Which Rules Apply?
It goes without saying that the Auckland Unitary Plan (AUP) is a complex document, but it seems that even the Auckland Council (Council) can have difficulties interpreting it.
The AUP establishes a series of overlapping rules for zones, overlays, precincts, and controls as well as Auckland-wide rules. Knowing which rules apply to a particular site and activity is not always easy, even for those familiar with the AUP. This complexity was brought home by declaration proceedings in the Environment Court (Court).
The Council sought a declaration from the Court in respect of the relationship between the Single House Zone (SHZ) and the Special Character Areas Overlay Residential (SCAR) (see Auckland Council v Budden [2017] NZEnvC 209 (Interim Decision), [2018] NZEnvC 3 (No. 2) and [2018] NZEnvC 30 (No. 3)).
The SHZ and SCAR contain rules that relate to the same activities and standards, but impose a different activity classification and different performance criteria for those activities and standards. For example, additions and alterations to existing buildings are permitted activities in the SHZ, but are restricted discretionary activities that require resource consent in the SCAR. Similarly, the height in relation to the boundary standard in the SHZ allows a 45° recession plane 2.5m above ground level at the side and rear boundaries. The SCAR, however, allows a 45° recession plane 3m above any ground level at any boundary.
Since the AUP was made “operative in part” in October 2016, the Council considered that:
- the SCAR rules represented a complete replacement package for the corresponding set of development standards in the SHZ
- applicants only needed to refer to the SCAR rules in an application for resource consent; and
- the Council would not consider the SHZ rules where there was an equivalent rule in the SCAR (Council interpretation).
An applicant for resource consent questioned this position.
Following the Council’s declaration application, the Court made a declaration that effectively said the Council had been using a faulty interpretation. The Court held that both the SHZ and SCAR rules apply to resource consent applications for properties in the SHZ and the SCAR:
“Where a proposed activity:
(a) is on a site located within both the Residential-Single House Zone (“SHZ”) and the Special Character Areas Overlay-Residential (“SCAR”) of the partly operative Auckland Unitary Plan (“AUP”); and
(b) is classed as a restricted discretionary activity either under Activity Table D18.4. or, due to its non-compliance with a SHZ or SCAR development standard, under Rule C1.9(2)—
then the relevant SHZ, SCAR and General Rules (and any relevant objectives and policies) apply, in the processing and determination of any resource consent application for the proposed activity, without the SCAR rules prevailing over or cancelling out other rules.”
The declaration, therefore, relates specifically to applications for resource consent in the SHZ and SCAR. It displaces and overrides the Council’s position on the role of the SCAR and the relationship between the SCAR and the SHZ. It also puts consents granted under the Council interpretation (which remain valid consents) in potential jeopardy.
The Council has written to all consent holders that had their consent granted under the Council interpretation and advised them that:
- the Council did not consider the SHZ rules when considering their resource consent application;
- the Court has found that the Council should have considered the SHZ rules and given them equal consideration with the SCAR rules;
- there is a risk that their resource consent could be cancelled by the High Court if an interested party (most likely a neighbour) were to make an application for judicial review; and
- the Council will place a note on the Land Information Memorandum (LIM) for the property to that effect.
The Council has suggested that consent holders in this position apply for a replacement resource consent that will address all relevant rules. The Council will waive its processing fees in respect of such consents.
It has also since been reported that the Council may consider a plan change to amend the AUP to implement its preferred interpretation; so, watch this space.
For more information, please contact Vicki Toan on v.........@glaister.co.nz.