Bill to amend Unitary Plan process passes
On 23 November 2015, the Local Government (Auckland Transitional Provisions) Amendment Act 2015 came into force.
That Act enables a quorum of two rather than three panel members in a hearing, allows for the appointment of up to three additional panel members, and confirms that the Panel can split and hold several hearings at the same time and appoint chairs for these hearings. Panel procedures have been updated to reflect these developments.
These changes will ensure that in 2016 the Panel is able to deal with the large number of submissions on specific properties, while still completing the hearings and presenting its recommendations to Auckland Council (Council) on 22 July 2016.
Additional Panel members are expected to be announced in December 2015.
A copy of the Bill can be accessed here.
Consolidated Network Utility provisions have merit, says Panel
The Auckland Utility Operators Group Incorporated and its members (AUOG) filed a memorandum with the Panel on 3 November, in relation to its proposal to restructure the network utility provisions of the Unitary Plan into a combined section, Chapter H1.1 (Network Utility Chapter). The memorandum was in response to the Council’s refusal to engage further in relation to the Network Utility Chapter, despite AUOG’s efforts to meet with the Council to seek to resolve its concerns. AUOG’s memorandum is available here, and the proposed provisions here.
The Network Utility Chapter proposes structural changes (relocation of provisions into one section) and does not revisit substantive matters covered in prior hearings. The Chapter’s intention is to:
- Enhance the practical workability of the Unitary Plan, and more appropriately give effect to the Unitary Plan’s objectives and the purpose of the Resource Management Act 1991 (RMA).
- Provide a “one stop shop” for the key controls applicable to network utilities, allowing a contractor to be able to determine the activity status and applicable standard of an activity. This recognises the practical needs of network utility providers, which work across a large number of sites, or more often, work within road reserves or on other land with no formal title.
- Be consistent with the Panel’s expressed desire to simplify (ie delete) many of the Overlays and instead incorporate any necessary rules within the zones themselves.
The Panel served notice on submitters on 13 November, confirming that it considers the Network Utility Chapter to have merit, and invited submissions in response.
On 27 November, the Council proposed a conference with the Panel, AUOG and other submitters in relation to determining an appropriate process, and it is possible that mediation or a short hearing will be convened in early 2016 to progress the matter.
Air Quality guidance provides zoning leverage
The Panel has released interim guidance in relation to Topic 035 – Air Quality.
That guidance provides direction regarding the rezoning of sites to Heavy and / or Light Industry, insofar as that remains to be addressed through Topics 080 / 081 – Rezoning and Precincts.
In terms of the overall policy framework for managing air quality, the Panel considers that:
- the level of air quality should be maintained and / or improved;
- sites zoned for residential, business (except Heavy Industry and Light Industry zones) and coastal environment should generally have a high level of air quality;
- sites zoned for Light Industry, Port and Airport, and Rural activities should generally have a medium level of air quality; and
- sites zoned for Heavy Industry and Special Purpose – Quarry may have a low level of air quality.
In its approach, the Panel recognises that most of the anthropogenic adverse effects on air quality in Auckland are caused by motor vehicles and domestic fires. In doing so, the Panel identifies that the use of RMA controls in respect of industrial emissions should reflect the best practicable options for reducing emissions, while ensuring that such controls are commensurate with the extent of such adverse effects and recognising the economic and social benefits which industry provides.
The Panel does not support the notified air quality overlays as an appropriate mechanism to regulate air contamination and reverse sensitivity under the Unitary Plan, instead directing the parties to accommodate this in the proposed zoning of sites.
With regards to the approach to zoning moving forward, the Panel:
- recognised that a number of sites with existing heavy industries may have been inappropriately zoned as Light Industry;
- identified the issue relating to the lack of sufficient land zoned Heavy Industry, which is required to meet demand and provide employment and other social and economic benefits;
- directed that industrial activities should be enabled in appropriate locations; and
- directed that the Heavy Industry zone should correspond to areas with low air quality and include existing heavy industrial sites and sufficient land to accommodate heavy industrial activities in the future.
This guidance will be welcomed by those submitters who have sought to have their sites zoned Heavy Industry due to the low level of air quality resulting from the site's operations. However, this guidance is tempered by the Panel’s disinclination towards spot-zoning, meaning that those submitters who wish to rely on these directions are well-advised to consider the possibility of a broader rezoning of their immediate area (having regard to the other activities that take place there).
A copy of the interim guidance can be found here.
Structure of precincts, zones and overlays revisited
The Panel has also released further interim guidance in respect of Chapter G. That guidance relates to the relationship between zones, precincts and overlays, and the hierarchy of each of those planning instruments in the Unitary Plan with a view towards the upcoming hearings on Topics 016 and 017 – RUB North / West and RUB South, and Topics 080 / 081 – Rezoning and Precincts.
In particular, the Panel has provided guidance on the determination of activity status in relation to precinct rules that are less restrictive than rules for the underlying zone, Auckland-wide rules or overlay rules that would otherwise apply to the site.
In summary, the Panel considers that:
- The activity status of a proposal should be determined based on all rules which apply to that proposal, including any rule which creates an exception to other rules.
- The most restrictive rule which applies to a proposal should take precedence.
- Overlays should relate to matters of national importance and other matters under sections 6 and 7 RMA, and should take precedence over all levels of rules that sit below them.
- The Auckland-wide provisions primarily relate to natural and physical resources or those district plan matters which affect the entire region, whereas the zone provisions generally relate to areas with similar characteristics or uses that are repeated in different areas across the region.
- The Auckland-wide and zone provisions generally stand separately from one another, but occupy the same middle level of the Unitary Plan’s hierarchy. Where the two overlap, the more restrictive rule will take precedence.
- The Panel understands that precincts are supposed to be more detailed, place-based provisions, and that the notified Plan provides instances both where rules in a precinct are subject to Auckland-wide or zone rules and, conversely, where precinct rules take precedence over Auckland-wide or zone rules. A problem arises where precinct rules are intended to take precedence over Auckland-wide and zone rules.
In the upcoming hearings, the Panel has advised that it will consider precinct rules according to:
- whether a precinct rule that is more enabling than an Auckland-wide rule is necessary;
- whether or not such a precinct rule is the most appropriate way of addressing the matter; and
- how a precinct rule could fit into the Panel’s preferred proposition of the most restrictive rule taking precedence.
The Panel also clarifies its position with regards to how an activity should be assessed when it does not comply with one or more of the controls in the Plan. The Panel considers restricted discretionary status to be appropriate, but the associated matters of discretion should be worded to ensure they are applicable to both regional and district level rules, and clarifies that only matters of relevance to the standard or standards being infringed should be considered.
The Panel has also considered the notification rules, and is of the view that:
- all controlled activities should be considered without public or limited notification, or the need to obtain written approval from affected parties, unless special circumstances exist under section 95A(4) RMA; and
- all restricted discretionary, discretionary or non-complying activities should be subject to the normal tests for notification provided under the RMA, unless otherwise specified by a specific rule in the Plan.
This is intended to combat the fact that many restricted discretionary activities under the Plan may have more than minor adverse effects on the environment, and blanket non-notification would be contrary to the RMA’s purpose and principles.
Lastly, the Panel considers that a separate notification section should be contained in each chapter of the Plan to enable full consideration of the matters within that chapter which may require specific notification consideration.
A copy of the interim guidance can be found here.
Panel calls for submissions on relationship between the RMA and the Building Act 2004
On 8 October 2015 the Panel called for submissions on the relationship between the RMA and the Building Act 2004 (BA), together with the Building Code (BC), which is contained in Schedule 1 to the Building Regulations 1992.
The Panel sought the view of parties on the following jurisdictional question: can the Unitary Plan include a rule requiring building work to be undertaken to a standard higher than that required by the BC other than under sections 68(2A) and 76(2A) RMA?
The Panel has identified that, if the Unitary Plan may impose higher standards, questions arise as to the nature of such a rule, and the extent to which such a rule can exceed building code standards, and whether in fact it is appropriate for the Unitary Plan to do so.
The Panel has identified that these issues are important for three reasons:
- Section 18 BA limits the extent to which other regulatory provisions can affect building work, so there may be a jurisdictional bar to such rules in the Unitary Plan.
- Duplication or inconsistency of regulation is generally inefficient and reduces effectiveness, so even if we have jurisdiction the Panel should consider whether the Unitary Plan is the most appropriate method for addressing these standards.
- This issue has already arisen in respect of Topics 022 – Natural hazards and flooding, 051 – City Centre and 077 – Sustainable design, and remains relevant for upcoming Topics 059-063 – Residential and 064 – Subdivision.
Legal submissions in response to this issue have now been uploaded to the Panel's website, and can be accessed here.
“Think piece” on restricted discretionary assessment criteria
In assessing the structure of the Unitary Plan provisions, the Panel has commissioned a “think piece” from Mark St Clair to determine whether a methodology for refining the restricted discretionary activity provisions may potentially be adopted for application across the Unitary Plan.
The report examines a potential model whereby the assessment criteria for activities are reviewed and simplified, and activities with more than five assessment criteria are elevated to discretionary activity status.
In doing so, the report also looked at whether the assessment criteria were aligned with the policies for each section, and if the assessment criterion may simply be able to cross-refer to the respective policy as a means of streamlining and simplifying the assessment criteria.
The report concludes that the linkages between the policies and the assessment criteria in the example reviewed (the Business zone provisions) are not clear, and notes that such cross-referencing is best practice.
The report proposes several amendments to the methodology to assist in providing assurance that the structure of the Unitary Plan meets best practice. In summary, the amendments would include:
- identification of cross-references from objectives to policies to assessment criteria, and identification of gaps;
- review linkages from assessment criteria back to policies, and identify gaps;
- review policies and assessment criteria for duplication;
- review assessment criteria for provisions that are more appropriately rules and/or standards and/or information requirements; and
- revise the provisions in light of the above steps.
A copy of Mark St Clair’s technical report may be accessed here.
The key dates for Topic 080 are:
- Other submitters evidence due on 18 December 2015.
- Rebuttal evidence due on 26 January 2016.
- Hearing 15-16, 18-19, 22-25 February 2016.
The key dates for Topic 081 are:
- Council evidence due on 26 January 2016.
- Other submitters evidence due on 10 February 2016.
- Rebuttal evidence due on 24 February 2016.
- Hearing 3 March to 29 April 2016.
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