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IN THE MATTER
AND
IN THE MATTER
ELLIS GOULD
SOLICITORS
AUCKLAND
REF: Dr C E Kirman / A K Devine
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Introduction
1.
2.
The Corporation has lodged planning, urban design and economic evidence
on this Topic.
provisions that are the subject of earlier hearings, the Corporation also relies
on the evidence and legal arguments it has presented in earlier hearings, in
particular in relation to the Regional Policy Statement (RPS) (Topics 005,
006, 007, 009, 010, 012, 013) and Topic 020 Viewshafts, Topic 022 Natural
hazards and flooding, Topic 023 SEA and vegetation management, Topics
029/030 Special Character and Pre-1944, Topic 031 Historic Heritage, Topic
032 Historic Heritage Schedules, Topic 035 Air Quality, Topic 042
Infrastructure, Topics 043 and 044 Transport, Topic 045 Airport, Topic 050
City Centre, Topics 051-054 Centres Zones, Business park and industries
zones, Business activities and Business Controls, Topics 059, 060, 062 and
063 Residential provisions, Topic 061 Retirement and Affordability, Topic 064
Subdivision and Topic 080 Rezoning and Precincts (General).
Background Information - Housing New Zealand Corporation
3.
4.
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5.
6.
8.
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9.
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10.
11.
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urban form and the natural process of incremental change that is likely in
these areas because of existing development.
12.
13.
(b)
14.
remains the primary provider of social housing for those members of society
Reference specifically the evidence provided by the Corporation on Topic 013, including Mr Sowry and
Professor Howden-Chapman.
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Corporation is in a unique position, in that its size and extensive land holdings
within the Region means it (more readily than private developers) can give
effect to the vision for intensification within the Isthmus because of its ability
to amalgamate and develop land holdings. The Corporation (as previously
noted in Topic 013) currently faces significant challenges in that the demand
for social housing has changed markedly from the 2-3 bedroom houses on
large lots that were built in the 1930s and 1940s, to single unit housing and
4-5 bedroom homes. This contrasts with the Corporations current housing
portfolio in the Auckland Region, of which 76% is of 2-3 bedroom typology,
the majority of which are on large lots.
Relief sought
15.
These legal
submissions, therefore, focus on the scope of the Corporations and the other
central government submitters (MBIE and the Minister) submissions.
16.
(d)
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(f)
(g)
The right to be heard at the hearing still exists Every person who
has made a submission and stated that they wish to be heard at the
Hearing may speak at a hearing session, either personally or through
a representative, and call evidence (section 129 LGATPA)
(h)
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(i)
(j)
In
circumstances
where
the
Council
rejects
the
Panels
17.
The Corporation says that this process, as well as creating an efficient and
tight timeframe in which participation and decision making on the Unitary Plan
is undertaken, provides an inbuilt framework that allows for participation of the
public in the same way as the RMA and in a manner that ensures matters of
natural justice are adequately protected. As such, the Corporation submits
that the discussion of the participatory nature of the process which informs
the determination of the scope of submissions in the General Distributors
Limited v Waipa District Council case, is still relevant to this process, even
where this process has been modified from that process established under
the RMA:
The promulgation of district plans and any changes to them is a participatory
process. Ultimately plans express community consensus about land use
planning and development in any given area. To this end the Act requires
that public notice be given by a local authority before it promulgates or makes
changes to its plan. There is the submission/further submission process to be
worked through. A degree of specificity is required in a submission cl 6 in
the First Schedule and Form 5 in the Regulations. Those who submit are
entitled to attend the hearing when their submission is considered and they
are entitled to a decision which should include the reasons for accepting or
rejecting their submission. There is a right of appeal to the Environment Court
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but only if the prospective appellant referred to the provision or the matter in
the submission cl 14(2) of the First Schedule.
One of the underlying purposes of the notification/submission/further
submission process is to ensure that all are sufficiently informed about what
is proposed. Otherwise the plan could end up in a form which could not
reasonably have been anticipated resulting in potential unfairness. (Refer:
General Distributors Limited v Waipa District Council, High Court, Auckland
Registry, CIV 2008-404-004857, Wylie J, 19 December 2008, paras 54-55)
18.
In that regard, it is submitted that the test for determining the jurisdiction of an
appeal is well settled in this context it requires a consideration of what fairly
and reasonably falls within the general scope of the Corporations original
submission, and submissions lodged by MBIE and the Minister (collectively
referred to as the Central Government Submissions).
19.
It is submitted that the test for demarcating the Courts jurisdiction in respect
of a submission on a proposed plan is that set out in An Application by Vivid
Holdings [1999] NZRMA 467 as follows:
[A]ny decision of the Council, or requested of the Environment Court in a
reference, must be:
(a)
an original submission; or
(ii)
(iii)
somewhere in between
provided that
(b)
the summary of the relevant submissions was fair and accurate and
not misleading.
5.
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20.
The rationale that underpins this requirement was explained in Biocycle (New
Zealand) Limited v Manawatu Wanganui Regional Council (W148/96) when it
was noted that:
It is essential in matters of reference that the initial submission, which is the
cornerstone of the reference proceedings, should be explicit and that relief
sought in a reference should be equally explicit. The preliminary step of
submission alerts those who may be involved that the notified plan may be
amended. It is similarly essential that any reference to the Court does not
sidestep the initial submission process by raising matters which the public in
general have no ability to comment upon. (Refer: Biocycle (New Zealand)
Limited v Manawatu Wanganui Regional Council (W148/96) at page 3)
(Emphasis added).
21.
In terms of the approach to be adopted by the Court, in Royal Forest and Bird
Protection Society v Southland District Council [1997] NZRMA 408 at page
413 it was stated 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.
22.
23.
Having regard to the above case law, it is submitted that the key issue for this
Panel is whether or not the proposed relief sought by the Corporation could
fairly and reasonably be considered to be within the general scope of the
Corporations submissions or the Central Government Submissions, applying
a realistic, workable interpretation of the relief sought in those submissions.
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The Corporation considers that its submissions on the Unitary Plan, along
with those made by MBIE and the Minister2 are sufficiently broad to support
the amendments to the spatial application of the residential zones as detailed
in the evidence of the Corporation, and the attendant mapping. As noted in
the Corporations January and February submissions3, the Corporation
strongly supported the strategic direction of the Auckland Plan, but
considered that the Unitary Plan (as notified) fell well short of implementing
this strategic direction of providing greater residential intensification.
As
requirements and the complexity of the District and Regional Plan provisions,
particularly the rules, are not the most appropriate policies and methods to
achieve the urban and economic growth goals of the Regional Policy
Statement. This is particularly the case in respect of provisions relating to
use, development and subdivision within the existing 2010 metropolitan
area. (Refer: page 4, 28 February 2014, Housing New Zealand Corporation
submission)
(Emphasis added)
The Minister for the Environments submission clearly states that: the nature of this submission is
high-level: it does not specify amendments to individual provisions in the Proposed AUP, though such
amendments will be required in order to give effect to the relief sought in the submission. (Refer: para
4, submission of the Minister for the Environment)
3
The Corporations submission included the following statement under the Relief sought section: such
further, other or consequential orders, relief or amendments as are considered appropriate and
necessary to address the matters raised in this submission so as to adequately recognise and respond
to the development and operational requirements of Housing New Zealand as the key social housing
provider in New Zealand. (Refer: page 10, 28 February 2014, Housing New Zealand Corporation
submission)
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Comment: The Corporations submission clearly states its concern that the
notified Unitary Plan did not sufficiently provide for the long-term residential
growth and the urban growth goals of the Auckland Plan. These concerns
mirror those of MBIE in its submission which states:
MBIEs concern with the Unitary Plan as proposed is that it does not follow
through on its strategic objectives (which are generally supported) with the
appropriately-aligned polices and rules:
In doing so, the proposed Unitary Plan does not provide for the growth that
Auckland needs over the next thirty years, and to the extent that it does not,
Aucklands housing market will not perform efficiently and house prices will
become even more unaffordable. (Refer: paras 8 and 9, MBIE submission)
(Emphasis added)
25.
26.
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(emphasis added)
Comment: Again, the Corporations submission clearly puts at issue the need
for reconsideration of the extent of the residential zones and urban
intensification so that there is congruence with the strategic directions
identified in the Auckland Plan. In that regard, the Corporations submission
aligns closely with the relief sought by other Central Government submitters,
more specifically the MBIE submission which sought that: where necessary
to achieve alignment with the objectives of the Auckland Plan and the
Regional Policy statement sections of the proposed Unitary Plan, the zoning,
overlays and development controls and other rules in the proposed Unitary
Plan are adjusted and amended such that they do not constrain provision of
sufficient residential development to meet Aucklands long term (30 year)
growth projections, and proactively enable efficient growth in areas of high
market demand. (Refer: para 78, MBIE submission) (Emphasis added)
27.
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This
28.
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29.
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other social facilities and/or centres such that they warrant a zoning that
would enable further urban intensification from that currently proposed (e.g. a
shift from proposed zonings of Single House and Mixed Housing Suburban to
Mixed Housing Urban, Terrace Housing and Apartments or in a few cases to
Mixed Use);
There are a few Housing NZ properties and sites where the zoning proposed
in the Proposed AUP is inconsistent with the current development pattern on
or surrounding the site and it is considered an alternate zone is more
appropriate to the sites existing or proposed zoning;
There are a number of Housing NZ properties that appear to have been
down-zoned (compared with either existing zoning or surrounding zoning)
on the basis of infrastructure constraints (primarily flood hazard notations). It
is submitted that these areas are better managed through the application of
Overlays to address resource values / issues (such that if these issues can
be addressed, the wider zoning pattern appears appropriate for the site);
...
That there are instances where the precautionary approach has resulted in
significant areas of the City being encompassed within Overlays. Housing NZ
considers that the broad spread of Overlays and the constraints that are
imposed by them are not, on balance, appropriately reflective of the resource
management issues in the Regional Policy Statement. Housing NZ submits in
opposition to the extent and degree of regulation of these Overlays. In
particular, Housing NZ considers that these Overlays will unreasonably
restrict development such that there is a risk that providing sufficient capacity
to deliver a quality compact city with some 70% of growth directed to the
existing metropolitan areas of the City will not be achieved. As illustrations
(with Tables 1 and 4 providing further detail):
Approximately 80% of the areas of the City zoned for Terrace Housing and
Apartments are have some form of Overlay (including designation) over it,
leaving on 362ha without some form of further development control.
For Housing New Zealands stock, these figures are even higher, with 85%
affected by overlay and only 21ha unaffected;
Approximately 65% and 75% respectively of the Mixed Housing Urban and
Mixed Housing Suburban zones have some form of Overlay (including
designation) over it.
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Again, for Housing New Zealands stock these respective percentages are
83% and 91%.
Therefore, Housing NZ is concerned that even those limited land areas that
have been identified within the existing Metropolitan Urban Area for
residential growth are in reality even smaller than the zoning provisions would
indicate. Table 4 highlights specific properties for where Housing NZ is
seeking amendments to Overlay extents. (Refer: pages 6-7, 28 February
2014, Housing New Zealand Corporation submission)
(Emphasis added)
30.
Similar
examples are evidence for natural hazards and infrastructure (e.g. floodplain
areas). (Refer: page 4, 14 January 2014, Housing New Zealand Corporation
submission)
(Emphasis added)
31.
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b. For sites where Housing New Zealand seeks that they be rezoned to
Mixed Housing Urban:
They are within 800m of the Metropolitan Centre or Town Centre (as a 10min
walk time proximate, which is considered a reasonable walking distance for
larger shopping amenities provided by such centres);
i.
ii.
iii.
c.
For sites where Housing New Zealand seeks that they be rezoned to
Mixed Housing Suburban:
i.
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ii.
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In addition to the site context issues above, there are a few Housing New
Zealand properties and sites where the zoning proposed in the Proposed
AUP is inconsistent with the current development pattern on or surrounding
the site (including some inaccurate zones). Following our site assessments,
Housing New Zealand seeks that these sites are re-zoned to provide a
zoning more consistent with these development patterns.
Finally, following detailed review of Housing New Zealand sites, there are
also a few Housing New Zealand sites where it is considered that an
alternative enabling zoning would facilitate Housing New Zealand to deliver
positive social and community change. Such outcomes would assist in
Housing New Zealand contributing to the social and economic wellbeing of
the community. For example, in cases where the age and condition of
existing stock is having potential adverse effects on communities (e.g.
amenity values), it is considered that an opportunity for redevelopment of
these areas would positively contribute to quality urban form (Issue B.1.1 of
the REGIONAL POLICY STATEMENT).
Housing New Zealand seeks a number of amendments of the provisions of
the Unitary Plan relating to the use and development of its sites in the
Region. The amendments sough can be met by amendments to the zoning
provisions and/or by removal of the sites from various overlay provisions, but
as an alternative can also be dealt with by way of introduction of another
planning mechanism (for example, a Precinct (recognising Housing New
Zealands submission on the weighting given to Precincts relative to
Overlays)). (Refer: Table 3: Housing New Zealand Site Specific Zoning
Submissions 3c. Submissions in Opposition (Amendment Sought), Housing
New Zealand Submission)
(Emphasis added)
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32.
And later in the MBIE submission similar submission points were made
stating:
As noted in the Government submission, the misalignment between the
regional-level objectives and the district-level provisions are expressed
through:
Proposed development controls and zoning (including future urban land) that
do not provide the needed long-term development capacity to meet projected
population growth
A deliberate down-zoning apparent between the draft Unitary Plan released
in March 2013, and the proposed version, creating a misalignment between
areas of high demand and the areas where growth is provided for, which may
create additional uncertainty for infrastructure providers, and additional cost
to housing provision as developers challenge through out-of-zone consents,
the development rules and zonings in order to achieve economically viable
development (Refer: para 23, MBIE submission)
There is little justification provided for why many zoning decisions across the
city have been made i.e. why ostensibly market-attractive areas near
transport and employment etc. have been zoned at low densities (or lower
densities than indicated in the draft Auckland Unitary Plan in March 2013).
Inefficient use of market attractive land while protecting the micro-amenity of
neighbourhoods in the short-term will seriously compromise the macro-utility
of the city as a whole, and detract from the overarching vision of Auckland as
the worlds most liveable city attractive, economically efficient and socially
equitable. (Refer: para 28, MBIE submission)
MBIE seeks amendment to the zoning and density rules pertaining across
the region to re-establish and ensure alignment with the strategic objectives
of the Auckland Plan and the Regional Policy Statement sections of the
proposed Unitary Plan, with the zoning, overlays and development controls
and other rules adjusted to provide sufficient residential development
capacity and land-supply particularly in areas of high market demand to
meet Aucklands long term (30 year) growth projections. (Refer: para 30,
MBIE submission)
Where necessary to achieve alignment with the objectives of the Auckland
Plan and the Regional Policy Statement sections of the proposed Unitary
Plan, the zoning, overlays and development controls and other rules in the
proposed Unitary Plan are adjusted and amended such that they do not
constrain provision of sufficient residential development to meet Aucklands
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long term (30 year) growth projections, and proactively enable efficient
growth in areas of high market demand. (Refer: para 78, MBIE submission)
(Emphasis added)
33.
Detailed amendments were also sought by the Corporation to the RPS which
sought, that "opportunities for brownfield urban intensification should be
optimised". Further, amendments to the RPS were sought to enable higher
residential densities and efficient use of land in neighbourhoods located in
close proximity to employment opportunities.
34.
35.
For the Mixed Housing Suburban (MHS) and Mixed Housing Urban (MHU)
zones, amendments were also sought to the regional and district objectives
and policies to require the density and scale of development for those zones
to achieve an appropriate balance between making the most efficient use of
the site, whilst still providing quality amenity for residents and adjoining sites.
36.
37.
Reading the Central Government Submissions together (i.e. the whole relief
package detailed in each submission to use Chisholm Js language in the
Shaw v Selwyn District Council [2001] 2 NZLR 277 decision), it is submitted
that it is quite clear that the objectives, policies, rules and spatial application
of the zoning of the Unitary Plan as notified were under challenge due to the
Corporation, and other Central Government submitters expressed concerns
that the notified provisions would not provide for the levels of intensification
required to address the Regions housing shortage and to accommodate
future growth. Whilst couched in broad terms, it is submitted that the relief
sought was made with the necessary specificity to make clear to those
reading the submission that greater intensification within zones and changes
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in the spatial composition of zones could occur (Refer: Shaw v Selwyn District
Council [2001] 2 NZLR 277 at paras 29-33).
38.
In that regard, it is
There is a
document is that at the bottom of the hierarchy the district plan. But all
documents in the chain should be considered when attempting to assess the
overall objectives and policies and how in a given situation the sustainable
management of natural and physical resources is to be promoted (which is
the purpose of the Act: see s 5(1)).
For instance, one cannot sensibly consider whether s 6(a) was misinterpreted
without considering the documents reliant on it further down the chain. Even
when one gets to the district plan, which has specific objectives, policies,
rule, and provisions relating to Pakiri and to subdivisions at Pakiri, one is still
assisted in the appropriate understanding of that document by considering
the other documents which in part led to it. The statutory documents need to
be assessed as a whole. (Refer: Auckland Regional Council v Arrigato
Investments Limited and Others [2001] NZRMA 158 at paras 12 and 13)
39.
In effect, this is simply a reversal of the situation faced by the High Court in
the Shaw decision where Chishom J stated:
Although it is true that no new objectives and policies were actually
formulated in either referrers' submission, there can be little doubt that both
submissions signalled that the relief package was intended to include such
modification to the objectives and policies as might be necessary to support
the proposed rules. In my opinion the workable approach discussed by
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Panckhurst J required the Environment Court to take into account the whole
relief package detailed in each submission when considering whether the
relief sought had been reasonable and fairly raised in the submissions. Given
the nature of the proposed rules I cannot conceive that anyone could have
been under any illusion that the submissions were seeking not only a
reduction in lot size (and associated relaxation in relation to dwellings) but
also any necessary modification to the objectives and policies. In other
words, I do not think that anyone could justifiably complain that they would
have lodged a submission if they had been aware that the referrers were
seeking amendments to the objectives and policies. They were on notice that
such amendments were contemplated. (Refer: Shaw v Selwyn District
Council [2001] 2 NZLR 277 at para 31).
40.
41.
42.
Submissions seeking the provision of minor dwellings within the SHZ would
have the same effect in terms of increasing the intensity of the development
envisaged within that zone. In a similar way, the submissions challenging the
extent of the application of overlays and the attendant down-zoning of sites
which has then followed in the notified version of the Unitary Plan, would (if
the SHZ is to remain restricted in its ability to allow for future intensification),
lead to changes in the spatial application of that zone.
43.
Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145
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The zoning changes that arise from the Corporations submission that
the down-zoning of overlays should be removed.
The planning
evidence in Topic 080 and numerous earlier hearings has set out the
reasons why the Corporation and its experts consider that it is
inappropriate to down-zone a property solely because it is also subject
to an overlay and that these planning mechanisms should remain
independent.
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the
properties
in proximity of
the
dispersed
Corporation
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Finally, the Corporation seeks leave to file a short reply to address any further
submitters speaking to the Corporations submission, in circumstances where
those submitters have asked to speak but have not yet exchanged evidence.
Evidence
46.
For this Topic, the Corporation will be calling the following witnesses in
support of its case:
(a)
(b)
(c)
_________________________________
Dr Claire Kirman / Alex Devine
Counsel for Housing New Zealand
Corporation
CEK-004386-240-419-V3
Attachment A
The Corporation
1.
2.
The figures in the first two bullet points are from the 2012-2013 Annual Report.
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Statistics taken from the Briefing for the Incoming Minister of Housing, 2013.
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(g) There has been a marked change in the type of social housing that is
required by the Corporations tenant base:
a. Demand has increased for single bedroom housing required
for single persons, the elderly or disabled, and larger homes
with four to six bedrooms required to house larger families.
b. As a result the size of many state houses in the Auckland
region do not match the changing demand for social housing,
with a large proportion of the Corporations housing stock
comprising older 2-3 bedroom homes on large lots which are
too large for smaller households and too small for larger
households..
c. This has meant that the Corporation has had to review its
housing portfolio and assess how it can respond to the
changes in demand, given its current housing supply is
skewed towards 23 bedroom houses that do not meet the
needs of tenants and/or are uneconomic to maintain.
(h) The Corporation has a long-term Asset Management Strategy which
is focused on providing houses that are the right size, in the right
place and in the right condition. As part of that strategy the
Corporation will look to redevelop existing sites by using them more
efficiently in order to improve the quality and quantity of social
housing that is available.
(i) The Corporation has been involved in a number of redevelopment
projects that have amalgamated sites to allow for more efficient use
of the Corporations stock, or to use single sites more effectively. A
recent example of this type of development was undertaken on sites
owned by the Corporation on Garrison Avenue, Three Kings. In this
instance, a group of four old, single-storey dwellings were replaced
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C2
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