figure 1 for the proposed zoning pattern. Combined, the plan changes would provide capacity for up to 6,500 dwellings and over 5,000 jobs.

3. The Council must decide how a private plan change request is processed. Under clause 25 of the RMA the Council may either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

4. Case law has established that clause 25 of the RMA requires a ‘coarse merits’ assessment of private plan change requests. For the request to be rejected for processing, it must meet one or more of the grounds set out in clause 25. If accepted or adopted, subsequent steps allow for a detailed examination of provisions on their merits, and the private plan change may be declined or substantially amended in response to submissions and detailed analysis against the provisions of the RMA.

5. All of the land subject to the requests is currently zoned Future Urban in the AUP. The private plan changes propose to enable a large retail and commercial centre, as well as employment and housing. Provision of a large employment hub in the southern area of the region has the potential to provide significant local and sub regional benefits, helping to support social and economic wellbeing, deliver a range of amenities and minimise trip lengths and limit outward commuting, although any centre needs to take into account its possible impacts on Papakura and Pukekohe. Additional housing opportunities are important, but of less strategic significance given the range of housing developments underway or proposed in the wider area.

6. The land use zonings proposed are largely consistent with the land use pattern set out in Council’s Drury-Opāheke Structure Plan (which was adopted in August 2019). The exception is the Metropolitan Centre zoning proposed for part of the Kiwi Property private plan change request, where the Drury-Opāheke Structure Plan proposes a non-specific ‘centre’ zoning for the land.

7. While a transit-orientated form of development is proposed, a detailed assessment of the merits of the private plan change provisions could well identify changes that need strengthening. Measures to protect the natural environment may also need to be strengthened.

8. The most significant resource management issue raised by the requests relates to the funding and provision of transport infrastructure to support development. The Regional Policy Statement (RPS) chapter of the AUP seeks that land use development is integrated with infrastructure provision. Policies require that transport infrastructure is planned, funded and staged to integrate with urban growth^{^[1]}.

9. Te Tupu Ngātahi / Supporting Growth Alliance (SGA) has identified a range of public transport and roading projects for the wider Drury area over the next 30 years, with work progressing on business cases and designations for these projects, but not all of the projects have secured funding. The SGA work has identified the importance of a ‘public transport first’ approach to transport investments. A transit-orientated form of growth is needed to address the limited capacity of the strategic road network.

10. Through the NZ Upgrade Programme, in January 2020 the government committed to fully fund major improvements to the rail and road networks in the area, including a new Drury Central train station, electrification and Mill Road extension. Some of these projects were previously timed for more than 10 years away. To support the NZ Upgrade Programme, other SGA projects would need to be bought forward.

11. The private plan change requests contain provisions that require a number of relatively minor roading improvements to be delivered as development proceeds. These relate to upgrades of the Great South Road / Waihoehoe Road intersection, as well as ensuring that options to widen Waihoehoe Road are not foreclosed. Otherwise, the private plan change requests assume that Auckland Transport will deliver the new and upgraded arterial road connections, while network upgrades to rail and motorways will occur through the NZ Upgrade Programme.

12. Not all of the SGA projects are funded. Assuming NZTA pay half of the local roading infrastructure, there is an estimated shortfall in funding of around $600m across Drury East and West, for transport-related projects for the total build-out at Drury. The quantum that is related to Drury East is probably in the order of $200 to $300m. In addition, funding of stormwater and social infrastructure is will be required.

13. The 2018 Regional Land Transport Plan identifies funding for transport projects in the north and north-west of the region, generally in response to urban expansion being supported in these areas by a number of Council strategies. There is no specific provision in the Regional Land Transport Plan for investment in the Drury East area, this being consistent with the timing of urbanisation of Drury East as set out in the Future Urban Land Supply Strategy (FULSS), which identified urban development for the Drury East area in the second decade of the strategy (2028 to 2038). Development in Drury West, north of State Highway 22, is supported in the period 2018-2028 by the FULSS. The FULSS is a key mechanism by which the Council gives effect to the National Policy Statement on Urban Development Capacity.

14. The NZ Upgrade Programme funding recognises growth pressure in Drury East and signals central government commitment to accelerate infrastructure provision as a result. However, to realise the benefits of this investment, funding for necessary council delivered transport infrastructure would need the Council to re-direct investment from elsewhere or be sourced from within the development area. The Drury Transport Infrastructure Programme has begun work on identifying the funding required for the wider Drury area and investigating potential funding mechanisms, including cost sharing between the parties (public and private).

15. Earlier than planned urbanisation raises questions about the extent to which the RPS directives to ensure integration of development with infrastructure provision can be given effect to. In view of significant pressures on Council funding for growth-related infrastructure across the region, consistency with the RPS will likely require a much larger proportion of infrastructure upgrade and expansion costs to be met by developers (and/or recouped from future land owners) than in the past. A key risk of development proceeding ahead of the timing in the FULSS is that funding would need to be re-directed from supporting brownfields redevelopment – a key outcome of the Auckland Plan and a fundamental building block of the AUP’s approach to providing for growth pressures.

16. The private plan change requestors have stated that they are willing to develop a funding agreement. Any funding agreement should be in place prior to the private plan change provisions being approved and well in advance of development occurring.

17. Options to address the lack of alignment between the re-zoning and funding of transport infrastructure in the Drury East area could involve a ‘clause 25’ rejection of the private plan changes for processing until a comprehensive funding solution is in place, including a funding agreement between the requestors and the Council, or accepting the plan changes, and attempting to negotiate a funding agreement prior to the hearing. The requestors have indicated a preference for the second option. However, notification or hearing of the private plan changes cannot be delayed indefinitely.

18. Ultimately, if the private plan change requests are accepted, but the Council is not in a position to fund the relevant SGA projects and the requestors do not propose any viable method to address the funding of these projects, then it is possible that the detailed merits-based examination of the private plan change requests will find that they cannot meet the tests of the RMA. However, at this stage in the process, it is not possible to be so definitive and it is not considered enough of a reason to reject the private plan changes.

Ngā tūtohunga

Recommendation/s

That the Planning Committee:

a) receive the Auckland Unitary Plan – Drury East Private Plan Change Requests – Overview report.

Horopaki

Context

19. Three private plan change requests to the AUP have been lodged by Kiwi Property No. 2 Ltd. (Kiwi Property), Fulton Hogan Land Development (Fulton Hogan) and Oyster Capital (Oyster) that will collectively rezone approximately 330 hectares of land in the Drury East area from Future Urban to a mix of residential, business and open space zones in the AUP. A large new urban centre involving a substantial retail/commercial centre with associated employment activities is proposed along with residential development at a variety of densities, spanning from multi-storey apartments to stand alone houses. Open space networks are intended to be developed.

20. Under clause 25 of Part 2 of Schedule 1 to the RMA, the Council is required to make a decision to either:

a) adopt the requests as if they were proposed plan changes made by the Council which must then be processed in accordance with the provisions of Part 1 of Schedule 1; or

b) accept the requests in whole or in part, which then triggers a requirement to notify the requests; or

c) decide to deal with requests as if they were an application for a resource consent; or

d) reject some or all of the private plan change requests in whole or in part, in reliance on one of the grounds set out in clause 25(4).

21. Should the private plan changes be adopted or accepted for processing, subsequent steps involve notification for submissions, hearing and decision-making. Under the Schedule 1 of the RMA, there is no option for the Council or requestors to substantially amend the private plan change requests once the Council has adopted or accepted them. Clause 24 provides for amendment of the requests (provided the plan change requestors agree to the amendments) prior to the Council’s adopt/accept/reject decision.

22. Should the Council accept any or all of the plan change requests, the Council does have the option of lodging a submission in support or opposition to the private plan changes, as do the requestors. After hearing submissions, the private plan changes may be declined, approved, or approved with modifications. This decision on the substance of the private plan changes may be appealed.

23. If the Council were to reject any or all of the private plan change requests in its clause 25 decision, the decision to reject can be appealed to the Environment Court under clause 27 of the Schedule 1 to the RMA.

Overview: Private plan change requests

24. The private plan change requests (see separate agenda reports) propose three new precincts to be inserted into the AUP: Drury Central (Kiwi Property), Drury East (Fulton Hogan) and Waihoehoe (Oyster Capital). The precincts propose a number of modifications to Auckland wide rules and AUP zone-based standards. Broadly, the following development, as shown in Figure 1 below, is proposed to be enabled:

Drury Central (Kiwi Property)

· An approx. 35 ha Metropolitan Centre zone located on the eastern side of the Southern motorway, south of the Drury interchange. A mainstreet is identified, along with a number of future public open spaces.

· An approx. 51.5 ha Mixed Use area surrounding the Metropolitan Centre that provides for a mix of residential and complementary employment activities.

· An approx. 8.5ha Open Space zone adjoining the Hingaia Stream.

Drury East (Fulton Hogan)

· An approx. 22 ha Terrace Housing and Apartment Building (THAB) zoning adjoining Waihoehoe Road closest to the Drury Centre and future public transport.

· An approx. 65 ha Mixed Housing Urban zoning within the mid-portion of the site.

· An approx. 95 ha Mixed Housing Suburban zoning at the southern end of the site, to provide a transition to rural activities and to respond to the greater distance from the Drury Centre and future public transport.

· An approx. 2h Business: Mixed Use zoning (to facilitate a local centre).

Waihoehoe (Oyster Capital)

25. An approx. 49 ha THAB zoning, split into two precincts, with an 11ha precinct adjoining Waihoehoe Road closest to the Drury Centre and future public transport and the remaining area subject to amended coverage controls (for stormwater purposes).

Figure 1: Proposed zoning pattern

Regional planning context

26. The Auckland Plan seeks that most of Auckland's anticipated population and dwelling growth over the next 30 years be within the existing urban area. The remaining development is anticipated to occur in future urban areas and in rural areas. The AUP identifies approximately 15,000 hectares of rural land for future urbanisation with the potential to accommodate approximately 137,000 dwellings and 67,000 jobs.

27. Over the 30 years 2018 to 2048, the Auckland Future Development Strategy within the Auckland Plan anticipates the following level of housing development in Future Urban Areas:

· Decade One: 2018-2028: 29,150 dwellings

· Decade Two: 2028-2038: 42,800 dwellings

· Decade Three: 2038-2048: 27,020 dwellings.

28. So far, for the first full year of the Auckland Development Strategy (2018/19), 1,434 new dwellings have been consented in the future urban areas, or approximately 10 per cent of all dwellings consented across the region^{^[2]}.

29. In addition to housing, future urban areas need to accommodate a substantial amount of business and employment related activities.

30. The Drury East area is within the southern growth area which contains the largest proportion of future urban areas in Auckland (45 per cent). This includes the large future urban areas of Takanini, Drury-Opāheke, and Pukekohe-Paerata.

31. In 2019, the Council prepared and adopted the Drury-Opāheke Structure Plan. The structure plan covers a total area of 1,921ha. Over 30 years the structure plan is estimated to provide room for about 22,000 houses and 12,000 jobs, with a build out population of about 60,000.

32. The Council’s Future Urban Land Supply Strategy 2017 (FULSS) sequences the release of future urban land with the supply of infrastructure over 30 years for the entire Auckland region. The intended staging for growth in Drury-Opāheke set out in the FULSS is:

· Drury west of SH 1 and north of SH 22 is to be development ready from 2022

· the remainder of the Drury-Opāheke structure plan area (including all three private plan change areas) is to be development ready by between 2028 and 2032.

In this context development ready means that urban zoning and bulk infrastructure is provided.

33. In 2016 the Council approved a private plan change request by Karaka and Drury Limited (KDL) to rezone 84.6 hectares of land in a Special Housing Area at Bremner Road (Auranga A). In 2018 a private plan change request by KDL to rezone an additional 83 hectares of land adjacent to Auranga A was approved. A third private plan change request by KDL has now been sought to further extend the Drury West development area by creating a town centre (north of State Highway 22). The Drury West area north of SH 22 could have capacity for up to 7,500 dwellings (more than the 5,500 anticipated by the FULSS and existing zonings).

34. The FULSS has a regional focus and attempts to provide a sustainable path for greenfields expansion to the north, west and south of the Auckland urban area. The FULSS strategy sits alongside council’s (and central government’s) aspirations for considerable brownfields redevelopment. The FULSS recognises that greenfields growth requires significant upfront funding of infrastructure by public bodies. Outward growth ‘on all fronts’ cannot be realistically funded.

35. The three private plan change requests, if made operative, would likely result in development occurring earlier than the 2028 timing set out in the FULSS.

36. The FULSS timing reflected a range of matters, including assumptions about the likely timing of upgrades of key regional transport networks (State Highway, Mill Road, rail network) when the strategy was prepared in 2017, as well as staging the release of greenfields land in a manner that enables efficient provision and funding of network infrastructure acress the whole Auckland region (which is financed and funded by public agencies).

37. The recently adopted Drury-Opāheke Structure Plan does not make any specific comment on timing. The Structure Plan states that work is ongoing to develop a staging plan. The FULSS sequencing of 2028 – 2032 applies in the interim.

Local planning context

38. The Council’s 2019 Drury-Opāheke Structure Plan (see Figure 3 below) indicates a substantial centre at Drury East, another large centre at Drury West and large areas of housing to the east and west of the motorway. Housing development that has commenced to the north-west of the motorway in the Bremner Road area is intended to be served by transport infrastructure that will be developed in the Drury East area, such as the proposed Drury Central train station. To the east and north-east of the combined private plan change request areas lies further Future Urban zoned land which will be the subject of plan changes at some point and then developed for housing, with residents of these future housing areas also wishing to access the jobs and amenities to be developed in the private plan change request areas.

Figure 2: Drury-Opāheke Structure Plan

39. In terms of land use, the private plan change requests are largely aligned with the Drury-Opāheke Structure Plan. In making provision for housing and businesses, key natural environment features present (stream networks) are proposed to be retained and enhanced where possible. Area-specific stormwater management measures will be needed. Flood hazard risks can be managed, subject to appropriate works. On a ‘coarse merits’ assessment, there are no significant heritage resources that will be put at risk. While details around management of natural resources need to be resolved, there are no fundamental risks that would suggest that urbanisation should not proceed.

40. Through Te Tupu Ngātahi / Supporting Growth Alliance (or SGA), Council (via Auckland Transport) and NZTA have prepared business cases identifying a series of preferred transport network upgrades and interventions to support growth in the south, including Drury East and West. The Drury Business Case is expected to be approved later this year and notices of requirement lodged thereafter to secure route protection designations. A ‘public transport first’ approach is proposed whereby there is a significant move towards promoting use of public transport, walking and cycling. The SGA business case relies upon a much higher than normal take up of public transport options to manage travel demands.

Figure 3: SGA Projects

41. In the Drury East area, SGA has identified the following projects to support future growth (see Figure 4):

· a new train station (Drury Central)

· upgrade of Waihoehoe Road

· a new road link to the north (Opaheke north-south).

· Mill Road extension

· Brookfield Road connected to Quarry Road

· upgrade of Fitzgerald Road

· Pitt Road extension to provide additional local connectivity over the motorway corridor

· Great South Road developed as a Frequent Transit Network route

· Walking and cycling improvements.

Funding of many of these projects is not settled.

42. The land within the combined private plan change request area is not currently serviced by any piped water or wastewater reticulation. The requestors report that Watercare Services Limited has confirmed that the development proposed to be enabled by the three plan change requests can be serviced through planned upgrades to wastewater networks. An infrastructure funding agreement has been reached between the requestors and Watercare Services Limited.

43. A new watermain is currently being laid by Drury South Ltd to service their development, which will connect to a bulk supply point located adjacent to the existing Watercare Services Limited pump station. Watercare Services Limited has confirmed that the bulk supply point is sufficiently sized to accommodate the required supply of potable water for domestic and firefighting purposes for the three private plan change areas. This local reticulation would be fully funded by the landowners within the subject area as part of the normal land development process.

44. Stormwater infrastructure in the area will need to be upgraded. Flood management is an important aspect given current flooding issues in the Drury township area. A number of culverts under Great South Road and the rail line will need upgrading. Stream corridors will require rehabilitation to reduce stream bank erosion. This is likely to require a coordinated plan, rather than be addressed by way of site-by-site development. Council has no funding allocated for these works.

Funding Context

45. While the private plan changes make provision for growth, enabling this growth in a sustainable manner is dependent upon necessary infrastructure being provided as the area develops. In the past, live zoning land for urban development has come with the expectation (if not an implied requirement) that Council will provide the necessary network infrastructure to allow development to occur in the manner sought. However, a range of funding mechanisms are now being used to enable growth. The cost of this infrastructure is generally recovered through Development Contributions.

46. The 2018 Regional Land Transport Plan (RLTP) identified funding of $300m over ten years for greenfield growth projects across the Auckland region. It is understood that most of this (about $225m) is for projects in the north and north-west. The remaining money, approximately $75m, is for the Supporting Growth programme across the Auckland region.

47. The 2018 RLTP makes no specific provision for transport investment in the Drury East area, reflecting the timing of urbanisation of Drury East as set out in the FULSS, which identified urban development of this area to occur in the second decade of the strategy (2028 to 2038).

48. Given the private plan changes are being advanced ahead of Council’s preferred timing as indicated by the FULSS strategy, there is a question mark over the implications for council-led components of the (network) infrastructure required to service the proposed growth areas. In particular, whether funding would need to be diverted from other projects, or new sources of funding developed.

49. Since the FULSS and Drury-Opāheke Structure Plan was prepared, Council, Central Government and key development parties have been working on a Drury Transport Investment Programme to identify required funding and financing of necessary ‘network’ transport infrastructure in the wider Drury area.

50. In January 2020, central government announced the New Zealand Upgrade Programme (NZUP) package of investments. This covers core transport infrastructure in the Drury area. The following infrastructure will be fully funded by Central Government:

· Upgrading Mill Road to four lanes and connecting Manukau to Drury. Construction on the first stages is expected to start in late 2022 with the full project complete in 2027/28.

· Widening SH1 from Papakura to Drury and building a cycleway alongside it. Construction is expected to start later this year and take until late 2025 to complete.

· Electrifying the railway track between Papakura and Pukekohe with space for additional lines for future growth.

· Two new railway stations in Drury Central and Drury West, along with ‘park and ride’ facilities. Construction of these is slated to start in 2023 and be completed by late 2024.

51. It is important to note that NZUP does not address all transport needs in the Drury area, although central government funding of some of the projects (like Mill Road) may release funds for other Council-led projects. The three private plan change requests seek to provide a degree of certainty as to whether some of the other required transport infrastructure upgrades will be provided in tandem with development. However, the precinct provisions are limited in their scope, may not work in practice, while not all transport infrastructure identified by SGA is covered in the precinct provisions.

52. Projects identified by SGA that ‘fall between’ what central government is proposing and what is covered by the proposed plan provisions include:

· A new north-south arterial road connection from Hunua Road in the north to Waihoehoe Road in the south, which will provide a link between the Opāheke industrial area and Drury East (Opāheke north-south connection). The plan change provisions only provide for a ‘collector’ type road.

· An upgrade to the section of Waihoehoe Road between the proposed Opāheke north-south connection and Mill Road extension (Waihoehoe Road east upgrade).

· Bus priority measures on Waihoehoe Road west of the Opaheke north-south connection, along with likely replacement of the Waihoehoe Road overbridge

· Pitt Street extension involving a bridge over the southern motorway, providing for an alternative east-west link

· Upgrade of Great South Road to a Frequent Transit Network (FTN) Standard

· Walking and cycling links between east and west Drury.

53. In terms of the benefits of the SGA projects, two of the unfunded SGA projects are longer term projects (Great South Road FTN) and/or may not be justified upon detailed examination (Pitt Street connection). Completion of the Opaheke North-South Road is dependent upon urban development to the north of the plan change request areas, which may not occur until 2038+. Nevertheless, the SGA projects are important to local connectivity, safe walking and cycling, bus priority and access to local employment and amenities.

54. At the time of this report being prepared, the funding of these ‘other’ transport projects was not settled. Estimates are that of the $5.3 billion to $6.6 billion required for wider Drury transport investments, $2.4 billion, will be funded by the NZ Upgrade Programme. Increasing the number of rail lines to four is likely to be covered by Kiwirail (approximately $1.4b). The remaining funding will be delivered via a combination of National Land Transport Fund (NLTF) and local share funding. The local share of transport infrastructure (assuming NZTA pay a half share) is estimated to be in the order of $600 million, across Drury East and West. In addition to transport, there is other off-site infrastructure that requires funding, including upgrade to culverts under the rail line and Great South Road. Extensive restoration works may be needed in the main stream corridors to address stream bank erosion.

55. As noted, the ‘unfunded’ component of the Drury infrastructure requirements sits alongside other region wide funding commitments and challenges associated with urban development to the north and west, as well as the Auckland Housing Programme.

Tātaritanga me ngā tohutohu

Analysis and advice

Statutory context: Resource Management Act 1991

56. This section of the report sets out the statutory framework for the clause 25 decision. Separate reports consider each private plan change request against the clause 25 criteria.

57. Any person may request a change to a district plan^{^[3]}. The procedure for private plan change requests is set out in Part 2 of Schedule 1 of the RMA. The standard process council follows as a plan-maker is adapted,^{^[4]} and procedural steps added^{^[5]} including the opportunity to request information. The Council must decide under clause 25 which is the most appropriate processing option for each private plan change request. Clause 25 is set out in full in Attachment A.

58. In addition to clause 25, clause 23(6) states that a local authority may at any time reject a plan change request (or decide not to approve the plan change requested), if it considers that it has insufficient information to enable it to consider or approve the request. The three private plan requestors have each provided sufficient information for the request to be considered under clause 25.

59. On the basis of the relevant case law, the consideration of private plan change requests should involve a coarse assessment of the merits of the private plan change requests - “at a threshold level” - noting that if the request is accepted or adopted the full merits assessment will be undertaken when the private plan change is determined. Furthermore, case law has established that “where there is doubt as to whether the threshold has been reached, the cautious approach would suggest that the matter go through to the public and participatory process envisaged by a notified plan change” (Malory Corporation Ltd v Rodney District Council [2010] NZRMA 1 (ENC), at para 22).”

Options available to the council

60. Under the Resource Management Act 1991^{^[6]} when considering each private plan change request the Council may either:

a) adopt the request as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

61. The following sections discuss options a) and d) first, before addressing options B and C.

Option A – Adopt the requests, or part of the requests, as if they were a proposed plan change made by the council itself

62. If the Council adopted each of the requests, or part of the requests, the Council would then process the requests as though they were Council-initiated plan changes. The Council would not be able to significantly modify the private plan changes if it adopted the requests (as that would mean that the plan change Council advanced was no longer the private plan change which it adopted). Adoption of the private plan changes would also likely constrain Council’s ability to lodge substantive submissions.

Option D – Decide to deal with the request as if it were an application for a resource consent

63. The Council may decide to deal with the requests as if they were an application for a resource consent and the provisions of Part 6 of the RMA would then apply accordingly. This option is only suitable for site specific proposals.

Option C – Reject the request, in whole or in part

64. The Council can only decide to reject a private plan change request if one (or more) of the grounds set out in clause 25(4) are present. There is a two-step process to decision-making under clause 25(4). First the existence of one or more grounds to reject the request (as set out in clause 25(4)) must be established. Then the Council must decide whether to reject the request on those grounds.

65. The grounds for rejection under clause 25(4) are as follows:

a) the request or part of the request is frivolous or vexatious; or

b) within the last two years, the substance of the request or part of the request;

i) has been considered, and given effect to, or rejected by, the local authority or the Environment Court; or

ii) has been given effect to by regulations made under section 360A; or

c) the request or part of the request is not in accordance with sound resource management practice; or

d) the request or part of the request would make the policy statement or plan inconsistent with Part 5; or

e) in the case of a proposed change to a policy statement or plan, the policy statement or plan has been operative for less than two years.

Are the requests frivolous or vexatious?

66. Frivolous means not having any serious purpose or value. Vexatious means an action that is brought without sufficient grounds for winning, purely to cause annoyance. None of the requests meet these definitions.

Has the substance of the request been considered and been given effect to, or rejected by the council within the last two years?

67. This clause requires a focus on the substance of the private plan change requests, including the broader matters raised by the requests. Where the subject matter has been considered and been given effect to, or previously rejected by the Council (or the Environment Court) within the last two years, the Council may reject all or one or two of the requests.

68. The consideration of whether the matter has been previously addressed by the Council extends beyond RMA plans. Whether the private plan change requests have been considered by structure plans and other planning documents under the Local Government Act is also relevant.

69. Each of the three private plan change requests involves land that is currently zoned Future Urban under the AUP and which is part of the Council’s Drury-Opāheke Structure Plan. Urbanisation of the land will therefore occur at some stage, while the requests propose similar land use patterns to the structure plan. The important issue of ‘substance’ is therefore the sequencing and timing of growth relative to other growth areas and infrastructure provision and associated methods to ensure infrastructure is coordinated with growth.

70. The sequence and timing of structure planning (and the plan changes that ideally follow) for urbanisation of the Drury East area is driven by the FULSS. The FULSS was refreshed and incorporated into the updated Auckland Plan in 2018. Development in Drury East is sequenced for the second decade of the strategy (2028 to 2038).

71. Due to the FULSS strategy identifying that the Drury East area will be rezoned in the second decade, and the Drury-Opāheke Structure Plan making no amendments to timing, it may be taken that the Council has considered urban development of the Drury East area in the last two years, but not sought to accelerate development in the area. However, the FULSS strategy and the Structure Plan do not categorically rule out Drury East from being developed in the near future.

Is the request in accordance with sound resource management?

72. Overall, the consideration of this ground should involve a coarse assessment of the merits of the private plan change requests – “at a threshold level” – and take into account the RMA’s purpose and principles – noting that the full merits assessment will be undertaken if the requests are accepted. The term ‘sound resource management practice’ is not defined in the RMA.

73. In the recent Environment Court decision Orakei Point Trustee v Auckland Council [2019] NZEnvC 117, the Court stated:

“[13] What not in accordance with sound resource management practice means has been discussed by both the Environment Court and High Court in cases such as Malory Corporation Limited v Rodney District Council (CIV-2009-404-005572), dated 17 May 2010.

[14] Priestley J said in Malory Corporation Limited v Rodney District Council (CIV-2009-404-005572, dated 17 May 2010, at 95) that the words sound resource management practice should, if they are to be given any coherent meaning, be tied to the Act's purpose and principles. He agreed with the Environment Court's observation that the words should be limited to only a coarse scale merits assessment, and that a private plan change which does not accord with the Act's purposes and principles will not cross the threshold for acceptance or adoption (CIV-2009-404-005572, dated 17 May 2010, at 95).”

74. Malory Corporation Limited v Rodney District Council further noted that interpretation of clause 25(4)(c) extends into issues of process:

“We conclude that the question of sound resource management practice goes well beyond questions of planning merit to include fundamental issues as to appropriate process, timing and the like. It can include non-planning matters such as engineering, cultural, and other issues.” (para 60).

75. The reference to ‘practice’ and ‘timing’ are important, as the test is not just related to outcomes. The test under clause 25 (4) (c) is arguably wider than whether the private plan change accords with the Regional Policy Statement.

76. Part 2 of the RMA provides an important starting point to developing criteria as to whether sound resource management practice has been followed. However, other aspects are also relevant. The following criteria provide a possible checklist:

· Will the plan changes undermine sustainable management of natural and physical resources?

· Will the plan changes enable people and communities across the region to provide for their social, economic and cultural wellbeing?

· Section 32 is another important aspect of sound practice – is there sufficient justification of the proposed provisions, at a coarse level?

· Plan change preparation process and the nature and extent of consultation expected under Schedule 1 is important. Has best practice been followed?

Attachment B provides commentary in relation to these criteria.

Would the request or part of the request make the policy statement or plan inconsistent with Part 5 of the RMA?

77. Part 5 of the RMA sets out the role and purpose of planning documents created under the RMA, including that they must assist a local authority to give effect to the sustainable management purpose of the RMA. Regional and district plan provisions must give effect to the regional policy statement and higher order RMA documents, plus not be inconsistent with any (other) regional plan.

78. The private plan change requests propose to amend district and regional plan provisions. The key issue is therefore whether the provisions give effect to higher order documents. That is, would the request manifestly conflict with or be contrary to the relevant provisions of the AUP of national policy statements?

79. The two main matters to consider are therefore whether the outcomes sought by the requests would:

a) give effect to or be in conflict with the National Policy Statement on Urban Development Capacity (NPS-UDC);

b) give effect to the RPS component of the AUP.

Attachment C provides commentary in relation to these matters.

Has the plan to which the request relates been operative for less than two years?

80. The plan provisions of the AUP relevant to these three requests were made operative on 15 November 2016. The provisions have therefore been operative for more than two years.

Option B - Accept the private plan change request, in whole or in part

81. The Council can decide to accept the private plan change requests in whole, or in part. If accepted, the plan changes do not have legal effect until they are made operative. If the private plan change requests are accepted the matters raised in the above analysis can be considered on their merits, together with any submissions received, during a public participatory planning process.

82. The separate reports for each of the private Plan change requests recommend that the Council accepts each private plan change for notification and hearing.

Tauākī whakaaweawe āhuarangi

Climate impact statement

83. Council declared a climate emergency in Auckland, in June 2019. The decision included a commitment for all Council decision-makers to consider the climate implications of their decisions. In particular, consideration needs to be given in two key ways:

a) how the proposed decision will impact on greenhouse gas emissions and the approach to reduce emissions

b) what effect climate change could have over the lifetime of a proposed decision and how these effects are being taken into account.

84. The decision whether to adopt, accept, reject or deal with the private plan change requests is a decision that has to be made in terms of clause 25 of the RMA. Relevant to this decision is whether the private plan change requests accord with sound resource management practices and are consistent with regional and national policies.

85. Climate change mitigation issues (reduction in greenhouse gas emissions) are not directly addressed by the RMA or the AUP. Having said that, if made operative, the plan changes have the potential to put in place land use patterns that support public transport, walking and cycling, thereby helping to reduce some transport-related emissions.

86. In relation to adaptation, the effects of climate change and in particular increased risks of natural hazards are relevant RMA matters. The AUP contains provisions relating to avoidance of natural hazards in greenfields areas and work to date by the requestors has identified a range of actions that will need to be taken to address flooding issues.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

87. The relevant council-controlled organisations are Watercare Services Ltd and Auckland Transport. Representatives from both organisations have been invited to provide feedback. Auckland Transport has indicated that they are concerned about the lack of certainty around funding of transport infrastructure, and are likely to make submissions on the private plan change requests, should they be accepted. Watercare Services Ltd have indicated they are not opposed in principle to the land use concept the proposed changes aim to enable at these sites.

88. Other key departments within Council have been invited to provide feedback; some have reviewed the requests for adequacy of information and have identified a number of issues at this stage. These include:

· Healthy Waters

· Community and Social Policy

· Resource consents

· Auckland Design Office

· Engineering and Technical Services

· Auckland Plan Strategy and Research

· Environmental Services – Infrastructure and Environment

· Development Project Office.

89. It is not appropriate at this stage of the process for other departments of the council to provide advice on the detailed merits of the application. If the requests are accepted, the views of departments will be sought as part of the substantive assessment of the private plan change requests.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe

Local impacts and local board views

90. Local boards’ views are important in Auckland Council’s co-governance framework. The land subject to the three private plan change requests sits entirely within the Franklin Local Board area. A briefing by staff on the three proposals with the Papakura Local Board (due to its close locational proximity to the subject sites) occurred on 14 May followed by a staff briefing to the Franklin Local Board on 26 May.

91. If the three private plan change requests are accepted, the views from both local boards will be sought on the content of the private plan change requests after the submission period closes. All formal local board feedback will be included in the hearing report and the local board will have the opportunity to present its views to hearing commissioners, if the local board chooses to do so. These actions support the local board in its responsibility to identify and communicate the interests and preferences of people in its area, in relation to the content of Auckland Council plans.

92. Local board views have not been sought on the options to adopt, accept, reject or deal with the private plan change request as a resource consent application. Although Council is required to consider local board views prior to making a regulatory decision, that requirement applies when the decision affects, or may affect, the responsibilities or operation of the local board or the well-being of communities within its local board area. The clause 25 decision does not affect the responsibilities or operation of the Franklin Local Board (or Papakura Local Board due to close proximity to the subject site). Impacts on the well-being of local communities will be a matter that is investigated fully should the plan change requests be accepted.

Tauākī whakaaweawe Māori

Māori impact statement

Consequence of clause 25 options for future consultation

93. If the Council accepts a private plan change request, clause 25 does not require the Council to complete pre-notification engagement with iwi authorities in accordance with clause 4A of Schedule 1 of the RMA. However, the Council may still wish to do so, although it would be constrained to recording any feedback from iwi authorities in updated section 32 reports, as the private plan change requests cannot be modified to address feedback once the Council has accepted the private plan change requests. In addition to any pre-notification consultation, iwi authorities have the opportunity to make submissions on the private plan change requests.

94. If the Council adopts the private plan change requests the same consultation requirements apply as though the plan change was initiated by Council: consultation with iwi authorities is mandatory prior to notification.^{^[7]} Changes can be made to the plan change prior to notification. Iwi authorities also have the opportunity to make submissions on the requests after notification.

95. Given the restrictions on modifying a private plan change once accepted, the Council sought that the requestors make available copies of the private plan change provisions to relevant iwi authorities to enable feedback (and changes) before the Council made the Clause 25 decision. The requestors agreed to this request.

Record of applicant’s consultation

96. There are eight iwi authorities where their rohe (area of interest) covers the Drury East private plan change areas. These are:

· Ngāti Te Ata Waiohua

· Te Ākitai Waiohua

· Ngāti Tamaoho

· Ngai Tai ki Tāmaki

· Waikato Tainui

· Ngāti Whanaunga

· Te Ahiwaru

· Ngāti Maru

97. The applicant advises that a series of hui have been undertaken with the above eight iwi authorities in conjunction with the development of the three private plan changes requests for Drury East. A number of cultural impact assessments have been submitted with the private plan change requests by Ngāti Te Ata Waiohua, Ngāti Tamaoho, Te Ākitai and Ngai Tai ki Tāmaki. The cultural impact assessments have identified the following key issues as being important to mana whenua:

· maintaining water quality in runoff

· preservation of any archaeological finds during construction

· protection of waterways

· restoration of waterways.

Ngā ritenga ā-pūtea

Financial implications

98. Accepting the private plan change requests has no direct financial implications for the Council as the costs associated with processing them under the RMA are able to be recovered from the applicants. However, if accepted and ultimately made operative, the infrastructure required to support the development they enable will have implications for the budgets and long-term planning of various Council departments that provide infrastructure (e.g. stormwater, parks and community facilities) as well as Auckland Transport and Watercare.

99. With respect to stormwater infrastructure, parks and community facilities, any acceleration of development in the area would be accompanied by an acceleration in development contributions, a primary funding source for stormwater infrastructure, parks and community facilities. With respect to Watercare and Auckland Transport, this report has already discussed the financial implications that exist for the Council, and the importance of the remaining transport funding issues being appropriately resolved prior to the private plan change provisions being approved and well in advance of development occurring.

100. The infrastructure funding issues associated with Drury will need to be considered as part of the upcoming Long Term Plan process.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

101. Risks and mitigations have been discussed throughout this report. The key RMA-related risk associated with accepting the private plan change requests is that this decision could see other private plan change requests come forward ahead of the timing in the FULSS. This can be mitigated by clearly drawing the distinction between the case of Drury and other locations where significant funding from central government does not exist.

Ngā koringa ā-muri

Next steps

102. If accepted, the private plan changes requests must be notified within four months, unless this time frame is waived in accordance with section 37 of the RMA. A separate evaluation and decision will be required regarding the extent of notification.

103. There are important issues that will need to be resolved through the submission process and Council and/or Auckland Transport will need to take an ongoing proactive role in the process to ensure those matters are thoroughly addressed.

104. The views and preferences of the Franklin and Papakura Local Boards will be sought after submissions close, for inclusion in the section 42A hearing report.

105. The Council will need to appoint commissioners to hold a hearing, consider submissions and any local board views, and make decisions on the private plan change requests in accordance with Schedule 1 of the RMA. If there are no appeals, the private plan change requests will be reported back to the Planning Committee for approval to become operative. The private plan changes will not have any interim or other legal effect until the day they are made operative.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Clause 25 Schedule 1, Resource Management Act 1991	37
b ⇩	Commentary relating to ‘sound resource management practice'	39
c ⇩	Commentary relating to Part 5 of the RMA	41

Ngā kaihaina

Signatories

Author

David Mead – Director, Hill Young Cooper

Authorisers

John Duguid - General Manager - Plans and Places

Megan Tyler - Chief of Strategy

Planning Committee

02 July 2020

Auckland Unitary Plan - Private Plan Change Request : Kiwi Income Property (Drury East)

File No.: CP2020/07986

Te take mō te pūrongo

Purpose of the report

1. To provide a recommendation on the options available to the Council for making the ‘clause 25’ decision under the Resource Management Act (RMA) on the private plan change request to the Auckland Unitary Plan Operative in Part (AUP) received from Kiwi Property No2 Ltd.

2. This report should be read in conjunction with the Auckland Unitary Plan - Drury East Private Plan Change Requests - Overview report on the agenda. The Kiwi Property private plan change request is one of three plan change requests in the Drury East area that were lodged concurrently.

Whakarāpopototanga matua

Executive summary

3. A private plan change request to the AUP was lodged by Kiwi Property No 2 Ltd (Kiwi Property) on 22 December 2019 that seeks to rezone 95 hectares of land in the Drury East area from Future Urban to Business: Metropolitan Centre; Business: Mixed Use and Open Space. See Figure 1 for the proposed zoning pattern. The zoning proposed in the request is largely consistent with the land use pattern set out in the Council’s Drury-Opāheke Structure Plan (which was adopted in August 2019). A large retail / commercial centre was proposed and it is within this area that Kiwi Property’s proposed centre sits.

4. Auckland Council must decide how the private plan change request is to be processed. Under the clause 25 of Schedule 1 of the RMA the Council must either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

The Auckland Unitary Plan - Drury East Private Plan Change Requests - Overview report on the agenda provides a comprehensive discussion of the clause 25 options. The most significant issue raised by the request relates to the funding and provision of transport infrastructure to support development. Sound resource management practice is for infrastructure to be co-ordinated with development, and if necessary to lead and shape development, rather than respond to it.

5. The funding issues are significant but potentially resolvable. If the private plan change request is accepted, it will be publicly notified for submissions. It is considered that the issues and risks associated with the transport funding issues are best addressed through the detailed merits assessment involved in notification of the private plan change request and the submission and hearings process.

Ngā tūtohunga

Recommendation/s

That the Planning Committee:

a) accepts the private plan change request by Kiwi Income Property included as Attachment C, D and E to the agenda report for the following reasons:

i) the grounds to reject a private plan change request under clause 25(4) are limited. The following grounds to reject are not considered to be met by this private plan change request:

A) the request is not frivolous or vexatious

B) the substance of the request has not been considered or given effect to or rejected by the Council or the Environment Court within the last two years

C) the provisions of the Auckland Unitary Plan subject to the private plan change request have been operative for at least two years

D) the private plan change request could give effect to the Regional Policy Statement objectives and policies related to infrastructure provision and transport integration, as required by Part 5, provided a funding mechanism is agreed

ii) the coarse-grain assessment of the request indicates that the private plan change may not be in accordance with sound resource management practice related to the uncertainty over infrastructure provision. If a reject ground is present, council does not have to reject the request, but may do so. Taking into account caselaw, it is reasonable and appropriate for the Council not to reject the private plan change request on this ground. This is because there are a number of methods that may be able to be used to close the funding gap, the merits of which will need to be tested through the private plan change submission and hearings process

iii) accepting the private plan change request will enable a range of matters relating to infrastructure provision and management of the natural environment to be considered on their merits, during a public participatory planning process

iv) it is not appropriate to adopt the private plan change request

v) it is not appropriate to deal with the private plan change as if it was a resource consent application because of the scale of the project.

Horopaki

Context

6. A private plan change request to the AUP has been lodged by Kiwi Property No. 2 Ltd. (Kiwi Property) to rezone 95 hectares of land in the Drury East area from Future Urban to:

· an approximately 35 ha Metropolitan Centre zone located on the eastern side of the Southern motorway, south of the Drury interchange. A mainstreet is identified, along with a number of future public open spaces.

· an approximately 51.5 ha Mixed Use area surrounding the Metropolitan Centre that provides for a mix of residential and complementary employment activities.

· an approximately 8.5ha Open Space zone adjoining the Hingaia Stream.

7. A large new urban centre involving a substantial retail/commercial centre with associated employment activities is proposed along with residential development at a variety of densities. Urban plazas and stream and open space networks are intended to be developed.

8. The private plan change area is situated in close proximity to the Southern motorway / Drury interchange between Great South Road and State Highway 1. The railway line is located to the immediate north of the private plan change area. High power transmission lines are located within the extent of the Hingaia Stream.

9. The overall topography of the area is relatively undulating with several elevated ridgelines. The western boundary of the private plan change area is traversed by the Hingaia stream and the northern extent of the plan change area is traversed by the Fitzgerald stream, both draining ultimately to the Manukau Harbour via Pahurehure Inlet and Drury Creek. Across the private plan change area there are permanent and intermittent stream tributaries of the Hingaia and Fitzgerald streams as well as two seepage wetlands.

10. Vegetation within the private plan change area is characterised by exotic pasture and trees and shrubs planted for shelter, amenity or as part of gardens. Mature native and exotic trees with a well-developed understory have been identified on the site at 120 Flanagan Road. Riparian vegetation along identified streams comprises mainly grasses and weed species, with little continuity.

11. The Drury township and business area north of the private plan change area is subject to flooding from the Hingaia Stream.

12. The land use zonings proposed are largely consistent with the land use pattern set out in Council’s Drury-Opāheke Structure Plan (which was adopted in August 2019). The exception is the Metropolitan Centre zoning proposed for part of the Kiwi Property private plan change request area. The Drury-Opāheke Structure Plan proposes a non-specific ‘centre’ zoning for the land.

13. The private plan change area will incorporate the proposed Drury Central train station, the location of which is not yet settled. There are important issues to resolve relating to access to the station (bus, walking and cycling), as well as the extent and nature of activities around the station environs that can support a safe and attractive station environment.

Figure 1: Proposed zoning

Tātaritanga me ngā tohutohu

Analysis and advice

Statutory context: Resource Management Act 1991

14. Any person may request a change to a district plan^{^[8]}. The procedure for a private plan change request is set out in Part 2 of Schedule 1 of the RMA. The standard process the Council follows as a plan-maker is adapted,^{^[9]} and procedural steps added^{^[10]} including the opportunity to request information.

15. The Council must decide under clause 25 which is the most appropriate processing option for each private plan change request it receives. The clause 25 decision is the subject of this report and clause 25 is set out in full in Attachment A to the overview report.

16. In summary, when considering a private plan change request the Council must either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

17. The following sections address options A and D first, before addressing options B and C.

Option A – Adopt the request, or part of the request, as if it were a proposed plan change made by the council itself

18. If the Council adopted the request, or part of the request, it would then process the request as though it were a council-initiated plan change. The Council would not be able to significantly modify the plan changes if it adopted the request (as that would mean that the plan change Council advanced was no longer the plan change which it adopted). Adoption of the plan change would also likely constrain the Council’s ability to lodge substantive submissions.

19. The requestor has not sought that the Council adopt the request.

20. The private plan change request involves issues of regional growth that will, over time, deliver regional benefits but Council does not need to adopt the private plan change to ensure these outcomes. The private plan change request does not seek to protect natural resources that are at risk from development. Neither does the request address a ‘gap’ in the AUP’s planning provisions.

21. It is therefore recommended that the private plan change request by Kiwi Property not be adopted.

Option D – Decide to deal with the request as if it were an application for a resource consent

22. The Council may decide to deal with the request as if it were an application for a resource consent and the provisions of Part 6 of the RMA would then apply accordingly. The private plan change process is considered to be the most appropriate process because of the scale and significance of the development proposed.

23. It is therefore recommended that the private plan change request by Kiwi Property not be dealt with as if it were an application for resource consent.

Option C – Reject the request, in whole or in part

24. The Council can only decide to reject a private plan change request if one (or more) of the grounds set out in Clause 25(4) are present. There is a two-step process to decision-making under Clause 25(4). First the existence of one or more grounds to reject the request (as set out in Clause 25(4)) must be established. Then the Council must decide whether to reject the request on those grounds.

25. The grounds for rejection under clause 25(4) are as follows:

a) the request or part of the request is frivolous or vexatious; or

b) within the last two years, the substance of the request or part of the request;

i) has been considered, and given effect to, or rejected by, the local authority or the Environment Court; or

ii) has been given effect to by regulations made under section 360A; or

c) the request or part of the request is not in accordance with sound resource management practice; or

d) the request or part of the request would make the policy statement or plan inconsistent with Part 5; or

e) in the case of a proposed change to a policy statement or plan, the policy statement or plan has been operative for less than two years.

26. In accordance with the two-step process, the following section considers whether one or more grounds to reject exist, and whether the Council should exercise its discretion to reject the request, in whole or in part, if a ground does exist.

Is the request frivolous or vexatious?

27. The private plan change request is not considered frivolous or vexatious. The land subject to the private plan change request is zoned for future urban development, and the private plan change is supported by a range of assessments that indicate urban development is feasible and achievable. The purpose of and reasons for the private plan change request are considered by staff and Council experts to be aligned in principle with the strategic directions of the relevant planning documents, albeit there is a question over matters relating to alignment with the Future Urban Land Supply Strategy, timing and funding of infrastructure, environmental safeguards and land use mix.

28. It is not considered that the private plan change request by Kiwi Property can be rejected on this ground.

Has the substance of the request been considered and been given effect to, or rejected by the council within the last two years?

29. As noted in the overview report, this clause requires a focus on the substance of the private plan change request, that is the broader matters raised by the request.

30. The consideration of whether the matter has been previously been given effect to, or rejected, includes reference to Structure Plans and other planning documents under the Local Government Act 2002. The overview report sets out the context and background to regional and local planning and funding in the Drury area.

31. The private plan change request involves land that is currently zoned Future Urban under the AUP and which is part of the Council’s Drury-Opāheke Structure Plan. The important issue of ‘substance’ is the sequencing and timing of growth relative to other growth areas and infrastructure provision.

32. The timing for urbanisation of the Drury East area set out in the Council’s FULSS is 2028 to 2038.

33. The recently adopted Drury-Opāheke Structure Plan does not make any specific comment on timing. The Structure Plan states that work is ongoing to develop a staging plan. The FULSS sequencing applies in the interim.

34. Due to the FULSS identifying that the Drury East area will be rezoned in the second decade of the strategy, and the Drury-Opāheke Structure Plan making no amendments to timing, it may be taken that the Council has considered urban development of the Drury East area in the last two years, but not sought to progress development in the area. However, the FULSS strategy and the Structure Plan do not categorically rule out Drury East from being developed in the near future.

35. It is therefore recommended that the private plan change request by Kiwi Property not be rejected on this ground.

Is the request in accordance with sound resource management?

36. As noted in the overview report, the consideration of this ground involves a coarse assessment of the merits of the private plan change request – ‘at a threshold level’ – taking into account the RMA’s purpose and principles – noting that the full merits assessment will be undertaken if the request is accepted.

37. The overview report discusses the issues involved in the test of what is sound resource management.

38. In terms of land use, the private plan change request is generally aligned with the Drury-Opāheke Structure Plan.

39. In making provision for businesses and housing, key natural environment features present (stream networks) are proposed to be retained and enhanced where possible by the private plan change request. Area specific stormwater management measures will be needed. Flood hazard risks can be managed, although works are required to upgrade culverts under the rail line and Great South Road. On a coarse merits assessment, there are no significant heritage resources that will be put at risk. While detail around management of natural resources needs to be resolved, there are no fundamental risks to natural resources that would suggest that urbanisation should not proceed.

40. Given that the Kiwi Property plan change area will incorporate the new Drury Central train station, urban design issues are important as they relate to safe and convenient access to the station and the nature and quality of activities in the immediate vicinity. The final location and design of the train station is yet to be determined by SGA and will be the subject of a Notice of Requirement. Once a location is finalised, the proposed precinct provisions may need adjustment to reflect the final location. These adjustments should be able to be accommodated via the submission process.

41. The main issue relates to co-ordination of development with infrastructure provision. The NZ Upgrade Programme commits government funding to the train station, Mill Road extension and other network level infrastructure. The private plan change contains provisions that support upgrade of the Great South Road and Waihoehoe Road intersection.

42. As set out in the overview report, there is uncertainty over funding of all key transport projects, in particular investment in bus priority measures and walking and cycling facilities along Waihoehoe Road, the delivery of the Opāheke North-South route, walking and cycling connection to other areas, provision for transit on Great South Road and additional east-west connections across the motorway corridor. The private plan change request appears to assume that the Council can readily adjust its priorities in response to development demands and fund this necessary infrastructure. This is not the case.

43. The private plan change request by Kiwi Property could be rejected on this ground if it was unlikely that the funding issues could be satisfactorily resolved before the private plan change is made operative (assuming that the private plan change request is accepted). However, at this stage in the process, there are a number of options that can be pursued to resolve funding, including the private plan change requestor funding a larger share of the required infrastructure, and/or an area-specific funding scheme being put in place. On that basis, it is premature to form the view at this stage that the private plan change is contrary to sound resource management practice.

44. It is therefore recommended that the private plan change request by Kiwi Property not be rejected on this ground.

Would the request or part of the request make the policy statement or plan inconsistent with Part 5 of the RMA?

45. The two main matters to consider are whether the outcomes sought by the request would:

(a) give effect to or be in conflict with the National Policy Statement on Urban Development Capacity (NPS-UDC);

(b) give effect to the RPS component of the AUP.

46. The NPS-UDC requires certainty over the provision of ‘development infrastructure’, while the RPS refers to transport infrastructure being planned, funded and delivered in tandem with development. However, neither the NPS-UDC or RPS requires that this infrastructure be funded by the Council.

47. Moreover, the certainty required by the NPS-UDC and RPS over the provision of infrastructure applies at the point that the re-zonings enabling the capacity are made operative. In this context, and at this stage in the process, there are options for the funding gap to be closed prior to the private plan change becoming operative and development occurring.

48. Taking into account the nature and extent of the funding gap between what has been identified by the NZ Upgrade Programme and what may be provided by development, while noting the options to address the funding gap and the regional land use benefits of the private plan change request, on balance it is considered that the private plan change request will not automatically make the AUP inconsistent with Part 5 of the RMA.

49. It is therefore recommended that the private plan change request by Kiwi Property not be rejected on this ground.

Has the plan to which the request relates been operative for less than two years?

50. The plan provisions of the AUP relevant to the request were made operative on 15 November 2016. The provisions have therefore been operative for more than two years.

51. The Council cannot reject the private plan change request by Kiwi Property on this ground.

Conclusion: Clause 25(4)

52. The analysis in the overview report (and summarised above) has identified that uncertainty over funding is a significant issue, but may be resolvable. The requestor has identified two methods of addressing the funding gap – a funding agreement, and transport threshold provisions.

53. The request states that precinct-based mechanisms are included within the private plan change to ensure some transport infrastructure is upgraded, and that there is the potential for this mechanism to be extended and enhanced through the submission process to address the unfunded transport projects. However, this option depends on the viability and workability of those mechanisms, and at present I have significant concerns about those. If the private plan change request is accepted, these issues will need careful consideration at the substantive stage. It remains possible that the private plan change will not be approved due to the uncertainties around mitigation of transport effects.

54. Alternatively (or in addition) there is signaling from the requestor that they would not seek a hearing of the private plan change until agreements are reached on funding. For example, the section 32 report for the private plan change states that “Kiwi Property intends to work collaboratively with others to develop an Infrastructure Funding Agreement or similar mechanism prior to a Council Hearing on the Plan Change, which would now focus on the local upgrades necessary to enable development. This will tie in with the Drury Transport Investment Project led by Council and Central Government that is investigating options for funding these local transport network projects”.

55. A funding agreement is the preferable method to address the funding issues, rather than precinct-based provisions. If no funding agreement was reached prior to a hearing, then a Council submission on the private plan change could seek that it is declined .

56. In the case of the Kiwi Property request, the NZ Upgrade Programme and SGA work has considerably advanced the planning of necessary transport infrastructure. It is a reasonable assumption that the government will deliver the NZ Upgrade Programme works. Furthermore, the land use pattern is largely in accordance with the Drury-Opāheke Structure Plan.

57. It is not considered that there are sufficient reasons to reject the plan change request with regard to these matters. The infrastructure funding issues are of more than minor significance but potentially resolvable. Acceptance of the plan change request ahead of an agreed funding approach leaves open a risk that funding uncertainties will not be resolved before development occurs (assuming the private plan change is approved), with the potential for Council to have to bring forward expenditure from other projects or areas, and/or sub optimal outcomes in the Drury area, both to the detriment of wider growth management outcomes. Nevertheless, possible options to address funding shortfalls exist.

58. As noted in the Overview report, there is no half-way house between acceptance or rejection. Furthermore, if the grounds to reject are not clear cut, then case law indicates that the private plan change request should not be rejected, with the substance of the plan change request tested through the submission and hearing process. In view of the issues involved in the provision of necessary infrastructure (which both support and weaken a decision to not reject the private plan change), it is recommended that the private plan change request not be rejected, with the merits of the plan change request tested through the submission and hearing process.

Option 4 - Accept the private plan change request, in whole or in part

59. Council can decide to accept the private plan change request in whole, or in part. If accepted, the plan change does not have legal effect until it is made operative. It is considered that the private plan change request should be accepted in whole and that there is no reason to accept (or reject) only parts of the request.

60. If the private plan change request is accepted, the matters raised in the above analysis can be considered on their merits, together with any submissions received, during a public participatory planning process.

Overall conclusion: options assessment

61. This report has assessed the private plan change request against the options available and the relevant matters. These include clause 25 Schedule 1 matters, having particular regard to the section 32 evaluation, and case law^{^[11]}that provides guidance on the statutory criteria for rejection of a private plan change request.

62. While a ground for rejection may exist (in that the private plan change may not accord with sound resource management practice), the Council is not required to reject the private plan change request. As noted in case law, where there is doubt as to whether the threshold has been reached, the cautious approach would suggest that the matter go through to the public and participatory process envisaged by a notified private plan change, and the private plan change can be subject to a detailed merits-based assessment.

63. Having undertaken a coarse scale merits assessment of the private plan change request, and having taken the purpose and principles of the RMA into account, it is recommend that the Committee accepts the private plan change request by Kiwi Income Property included as Attachment C, D and E to the agenda report for the following reasons:

a) the grounds to reject a private plan change request under clause 25(4) are limited. The following grounds to reject are not considered to be met by this private plan change request:

i) the request is not frivolous or vexatious

ii) the substance of the request has not been considered or given effect to or rejected by the Council or the Environment Court within the last two years

iii) the provisions of the Auckland Unitary Plan subject to the private plan change request have been operative for at least two years

iv) the private plan change request could give effect to the Regional Policy Statement objectives and policies related to infrastructure provision and transport integration, as required by Part 5, provided a funding mechanism is agreed.

b) the coarse-grain assessment of the request indicates that the private plan change may not be in accordance with sound resource management practice related to the uncertainty over infrastructure provision. Taking into account relevant caselaw, it is reasonable and appropriate for the Council not to reject the private plan change request on this ground. This is because there are a number of methods that may be able to be used to close the funding gap, the merits of which will need to be tested through the private plan change submission and hearings process

c) accepting the private plan change request will enable a range of matters relating to infrastructure provision and management of the natural environment to be considered on their merits, during a public participatory planning process

d) it is not appropriate to adopt the private plan change

e) it is not appropriate to deal with the private plan change as if it was a resource consent application because of the scale of the project.

Tauākī whakaaweawe āhuarangi

Climate impact statement

64. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

65. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe

Local impacts and local board views

66. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Tauākī whakaaweawe Māori

Māori impact statement

67. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā ritenga ā-pūtea

Financial implications

68. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

69. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā koringa ā-muri

Next steps

70. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Clause 25 Schedule 1, Resource Management Act 1991	55
b ⇩	Analysis of Alternative Staging	57
c ⇩	Precinct Plans	65
d ⇩	Precinct Provisions	69
e ⇩	Section 32 Assessment Report	89

Ngā kaihaina

Signatories

Author

David Mead – Director, Hill Young Cooper

Authorisers

John Duguid - General Manager - Plans and Places

Megan Tyler - Chief of Strategy

Planning Committee

02 July 2020

PDF Creator

Planning Committee

02 July 2020

Auckland Unitary Plan - Private Plan Change Request : Oyster Capital (Drury East)

File No.: CP2020/07987

Te take mō te pūrongo

Purpose of the report

2. This report should be read in conjunction with the Auckland Unitary Plan - Drury East Private Plan Change Requests - Overview report on the agenda. The Oyster private plan change request is one of three plan change requests in the Drury East area that were lodged concurrently.

Whakarāpopototanga matua

Executive summary

3. A private plan change request to the AUP was lodged by Oyster on Tuesday 22 December 2019 that seeks to rezone 49 hectares of land in the Drury East area from Future Urban to Residential: Terrace Housing and Apartment Building zone in the AUP. See Figure 1 for the proposed zoning pattern.

4. The Council must decide how the private plan change request is to be processed. Under the clause 25 of Schedule 1 of the RMA the Council must either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

Ngā tūtohunga

Recommendation/s

That the Planning Committee:

a) accepts the private plan change request by Oyster Capital included as Attachments C, D and E to the agenda report for the following reasons:

i) the grounds to reject a private plan change request under clause 25(4) are limited. The following grounds to reject are not considered to be met by the private plan change request:

A) the request is not frivolous or vexatious

B) the substance of the request has not been considered or given effect to or rejected by the Council or the Environment Court within the last two years

C) the provisions of the Auckland Unitary Plan subject to the private plan change request have been operative for at least two years

ii) the coarse-grain assessment of the request indicates that the private plan change may not be in accordance with sound resource management practice due to the uncertainty over infrastructure provision. If a reject ground is present, council does not have to reject the request, but may do so. Taking into account relevant caselaw, it is reasonable and appropriate for the Council not to reject the private plan change request on this ground. This is because there are a number of methods that may be able to be used to close the funding gap, the merits of which will need to be tested through the private plan change submission and hearings process

iv) it is not appropriate to adopt the private plan change request

v) it is not appropriate to deal with the private plan change as if it was a resource consent application because of the scale of the project

Horopaki

Context

6. A private plan change request to the AUP has been lodged by Oyster Capital (see Attachment C, D and E) that would rezone 48.9 hectares of land in the Drury East area from Future Urban to Residential Terrace Housing and Apartment Building (THAB) zone in the AUP, as follows:

· an approximately 11 ha THAB zoning adjoining Waihoehoe Road closest to the Drury Centre and future public transport.

· the balance of the site is to also have a THAB zoning, subject to amended coverage controls (for stormwater purposes).

7. Open space networks are intended to be developed. The northern portion of the site is covered by a floodplain and the requestor has proposed that this area would not be developed.

Figure 1: Proposed zoning pattern

Site and surrounding area

8. The land subject to the private plan change request is located in Drury East on the southern edge of the Auckland metropolitan area. The private plan change area is bounded by Waihoehoe Road to the south, North Auckland Line Railway Network to the west, Waihoihoi stream to the north-east and farmland to the north and east. All of the land is currently zoned Future Urban in the AUP.

9. The overall topography of the private plan change area is relatively flat with a gentle cross fall from Waihoehoe Road towards the northern boundary. There are modified watercourses that traverse the site and a short section of the main stem of Waihoihoi Stream drains along the north-eastern boundary of the site. Vegetation within the site is characterised by pasture used to graze sheep and cattle. There are some areas of existing native vegetation found within the site, although these are generally limited given the predominant farming use. Riparian vegetation along the watercourses is dominated by exotic trees and shrubs.

Tātaritanga me ngā tohutohu

Analysis and advice

Statutory context: Resource Management Act 1991

10. Any person may request a change to a district plan^{^[12]}. The procedure for a private plan change request is set out in Part 2 of Schedule 1 of the RMA. The standard process the Council follows as a plan-maker is adapted,^{^[13]} and procedural steps added^{^[14]} including the opportunity to request information.

11. The Council must decide under clause 25 which is the most appropriate processing option for each private plan change request it receives. The clause 25 decision is the subject of this report and clause 25 is set out in full in Attachment A to the overview report.

12. In summary, when considering a private plan change request the Council must either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

13. The following sections address options A and D first, before addressing options B and C.

Option A – Adopt the request, or part of the request, as if it were a proposed plan change made by the council itself

14. If the Council adopted the request, or part of the request, it would then process the request as though it were a council-initiated plan change. The Council would not be able to significantly modify the plan changes if it adopted the request (as that would mean that the plan change Council advanced was no longer the plan change which it adopted). Adoption of the plan change would also likely constrain the Council’s ability to lodge substantive submissions.

15. The requestor has not sought that the Council adopt the request.

16. The private plan change request involves issues of regional growth that will, over time, deliver regional benefits but Council does not need to adopt the private plan change to ensure these outcomes. The private plan change request does not seek to protect natural resources that are at risk from development. Neither does the request address a ‘gap’ in the AUP’s planning provisions.

17. It is therefore recommended that the private plan change request by Oyster not be adopted.

Option D – Decide to deal with the request as if it were an application for a resource consent

18. The Council may decide to deal with the request as if it were an application for a resource consent and the provisions of Part 6 of the RMA would then apply accordingly. The private plan change process is considered to be the most appropriate process because of the scale and significance of the development proposed.

19. It is therefore recommended that the private plan change request by Oyster not be dealt with as if it were an application for resource consent.

Option C – Reject the request, in whole or in part

20. The Council can only decide to reject a private plan change request if one (or more) of the grounds set out in Clause 25(4) are present. There is a two-step process to decision-making under Clause 25(4). First the existence of one or more grounds to reject the request (as set out in Clause 25(4)) must be established. Then the Council must decide whether to reject the request on those grounds.

21. The grounds for rejection under clause 25(4) are as follows:

a) the request or part of the request is frivolous or vexatious; or

b) within the last two years, the substance of the request or part of the request;

i. has been considered, and given effect to, or rejected by, the local authority or the Environment Court; or

ii. has been given effect to by regulations made under section 360A; or

c) the request or part of the request is not in accordance with sound resource management practice; or

d) the request or part of the request would make the policy statement or plan inconsistent with Part 5; or

e) in the case of a proposed change to a policy statement or plan, the policy statement or plan has been operative for less than two years.

22. In accordance with the two-step process, the following section considers whether one or more grounds to reject exist, and whether the Council should exercise its discretion to reject the request, in whole or in part, if a ground does exist.

Is the request frivolous or vexatious?

23. The private plan change request is not considered frivolous or vexatious. The land subject to the private plan change request is zoned for future urban development, and the private plan change is supported by a range of assessments that indicate urban development is feasible and achievable. The purpose of and reasons for the private plan change request are considered by staff and Council experts to be aligned in principle with the strategic directions of the relevant planning documents, albeit there is a question over matters relating to alignment with the Future Urban Land Supply Strategy, timing and funding of infrastructure, environmental safeguards and land use mix.

24. It is not considered that the private plan change request by Oyster can be rejected on this ground.

Has the substance of the request been considered and been given effect to, or rejected by the council within the last two years?

25. As noted in the overview report, this clause requires a focus on the substance of the private plan change request, that is the broader matters raised by the request.

26. The consideration of whether the matter has been previously been given effect to, or rejected, includes reference to Structure Plans and other planning documents under the Local Government Act 2002. The overview report sets out the context and background to regional and local planning and funding in the Drury area.

27. The private plan change request involves land that is currently zoned Future Urban under the AUP and which is part of the Council’s Drury-Opāheke Structure Plan. The important issue of ‘substance’ is the sequencing and timing of growth relative to other growth areas and infrastructure provision.

28. The timing for urbanisation of the Drury East area set out in the Council’s FULSS is 2028 to 2038.

29. The recently adopted Drury-Opāheke Structure Plan does not make any specific comment on timing. The Structure Plan states that work is ongoing to develop a staging plan. The FULSS sequencing applies in the interim.

30. Due to the FULSS identifying that the Drury East area will be rezoned in the second decade of the strategy, and the Drury-Opāheke Structure Plan making no amendments to timing, it may be taken that the Council has considered urban development of the Drury East area in the last two years, but not sought to progress development in the area. However, the FULSS strategy and the Structure Plan do not categorically rule out Drury East from being developed in the near future.

31. It is therefore recommended that the private plan change request by Oyster not be rejected on this ground.

Is the request in accordance with sound resource management?

32. As noted in the overview report, the consideration of this ground involves a coarse assessment of the merits of the private plan change request – ‘at a threshold level’ – taking into account the RMA’s purpose and principles – noting that the full merits assessment will be undertaken if the request is accepted.

33. The overview report discusses the issues involved in the test of what is sound resource management.

34. In terms of land use, the private plan change request is generally aligned with the Drury-Opāheke Structure Plan. In making provision for housing, key natural environment features present (stream networks) are proposed to be retained and enhanced where possible by the plan change request. Area specific stormwater management measures will be needed. Downstream flood hazard risks can be managed. On a coarse assessment, there are no significant heritage resources that will be put at risk. While details around management of natural resources needs to be resolved, there are no fundamental risks to natural resources that would suggest that urbanisation should not proceed.

35. The main issue relates to co-ordination of development with infrastructure provision. The private plan change request proposes a new neighbourhood and it is important that this neighbourhood develops in a way that supports, from the start, the use of public transport, walking and cycling. To this end, the NZ Upgrade Programme commits government funding to the Drury Central train station, Mill Road extension and other network level infrastructure.

36. As set out in the overview report, there is uncertainty over funding of all key transport projects, in particular investment in bus priority measures and walking and cycling facilities along Waihoehoe Road, the delivery of the Opāheke North-South route, walking and cycling connection to other areas, provision for transit on Great South Road and additional east-west connections across the motorway corridor. The private plan change request appears to assume that the Council can readily adjust its priorities in response to development demands and fund this necessary infrastructure. This is not the case.

37. The private plan change request by Oyster could be rejected on this ground if it was unlikely that the funding issues could be satisfactorily resolved before the private plan change is made operative (assuming that the private plan change request is accepted). However, at this stage in the process, there are a number of options that can be pursued to resolve funding, including the private plan change requestor funding a larger share of the required infrastructure, and/or an area-specific funding scheme being put in place. On that basis, it is premature to form the view at this stage that the private plan change is contrary to sound resource management practice.

38. It is therefore recommended that the private plan change request by Oyster not be rejected on this ground.

Would the request or part of the request make the policy statement or plan inconsistent with Part 5 of the RMA?

39. The two main matters to consider are whether the outcomes sought by the request would:

a) give effect to or be in conflict with the National Policy Statement on Urban Development Capacity (NPS-UDC);

b) give effect to the RPS component of the AUP.

40. The NPS-UDC requires certainty over the provision of ‘development infrastructure’, while the RPS refers to transport infrastructure being planned, funded and delivered in tandem with development. However, neither the NPS-UDC or RPS requires that this infrastructure be funded by the Council.

41. Moreover, the certainty required by the NPS-UDC and RPS over the provision of infrastructure applies at the point that the re-zonings enabling the capacity are made operative. In this context, and at this stage in the process, there are options for the funding gap to be closed prior to the private plan change becoming operative and development occurring.

42. Oyster is the smaller of the three plan change areas in Drury East, and as such may have a lesser impact on the strategic issues associated with infrastructure funding. Equally, the housing capacity to be delivered sits alongside a range of other housing options in the wider area.

43. The housing development planned for the area is dependent upon safe and direct access being provided to the Drury Central train station. Ideally this access will be provided as part of the adjacent Kiwi Property private plan change request. Should the Kiwi Property plan change not proceed, then there is a question mark as to whether the private plan change request could ‘stand alone”.

44. Taking into account the nature and extent of the funding gap between what has been identified by the NZ Upgrade Programme and what may be provided by development, while noting the options to address the funding gap and the regional land use benefits of the private plan change request, on balance it is considered that the private plan change request will not automatically make the AUP inconsistent with Part 5 of the RMA.

45. It is therefore recommended that the private plan change request by Oyster not be rejected on this ground.

Has the plan to which the request relates been operative for less than two years?

46. The plan provisions of the AUP relevant to the request were made operative on 15 November 2016. The provisions have therefore been operative for more than two years.

47. The Council cannot reject the private plan change request by Oyster on this ground.

Conclusion: Clause 25(4)

48. The analysis in the overview report (and summarised above) has identified that uncertainty over funding is a significant issue, but may be resolvable. The requestor has identified two methods of addressing the funding gap – a funding agreement, and transport threshold provisions.

49. The request states that precinct-based mechanisms are included within the private plan change to ensure some transport infrastructure is upgraded, and that there is the potential for this mechanism to be extended and enhanced through the submission process to address the unfunded transport projects. However, this option depends on the viability and workability of those mechanisms, and at present I have significant concerns about those. If the private plan change request is accepted, these issues will need careful consideration at the substantive stage. It remains possible that the private plan change will not be approved due to the uncertainties around mitigation of transport effects.

50. Alternatively (or in addition) there is signaling from the Drury East private plan change applicants that they would not seek a hearing of the private plan change until agreements are reached on funding. For example, the section 32 report for the Kiwi Income Property private plan change request states that “Kiwi Income Property intends to work collaboratively with others to develop an Infrastructure Funding Agreement or similar mechanism prior to a Council Hearing on the Plan Change, which would now focus on the local upgrades necessary to enable development. This will tie in with the Drury Transport Investment Project led by Council and Central Government that is investigating options for funding these local transport network projects”.

51. A funding agreement is the preferable method to address the funding issues, rather than precinct-based provisions.

52. In the case of the Oyster request, the NZ Upgrade Programme and SGA work has considerably advanced the planning of necessary transport infrastructure. It is a reasonable assumption that the government will deliver the NZ Upgrade Programme works. Furthermore, the land use pattern is largely in accordance with the Drury-Opāheke Structure Plan. However, uncertainty exists over other infrastructure.

53. It is not considered that there are sufficient reasons to reject the private plan change request with regard to these matters. The infrastructure funding issues are of more than minor significance but potentially resolvable. Acceptance of the private plan change request ahead of an agreed funding approach leaves open a risk that funding uncertainties will not be resolved before development occurs (assuming the private plan change is approved), with the potential for Council to have to bring forward expenditure from other projects or areas, and/or sub optimal outcomes in the Drury area, both to the detriment of wider growth management outcomes. Nevertheless, possible options to address funding shortfalls exist.

54. As noted in the overview report, there is no half-way house between acceptance or rejection. Furthermore, if the grounds to reject are not clear cut, then case law indicates that the private plan change request should not be rejected, with the substance of the private plan change request tested through the submission and hearing process. In view of the issues involved in the provision of necessary infrastructure (which both support and weaken a decision to not reject the private plan change), It is recommendated is that the private plan change request not be rejected, with the merits of the private plan change request tested through the submission and hearing process.

Option 4 - Accept the private plan change request, in whole or in part

55. Council can decide to accept the private plan change request in whole, or in part. If accepted, the plan change does not have legal effect until it is made operative. It is considered that the private plan change request should be accepted in whole and that there is no reason to accept (or reject) only parts of the request.

56. If the private plan change request is accepted, the matters raised in the above analysis can be considered on their merits, together with any submissions received, during a public participatory planning process.

Overall conclusion: options assessment

57. This report has assessed the private plan change request against the options available and the relevant matters. These include clause 25 Schedule 1 matters, having particular regard to the section 32 evaluation, and case law^{^[15]}that provides guidance on the statutory criteria for rejection of a private plan change request.

58. While a ground for rejection may exist (in that the private plan change may not accord with sound resource management practice), the Council is not required to reject the private plan change request. As noted in case law, where there is doubt as to whether the threshold has been reached, the cautious approach would suggest that the matter go through to the public and participatory process envisaged by a notified private plan change, and the private plan change can be subject to a detailed merits-based assessment.

59. Having undertaken a coarse scale merits assessment of the private plan change request, and having taken the purpose and principles of the RMA into account, it is recommend that the Committee accepts the private plan change request by Oyster Capital included as Attachment C, D and E to the agenda report for the following reasons:

a) the grounds to reject a private plan change request under clause 25(4) are limited. The following grounds to reject are not considered to be met by this private plan change request:

i) the request is not frivolous or vexatious

ii) the substance of the request has not been considered or given effect to or rejected by the Council or the Environment Court within the last two years

iii) the provisions of the Auckland Unitary Plan subject to the private plan change request have been operative for at least two years

d) it is not appropriate to adopt the private plan change

e) it is not appropriate to deal with the private plan change as if it was a resource consent application because of the scale of the project.

Tauākī whakaaweawe āhuarangi

Climate impact statement

60. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

61. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe

Local impacts and local board views

62. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Tauākī whakaaweawe Māori

Māori impact statement

63. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā ritenga ā-pūtea

Financial implications

64. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

65. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā koringa ā-muri

Next steps

66. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Clause 25 Schedule 1, Resource Management Act 1991	241
b ⇩	Analysis of Alternative Staging	243
c ⇩	Planning and S32 report	249
d ⇩	Precinct Plan	337
e ⇩	Precinct Provisions	343

Ngā kaihaina

Signatories

Author

David Mead – Director, Hill Young Cooper

Authorisers

John Duguid - General Manager - Plans and Places

Megan Tyler - Chief of Strategy

Planning Committee

02 July 2020

Auckland Unitary Plan - Private Plan Change Request : Fulton Hogan (Drury East)

File No.: CP2020/07988

Te take mō te pūrongo

Purpose of the report

2. This report should be read in conjunction with the Auckland Unitary Plan - Drury East Private Plan Change Requests - Overview report on the agenda. The Fulton Hogan private plan change request is one of three plan change requests in the Drury East area that were lodged concurrently.

Whakarāpopototanga matua

Executive summary

3. A private plan change request to the AUP was lodged by Fulton Hogan on 22 December 2019 that seeks to rezone 49 hectares of land in the Drury East area from Future Urban to Residential: Terrace Housing and Apartment Building zone. See Figure 1 for the proposed zoning pattern.

4. The Council must decide how the private plan change request is to be processed. Under the clause 25 of Schedule 1 of the RMA the Council must either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

5. The Auckland Unitary Plan - Drury East Private Plan Change Requests - Overview report on the agenda provides a comprehensive discussion of the clause 25 options.The most significant issue raised by the request relates to the funding and provision of transport infrastructure to support development. Sound resource management practice is for infrastructure to be co-ordinated with development, and if necessary to lead and shape development, rather than respond to it.

6. The funding issues are significant but potentially resolvable. If the private plan change request is accepted, it will be publicly notified for submissions. It is considered that the issues and risks associated with the transport funding issues are best addressed through the detailed merits assessment involved in notification of the private plan change request and the submission and hearings process.

Ngā tūtohunga

Recommendation/s

That the Planning Committee:

a) accept the private plan change request by Fulton Hogan Land Development included as Attachments C, D and E to the agenda report for the following reasons:

i) the grounds to reject a private plan change request under clause 25(4) are limited. The following grounds to reject are not considered to be met by this private plan change request:

A) the request is not frivolous or vexatious

B) the substance of the request has not been considered or given effect to or rejected by the Council or the Environment Court within the last two years

C) the provisions of the Auckland Unitary Plan subject to the private plan change request have been operative for at least two years

iv) it is not appropriate to adopt the private plan change request

v) it is not appropriate to deal with the private plan change as if it was a resource consent application because of the scale of the project

Horopaki

Context

7. A private plan change request to the AUP has been lodged by Fulton Hogan (see Appendix A) that would rezone approximately 198 hectares of land in the Drury East area from Future Urban to:

· approximately 22 ha Terrace Housing and Apartment Buildings (THAB) zoning adjoining Waihoehoe Road closest to the Drury Centre and future public transport.

· approximately 65 ha Mixed Housing Urban zoning within the mid-portion of the site.

· approximately 95 ha Mixed Housing Suburban zoning at the southern end of the site, to provide a transition to rural activities and to respond to the greater distance from the Drury Centre and future public transport.

· approximately 2ha Mixed Use area to provide for a local shopping centre.

8. Open space networks are intended to be developed, with a feature of the area being the Fitzgerald Stream that runs through the area subject to the re-zoning.

9. The proposed new neighbourhood to be established by the precinct (and associated re-zonings) is dependent upon access to the proposed Drury Central train station to meet many of the future residents transport needs, as well as the shops and services to be provided by the proposed Kiwi Property development.

Figure 1: Proposed zoning

10. The land subject to the private plan change request is located in Drury East on the southern edge of the Auckland metropolitan area. All of the land is currently zoned Future Urban by the AUP.

11. The overall topography of the area is gently undulating with several low ridgelines. The majority of the plan change area is within the Hingaia stream catchment. A small area straddles the boundary with the Slippery Creek catchment. The Fitzgerald stream traverses the plan change area in a generally north-south direction. There are no natural wetlands remaining within the site, but several ponds have been created to provide water for livestock.

12. Vegetation within the private plan change area is mostly pasture and exotic trees and shrubs planted for shelter, amenity or as part of gardens. The only example of predominantly indigenous vegetation is a small area of forest located near the corner of Waihoehoe Road and Drury Hills Road. This area is approximately 4,300m² (0.43ha) in extent and is surrounded to the north and west by a number of isolated mature pūriri, totara and kahikatea trees in the adjoining paddock. Riparian vegetation where it exists along the watercourses is dominated by exotic trees and shrubs

Tātaritanga me ngā tohutohu

Analysis and advice

Statutory context: Resource Management Act 1991

13. Any person may request a change to a district plan^{^[16]}. The procedure for a private plan change request is set out in Part 2 of Schedule 1 of the RMA. The standard process the Council follows as a plan-maker is adapted,^{^[17]} and procedural steps added^{^[18]} including the opportunity to request information.

14. The Council must decide under clause 25 which is the most appropriate processing option for each private plan change request it receives. The clause 25 decision is the subject of this report and clause 25 is set out in full in Attachment A to the overview report.

15. In summary, when considering a private plan change request the Council must either:

a) adopt the request, or part of the request, as if it were a proposed plan change made by the Council, or

b) accept the private plan change request in whole or in part, or

c) reject the private plan change request in whole or in part, if one (or more) of the limited grounds for rejection is satisfied, or

d) deal with the request as if it were an application for a resource consent, or

e) a combination of options a) to c).

16. The following sections address options A and D first, before addressing options B and C.

Option A – Adopt the request, or part of the request, as if it were a proposed plan change made by the council itself

17. If the Council adopted the request, or part of the request, it would then process the request as though it were a council-initiated plan change. The Council would not be able to significantly modify the plan changes if it adopted the request (as that would mean that the plan change Council advanced was no longer the plan change which it adopted). Adoption of the plan change would also likely constrain the Council’s ability to lodge substantive submissions.

18. The requestor has not sought that the Council adopt the request.

19. The private plan change request involves issues of regional growth that will, over time, deliver regional benefits but Council does not need to adopt the private plan change to ensure these outcomes. The private plan change request does not seek to protect natural resources that are at risk from development. Neither does the request address a ‘gap’ in the AUP’s planning provisions.

20. It is therefore recommended that the private plan change request by Fulton Hogan not be adopted.

Option D – Decide to deal with the request as if it were an application for a resource consent

21. The Council may decide to deal with the request as if it were an application for a resource consent and the provisions of Part 6 of the RMA would then apply accordingly. The private plan change process is considered to be the most appropriate process because of the scale and significance of the development proposed.

22. It is therefore recommended that the private plan change request by Fulton Hogan not be dealt with as if it were an application for resource consent.

Option C – Reject the request, in whole or in part

23. The Council can only decide to reject a private plan change request if one (or more) of the grounds set out in Clause 25(4) are present. There is a two-step process to decision-making under Clause 25(4). First the existence of one or more grounds to reject the request (as set out in Clause 25(4)) must be established. Then the Council must decide whether to reject the request on those grounds.

24. The grounds for rejection under clause 25(4) are as follows:

a) the request or part of the request is frivolous or vexatious; or

b) within the last two years, the substance of the request or part of the request;

i. has been considered, and given effect to, or rejected by, the local authority or the Environment Court; or

ii. has been given effect to by regulations made under section 360A; or

c) the request or part of the request is not in accordance with sound resource management practice; or

d) the request or part of the request would make the policy statement or plan inconsistent with Part 5; or

e) in the case of a proposed change to a policy statement or plan, the policy statement or plan has been operative for less than two years.

25. In accordance with the two-step process, the following section considers whether one or more grounds to reject exist, and whether the Council should exercise its discretion to reject the request, in whole or in part, if a ground does exist.

Is the request frivolous or vexatious?

26. The private plan change request is not considered frivolous or vexatious. The land subject to the private plan change request is zoned for future urban development, and the private plan change is supported by a range of assessments that indicate urban development is feasible and achievable. The purpose of and reasons for the private plan change request are considered by staff and Council experts to be aligned in principle with the strategic directions of the relevant planning documents, albeit there is a question over matters relating to alignment with the Future Urban Land Supply Strategy, timing and funding of infrastructure, environmental safeguards and land use mix.

27. It is not considered that the private plan change request by Fulton Hogan can be rejected on this ground.

Has the substance of the request been considered and been given effect to, or rejected by the council within the last two years?

28. As noted in the overview report, this clause requires a focus on the substance of the private plan change request, that is the broader matters raised by the request.

29. The consideration of whether the matter has been previously been given effect to, or rejected, includes reference to Structure Plans and other planning documents under the Local Government Act 2002. The overview report sets out the context and background to regional and local planning and funding in the Drury area.

30. The private plan change request involves land that is currently zoned Future Urban under the AUP and which is part of the Council’s Drury-Opāheke Structure Plan. The important issue of ‘substance’ is the sequencing and timing of growth relative to other growth areas and infrastructure provision.

31. The timing for urbanisation of the Drury East area set out in the Council’s FULSS is 2028 to 2038.

32. The recently adopted Drury-Opāheke Structure Plan does not make any specific comment on timing. The Structure Plan states that work is ongoing to develop a staging plan. The FULSS sequencing applies in the interim.

33. Due to the FULSS identifying that the Drury East area will be rezoned in the second decade of the strategy, and the Drury-Opāheke Structure Plan making no amendments to timing, it may be taken that the Council has considered urban development of the Drury East area in the last two years, but not sought to progress development in the area. However, the FULSS strategy and the Structure Plan do not categorically rule out Drury East from being developed in the near future.

34. It is therefore recommended that the private plan change request by Fulton Hogan not be rejected on this ground.

Is the request in accordance with sound resource management?

35. As noted in the overview report, the consideration of this ground involves a coarse assessment of the merits of the private plan change request – ‘at a threshold level’ – taking into account the RMA’s purpose and principles – noting that the full merits assessment will be undertaken if the request is accepted.

36. The overview report discusses the issues involved in the test of what is sound resource management.

37. In terms of land use, the private plan change request is generally aligned with the Drury-Opāheke Structure Plan.

38. In making provision for housing, key natural environment features present (stream networks) are proposed to be retained and enhanced where possible by the plan change request. Area specific stormwater management measures will be needed. Downstream flood hazard risks can be managed. On a coarse assessment of the merits of the private plan change, there are no significant heritage resources that will be put at risk. While details around management of natural resources needs to be resolved, there are no fundamental risks to natural resources that would suggest that urbanisation should not proceed.

39. The main issue relates to co-ordination of development with infrastructure provision. The private plan change request proposes a large new neighbourhood in a greenfields area that will offer a range of living environments. The SGA work identifies the importance for this neighbourhood to develop in a way that supports, from the start, the use of public transport, walking and cycling. In support of this objective, the NZ Upgrade Programme commits government funding to the Drury Central train station, electrification of the rail line, Mill Road extension and other network level infrastructure.

40. As set out in the Overview report there is uncertainty over funding of other key transport projects, in particular investment in walking and cycling infrastructure and bus priority measures along Waihoehoe Road, and the delivery of the other projects (such as the Opāheke North-South route, Frequent Transit route on Great South Road and the Pitt Street extension) that will benefit future residents. The plan change request appears to assume that the Council can readily adjust its priorities in response to development demands and fund the necessary infrastructure. This is not the case.

41. The housing development planned for the area is dependent upon safe and direct access being provided to the Drury Central train station. Ideally this access will be provided as part of the adjacent Kiwi Property plan change request. Should the Kiwi Property plan change not proceed, then there is a question mark as to whether the plan change request could ‘stand alone”.

42. The private plan change request by Fulton Hogan could be rejected on this ground if it was unlikely that the funding issues could be satisfactorily resolved before the private plan change is made operative (assuming that the private plan change request is accepted). However, at this stage in the process, there are a number of options that can be pursued to resolve funding, including the private plan change requestor funding a larger share of the required infrastructure, and/or an area-specific funding scheme being put in place. On that basis, it is premature to form the view at this stage that the private plan change is contrary to sound resource management practice.

43. It is therefore recommended that the private plan change request by Fulton Hogan not be rejected on this ground.

Would the request or part of the request make the policy statement or plan inconsistent with Part 5 of the RMA?

44. The two main matters to consider are whether the outcomes sought by the request would:

a) give effect to or be in conflict with the National Policy Statement on Urban Development Capacity (NPS-UDC);

b) give effect to the RPS component of the AUP.

45. The NPS-UDC requires certainty over the provision of ‘development infrastructure’, while the RPS refers to transport infrastructure being planned, funded and delivered in tandem with development. However, neither the NPS-UDC or RPS requires that this infrastructure be funded by the Council.

46. Moreover, the certainty required by the NPS-UDC and RPS over the provision of infrastructure applies at the point that the re-zonings enabling the capacity are made operative. In this context, and at this stage in the process, there are options for the funding gap to be closed prior to the private plan change becoming operative and development occurring.

47. Taking into account the nature and extent of the funding gap between what has been identified by the NZ Upgrade Programme and what may be provided by development, while noting the options to address the funding gap and the regional land use benefits of the plan change request, on balance I consider that the private plan change request will not automatically make the AUP inconsistent with Part 5 of the RMA.

48. It is therefore recommended that the private plan change request by Fulton Hogan not be rejected on this ground.

Has the plan to which the request relates been operative for less than two years?

49. The plan provisions of the AUP relevant to the request were made operative on 15 November 2016. The provisions have therefore been operative for more than two years.

50. The Council cannot reject the private plan change request by Fulton Hogan on this ground.

Conclusion: Clause 25(4)

51. The analysis in the overview report (and summarised above) has identified that uncertainty over funding is a significant issue, but may be resolvable. The requestor has identified two methods of addressing the funding gap – a funding agreement, and transport threshold provisions.

52. The request states that precinct-based mechanisms are included within the private plan change to ensure some transport infrastructure is upgraded, and that there is the potential for this mechanism to be extended and enhanced through the submission process to address the unfunded transport projects. However, this option depends on the viability and workability of those mechanisms, and at present I have significant concerns about those. If the private plan change request is accepted, these issues will need careful consideration at the substantive stage. It remains possible that the private plan change will not be approved due to the uncertainties around mitigation of transport effects.

53. Alternatively (or in addition) there is signaling from the Drury East private plan change applicants that they would not seek a hearing of the private plan change until agreements are reached on funding. For example, the section 32 report for the Kiwi Property private plan change states that “Kiwi Property intends to work collaboratively with others to develop an Infrastructure Funding Agreement or similar mechanism prior to a Council Hearing on the Plan Change, which would now focus on the local upgrades necessary to enable development. This will tie in with the Drury Transport Investment Project led by Council and Central Government that is investigating options for funding these local transport network projects”.

54. A funding agreement is the preferable method to address the funding issues, rather than precinct-based provisions. If no funding agreement was reached prior to a hearing, then a Council submission on the private plan change could seek that it is declined.

55. In the case of the Fulton Hogan request, the NZ Upgrade Programme and SGA work has considerably advanced the planning of necessary transport infrastructure. It is a reasonable assumption that the government will deliver the NZ Upgrade Programme works. Furthermore, the land use pattern is largely in accordance with the Drury-Opāheke Structure Plan. However, uncertainty exists over other infrastructure.

56. It is not considered that there are sufficient reasons to reject the private plan change request with regard to these matters. The infrastructure funding issues are of more than minor significance but potentially resolvable. Acceptance of the private plan change request ahead of an agreed funding approach leaves open a risk that funding uncertainties will not be resolved before development occurs (assuming the private plan change is approved), with the potential for Council to have to bring forward expenditure from other projects or areas, and/or sub optimal outcomes in the Drury area, both to the detriment of wider growth management outcomes. Nevertheless, possible options to address funding shortfalls exist.

57. As noted in the overview report, there is no half-way house between acceptance or rejection. Furthermore, if the grounds to reject are not clear cut, then case law indicates that the private plan change request should not be rejected, with the substance of the request tested through the submission and hearing process. In view of the issues involved in the provision of necessary infrastructure (which both support and weaken a decision to not reject the plan change), it is recommendation is that the private plan change request not be rejected, with the merits of the plan change request tested through the submission and hearing process.

Option 4 - Accept the private plan change request, in whole or in part

58. Council can decide to accept the private plan change request in whole, or in part. If accepted, the plan change does not have legal effect until it is made operative. It is considered that the private plan change request should be accepted in whole and that there is no reason to accept (or reject) only parts of the request.

59. If the private plan change request is accepted, the matters raised in the above analysis can be considered on their merits, together with any submissions received, during a public participatory planning process.

Overall conclusion: options assessment

60. This report has assessed the private plan change request against the options available and the relevant matters. These include clause 25 Schedule 1 matters, having particular regard to the section 32 evaluation, and case law^{^[19]}that provides guidance on the statutory criteria for rejection of a private plan change request.

61. While a ground for rejection may exist (in that the private plan change may not accord with sound resource management practice), the Council is not required to reject the private plan change request. As noted in case law, where there is doubt as to whether the threshold has been reached, the cautious approach would suggest that the matter go through to the public and participatory process envisaged by a notified private plan change, and the private plan change can be subject to a detailed merits-based assessment.

62. Having undertaken a coarse scale merits assessment of the private plan change request, and having taken the purpose and principles of the RMA into account, it is recommend that the Committee accepts the private plan change request by Fulton Hogan Land Development included as Attachments C, D and E to the agenda report for the following reasons:

a) the grounds to reject a private plan change request under clause 25(4) are limited. The following grounds to reject are not considered to be met by this private plan change request:

i) the request is not frivolous or vexatious

ii) the substance of the request has not been considered or given effect to or rejected by the Council or the Environment Court within the last two years

iii) the provisions of the Auckland Unitary Plan subject to the private plan change request have been operative for at least two years

d) it is not appropriate to adopt the private plan change

e) it is not appropriate to deal with the private plan change as if it was a resource consent application because of the scale of the project.

Tauākī whakaaweawe āhuarangi

Climate impact statement

63. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

64. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā whakaaweawe ā-rohe me ngā tirohanga a te poari ā-rohe

Local impacts and local board views

65. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Tauākī whakaaweawe Māori

Māori impact statement

66. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā ritenga ā-pūtea

Financial implications

67. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

68. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā koringa ā-muri

Next steps

69. Please refer to the Auckland Unitary Plan – Drury East Private Plan Changes - Overview report.

Ngā tāpirihanga

Attachments

No.	Title	Page
a ⇩	Clause 25 Schedule 1, Resource Management Act 1991	365
b ⇩	Analysis of Alternative Staging	367
c ⇩	Precinct Plan	373
d ⇩	Precinct Provisions	379
e ⇩	Section 32 Assessment Report	391

Ngā kaihaina

Signatories

Author

David Mead – Director, Hill Young Cooper

Authorisers

John Duguid - General Manager - Plans and Places

Megan Tyler - Chief of Strategy

No.	Title	Page
a ⇨	Auckland Monthly Housing Update June 2020 (Under Separate Cover)
b ⇨	Supporting Growth Programme – Update on north transport projects (Under Separate Cover)
c ⇨	Auckland Unitary Plan – Judicial Review proceeding – Franco Belgiorno-Nettis (Under Separate Cover)
d ⇨	Access for Everyone pilot to begin in Queen Street (Under Separate Cover)
e ⇨	Auckland Council’s submission on the COVID-19 Recovery (Fast-track consenting) Bill (Under Separate Cover)
f ⇨	Auckland Plan update and Annual Monitoring Report (Under Separate Cover)
g ⇨	Auckland Council’s final submission on the National Environmental Standards for Air Quality (Under Separate Cover)

[3] Clause 21, Schedule 1, Resource Management Act 1991.

[4] Part 1 Schedule 1 applies, as modified by clause 29 Part 2 Schedule 1, Resource Management Act 1991.

[5] Part 2 Schedule 1 Resource Management Act 1991.

[6] Clause 25, Schedule 1, Resource Management Act 1991.

[7] Clauses 3, 4A Schedule 1, Resource Management Act 1991.

[8] Clause 21, Schedule 1, Resource Management Act 1991.

[9] Part 1 Schedule 1 applies, as modified by clause 29 Part 2 Schedule 1, Resource Management Act 1991.

[10] Part 2 Schedule 1 Resource Management Act 1991.

[11] Malory Corporation Limited v Rodney District Council [2010] NZRMA 392 (HC)

[12] Clause 21, Schedule 1, Resource Management Act 1991.

[13] Part 1 Schedule 1 applies, as modified by clause 29 Part 2 Schedule 1, Resource Management Act 1991.

[14] Part 2 Schedule 1 Resource Management Act 1991.

[15] Malory Corporation Limited v Rodney District Council [2010] NZRMA 392 (HC)

[16] Clause 21, Schedule 1, Resource Management Act 1991.

[17] Part 1 Schedule 1 applies, as modified by clause 29 Part 2 Schedule 1, Resource Management Act 1991.

[18] Part 2 Schedule 1 Resource Management Act 1991.

[19] Malory Corporation Limited v Rodney District Council [2010] NZRMA 392 (HC)

Chairperson	Cr Chris Darby
Deputy Chairperson	Cr Josephine Bartley
Members	Cr Dr Cathy Casey	Cr Richard Hills
	Deputy Mayor Cr Bill Cashmore	Cr Tracy Mulholland
	Cr Fa’anana Efeso Collins	Cr Daniel Newman, JP
	Cr Pippa Coom	IMSB Member Liane Ngamane
	Cr Linda Cooper, JP	Cr Greg Sayers
	Cr Angela Dalton	Cr Desley Simpson, JP
	Cr Alf Filipaina	Cr Sharon Stewart, QSM
	Cr Christine Fletcher, QSO	Cr Wayne Walker
	Mayor Hon Phil Goff, CNZM, JP	Cr John Watson
	IMSB Member Hon Tau Henare	Cr Paul Young
	Cr Shane Henderson

Author	Duncan Glasgow - Kaitohutohu Mana Whakahaere / Governance Advisor
Authoriser	Megan Tyler - Chief of Strategy