Over the last week the Unitary Plan has blown up again as a political issue. As I wrote on Tuesday, some groups – most notably anti-housing supply lobby group Auckland 2040 and some councillors – have criticised the Council over its submission to the impending “rezoning hearings” on the Unitary Plan.

Council’s proposal is hardly radical with 78% of Auckland still limited to no more than two storeys and a further 17% limited to 3 storeys but it has enraged some people who see it as undemocratic.

PAUP zoning changes - Dec 15 2

The problem, opponents say, is that people don’t have an opportunity to submit on the rezoning:

Members of the Auckland 2040 community group accused the council of being “devious” and “hijacking the democratic process”, which several residents and ratepayers groups said would change the character of their suburbs.

Now, it’s certainly true that people who didn’t originally submit on the Unitary Plan won’t be able to make further submissions to the hearings process. However, most of the criticisms made by opponents of rezoning fall short of the mark.

In order to understand why, let’s take a look at the process to date.

What is the hearings process?

Many of the people criticising Council over its rezoning proposal seem to think that its rezoning proposal will automatically result in three-storey high-rise apartments near them. That’s not the case.

To understand why, it’s first important to understand the process that the Unitary Plan has followed/will take:

  • First, Council developed a draft Unitary Plan and asked for feedback from Aucklanders.
  • On the basis of this feedback, they downzoned a lot of the city and then “notified” the Unitary Plan, opening it up to formal submissions.
  • After notification, an Independent Hearings Panel was appointed by Council and Government to review the plan and hear submitters using a slightly streamlined process created by the government. That’s still ongoing and it’s the panels job to weigh up  the submissions and evidence.
  • The Panel will complete its review in July and send a recommended, final version of the Plan back to Council.
  • Council will then have 20 days to take a vote on whether to adopt the Panel’s version or not. The parts they accept will come into effect, if they don’t agree on some areas then those will be subject to the normal environment court process, in other words regulatory uncertainty will continue

If you want to know more about the Independent Hearings Panel, you can go take a look at their website.

What is Auckland Council’s role in the hearings?

When the Unitary Plan is adopted, Auckland Council will be responsible for administering it, and reviewing and changing it from time to time.

But up until that point, Council is in the same position as all other submitters on the plan: It can submit evidence and proposed rules and zoning maps to the hearings panel, and have those weighed up against proposals put forward by other submitters.

As I’ve pointed out before the panel could reject the council’s evidence and zoning changes outright. Alternatively they could decide they don’t go far enough and beef the zoning up further.

That’s an important point that is being lost in the discussion – the Panel, not Council, is responsible for weighing up the evidence and making decisions.

How far can the hearings panel go?

The Panel haven’t issued any final decisions yet – they seem to be holding off until they’ve heard all the evidence. But they have issued some “interim guidance” intended to give submitters an idea of what they expect from the Unitary Plan.

For example, their interim guidance on volcanic viewshafts, which Stu took a look at last year, basically told the Council to go back and do more analysis to show that viewshafts were actually a good idea. Similarly, the Panel’s interim guidance on rezoning indicates that they are expecting to make some changes to enable more housing supply and reduce the burden of restrictive zoning:

IHP best practice approaches to rezoning

The Panel have quite broad latitude to recommend changes to the Unitary Plan. The Local Government (Auckland Transitional Provisions) Act 2010, which set up the Panel, states the following:

Scope of recommendations

(4) The Hearings Panel must make recommendations on any provision included in the proposed plan under clause 4(5) or (6) of Schedule 1 of the RMA (which relates to designations and heritage orders), as applied by section 123.

(5) However, the Hearings Panel—

(a) is not limited to making recommendations only within the scope of the submissions made on the proposed plan; and

(b) may make recommendations on any other matters relating to the proposed plan identified by the Panel or any other person during the Hearing.

In other words, if they decided that it would be best to rezone all of Auckland for midrise apartment blocks, they could recommend that. They probably won’t, but they could.

What is “out of scope” for the hearings?

One of the key piliars of criticism that has emerged has come from the council proposing “out of scope” changes to zoning that weren’t requested by submitters. The council called changes they made where there hadn’t been specific piece of evidence about an exact property “out of scope”. However, it’s not clear that the changes actually are “out of scope” as several submitters have requested broad rezoning to improve housing choice and affordability.

A full list of submission points is available here. Two helpful commenters – Matthew W and Frank McRae – pointed us towards some specific submissions that asked for rezoning, e.g.:

5478-57 Generation Zero Not Supplied RPS Urban growth B2.1 Providing for growth in a quality compact urban form Upzone across the urban area where this supports the Regional Policy Statement aims of intensifying near centres and in areas accessible to high quality public transport.

The non-profit community housing provider CORT has submitted asking for significantly more upzoning to enable more affordable housing (submission point 4381).

Specifically they have asked for:

– a significant reduction to the extent of the single house zone.
– increase the extent of the mixed housing urban zone to 70% of residential areas
– increase the extent of the THAB zone to 10% of residential areas

The new zealand property council has also submitted requesting greater density generally.

Also, in January Housing New Zealand put in a legal submission pointing out that the Government’s submissions did ask for quite a bit of rezoning:

HNZ rezoning legal submission

In other words, it’s not clear that anything that Council proposed is actually “out of scope”. In fact, arbitrarily refusing to consider rezoning in some areas would be unfair to submitters like Generation Zero, CORT, and the Government who are requesting broad rezoning. They have a democratic right to be heard.

For the record here is the submission from the Minister for the Environment referenced above. In it she is very critical of the down-zoning that occurred following the draft plan.

Amy Adams - UP

Where to from here?

To summarise:

  • The Unitary Plan is under review by an Independent Hearings Panel, who will issue their recommendations in July.
  • The fact that Auckland Council has put in a submission that suggests rezoning some areas does not mean that it is going to happen – the Panel will decide.
  • The Panel has the ability to recommend quite broad changes to the Plan, including changes that were not specifically requested by submitters.
  • In any case, some submitters have asked for broad rezoning throughout the city – meaning that Auckland 2040’s claim that the Council’s proposal is “out of scope” is not true.

In this context, it’s best if people – Councillors included – stop panicking about the possibility of rezoning. It’s simply not appropriate to try to hijack an independent hearings process midway through. Doing so would run roughshod over the rights of the people who did submit on time and in good faith that their views would be heard.

Mayor Len Brown has called for an extraordinary meeting next Wednesday for the council to decide on their position. We will obviously be watching this with great interest.

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  1. Another critical point: the Unitary Plan is legally required to give effect to the Auckland Plan, which was adopted several years ago and can no longer be challenged. The Auckland Plan aims to provide 60-70% of the 400,000 homes needed over the next 30 years within the existing urban limits. The UP has to provide rules that can allow that to happen.

    That’s why the council has had economic evidence looking at how many homes are likely to be provided via intensification, and when the evidence said that the rules in the PAUP wouldn’t provide enough homes, the council had to revisit the proposed zonings to make more development possible.

    Whatever the council decides next week, the Hearings Panel will still have to come up with a Unitary Plan solution that helps get to what is laid out in the Auckland Plan.

    1. The Housing NZ and Minister for the Environment are both alluding to this in their quotes above. Auckland 2040 can complain, and councillors can pander to vocal parts of their electorate, but when it’s all over, the hearings panel still has to decide what rules will facilitate 240,000 to 280,000 homes within the urban limits in the next 30 years. Auckland 2040 doesn’t have any answers to this question, so my guess is that they’ll find themselves out of luck.

    2. I am not sure you are right John. They have to consider documents produced under other Acts. Remember the Auckland Plan was not an RMA document. A lot of Auckland council staff have taken the view it has to give effect to the Auckland Plan but they appear to be wrong as the Auckland Plan came from the Local Government (Auckland Council) Act 2009. The Unitary Plan has to have regard to it which is a lot weaker than give effect to.

      1. Whoops, I think you’re right. I haven’t been involved in the plan process so seem to have gotten the detail a little wrong. The UP will need to give effect to the Regional Policy Statement, but the RPS is also being determined via these hearings. The Auckland Plan does indeed seem to have less statutory weight, in which case decisions are very much up to the panel.

        1. mwfic is correct. The Unitary Plan still sits within the hierarchy of RMA documents which set out clearly what it must legally give effect to – Coastal Policy Statement, National Policy Statements etc. The Auckland Plan is not included within this list. I presented infront of the evidence related to the RPS and one of the key arguments I raised was the inconsistency with the Auckland Plan. It was made clear by the IHP that while it was a matter they could consider, it didn’t have much weight under the RMA. The Auckland Plan is, in reality, little more than a paper weight in the context of the Unitary Plan process.

      2. He actually is right. While the AP may not be an RMA document, the RPS provisions, which were derived from the AP, are administered under the RMA. These provisions have legal effect and set out to fulfil the objectives of the AP. Hence why IHP have stated rezoning must take into account the RPS provisions.

    3. It is impossible to predict how the Panel will deal with this but that hasn’t stopped me before. The other day I wrote that I thought they would kick out any out of scope changes that were not fixing errors or consequential changes. Yesterday the Judge clarified his earlier advice and noted their powers for out of scope changes are not unlimited and they will need to consider the both sides. The problem they have is they cant allow people against to submit as they will miss a statutory deadline. So my guess is if they can’t hear from both sides they will say no and the Council would need to do a plan change later.

  2. There just does not seem to be any reality in this discussion. I had a Facebook argument with some woman last night who was adamant that Glendowie was being re-zoned for 13 level apartments. The Herald’s recent picture of an old villa being towered over by an enormous commercial building does not help.

  3. There are certain suburbs that really want the out-of-scope changes happened, and there are suburbs that are not.

    How come the whole set of changes are bundled together?

    If some eastern suburb residences objected the plan of their suburb, why the western suburbs who supports the plan lost their opportunity?

    Could the new out of scope changes implemented differently suburb by suburb based?

    1. I would fully support tying infrastructure funding to a suburb’s willingness to intensify. Those out West volunteered extra density, whereas the coastal nimbys of the North and East are resisting it. Let them watch the quality of their roads, parks and libraries decay while the funds are redirected westwards.

      1. Yea we’re overwhelmed with transport options and town centre upgrades here in the Central East. I don’t know how we’ll cope.

      2. Very true, the residence who oppose would need to understand more density means higher total rates for the local council.

        More rate for the local council means they could afford economic of scale amenity, such as state of art community center, bigger library, good swimming pool, well maintained park, and more diversity sport fields.

        Then the roads also get more funding, so a transport interchange become possible, rapid transit become possible.

        More population means the school get more head count, which means more funding. So teachers become more specialized on their subject. School equipment is also more specialized. Which means higher teaching quality.

        1. Maybe it would be a good idea to break Auckland up into smaller councils that need to compete with each other for residents and businesses. The more residents each council can attract, the more amenities that council can provide. We could call the councils North Shore, Waitakere, Auckland, Manukau and Papakura.

      3. How about a “targeted levy” added to the rates of landowners in the NIMBY suburbs in order to pay for the +$400k per-dwelling-cost of sprawl?

        This targeted levy would work out at about $1.6M per-NIMBY-suburb-landowner, so if applied over a period of, say, 1 year, most NIMBY suburb landowners would have to sell their property to pay the targeted levy.

        BOOM! … problem eliminated, via an economically-efficient “market-driven” process of “land-user pays” (the Tories in the NIMBY suburbs should love that – if not, we can remind them that “There Is No Alternative” (remember that), as it’s about time they took some of their own medicine).

        Then the vacated land in the NIMBY suburbs can be developed properly, with provision of proper PT right-of-ways, etc., and there’d be no more sprawl.

        1. Didn’t take long for the envy politics to raise their heads. The whole point of opinions is that everyone is allowed one. If ‘Nimbys’ as you like to label people, think differently to you, guess what, they are allowed to, and should be encouraged to. One opinion or view does not suit all situations, otherwise we would all be lowest-denominator automatons. This blog is so full of one-eyed people.

  4. The Panel will rule on whether the changes are in or out of scope. The problem with general submissions is can an owner or occupier work out if the submission affects them? If you include a map that shows their house then they know to make a further submission. If you make a general request or say “plus any other changes around me as necessary” then can an owner be expected to know they are potentially affected by your relief? I don’t know the answer to that for these issues as I haven’t read them all but I do know that will be in the minds of people as we go to the hearings. With a plan change the Council notifies everyone affected. With a District Plan you are kind of expected to read the submissions but that hurdle sort of makes the whole scope thing more important.

  5. It appears to me that the initial consultation process, in which people/organizations could submit that now allows those same parties to further submit, was very poorly advertised. It strikes me that if there had been significant effort, included by the media, to help people understand the process then much of the “unfair” aspect of the process could’ve been eliminated. This unfortunately does then make the entire process feel very undemocratic to many people. So irrespective of what comes out of this process many will blame the lack of ability to engage in the process for all of Auckland’s difficulties for the foreseeable future.

  6. Really really helpful and useful post, thank you. Just one question: who are the Panel ? You’ve probably posted this before but I’ve missed it. How many people is it? What are their qualifications?

  7. I really can’t see the reason for this drawn out process. Why don’t our elected council have the powers to change zoning whenever they feel it needs to change? What’s the worst that can happen – 3 years of bad zoning before they get the boot.
    If it wasn’t for this stupid unitary plan process, Auckland would have had a lot more housing zoned years ago and we might not have the housing crisis we have.

    And why try and predict what zoning Auckland will need in 30 years time? Guarantee they won’t get it right anyway…

    1. This isn’t China. Be thankful for that. Unlike China we have processes that allow for (some) input from the citizens. In China a decree is made and thousands are displaced overnight with small compensation for public works and the like. Be thankful for process.

  8. A few points, but first, I support intensification

    To say the Auckland Council only has the same rights as other submitters is incredibly flawed. AC prepared the Unitary plan and has ridiculous resources devoted to it. I personally think AC has it right but let’s not pretend they have only the same rights as Joe Bloggs.

    The Auckland Plan is not a legal document. It has the same status as a Ministry’s Statement of Intent. Nothing more, nothing less. if it did, the AC might actually devote resources towards achieving its goals instead of burying it during LTP negotiations

    1. I’m not quite sure where you’re going with this?

      Would you rather Council devoted less resource to this, to be more even-handed towards those poor people in the Eastern Bays who can’t afford to pay planners and lawyers to stand up for them? Oh, hold on….

      To be a bit more prissy – I would be surprised if Council had greater _rights_ than other submitters. Resources (and responsibilities), yes, but greater rights?

  9. I’m certain I submitted but cannot see my name in the SDR report. At least some of the changes I asked for have been made – increased density along bus route in my area. Its currently 6a and was going to just be the new equivalent. Now its jumped one category and is zoned for 3 storey.
    It is interesting that you can see everybody’s submissions. The requests of one guy I worked with in the past could lead to a lynch mob turning up to his door, if certain people looked.

  10. Hi – genuine question from one of the unwashed masses… What does this mean “A qualifying development within a SHA must meet the following criteria:.. Must not exceed the height controls of the HASHAA (6 storeys and 27m).” from http://www.aucklandcouncil.govt.nz/en/ratesbuildingproperty/housingsupply/pages/developinginaspecialhousingarea.aspx#team

    and page 4 of http://www.aucklandcouncil.govt.nz/EN/ratesbuildingproperty/housingsupply/Documents/specialhousingareasfaqs.pdf

    Can I build a 27m tall building on a 1200m^2 section in a mixed suburban housing zone? Does the PUAP trump the HASHAA? otherway around?


    1. I’m pretty certain the HASHAA just has an upper limit to prevent people from trying to fast track major skyscrapers. The regular unitary plan controls apply to your Mixed Suburban, so two stories, or three at a pinch.

  11. Oh here we go again. And the same pictures again in the newspapers. Maybe Orsman actually thinks those things lining Hobson Street are 3-story apartments.

    How to describe this discussion? Fascinating. Mystifying. Absurd. Surreal. To think we are really talking about something important like houses. I still can’t believe it. Maybe it is all just a big ruse to keep the plebs busy. Panic about 3 story high-rises, how entertaining.

  12. It’s all a bit moot isn’t it? The developer of the single house zoned land next door to me is seeking resource consent to build terraced housing on it.

    Do zoning laws even matter when developers ignore them and build what they want regardless?

    1. The zoning laws dictate what can be built without notification but anyone is allowed to lodge a private plan change to change zoning but it then has to go through a process for it to be approved.

      1. As long as it is not specifically prohibited anyone can submit a resource consent to do whatever they want to on any piece of land. The idea of “zoniong laws” is also a bit of a fallacy. Yes we have ‘zones’ but these are complimted with effects-based rules. One of the key principles of the RMA is that if you can proove that something isnt going to generate an adverse effect (or that you can remedy or mitigate identified effects) then there should be no reason to prevent it from happening. In that regards the RMA is incredibly permissive, the main issue is the use of zones has been a somehwat lazy mechanism to implement the objectives and policies of plans. By setting down a ‘single-house zone’, people assume terraced homes are therefore bad and have negative effects.

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