A U C K L A N D C O U N C I L REGIONWIDE PLAN CHANGES – VOLCANIC VIEWSHAFT PROTECTION DECISIONS FOLLOWING HEARINGS ON SIX PROPOSED PLAN CHANGES HELD BEFORE INDEPENDENT COMMISSIONERS ON 11, 12, 13 AND 14 FEBRUARY 2014 IN VARIOUS LOCATIONS ACROSS AUCKLAND PLAN CHANGE 1 – HAURAKI GULF ISLANDS SECTION OF THE AUCKLAND COUNCIL DISTRICT PLAN COMMISSIONERS: Miss Leigh McGregor Chair Ms Melean Absolum Mr Basil Morrison COUNCIL OFFICERS: Ms Fiona Sprott Principal Planner, Auckland Isthmus Ms Panjama Principal Planner, Central Area Ampanthong Mr Christopher Turbott Principal Planner, North Shore Ms Gemma Hayes Reporting Planner, Manukau Ms Hannah Thompson Reporting Planner, Hauraki Gulf Islands Mr Nicholas Lau Reporting Planner, Waitakere Mr Brad Coombs Landscape Architect Mr Andrew McPhee Planner Ms Paulette Gagamoe Democracy Advisor - Hearings APPEARANCES The following people appeared at the hearings and presented submissions and evidence to the Commissioners on one or more of the proposed Plan Changes: Party: Represented by: Department of Corrections Peter Hall, planning consultant Uptown Business Association Mr Gary Holmes, chairman Auckland Transport Evan Keating, senior transport planner Westfield New Zealand Limited Ms Francelle Lupis, legal counsel Mr Simon Pilkinton, junior counsel Ms Rachel de Lambert, landscape architect (with Mr John Jeffcock) Mr Athol Vivier, Westfield NZ Ltd Mr Craig McGarr, planning consultant Tram Lease Ltd, Viaduct Harbour Management Mr Trevor Daya-Winterbottom, legal Ltd and Viaduct Harbour Holdings Ltd counsel Mr Paul Gunn, General Manager, Tram Lease Ltd Mr Rob Pryor, landscape architect Mr Michael Foster, planning consultant Mr Michael Harris Auckland District Health Board Mr Craig McGarr, planning consultant Mr Alan Johns, Mr McQueen (ADHB) 2 Housing New Zealand Mr Brendon Liggett, planner Mr Shannon Bray, landscape architect Mr Stuart Bracey, planner Union Nelson Ltd and others Mr Mark Tollemache, resource management consultant Chris Hepworth and Llesa Hepworth Kath and Paul Barclay Ross and Shirley Warren Bucklands & Eastern Beaches Ratepayers & Mr Philip Salmon Residents Assoc Inc Mountain View School Board of Trustees Mr Andrew Wilkinson, planning consultant Ms Sue McLachlan, principal Mountain View School Ms Mere Selwyn, Mountain View School Board Trustee Te Whare Akoranga o te Pane o Mataoho Mr Hemi Dale, Chairman Educational Trust Te Akitai Waiohua Waka Taua Trust Ms Karen Wilson John and Olivia Holmes Holmes Family Trust Mr Nick Roberts, planning consultant Auckland Volcanic Cones Society Mr Greg Smith with Mr John Street Baradene College – Ms Brianna Parkinson, legal counsel Mr Reuben O’Neill, trustee RSCJ Mr Hamish Boyd, architect Mr Nicholas Scarles, landscape architect Mr Matthew Feary, planning consultant Evidence was tabled on behalf of: Glenn Broadbent Albatross QT Ltd The New Zealand Historic Places Trust Sally Peake The Dilworth Trust Board Mansons TCLM Limited David Muir DECISION ON PLAN CHANGE 1 – HAURAKI GULF ISLANDS SECTION OF THE AUCKLAND DISTRICT PLAN 1.0 INTRODUCTION 1.1 This decision is one in a series which address proposed changes to sections of the Auckland Council District Plan in order to implement protection for viewshafts to a number of volcanic cones in the Auckland region. 1.2 The “sections” of the District Plan were formerly the separate district plans of the various councils which were amalgamated to form the new Auckland Council. As a consequence, each proposed change is to be considered separately. Separate evaluation reports under section 32 of the Resource Management Act were prepared for each proposed change, each change was individually notified to the public, and a Plan Change 1 3 separate decision following the hearing of evidence at the hearings and consideration of the reports prepared on behalf of the Council is required from the Commissioners. 1.3 The proposed plan changes are: • Plan Change 339 to the Isthmus section of the District Plan (“PC 339”) • Plan Change 67 to the Central Area section (“PC 67”) • Plan Change 59 to the Manukau section (“PC 59”) • Plan Change 43 to the Waitakere section(“PC 43”) • Plan Change 1 – formerly labelled as Variation 11 - to the Hauraki Gulf Islands section (“PC1”), and • Plan Change 40 to the North Shore section (“PC40”). Background 1.4 Auckland’s volcanic field covers around 100 square kilometres. It originally contained 48 explosion craters. A number of these have been lost through quarrying and development. The remaining volcanic features define Auckland and have international, national, regional and local significance. An application to have the region’s volcanic field recognised by World Heritage status is being progressed. The volcanoes are particularly valued by tangata whenua and are part of the natural and cultural heritage of Auckland: they make Auckland unique. The cones and their curtilage also provide islands of naturalness, open space, and greenery which interact with the city’s constantly changing urban landscape. 1.5 Volcanic viewshafts are an integral component of the Council’s management of Auckland‘s volcanic field. They protect important views to and between the cones and, along with controls on the height of buildings around the cones (known as Height Sensitive Areas or “HSAs”), are a long-standing component of the region’s planning techniques. Views of the volcanic cones are generally protected by limiting the maximum building heights beneath each shaft to ensure that encroachment into the shafts does not occur and that significant views are maintained. The HSAs are intended to protect private property rights and to provide for reasonable use of the land beneath a viewshaft by allowing buildings to be built up to specified heights. Other height sensitive areas also protect the slopes of the volcanic cones from over-development. 1.6 The Resource Management Act 1991 (the Act”) requires every region in the country to have a regional policy statement. Under the planning framework required by the Act, regional and district plans cannot be inconsistent with a regional policy statement which functions as an umbrella policy document for environmental planning and policy development. Section 75 of the Act requires that a district plan must “give effect to” a regional policy statement and section 73 provides that a local Plan Change 1 4 authority must amend its district plan, or proposed district plan, if the regional policy statement is changed or varied. 1.7 The viewshafts to be considered are already included in, or have already been deleted from, the Auckland Regional Policy Statement (“ARPS”), a planning instrument prepared and administered by the former Auckland Regional Council and now the responsibility of the Auckland Council (“the Council”). 1.8 Most of the proposed plan changes do not introduce any new policies or rules into the sections of the District Plan, although these have to be inserted into the Hauraki Gulf Islands and Waitakere sections because those sections have not included any volcanic viewshafts to date. The wording of relevant policies and rules in the North Shore section is proposed to be amended to be consistent with the ARPS, and objectives and rules are also proposed to be amended in the Central Area section together with some new policies being introduced to reflect the viewshaft protection proposed by PC67. 1.9 We do not regard any of these amendments or insertions to those sections as reflecting any significant policy shift on the part of the Council, particularly in the context of the existing provisions of the ARPS and those which appear in other sections of the District Plan. Consistently with section 32(3) we regard the objectives as being the most appropriate way to achieve the purpose of the Act and the policies as the most appropriate way to achieve those objectives. We note also that the existing objectives and policies will already have been tested as to their appropriateness at the relevant times. 1.10 The ARPS sets out the broad resource management issues, objectives and policies for the Auckland region to achieve integrated management of its natural and physical resources. Following a change to its content, the document now identifies 87 volcanic cone viewshafts, many of which have been included in Auckland’s planning instruments since the mid-1970’s but also others which were introduced into the ARPS by Plan Change 8 (along with other measures) following a decade of research and work by the ARC and territorial authorities to review and update their respective plans and, later, the settlement of appeals in 2012 against the ARC’s decisions on this aspect of that particular plan change. A resurvey of all viewshafts and better contour data had also led to a change in height and extent for various other existing viewshafts through Plan Change 8. Those amendments are also being implemented by the current proposed changes to sections of the District Plan. 1.11 The current plan changes seek to implement the later 2012 viewshafts, and amended viewshafts, through the various sections of the District Plan described earlier. The reasons for inserting these viewshafts into the District Plan are: (a) there is an inconsistency between the ARPS and the sections of the District Plan as the later viewshafts are not presently recognised in the relevant District Plan provisions or the associated planning maps. The Council is therefore not “giving effect to” the ARPS as it is required to; and Plan Change 1 5 (b) a regional policy statement1 may identify methods to implement policies, but it cannot include any rules (see section 62(1) of the Act). The scheme of the Act does not include direct enforcement of regional policy statements against members of the public. As a result the ARPS can only provide direction through its objectives and policies but cannot regulate any building activity which might affect the new and amended viewshafts identified by Plan Change 8 as being regionally significant because the regional policy statement contains no rules.