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Planning
Committee
4 August 2022
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Auckland
Unitary Plan – making operative provisions for land in Albany
File No.: CP2022/10659
Te take mō te
pūrongo
Purpose of the report
1. To
make operative the zoning of land located at 56 Fairview Avenue, 129 Oteha
Valley Road, 131 Oteha Valley Road, and 135 Oteha Valley Road, Albany in the
Auckland Unitary Plan (AUP).
Whakarāpopototanga matua
Executive summary
2. At
its 30 June 2022 meeting the Planning Committee resolved to accept the
Independent Hearings Panel’s (IHP) recommendation to rezone a portion of
land at 56 Fairview Avenue and all of 129 Oteha Valley Road to Business-Mixed
Use zone.
3. The
decision of the Planning Committee was notified for appeal for 20 working days
with appeals closing on 1 August 2022.
4. No
appeals were received by 1 August 2022.The Planning Committee can therefore
direct staff to make the zoning of the land operative under clause 20 of
Schedule 1 of the Resource Management Act 1991(RMA). Refer to Attachment
A.
5. In
addition, the Planning Committee can direct staff to make the zoning of the
land operative under clause 20 with regard to: (a) the remainder of the land at
56 Fairview Avenue; (b) 131 Oteha Valley Road; and (c) 135 Oteha Valley Road,
as NEIL has withdrawn its Environment Court appeal in relation to the zonings
of the properties.
6. Once
the zonings are operative, the Council will then be able to include the
properties at 56 Fairview Avenue, 129 Oteha Valley Road, 131 Oteha Valley Road,
and 135 Oteha Valley Road, Albany in the Council’s intensification
planning instrument (IPI) to be notified on or before 20 August 2022, which
will incorporate the medium density residential standards (MDRS) into all
relevant residential zones and to give effect to Policies 3 and 4 of the
National Policy Statement on Urban Development 2020 (NPS UD) - updated
May 2022.
Ngā tūtohunga
Recommendation/s
That the Planning Committee:
a) request
staff to complete the necessary statutory processes to publicly notify the date
on which the zoning of the sites at 56 Fairview Avenue, 129 Oteha Valley Road,
131 Oteha Valley Road, and 135 Oteha Valley Road, Albany (described fully in
the agenda report) are to become operative as soon as possible, in accordance
with Schedule 1 of the Resource Management Act 1991.
Horopaki
Context
7. The
zoning of the Land was the subject of a submission by NEIL
on the Proposed Auckland Unitary Plan (PAUP), when it was notified in
2013, seeking:
a) a
precinct over 56 Fairview Avenue, 129 Oteha Valley Road, and 135 Oteha
Valley Road enabling greater height and amending the rules and policies that
apply to work in and around the Waikahikatea Sream (Albany 5 Precinct);
and
b) Terrace
Housing and Apartment Buildings zoning over the majority of 56 Fairview Avenue,
and all of 131 and 135 Oteha Valley Road.
c) Business
Mixed Use zoning over a portion of 56 Fairview Avenue and all of 129 Oteha
Valley Road.
8. In
2016 the IHP rejected the submission as it related to 3(a) and (c) above and
recommended that:
The Panel having
regard to the submissions, the evidence and sections 32 and 32AA of the
Resource Management Act 1991, recommends that the Albany 5 Precinct not be
adopted. The rezoning of the land within the proposed precinct to Residential -
Terrace Housing and Apartment Buildings Zone is considered the most appropriate
way to enable the development of the proposed precinct site and to give effect
to the regional policy statement and achieve the purpose of the Resource
Management Act 1991.
9. NEIL
filed an Environment Court appeal, a High Court appeal, and an application for
judicial review in the High Court challenging (on procedural grounds) the
recommendations made by the IHP and the Council’s subsequent
decision. NEIL was unsuccessful in the High Court and its application for
judicial review was declined – [84] in [2018] NZHC 916. The High
Court’s decision was appealed by NEIL to the Court of Appeal. The
Court of Appeal directed that:[1]
[74] The
Panel’s recommendations dated 22 July 2016 (provided in its Report to
Auckland Council July 2016, Changes to Rural Urban Boundary, Rezoning and
Precincts, Annexure 4 Precincts North, at page 158), and the subsequent Council
decision dated 19 August 2016 to accept those recommendations, are both set
aside, insofar as they relate to:
(a) the
Council’s decision not to adopt the Albany 5 Precinct; and
(b) the
Council’s decision not to zone the land within the proposed Albany 5
Sub-Precinct B as Business — Mixed Use.
[75] The Panel is
directed to make new recommendations under s 144 of the LGATPA in respect of
the matters set out in paragraphs [74(a)–(b)], following a process that
addresses the errors identified by this judgment.
10. The
rehearing by the IHP has been delayed by various procedural challenges.
11. On
23 June 2022, NEIL and the Council jointly requested a new recommendation from
the IHP in relation to the extent of the BMU zoning on the land. The IHP
issued a new recommendation to Auckland Council on 28 June 2022 recommending
that the land in Albany should be rezoned BMU. This was within the scope of the
NEIL submission on the PAUP.
12. The Council will continue to oppose the relief sought by NEIL
relating to the adoption of the Albany 5 Precinct.
Tātaritanga me ngā
tohutohu
Analysis and advice
13. At its 30
June meeting, the Planning Committee resolved to accept the IHP’s
recommendation. The IHP did not identify the recommendation as being outside
the scope of a submission. Therefore, any appeal is
limited to an appeal to the High Court on a point of law under s158(6) of the
LGATPA. Following the decision of the Planning Committee, there was a 20
working day appeal period which closed on 1 August. No appeals were received,
and the land is now “deemed operative” so the Council can now
complete the statutory process to make the zoning of the land operative under
clause 20 of Schedule 1 of the RMA. The Council will then be able to
include the land in the Council’s IPI.
Tauākī whakaaweawe
āhuarangi
Climate impact statement
14. There are no
issues of significance for greenhouse gas emissions arising from the
recommendation. It is noted however that the subject land
areas will assist in achieving a compact built environment as sought under the
AUP(OP) Regional Policy Statement and in this way assist in meeting Te
Tāruke-ā-Tāwhiri, Auckland’s Climate Action Plan
Ngā whakaaweawe me
ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
15. The views of
the wider Council group are not relevant to the decision. An agreement was
reached with NEIL, and the parties jointly requested
the IHP make a recommendation to rezone the Land BMU.
Ngā whakaaweawe
ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
16. There are no
local impacts of significance arising from the direction recommended and Local
Board views are not relevant at this stage in the plan making process. There
will be positive impacts for the owners of land directly affected. This in turn
will make the impact of the IPI plan change process clearer for the land as of
the notification of the IPI in August 2022.
Tauākī whakaaweawe
Māori
Māori impact statement
17. There are no
issues of significance for Māori arising from the
decision recommended. The Council’s position has consistently been to
protect the stream running through the land by continuing to oppose the
precinct provisions proposed by NEIL. Protection of the stream will also be
achieved by applying the provisions of Chapter E3 of the AUP and the National
Policy Statement for Freshwater Management 2020.
Ngā ritenga
ā-pūtea
Financial implications
18. The costs of
publicly notifying the decision are covered by the normal operating budget of
the Plans and Places Department. They are not significant and cannot be
recovered from any other party in this case.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
19. There are
cost implications for both the Council and the relevant landowners of the Land
if the zoning is not made operative under clause 20 of the RMA prior to 20
August 2022, the date by which the Council is required to have notified its IPI
plan change. If the Land cannot be included in the IPI at the
time of notification, it may be 18+ months until Council is able to give effect
to the NPS-UD in respect of the Land.
Ngā koringa ā-muri
Next steps
20. The 20
working day period for appeals to the High Court on points of law against the
Council’s decision to accept the IHP’s recommendation under section
158(6) of the LGATPA has now expired. Council officers
now seek that the zonings for the Land, the remainder of 56 Fairview Avenue,
and 131 and 135 Oteha Valley Road be made operative under clause 20 of Schedule
1, and that these sites be included in the IPI that is to be notified on 18 August
2022.
Ngā tāpirihanga
Attachments
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No.
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Title
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Page
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a⇩
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Auckland Unitary Plan - areas to be made operative in
Albany
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9
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Ngā kaihaina
Signatories
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Author
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Warren Maclennan - Manager - Planning, Regional,
North, West & Islands
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Authorisers
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John Duguid - General Manager - Plans and Places
Megan Tyler - Chief of Strategy
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