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

 

Date:

Time:

Meeting Room:

Venue:

 

Tuesday, 30 November 2021

10.00am

This meeting will be held remotely and can be
viewed on the Auckland Council website:
https://councillive.aucklandcouncil.govt.nz/

 

 

Kōmiti Whakarite Mahere / Planning Committee

 

OPEN ADDENDUM AGENDA

 

 

 

 

MEMBERSHIP

 

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

Cr Greg Sayers

 

Cr Linda Cooper, JP

Cr Desley Simpson, JP

 

Cr Angela Dalton

Cr Sharon Stewart, QSM

 

Cr Alf Filipaina

Cr Wayne Walker

 

Cr Christine Fletcher, QSO

Cr John Watson

 

Mayor Hon Phil Goff, CNZM, JP

IMSB Member Karen Wilson

 

IMSB Member Hon Tau Henare

Cr Paul Young

 

Cr Shane Henderson

 

 

(Quorum 11 members)

 

 

 

Kalinda Iswar

Kaitohutohu Mana Whakahaere Matua / Senior Governance Advisor

26 November 2021

 

Contact Telephone: 021 723 228

Email: kalinda.iswar@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 


Planning Committee

30 November 2021

 

 

ITEM   TABLE OF CONTENTS            PAGE

10        Auckland Unitary Plan (Operative in Part) - Private Plan Change request: Golding Meadows Developments Ltd and Auckland Trotting Club Inc to rezone land between Station Rd and Golding Rd, Pukekohe              5

 


Planning Committee

30 November 2021

 

 

Auckland Unitary Plan (Operative in Part) - Private Plan Change request: Golding Meadows Developments Ltd and Auckland Trotting Club Inc to rezone land between Station Rd and Golding Rd, Pukekohe

File No.: CP2021/17175

 

  

 

Te take mō te pūrongo

Purpose of the report

1.       To consider a private plan change request under clause 25 of Schedule 1 of the Resource Management Act from Golding Meadow Developments Limited and Auckland Trotting Club Incorporated to rezone approximately 82.66 hectares of land at Pukekohe from Future Urban Zone and Special Purpose - Major Recreation Facility Zone (Franklin Trotting Club Precinct) to a combination of Business – Light Industry Zone, Residential – Mixed Housing Urban Zone and Neighbourhood Centre Zone in the Auckland Unitary Plan Operative in Part.

Whakarāpopototanga matua

Executive summary

2.       This report considers a private plan change request received on 20 April 2021 from Golding Meadow Developments Limited and Auckland Trotting Club Incorporated (the applicants) to rezone approximately 82.66 hectares of land at Pukekohe in the Auckland Unitary Plan Operative in Part (AUP).  The land is currently zoned Future Urban Zone and Special Purpose- Major Recreation Facility Zone (Franklin Trotting Club Precinct). The rezoning would be to a combination of Business – Light Industry Zone, Residential – Mixed Housing Urban Zone and Neighbourhood Centre Zone. Council’s Pukekohe-Paerata Structure Plan (the Structure Plan) was adopted in August 2019.  The plan change request adopts some of the Structure Plan content.

3.       The original plan change request was lodged in June 2021.  A request for further information was then made, with an initial response received in September 2021 and a final response on 3 November 2021.  During that period the Resource Management (Enabling Housing Supply) Amendment Bill was made public.  The Bill has proposed the introduction of new standards – the Medium Density Residential Standards.  In their final further information response the applicants have incorporated the standards, noting that the changes they have made are not significant.  Should the Bill not become law in its current form the applicants have indicated they accept the plan change may need to be amended through the plan change process so that it aligns with the new law.

4.       Although the applicants have proposed provisions for considering effects of development enabled by the plan change on infrastructure (particularly transport), there remain some uncertainties about how infrastructure upgrading would be funded.  Capital works in this area are not included in the recently amended Long Term Plan. 

5.       Despite this, it is recommended that the private plan change request is accepted for processing under clause 25(2)(b) and publicly notified for submissions on the basis that the request does not meet the criteria for rejection under clause 25(4) of Schedule 1 to the RMA, having regard to relevant caselaw, and that it is more appropriate to accept the request than to adopt it or treat it as a resource consent.


 

6.       It is noted that the Planning Committee has previously resolved that the council may make a submission in relation to private plan change requests where infrastructure funding matters are unresolved at the time the plan change is accepted for processing. Auckland Transport has indicated that it will be making a submission on the plan change.

Ngā tūtohunga

Recommendation/s

That the Planning Committee:

a)      accept the private plan change request by Golding Meadow Developments Limited and Auckland Trotting Club Incorporated for land at Pukekohe situated between Station Road and Golding Road, as detailed in Attachments A and B to the agenda report, pursuant to clause 25(2)(b) of Schedule 1 to the Resource Management Act for the following reasons:

i)       accepting the private plan change request will enable a range of matters to be considered on their merits during a public participatory process.

ii)       it is inappropriate to adopt the private plan change. The private plan change proposal is out of sequence with the timing outlined in the Auckland Plan and the Pukekohe-Paerata Structure Plan and there is currently no provision for funding the full costs of infrastructure required.

iii)      the grounds to reject a private plan change request under clause 25(4) are limited and, having regard to relevant case law:

A)      the request is not frivolous. The applicant has provided supporting technical information and the private plan change has a resource management purpose.

B)      the request is not vexatious, and the applicant is not acting in bad faith by lodging the private plan change request.

C)      the substance of the request has not been considered within the last two years.

D)      while there has been no in-depth study of infrastructure (and in particular transport infrastructure) conducted for the Pukekohe area, a coarse-grain assessment of the request has not indicated an issue that cannot not be addressed, so it is not considered that the private plan change is contrary to sound resource management.

E)      a coarse-grain assessment does not indicate that the private plan change will make the Auckland Unitary Plan contrary to Part 5 of the Resource Management Act.

F)      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 deal with the private plan change as if it was a resource consent application as the request seeks to rezone a substantial area of land for development over a period of time rather than undertake a single development project.

b)      delegate authority to the Manager Central South Planning to undertake the required notification and other statutory processes associated with processing the private plan change request by Golding Meadow Developments Limited and Auckland Trotting Club Incorporated pursuant to Schedule 1 of the Resource Management Act 1991.


 

Horopaki

Context

7.       The land subject to the plan change request is Future Urban zoned land located in south-eastern Pukekohe.  The land is bounded by Golding Road, Station Road, Royal Doulton Drive, part of Yates Road and a stream that runs in a roughly southerly direction from Golding Road to Yates Road (see these boundaries marked in red in Figure 1). Golding Road is at the edge of the Auckland Council region, with the Waikato District being immediately opposite (see Figures 2 and 3 for the road names referenced).

8.       To the north of the site beyond Royal Doulton Drive is other Future Urban zoned land and to the north of that is the Pukekohe A & P Showgrounds. North-west of the showgrounds is the Pukekohe Town Centre. Opposite the showgrounds on Station Road is the Pukekohe Railway Station, which is 1.2km away from the closest part of the plan change land.

 

Figure 1 – Plan change area

9.       The plan change land comprises 14 separate properties with nine separate owners. The stream boundary to the rezoned area has been adopted as a natural boundary which results in small portions of three properties being outside of the extent of the plan change area.  It is anticipated that this excess land will be picked up in a future plan change along with the other surrounding Future Urban zoned properties to the south-east, abutting Golding Road, Logan Road and Yates Road.

10.     Figure 1 depicts a dominant feature of the plan change area which is a flat area developed and used for harness racing activities associated with the Franklin Trotting Club. The balance of the area comprises mainly grazing land over a combination of flat to semi-flat areas and more gently sloping ground, generally with a southerly aspect. The immediately surrounding land contains similar land uses, with the notable exceptions being the North Island Main Trunk Railway and Pukekohe Park Raceway which lie just to the south-west of Station Road, opposite the plan change area.  Pukekohe Park Raceway recently undertook its own private plan change (PC 30) to rezone 5.8ha of their land to General Business Zone.

11.     There are two small streams running through the land, both running down from Golding Road to Yates Road. One bisects the site and the other forms the south- eastern boundary of the site.  The most notable natural features are a stand of remnant Kahikatea adjoining Yates Road and a sizeable wetland adjoining the central stream, just to the south-east of the trotting track.

Plan Change Request

12.     The private plan change request was lodged by the applicants on 11 June 2021 and seeks to rezone the land described above.  The request was further amended during the Clause 23 further information period.  The currently proposed plan change map and precinct plans are in Attachment A and the proposed plan change precinct provisions are in Attachment B. The private plan change would rezone land from the current Future Urban Zone and Special Purpose - Major Recreation Facility Zone (Franklin Trotting Club Precinct). The rezoning would be to a combination of Business – Light Industry Zone (19.974ha), Residential – Mixed Housing Urban Zone (62.356ha) and Business - Neighbourhood Centre Zone (0.3365ha).  The current and proposed zonings are as shown in Figures 2 and 3.

 

Map

Description automatically generated

Figure 2 – Current zoning

 

Map

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Figure 3 – Proposed rezoning

13.     The proposed Residential – Mixed Housing Urban Zone, rather than the Residential – Mixed Housing Suburban Zone as indicated in the Pukekohe-Paerata Structure Plan, is seen by the applicants as being a more logical response in providing for Auckland’s housing needs.  It is considered by the applicants that a Residential – Mixed Housing Urban zoning would enable the delivery of a wider variety of housing typologies, providing for greater flexibility in development controls such as increased maximum building height and building coverage. The proposed Light Industry Zone is seen by the applicants as providing additional employment opportunities for a zoning that is becoming scarcer within Pukekohe. It is also seen as a logical response to noise effects arising from the nearby Pukekohe Park motorsport events. The proposed Neighbourhood Centre Zone is seen by the applicants as being a logical planning response to cater to the day-to-day needs of the surrounding residents and workers.


 

14.     Bespoke precinct provisions are proposed by the applicants, including for the following reasons:-

·   Noise from the Pukekohe Park motorsport activities is proposed to be managed by a number of special provisions relating to the requirement for an acoustic wall that would run mid-way and all of the way through the Light Industry Zone, as well as specifying activity restrictions in that zone and design and layout of buildings in the Residential – Mixed Housing Urban Zone.

·   There are “triggers” relating to traffic generation which will require investigation of the capacity of specified road intersections. 

·   The precinct plan specifies the extent of a Significant Ecological Area (comprising the Kahikatea stand), the indicative location of future collector roads and key walking and cycling routes, the indicative location of a local road that demarcates the proposed zones and the indicative streams and wetland.  Natural features, ecosystems, water quality and stormwater management are also responded to through in the precinct provisions.

15.     The applicant has provided an assessment of effects and a section 32 evaluation report and a wide range of supporting technical reports, all of which have been reviewed by a council team of staff and appointed consultants.

Relevant Planning Framework

National Directives

16.     In July 2020, the Government released the National Policy Statement on Urban Development (NPS-UD).  The Planning Committee has already provided direction to enable staff to develop the council’s initial response to an ‘intensification plan change’ that is required under the NPS-UD.   

17.     On 26 October 2021, the Government introduced a new Resource Management (Enabling Housing Supply) Amendment Bill.  This Bill proposes amendments to the RMA to bring forward and make more directive certain aspects of the NPS-UD. One of the proposals in the Bill is a requirement for Tier 1 (high growth) councils to introduce a prescribed set of Medium Density Residential Standards (MDRS) into their district plans at the same time as the already required ‘intensification plan change’ with the timeframe for that being by August 2022. The Government aims to have the Bill receive royal assent on 16 December 2021.  At this stage it is a Bill that is still subject to change, and as such the Bill is not a relevant consideration for Council when making its clause 25 decision.

18.     The National Policy Statement for Freshwater Management 2020 is relevant, to the streams and wetlands that exist in the plan change area. A major objective of this NPS is to ensure priority is given to the health and well-being of water bodies and freshwater ecosystems. 

Auckland Plan

19.     The Auckland Plan 2050 is the council’s spatial plan, as required under the Local Government (Auckland Council) Act 2009. The Auckland Plan 2050 contains a 30-year high level development strategy for the region based on a quality compact approach to accommodating growth. This approach anticipates most growth through intensification within existing urban areas, with managed expansion into the region’s future urban areas and limited growth in rural areas. Significant growth is anticipated in the Pukekohe area with approximately 1700 hectares of land for future urban development having been identified with the potential to accommodate approximately 14,000 dwellings by 2050 (of a total 320,000 dwellings for the region as a whole).

20.     The Development Strategy identifies the area including the subject land as a future urban area, sequenced for development within the period 2023-2027. It is noted that the Franklin Trotting Club land is shown as an existing urban area rather than as a future urban area.

Future Urban Land Supply Strategy 2017

21.     The Future Urban Land Supply Strategy implements the Auckland Plan and gives effect to the National Policy Statement on Urban Development 2020 by identifying a programme to sequence the development of future urban land over 30 years. This Strategy identifies the Future Urban zoned land in Pukekohe-Paerata to be development ready (subject to infrastructure funding) in the period 2023-2027.

22.     This private plan change application is being made before the start of the planned period, although the applicants argue that the plan change introduction and other planning and consenting processes will likely result in development not occurring before 2023. The application also observes that there is currently a paucity of land in Pukekohe which is development ready. The former Belmont Structure Plan area has been developed, and since the notification of the AUP no additional land has been rezoned in Pukekohe. Prior to this the only additional rezoning occurred over 20 years ago with the rezoning of Anselmi Ridge. It is therefore argued by the applicant that in terms of the local provision of housing capacity, the Pukekohe area has been left with a significant undersupply.

Regional Land Transport Plan

23.     The Regional Land Transport Plan 2021-2031 acknowledges KiwiRail’s intentions, within the current planning period, for the electrification of rail services between Papakura and Pukekohe. An improved park and ride facility at the Papakura Station will improve access to the rail network. These are the only transport works proposed or to be funded in the Pukekohe area.

Supporting Growth Alliance

24.     The Supporting Growth Alliance is a collaboration between Auckland Transport and Waka Kotahi (NZ Transport Agency) in partnership with Auckland Council to plan transport investment in Auckland’s Future Urban zones over the next 10-30 years. A Pukekohe Expressway is proposed as a new connection to improve safety and support the future movement of people and goods between the proposed Mill Road Corridor, State Highway 1 and Pukekohe town centre by providing an alternative route to State Highway 22.  The other project being investigated at this stage is the north-east section of an urban arterial which will be an important connection from the proposed Pukekohe Expressway into the planned new eastern growth areas of Pukekohe, providing a link to both the north and east onto Pukekohe East Road.

Funding Mechanisms

25.     Apart from KiwRail’s commitment to the rail corridor there is no funding in place for any road network improvements in the Pukekohe area to respond to the increased demands that may arise from development within the plan change area. The assessments conducted by the applicant have not identified the need for any significant road upgrading works beyond those that are addressed in the proposed plan change provisions. A coarse-grained review of those assessments concurs that there may be no significant issues, however more detailed information on this matter will be necessary before a substantive decision can be made on the private plan change.  The plan change submissions process and more fine-grained analysis leading up to the plan change hearing will highlight any outstanding issues.

26.     An Infrastructure Funding Agreement can be used to ensure an applicant will deliver capital works or contribute funds ahead of a Development Contributions policy being created.  Again, there needs to be sufficient knowledge of what is required, what it would cost, who would be involved in such an Agreement and to what proportional extent.

27.     The Infrastructure Funding and Financing Act 2020 opens the possibility of an agreement for a Special Purpose Vehicle to deliver infrastructure upgrades to a greenfield area with cost recovery. Pukekohe is not the current focus of any initiatives under this legislation.

28.     In summary, while there are a number of funding options being explored by council there is not yet a comprehensive funding and financing solution in place.  Even if this particular plan change is able to be accommodated without raising significant funding issues, there may still be a future funding shortfall to mitigate cumulative effects.  Again, this is a matter that would need to be explored more fully prior to and during a hearing.

Auckland Unitary Plan

29.     The AUP is Auckland’s RMA plan and is a unitary planning document, The RMA requires that any change to the district plan and regional plan parts, as is proposed here, must give effect to the regional policy statement.

30.     Part B2 of the Regional Policy Statement sets out the objectives and policies that must be given effect to and the Objectives and policies in B2.2 are of particular relevance. Amongst other matters these provisions seek to ensure that sufficient development capacity and land supply is provided to accommodate residential, commercial, industrial growth and social facilities to support growth (Objective 3) and that urbanisation is contained within the Rural Urban Boundary, towns, and rural and coastal towns and villages (Objective 4).  The subject land is within the Rural Urban Boundary.

31.     The Regional Policy Statement then enables rezoning of future urban zoned land for urbanisation following structure planning (Policy 3).  Rezoning proposals are subject to a number of stated aims that include supporting a quality compact urban form; providing for a range of housing types and employment choices for the area; integrating with the provision of infrastructure; and following the structure plan guidelines as set out in Appendix 1 (Policy 7).

32.     On a course-grain assessment, the proposed private plan change is generally consistent with these provisions.  Importantly, council has prepared a structure plan for Pukekohe-Paerata and the subject land is within the structure planned area.  There are some inconsistencies, which are further discussed below, however the application material provides reasonable explanations for the approach that has been taken.

33.     In respect of the proposed industrial and small business areas Part B2.5 Commercial and industrial growth is relevant.  Objective 1 seeks to ensure that employment and commercial and industrial opportunities meet current and future demands.

Pukekohe-Paerata Structure Plan

34.     Development of the Pukekohe-Paerata Structure Plan (“the Structure Plan”) commenced in August 2017 and concluded in August 2019 when the final version of the plan was approve by the Planning Committee. The structure plan map is shown in Figure 4.

Figure 4 – Pukekohe-Paerata Structure Plan

35.     The private plan change request is generally consistent with the structure plan, with two notable exceptions.

36.     First, the current Special Purpose - Major Recreation Facility Zone (Franklin Trotting Club Precinct) has been excluded from the structure plan.  The request is that this area be rezoned, mainly Business - Light Industry Zone, with some Residential – Mixed Housing Urban Zone.  The application states that, since the issue of the structure plan, legislation has been passed which requires the rationalisation of the racing assets of Auckland Trotting Club. This means that the Special Purpose Zone is no longer required as this only provides for a single use, and when this use leaves the Special Purpose Zone there is unlikely to be a similar use available to occupy the site.

37.     The proposed Business - Light Industry Zone aligns with the same zoning shown on the structure plan north and south of the subject land.  The zoning has been analysed and supported by an economic analysis from Urban Economics which is one of the supporting documents for the plan change.

38.     The second inconsistency with the structure plan is that the structure plan shows a Residential – Mixed Housing Suburban zoning for this land, and the private plan change proposes a Residential – Mixed Housing Urban zoning.  The application states that a Residential – Mixed Housing Urban zoning is preferred because this will deliver a wider variety of housing typologies providing for greater flexibility in development controls such as increased maximum building height and building coverage. It is also seen as a response to the site’s location in close proximity to the Pukekohe Railway Station and Pukekohe Town Centre.


 

Infrastructure

Water Supply

39.     The applicants have consulted with Watercare over water supply. Water supply is proposed to be provided through extension of the existing infrastructure from the junction of East Street and Golding Road down Golding Road eventually looping up to Station Road. The private plan change request is not considered to impact on the ability for bulk water supply infrastructure to be provided in the future.

Wastewater

40.     The applicants have consulted with Watercare over wastewater servicing. The land subject to the private plan change is not currently serviced for wastewater. The nearest connection is the line running underneath Pukekohe Park which the applicants propose can be connected to by way of a gravity line from the site. Wastewater flows from the site are proposed to be managed by the existing Pukekohe pump station on Buckland Road which the applicants consider has sufficient capacity. Watercare has noted that the current size of the pump station has been determined based on the Future Urban Zone and does not include the special purpose zone included in this private plan change. The addition of this special purpose zone may trigger additional funding required to upgrade the pump station.

Transport

41.     Roads within the plan change area will be provided by the developer.  Regarding impacts on existing roads in the immediate locality the application accepts that developers within the plan change area will be responsible for upgrading one side (the north-eastern side) of Station Road from the site to the rail station for pedestrians and cyclists and upgrading the frontage of Station Road outside the subject land as per above.  It is recognised that to upgrade one side to urban the entire full width of the carriageway may need to be upgraded / reconstructed.

42.     The plan change identifies key transport corridors to provide appropriate connectivity to the surrounding areas and the wider road network and recognises the anticipated upgrades to the form and function of certain roads such as Royal Doulton Drive and Golding Road.

43.     Wider strategic transport implications, including cumulative impacts of development on adjacent the Future Urban Zoned land, would need to be fully considered prior to and during a hearing.

Stormwater

44.     This area is covered by a Stormwater Network Discharge consent. A stormwater management plan has been provided with the application and has been prepared to achieve the best practicable options for the long-term management of stormwater from the site which are also addressed in the proposed precinct provisions which cover hydrological mitigation, water quality, water quantity and the operation and maintenance of devices. This is supported by a Golding Road Plan Change Stormwater Toolbox which identifies the best practice options for managing stormwater from various runoff sources. The toolbox is tailored to the various zonings proposed and will provide guidance for future developers on the best method to manage stormwater. Riparian and wetland margins will also be planted as per a specific precinct provision.


 

Noise

45.     A particular feature of the plan change is that it has had to address noise effects from the Pukekohe Park motorsport activities.  That is the subject of an acoustic report that has been submitted with the application and there are three mitigating measures proposed in the plan change.  The major mitigating element is the proposed Business-Light Industry Zone which will act as a buffer to the residential area.  The precinct provisions propose that noise sensitive activities (including workers accommodation) in this zone be a Non-Complying Activity. Secondly, as the full build-out of the Business-Light Industry Zone is uncertain from a timing perspective the precinct provisions require construction of a noise barrier erected through the Business-Light Industry Zone area. A third mitigating measure is that mechanical ventilation and/or cooling systems for noise sensitive activities would be required for dwellings built in part of the residential area.

46.     The Counties Racing Club merged with the Auckland Racing Club to form Auckland Thoroughbred Racing Inc., effective 1 August 2021.  Auckland Thoroughbred Racing Inc is now the owner of Pukekohe Park.  The applicants have consulted with that new organisation which has in turn indicated it is supportive of this plan change proposal[1].

Tātaritanga me ngā tohutohu

Analysis and advice

Statutory context: Resource Management Act 1991

47.     Any person may request a change to a district plan, a regional plan or a regional coastal plan.[2] The procedure for private plan change requests is set out in Part 2 of Schedule 1, RMA. The process council follows as a plan-maker is adapted,[3] and procedural steps added[4] including the opportunity to request information.

48.     The applicant is required to include the information set out in clause 22, which states that:

·   a request made under clause 21 shall be made to the appropriate local authority in writing and explain the purpose of, and reasons for, the proposed plan or change to a policy statement or plan and contain an evaluation under Section 32 of the RMA for any objectives, policies, rules, or other methods proposed; and

·   where environmental effects are anticipated, the request shall describe those effects taking into account clauses 6 and 9 of Schedule 4, in such detail as corresponds with the scale and significance of the actual or potential environmental effects anticipated from the implementation of the change, policy, statement or plan.

49.     Additional information has been received from the applicant following a formal request for further information under clause 23 of Schedule 1. The council staff who have evaluated the request consider that the applicant has provided sufficient information to enable the request to be considered.


 

50.     Under clause 25 after receiving the request, receiving all required information, and modifying the request (where relevant), the local authority is required to make a decision to either:

·   Adopt the request, in whole or in part, as if it were a proposed plan made by the council, which must then be processed in accordance with the provisions of Part 1 of Schedule 1 (clause 25(2)(a)); or

·   Accept the request, in whole or in part, which then triggers a requirement to notify the request, or part of the request, under clause 25 (clause 25(2)(b)); or

·   Decide to deal with the request as if it were an application for a resource consent (clause 25(3)); or

·   Reject the request in whole or in part, in reliance on one (or more) of the limited grounds set out in clause 25(4).

51.     Having regard to the principles established by the relevant case law, the consideration of private plan change requests under clause 25 involves a "threshold test" and a coarse assessment of the merits of the private plan change request - noting that if the request is accepted or adopted the full merits assessment will be undertaken when the private plan change is determined. Case law has also 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, applied in Orakei Point Trustee Limited v Auckland Council [2019] NZEnvC 117).

Options available to the council

52.     The next section of this report assesses the various options available to the council under clause 25 of Schedule 1 of the RMA.

Option 1: Adopt the request, or part of the request, as if it were a proposed plan change made by the council itself

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

54.     While the Pukekohe-Paerata Structure Plan is in place, the private plan change is out of sequence as this area has been identified as being ready for development in the period 2023-2027 and the full infrastructure necessary to support the development is not funded.  There are also inconsistencies between the structure plan and what is proposed, including the applicants having adopted changes arising from the Resource Management (Enabling Housing Supply) Amendment Bill.

55.     It is therefore recommended that the private plan change request is not adopted for the following reasons:

a)   the request does not address a currently recognised or unplanned gap in the AUP or change provisions that apply across the Auckland region; and

b)   the request is a site-specific proposal that is likely to be of most immediate or direct benefit to the applicant, rather than the wider public; and

c)   the request is out of sequence with the timing in the Pukekohe-Paerata Structure Plan and the full infrastructure necessary to support the development (including development in the wider Pukekohe area) is not funded.

Option 2 – Reject the request, in whole or in part

56.     Council has the power to reject a private plan change request, in whole or in part, in reliance on one (or more) of the limited grounds set out in clause 25(4) of Schedule 1 of the RMA. If the private plan change request is rejected by the council, the applicant has the ability to appeal that decision to the Environment Court under clause 27 of Schedule 1.

57.     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.

Is the request frivolous or vexatious?

58.     Frivolous means not having any serious purpose or value. Vexatious means denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance.

59.     The private plan change request has inconsistencies with the Pukekohe-Paerata Structure Plan and adopts standards from the Resource Management (Enabling Housing Supply) Amendment Bill.  The applicants have given reasons for the approach they have taken and, in particular, it is understandable they have wished to make changes which, if the Bill, if passed, would in any case be mandated. However, until the Bill is law those changes cannot be relied upon and the Act may change as a result of submissions being made on it, including by Auckland Council.  The applicants have had the option of deferring council’s Clause 25 consideration until a later date when matters are clearer but have strongly indicated that they want the process to continue.  In that respect it is understood that the applicants are aware that the provisions now proposed may need to change at a later date.  Given that the applicants are seeking to respond to a Government directive, the request is not considered to be frivolous or vexatious.

60.     The applicant is not acting in bad faith by lodging a private plan change request.

61.     It is therefore concluded that the council cannot reject the private plan change request on the basis that it is frivolous or vexatious.

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

62.     These provisions largely seek to discourage repetitive private plan change requests that are substantially the same, with the associated costs to the council and the community. The AUP became operative in part on 15 November 2016 and applied a Future Urban zone over the majority of land in the subject plan change area. The substance of the request has not been considered and given effect to or rejected by the council in the last two years.

63.     It is therefore concluded that the council cannot reject the request on this basis.

Has the substance of the request been given effect to by regulations made under section 360A?

64.     Section 360A relates to regulations amending regional coastal plans pertaining to aquaculture activities. The site is not within the coastal marine area and does it involve aquaculture activities, and therefore section 360A regulations are not relevant.

65.     It is therefore concluded that the council cannot reject the request on the basis that the substance of the request has been given effect to by regulations made under section 360A.

Is the request in accordance with sound resource management practice?

66.     In a 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), Malory Corporation Limited v Rodney District Council (Malory Corporation Ltd v Rodney District Council [2010] NZRMA 1 (ENC)) and Kerikeri Falls Investments Limited v Far North District Council (KeriKeri Falls Investments Limited v Far North District Council, Decision No. A068/2009)

[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)

[15] 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).”

67.     Consideration of this ground should involve a coarse assessment of the merits of the private plan change request - “at a threshold level” - and take into account the RMA’s purpose and principles – noting that a full merits assessment will be undertaken if the request is accepted.

68.     The courts have also accepted that "sound resource management practice" can include issues of timing and process. For example, the Environment Court in Malory Corporation v Rodney District Council [2010] NZRMA 1 stated:

"[60] 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.”


 

69.     The term ‘sound resource management practice’ is not defined in the RMA. However, relevant case law indicates Part 2 of the RMA provides an important starting point to developing criteria as to whether sound resource management practice has been followed. Other aspects are also relevant. The following matters may be relevant:

(a) will the plan change undermine sustainable management of natural and physical resources?;

(b) will the plan change enable people and communities across the region to provide for their social, economic and cultural wellbeing?;

(c) section 32 is another important aspect of sound practice is there sufficient justification of the proposed provisions, at a coarse level?;

(d) the plan change preparation process and the nature and extent of consultation expected under Schedule 1 is important. Has best practice been followed?

 Each of these matters is addressed further below.

70.     The subject area of the private plan change request is within the Rural Urban Boundary and within an area that has been structure planned.  A coarse-grained analysis indicates that management techniques which are generally consistent with the structure plan have been adopted.  It is possible that they may need to be further refinement, however there is no reason to conclude that sustainable management of natural and physical resources cannot be achieved.

71.     As previously discussed, there is some doubt, given the absence of information about potential cumulative effects, about necessary infrastructure upgrading and funding mechanisms for that upgrading. However the current coarse-grained analysis has not indicated any issue that would be significant enough to justify rejection of this private plan change request.

72.     In any event, the zoning pattern and provisions now proposed are subject to review through the plan change process.  Most importantly, council accepting the plan change as currently proposed does not indicate that council agrees with all parts of the plan change content.  Council itself, for instance, may make a submission on the plan change. 

73.     If approved, the plan change request would provide for business and housing in an area that has been generally identified for such development. It would complement other growth within the wider area.

74.     A competent section 32 analysis has been provided with the application, with further information provided subsequent to council requests.  At a coarse level sufficient justification has been given for the proposed provisions.

75.     The applicant’s representatives have consulted with iwi and have worked with council departments to prepare the private plan change request.

76.     Based on the above reasoning, it is considered that the plan change should not be rejected on the grounds that it is not in accordance with sound resource management practice.

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.     These matters have been addressed earlier in this report. It has been concluded that, on balance, the council should not reject the private plan change request on the basis that the substance of the request would make the AUP inconsistent with Part 5 of the RMA.

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

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

80.     It is therefore concluded that the council cannot reject the private plan change request on the basis that the relevant parts of the AUP have been operative for less than two years.

81.     To conclude in relation to this Option it is considered there are no grounds under clause 25(4) to rely on to reject the private plan change request.

Option 3 – Decide to deal with the request as if it were an application for a resource consent

82.     The council could decide to deal with the request as if it were an application for a resource consent and the provisions of Part 6 would then apply accordingly.

83.     In this case, the request seeks to rezone land and introduce precinct provisions to manage subdivision, use and development. As stated in the AUP itself, the most appropriate process for achieving development within the Future Urban zone is a plan change following the structure planning process. Rezoning cannot occur through a resource consent application.

84.     It is therefore concluded that the council should not decide to deal with the request as if it were an application for resource consent.

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

85.     The council could accept the private plan change request, in whole or in part under clause 25 of Schedule 1, and proceed to notify the request, or part of the request under clause 26 of Schedule 1 of the RMA. As noted above, the Planning Committee will need to consider whether it makes a resolution to make a submission on the private plan change request, for instance due to any infrastructure funding issues. As with other private plan change requests, the council can continue detailed discussions with the applicants towards agreement around the funding of immediate and wider transport infrastructure costs, which could then address any concerns raised by the council in a submission.

86.     The council would hold a hearing by independent commissioners to consider submissions, and a decision would be made in relation to the private plan change request in accordance with Schedule 1 of the RMA. All associated costs (including notification and any hearing) would rest with the applicant.

87.     This option is the only remaining option available to the council for consideration. It is supported on the basis that the request does not meet the criteria for rejection under clause 25(4) of Schedule 1 to the RMA, having regard to relevant case law and it is more appropriate to accept the request for processing than to adopt it or treat it as a resource consent application, the reasons for which are outlined above. If the private plan change is accepted, the matters raised by the applicant and the council can be considered on their merits during a public participatory planning process. If accepted, and notified, the plan change would not have legal effect until it is made operative by the council.

Conclusion: options assessment

88.     To comply with RMA timeframes, council must now make a clause 25 decision to accept, adopt, treat as a resource consent or reject the private plan change request by the applicants. While some uncertainties have been introduced by the Resource Management (Enabling Housing Supply) Amendment Bill, the Bill is still subject to change and the applicants have indicated that they wish to proceed and the statutory timeframes under the RMA require the council to make its clause 25 decision at this Planning Committee meeting. If the private plan change request is accepted, the private plan change will be publicly notified for submissions.  Any issues raised will be a matter for the independent commissioners to consider when making a substantive decision on the private plan change request, in terms of whether it should be approved, approved with modifications or declined.

 

89.     The caselaw on clause 25 of Schedule 1 of the RMA provides that:

·   where a private plan change request, on a coarse merits assessment, does not accord with the purpose and principles of the RMA, it will not cross the threshold for acceptance or adoption; but

·   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.

90.     In this case, on a coarse merits assessment, and based on the relevant case law, it is considered appropriate for the council to accept the private plan change request and for it to go through to the public participatory process (i.e. accepting the plan change for public notification and hearing). Accepting the private plan change request for processing would enable the more detailed benefits and costs of the plan change to be assessed.

91.     Having carefully assessed the request against the relevant matters set out in the RMA and associated documents, it is recommended that council decide to accept the request and notify it for submissions.

Tauākī whakaaweawe āhuarangi

Climate impact statement

92.     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.

93.     It is noted that the decision whether to adopt, accept, reject or deal with the private plan change request is a decision relative to those procedural options, rather than a substantive decision on the plan change request itself.

94.     If accepted for processing, a climate-related factor that may be taken into account is the benefit of a Business – Light Industry zone in terms of providing for more local employment opportunities in an area of high residential growth. It is likely that this would reduce commuting to other parts of the region, and thus result in a reduction in greenhouse gas emissions. The higher density residential development enabled, in an area close to public transport modes, would also provide for a more efficient use of resources.  Should the council accept the private plan change request for processing, climate impacts would be considered in more detail in a future hearing report on the private plan change request. At that time the potential impacts on Auckland’s overall greenhouse gas emissions may be considered (whether it encourages car dependency, enhance connections to public transit, walking and cycling or support quality compact urban form), and whether the request elevates or alleviates climate risks (such as flooding and stress on infrastructure).

Ngā whakaaweawe me ngā tirohanga a te rōpū Kaunihera

Council group impacts and views

95.     The applicants have held discussions with Auckland Transport.. Auckland Transport has confirmed it will be making a submission to ensure the transport impacts of the proposal (including wider network impacts and funding issues) are carefully considered before a substantive decision is made on the plan change.


 

96.     As noted at paragraph 40, the wastewater pump station on Buckland Road may need to be upgraded to accommodate the level of development that would be enabled by the plan change.  Further discussions will be required between the applicants and Watercare, however Watercare does not consider this to be a reason to hold up the plan change.

97.     Key assessments by the council staff and consultant team, including in the areas of urban design, landscape architecture, ecology, stormwater, development servicing, heritage and transport confirm that the applicant has provided sufficient information under clause 23 of Schedule 1 of the RMA.

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

Local impacts and local board views

98.     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 Franklin Local Board’s responsibilities or operation, nor the well-being of local communities.

99.     If accepted, staff will prepare a summary of any submissions received and provide the opportunity for the local board to give feedback on the private plan change. Any feedback received must be taken into account by the independent hearing commissions appointed to hear and make the council’s decision on the private plan change.

Tauākī whakaaweawe Māori

Māori impact statement

100.   While not a strict legal requirement, private plan change applicants should engage with iwi authorities in preparing a private plan change request, as a matter of good practice. It is also good practice for an applicant to document changes to the private plan change request and/or supporting technical information arising from iwi engagement.

101.   The applicant advises that consultation was undertaken with Ngāti Tamaoho who undertook a site visit and prepared a Cultural Values Assessment addendum to the mana whenua engagement already prepared for the Pukekohe-Paerata Structure Plan.  The impact assessment section of the CVA notes that “with regards to the proposed private plan change, Ngāti Tamaoho are concerned about impacts to the study area’s land and soils, freshwater, wetlands and former flood-plains, natural heritage, cultural heritage, flora and fauna, and air.” The identification of these matters is generally consistent with those raised in the mana whenua engagement process that occurred during the development of the Pukekohe-Paerata Structure Plan.

102.   In response to a question as to whether attempts had been made to engage with other iwi authorities, the applicants advised that they had contacted Ngāti Te Ata Waiohua and Waikato-Tainui, however no response had been received to date. The applicant also advised that comment was sought regarding suitable conformance to the Waikato Tainui River Management Plan, and that feedback has not been received from Waikato-Tainui on this matter to date.

103.   If accepted, all iwi authorities within an interest in the plan change area will be notified and will be able to make a submission. Council staff will also follow up directly with all relevant iwi authorities to ensure the council meets its obligations under the Resource Management Act and other relevant laws, including taking into account the principles of The Treaty of Waitangi/Te Tiriti o Waitangi.

Ngā ritenga ā-pūtea

Financial implications

104.   Although the applicants have proposed to fund infrastructure to mitigate the immediate effects (particularly traffic) of the proposed development that would be enabled as part of the private plan change, at this stage the council does not have enough information to accurately assign a fair proportion of future transport costs to the proposed development.

105.   Full costs of the infrastructure for the wider network are unable to be determined at this time and are likely to take some time to be calculated. Any shortfall in funding of the infrastructure costs is not provided for in the Long-Term Plan. Therefore, the council is unable to recover the costs of future infrastructure via either the Development Contributions Policy or having another funding mechanism in place. Should development go ahead without these matters being resolved, this could put pressure on funding for other development areas. To avoid this outcome and/or significant adverse effects, the Planning Committee has previously resolved to make submissions on private plan change requests of this nature.

106.   If accepted for processing, costs for processing the private plan change will be recoverable from the applicant up until any appeals to the Environment Court.

Ngā raru tūpono me ngā whakamaurutanga

Risks and mitigations

107.   A key risk associated with accepting the private plan change relates to the lack of certainty around the funding for the necessary transport infrastructure. As previously noted, to avoid the significant adverse effects that can result from the lack of appropriate infrastructure, or funds having to be diverted from elsewhere, the Planning Committee has previously resolved to make submissions on private plan change requests of this nature.

108.   A further risk associated with accepting the private plan change is that there may be further impacts on Māori than those identified by Ngāti Tamaoho. This can be mitigated by council staff following up with all relevant iwi authorities prior to a hearing.

109.   Another risk associated with the recommendations made in this report is a judicial review by a third party. This risk is considered to be low and mitigated by the analysis provided in this report.

110.   There are legal risks in either accepting or rejecting the private plan change request. If the request is rejected, the requestor is highly likely to appeal the clause 25 decision to the Environment Court.

111.   An applicant may appeal to the Environment Court a decision to:

a)   adopt the private plan change request in part only under clause 25(2)

b)   accept the private plan change request in part only under clause 25(2)

c)   reject the private plan change in whole or in part under clause 23(6)

d)   deal with the private plan change request as if it were an application for a resource consent.[5]

112.   It is recommended that the private plan change request is accepted in whole for processing. The applicant has requested the private plan change be accepted, and the risk of a legal challenge by the applicant utilising clause 27 appeal rights is therefore not high.

Ngā koringa ā-muri

Next steps

113.   If the private plan change is accepted, council will publicly notify the plan change and hold a hearing to consider any submissions and any local board views, and a decision would then be made on the private plan change request in accordance with Schedule 1 of the RMA.

114.   If the private plan change request is rejected, the applicant could appeal the council’s decision to the Environment Court and an Environment Court hearing would be held in due course.

 

Ngā tāpirihanga

Attachments

No.

Title

Page

a

App D2 Pukekohe Golding Precinct Plan Set

27

b

App D1 Pukekohe Golding Precinct Provisions

31

      

Ngā kaihaina

Signatories

Author

Peter Raeburn - Reporting Planner

Authorisers

John Duguid - General Manager - Plans and Places

Megan Tyler - Chief of Strategy

 



Planning Committee

30 November 2021

 

 

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Planning Committee

30 November 2021

 

 

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[1] Letter on behalf of the Auckland Thoroughbred Racing Inc (Geoff Vazey) dated 26 August 2021.

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

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

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

[5] Clause 27, Schedule 1 Resource Management Act 1991.