Almost exactly a year ago the future of the Unitary Plan was looking uncertain after a group of rowdy residents, mainly from eastern suburbs who had been whipped into a frenzy by the likes of the NZ Herald and UP opposition groups like Auckland 2040, complained to the council about the plan. At issue was changes made by the council to zoning in response to broader changes to the plan as a result of submissions but which those opposing the plan labeled “out of scope”. The council subsequently folded to the the claims the process was being abused, even though it wasn’t, and had with withdraw from taking part in the discussions entirely. A bit of an own goal if ever there was one.
Ultimately the call as to whether something was out of scope was for the Independent Hearings Panel (IHP) to make and they allowed other submitters picked up the council’s evidence. When their final recommendations were given the council, they ruled the changes were in scope and incorporated them into the plan.
Since the council passed the Unitary Plan in August, one of the main appeals against it – brought by the Character Coalition, Auckland 2040 and others – has been on the issue of those out of scope changes. Yesterday we had some good news with the High Court releasing a ruling and calling the approach to “scope” lawful.
High Court determines approach to “scope” lawful
The High Court has today released a decision ruling that the Auckland Unitary Plan Independent Hearings Panel’s approach to “scope” for residential zoning in key test case areas was lawful.
The decision follows a preliminary hearing held in November 2016 which considered whether the Panel approached the matter of “scope” correctly in relation to certain areas of residential zoning in the Proposed Auckland Unitary Plan.
The court was formally asked to rule on seven agreed questions of law. The issue at the heart of the preliminary questions potentially affected approximately 29,000 properties originally zoned Single House and Mixed Housing Suburban in the notified Proposed Auckland Unitary Plan.
The Court addressed the matter of scope by focusing on residential zoning in a number of test cases in Mt Albert, Glendowie, Blockhouse Bay, Judges Bay, Grey Lynn, Takanini, Howick and Parnell.
The court ruled that the IHP has approached the matter of “scope” correctly, with the exception of two site specific test cases – 117-133 The Strand, Parnell (relocation of viewshaft), and 55 Takanini School Road (notified as Industrial and rezoned Residential).
In his decision, Justice Whata said: “The purpose of resolving the test cases was to provide affected appellants with guidance on the issue of scope. It will be for them to decide whether and to what extent they wish to pursue their appeals in light of my decision.”
Auckland Council’s Director Legal and Risk, Katherine Anderson says: “As the decision has implications for appeals that are still before the courts, the council will not be making any further comment at this stage.”
This is good news and while it doesn’t resolve the appeals, it should go a long way to helping do so.
Of course the Character Coalition aren’t happy, continuing to claim people were denied a say in what happened, despite everyone having the same right to submit on the plan. In fact the judge even called them out for this.
There are still appeals going on but hopefully they can be resolved shortly so we can get on with building homes for people.