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Precincts Only BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL IN THE MATTER of the Resource Management Act 1991 and the Local Government (Auckland Transitional Provisions) Act 2010 AND IN THE MATTER of the Proposed Auckland Unitary Plan (PAUP), Topic 081 Rezoning and Precincts (Geographical Areas) LEGAL SUBMISSIONS ON BEHALF OF AUCKLAND COUNCIL IN RELATION TO TOPIC 081 REZONING AND PRECINCTS (GEOGRAPHICAL AREAS): PRECINCTS ONLY Hearing dates: 3 March 2016 to 29 April 2016 BROOKFIELDS LAWYERS M J L Dickey Telephone No. 09 379 9350 Fax No. 09 379 3224 P O Box 240 DX CP24134 AUCKLAND 31560772:631364 Page 2 1. INTRODUCTION 1.1 This is a hearing of submissions and further submissions on PAUP hearing Topic 081 Rezoning and Precincts (Geographical Areas) (Topic 081): Precincts only. 1.2 Topic 081 concerns the submission points on rezoning and precincts that relate to specific geographical areas. 1.3 The submissions on Topic 081 have been grouped and addressed according to the following geographical areas: a) General (Topic 081a); b) Rodney (Topic 081b); c) North Shore (Topic 081c); d) West (Topic 081d); e) Central (Topic 081e); and f) South (Topic 081f). 1.4 This opening statement only relates to Topic 081 Precincts. Topic 081 Rezoning matters will be addressed in a separate opening statement. 1.5 The focus of these legal submissions is on highlighting the key issues arising in relation to precincts, and the Council’s approach to precincts. A summary for each precinct has been prepared and is attached at Attachments A to F of these submissions. The precinct summaries are grouped according to their geographical area and are in alphabetical order for ease of reference. The relevant summary will be addressed for each precinct by legal counsel responsible for that precinct. 1.6 Summaries for the Weiti and Wiri 2 precincts have not been prepared and these precincts will not be addressed in submissions at this time. A revised timetable for filing of submitter evidence (26 February 2016) and Council’s rebuttal evidence (11 March 2016) in relation to the Weiti precinct has been approved by the Panel. The Council has been allocated 30 minutes of hearing time on 21 April 2016 to present its case on this precinct to the Panel and will address the Panel on relevant issues at that time. Similarly the Panel has approved a revised evidence timetable for the Wiri 2 precinct. The Council has been allocated 20 minutes of hearing time on 7 April 2016 to present its case on this precinct to the Panel. 31560772:631364 Page 3 2. THE COUNCIL’S APPROACH TO THE TOPIC 081 EVIDENCE 2.1 The Council’s evidence for Topic 081 Precincts has been submitted in relation to each precinct. Where a precinct is supported, the proposed precinct provisions and plans have been attached to the evidence. 2.2 As set out in the Council’s list of witnesses dated 1 March 2016, the Council will call precinct evidence by geographical area, with the full suite of witnesses for each precinct being called together (with the exception of the general precincts). 2.3 The Chair of the Puketapapa Local Board has requested to speak in relation to the Three Kings precinct. This is presently scheduled to occur after lunch on Monday 7 March. (For completeness, it is noted that the Chair of the Manurewa Local Board also wishes to address the Panel in relating to Manurewa zonings – this is presently scheduled for 9:30am on Monday 7 March). 3. STATUTORY FRAMEWORK 3.1 The legal framework applying to the PAUP under the Local Government (Auckland Transitional Provisions) Act 2010 (LGATPA) will be very familiar to the Panel. The PAUP must be prepared in accordance with Part 4 of the LGATPA and the Resource Management Act 1991 (RMA), except the provisions of the RMA that are excluded from applying by, or correspond to, provisions of Part 4 of the LGATPA.1 3.2 In the notified version of the PAUP, depending on the location of the zone, zoning and precincts are either a regional plan or a district plan method. The statutory framework for assessing the merits of the special application of the zones and precincts is set out in sections 30 to 32, 63 to 68 and 72 to 76 of the RMA. These tests are discussed in the strategic planning overview evidence in chief (EIC) of John Duguid on Zoning for Topics 080 and 081,2 and are therefore not repeated here. John Duguid’s EIC on Zoning also sets out the key policies of the New Zealand Coastal Policy Statement (NZCPS) that are relevant to zoning,3 relevant provisions within the Auckland Plan,4 and key sections of the Regional Policy Statement (RPS).5 1 Section 121 of LGATPA. 2 John Duguid, EIC on Zoning, at paragraphs 5.2 to 5.11. 3 At paragraph 5.12. 4 At paragraphs 5.13 to 5.23. 5 At paragraph 6.2. 31560772:631364 Page 4 3.3 The Panel has also released Interim Guidance on Best Practice Approaches to Re- Zoning and Precincts, dated 31 July 2015, which is relevant to precincts. 4. BACKGROUND TO TOPIC 081 – PRECINCTS 4.1 The overarching rationale and approach towards precincts in the PAUP is discussed in the evidence in chief of John Duguid on Precincts for Topic 080 and 081, and in the Council’s legal submissions for Topic 080.6 The use of precincts in the PAUP was developed as a method to achieve two key drafting principles, namely to minimise repetition and to achieve an appropriate balance between regional consistency and local variation. The use of precincts avoids the need to create a multitude of zones that repeat much of the same content, by providing a suite of provisions that build on the provisions of the underlying zone in geographically specific areas.7 4.2 The Council’s starting point in developing precincts was to recognise areas where more detailed site-specific analysis had been undertaken by the legacy Councils. Precincts were identified as a key tool in ensuring that the outcomes of recent plan changes and Environment Court decisions (where consistent with the RPS) were reflected in the PAUP.8 4.3 In developing the overarching approach to precincts, the Council has had regard to the Panel’s Interim Guidance on the “best practice” approaches for precincts.9 In addition to the Interim Guidance provided by the Panel, the Council also supports the following approaches to precincts set out in John Duguid’s EIC on Precincts:10 a) there should only be one precinct on any piece of land or CMA; b) precincts should generally not apply to only a portion of a site; and c) where a designation applies, precincts should generally only address matters not covered by the designation. 6 Legal submissions on behalf of Auckland Council in relation to topic 080 Rezoning and Precincts (General) at paragraphs 5.1 to 5.5. 7 John Duguid, EIC on Precincts, at paragraph 5.1. 8 John Duguid, EIC on Precincts, at paragraph 5.3. 9 As set out at paragraph 6.1 of John Duguid’s EIC on Precincts. 10 At paragraph 6.4. 31560772:631364 Page 5 5. KEY MATTERS ARISING IN RELATION TO TOPIC 081 PRECINCTS Framework Plans 5.1 The use of framework plans is a mechanism that is used in a number of proposed precincts. Questions about the use framework plans have been raised by the Panel, and the Panel sought advice from Dr Royden Somerville QC. In his advice to the Panel, Dr Somerville QC indicated some concerns with the framework plan mechanism. 5.2 On 14 October 2015, the Council filed an application for an Environment Court declaration under Part 12 of the RMA in relation to the provisions in the PAUP relating to framework plans. The application was heard on 12 February 2016. At the conclusion of the hearing, the Council requested that the matter be adjourned to allow the Council case team the opportunity to undertake further amendments to its template framework plan provisions, to address issues around certainty which were raised at the hearing. 5.3 As set out in the Council’s memorandum to the Panel dated 22 February 2016, given that the Council’s framework plan provisions are being amended, the Council’s preference is to place the finalisation of the framework plan provisions on hold pending determination by the Environment Court on the Council’s application for declarations. 11 Accordingly, Council witnesses have not proposed any further amendments to framework plan provisions in their rebuttal evidence on precincts, even where specific amendments have been requested in submitter evidence. Managing Submissions Requesting New Precincts 5.4 New precinct requests ranged from complete proposals to ones with no supporting information.12 In order to manage the variability of the supporting information for new precinct requests, a Gateway Test was carried out. Requests for new precincts were assessed against three criteria:13 a) whether the purpose of the precinct is clearly understood; 11 Auckland Council, Update on Environment Court declaration proceedings and approach to Framework Plan provisions, 22 February 2016, at paragraph 10. 12 A discussion of the Council’s approach to new precinct requests is set out in the Council’s legal submissions for Topic 080 (General) at paragraphs 6.8 to 6.10. 13 John Duguid, EIC on Precincts, at paragraph 18.1. 31560772:631364 Page 6 b) whether the precinct clearly identifies the property or properties it relates to (the precinct cannot apply to only a portion of a site and should follow property boundaries); and c) the content of the precinct has been provided (i.e.
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