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BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL

IN THE MATTER

of the Resource Management Act 1991


(RMA) and the Local Government
(Auckland Transitional Provisions) Act
2010 (LGATPA)

AND
IN THE MATTER

of Topics:
059 Residential objectives and policies;
060 Residential activities;
061 Retirement and affordability (in part);
062 Residential development controls;
and
063 Residential controls and assessment

AND
IN THE MATTER

of the submissions and further


submissions set out in the Parties and
Issues Report

LEGAL SUBMISSIONS ON BEHALF OF AUCKLAND COUNCIL


FOR TOPICS 059 RESIDENTIAL OBJECTIVES AND POLICIES; 060 RESIDENTIAL
ACTIVITIES; 062 RESIDENTIAL DEVELOPMENT CONTROLS AND 063 RESIDENTIAL
CONTROLS AND ASSESSMENT
(CHAPTER D1 RESIDENTIAL ZONES OBJECTIVES AND POLICIES, CHAPTER I1
RESIDENTIAL ZONES RULES, AND CHAPTER H5.2.3.1 SUBDIVISION DEVELOPMENT
CONTROLS FOR RESIDENTIAL ZONES)

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CONTENTS

1.

INTRODUCTION .............................................................................................................. 3

2.

RELEVANT STATUTORY FRAMEWORK ..................................................................... 15

3.

AGREED AMENDMENTS TO NOTIFIED PROVISIONS AS A RESULT OF


MEDIATION .................................................................................................................... 25

4.

OUTSTANDING ISSUES AND THE COUNCIL'S POSITION ........................................ 25

5.

MINIMUM LOT SIZE FOR UNSERVICED LOTS IN THE RURAL AND COASTAL
SETTLEMENT ZONE ..................................................................................................... 28

6.

OUTSTANDING MATTERS RELATING TO RESIDENTIAL SUBDIVISION


CONTROLS .................................................................................................................... 29

7.

OUTSTANDING MATTERS RELATING TO DESIGN STATEMENTS........................... 34

8.

OUTSTANDING MATTERS IN RELATION TO URBAN DESIGN.................................. 36

9.

OUTSTANDING PLANNING MATTERS ........................................................................ 43

10. OUTSTANDING MATTERS RELATING TO RETIREMENT VILLAGES ........................ 56


11. OUTSTANDING MATTERS RELATING TO AFFORDABLE HOUSING ........................ 60
12. CAPACITY FOR GROWTH ............................................................................................ 62
13. CORRECTIONS ............................................................................................................. 69
14. CONCLUSION ................................................................................................................ 69

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MAY IT PLEASE THE PANEL


1.

INTRODUCTION

1.1

These legal submissions for Auckland Council (Council) address the submissions
and evidence on the following district plan provisions of the Proposed Auckland
Unitary Plan (PAUP), which have been grouped under Topics 059 Residential
objectives and policies, 060 Residential activities, 062 Residential development
controls and 063 Residential controls and assessment1 (collectively referred to as
"the Residential Topics"):
(a)

Chapter D1.1 General objectives and policies for the residential zones;

(b)

Chapter D1.2 Large Lot zone;

(c)

Chapter D1.3 Rural and Coastal Settlement (RCS) zone;

(d)

Chapter D1.4 Single House zone (SHZ);

(e)

Chapter D1.5 Mixed Housing Suburban (MHS) zone;

(f)

Chapter D1.6 Mixed Housing Urban (MHU) zone;

(g)

Chapter D1.7 Terrace Housing and Apartment Buildings (THAB) zone;

(h)

Chapter l1.1 Activity table;

(i)

Chapter l1.2 Notification;

(j)

Chapter l1.3 Land use controls;

(k)

Chapter l1.4 Development Controls Large Lot zone;

(l)

Chapter l1.5 Development Controls RCS zone;

(m)

Chaper l1.6 Development Controls SHZ;

(n)

Chapter l1.7 Development Controls MHS zone;

(o)

Chapter l1.8 Development Controls MHU zone;

(p)

Chapter l1.9 Development Controls THAB zone;

(q)

Chapter l1.10 Assessment Restricted discretionary activities;

(r)

Chapter l1.11 Assessment Development control infringements;

(s)

Chapter l1.12 Special information requirements; and

(t)

Chapter H5.2.3.1 Residential Zones (subdivision development controls for


Residential zones).

The Council is conscious of the interim guidance recently received from the Panel on Chapter G, and
the potential implications for the Residential provisions. Given the timing of release of the guidance, the
Council has not had an opportunity to adopt a formal position in response to that guidance. That may
change however and we will keep the Panel updated in that regard as the hearing progresses.
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1.2

We will also refer collectively to these PAUP provisions as "the Residential zone
provisions" throughout these legal submissions.

We note also that we have

addressed aspects of the retirement and affordability topic (Topic 061) through
evidence and submissions.
A.

Primary and Further Submissions

1.3

There are 6,572 primary submission points and 62,116 further submission points
overall for the Residential Topics, with 1,037 primary submitters and 783 further
submitters wishing to be heard.2 The essential information on these submissions is
contained in the Parties and Issues Report (PIR) for the Residential Topics, released
on 25 May 2015. The PIR was accompanied by Submission Point Pathway (SPP)
reports for each Residential topic, dated 29 April3, 27 August4, and 5 October 20155.

1.4

The PIR groups the submission points into the following categories:6
Topic 059 Residential objectives and policies:
(a)

Chapter D1.1 General objectives and policies for the residential zones;

(b)

D1.2 Large Lot Zone;

(c)

D1.3 RCS zone;

(d)

D1.4 SHZ;

(e)

D1.5 MHS zone;

(f)

D1.6 MHU zone;

(g)

D1.7 THAB zone;

(h)

General Matters (Submissions on D1.2-1.7); and

(i)

Site specific.

Topic 060 Residential activities:

2
3
4
5
6

(a)

Activity Table; and

(b)

Site specific.

Auckland Unitary Plan Independent Hearings Panel, Hearing Topics 059, 060, 062 and 063 Parties and
Issues Report (PIR), released on 29 May 2015 for the Pre-hearing Meeting, page 7.
For Topic 060.
For Topics 062 and 063.
For Topic 059.
PIR, pages 8 to 15.
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Topic 062 Residential development controls:


(a)

Development controls: Large Lot Residential;

(b)

Development controls: Rural and Coastal Settlements;

(c)

Development controls: SHZ;

(d)

Development controls: MHS;

(e)

Development controls: MHU;

(f)

Development controls: THAB;

(g)

Development Controls: General/multi zone;

(h)

Subdivision; and

(i)

Site Specific/Spatial.

Topic 063 Residential controls and assessment criteria:


(a)

Land use Controls Density;

(b)

Land use controls conversion of a dwelling;

(c)

Land use controls other;

(d)

Assessment;

(e)

Notification; and

(f)

Site specific/spatial.

B.

Facilitated Workshops

1.5

There was no expert caucusing for the Residential Topics.

However the Panel

considered that a two-stage approach should be taken to mediation, and directed that
facilitated workshops and mediations be scheduled.7
1.6

The facilitated workshops took place over 5 sessions from 22 - 26 June 2015. They
were attended by a number of submitters, as well as representatives of the Council.
A 'Workshop Outcomes' document dated 26 June 2015 was prepared by Panel staff,
and has been publicly available on the Panel's website since 29 June 2015. The
Council's presentations at the commencement of each workshop session have also
been available on the Panel's website since 29 June 2015.

1.7

One key outcome from the workshop sessions was the establishment of a working
group of planners representing a range of submitter interests (Working Group). The
key purpose of the Working Group was to discuss how to manage amenity and built

PIR, pages 15 - 16.


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character if density controls were removed, including through giving greater attention
to the notification and assessment criteria for infringing core development controls.
1.8

Following the workshops, Council officers produced a marked-up (track changes)


version of the Residential zone provisions for mediation.

Those provisions

responded to the outcomes of the facilitated workshops as well as the primary and
further submission points contained in the PIR and SPP Reports. Those marked up
provisions were made publicly available via the Panels website on 17 July 2015
ahead of the mediations.
C.

Mediations

1.9

Facilitated mediation sessions took place on 27 - 31 July, 4 - 7 August and 10 - 11


August 2015.

1.10

The Joint Mediation Statement, prepared by Panel staff and released on


12 August 2015, outlines for some8 of the mediation sessions, areas where
agreement was reached between the parties present and a summary of the matters
which remained outstanding.9 The remaining matters of dispute are addressed in the
evidence in chief and rebuttal for various submitters that have been filed with the
Panel. In his Evidence in Chief (EIC) for the Council, Mr Roberts summarised some
of the key matters that arose in mediations as including:10
(a)

concerns about linking development potential to infrastructure provisions in the


MHS, MHU and THAB zone objectives and policies;

(b)

concerns that the development controls in the MHS, MHU and THAB zones did
not facilitate the housing typologies planned for those zones;

(c)

concerns over the proposed shift in focus for the SHZ from maintaining a
detached dwelling suburban character, to limiting growth in areas of constraint;

(d)

concerns over the lack of provision of minor dwellings in the Large Lot zone,
RCS zone, and the SHZ (acknowledging that minor dwellings do not need to be
provided for in the zones without density controls); and

9
10

The Joint Mediation Statement (Joint Mediation Statement) provides a summary of the areas of
agreement and remaining areas of disagreement for the first and second mediation sessions only. For
the rest of the mediation sessions, only summaries of matters discussed at those sessions are set out.
Joint Mediation Statement, pages 1, 9 - 10.
EIC of N Roberts for Auckland Council, Topics 059-063, 9 September 2015, paragraph 11.3.
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(e)

the Working Group continuing to meet to discuss the approach to the core
development controls to maintain built character and amenity.

1.11

The matters concerning the SHZ arose during session 5 of the mediations on the
SHZ provisions when Mr Roberts relayed an 'interim position' for the Council
regarding the SHZ's (purpose) description.

In particular, that the Single House

zoning apply to areas which either have historic character or identified natural values,
or areas with significant environmental or infrastructural constraints.11

While we

discuss this issue in further detail from paragraph 1.22 of these legal submissions,
we note at this point that the Joint Mediation Statement records that parties like the
Housing New Zealand Corporation (Housing NZ) and Fletcher Residential Limited
(Fletcher Residential) generally supported the intent of the Council's interim position
on the SHZ.

However Auckland 2040 Incorporated (Auckland 2040) and other

resident groups including Herne Bay Residents Association Incorporated (Herne Bay
Residents) considered it a "significant policy shift".12 The Joint Mediation Statement
records their concerns with the Council's interim position as follows: 13
(a)

Potentially it will exclude areas with high residential character that are not
currently mapped as special character and potentially coastal fringe areas
currently zoned Single House.

(b)

Because of the number of people this potential change could impact, these
parties considered there was a natural justice issue to address.

1.12

Following mediation, the Councils witnesses further considered the provisions


generating debate and / or disagreement. The proposed updated tracked provisions
are set out in Attachment 2 to Mr Roberts' EIC dated 9 September 2015, and are
further updated in Attachment A to Mr Roberts' Evidence in Rebuttal (EIR), dated
6 October 2015.

1.13

At this point we think it is important to observe that the notified provisions have
undergone significant review, analysis and discussion with key stakeholders,
community representatives and members of the community who attended the
workshops and mediations. The proposed provisions respond to and give effect to
the proposed Regional Policy Statement (RPS) provisions in the PAUP.

11
12
13

Joint Mediation Statement, section 11.1, page 16 of 40.


Ibid.
Ibid.
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D.

Proposed Changes to the Notified Provisions

1.14

The proposed changes to the notified provisions are summarised in paragraph 1.8 of
Mr Roberts' EIC (as amended by the changes/refinements summarised in paragraph
1.2 of his EIR, and set out in Attachment A to that EIR). In brief they include:
(a)

Amending the SHZ description, and various objectives and policies.

(b)

Deleting the density controls in the MHU zone and for those sites over
1000m2 in the MHS zone. Density on sites less than 1000m2 have also been
reduced in the MHS zone to give a density of one dwelling per 200m2.

(c)

In relation to building height in the THAB zone:


(i)

Increasing the permitted building height and setbacks within the THAB
zone from 13.5m as notified (or 14.5m where semi-basement parking is
provided) to 16m or 19.5m / 22.5m in areas subject to the Additional
Zone Height Control (AZHC).

(ii) Enabling an additional 2m in height to be sought as a non-notified


Restricted Discretionary (RD) activity in the THAB zone.
(iii) Replacing the setback control within the THAB zone with a permitted
HIRB consistent with MHU zone and an Alternative Height in Relation to
Boundary (AHIRB) control in the THAB zone (as a non-notified RD
activity).
(d)

Rationalising a number of development controls, specifically:


(i)

Amendments to provide matters of assessment which better clarify


when resource consent applications to infringe development controls
may be approved or declined.

(ii) Deleting some of the development controls relating to onsite amenity


and addressing that matter through design assessment criteria instead.
(iii) Improving the clarity of the purpose of the development controls, better
linking them with the development control infringement criteria, and
improving the connection of the controls to the objectives and policies.
(iv) Amending the assessment criteria for infringements for clarity and
consistency.
(v) Deleting clause 2 of the wastewater development controls in 7.20 for the
MHS zone, 8.21 for the MHU zone, and 9.18 of the THAB zone.
(e)

Reducing the design assessment threshold for a non-notified RD resource


consent from 4 to 3 dwellings in the MHS and MHU zones, and increasing
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the design assessment threshold for the THAB zone for 2-4 and 5+ dwellings
which were Discretionary and RD activities respectively.
(f)

Various amendments to the Activity table for land use activities to adopt an
intensity approach based on numbers of people rather than Gross Floor Area
for

supported

residential

care

(SRC),

boarding

houses,

visitor

accommodation and care centres.


(g)

Providing for Education and Tertiary Education facilities in the Large Lot zone
as Discretionary activities rather than Non-Complying.

(h)

Providing for care centres and community facilities on sites designated by the
Minister of Education, and offices in identified City Centre and Takapuna
Centre fringe areas as Permitted activities, subject to conditions.

(i)

Amending the introduction, objective 2a and policy 6 in section 1.1 General


objectives and policies for the residential zones.

(j)

In the MHS zone:


(i)

Amending the density rule so that it applies to 'site area' rather than 'net
site area'.

(ii) Reinstating the AHIRB control.


(k)

Reducing the minimum lot size in the RCS zone from 3000m2 to 2500m2.

(l)

Applying the AZHC to identified sites at Stonefields and 1 Domain Drive,


Parnell.

(m)

Amending the definition of "Landscaped area" to enable paths up to 1.5m


(instead of 1.0m) in width to be included.

1.15

With the exception of the proposed amendment to reinstate the AHIRB control in the
MHS zone, all of these amendments are supported by the Council. All the proposed
amendments to the Residential zone provisions are discussed in the Councils
evidence.

1.16

We also note at this point that the PAUP includes an AZHC as a mechanism for
providing site-specific height controls which override the heights specified within
precincts or zones where height is addressed as part of that package of rules. The
AZHC was notified as the 'Additional Building Height Overlay' with a set of
accompanying rules in Chapter J4.2. That chapter, through Council's evidence for
Topic 078 Additional Height Control, is now proposed to be deleted, with the 'overlay'
now being replaced with the 'AZHC'.

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1.17

As is noted in section 26 of Mr Roberts' EIC and the Council's evidence for Topic
078, the AZHC works by delineating a site or area on the planning maps, and
specifying a height limit. For example, the heights specified in the AZHC overide the
applicable zone-wide height control (i.e. the maximum building height for the THAB
zone). Currently the Council has proposed to increase the permitted height in the
THAB zone to 16m (from 13.5m in the notified PAUP), with up to an additional 2m for
roof forms to be assessed on a non-notified basis. The AZHC in the THAB zone
provides for the Permitted height to increase to 19.5m and 22.5m.

E.

Council's Strategic Approach to Residential Zoning

1.18

It is worth outlining at this point, the Council's strategic approach to Residential


zoning. Mr Roberts sets this out in Part B of his EIC.14

1.19

The Council has taken a strategic approach to implementing the RPS15 in the
Residential zone provisions.

As Mr Roberts outlines in section 9 of his EIC

(paragraph 9.5 onwards), the relevant RPS objectives and policies may be grouped
into three key policy themes:

1.20

(a)

A quality compact city;

(b)

Housing capacity and choice; and

(c)

Quality living environment and residential amenity.

The Residential zoning strategy sets the overall approach to the region's Residential
zones in order to address these themes. The notified PAUP prescribes six standard
Residential zones, with additional area-specific local variation provided for through
precincts and overlays. Mr Roberts describes these zones (in the PAUP as notified)
in section 13 of his EIC, and we summarise them as follows:
(a)

Large Lot: usually on the periphery of Aucklands urban areas with limited or
no access to a reticulated wastewater network. The zone generally forms a
transition between rural and urban land.

(b)

Rural and Coastal Settlement: Unserviced rural and coastal settlements,


providing for a village residential character and for onsite treatment and

14
15

EIC of N Roberts for Auckland Council, Topics 059-063, dated 9 September 2015, sections 13-16.
This is the version proposed to be amended by the Council in its evidence on the RPS.
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disposal of stormwater and wastewater as reticulated infrastructure is not
available.
(c)

Single House: One dwelling per 600m2, provides for areas to retain a low
density suburban residential character of detached dwellings in open,
spacious neighbourhoods.

(d)

Mixed Housing Suburban: Spatially the largest residential zone, provides


flexibility of housing choice at a range of densities while retaining a relatively
spacious quality.

(e)

Mixed Housing Urban: Flexibility of housing choice by enabling attached and


detached housing typologies at an urban scale characterised by larger
buildings than in an area with more suburban character.

(f)

Terrace Housing and Apartment Buildings: Supports growth and housing


choice by encouraging intensive housing to be established on the periphery of
local, town and metropolitan centres, and in areas with good public transport
accessibility.

1.21

In the PAUP as notified, each Residential zone comprises the following proportions of
the region (in terms of land area):16

Residential zones in urban Auckland

Land area

THAB

5%

MHU
MHS
SHZ
RCS
Large Lot

10%
40%
32%
4%
9%

F.

Proposed Amendments to the SHZ

1.22

In light of the Council's Residential zoning strategy, and as we mentioned earlier in


paragraph 1.11, the Council proposed amendments to the SHZ description,
objectives and policies at the mediation session on 5 August 2015. While we note
that matters concerning this issue from the Council's perspective are addressed in a
Memorandum of Counsel for Auckland Council dated 1 September 2015

16

Auckland Council, Introduction Presentation to the Residential Workshop on 22 June 2015, available on
the Panel's website.
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(Memorandum)17 (which is available on the Panel's website), it is helpful to briefly
overview those proposed amendments at this juncture.
1.23

As Mr Roberts states in section 5 of his EIC, and as set out in the Memorandum, the
proposed changes are intended to clarify the SHZ's purpose.

Specifically, changes

are proposed to:

the SHZ's Description to make it clear that the zone's focus is on land which
has either historic character values, identified natural character, or is located
in areas with significant environmental or infrastructure constraints; and

1.24

the SHZ's Objectives and Policies to reflect these characteristics.

The Memorandum was drafted in response to the Panel's email request of 6 August
2015 that the Council address the scope issues in relation to its proposed changes,
and the natural justice and fairness issues in relation to the consequential changes to
the zoning maps raised by certain submitters including Auckland 2040 at the
mediation session on 5 August 2015.

The Council's position is summarised in

section 5 of that Memorandum as follows:


(a)

That the proposed changes:


(i)

are important and necessary to ensure a clearer distinction between


the SHZ and MHS zone;

(ii)

are consistent with submissions in support of intensification,


submissions requesting upzonings, requests to retain/increase the
size of the SHZ, and requests to amend various SHZ controls; and

(iii)

will not result in the rezoning of properties unless there is a


submission to support a rezoning request (noting that rezonings may
also be proposed on an 'out of scope' basis).

(b)

That there may be consequences for property owners once the PAUP is
operative, and in the event that plan changes were proposed so as to change
areas previously zoned SHZ or MHS. Property owners would, however, have
an opportunity to submit on those plan changes.

It is acknowledged,

however, that unless the zone's objectives and policies were put at issue, it
would be difficult to challenge them at a later time.

17

See Memorandum of Counsel for Auckland Council, Issues Arising in Mediation for the Single House
Zone, 1 September 2015.
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1.25

We note that while considerations of scope are (consistent with case law)
undoubtedly important, the statutory framework applicable to the PAUP is notably
different in light of section 144(3) of the LGATPA, which provides that the Panel is not
limited to making recommendations only within the scope of the submissions to the
PAUP. While no guidance is offered in the LGATPA as to what factors the Panel
should take into account when recommending out of scope changes, an unfettered
discretion of this kind should be exercised in a principled way. We note Dr Royden
Somerville QC's opinion to the Panel on Interim Recommendations that the
jurisdiction in section 144(3) "is not isolated from natural justice considerations"18.
We discuss the relevant law in this area in section 2 of these submissions.

G.

Approach Taken in Legal Submissions

1.26

Given the vast number of submissions to the Residential Topics, the approach we
have taken with these legal submissions is to address the key points of difference
between the matters raised by submitters in evidence and the position of the Council.
By not referring to particular submissions or evidence, this should not be taken to
indicate the Council's acceptance of, or agreement to, the points raised. In terms of
a structure, these legal submissions will address:
(a)

the relevant statutory framework (in section 2);

(b)

the matters agreed at mediation (in section 3);

(c)

the outstanding matters of disagreement (forming the bulk of these


submissions) (in sections 4 11);

(d)

matters concerning the growth and capacity model (in section 12);

(e)

some corrections that are required to the evidence filed for the Council (in
section 13); and

(f)
1.27

our conclusions.

With the exception of the matter noted at paragraph 1.15 above concerning the
reinstatement of the AHIRB control in the MHS zone, the Council's position on the
Residential zones provisions is reflected in Attachment A to Mr Roberts' EIR, dated
6 October 2015.

18

See the legal advice from Dr R Somerville QC to the Panel on Interims Recommendations, 5 February
2015, paragraph 85.
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1.28

In relation to the Affordable Housing bonus provisions, the Council's position is


reflected in Attachment A to Mr Mead's EIR, dated 6 October 2015.

1.29

In relation to the subdivision rules for the Residential zones (excluding minimum lot
sizes), the Council's position is reflected in Attachment B to the Joint EIR of
Ms Stewart and Ms Hardman-Miller, dated 6 October 2015 (subject to the
amendment described at paragraph 6.11 below).

H.

Evidence

1.30

The Council is calling evidence from 18 witnesses in support of its position on the
Residential provisions of the PAUP (two of whom are presenting a joint statement19):
1)

Nicholas (Nick) Roberts (Planning);

2)

Don Munro (Auckland Transport);

3)

David Blow (Watercare Services Ltd (Watercare));

4)

Graeme McIndoe (Urban design General);

5)

Peter Nunns (Economic analysis of development controls);

6)

Tracy Ogden-Cork (Urban design Design Statements);

7)

Kevin Wong-Toi (Transport planning);

8)

Dr Claudia Hellberg (Impervious surfaces and water sensitive design);

9)

Rose McLaughlan (Building Act and Building Code);

10)

Alexander (Sandy) Ormiston (Wastewater engineering in the RCS zone);

11)

Elizabeth (Liz) Stewart and Rereata Hardman-Miller (Planning Subdivision


rules for the Residential zones (excluding minimum lot sizes));

12)

Yvonne Weeber (Urban design Subdivision rules for the Residential zones);

13)

Karl Hancock (Transport Planning Shared access Subdivision rules for the
Residential zones);

19

14)

David Mead (Planning Affordable housing);

15)

Deanne Rogers (Planning Retirement villages);

16)

Kyle Balderston (Economic capacity and feasibility modelling); and

17)

Dr Douglas (Doug) Fairgray (Economic - development capacity).

Elizabeth Stewart and Rereata Hardman-Miller.


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1.31

Ms McLaughlan has been excused from attending the hearing by the Panel Chair
due to personal circumstances.

2.

RELEVANT STATUTORY FRAMEWORK

A.

General

2.1

The legal framework applying to the PAUP under the LGATPA and the RMA will be
familiar to the Panel. In short, the PAUP must be prepared in accordance with Part 4
of the LGATPA and the RMA, except where the RMA's provisions are excluded from
applying by, or correspond to provisions in, Part 4 of the LGATPA.20

2.2

We have set out the relevant statutory framework for district plan level provisions in
previous legal submissions, for example in Topics 022 Natural Hazards and Flooding,
041 Earthworks and Minerals, and 045 Airports. With regard to RPS matters, we
refer to the relevant statutory framework text in our legal submissions for Topics 006
and 007 for example, on Natural Resources and RPS Climate Change (each in
section 2), including noting the Panel's directions in the final paragraph of its Judicial
Conference on Interim Recommendations 27 January 2015 Conference minute that it
will "hear and make recommendations on the PAUP as a combined document so that
the proposed plan would give effect to the proposed RPS rather than the presently
operative RPS".21 We adopt the statutory framework provisions in all of those legal
submissions here in relation to the Residential Topics to the extent relevant.

2.3

Mr Roberts also sets out the relevant statutory framework for the PAUP's Residential
zone provisions in section 6 of his EIC. Among other matters, Mr Roberts addresses:
(a)

The pertinent RMA provisions regarding district plans, Part 2 and sections 32
and 32AA;

(b)

Legacy district plans in Auckland, and the general trends in those plans to:
(i)

enable low density development as a permitted activity; and

(ii)

enable higher density development in appropriately zoned areas


through a resource consent process requiring design assessment for
multiple dwellings;

20
21

Section 121 LGATPA.


Dated 9 February 2015.
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(c)

The Auckland Plan, including its specific focus in Chapter 11 on Aucklands


housing, with an overall aspiration of ensuring that all Aucklanders have
secure, healthy homes they can afford; and

(d)

By reference to the EIC of Ms McLaughlan for the Council - the Building Act
2004 and the Building Code (in Schedule 1 of the Building Regulations 1992),
and the Housing Improvement Regulations 1947 (HIR 1947).

B.

Scope

2.4

A key aspect of the statutory framework applicable to the Residential Topics relates
to the amendments proposed to the SHZ description, objectives and policies; namely
the Panel's ability to recommend out of scope changes to the PAUP under the
LGATPA.

2.5

As we mentioned earlier in paragraph 1.25, while scope is important, the statutory


framework applicable to the PAUP is notably different in light of section 144(3) of
LGATPA, which reads:
144

(3)
(a)
(b)

2.6

Hearings Panel must make recommendations to Council on proposed


plan
However, the Hearings Panel
is not limited to making recommendations only within the scope of the
submissions made on the proposed plan; and
may make recommendations on any other matters relating to the proposed
plan identified by the Panel or any other person during the Hearing.

We submit that the Panel's ability to make recommendations outside the scope of
submissions is an important distinguishing aspect of the LGATPA regime. We also
observe in relation to this provision that:
(a)

No guidance is offered in the LGATPA as to what factors the Panel should


take into account when recommending out of scope changes.

(b)

We note the view expressed by Dr Somerville QC to the Panel on Interim


Recommendations, Dr Somerville QC considered that the jurisdiction in

31606497:631362

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section 144(3) was "not isolated from natural justice considerations"22. While
we do not demur from that general proposition, we do note that the specific
right of appeal available under section 156(2) of LGATPA may be seen as
moderating

natural

justice

(and

similar)

concerns

arising

from

any

amendments recommended by the Panel that are out of scope.


(c)

There is no express process in place in the LGATPA for out of scope changes
akin to section 293 of the RMA (which envisages consultation with the "parties
and other persons that the Court directs").

This may be seen as a

deliberate decision by the legislature, for instance to avoid potential delays to


the process due to the initiation of further processes of notification.
(d)

Ultimately, we are mindful of previous findings of the courts to the effect that
the Court cannot permit a planning instrument to be appreciably amended
without real opportunity for participation by those potentially affected.23 While
we note that much of the case law in this area relates to submissions filed as
part of the First Schedule process in the RMA, we expect that the Panel will
wish to exercise the unfettered discretion in section 144(3) of the LGATPA in
a principled way.

2.7

Turning now to the relevant case law on scope, we begin with the Environment
Court's recent decision in Environmental Defence Society v Otorohanga District
Council24 (a decision of Your Honour's on the jurisdiction to make a consent order).
In Otorohanga, the Court considered whether a proposed outcome agreed on by the
parties to the appeals in that case, and expressed in the draft consent order, was
within the scope of the Otorohanga Proposed District Plan as publicly notified or as
sought to be amended by an appellants submission on it.25

We note that the

jurisdictional issue that the parties raised before the Court in that case was "an
essential one in the process for preparing or changing a District Plan"26. The Court's
review of case law noted the emphasis placed on procedural fairness and highlighted
the potential tension between two fundamental principles27:

22
23
24
25
26
27

See the legal advice from Dr R Somerville QC to the Panel on Interims Recommendations, 5 February
2015, paragraph 85.
As noted for example, by the High Court in Clearwater Resort Limited v Christchurch City Council
HC Christchurch AP34/02, 14 March 2003, at paragraph [66].
[2014] NZEnvC 70.
Ibid, paragraph 7.
Ibid.
Ibid, paragraphs 18 and 19.
31606497:631362

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(a)

First, that the Court cannot permit a planning instrument to be appreciably


amended without real opportunity for participation by those potentially
affected; and

(b)

Second, that care must be exercised on appeal to ensure that the objectives
of the legislature in limiting appeal rights to those fairly raised by the appeal
are not subverted by an unduly narrow approach.

2.8

The Court found that fundamentally, in determining a matter of jurisdiction, it is an


"objective assessment based on the text of the relevant documents rather than on
the personalities of any participant or the circumstances of tenure or use of the land",
yet it must allow a degree of latitude in its application so as to be realistic and
workable rather than a matter of legal nicety.28

2.9

We also refer the Panel to the Environment Court and High Court decisions in
Healthlink South Limited v Christchurch International Airport Limited &
Canterbury Regional Council29 (the Healthlink proceedings) relating to the zoning
of hospital land, and whether a residential zoning was within scope. We submit that
the Courts' findings in those proceedings are of some relevance to any finding that
there is in fact scope to make the proposed amendments to the SHZ description,
objectives and policies as they recognise the possibility of "new objectives, policies
and rules" as something potentially within scope, falling between the original PAUP
as notified, and the relief sought in submissions.
Healthlink said (emphasis added in bold):

The Environment Court in

30

I hold that, as part of the ultimate question as to whether an amendment to a proposed


plan is fairly and reasonably within the submissions filed, the local authority must
consider whether interested persons would reasonably have appreciated that such an
amendment could have resulted from the decision sought by the submitter as
summarised by the local authority. As the Full Court pointed out in Countdown this is
very much a question of degree. An amendment to a proposed plan may, as a result of
other submissions and further deliberation, be in quite different words but to be
fairly and reasonably within a submission, the amendment must at least bear a
family resemblance to:
(a)

28
29
30

the original proposed plan; or

Paragraph 43.
Judge Jackson's decision in C077/99 was appealed to the High Court in AP14/99. See [2000] NZRMA
375.
At page 6 of Judge Jackson's Environment Court decision, and duplicated in paragraph [12] of Hansen
J's decision in the High Court.
31606497:631362

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(b)
(c)

a submission and the relief sought as summarised by the Council, or


something in between[24] (a) and (b) - including possibly new objectives,
policies and rules.

An amendment to a proposed plan cannot be the opposite or completely different


from the relief in at least one of the local authority's clause 7 summaries[25]. If it is,
then such a procedural defect can be just as fatal[26] as a substantive decision going
outside the scope of a submission.
2.10

The Summary of Decisions Requested (SDR) report notified by the Council on


11 June 201431 (and on which the further submissions are based) is therefore
relevant.

In Healthlink the Courts found it was relevant to consider whether a

reasonable non-expert reader of the summary who was informed of (if not thoroughly
conversant with) the distinction between 'residential activities' and 'other activities' in
the city plan, could have appreciated that residential activities were contemplated for
the hospital land?32 This was viewed as part of the wider test as to whether the
proposed residential zone would lie fairly and reasonably within the submission as a
whole.
2.11

While we note that no single submission to the PAUP is 'on all fours' with the
Council's proposed amendments to the SHZ description, objectives and policies, we
submit that it is apparent from the SDR Report (and the SPP Reports for the
Residential Topics which are based on that Summary) that a number of submitters
wanted to make the differences between the various Residential zones more distinct,
and requested changes to provide more for intensification, which collectively in our
view, merit the amendments now being proposed in Attachment 2 to Mr Roberts'
EIC (as amended by Attachment A to his EIR).33

31
32
33

We also note that the SPP Reports attached to each PIR for various topics in the Panel's hearings
process are based on the Council's Summary of Submissions.
At paragraph 22 of Judge Jackson's Environment Court decision, and duplicated in paragraph [13] of
Hansen J's decision in the High Court.
For example, submissions from Habitat for Humanity Greater Auckland Limited (Submitter 3600)
(Habitat), Patrick Fontein (Submitter 6282) and Housing NZ (Submitter 839) all make references to
changes being required to the PAUP to achieve greater intensification. Habitat requested that the SHZ
"be abolished", and points to the distribution of Single House zoning as "puzzling" and "haphazardly
spread around the city". Habitat considers that for "large tracts of land close to the downtown area"
which have been zoned SHZ, "common logic would suggest that intensification would better meet the
plan's objectives" (See submission point 3600-09).
Stephen Davis (in submission points 4823-18 to 33) considered the SHZ had been "over-applied" and
generally thought that inner suburban Special Character areas should not be zoned SHZ.
A number of submitters like Housing NZ requested (Submitter 839) upzoning changes generally.
Housing NZ's site specific zoning submissions are set out in Table 3c of its original submission to the
PAUP.

31606497:631362

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2.12

While we recognise that this would render some of the land presently zoned SHZ as
now not appropriate for that zoning, we submit that the proposed changes relate back
to key RPS themes of a quality compact city (and a driver to intensify), housing
capacity and choice, and quality living environments and residential amenity. As
Mr Roberts explains in section 13 of his EIC (and notably in paragraph 13.19), the
SHZ had been applied to areas where intensification is not appropriate due to natural
hazards, natural or built heritage or identified infrastructure constraints, or in areas
with poorer accessibility and connections to centres or good quality public transport.
As notified, the SHZ had been applied to areas which may be within a walkable
catchment of centres and public transport networks, which would be contrary to the
policy direction seeking to achieve a quality compact city. The application of the SHZ
as notified has also, as noted in a submission by Habitat for Humanity Greater
Auckland Limited for example, resulted in SHZ sites being applied directly adjacent to
a high intensity zone.

2.13

We also submit that there may be some support for a principle-based approach to
scope (i.e. an approach not based purely on the relief sought in submissions) to be
derived from cases such as Johnston v Bay of Plenty Regional Council34. In that
case, a jurisdictional issue was raised as to whether certain disputed wording in a
rule was within the scope of submissions and further submissions. It was common
ground that no submission or further submission expressly sought the introduction of
the part of the rule in question. His Honour's judgment referred inter alia to:
(a)

The following well-known passage from Countdown Properties (Northlands)


Ltd v Dunedin City Council [1994] NZRMA 145, at 165:
Councils customarily face multiple submissions, often conflicting, often
prepared by persons without professional help. We agree with the Tribunal
that Councils need scope to deal with the realities of the situation. To take a
legalistic view that a Council can only accept or reject the relief sought in any
given submission is unreal. As was the case here, many submissions

Other submitters have requested to be upzoned from SHZ to MHU or MHS zoning; a sample list of
which include Housing NZ (Submitter 839), Martin Cooper (Submitter 6042), James Mooney (Submitter
5758), Brendan and Natalie Doherty (Submitter 4680), Patrick Fontein (Submitter 6282), Ockham
Holdings Ltd (Submitter 6099), and Walter Stevens (Submitter 5688).

34

Submitters such as Helena Mayo (Submitter 1957), Howick Ratepayers and Residents Association
(Submitter 2705), Diane Cameron (Submitter 3783), and Grant Lilly (Submitter 52) for example, have
made requests to either retain or expand the SHZ.
A106/03.
31606497:631362

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traversed a wide variety of topics; many of these topics were addressed at the
hearing and all fell for consideration by the Council in its decision.
(b)

The finding by the High Court in Royal Forest and Bird Protection Society v
Southland District Council35 to the effect that a submission seeking a change
to one provision of a plan, can be partly allowed by amending another provision
(in that case, the High Court had held that submissions made in relation to the
heritage section of the plan clearly raised the "theme" of greater control upon
activities likely to affect native flora and fauna).

(c)

Judge Bollard also referred to the element of flexibility allowed by clause


10(2) of the First Schedule in relation to consequential alterations and other
relevant matters provided that they arose out of submissions or were raised in
submissions.

The equivalent provision in the First Schedule is now

clause 10(2)(b), which is in turn largely replicated in section144(7) of the


LGATPA as follows:
The report may also include
(a)
(b)

2.14

matters relating to any consequential alterations necessary to the


proposed plan arising from submissions; and
any other matter that the Hearings Panel considers relevant to the
proposed plan that arises from submissions or otherwise.

Judge Bollard held that while the amendments to a proposed plan were not
specifically requested in submissions, the submissions had in substance effectively
raised the issue, providing the Court with jurisdiction.

2.15

We submit that a similar argument is available here to the Council. We noted in


paragraph 5(b) of our Memorandum that a number of submissions raised matters in
support of intensification, requests for upzoning from SHZ, requests to increase or
retain the size of the SHZ to reflect special character values of certain city-fringe
suburbs, and submissions seeking to amend various SHZ development controls
which have, in Council's view, effectively raised the issue of a need to rationalise the
approach to the SHZ and the MHS. These matters are broadly addressed in section
13 and paragraphs 15.26 15.36 of Mr Roberts' EIC.

35

[1997] NZRMA 408.


31606497:631362

Page 22
2.16

For completeness, we also draw the Panel's attention to Wylie J's High Court
decision in General Distributors Limited v Waipa District Council36. The Court's
summary of case law reaffirms the principle that scope is not to be approached from
the perspective of legal nicety:
[59]

In Royal Forest & Bird Protection Soc Inc, Pankhurst J at p 413 adopted the
Countdown Properties test and went on to comment as follows:
it is important that the assessment of whether any amendment was
reasonably and fairly raised in the course of submissions, should be
approached in a realistic workable fashion rather than from the
perspective of legal nicety.

[60]

2.17

This approach requires that the whole relief package detailed in submissions
be considered when determining whether or not the relief sought is
reasonably and fairly raised in the submissions see Shaw v Selwyn DC
[2001] 2 NZLR 277; [2001] NZRMA 399, at para 44.

However we note that the High Court in General Distributors ultimately found that
an explanation for an objective was not within scope (i.e. of a submission/further
submission, nor was it signalled in the notified plan), stating that:
[63]

2.18

In my view councils, and the Environment Court on appeal, should be


cautious in making amendments to plan changes which have not been sought
by any submitter, simply because it seems that there is a broad consistency
between the proposed amendment and other provisions in the plan change
documentation. In such situations it is being assumed that the proposed
amendment is insignificant, and that it does not affect the overall tenor of the
plan change. I doubt that that conclusion should be too readily reached.
Lawyers and planners will often seek to bolster their arguments by reference
to particular provisions contained in a plan, and that it is difficult in advance
to predict how significant or otherwise certain passages or words in a plan
may prove to be. To reason that an amendment can be made because it is
consistent with the broad tenor of a plan change, begs the question why is
it being belatedly sought by one side and why is it being resisted by the
other?

In summary, we acknowledge that the issue of scope is a difficult one because this
process provides only one opportunity to 'get the plan right'. It is Mr Roberts' clear
view that the SHZ description and objectives and policies need to change so as to
describe the elements the zone is directed at protecting properly, and we have noted
that he addresses these matters in paragraph 13.19 of his EIC. Those opposing
these changes raise issues of scope and natural justice. They are concerned that

36

(2008) 15 ELRNZ 59.


31606497:631362

Page 23
the zoning of land may change as a consequence of the change to these provisions.
In the Memorandum filed, we signalled that zoning changes could be made in
response to submissions, but also that out of scope changes could be made. It is
important to use this process to develop a district plan that responds as far as
possible to the principles set out in the RPS.
C.

Relationship between RMA and Other Legislation


Building Act 2004 / Building Code / HIR 1947

2.19

The Panel will now be well familiar with the various aspects of the relationship
between the Building Act 2004, the Building Code, and the RMA due to this issue
having been raised in a number of topics to date including Topics 022 Natural
hazards and Flooding, and 077 Sustainable Design. We also note that the Panel is
seeking submissions from interested parties on this matter ahead of the hearings for
Topics 080 and 081 on Rezonings and Precincts (General and Geographical Areas).
We will not therefore set out again the Council's approach to the legislative regime
and caselaw as this will be done as a response to the Panel's Direction by
3 November 2015.

However, we draw the Panel's attention to the evidence of

Ms McLaughlan and Mr Roberts, which will be of relevance to the Panel's


deliberations on issues concerning the relationship between the different statutory
regimes, in the context of the Residential Topics.
2.20

Ms McLaughlan holds the position of Policy Manager in the Council's Building Control
team. Her EIC for the Council provides some general explanation of the relationship
between the Building Act and Building Code, but otherwise focuses on the following
matters:
(a)

The HIR 1947

Ms McLaughlan notes37 that the minimum standards of

fitness for dwellings and controls on over-crowding will apply only where the
Building Code is silent on a topic; the provisions dealing with the prevention of
over-crowding being an example of this. While the Building Code does not
specify minimum bedroom sizes for dwellings38, the HIR 1947 restricts the
number of persons in relation to bedroom floor areas which, in Ms
37
38

EIC of R McLaughlan for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 6.1.
Which in Ms McLaughlan's opinion implies that "there is no limit on the number of people that can be
accommodated in a dwelling so long as it remains safe and sanitary".
31606497:631362

Page 24
McLaughlan's view, indirectly imposes a limit on room sizes equating to
16.2m2 for one person and 19.2m2 for two people.
(b)

Daylight, Ceiling Heights, and Circulation Space Ms McLaughlan notes


in paragraph 11.3 that "[m]inimum requirements apply in terms of daylight,
ceiling heights and circulation space particularly in service areas". The Panel
is referred to the witness's evidence for an explanation of the scope and limits
of the relevant controls found in the Code.

(c)

Universal access Ms McLaughlan also notes that "[u]niversal access does


not appy to residential properties and is not specifically addressed in the
Code unless there are common spaces contained within the building".39

2.21

Against the backdrop of the information provided in Ms McLaughlan's evidence, Mr


Roberts in his EIC touches on the interrelationship (and differences) between the
Building Act and the RMA40. In his planning opinion, the "key difference is that the
Building Act focuses specifically on the use of buildings, whereas the RMA focuses
on wellbeing and health and safety within a broader environment context"41. As
Mr Roberts notes in paragraph 6.21 of his EIC, Mr McIndoe's EIC refers to there
often being a disconnect in the timing of resource and building consent applications.
Mr Roberts notes that resource consents "are often sought at a preliminary design
stage, prior to developing the level of detail required for a building consent."
Consequently, Mr Roberts considers it important (from a planning perspective) to try
and align the health and well-being objectives relevant to both the RMA and the
Building Code on matters such as daylight access, as much as possible at the
resource consent stage.

2.22

We submit that such an approach is good planning and resource management


practice. The Residential zone development controls provide the 'substance', from a
RMA perspective, to the minimum requirements set out in the Building Code on
matters concerning daylight, ceiling heights and apartment sizes.

2.23

Finally, it is important not to lose sight of the amenity focus of these provisions in
RMA terms. For example, we refer the Panel to Mr Roberts' discussion of policy

39
40
41

EIC of R McLaughlan for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 11.4
At paragraphs 6.19 6.23.
At paragraph 6.20.
31606497:631362

Page 25
theme 3 (quality living environments and residential amenity) at paragraph 1.7 of his
EIC, which lays the broad foundation for his later more detailed discussion of onsite
amenity controls (e.g. at page 109 onwards of his EIC).
3.

AGREED AMENDMENTS TO NOTIFIED PROVISIONS AS A RESULT OF


MEDIATION

3.1

All the parties in attendance at mediations agreed to certain amendments to the


notified Residential zone provisions in Chapters D1, I1 and H5.2.3.1. These are set
out in the Mediation Joint Statement, Hearing topic 059, 060, 062 and 063 Mediation
sessions on Residential Provisions, released on 12 August 2015, the PIRs for each
topic as updated on 27 August 2015, and are also reflected in green text in
Attachment 2 of Mr Roberts EIC and Attachment A to his EIR.

3.2

In addition, a number of amendments were agreed by the planners' Working Group.


In general however, the agreed amendments relate to General Objectives and
Policies and Zone Objectives and Policies.

4.

OUTSTANDING ISSUES AND THE COUNCIL'S POSITION

4.1

The balance of these submissions address the outstanding issues, from Council's
perspective, following mediation and the exchange of evidence. The Council has
filed eight rebuttal evidence statements, including one joint rebuttal statement, from a
number of its witnesses42 addressing these issues. In some instances, the Council
(through the rebuttal of its witnesses) has accepted the amended relief sought in the
evidence filed for some of the submitters, and where this is the case, that has been
noted further below.

4.2

From our perspective, the outstanding issues on the Residential zone provisions
pertain primarily to:
(a)

42

The minimum lot size for unserviced lots in the RCS zone.

Specifically, Mr Blow, Mr Ormiston, Ms Ogden-Cork, Ms Rogers, Mr Mead, Mr McIndoe, Mr Roberts,


Ms Stewart and Ms Hardman-Miller.
31606497:631362

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(b)

Residential Subdivision:
(i)

The minimum lot size and the additional subdivision control in the SHZ
for Point Wells, Matakana;

(ii)

Having a definition for "vacant proposed sites" and amending the


shape factor requirement in the THAB zone;

(iii)

The wording of a lot size averaging control;

(iv)

Removing the net site area from all the subdivision provisions;

(v)

Implementing a 450m2 minimum lot size in Kawakawa Bay; and

(vi)

The minimum lot size in the additional subdivision controls for


Waimauku and Bombay.

(c)

Design Statements:
(i)

Merits of Design Statements; and

(ii)

Amendments to Table 9: Special Information Requirements for Design


Statements.

(d)

Urban Design:
(i)

Refinements to development controls on outlook spaces; overlap,


internal corners, reduction in outlook space dimension;

(ii)

Amendments to daylight control; whether it should be an assessment


matter and not subject to notification tests, the title of the table, and
stepping back;

(iii)

Modifications to the proposed building height modulation control;

(iv)

Minimum dwelling size;

(v)

Floor to ceiling height;

(vi)

Street frontage control;

(vii)

Fences;

(viii)

Gradient to outdoor living space;

(ix)

Solar access to outdoor living space;

(x)

AHIRB in the MHS zone;

(xi)

Appropriateness of certain matters of discretion and assessment


criteria being applied to retirement villages, particularly neighbourhood
character, relationship to the street and public open spaces, building
location

form

and

appearance,

on-site

amenity,

landscaping,

reference to orientation to the sun; and

31606497:631362

Page 27
(xii)

Merits of other suggestions such as the Victoria State planning


provisions (Vic Code), and a competition design process in lieu of
Council design review, urban design review.

(e)

Planning:
(i)

SHZ overall zoning strategy, zone description, objectives and


policies;

(ii)

Strategy for MHS and MHU zoning;

(iii)

Amendments to MHU Objectives and Policies;

(iv)

Six-storey heights as a baseline in the THAB zone;

(v)

Matters such as requests for additional zones, non-residential


activities, specialist residential activities, safety, historic heritage,
character and amenity, incompatible land uses;

(vi)

Density and associated control matters including, minimum lot sizes in


the SHZ, minor units in the SHZ;

(vii)

Development controls generally; height controls; application of


standard notification test to any height infringement in the AZHC
areas; AZHC in Tennyson Avenue; HIRB and building setbacks in
relation to driveways, the MHS zone, and the THAB zone; building
coverage and landscape in specific zones; the definition of
"Landscaped Area"; amendments to the outdoor living space control
and assessment criteria; outlook and daylight controls; minimum
dwelling size control; and the water and wastewater controls;

(viii)

Amendments to specific design assessment criteria;

(ix)

Amendments to methods for managing specific activities, namely early


childhood centres, fire stations, tertiary and education facilities,
offices, the status of activities near industrial zones and golf clubs;

(x)

Other matters relating to the ACDC Model, site or area specific


requests, and lack of representation of lay people at mediations.

(f)

Retirement Villages:
(i)

Ms Rogers' proposed amendments to the definition of "Retirement


villages"43;

(ii)

Further amending the objectives and policies relating to Retirement


villages, including suggested amendments to specific policies and

43

EIC of D Rogers for Auckland Council, Topics 059-063, dated 8 September 2015, paragraph 9.11.
31606497:631362

Page 28
corresponding rules to include reference to 'specialist residential
activities' rather than 'Retirement Villages'; and
(iii)

The application of certain development controls and assessment


criteria to Retirement Village activities vs. having a bespoke set of
assessment criteria for Retirement villages (and SRC).

(g)

5.

Affordable Housing:
(i)

Effects of the Affordable Housing bonuses; and

(ii)

Modifications to the Affordable Housing bonuses.

MINIMUM LOT SIZE FOR UNSERVICED LOTS IN THE RURAL AND COASTAL
SETTLEMENT ZONE

5.1

Another matter of disagreement between the Council and some submitters relates to
the minimum lot size for unserviced lots in the RCS zone. In his EIC for the Council
dated 8 September, Mr Ormiston explained why the proposed minimum lot size of
3000m2 in the RCS zone was justified. In her evidence for Better Living Landscapes
Limited, Ms Pegrume requests that the minimum lot size for unserviced lots in the
RCS zone be reduced to 1500m2. Evidence for Auckland Regional Public Health
supports retaining the 3000m2 minimum lot size.

5.2

In response to Ms Pegrume's evidence, Mr Ormiston reviewed the implications for


safe onsite wastewater management of reducing the minimum lot size for a 3
bedroom dwelling for unserviced lots in the RCS zone. He found that a minimum lot
size of 2000m2 would not have sufficient area for a 3 bedroom dwelling onsite
wastewater system, and therefore neither would a 1500m2 lot.

For this reason,

44

Mr Ormiston could not agree with Ms Pegrume's request.


5.3

Mr Ormiston did however conclude, taking into account the matters set out in
paragraph 6.3 and Attachment A to his EIR for the Council, that a minimum lot area
required for a 3 bedroom dwelling in the unserviced RCS zone could be scaled down
to 2500m2, provided the constraints for retaining walls, water bores, steep or unstable
slopes, flooding or shallow groundwater do not result in additional reductions in land
disposal area availability.

44

EIR of A Ormiston for Auckland Council, Topics 059-063, 6 October 2015, paragraph 2.3(b).
31606497:631362

Page 29

5.4

Mr Ormiston now proposes in sections 1 and 7 of his EIR that the minimum lot size
for unserviced lots in the RCS zone be scaled down from 3000m2 to 2500m2. We
note that Mr Roberts in his EIR supports the revised minimum lot size promoted by
Mr Ormiston as being the most appropriate method for achieving the RCS zone
objectives, and considers it is consistent with the physical and environmental
attributes of most sites in that zone.45

6.

OUTSTANDING

MATTERS

RELATING

TO

RESIDENTIAL

SUBDIVISION

CONTROLS
6.1

The evidence for the Council and that for various submitters continue to take different
positions on:
(i)

The minimum lot size and the additional subdivision control in the SHZ for Point
Wells, Matakana;

(ii)

Having a definition for "vacant proposed sites" and amending the shape factor
requirement in the THAB zone;

(iii)

Wording of a lot size averaging control;

(iv)

Removing the net site area from all the subdivision provisions;

(v)

Implementing a 450m2 minimum lot size in Kawakawa Bay; and

(vi)

The minimum lot size in the additional subdivision controls for Waimauku and
Bombay.

6.2

For completeness, we also draw the Panel's attention to Ms Hardman-Miller's Joint


EIR, in which she proposes an 'out of scope' amendment for Manurewa for the
reasons outlined in paragraph 8.9 of that statement.

A.

Minimum lot size and Additional Subdivision Control in the SHZ for Point
Wells, Matakana

6.3

As Mr Blow notes in paragraph 4.2 of his EIR for Watercare on behalf of the Council,
Mr Hessell (for Kevin Glucina) suggests at paragraph 19 of his evidence that it is
unncessary to retain larger lot sizes for all of the Point Wells urban area for the
purpose of avoiding wastewater discharge capacity issues.

45

This is because the

EIR of N Roberts for Auckland Council, Topics 059-063, 6 October 2015, paragraph 5.3.
31606497:631362

Page 30
Omaha Wastewater Treatment Plant (Plant) "could likely cope" with future growth
resulting from that.
6.4

Mr Blow is clear that the Plant is currently operating at capacity, and that to reduce
the minimum site size in the SHZ for Point Wells to 800m2 would yield more lots
requiring connections to the Plant, triggering the need for an upgrade. Without that
upgrade, it would mean the Plant would have to operate at peak capacity for longer
periods of time, which is not sustainable. Given that the Plant is not timed for an
upgrade in Watercare's Asset Management Plan until 2018/2019, it is Watercare's
preference that the proposed additional subdivision controls in Table 3 of Rule
H5.2.3.1 for the SHZ at Point Wells, where the site sizes are 1000m2, be retained.46
Ms Hardman-Miller, in her Joint EIR with Ms Stewart for the Council, agrees that it is
not appropriate to amend the additional subdivision control for Point Wells.47

B.

Definition for "vacant proposed sites" and Amendments to the Shape Factor
requirement in the THAB zone

6.5

In evidence on his own behalf, Mr Harland has queried the status of subdivision of
lots within the THAB zone, and requests that a definition for "vacant proposed sites"
be provided for clarity.

6.6

Ms Stewart in her Joint EIR with Ms Hardman-Miller for the Council, does not
consider that such a definition is needed. Ms Stewart's opinion is that a common
interpretation of a vacant lot is one that does not contain any buildings and does not
have a consent to allow for development on the site.48

6.7

Mr Harland has also requested that the site shape factor be reduced to an area of 8m
x 15m for the THAB zone. Ms Stewart does not support Mr Harland's request, and
explains in paragraphs 5.5 of her Joint EIR that the amended requirement of a shape
factor of 15m x 20m is "more appropriate to demonstate that a site could contain a
building of the expected size for the THAB zone", and equates to a 300m2 area.

46
47
48

EIR of D Blow for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 1.2 and 5.4.
Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015, paragraph 10.2.
Ibid, section 5.
31606497:631362

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C.

Lot Size Averaging Control

6.8

The outstanding area of disagreement is how Rule H5.2.3.1.1.b should read.

6.9

Ms Stewart is supportive of a proposal by Mr Craig for Fletcher Residential, to amend


the wording of the lot size averaging control in Rule H5.2.3.1.1.b, which currently
appears in Attachment B to Ms Stewart's and Ms Hardman-Miller's EIR as follows:
b.

In addition to the controls As an alternative to the controls in table 1,


subdivision of a parent site of 1ha or more and where 15 30 or more vacant
sites are proposed, each site that will contain a building must comply with the
minimum net site area for the zone outlined in table 1A below, provided that
overall the total sites that will contain a building comply with the minimum
net site area average area:provided that the proposed site size is no more or
less than 20 per cent of the average net site areas:
Table 1A: Alternative minimum net site areas
Zone

Minimum
Net
Site
Area
House 480m

Single
zone
Mixed Housing 320m
Suburban zone
Mixed Housing 240m
Urban zone
6.10

Minimum Average Net Site


area
600m
400m
300m

However in her Joint EIR for the Council, Ms Stewart has suggested the following
text be added to Rule H5.2.3.1.1.c to explain how lot size averaging would work:
c.

6.11

When undertaking the averaging calculation for the purpose of clause (b) and
Table 1A above, any proposed site with a net site area greater than 20% of
the minimum average net site area specified for the relevant zone shall be
included in the calculation at exactly 20% greater than the specified
minimum average net site area figure.

Since filing her EIR, Ms Stewart has considered the wording of this control further,
and now considers it should read as follows (further amendments in bold):

31606497:631362

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Table 1A: Alternative minimum net site areas
Zone

Minimum
Net Site
Area

Minimum
Average Net
Site area

Single House
zone
Mixed
Housing
Suburban zone
Mixed
Housing
Urban zone

480m

600m

Maximum Net
Site area (for
averaging
purposes)
720m

320m

400m

480m

240m

300m

360m

c.

When undertaking the averaging calculation for the purpose of clause (b) and
Table 1A above, any proposed site with a net site area greater than 20% of
the minimum average net site area specified for the relevant zone shall be
included in the calculation at the figure specified for the relevant zone
under the Maximum Net Site area in Table 1A.

6.12

The Council supports this further amendment to Table 1A and Rule H5.2.3.1.1.

D.

Subdivision and Net Site Areas

6.13

Evidence from Mr Bennett on his own behalf, seeks the removal of net site area from
all the subdivision provisions, which would enable rear sites to be created (of 600m2
in area), based on the gross site area.

6.14

It is Ms Stewart's opinion that the net site area should be retained for the purposes of
applying the minimum lot size for vacant lots. Ms Stewart reiterates that the purpose
of this control is to ensure that the lots created have sufficient area for development
and are consistent with the expected zoning outcomes.49 Ms Stewart also points out
that the land excluded from the net site area is essentially driveway area, which
cannot be utilised for development.50

E.

Implementing a 450m2 minimum lot size in Kawakawa Bay

6.15

Ms Hardman-Miller discusses in section 9 of her Joint EIR with Ms Stewart, the


evidence filed by Ms Healy on behalf of herself and her husband, and her parents,

49
50

Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015, paragraph 7.2.
Ibid.
31606497:631362

Page 33
Anne and George Richardson, with regard to their property at 25 Ferndale Drive,
Kawakawa Bay.

Ms Healy seeks the removal of the current 750m2 additional

subdivision control for Kawakawa Bay, an average minimum site size of 600m2, and
a minimum site size of 450m2 for this settlement.
6.16

Having reviewed Ms Healy's evidence, and following further investigations into this
and related matters, Ms Hardman-Miller supports amending the planning maps and
Table 3 in Rule H5.2.3.1 to remove the 750m2 additional subdivision control for
Kawakawa Bay.51

6.17

An outstanding area of disagreement however, is the implementation of Ms Healy's


proposal for a 450m2 minimum lot size.

It is Ms Hardman-Miller's view that the

minimum site size for the SHZ in Kawakawa Bay should be 600m2.52 Such a site size
would, in her opinion, continue to maintain a low density built form due to the SHZ's
8m maximum height and 35% maximum building coverage controls. Ms HardmanMiller also notes that Rule 1.b of the Residential subdivision controls provides an
alternative to the SHZ 600m2 minimum site size for sites over 1ha to enable an
average of 600m2 and a minimum of 480m2. Given that provision would apply to the
subdivision of sites zoned SHZ over 1ha in Kawakawa Bay, including the property at
25 Ferndale Drive, Ms Hardman-Miller does not consider it necessary to include
specific averaging controls for Kawakawa Bay.53
F.

The minimum lot size for unserviced lots in Waimauku and Bombay

6.18

Ms Pegrume in her evidence for Better Living Landscapes Limited has sought a
1500m2 minimum site size within the RCS zone on the basis that smaller sites are
able to accommodate on-site wastewater systems. As discussed above in section 7
of these legal submissions, Mr Ormiston disagrees and recommends a minimum site
size of 2500m2 as being adequate to accommodate on-site wastewater systems for a
3 bedroom dwelling in unserviced lots in the RCS zone.

51
52
53

Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015, paragraph 9.3.
Ibid, paragraph 9.4.
Joint EIR of E Stewart and R Hardman-Miller for Auckland Council, Topics 059-063, dated 6 October
2015. paragraph 9.5.
31606497:631362

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6.19

Ms Hardman-Miller notes in her Joint EIR for the Council that both Waimauku and
Bombay are unserviced settlements relying on on-site wastewater systems. In line
with Mr Ormiston's recommendations, she proposes that the 3000m2

additional

subdivision control for Waimauku and Bombay be scaled down to 2500m2.54


7.

OUTSTANDING MATTERS RELATING TO DESIGN STATEMENTS

7.1

The outstanding areas of disagreement in relation to design statements between the


Council and submitters pertain to:
(i)

the merits of the requirements to have them; and

(ii)

the proposed amendments to Table 9 (Special Information Requirements for


Design Statements).

A.

Merits of design statements

7.2

The evidence of:


(a)

Ms Linzey and Mr Lindenberg for Housing NZ, and Mr Kyle for Ryman
consider that design statements should be deleted from the PAUP
altogether.55

(b)

Mr Bird for Ryman opposes the requirement for design statements on the
basis that they will be undertaken retrospectively, and thus add cost and little
value to the consenting process, which would be more effectively shaped by
non-statutory processes such as the Auckland Urban Design Panel.

7.3

Ms Ogden-Cork disagrees with Housing NZ and Ryman's evidence. Ms Ogden-Cork


notes that Housing NZ's evidence in the Residential Topics is consistent with the
relief it sought in Topic 077 Sustainable Design. It is Ms Ogden-Cork's evidence that
design statements are a key method to assist applicants with creating development

54
55

Ibid, paragraph 11.2.


See Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September
2015, paragraph 115 and Attachment A, page 72 where they propose to delete the design statement
requirements and Table 9 from section 12 (Special Information Requirements) in their entirety, and the
EIC of J Kyle for Ryman, Topics 059-063, dated 23 September, paragraph 63. Mr Kyle's request is in
relation to design statements for Retirement villages only.
31606497:631362

Page 35
proposals of good design quality that fit well with their existing environment, and
ought to be retained in the PAUP.56
B.

Proposed amendments to Table 9 (Special Information Requirements)

7.4

Mr Burton's evidence for Auckland 2040 is that this table makes no provision for 3-5
dwellings and 6-15 dwellings in the Residential zones to address building form,
character, use and activity, and urban structure matters. It is his opinion that such
matters should be required for developments in the MHS and MHU zones. Likewise
he considers in terms of a design response, that assessment of landscape and open
space should be included.57

7.5

While Ms Ogden-Cork agrees to some of these suggestions, she does not propose to
introduce any further requirements for applications of 3-5 dwellings or 6-15 dwellings.
She also notes that the introductory text to the Special Information Requirements
states that design statements are to include the matters indicated within Table 9 "as
a minimum" and therefore the table does not preclude applicants from providing the
full range of information they consider relevant to their proposal or an integral part of
their design process.58

7.6

Mr McKenzie's evidence for the Character Coalition sets out a number of


amendments to the Special Information Requirements for design statements59 with
which Ms Ogden-Cork disagrees. An example is the reinstatement of the column
"Additions and alterations to buildings in the THAB zone", which is deleted from the
attachments to Mr Roberts' EIC and EIR. Ms Ogden-Cork notes that additions and
alterations to buildings in the THAB zone are Permitted. She also notes that, any
substantial addition to such would be creating a 'new residential dwelling' or space for
a non-residential activity, and therefore would still be required to provide a design
statement.60

56
57
58
59
60

EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 1.5
EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraph 95.
EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 5.45.5.
EIC of A McKenzie for The Character Coalition, Topics 059-063, dated 23 September 2015, Attachment
A.
EIR of T Ogden-Cork EIR for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.7.
31606497:631362

Page 36
8.

OUTSTANDING MATTERS IN RELATION TO URBAN DESIGN

8.1

The areas of disagreement between the Council and submitters on urban design
matters concern:
(i)

Refinements to development controls on outlook spaces; overlap, internal


corners, reduction in outlook space dimension;

(ii)

Amendments to the daylight control (whether it should be an assessment


matter and not subject to notification tests, the title of the table, stepping
back);

(iii)

Modifications to the proposed building height modulation control;

(iv)

Minimum dwelling size;

(v)

Floor to ceiling height;

(vi)

Street frontage control;

(vii)

Fences;

(viii)

Gradient to outdoor living space;

(ix)

Solar access to outdoor living space;

(x)

AHIRB in the MHS zone;

(xii)

Appropriateness of certain matters of discretion and assessment criteria


being applied to retirement villages, particularly neighbourhood character,
relationship to the street and public open spaces, building location form and
appearance, on-site amenity, landscaping, reference to orientation to the sun;
and

(xii)

The merits of other suggestions such as the Vic Code, and a competition
design process in lieu of Council design review or urban design review.

A.

Refinements to development controls on outlook spaces: overlap, internal


corners, reduction in outlook space dimension

8.2

Evidence for Housing NZ contends that outlook spaces should overlap.61 In his EIR
for the Council dated 6 October 2015, Mr McIndoe considers that an overlap of
outlook spaces would "unacceptably compromise amenity"62, and he describes the
various scenarios in which an overlap results in failing to provide a reasonable
standard of visual privacy (which is the intent of the control), and the fact that such

61
62

Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 98.3 and Attachment A.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.3.
31606497:631362

Page 37
poor quality development would be inconsistent with the description of the
Residential zones to provide 'high quality on-site living environments for residents'.63
8.3

Mr Moriarty's evidence for Summerset raises an issue of overlap of outlook space at


the internal corners of buildings around a central courtyard or garden area.
Mr McIndoe responds that with appropriate window design, it will be possible for the
overlap of outlook spaces to occur and avoid direct overlook into another living area.
Mr McIndoe also points out that assessment criterion 11.2.4(a) specifically identifies
the means by which a departure from this control might be acceptably achieved.64

8.4

Ms Linzey and Mr Lindenberg's evidence for Housing NZ raises concerns about


compliance with the proposed Reduction in outlook space dimension control.65
Mr McIndoe considers their concerns in some detail in paragraphs 5.10 - 5.18 of his
EIR, but generally is of the view that with some modifications, this control remains
appropriate.

B.

Amendments to daylight control - whether it should be an assessment matter


and not subject to notification tests, the title of the table, and stepping back

8.5

The evidence for Housing NZ, Ryman and others have requested various
amendments and clarifications to the daylight control.

The joint evidence from

Ms Linzey and Mr Lindenberg questions whether it may be better treated as an


assessment matter for multi-unit development and not subject to the notification
tests66. Mr Bird's and Mr Kyle's evidence for Ryman is that the control will require a
complex checking process and should be deleted from applying to Retirement
villages.67
8.6

Mr Burton and Mr Putt in their evidence for Auckland 2040 raise concerns with how
the daylight control is expressed in the Activity table.68 Mr Craig has requested clarity
on the significance of clause 4 (the daylight rule).69

63
64
65
66
67
68

Ibid.
Ibid, paragraph 5.9.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 93.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 100.
EIC of J Kyle for Ryman, Topics 059-063, dated 22 September 2015, paragraph 78 and EIC of C Bird
for Ryman, Topics 059-063, dated 23 September 2015, paragraphs 14-17 and 82.
EIC of I Craig for Fletcher Residential, Topics 059-063, dated 22 September 2015, paragraph 11.5.
31606497:631362

Page 38

8.7

It is Mr McIndoe's view that while a number of clarifications may be made to this


control, it should remain a control.70 He also supports the modifications to this control
as set out in Attachment A to Mr Roberts' EIR.

C.

Modifications to the proposed building height modulation control

8.8

Evidence from Ms Linzey and Mr Lindenberg for Housing NZ is that the building
height modulation control could generate a very uniform roof form/pitch design.71
Their reasons are summarised in paragraph 7.3 of Mr McIndoe's EIR as follows:
(a)
(b)

(c)

8.9

Provision of roof modulation will inherently deliver some visual diversity by


allowing variation from the flat, low pitched roofs which are otherwise likely
to predominate as development potential is maximised.
A degree of uniformity as distinct from radical diversity is often seen as a
positive character attribute. For example the roof pitch of the Victorian villas
that are valued in suburbs around parts of Auckland are generally
characterised by a consistent roof type and pitch. That consistency gives a
valued sense of visual order and unity.
The 15 degree pitch is a minimum, not an absolute, and other roof pitches can
be expected to be used.

Mr McIndoe disagrees and considers that without the compensation of low roof eaves
for a high ridge for example, the suggested alternative by Housing NZ will also lead
to a risk that substantial parts of a building are permitted to be a storey higher than is
anticipated for the zone.72

D.

Minimum dwelling size

8.10

Evidence for Generation Zero, Point Chevalier Residents Against THAB Inc, and
Auckland 2040 requests various minimum dwelling sizes of 30m2, 40m2 plus balcony
and 45m2 in the MHS zone.

8.11

In his EIR for the Council, Mr McIndoe considers the evidence for smaller or
amended minimum dwelling sizes, and it remains his evidence that the Permitted
30m2 studio and 45m2 one bedroom unit sizes are appropriately enabled in the region

69
70
71
72

EIC of I Craig for Fletcher Residential, dated 22 September 2015, section 11.0
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, section 8.7.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraphs 91-92.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 7.4.
31606497:631362

Page 39
while at the same time ensuring that matters of amenity are properly considered
should very small dwellings be attempted.73

We submit that Mr McIndoe's view

demonstrates that the Residential zone provisions provide the 'substance' to the
framework provided on these matters in the Building Code and HIR 1947 as set out
in Ms McLaughlan's EIC for the Council.
E.

Floor to Ceiling Height

8.12

Generation Zero expressed a concern that the "assessment criteria imply stricter
requirements than the rules that they replace"74, citing the recommended floor to
ceiling height of 2.7m in assessment criterion 10.2.3 (e)(viii) as an example. It is Mr
McIndoe's opinion that the criterion allows sufficient flexibility, and recognises that the
appropriate heights will vary between situations.75 Furthermore, the 2.7m proposed
minimum is coordinated with the maximum Permitted building heights in the MHU
and THAB zones.76

8.13

We submit that Mr McIndoe's position here is consistent with Ms McLaughlan's


evidence for the Council that the Building Code provides the 'minimum' requirements
on matters such as ceiling heights. Again, it is appropriate from a RMA perspective
to provide the substance to those requirements through criteria in the Residential
zone provisions.

F.

Street Frontage Control

8.14

Mr Hollenstein's evidence expresses concerns about the street frontage controls, and
the dwellings being oriented to the street rather than prioritising meeting owner/user
requirements.77 It is Mr McIndoe's opinion that this control is "essential', and that
good design will, at the same time, ensure owner/user requirements are met, albeit
potentially modified slightly to include appropriate address to the street.78

73
74
75
76
77
78

Ibid, paragraph 8.2.


EIC of L Christiansen for Generation Zero, Topics 059-063, paragraphs 15 and 16.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 9.2.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 9.2.
EIC of P Hollenstein, Topics 059-063, dated 21 September 2015, page 9.
ibid, para 10.1.
31606497:631362

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8.15

Mr McIndoe also notes that contrary to Mr Hollenstein's evidence, passive


surveillance, which is enabled by the street frontage control, is consistent with best
practice urban design.79

G.

Fences

8.16

Mr Moriarty in his evidence for Summerset and Aria Bay contends that low fences
(1.2m) or fences required to be visually open above this height, cannot achieve the
necessary security for residents of a Retirement village.80 Mr McIndoe disagrees for
the following reasons in paragraph 11.1 of his EIR for the Council:
(a)
(b)

A 1.8m high, 50% visually open fence can provide equal deterrence to
climbing as a 1.8m high closed wall.
There is an element of visibility through a fence, which enhances security as
it reduces potential for concealment.

H.

Gradient to Outdoor Living Space

8.17

Housing NZ's evidence seeks a change in the maximum permitted gradient for a
designated outdoor living space from 1 in 20 to 1 in 12.5.81

8.18

It is Mr McIndoe's evidence that the gradient of 1 in 12.5 might be on the cusp of


being seen as a sloping area rather than a flat area whereas the 1 in 20 will be seen
as flat, and will be more functional than a slightly sloping area.82

I.

Solar Access to Outdoor Living Space

8.19

Mr Putt in his evidence for Mahi Properties Limited seeks a new rule to cover solar
access to outdoor living space.83 Mr McIndoe discusses Mr Putt's request in some
detail in section 13 of his EIR.

8.20

It is Mr McIndoe's evidence that the PAUP gives a greater degree of design flexibility
than Mr Putt suggests, and that the issues with which Mr Putt is concerned are dealt

79
80
81
82
83

EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 10.3.
EIC of C Moriarty for Summerset and Aria Bay, Topics 059-063, dated 24 September 2015, paragraph
117.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
paragraph 83 and Attachment A.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 12.1 - 12.2.
EIC of B Putt for Mahi Properties Limited, Topics 059-063, dated 23 September 2015, section 10.0.
31606497:631362

Page 41
with satisfactorily by other means, which are summarised in paragraph 13.1 of Mr
McIndoe's EIR as follows:
(a)

The purpose of control 7.12 Outdoor living space has been amended to
ensure the space has access to sunlight.
There is, as Mr Putt has identified, a new control that ensures that any
designated outdoor living space to the south of a dwelling extends far enough
away from the building to achieve a reasonable degree of sun.
The assessment criteria for multi-unit development at 10.2.3 (e) (on site
amenity) cover sunlight with (v) and (vi) relating to the sun to outdoor living
spaces, both private and communal; and (vii) relating to landscape with
consideration of sun and shade.
Development control infringement criteria 11.2.1 (c) states that particular
consideration will be given to the adverse effects on the amenity of
neighbouring sites when infringing a list of ten controls including building
height and height in relation to boundary; 11.2.2 (a) specifically identifies
sunlight access as an issue; and 11.2.2 (a) (i) requires that particular
consideration will be given to the location of the neighbouring principal
living room and outdoor living spaces.

(b)
(c)

(d)

J.

AHIRB in the MHS zone

8.21

Mr Putt proposes in his evidence for Mahi Properties Limited that a non-notified
AHIRB activity be reinstated in the MHS zone as a RD activity.84 Mr McIndoe agrees
with this proposal, and sets out his supporting reasons in paragraph 14.1 of his EIR.
Mr Roberts has also agreed with the reinstatement of this control at paragraphs 5.255.26 of his EIR.

K.

Appropriateness of certain matters of discretion and assessment criteria being


applied

to

retirement

villages,

particularly

neighbourhood

character,

relationship to the street and public open spaces, building location form and
appearance, on-site amenity, landscaping, and references to orientation to the
sun
8.22

In contrast to Mr Moriartys evidence for Summerset and Aria Bay85, Mr McIndoe


considers that neighbourhood character is of significant importance to retirement
villages because of their contrasting scale and characteristics. He also points out
that the criterion on neighbourhood character accepts that contour modification can
occur. Mr McIndoe has suggested in his evidence a modification to the wording in

84
85

EIC of B Putt for Mahi Properties Limited, Topics 059-063, dated 23 September 2015, section 5.0.
EIC of C Moriarty for Summerset and Aria Bay, Topics 059-063, dated 24 September 2015, paragraphs
128 130.
31606497:631362

Page 42
relation to retaining mature trees where these contribute significantly to local
neigbourhood character (paragraphs 17.2 - 7).
8.23

In relation to the criterion on relationship to the street and public open spaces,
Mr Moriarty is of the view that a number of other matters such as orientation of the
site, access to sunlight, views, noise, reverse sensitivity, and air quality are equally
important and should be included.86

However Mr McIndoe is of the view (at

paragraph 17.9) that the original criterion should be retained as the relationship to the
street is fundamental to adverse effects on the street.
8.24

Mr Bird opines in his urban design and architecture evidence for Ryman that there
should be an acknowledgement of the functional and operational imperatives of
Retirement villages.87 However Mr McIndoe considers that while the functional and
operational imperatives of Retirement villages should be acknowledged, it need not
be with a bespoke or separate set of criteria. Mr McIndoe considers (at paragraph
17.13) that the provisions need to be amended so that a single set of criteria can
apply to other multi-unit residential types, in particular apartment development as well
as retirement villages.

8.25

Mr Kyle's planning evidence for Ryman proposes additional assessment criteria in


relation to large scale development.88 Mr McIndoe considers that this is better dealt
with in section 10.2.3(a)(i) as it relates to neigbourhood character.

He suggests

some wording at paragraph 17.15 of his EIR and further suggests that this could be
usefully applied to all larger scale buildings, not just Retirement villages.
8.26

Mr Moriarty and Mr Bird for Summerset and Aria Bay and Ryman respectively,
oppose the on-site amenity and design criteria in the Retirement village provisions,
stating they are included in the standards prescribed in the Retirement Villages Act
2003 (the RV Act). We have addressed this and related matters in section 10 of
these submissions and consider it is wholly appropriate that these issues are dealt
with in the PAUP.

86
87
88

Ibid, paragraphs 131 -132.


EIC of C Bird for Ryman, Topics 059-063, dated 23 September 2015, paragraph 26.
EIC of J Kyle for Ryman, Topics 059-063, dated 23 September 2015, paragraphs 52-63.
31606497:631362

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8.27

Mr Bird for Ryman considers that criterion 10.2.3(e)(viii) is too prescriptive.89


However Mr McIndoe points out in his evidence that the dimensions are noted
specifically to be a guide (para 17.23). Further, Mr McIndoe states that the effectsbased criterion addressing site landscaping is appropriate and does not agree that
the simplified effects based approach as submitted by Mr Kyle for Ryman (and
supported by Mr Bird) is sufficient to address on-site amenity.90

8.28

We note, with reference to Mr McIndoes EIR at paragraph 17.30, that Mr Maplesden


is incorrect when he contends there are no provisions relating to orientation to the
sun in the assessment criteria.91
Other matters

8.29

In his evidence for Mahi Properties Limited, Mr Putt suggests that the Council has
'cherry picked' aspects of the Vic Code as a guide for the Residential zone
provisions.92 Mr Putt considers that a more fulsome consideration of the Vic Code
ought to have been undertaken.93

Mr McIndoe states that in his opinion, it is

appropriate to use parts of the Vic Code and not others as matters can be dealt with
on an issue by issue basis.94
8.30

Mr Hollenstein's evidence for Peter Hollenstein Associates Limited considers that


where a development has been designed with a competitive design process it should
be a permitted activity.95 However Mr McIndoe considers that this is not appropriate
for the reasons listed in paragraph 18.5 of his EIR.

9.

OUTSTANDING PLANNING MATTERS

9.1

The outstanding areas of disagreement on planning matters relate to:

89
90
91
92
93
94
95

(i)

SHZ Overall zoning strategy, zone description, objectives and policies;

(ii)

Strategy for MHS and MHU zoning;

EIC of C Bird for Ryman, Topics 059-063, dated 23 September 2015, paragraph 137.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 17.27.
Ibid, paragraph 17.30.
EIC of B Putt for Mahi Properties Limited, Topics 059-063, dated 23 September 2015, paragraph 1.5.
Ibid, paragraphs 1.5 1.8.
EIR of G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 18.3.
EIC of P Hollenstein, Topics 059-063, dated 21 September 2015, paragraphs 2 2.1.
31606497:631362

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(iii)

Amendments to Mixed Housing Zones' Objectives and Policies;

(iv)

Six-storey heights as a baseline in the THAB zone;

(v)

Matters such as requests for additional zones, non-residential activities,


specialist residential activities, safety, historic heritage, character and
amenity, incompatible land uses;

(vi)

Density and associated control matters including, minimum lot sizes in the
SHZ, minor units in the SHZ;

(vii)

Development controls generally;

(viii)

Amendments to specific design assessment criteria;

(ix)

Amendments to methods for managing specific activities, namely early


childhood centres, fire stations, offices, the status of certain activities near
industrial zones and golf clubs; and

(x)

Other matters relating to the ACDC Model, site or area specific requests, and
lack of representation of lay people at mediations.

A.

SHZ Overall zoning strategy, zone description, objectives and policies

9.2

A number of submitters raised concerns over the approach to the overall zoning
strategy and zone objectives and policies of the SHZ. Some have raised issues that
areas of high amenity value or special character should be included in the SHZ
objectives and policies. Mr Roberts is of the view that the MHS zone should be
applied, unless there are significant environmental or infrastructure constraints to
warrant otherwise.96

9.3

Mr Roberts has proposed amendments to Policy 1 in paragraph 4.5 of his EIR as


follows:
Policy 1: Require minimum site sizes that limit the intensity of development in areas
with:
a.
significant environmental constraints, or
b.
infrastructure constraints that are unlikely to be addressed in the foreseeable
future or which cannot be addressed at a site-specific level, or
bc.
poor accessibility to:
i.
the City Centre, Metropolitan, Town or Local Centres, or
ii.
the existing or planned public transport network, or
iii.
large urban facilities including existing or proposed public open
spaces, community facilities, education facilities, tertiary education
facilities, and healthcare facilities.

96

EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 4.3 4.4.
31606497:631362

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B.

Strategy for MHS and MHU zoning

9.4

Mr Todd and Mr Kaye in their evidence for Ockham Holdings Limited (Ockham) raise
fundamental concerns with the approach taken to the MHS and MHU zones97 and
consider that the two storeys will not facilitate feasible development. They propose
deleting the MHS zone and expanding the MHU zone in order to enable greater
housing capacity and variety. In their view, the only difference between the SHZ and
MHS is density and minimum lot size, which will not result in a substantial difference
between those zones.98

9.5

In contrast, Mr Roberts disagrees that the differences between the SHZ and the MHS
zone are not significant, and considers that there is a need to distinguish between
areas with a suburban and urban built character for the reasons outlined in his EIR at
paragraph 4.7 as follows (footnotes omitted):
(a)

(b)

9.6

Density and minimum lot size will make a difference in terms of the number
of dwellings and people between the SH and MHS zone, as explained in my
EIC6. It is therefore appropriate to provide for the two different zones to
enable growth to be limited in specified areas; and
The MHS zone and provisions will be appropriate to maintain a suburban
character where population growth does not need to be limited, but three
story, more intensive development is not appropriate. It should therefore be
retained as a zoning option in terms of the overall zoning strategy.

Mr Roberts also notes that:99


(a)

The MHS zone provides flexibility and supports increased housing capacity
while not undermining the role of the MHU and THAB zones to provide
intensification in areas where the greatest gains can be achieved;

(b)

Mr Burton in his evidence for Auckland 2040 specifically supports the height
differences in MHU and MHS zones, and that over 100 community groups
represented by Auckland 2040 are "generally accepting" of the release of
density provided that a two storey 'suburban' built character is retained.100 On

97
98
99
100

EIC of B Kaye for Ockham, Topics 059-063, dated 22 September 2015, paragraphs 24 33; EIC of M
Todd for Ockham for Topics 059-063, dated 22 September 2015, paragraphs 5 - 7.
Ibid.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 4.8 - 4.9.
EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraph 49.
31606497:631362

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this basis, Mr Roberts considers that significant expansion of the MHU zone
is unlikely to be acceptable to communities; and
(c)

The MHS zone "provides a balance between enabling a suburban character


and facilitating housing capacity and choice, and is therefore an appropriate
zoning method to assist in achieving the RPS policy direction"101.

9.7

In summary, and in contrast with the argument raised in the evidence for Ockham,
Mr Roberts considers that the differences in the zoning strategy for the SH, MHU and
MHS zones are important in the overall zoning strategy that seeks to provide for a
range of housing choices and limit growth in areas with identified values or
infrastructure constraints.102 In Mr Roberts' view, the concerns raised by Ockham are
more related to the spatial extent of the MHU zone, and are therefore matters for
consideration in Topics 080 and 081 on Rezonings and Precincts, and/or any future
Plan Changes. Mr Roberts is clear though, that the MHS zone should be retained as
a tool, though the "appropriate spatial distribution" of the SHZ, MHS, MHU and THAB
zones, should be considered having regard to the RPS objectives.103

The SHZ

stands on its own from a policy perspective and cannot therefore be interchanged
with the MHS zone (one limits growth while the other enables growth).

The

distinction between the MHS and MHU is also justified on the basis of providing a
choice of residential character (two storeys vs three storeys).
C.

Mixed Housing Zones' Objectives and Policies

9.8

Mr Burton, for Auckland 2040, considers the MHS zone's objectives and policies
should be amended to recognise existing neighbourhood character.104 We note that
recognition of a sites existing character is already reflected in General Objective 1
and submit, in reliance on Mr Roberts EIR105, that it is unnecessary to reflect this
again specifically in the MHS zone.

9.9

Ms Coats, for North Eastern Investments Limited (NEIL) and Heritage Land Limited
seeks a four storey height for the MHU zone on the basis that four storeys with an

101
102
103
104
105

EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.9.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 4.6 4.10.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.10.
EIC of R Burton for Auckland 2040, Topics 059-063, dated September 2015, paragraphs 71 75.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.11.
31606497:631362

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elevator would result in better onsite amenity

106

Relying on the EIC of Mr Nunns107

and the observations from submitters during the workshop and mediation process,
we submit that four storey development is generally uneconomic. Mr Roberts states
that three storey development in the MHU zone will provide for greater intensification
and flexibility than the MHS zone, while also providing a less intensive character than
the five storey development enabled in the THAB zone.108
D.

THAB zone Six storey heights

9.10

In her evidence for NEIL, Ms Coats seeks an extension to a six storey development
limit in the THAB zone.109 Mr Roberts considers that the five storey baseline should
be maintained as the optimal balance that recognises the need to manage the
transition of suburban areas to higher density development.110

E.

Matters such as requests for additional zones, safety, historic heritage,


character and amenity, incompatible land uses
Additional zones

9.11

Mr Ross has provided evidence on his own behalf in a personal capacity. In his
evidence, Mr Ross seeks the replacement of SHZ and the MHS, MHU and THAB
zones with seven new zones in order to enable much higher intensification in the
higher level zones.111 Mr Roberts considers that the height and intensification levels
proposed by Mr Ross (some up to 60m plus in height) are not (currently) appropriate
to be applied to Aucklands existing residential areas, for the following reasons:
(a)

they would not manage change in existing residential areas;

(b)

they would not provide for reasonable levels of amenity for existing residents
adjacent to new developments, and would therefore not meet the RPS
objectives.112

106
107
108
109
110
111
112

EIC of A Coats for NEIL and Heritage Land Limited, Topics 059-063, dated 23 September 2015,
paragraph 12.
EIC of P Nunns' for Auckland Council, Topics 059-063, dated 8 September 2015.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.12.
EIC of A Coats for NEIL and Heritage Land Limited, Topics 059-063, dated 23 September 2015,
paragraphs 45 - 46.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.13.
EIC of B Ross, Topics 059-063, dated 21 September 2015, paragraphs 2, 7, 16 - 25, 28 - 29.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.14.
31606497:631362

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Safety
9.12

Ms Weaver, in her evidence for SafeKids Aotearoa, states that the general objectives
and policies should include references to safety.113 Mr Roberts considers that the
current references contained in General Objective 1 and Policy 1, and the supporting
provisions in the assessment criteria are sufficient to provide for safety within the
residential zones, and no further amendments are proposed to the objectives and
policies of the Residential zones on this matter.114
Historic heritage, character and amenity

9.13

Mr McKenzie, for the Character Coalition, considers that historic heritage, character
and amenity have been inadequately addressed in the residential provisions, and
that this approach does not give effect to the RPS.115 Mr Roberts states in paragraph
4.18 of his EIR that a consideration of the relative value of historic heritage buildings
and historic character areas generally indicates that these are matters for the
schedules and overlays and not the Residential zones (except for where this is
complemented by the SHZ).

9.14

It is also Mr Roberts' evidence that these provisions provide an appropriate balance


between achieving the RPS objectives relating to character, amenity, and increased
housing supply and choice.116
Incompatible land uses

9.15

Some submitters have requested amendments to general objective 2 in relation to


reverse sensitivity. As noted in paragraphs 4.19 4.22 of Mr Roberts' EIR, specific
references in the SHZ to restricting growth due to incompatible land uses are not
supported because it would be likely that, in those scenarios, another residential
zone would be appropriate.

113
114
115
116

EIC of A Weaver for Safekids Aotearoa, Topics 059-063, dated 22 September 2015, paragraphs 5.3 5.14.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.17.
EIC of A McKenzie for the Character Coalition, Topics 059-063, dated 23 September 2015, paragraph
14.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 4.18.
31606497:631362

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F.

Density and associated control matters including, minimum lot sizes in the
RCS zone and the SHZ, minor units in the SHZ
Minimum lot size in the RCS zone

9.16

Submitters have requested amendments to the minimum lot sizes for the RCS zone.
As we have already discussed in section 5 and earlier here in section 9 of these legal
submissions, Mr Roberts in his EIR (relying on Mr Ormiston's EIR) states that the
minimum lot size for the RCS zone should be reduced to 2,500m2 but not smaller.117
It is Mr Ormiston's evidence that this size provides the best balance between
achieving the RCS zone objectives without creating an expectation that subdivision
could be achieved in areas where onsite discharge would be difficult without
generating significant adverse environmental or health effects.118
Minimum lot size in the SHZ

9.17

The evidence filed for a number of submitters seek amendments to the 600m2
minimum lot size in the SHZ.119 Mr Roberts is clear in his EIR that the purpose of the
SHZ is to limit growth in areas where there are significant constraints or values that
do not support intensification120 (and therefore the zone seeks to limit intensification).
We note that, as discussed in Mr Roberts EIR at paragraph 5.6 (c), reducing the lot
size from 600m2 to 500m2 would increase the number of sites that could be
subdivided by 95%, a significant increase in intensification.
Minor units in the SHZ

9.18

The evidence for a number of submitters have requested that minor units be provided
for in the SHZ.

A sample of these submitters is listed in paragraph 5.9 of Mr

Roberts' EIR and include for example, Mr Bennett for himself, and Ms Linzey and Mr
Lindenberg for Housing NZ.

117
118
119

120

Ibid, paragraph 5.3.


EIR of A Ormiston for Auckland Council, Topics 059-063, dated 6 October 2015, sections 1, 2 and 7.
Mr Roberts summarises some examples of these statements in paragraph 5.4 of his EIR. They include
Mr Bennett for himself, Mr Wren for North 8 Limited, Mr Bramwell for NEIL, Mr Craig for Fletcher
Residential, Mr Hermans for MBIE, and Mr Reaburn for A M Culav.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.5.
31606497:631362

Page 50
9.19

In Mr Roberts opinion, it is inappropriate to specifically provide for minor units where


they may not meet the objectives and policies for the relevant zone, noting that they
can be sought as a Discretionary activity on their individual merits.121 We also note
for completeness that Mr Roberts has previously proposed an amendment to the
SHZ to allow a minor unit as a Permitted activity within an historic overlay and
outside an identified floodplain.

G.

Development controls

9.20

A considerable number of submitters have filed evidence on development controls


generally, as well as specifically:
(a)

height controls;

(b)

the application of standard notification tests to any height infringement in the


AZHC areas;

(c)

the AZHC in Tennyson Avenue;

(d)

HIRB and building setbacks in relation to driveways, the MHS zone, and the
THAB zone;

(e)

building coverage in the MHS zone and the Large Lot zone, and landscaping
controls in the Mixed Housing zones;

(f)

amendments to the Impervious Area controls;

(g)

amendments to the outdoor living space control and assessment criteria;

(h)

the outlook and daylight controls;

(i)

the minimum dwelling size control; and

(j)

extending the application of the water and wastewater controls to all network
utilities.

9.21

Mr Roberts and Mr McIndoe have canvassed, in some detail in their EIRs, the
requests made in the submitters' evidence on these matters. In summary, we note
that:
(a)

on height controls, Housing NZ's evidence is that the roof height flexibility
should be for up to 100% of the roof form and not 50%.122 As Mr McIndoe
and Mr Mead have noted, this approach is inappropriate as it would potentially

121
122

Ibid, paragraph 5.10.


Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
Attachment A.
31606497:631362

Page 51
enable an additional storey with low floor to ceiling heights which would not
achieve the built character and quality living environment objectives of the
Residential zones.123
(b)

on the application of standard notification tests to any height infringement in


the AZHC areas124, Mr Roberts disagrees with such a proposal as the 2m
flexibility as a non-notified activity is considered enough to encourage
improved roof forms and is appropriate in AZHC areas.125

(c)

on an AZHC in Tennyson Avenue as raised by Mr Belgiorno-Nettis,


Mr Roberts considers that a transition height only is appropriate due to the
SHZ sites at the rear of that site and does not support an AZHC in that
location.126

(d)

on the HIRB and building setbacks for driveways, the MHS zone, and the
THAB zone, Mr Roberts' views and amendments are set out in paragraphs
5.24 to 5.37 of his EIR.

(e)

on building coverage in the MHS zone and the Large Lot zone, Mr Roberts
canvasses the various amendments sought through the evidence of
submitters in paragraphs 5.40 and 5.48 of his EIR.

Mr Roberts' position

remains that set out in his EIC which was to enable a Permitted building
coverage of 35% in the MHS with an additional 5% able to be sought as a
non-notified RD activity.

Similarly, Mr Roberts wants to retain a 40%

Permitted building coverage in the MHU zone with 5% flexibility.


(f)

Mr Roberts' consideration of the amendments to the landscaping controls in


the Mixed Housing zones is covered in paragraphs 5.41 - 5.42 of his EIR.
However Mr Roberts' approach is to maintain the position in his EIC to require
a 40% minimum landscaped area in both the MHS and MHU zones, with a
reduction of 5% able to be sought as a non-notified RD activity.

123
124
125
126

EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.15; EIR of
G McIndoe for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 7.2 7.4.
As proposed in paragraph 8.1(b) of the evidence of Mr Lala for multiple parties.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.17.
Ibid, paragraph 5.22.
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(g)

Mr Roberts disagrees with evidence of Ms Blair127 for Z Energy Limited, BP


Oil New Zealand Limited and Mobil Oil New Zealand Limited that the
impervious area controls within the Residential zones effectively duplicate the
regional stormwater rules. Mr Roberts points out that the impervious area
thresholds differ depending on the zone.128

(h)

the submitters' evidence on the outdoor living space control and assessment
criteria is addressed in paragraphs 5.51-5.52 of Mr Roberts' EIR.

He

maintains his position on those matters as set out in his EIC.


(i)

the submitters' evidence on outlook and daylight controls is considered in


some detail in paragraph 5.53 of Mr Roberts' EIR.

While some minor

refinements are agreed to, Mr Roberts maintains his position that these
controls should remain, and that they are the most appropriate method in
achieving the objectives of the Residential zones in relation to daylight access
and development feasibility.
(j)

on the minimum dwelling size, Mr Roberts addresses this issue in paragraphs


5.55-5.56 of his EIR and no changes are proposed to the position set out in
his EIC.

(k)

on water and wastewater controls, Mr Roberts disagrees with Ms Coste's


evidence for AUOG when she says that the water and wastewater controls
should be extended to apply to all network utilities.129 Mr Roberts does not
support that extension given its purpose is to recognise an existing issue
regarding potential intensification in areas with current capacity constraints for
water and wastewater as opposed to for telecommunications or electricity
network utilities.130

H.

Amendments to specific design assessment criteria

9.22

The evidence filed for a number of submitters has requested amendments to various
design assessment criteria.

127
128
129
130

These matters are addressed in some detail by

EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.50.
Ibid.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 5.58.
Ibid.
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Mr Roberts in paragraphs 5.59 5.70 of his EIR and the issues raised are many and
varied including requests for criteria that:
(a)

provide for passive surveillance and orientation of dwellings to the street;

(b)

reference safety and a consideration of a physical separation of pedestrian


and vehicle access to sites;

9.23

(c)

consider the relationship of a site with adjacent heritage buildings;

(d)

are not also a method;

(e)

have a consideration for affordability or cost implications;

(f)

do not use directive words like "should" and "maximise";

(g)

provide more specific inclusion of residential amenity;

(h)

are not too onerous; and

(i)

relate to sustainable design.

Mr Roberts has responded to each of these requests in his EIR, with the overall
conclusion that aside from refinements/amendments/modifications to the current
assessment criteria to address some of these issues, in the main the criteria in
Attachment A to his EIR are appropriate in the Residential zones.

I.

Amendments to methods for managing specific activities, namely early


childhood centres, fire stations, offices, the status of certain activities near
industrial zones and golf clubs

9.24

A raft of submitters have outstanding issues on these activities, which we summarise


below:
(a)

Evidence for the Auckland Kindergartens Association (AKA) seeks the


reinstatement of middle tier early childhood centres between 200m2 - 400m2
as a non-notified RD activity.131 Mr Roberts' evidence in his EIC is that a
default non-notified RD activity status was not supported for moderate scale
activities as their appropriateness would depend on the site and context. It is
Mr Roberts' evidence that such activities be enabled through a broad RD
status, subject to the normal tests for notification.132

131
132

EIC of R Hall for AKA, Topics 059-063, dated 22 September 2015, paragraphs 34 and 40.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.1.
31606497:631362

Page 54
(b)

Evidence from the New Zealand Fire Service (NZFS) seeks that Emergency
Services be a RD activity subject to the normal tests for notification within the
Residential zones.133 It is Mr Roberts' evidence in his EIC that such activities
may have a range of effects on residential amenity and built character, and
should therefore be assessed as Discretionary activities.134

(c)

Mr Harland seeks provisions enabling offices up to 400m2 as a RD activity in


the THAB zone.135 In his EIR, Mr Roberts considers that offices not enabled
by the Home Occupation rules are generally not appropriate for the
Residential zones as they would not be consistent with the objectives for
residential amenity.136

While Mr Roberts agrees that it is appropriate to

enable offices within existing buildings as a Permitted activity on the sites


identified in Mr Harland's submission and evidence, he considers that new
office buildings on these sites should be a full Discretionary activity to enable
the consideration of the potential adverse effects and the relevant objectives
and policies.137
(d)

Ms Liang's evidence for parties like Atlas Concrete Limited, proposes a


Discretionary activity status for any residential or community activities within
500m of the Heavy Industry zone or 100m from the Light Industry zone.138
Mr Roberts considers this matter is more appropriately addressed through the
Sensitive Activity Restriction overlay (Topic 035, which was heard in March
2015) rather than in the Residential Topics, and therefore has not proposed
any amendments in the attachments to his EIC or EIR to address this
matter.139

(e)

Mr Ogilvie for the Akarana Golf Club Limited seeks a further row in the
Activity table making all development within 30m of the boundaries of the
Akarana Golf course a Controlled activity to reduce potential damage to
proposed development from golf balls.140 Mr Roberts considers this a specific

133
134
135
136
137
138
139
140

EIC of F Blight for the NZFS, Topics 059-063, dated 22 September 2015, paragraph 5.1.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.2.
EIC of P Harland, Topics 059-063, dated 22 September 2015, Attachment 2.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.11.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.11.
EIC of A Liang for Atlas Concrete Limited (Wiri, Silverdale, Mt Wellington, Kumeu, Warkworth, Rosedale
and Mt Rex), Topics 059-063, dated 22 September 2015, paragraph 17.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.12.
EIC of G Ogilvie for Akarana Golf Club Limited, Topics 059-063, dated 18 September 2015, page 3 of 4.
31606497:631362

Page 55
property issue to be addressed between owners of the golf club and adjacent
residents rather than through planning regulation.141
J.

Other matters relating to the ACDC Model, site or area specific requests, and
lack of representation of lay people at mediations
ACDC Model

9.25

Mr Roberts notes in section 7 of his EIR that a number of evidence statements raise
concerns about the re-run of the Auckland Council Development Capacity 2015
Model (ACDC15) and the interpretation of outputs. Matters concerning this model
are addressed in more detail in section 12 of these legal submissions.
Site or Area Specific Requests

9.26

A number of submitters have raised concerns in their evidence about the zoning
provisions for specific areas. Mr Roberts has set out a sample of these in paragraph
7.5 of his EIR.

We submit that such concerns are outside the scope of the

Residential Topics, and are best addressed in Topics 080 and 081.
Mediation Process
9.27

A number of submitters like the Pt Chevalier Residents Against THAB and


Hartwig Clasen have raised concerns in evidence about the lack of representation of
'lay people' and community groups at the mediation. Specifically, a view has been
posited that at the end of mediations, the Residential zone provisions 'favoured'
developers rather than existing communities.

9.28

Mr Roberts states in evidence that he has sought to "achieve an appropriate balance


between enabling intensification, housing capacity and choice; and providing for
quality living environments and residential amenity."142

9.29

We also note that the Council cannot control or monitor the level of interest that lay
submitters or community groups display in the PAUP process before the Panel. It

141
142

EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 6.13.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 7.9.
31606497:631362

Page 56
has discharged all its statutory obligations in terms of promoting and inviting public
submissions to the PAUP in the lead up to notification in 2013, and participated (and
led to the extent its resources have allowed), in the likes of public information open
days on the Residential zone provisions, and made a considerable amount of related
information publicly available such as tables comparing the Residential zone
provisions as notified with what the Council now proposes for the use and reference
of submitters. The Council has also taken part in a number of offline discussions with
submitters and responded to submitter evidence. Therefore all the Council can do at
this stage is note the views that lay submitters have expressed in their evidence.
10.

OUTSTANDING MATTERS RELATING TO RETIREMENT VILLAGES

10.1

The outstanding areas of disagreement in relation to the retirement villages


provisions in the Residential zones concern:
(a)

the definition for "Retirement villages";

(b)

the objectives and policies applicable to Retirement villages, including a


reference in a MHS policy to "specialist residential activities" rather than
"Retirement villages"; and

(c)

the development controls and assessment criteria applicable to Retirement


villages.

10.2

In her EIR for the Council, Ms Rogers disagrees with a number of the amendments
sought in the evidence for submitters on these matters.

A.

Retirement Villages Definition

10.3

As noted in paragraph 5.1 of Ms Rogers' EIR143, the majority of submitter evidence


on this matter appears to support the definition for "Retirement villages" which Ms
Rogers set out in the attachment to her EIC for the Council144 and which excluded a
reference to "dwellings".

However the witnesses for submitters like Ryman

Healthcare Limited (Ryman), the Retirement Villages Association (RVA), Housing


NZ, and Summerset Group Holdings Ltd and Aria Bay Retirement Villages Limited

143
144

EIR of D Rogers for Auckland Council, Topics 059-063, dated 6 October 2015.
Dated 8 September 2015.
31606497:631362

Page 57
(Summerset; Aria Bay), have requested the following amendments to the
"Retirement villages" definition, with which Ms Rogers' disagrees:
(a)

a more exclusive definition to restrict Retirement Village activities to those


defined under section 6 of the Retirement Villages Act 2003 (the RV Act) or
rest homes defined under section 58(4) of the Health and Disability Services
(Safety) Act 2001 (HDSSA)145; and

(b)

include disabled people (regardless of age) as a type of person a Retirement


village might accommodate, along with greater specificity about dwelling
development controls not applying to Retirement village proposals.146

10.4

Ms Rogers disagrees with a definition that would restrict Retirement villages to those
defined in terms of the RV Act or the HDSSA. It is her view that there is no resource
management basis for restricting the establishment of a housing resource for older
people based on a particular financial tenure (as provided under those two Acts).147
We also note that the proposed more exclusive definition was not sought in the
original Ryman / RVA submission.

10.5

Ms Rogers also considers that providing for disabled people (regardless of age) is
not a primary purpose of a Retirement village and therefore should not be included in
the definition. It is Ms Rogers' evidence that housing provision for disabled people
and those requiring full or part time care is already provided for through the PAUP's
SRC provisions.148

B.

Objectives and Policies Applying to Retirement Villages

10.6

Issues remain regarding the extent to which objectives and policies should
specifically respond to retirement villages. For example, Mr McGarr for the Selwyn
Foundation and Elizabeth Knox for example, seeks a specific change to Policy 7 in
the MHS zone to replace "retirement village" with "specialist residential activities".
Ms Rogers considers that Mr McGarr's proposed amendment "would go well beyond

145

146
147
148

EIC of C Moriarty for Summerset and Aria Bay, Topics 059-063, dated 24 September 2015, paragraphs
147-148 (and throughout the brief); EIC of J Kyle for Ryman, Topics 059-063, dated 22 September
2015, paragraphs 15, 70-74.
Joint EIC of A Linzey and M Lindenberg for Housing NZ, Topics 059-063, dated 24 September 2015,
Attachment A.
EIR of D Rogers for Auckland Council, Topics 059-063, 6 October 2015, paragraph 5.2.
Ibid, paragraph 5.4.
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the originalintention" of the Special Purpose Retirement Village Zone (SPRVZ),
and "has no jurisdiction in terms of what was publicly notified".149
C.

Development Controls and Assessment Criteria Applying to Retirement


Villages

10.7

In his evidence for Ryman and the RVA, Mr Kyle expressed a preference for a
bespoke set of assessment criteria for Retirement village activities over the Council's
proposal to cross-reference those activities to the proposed design and development
criteria for multi-unit buildings.

Mr Kyle also opposes the application of various

residential development controls on Outlook, Daylight and Landscaping to Retirement


villages.

Mr Moriarty for Aria Bay and Summerset wants to modify other

development controls such as Building height and Minimum dwelling size.150


10.8

Given that Ms Rogers' proposed definition of "Retirement villages" excludes


"dwellings", a number of the development controls which specify dwellings would not
apply to Retirement village activities.

10.9

The matter of the application of various development controls and assessment


criteria to Retirement villages is discussed in some detail in section 17 of
Mr McIndoe's EIR for the Council. Mr Bird for Ryman and Mr Moriarty for Aria Bay
and Summerset consider that a number of assessment criteria in the Residential
zones provisions are not appropriate for Retirement villages. Mr McIndoe disagrees,
and notes in section 17 of his EIR that assessment criteria on Neighbourhood
Character, Relationship to the street and public open spaces, Building location form
and appearance, On-site amenity, and Landscaping are, with some modifications,
appropriately applied to Retirement villages. Ms Rogers agrees with Mr McIndoe's
assessment.151

10.10 We submit that the RV Act also requires some comment here in light of Mr Birds
statement at paragraph 32 of his evidence for Ryman (when discussing on site
amenity in Retirement villages), that:

149
150

151

ibid, paragraph 6.7.


EIR of D Rogers for Auckland Council, Topics 059-063, 6 October 2015, paragraph 7.1. EIC of J Kyle
for Ryman, Topics 059-063, dated 22 September 2015, paragraph 78; EIC of C Moriarty for Summerset
and Aria Bay, Topics 059-063, dated 24 September 2015, paragraphs 45-48, 123-125, and 141-142.
EIR of D Rogers for Auckland Council, Topics 059-063, 6 October 2015, paragraph 7.3.
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retirement village operators are registered operators who must design and operate
their villages to meet the standards prescribed under the Retirement Villages Act
2003 and to meet the specific and sometimes specialised needs of residents. In my
opinion, the operators are best placed and informed to manage on site amenity and
internal amenity matters such as outlook and daylight access for their residents.
10.11 Mr Bird refers152, by reference to the corporate evidence of Mr Mitchell153 for Ryman,
to the standards prescribed under the Retirement Villages Act 2003.
10.12 At first glance, Mr Birds statement may suggest that the RV Act prescribes
standards" for design of retirement villages, which registered operators must meet.
It is unclear whether as a witness, Mr Bird considers that the inclusion of criteria in a
district plan relating to on-site amenity in Retirement villages overlaps with or
duplicates those standards under the RV Act, and should be avoided in district
plans for that reason.
10.13 The RV Act deals with matters such as registration, occupation rights agreements
and related requirements and rules, the Retirement Commissioners and statutory
supervisors, dispute resolution, enforcement and penalties, the Registrar of
Retirement Villages, the establishment of a Code of Practice (COP), and various
miscellaneous matters.
10.14 The current COP is the Retirement Villages Code of Practice 2008 (incorporating
October 2013 variations).

The purpose of the COP is "to set out the minimum

requirements that operators of retirement villages must carry out, or make sure are
carried out, to meet their legal obligations under the Retirement Villages Act 2003154.
The COP deals with administrative and management matters such as staffing of
villages, accounts and complaints. It also covers the safety and personal security of
residents, fire protection and emergency management, and construction standards
for new retirement villages or units. In this latter regard, the COP simply states at
clause 44.1 that "Building standards for new retirement villages or residential units
within existing villages must meet the requirements of the Building Act 2004 and the
Building Code.155 Other provisions dealing with the Building Act 2004 and Building

152
153
154
155

EIC of C Bird for Ryman, Topics 059-063, dated 23 September 2015, paragraph 133.
EIC of A Mitchell for Ryman, Topics 059-063, dated 23 September 2015, paragraph 31.
Section 4 of the COP.
Page 39 of the COP.
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Code can be found in clauses 19, 20, 23 and 40 of the COP, and are of a similarly
broad nature.
10.15 Neither the RV Act nor the COP prescribe detailed design standards for Retirement
villages relating to on-site / internal amenity. We submit that it is appropriate for
these matters to be considered as part of a plan review under the RMA.
11.

OUTSTANDING MATTERS RELATING TO AFFORDABLE HOUSING

11.1

As Mr Mead notes in the summary of his EIR for the Council, the key areas of
disagreement between the Council and other submitters on the Affordable Housing
bonuses relate to:
(a)

the merits of those bonuses in the Residential zones; and

(b)

the amendments proposed to those bonuses (in the evidence for certain
submitters).

A.

Merits of the Affordable Housing bonuses

11.2

In paragraph 1.3 of his EIC, Mr Mead sets out that the Affordable Housing bonuses in
the Residential zones were for:
(a)

(b)
11.3

an additional height (of 3m) for sites:


(i)

over 2000m2 in area in the MHS zone; and

(ii)

in the AZHC in the THAB zone; and

a small affordable unit in the MHS zone.

Mr Burton states in his evidence for Auckland 2040 that the bonus for the MHS zone:
(a)

would be largely ineffectual as it does not offer any real incentive over and
above that already provided for in the PAUP156; and

(b)

because a large site is required, this will lead to three story apartment
buildings in the MHS zone that will be in "stark contrast"157 to the surrounding
residential development.

156
157

EIC of R Burton for Auckland 2040, Topics 059-063, September 2015, paragraph 106.
Ibid, para 116.
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11.4

Mr Putt in paragraph 4.12 of his evidence for Auckland 2040 and the Herne Bay
Residents, questions whether the additional height will undermine the integrity of the
MHS zone and lessen the difference between it and the MHU zone.

11.5

Mr Mead considers that both Mr Burton's and Mr Putt's concerns could be allayed if
they had considered the requirement for the additional storey to have a 10m setback
from side or rear boundaries, and the fact that a resource consent is required for the
'bonus' development. In Mr Mead's opinion a three storey development can sit within
a one-two storey area provided there is a sense of 'transition', which the 10m setback
rule achieves.

Mr Mead also considers that the resource consent process can

address the design issues raised by Mr Burton.158


11.6

Mr Burton also speculates in paragraph 102 of his EIC that the additional height
bonus in the THAB zone would result in 21m high buildings. It is Mr Mead's evidence
that the bonus provisions state that the building must not exceed 19m outside of the
AZHC areas.

B.

Modifications to the Affordable Housing bonuses

11.7

In his evidence for Community Housing Aotearoa and others159, Mr Figenshow


considers that the proposed density and height bonuses "should only be available to
those providing income-relative affordable housing, and not price-relative affordable
housing". Under the Council's proposed provisions in Attachment A to Mr Mead's
EIR,

(specifically, Development Control 2 in Section H6.6.1B of the PAUP on

Affordability Mix), there must be a 50/50 mix of price-relative and income-related


affordable dwellings. Mr Mead considers this mix is appropriate.
11.8

Ms Linzey and Mr Lindenberg's joint evidence for Housing NZ proposes to change


the bonus height in the MHS zone from 10m to 11m, and delete the requirement that
"50%" of the building's roof may exceed that height by 1m where it slopes by 15
degrees or more. Mr Mead disagrees with the bonus height change and considers
that the 10m limit allows for a three-storey building. Mr Mead also disagrees with the
Housing NZ's proposed roof variation, and considers that it ought to be consistent

158
159

EIR of D Mead for Auckland Council, Topics 059-063, 6 October 2015, paragraph 4.6.
Specifically, Te Matapihi and the Auckland Community Housing Providers Network.
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with the main Residential zones controls which refers (in Chapter I7.2 for the MHS
zone) to "50%" of a building's roof.160
12.

CAPACITY FOR GROWTH

12.1

In this section we address the issues that have arisen with regard to the Council's
recent application of the ACDC15 Model to the Council's revised Residential
provisions resulting from mediation.

12.2

At the outset we submit that the following matters are relevant:


(a)

It is important to note that from Mr Roberts' perspective, the outcomes of the


ACDC15 model "provide a useful 'check' that the residential zoning strategy
and provisions will assist in meeting the RPS housing capacity objectives,
they are not fundamental to [his] position as comprehensively set out in [his]
EIC."161 The proposed changes arose from a thorough consideration of the
appropriateness of the provisions informed by reference to Part 2 and section
32 of the RMA, the views expressed by submitters at the informal and formal
mediations, and submissions and further submissions and expert input.

(b)

Neither Mr Fontein nor Mr Thompson raise any specific challenge to the


proposed amended Residential zone provisions in their evidence, save for a
reference by Mr Thompson162 to his opinion that for smaller lots to be
commercially feasible (in the MHS zone), they require at least 50% site
coverage.

In that regard we record that the expert group of planners

convened as part of mediation, which conferenced on the provisions, agreed


that 35% was an appropriate level of site coverage in the MHS zone163. Mr
Fontein expresses agreement with Mr Thompson in his evidence at
paragraph 7.7 stating that Mr Thompson has said that "to achieve sufficient
density in the MH Zones a site coverage of 50% would be more
appropriate". That is incorrect and not what Mr Thompson has said.

160
161
162

163

EIR of D Mead for Auckland Council, Topics 059-063, dated 6 October 2015, paragraphs 5.5 - 5.7.
EIR of N Roberts for Auckland Council, Topics 059-063, dated 6 October 2015, paragraph 7.2.
EIC of A Thompson for Property Council New Zealand, Topics 059-063, dated 21 September 2015,
paragraph 4.4).
Refer to the (undated) joint statement from the expert conference group convened as part of mediation
proceedings on the Residential Topics.
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A.

Background

12.3

The development of the different Studies and Models to which Messrs Balderston
and Fairgray refer in their evidence is outlined in Mr Balderston's evidence in chief.

12.4

In brief, the Model on which reliance was placed at the RPS Urban Growth hearing
(Topic 013) is known as the Capacity for Growth Study 2013 (CfGS PAUP).
Following that hearing the Panel directed that:164
further expert conferencing on matters of expected urban land Demand, Supply and
Monitoring, seeking to resolve conflicting evidence on these matters received during
the hearings process.

12.5

Following the expert conferencing a further model for measuring capacity was
developed known as the ACDC15.

12.6

The Experts' Report concluded:165


The ACDC15 assesses the feasibility of the identified development potential of
every Residential and some Business zoned parcels in Auckland, on a parcel-byparcel fine grained basis.
The initial output of the ACDC15 development feasible dwellings, which total
64,420, or 20% of the CfGS13 (published) dwellings and 11.4% of the ACDC15
plan-enabled. If we were to add the 19,000 HNZC dwellings (conservative) that the
PAUP allows, this would provide a total developable feasible dwelling number of
83,420 or 26% of the reported CfGS13 plan enabled.

The ACDC15 Model is a very powerful tool to consider what if scenarios in future
planning for the IHP and AC. The ACDC15, in combination with the CfGS model
which feeds it the development opportunities to test, is relatively quickly able to
model the impact of potential changes in zoning rules, overlays, zoning locations etc
on not only plan-enabled capacity, but now also development feasible capacity. This
should be very beneficial for the IHP and AC in months and years to come.
While the ACDC15 results provide a much improved assessment of the likely reality
of how many dwellings will be provided within the 2010MUA, there remain a
number of issues that will affect whether the development attractive identified
parcels within the ACDC15 will be developed, and then the number of dwellings that
are in reality developed, compared to the ACDC15 Model results.
The 013EG was not able to reach a consensus view on the effects of the above issues,
so each of the 013EG members were provided the opportunity to present their
individual thoughts in Appendix D.

164
165

013EG: Residential Developable Capacity for Auckland, page 6.


013EG: Residential Developable Capacity for Auckland, Executive Summary, page 5.
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12.7

Two key terms, "plan enabled capacity" and "developable capacity" are defined in
paragraphs 1.6 and 1.7 respectively of Mr Balderston's EIC. For convenience they
are:
1.6 Plan enabled capacity, is the estimated net number of additional things (in this
case dwellings) that the planning provisions enable to occur, under a set of
assumptions about how the planning provisions apply. The CfGS (and more
particularly the model that underpins it) is the primary method used to undertake this
capacity assessment by the Council, but it is not a forecasting tool. Capacity is a
measure of potential it shows the upper limit of development that complies with the
modelled parameters, these opportunities may be taken up quickly, be realised over a
longer period of time or not occur at all.
1.7 Developable Capacity, is the estimated net number of additional things (in this
case dwellings) that the planning provisions enable, that a commercially oriented
developer will utilise, under a set of assumptions about how commercial development
decisions are made. The ACDC15 model has been quite recently developed by a
group of Topic 013 Expert Witnesses at the direction of the IHP, and is managed and
run by Auckland Council, and is now the primary method used to undertake
assessment of the commercial feasibility of capacity enabled by Auckland Council,
however it is not a forecasting tool. Feasible capacity is also a measure of potential,
but provides an indication of which of the opportunities enabled have a higher
potential or are more likely to be taken up by commercially oriented developers, than
other comparable plan enabled opportunities.

B.

Report from Experts

12.8

In reference to the Report166 (from the Expert Group brought together for the purpose
of caucusing on the Capacity for Growth Study), Mr Balderston recorded in his EIC:
1.8 The Expert Group report describes these two forms of capacity and how the
models work together as follows: The distinction between plan-enabled capacity,
and developable capacity is important. Plan enabled capacity is the number of
additional dwellings which may be developed according to the provisions of the
PAUP. This capacity was estimated from the Capacity for Growth Study 2013
(CfGS13). However, since not all of the plan-enabled capacity will be economically
viable to develop, it is important to consider developable capacity, which is the
number of additional dwellings which are both plan-enabled and are commercially
viable to develop. The modelling therefore starts from the premise that while not all
plan-enabled development will necessarily be developed, a strong prerequisite for
development to be feasible is that it must first be plan-enabled. This also reflects a
practical consideration in that there is no information on which to base a site- scale
assessment of non-plan-enabled capacity, other than noting the potential for it to
occur.

166

013EG: Residential Developable Capacity for Auckland, page 8.


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C.

Proposed Amendments to Residential Provisions

12.9

It is against that background that the Council determined that it would be helpful to
run the ACDC15 model with the proposed amended Residential zone provisions.

12.10 It is also important to note the following about the use of the ACDC15 Model. Please
note Mr Balderston's EIC at paragraph 1.15:
The ACDC15 Model has been rerun (unchanged), to model the impact of potential
changes in zoning between the two different inputs sets of plan enabled
opportunities output by the CfGS Model what if the rules were changed to those
proposed by the ACAP?:
(a)
One set provided by the PAUP residential and business rules and zonings (as
notified in September 2013) and as reported in the expert group report.
(b)
The other set following adjustments to the residential rules, and termed the
ACAP provisions (the PAUP business provisions have not been amended in
the ACAP run) more fully described in this evidence.
12.11 The results are outlined in paragraphs 1.18 to 1.20 of Mr Balderston's EIC and
analysed by Dr Fairgray. In brief, Dr Fairgray notes in his EIC (footnotes omitted):
C. The amendments to the provisions for the Residential zones have resulted in very
substantial increases to the capacity for more dwellings enabled by the PAUP. They
arise primarily because the Council's revised Residential zone provisions enable more
development and more efficient utilisation of the land resource. The current estimates
from the ACDC15 Model, following the amendments identified to 12 August 2015,
show plan enabled capacity for 598,466 additional dwellings in the Residential
zones.1 This is a very substantial increase over that which was enabled under the
previous provisions.

F. The amount of developable capacity which is currently viable is estimated from the
ACDC15 Model at 150,354 dwellings in the Residential zones. This figure does not
include developable capacity in the Business zones, nor that on land in the
Residential zoned areas which is owned by HNZC, or identified as Special Areas.2
G. The ACDC15 Model outputs provide a snapshot of what development and
redevelopment is currently viable. However, the amount of developable capacity will
change over time, as the Auckland economy grows, and shifts in the values of
residential properties will alter the viability of their redevelopment.
12.12 Evidence given on behalf of two submitters, Mr Thompson for The Property Council,
and Mr Fontein for himself (as a submitter) raises questions about these results
implying that the assumptions underpinning the ACDC15 Model have been changed.
They are incorrect. The Model was simply applied to provide information on the
capacity enabled by the proposed amended residential provisions.

Furthermore

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Mr Fontein alleges167 that there would need to be a peer review "of the data tables
and the formulae that drive the ACDC". With all due respect to him, the data tables
and formulae were not changed. The Model was run so as to provide information on
the extent of capacity enabled by the proposed amended provisions.
12.13 Furthermore, nowhere in the Expert Report is there mention that the ACDC15 Model
is to be limited in its application to the notified PAUP provisions. Were that to be so,
its very utility must be called into question.

Quite to the contrary the Executive

Summary specifically makes mention of the fact that it will provide a very powerful
tool to enable the Council and the Panel to model "what if" scenarios in years to
come. Mr Fontein and Mr Thompson were members of the Expert Group and
contributed to the Report.
12.14 On 25 September 2015 the Panel issued certain directions:
Patrick Fontein and Adam Thompson (who were members of the 013 Expert
Group) have filed evidence on the residential topics questioning the assumptions and
judgements used in the re-run of the ACDC model. In their view, these issues are
sufficient to call into question the reliance the Panel should place on the results of this
modelling.
Given the importance of these capacity forecasts for the Panels consideration of the
residential topics the Panel wishes to have clarified the extent to which the
assumptions and judgements critiqued by Patrick Fontein and Adam Thompson
impact on the capacity forecasts. To have this point clarified the Panel directs that
Patrick Fontein and Adam Thompson develop an agreed set of assumptions and
judgements required to re-run the ACDC model to properly reflect the modified
density controls proposed by the Council. The Panel directs the RIMU team to work
with Patrick Fontein and Adam Thompson to achieve and report re-run ACDC model
results prior to 14 October 2015 (commencement of the hearings).
The Panel requests Patrick Fontein and Adam Thompson to identify, compare and
report the key differences in assumptions and judgements used in this re-run of the
ACDC model relative to those used for the Kyle Balderston evidence dated 8
September 2015, and relative to those used in the initial ACDC modelling dated 22
July 2015.
The Panel requests Kyle Balderston to present the results of the re-run ACDC model
in a manner that enables ready comparison with the results presented in his evidence
dated 8 September 2015, and with the results from the initial ACDC model dated 22
July 2015.

167

EIC of P Fontein, Topics 059-063, dated 22 September 2015, paragraph 1.5.


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12.15 Mr Hill advised by memorandum dated 5 October 2015 that further directions were
issued on 30 September. We have been unable to locate on the website a copy of
that Direction. Mr Hill records the additional directions which include:
1.
2.
3.

By Friday 2nd 5pm changes to all Lookup Tables (inputs and any associated
assumptions to model) to be circulated by Patrick Fontein and Adam
Thompson to Property Development Expert Group (013EG)
The Panel provide IHP mediator David Hill to convene the EG (by e-mail)
over this weekend with view to the 013EG reaching agreement to changes
proposed to Lookup table inputs.
David Hill to report the outcome of this review to IHP and parties by 9am
Monday 5 October

12.16 In his report dated 5 October Mr Hill records at paragraph 11 that "Nil responses
were received from Phil Osborne, Robert Philpott, Dr Michael Rehm, and the Council
and Government representatives."
12.17 For the Council's part, we observe first that the Panel's 25 September direction was
quite clear, insofar as its RIMU unit was to respond to Messrs Fontein and
Thompson's agreed set of assumptions and judgments. That makes sense because
as far as it was concerned, Messrs Fontein and Thompson were driving the matter of
changed inputs and assumptions.
12.18 If the Panel intended by its additional 30 September direction to involve the Council's
witnesses in discussion and agreement, that was not clear to Mr Balderston. As far
as he was concerned, he was simply to await the proposed assumptions and other
material from Mr Fontein (and others) and then run them through the Model.
D.

Outcomes of review

12.19 Both Dr Fairgray and Mr Balderston have filed comprehensive statements of EIR.
They both address evidence filed on behalf of submitters but also the evidence of the
alternative scenarios advanced by Messrs Fontein and Thompson.
12.20 The alternative scenarios that Messrs Fontein and Thompson directed Mr Balderston
to run examined the effects of three substantive changes to the inputs and
assumptions in the ACDC15 Model. Those changes are set out in paragraph L of
Dr Fairgray's EIR as follows:

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L.

The PFAT scenarios examined the effects of three substantive changes to the
inputs and assumptions in the ACDC15 Model:
a.
Changes to the input information in the Lookup Tables (the LUT) to
incorporate extra zone-parcel size-typology combinations for terrace
houses, and amended inputs on modelled dwelling sizes for
typologies;
b.
Changed assignment of dwelling typologies to the zone-parcel sizemarket position combinations, the most significant of which is the
assignment of terrace houses (rather than houses) to most of the 200300m2 parcels in the MHS and MHU zones; and
c.
The addition of an assumed price ceiling mechanism to the Model
results, such that if the modelled prices exceeded the Low or Raised
ceiling, the development was excluded from the estimates.

12.21 The addition of an assumed price ceiling mechanism is new and was not applied to
previous modelling.
12.22 The results of the alternatives are summarised as follows:168

N.

The PFAT No Ceiling scenario is the one which is directly comparable with the
ACAP scenario, because it includes the LUT and assignment changes, but
excludes the effect of the ceiling mechanism. The PFAT No Ceiling scenario
identifies feasible capacity of 162,826 dwellings. This is -18,356 dwellings (10.1%) fewer than the ACAP scenario (181,182 dwellings).

O.

The PFAT Low Ceiling scenario identifies feasible capacity of 108,214


dwellings. This is -54,612 dwellings (-33.5%) fewer than the PFAT No Ceiling
scenario.

P.

The PFAT Raised Ceiling scenario identifies feasible capacity of 144,165


dwellings. This is -18,661 dwellings (-11.5%) fewer than the PFAT No
Ceiling scenario.

12.23 A key result to note is that when the same No Ceiling scenario is compared with the
Council's ACAP scenario, the difference is only 18,356 dwellings.
12.24 Perhaps the most important point that can be taken from the modelling, and as noted
by both Dr Fairgray and Mr Balderston, is that the Model outputs show that the
amendments to the Residential provisions will act to increase both the plan-enabled
capacity and the amount of feasible capacity, compared with the PAUP as notified.

168

EIR of D Fairgray for Auckland Council, Topics 059-063, dated 13 October 2015, paragraphs N, O and
P.
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13.

CORRECTIONS / UPDATES

13.1

In this section, we set out a number of typographical / editorial corrections and


updates required to the evidence filed for the Council:
(a)

Two minor amendments to Table 12 (Special information requirements) are


were agreed to in Ms Ogden-Cork's EIR, but omitted from the mark up
provisions in Attachment A to Mr Roberts' EIR:
(i)

Requirement 2 (Existing Neighbourhood Context) should have an 'x'


noted against criterion c. (Built Form Character) in the column titled
"6-15 dwellings in all Residential zones".

(ii)

Similarly, Requirement 4 (Opportunities and constraints analysis)


should have an 'x' noted against criterion e. (Landscape & Open
Space) in the column titled "3-5 dwellings in all Residential zones".

(b)

The last line from Ms McLaughlan's evidence in paragraph 9.1: "Explain


difference between units and buildings please" is an internal comment made
to Ms McLaughlan during the evidence review stages, and ought to be
deleted from her finalised evidence.

(c)

The matter raised in paragraphs 6.9 6.11 of these legal submissions


relating to Ms Stewart's amendments to the lot averaging control in Rule
H5.2.3.1.1.b.

14.

CONCLUSION

14.1

For the reasons given in these legal submissions and the evidence of Council's
expert witnesses, it is submitted that the amendments proposed to notified Chapters
D1, I1 and H5.2.3.1 as shown in the following attachments to witnesses' evidence are
appropriate and meet the purpose of the RMA:
(a)

Attachment 2 to Mr Roberts EIC (as amended by Attachment 1 to Mr


Roberts EIR);

(b)

Attachment A to Mr Mead's EIR; and

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(c)

Attachment B to Ms Stewart's and Ms Hardman-Miller's EIR (again, as


amended by the matters discussed in paragraphs 6.9 6.11 of these legal
submissions).

J Hassall, M Dickey, H Ash, M Allan, and B Milo


Counsel for Auckland Council
14 October 2015

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