The Auckland Unitary Plan is still a relatively new planning document, and everyone is still coming to grips with how the provisions work and how they fit together. Sometimes this isn’t always how it was originally intended. This has recently become very important for sites in overlay areas, which create another level of control above the normal zone rules.
Environment Court Declaration proceedings brought by Auckland Council regarding how the Special Character Overlay Residential and Business (SCAR) rules and Single House Zone (SHZ) provisions should be viewed, have thrown up a fundamental change in interpretation. Previously the Council approach, as confirmed via a Council Practice Note and actual Council practice, was that the overlay provisions took precedence and overrode the related zone provisions.
This declaration is important, as one of the most common residential zones in Auckland is the Single House zone and numerous residential sites in the older parts of central Auckland and on the North Shore (as well as other areas) are subject to the SCAR overlay as well.
At the heart of the discussion was whether the Special Character Area (SCAR) standards provided a ‘replacement package’ of plan provisions for the equivalent standards in the underlying Single House Zone. These include standards such as yard setback requirements, overall height and height to boundary controls. The provisions in the Single House Zone and the SCAR are different.
Ultimately the Court indicated that due to the wording of the Unitary Plan, the SCAR standards do not ‘nullify’ or ‘cancel out’ those standards set out in the Single House Zone. Instead all rules relevant to an activity must be applied. The Court also directed that the existing Council Practice note, promoting an approach whereby the overlay provisions should over-ride the zone provisions, be withdrawn.
This means that going forward, when someone is undertaking works within the Single House Zone and the overlay, they must apply with both the zone and overlay rules and standards, otherwise a resource consent would be required for any resulting infringements in either area.
Council obviously must abide by any ruling of the Court, but they are also no doubt evaluating their options regarding how this situation is best addressed going forward. In the proceedings Council’s planning witness had expressed concern about it being ‘inefficient’ and ‘anomalous’ to apply two separate sets of rules and assessment matters to the one proposal. We agree with this; the overlay provisions are more specific being for specific purposes and in specific areas. It seems counterproductive for the more general provisions to also apply, and nonsensical for two rules seeking to manage the same issue to apply.
We have assisted clients affected by this very issue and while recognising the position the Court had to take on the matter in terms of statutory interpretation principles, the experience in practice of applying two sets of standards is cumbersome and conflicting.
As of May 2018, Council had not formally provided any further guidance or direction on this matter since the release of the interim decision. It could be speculated that potentially a plan change in the future could be notified to tidy up the matter and provide a more coherent interface between the SHZ and SCAR rules but Council’s actual approach is unknown at this time. In the interim, both sets of plan provisions apply, providing somewhat uncertain times for applicants.
If you have a project in these areas, please give us a call to discuss.
Disclaimer 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.
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