In June the Environment Court released a decision on the rural subdivision appeals in the Auckland Unitary Plan (AUP) to the decisions on these rules made by the Auckland Council.
The case related to the rules relating to rural subdivision rights based on the protection of Significant Ecological Areas (SEA) such as indigenous vegetation and wetland but also re-vegetation.
There were a number of appellants and in essence they sought to reinstate the version of this part of the plan recommended by the Independent Hearings Panel (IHP).
But what is the Independent Hearings Panel?
Just to quickly refresh, this was the panel that was established through special legislation to hear submissions on the Unitary Plan and make recommendations to Auckland Council. Where the Council rejected recommendations made by the panel (as was the case with parts of the rural subdivision rules), appeals could be made to the Environment Court, which is what occurred.
What are the issues?
One of the major issues of contention was the appropriateness of insitu rural subdivision in rural zones outside the Countryside Living Zone and above the three sites that are currently ‘capped’ under the Council decision. The IHP recommendation did not impose this cap. Therefore under their recommendation, provided criteria and objectives and policies were met, a number of sites could be created in the very locality where the vegetation, wetland or revegetation that provided the basis for subdivision was being protected. Under the Council decision these titles would need to be transferred out of the area and the sites created in a Countryside Living zone.
Of concern to Council was, this level of sites being established outside of the main ‘Lifestyle Block’ zoning (Countryside Living Zone) could expose the rural environment to undesirable effects. This included adverse effects on the productive use of rural soils and on rural character and amenity values, causing incompatible effects on established rural uses (like farming) and creating an expectation for services to go into remote settings.
Environment Court decision
The Court did not agree that the Council should have to take a ‘black and white’ approach in relying on a Standard which
set a cap for the number of sites that could be created insitu. The Court instead preferred a merits-based approach. It acknowledged that some subdivisions seeking a higher number of sites based on wetland or indigenous bush protection could create the inappropriate effects of the kind the Council were concerned about. If this was the case the Court emphasised the Council had the option to use their discretion and decline the application. This would be based on falling short of what was expected under assessment criteria and objectives and policies. Obviously with other proposals it might be demonstrated the effects are acceptable and/or able to be mitigated and this number of sites insitu might be appropriate to grant.
Further to this the Court was receptive to the idea of a Master Plan process, suggested by some of the appellants. This might be a requirement, applications seeking four or more lots would need to provide. This would ensure key issues arising from creating a greater number of lots would be carefully scrutinised and addressed.
Overall the Court ruled that the appeals were allowed to the extent that the IHP recommendation was to be substituted for the decisions of the Council subject to certain changes. In the decision the Court also set down a timetable for circulating proposed amended provisions for the Council and parties.
High Court Appeal
However, the discussion intensifies as Auckland Council have now elected to appeal the Environment Court decision to the High court on certain of errors of law. The Council have indicated due to these legal considerations and because of the importance of safeguarding the finite resources of the rural economy such as high quality soils and rural landscapes, they consider this provides good reason to take the issue further.
As a result, the final form of rural subdivision provisions is still far from certain and the final conclusion on this is not likely till 2019.
Where to from here?
As a result of the High Court appeal, we are still in a period of “limbo”, with a number of the legacy provisions continuing to apply. This can make resource consent applications in the rural zone complicated. We have been working in rural locations for over 15 years and can provide you with realistic advice. Get in contact if you’d like to know more.
Anne Hessell is a Senior Planner at Planning Plus and has over 17 years of resource management experience, including involvement with coastal permit applications for over 15 years.
Anne has a wide range of experience, including that relating to rural and urban subdivision, commercial development, events, coastal permits/ consents, designations and land use activities. Anne has appeared before the Environment Court as an expert Planning witness, attended Environment Court mediation, and on a number of occasions appeared before Council Hearing Committees. Anne also has experience in relation to Direct Referrals to the Environment Court.
As with all our blogs, the information detailed here is general in nature and meant as a preliminary guide only. This should not be substituted for your own investigations or use of your own professional’s. Planning Plus is not liable for any errors or omissions.