1
Open
;
Confidential
Auckland Council District Plan (Auckland City Isthmus Section) - Report on
proposed private plan change 353, Rezoning of 45A Comins Crescent, Mission
Bay.
To:
The hearing panel
From:
Chloe Trenouth, Senior Consultant Planner, Hill Young Cooper Ltd.
Hearing Date:
Report Author:
Chloe Trenouth, Senior Consultant Planner, Hill Young Cooper Ltd
Report Approval: Bryce Pomfrett , Team Leader Central and Islands Planning
Democracy services file:
Group file:
Keywords:
District Plan Isthmus Section, Private Plan Change, Open Space 3 zone,
Residential 6a zone
Decision-Making Considerations
The hearing commissioners have been delegated full responsibility to determine the Council’s
decisions on submission pursuant to Section 34 of the Resource Management Act 1991
(RMA). Therefore, the commissioners will issue the decisions/determinations directly on
behalf of the Governing Body of the Council.
In terms of Part 6 of the Local Government Act 2002 (LGA), the decisions to be made by the
hearing panel of commissioners are:
1. Not considered to be “significant” in terms of the relevant ‘significant policy’ of the
council to the extent that it influences decisions under or affects the Isthmus section
of the Auckland Council District Plan; and are
2. Governed by specific and defined provisions of the Resource Management Act 1991
(RMA), as set out in the report which follows, which do not allow the Council
(commissioners) scope or opportunity to consider the options or views and
preferences other than –
(a) Those expressed in submissions and further submissions (where applicable) and or
(b) Those of the ‘applicant’ (in case of a private plan change, notice of requirement or
designation alteration) and or
(c) Those expressed a the hearing, provided they do not represent new points of
submissions but rather clarification of the proposed change or of points already
submitted in writing;
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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- and will therefore be consisted with taking a ‘sustainable development’ approach to
decision-making in terms of Sections 3 and 14 of the LGA.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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RELEVANT REGIONAL OR DISTRICT
PLAN/S OF AUCKLAND COUNCIL
Auckland Council District Plan, Isthmus
Section
STATUS OF ABOVE DOCUMENT (FULLY
OPERATIVE, PART OPERATIVE, DATE/S
Fully Operative (1999)
NUMBER AND NAME OF PLAN CHANGE/
VARIATION
Proposed Plan Change 353: Re-zoning of
45A Comins Crescent, Mission Bay
TYPE OF MODIFICATION
Private Plan Change
DATE OF ADOPTION FOR NOTIFICATION
15 November 2012, RDO/2012/225
PARTS (SECTIONS) OF PLAN AFFECTED
BY THE CHANGE
Map C13
DATE OF NOTIFICATION OF PROPOSED
PLAN CHANGE
21 November 2012
LEGAL EFFECT AT ORIGINAL
NOTIFICATION (S86B)
No legal effect
SUBMISSIONS RECEIVED (TOTAL
NUMBERS)
8
DATE SUMMARY OF SUBMISSIONS WAS
NOTIFIED
21 January 2013
NUMBER OF FURTHER SUBMISSIONS
0
MAIN ISSUES OR TOPICS EMERGING
FROM ALL SUBMISSIONS
• The proposed zoning
• Number of Dwellings onsite and building
bulk
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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List of Attachments to This Hearing Report
Attachment content name (details) followed by link to Website, where
available.
*’Y’ (Yes) means the Attachment forms part of the printed version of the
agenda.
Attachment Name of Attachment
No
Part
of
hard
copy
(Y/N)*
N
1
Proposed Private Plan Change Request – as notified
http://www.aucklandcity.govt.nz/council/documents/dist
rict/updates/t353/pm353notifiedversion.pdf
2
Infrastructure Report – as notified
http://www.aucklandcity.govt.nz/council/documents/dist
rict/updates/t353/pm353infrastructurereport.pdf
N
3
Transport Report – as notified
http://www.aucklandcity.govt.nz/council/documents/dist
rict/updates/t353/pm353trafficreport.pdf
N
4
Tree Assessment
Y
5
Memo to Orakei Local Board
Y
6
Summary of Submissions
http://www.aucklandcity.govt.nz/council/documents/dist
rict/updates/t353/pm353summary.pdf
N
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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1.0
Overview ...............................................................................................7
2.0
The site and surrounds .........................................................................7
2.1
Site description ..................................................................................7
2.2
Site surrounds description .................................................................8
3.0
Summary of district plan requirements ..................................................8
3.1
Current district plan provisions ..........................................................8
3.1.1
Open Space 3 zone....................................................................9
4.0
The plan change request ....................................................................10
4.1
Background .....................................................................................10
4.2
Proposed modifications to the plan..................................................10
4.2.1
The Residential 6a zone...........................................................10
4.3
Information to support the plan change request ..............................11
5.0
Background .........................................................................................11
5.1
Pre-lodgement and consultation ......................................................11
5.2
Memo to Orakei Local Board ...........................................................12
5.3
Lodgement.......................................................................................12
5.4
Council department review of the plan change request...................12
5.5
Resolution to notify ..........................................................................12
5.6
Notification details ...........................................................................13
6.0
Submissions........................................................................................13
6.1
Introduction......................................................................................13
6.2
Decisions requested ........................................................................14
6.3
Trade competition............................................................................15
7.0
Statutory Requirements ......................................................................15
7.1
The Resource Management Act 1991 (RMA)..................................15
7.2
First Schedule..................................................................................16
7.2.1
Part 2 matters ...........................................................................17
7.2.2
Sections of the RMA.................................................................18
8.0
Assessment.........................................................................................19
8.1
Assessment of environmental effects ..............................................20
8.1.1
Effects on infrastructure............................................................20
8.1.2
Transportation Effects ..............................................................21
8.1.3
Visual / character effects ..........................................................21
8.1.4
Amenity effects .........................................................................22
8.1.5
Vegetation effects.....................................................................24
8.1.1
Retention of Open Space zone ................................................25
8.1.2
Preservation of building ............................................................26
8.1.3
Noise ........................................................................................27
8.2
Section 32 evaluation ......................................................................28
8.2.1
Introduction...............................................................................28
8.2.2
Statutory overview ....................................................................28
8.2.3
Extent to which objectives are the most appropriate (s32(3)(a))
28
8.2.4
Extent to which policies, rules and other methods are the most
appropriate for achieving the objectives (s32(3)(b))................................29
8.2.5
Benefits and costs of policies, rules or other methods (s32(4)(a))
30
8.2.6
Sufficiency of information [risk of acting or not acting] (s32(4)(b))
31
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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8.2.7
Whether the proposed rules assist the council to carry out its
function of control of actual or potential effects of the use, development or
protection of land (s76) ...........................................................................32
8.2.8
Necessity in achieving the purpose of the Act (s72) .................32
8.3
Auckland Council planning documents ............................................32
8.3.1
Auckland Regional Policy Statement........................................32
8.3.2
Auckland District Plan (Isthmus section) ..................................32
8.3.3
Auckland Plan ..........................................................................32
8.3.4
Auckland Council Long Term Plan 2012 ..................................33
9.0
Conclusions.........................................................................................33
10.0 Recommendations ..............................................................................33
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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1.0
Overview
Plan modification 353 to the Auckland Council District Plan (Operative Auckland City Isthmus Section 1999) is a request for a private plan change by F & O Mishriki to
rezone land located at 45A Comins Crescent, Mission Bay from open space 3 to
residential 6a zone.
The purpose of this report is to consider the plan change request and the decisions
sought in the 8 submissions and no further submissions. In this regard, pursuant to
clause 29 of the First Schedule of the Resource Management Act 1991 (RMA), the
report recommends:
•
the plan change request be approved pursuant to clause 10 of the First
Schedule of the RMA; and
•
which submissions should be accepted or rejected by the Commissioners
and how the plan change should be considered as a result.
F & O Mishriki has prepared a plan change request addressing the statutory
requirements of the RMA. Where appropriate, material contained in the plan change
request that is generally agreed with will be accepted rather than duplicated in this
report. In addition, pursuant to Section 42A(1B)(b) of the RMA, where there is
agreement with the applicant’s analysis and conclusions, that part of the applicant’s
assessment of environmental effects, will be adopted.
2.0
The site and surrounds
2.1
Site description
45A Comins Crescent is a rear site of approximately 1,260m² in size, surrounded by
residential properties. It is legally described as Lot 2 DP 62805 comprised in
certificate of title CT-18C/34. The site is accessed via a driveway from the east side
of Comins Crescent, and the majority of the site is not visible from the road.
The main built feature on the site is the scout hall, a two storey white building built in
1953, which is located close to the site entrance on the western side of the site. The
building footprint is approximately 150-200m². There is a concrete parking pad
located to the north of the building and adjacent to the driveway entrance, with space
for up to six cars. A shipping container is currently stored in the northwest corner of
the site.
The site topography generally slopes down towards Comins Crescent, from the east
to the west. The site features large grassed areas on the eastern and southern sides,
and there are several large established trees as well as a line of small, more recently
planted trees along the eastern boundary fence. Figure 1 below shows an aerial
photograph of the site
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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Figure 1: Aerial photograph showing the site subject to the plan change.
Source: Auckland Council GIS Viewer
2.2
Site surrounds description
The site abuts eight residential sites containing 16 residential units, which are all
zoned residential 6a in the Auckland Council District Plan (Operative Auckland City Isthmus Section 1999) (“the District Plan”). Development on adjoining sites comprises
a mixture of detached and multi-unit dwellings. Adjoining the site to the north is a
large two storey block of units set back approximately a metre away from the
boundary. Other adjacent sites have amenity areas on the boundary with the subject
site, including swimming pools and gardens. Existing boundary screening includes
vegetation and close boarded fencing. Due to the site's east to west fall, the
properties to the east overlook the site, while the two storey units to the north also
have some outlook of the subject site from their upper floors.
The subject site is in Mission Bay, approximately 800m from Mission Bay’s main
commercial land uses at the coast. The surrounding area is an established residential
suburb in the Eastern Bays of Auckland central comprising a mixed residential
character of detached and multi-unit dwellings.
3.0
Summary of district plan requirements
3.1
Current district plan provisions
The subject site is located on Map C13 of the District Plan. The site subject to the
plan change is zoned open space 3 on sheet 1 of the plan. Figure 2 below is an
excerpt of this plan map showing the site location.
Sheets 2 and 3 of the planning maps show additional limitations applying to
properties. There are no additional limitations applying to the site.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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Figure 2: Location map showing zoning, with the site subject to the plan change outlined in red.
Source: Auckland Council District Plan (Operative Auckland City - Isthmus Section 1999) Map
C13
3.1.1
Open Space 3 zone
open space 3 provides for a range of both informal and organised sports and
recreational activities as per the zone strategy in clause 9.6.3.2 of the District Plan:
“The Open Space 3 zone is applied to those sites in the district which are used
primarily for organised sports and recreation. These sites represent a valuable
resource to the City. The scale and physical requirements of land used for organised
sport limits significant further acquisition. Therefore a strategy is adopted which seeks
to ensure that these sites are used to their full potential in a manner beneficial to the
community, and which does not impact adversely on the amenity or quality of the
surrounding environment...”
The objective of the zone (clause 9.6.3) is:
“To provide for organised sports and recreation activities which are compatible with
the physical characteristics of the land and which do not impact adversely on the
amenity and quality of the surrounding environment.”
In general, the permitted activities within this zone are limited to those within the
scope of recreational activities. They include: organised sports and recreation,
picnics, playgrounds, riding and fitness trails, golf courses, glasshouses, limited car
parking and small facilities (changing rooms, public toilets). Controlled activities,
requiring resource consent, include information centres and swimming pools.
Discretionary activities, also requiring a resource consent, include recreational and
community buildings, care centres (e.g. crèche, kindergarten), artificial lighting, kiosks
and restaurants.
The development controls for the open space zone (Rule 9.8) include a maximum site
coverage of 15%, a maximum building height of 10 metres and front, side and rear
yards of 6 metres.
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4.0
The plan change request
As provided for by clause 21 of the First Schedule of the RMA, “any person may
request a change to a district plan or a regional plan (including a regional coastal
plan).” Following a decision to notify, the council is then required to consider the
private plan change in accordance with the relevant provisions of the RMA.
4.1
Background
The building on the site was previously used as a scout hall and for a period as a
kindergarten (consented in 1983). The Scout Association sold the site to a private
owner in 2007 and the site has been largely unused since this time. F & O Mishriki
have an unconditional agreement to purchase the site with a settlement date of 28
February 2013.
The site was previously zoned for residential use in the 1963 and 1970 district
schemes, along with all the other sites in the immediate area. However the Scout
Association requested a zone change for the site when the 1970 district scheme was
reviewed. The reason for the rezoning request was to reflect the site’s use as a scout
hall at that time and decrease the rates payable by the Scout Association. The site
was consequently zoned for recreation in the 1981 district scheme. The site has
never been owned by the council.
The recreation D zoning in the 1981 district scheme was carried over into the open
space 3 zone currently applicable to the site. The applicant states that the open
space zone is inappropriate because the site is no longer used for recreational
activity, and seeks to apply a more suitable zone to the site.
4.2
Proposed modifications to the plan
This plan change request is to re-zone 45A Comins Crescent, Mission Bay from open
space 3 to residential 6a. This requires a change to Sheet 1 of planning map C13 of
the district plan. No other amendments or additions to the district plan are proposed.
The proposed private plan change request is attached in Attachment 1.
4.2.1
The Residential 6a zone
The residential 6a zone is a medium intensity residential zone and it covers the
largest area of residential land within the Auckland Isthmus. The objective of the
residential 6a zone is:
“to provide for medium intensity residential neighbourhoods in appropriate locations”
(clause 7.6.6.1).
The zone strategy in clause 7.6.6.2 explains:
“The Residential 6 zone tends to be less spacious and often more diverse in form
than the Residential 5 zone. These areas have aesthetic conditions which set them
apart from higher intensity areas and are often characterised by favourable aspect,
principally orientated to the northern slopes.
…Areas within the zone are reasonably accessible to local open space and leisure
opportunities, public transport, community facilities and business areas and are
generally located on roads which distribute traffic from the primary network. The
drainage systems in these areas are generally able to cope with residential
development at higher densities than presently reflected in the existing built
environment.
The zone's controls compliment and build upon the characteristics of the areas zoned
for medium intensity. This zone allows for further development while retaining and
sustaining a reasonable level of amenity with more generous density limits permitted
in the residential 6 zone than in the Residential 5 zone…”
In general, the permitted activities within the residential 6a zone are residential
related activities. A limited number of commercial activities including dairies,
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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healthcare services, and visitor accommodation can be provided for through resource
consent.
Development control rules in the residential 6a zone (clause 7.8) provide for:
•
Maximum building coverage of 35%
•
Maximum height of 8 metres
•
Building in relation to boundary control (2m + 35°/45°/55°)
•
40% of site is required to be landscaped.
Density controls applying to the residential 6a zone (Rule 7.7.2.1) provide for one
residential unit per 375m² gross site area as a permitted activity. The 1,260m² site
could, therefore, theoretically accommodate three residential units.
4.3
Information to support the plan change request
The applicant's plan change request includes an assessment of environmental
effects, section 32 assessment, and the following additional documentation as part of
the application:
Table 1: Summary of documentation provided by applicant
Appendix
Document
Author
1
Certificate of Title
N/A
2
Site History Information
N/A
3
Proposed Map Change to
C13
N/A
4
Site Survey Plan
Harrison Grierson
5
Consultation Letter
F & O Mishriki
-
Infrastructure Report
Harrison Grierson
Pursuant to clause 23 of the First Schedule of the RMA, the council requested further
information on transport and stormwater matters prior to public notification of the plan
change. The application report was amended to address these matters. A full copy of
the amended application is attached as Attachment 1.An infrastructure report was
provided as part of the application and is attached as Attachment 2. A transport report
was provided by the applicant, authored by Traffic Design Group. A copy of the
transport report is attached as Attachment 3. In February 2013 an tree assessment
was also provided by the applicant, authored by Peers Brown Miller Ltd. A copy of
this letter is attached as Attachment 4 to this report.
5.0
Background
5.1
Pre-lodgement and consultation
The applicant states that the proposal was discussed with residents of two
neighbouring sites (43 Comins Crescent and 125 Selwyn Avenue) in June 2012. It is
stated in the applicant’s report that the former was generally supportive of the
proposal and the latter had concerns about loss of views. On 8 September 2012 the
applicant circulated a letter explaining the intentions for the site to all 16 immediately
adjacent neighbours to the property at 45A Comins Crescent. A copy of the letter,
and a map identifying the properties it was circulated to, was attached as Appendix 5
to the plan change documentation in Attachment 1.
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5.2
Memo to Orakei Local Board
The applicant has not discussed the proposal directly with the Orakei Local Board. A
memo outlining the plan change request was sent to Orakei Local Board on 28
September 2012 from Bryce Pomfrett, Team Leader Central and Islands Planning,
Regional and Local Planning. The memo is attached as Attachment 5. No formal
resolution has been received from the local board.
5.3
Lodgement
The plan change request was lodged with the council on 17 September 2012.
Following a review of the plan change prior to notification, council staff and
consultants requested further information with respect to transport and stormwater
matters, as mentioned in section 4.3 above. The applicant provided a response on 23
October 2012 including an updated application report.
5.4
Council department review of the plan change request
The infrastructure report lodged with the application was sent to the Stormwater Unit
for review. As mentioned above further clarification was sought regarding stormwater
options. The applicant's response to this was considered satisfactory for the plan
change to be able to proceed to notification.
Watercare Services Limited also considered the application, confirming that they did
not intend on lodging a submission, as the water and wastewater servicing of the site
as a result of the plan change could be accommodated within the existing network.
5.5
Resolution to notify
At the meeting on 15 November 2012, following a consideration of the matters set out
in clause 25 of the First Schedule of the RMA, the Regional Development and
Operations Committee resolved (Resolution RDO/2012/225) that it:
“b) accepts for notification, pursuant to clause 25(2)(b) of the First Schedule to the
Resource Management Act (RMA) 1991, the request by F & O Mishriki for a
private plan change to amend the Auckland Council District Plan (Operative
Auckland City - Isthmus Section 1999) to rezone the property located at 45A
Comins Crescent from Open Space 3 to Residential 6a, and that the request be
publicly notified in accordance with clause 26 of the First Schedule of the RMA
for the following reasons:
i) the proposal does not warrant rejection under the statutory tests 25(4)(a) to
(e) of the RMA in that it is not frivolous or vexatious, the matter has not
been dealt with within the previous two years, is not contrary to sound
resource management practice and will not make the District Plan
inconsistent with Part 5 of the RMA.
ii) the applicant has not requested the Council adopt the plan change request,
and the primary beneficiary is the applicant.
iii) the Council, in its capacity as regulatory authority, is able to consider all the
details of the proposed private plan change request and submissions prior
to making a decision on the merits of the rezoning.
iv) the request relates to rezoning of land therefore the request is not
appropriate to be treated as a resource consent.
c)
authorises the Manager Central and Islands Planning Unit to notify the private
plan change in accordance with clause 26 of the First Schedule of the Resource
Management Act 1991.”
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5.6
Notification details
Table 2: Notification dates
6.0
Publicly notified for submissions
21 November 2012
Submissions closed
18 December 2012
Number of submissions received
8
Publicly
notified
submissions
21 January 2013
for
further
Further submissions closed
4 February 2013
Number of
received
0
further
submissions
Submissions
6.1
Introduction
This section of the report considers the 8 submissions (submissions) that were
received by the council in relation to proposed plan modification 353. No further
submissions were received.
All 8 submissions were made by private landowners in the immediate vicinity of the
site. The primary submissions are included at Attachment 6. A map showing the
location of submitters relative to the subject site is provided below:
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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Figure 3: Aerial photograph showing the location of the 8 submitters.
Council GIS Viewer
Source: Auckland
Clause 10(1) of the First Schedule of the Resource Management Act 1991 was
amended by the 2009 amendment. The council is no longer required to make a
decision that addresses each submission individually.
Submissions 1, 3, 6, 7 and 8 are a pro-forma submission. A copy of this submission
was also received during the period for further submissions without a name or contact
details, or clearly identifying whether it was a further submission. Therefore this
submission has not been accepted.
The issues and decisions sought in submissions are discussed throughout this report
and specifically in section 8.1.
6.2
Decisions requested
All submissions oppose the plan change, and all but one seeks that it be declined.
The relief sought by the submitters, where specified, is based around the number of
dwellings to be established on the site. In summary submitters requested that:
•
residential 5 zone (allowing one residential unit per 500m²) be applied to the
site as a better alternative than residential 6a,
•
only one dwelling should be allowed on the site, which should be single
storey about 5m high and 5m from all boundaries,
•
Three dwellings on the site was not supported.
Details and response to the submissions are outlined under the following categories
in section 8.1 of this report, including a recommendation as to whether they are
accepted, accepted in part, or rejected:
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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Table 3: summary of submissions table
Topic
Submissions
1.
Infrastructure
4
2.
Traffic
1, 3, 6, 7, 8
3.
Density
1, 2, 3, 5, 6, 7, 8
4.
Amenity and outlook
1, 2, 3, 4, 5, 6, 7, 8
5.
Vegetation
4
6.
Retention of open space zone
2, 4
7.
Preservation of building
2, 4
8.
Noise
1, 3, 6, 7, 8
The summary of submissions table is included at the front of the submissions in
Attachment 5.
6.3
Trade competition
Clauses 29(1A) and 1(B) of the First Schedule of the RMA state:
"(1A) Any person may make a submission but, if the person is a trade competitor of
the person who made the request, the person’s right to make a submission is limited
by subclause (1B).
(1B) A trade competitor of the person who made the request may make a submission
only if directly affected by an effect of the plan or change that—
(a) adversely affects the environment; and
(b) does not relate to trade competition or the effects of trade competition."
Part 11A of the RMA sets out procedures relating to trade competitors and
surrogates.1 The hearings panel will need to consider the submissions to determine if
any submitters are ‘trade competitors’ or ‘surrogates’. It is suggested that the hearing
panel make a ‘finding of fact’ on this matter. If the hearing panel finds that a submitter
is limited by clause 29(1B), they are not required to make a decision on that
submission.
Based on the information contained in the submissions and the nature of the plan
change, I do not consider that any of the submissions raise potential issues in respect
to trade competition.
7.0
Statutory Requirements
7.1
The Resource Management Act 1991 (RMA)
There is a range of statutory provisions under the RMA relating to the consideration
of requests for private plan changes, including the First Schedule to the RMA which
sets out the procedure for dealing with private plan change requests. This section of
1
It is noted that s308B(1) – limit on submissions, appears to only makes reference to section 96, applying to
resource consents. Regardless, provisions in the First Schedule direct the hearing panel to who may make
submissions.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
16
the report introduces the relevant provisions and indicates where the assessment
against these provisions is included in this report.
7.2
First Schedule
Part 2 of the First Schedule of the RMA sets out the procedure for private plan
change requests. This includes obligations on the applicant to prepare an
assessment of environmental effects and on the council for carrying out its decisionmaking functions.
Clause 21(1) states, “Any person may request a change to a district plan or a regional
plan”.
Clause 22 sets out the form that such a request must take, as follows:
"(1) A request made under clause 21 shall be made to the appropriate local authority
in writing and shall explain the purpose of, and reasons for, the proposed plan or
change to a policy statement or plan and contain an evaluation under section 32 for
any objectives, policies, rules, or other methods proposed.
(2) Where environmental effects are anticipated, the request shall describe those
effects, taking into account the provisions of Schedule 4, in such detail as
corresponds with the scale and significance of the actual or potential environmental
effects anticipated from the implementation of the change, policy statement, or plan."
The material provided by the applicant in support of the plan change request includes
a section 32 assessment, as well as an assessment of effects on the environment.
Except as provided in sub clauses (1A)–(9), Clause 29 of the First Schedule states
that Part 1 of the First Schedule, with all necessary modifications, shall apply to any
private plan change request that has been accepted for notification under clause
25(2)(b).
Clauses 29(1A) and (1B) relating to trade competition were introduced in the 1
October 2009 amendment. These provisions and their relevance to the present plan
change were discussed in section 6.3 above.
The specific decisions that this hearing panel must consider and recommend to the
council are set out at clause 10 and clause 29(4) of the First Schedule:
“Clause 10 – decision of local authority
(1) A local authority must give a decision on the provisions and matters raised in
submissions, whether or not a hearing is held on the proposed policy statement or
plan concerned.
(2) The decision—
(a) must include the reasons for accepting or rejecting the submissions and, for
that purpose, may address the submissions by grouping them according to—
(i) the provisions of the proposed statement or plan to which they relate; or
(ii) the matters to which they relate; and
(b) may include—
(i) matters relating to any consequential alterations necessary to the
proposed statement or plan arising from the submissions; and
(ii) any other matter relevant to the proposed statement or plan arising from
the submissions.
(3) To avoid doubt, the local authority is not required to give a decision that
addresses each submission individually.
(4) The local authority must—
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
17
(a) give its decision no later than 2 years after notifying the proposed policy
statement or plan under clause 5; and
(b) publicly notify the decision within the same time.
(5) On and from the date the decision is publicly notified, the proposed policy
statement or plan is amended in accordance with the decision.
Clause 29 Procedure under this Part
...
(4) After considering a plan or change, the local authority may decline, approve, or
approve with modifications, the plan or change, and shall give reasons for its
decision.
..."
7.2.1
Part 2 matters
Section 5 states that the purpose of the RMA is ‘to promote the sustainable
management of natural and physical resources’. Section 5(2) states:
"In this Act, sustainable management means managing the use, development, and
protection of natural and physical resources in a way, or at a rate, which enables
people and communities to provide for their social, economic, and cultural wellbeing
and for their health and safety while –
(a) Sustaining the potential of natural and physical resources (excluding
minerals) to meet the reasonably foreseeable needs of future generations;
and
(b) Safeguarding the life-supporting capacity of air, water, soil and ecosystems;
and
(c) Avoiding remedying, or mitigating any adverse effects of activities on the
environment.”
'Environment' is defined in Section 2 of the RMA as including:
(a) “Ecosystems and their constituent parts, including people and communities;
and
(b) All natural and physical resources; and
(c) Amenity values; and
(d) The social, economic, aesthetic, and cultural conditions which affect the
matters stated in paragraphs (a) to (c) of this definition or which are affected
by those matters:"
Section 6 contains a list of matters of national importance that all persons exercising
functions and powers under shall recognise and provide for. I do not consider there
are matters of national importance applying to this plan change request.
Section 7 deals with ‘other matters’ which, in achieving the purpose of the RMA,
persons exercising functions and powers under it shall have particular regard to.
Those matters of particular relevance to this plan change request are:
(b) “ the efficient use and development of natural and physical resources
(c) the maintenance and enhancement of amenity values
(f)
maintenance and enhancement of the quality of the environment
(g) any finite characteristics of natural and physical resources."
Section 8 provides that in achieving the purpose of the RMA, all persons exercising
functions and powers under it, in relation to managing the use, development and
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
18
protection of natural and physical resources, shall take into account the principles of
the Treaty of Waitangi (Te Tiriti O Waitangi). There are no specific matters relating to
Te Tiriti O Waitangi arising from this plan change.
An assessment of the plan change against Part 2 of the RMA is contained in sections
8.2.3 and 8.2.8 of this report.
7.2.2
Sections of the RMA
Section 31 sets out the council’s functions for the purpose of giving effect to the RMA.
The council’s functions include:
(a) “The establishment, implementation, and review of objectives, policies and
methods to achieve integrated management of the effects of the use,
development, or protection of land and associated natural and physical
resources of the district:
(b) The control of any actual or potential effects of the use, development or
protection of land…"
The plan change does not introduce any new objectives or policies. It seeks to
change the existing zoning applying to the land, applying the existing objectives and
policies for residential 6a. Section 32(1)(d) requires that the person who made the
request must carry out an evaluation of the request for a plan change against the
provisions of section 32(3) and 32(4) prior to the notification of that plan change. In
addition, section 32(2)(a) requires that the local authority must undertake its own
evaluation of a private plan change prior to making a decision on that plan change
under clause 10 or 29(4) of the First Schedule.
Section 32(3), (3A) and (4) state as follows:
(3)
“An evaluation must examine –
(3)
the extent to which each objective is the most appropriate way to achieve
the purpose of the Act; and
(4)
whether, having regard to their efficiency and effectiveness, the policies,
rules, or other methods are the most appropriate for achieving the
objectives
(3)
This subsection applies to a rule that imposes a greater prohibition or
restriction on an activity to which a national environmental standard applies
than any prohibition or restriction in the standard. The evaluation of such a
rule must examine whether the prohibition or restriction it imposes is
justified in the circumstances of the region or district.
(4)
For the purposes of the examination referred to in subsections (3) and (3A),
an evaluation must take into account –
(a)
the benefits and costs of policies, rules, or other methods; and
(b)
the risk of acting or not acting if there is uncertain or insufficient information
about the subject matter of the policies, rules, or other methods.”
Section 32 of the RMA is addressed in section 8.2 of this report.
Section 72 states:
“The purpose of the preparation, implementation, and administration of district plans
is to assist territorial authorities to carry out their functions in order to achieve the
purpose of this Act.”
Section 73 of the RMA addresses the preparation and change of district plans.
Section 73(2) states that, “any person may request a territorial authority to change a
district plan, and the plan may be changed in the manner set out in Schedule 1.”
Section 74(1) of the RMA states:
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
19
“A territorial authority shall prepare and change its district plan in accordance with its
functions under section 31, the provisions of Part 2, a direction given under section
25A(2), its duty under section 32, and any regulations.”
Section 74(2) of the RMA states that a territorial authority shall have regard to the
following when preparing or changing a district plan:
(a)
“ any—
i)
proposed regional policy statement; or
ii)
proposed regional plan of its region in regard to any matter of
regional significance or for which the regional council has primary
responsibility under Part 4; and
(a) any—
i)
management plans and strategies prepared under other Acts; and
...."
Section 74(3) states that a territorial authority must not have regard to trade
competition or the effects of trade competition.
As noted, the plan change does not seek to introduce any new objectives and policies
to the district plan. The applicant has had regard to the Auckland Regional Policy
Statement and this has been addressed in section 8.3 of this report. Regard has not
been given to trade competition.
Section 75 of the RMA addresses the content of district plans. Section 75(1) of the
RMA sets out what a district plan must state (objectives, policies and rules (if any)).
Section 75(3) states that a district plan must give effect to the following:
(a)
“any national policy statement; and
(b)
any New Zealand coastal policy statement; and
(c)
any regional policy statement"
Consideration of the plan change against the Auckland Regional Policy Statement is
included in section 8.3 of this report. There are no national policy statements relevant
to this application.
The following provisions of section 76 are also relevant:
(1)
“A territorial authority may, for the purpose of –
(a)
Carrying out its functions under this Act; and
(b)
Achieving the objectives and policies of the plan, Include rules in the district plan.
…
(3)
In making a rule, the territorial authority shall have regard to the actual or
potential effect on the environment of activities, including, in particular, any
adverse effect.”
No new plan provisions are proposed by this plan change. The assessment that
follows has regard to actual or potential effects on the environment of activities.
8.0
Assessment
As set out above, there are particular statutory matters under the RMA that the
council must consider before making a decision on private plan change applications.
These are discussed in this section of the report.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
20
8.1
Assessment of environmental effects
Under clause 22(2) of the First Schedule of the RMA, a request for a private plan
change shall describe the anticipated environmental effects associated with the
implementation of the plan change. Under section 76 of the RMA, a territorial
authority is required to have regard to the actual or potential effects of activities on
the environment when making rules for a district plan.
Pages 14-15 (section 10.3) of the applicant’s statutory assessment provide an
assessment of effects. This relies in part on the specialist report prepared in support
of the application.
The Infrastructure report has been reviewed by a stormwater engineer, and issues
raised are discussed below. The transport report and tree assessment have been
accepted as submitted, as they did not raise any particular issues that warranted a
technical review.
The following assessment commences using the headings set out in the applicant’s
assessment of effects. The applicant's analysis is expanded upon where considered
necessary or as noted earlier in this report, as provided for by section 42A(1B)(b),
summarised where there is no dispute (i.e. that part of the assessment of
environmental effects will be adopted where there is agreement with the applicant’s
analysis and conclusions). Consideration is also given to effects which were raised by
submitters but not specifically addressed in the applicant’s assessment of
environmental effects.
8.1.1
Effects on infrastructure
The applicant's assessment
The Infrastructure report by Harrison Grierson concludes that suitable water supply,
wastewater, telecommunications, electricity and gas reticulation is available to serve
the site. The report acknowledges that some upgrading work may be required in
respect of stormwater, and solutions identified include either increasing the capacity
of the existing stormwater pipe, or laying a new pipe. In addition on-site detention
could be utilised. It is intended that further site investigations and council approval of
confirmed solutions would occur at consent stage.
Concerns raised by submitters
One submitter raised concern that current stormwater drainage issues on the western
boundary of the property at 121 Selwyn Avenue, which cause silt to build up, would
be intensified as a result of the proposed plan change.
Reporting Planner's / expert's assessment
The Infrastructure report was reviewed by Lakshmi Nair, Stormwater Project Engineer
at Auckland Council. In response via email (12 & 15 October 2012) Ms Nair noted
that capacity problems exist in the area and stated the opinion that the upgrading of
the existing pipe or laying a new pipe as suggested by Harrison Grierson ‘is not a
complete solution'. Therefore Ms Nair considered that on-site detention would likely
be required. To this effect the Infrastructure report was amended prior to notification.
I concur with the applicant’s conclusions that any potential adverse effects on
infrastructure resulting from this plan change proposal can be adequately addressed
by the identified solutions. Detailed design of stormwater solutions is more
appropriately dealt with in the subsequent building / resource consent stage, which
will be required when subdivision and/or building occurs. These applications, once
lodged, will be checked by Council engineers who will assess the stormwater
solutions to be used and approve them if they acceptably mitigate any effects from
stormwater generation (including any effects on neighbouring properties such as silt
build up).
I note that any future development permitted under the existing open space 3 zoning
could still require stormwater upgrades.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
21
Response to submitters
It has been assessed that stormwater generated from development of the site can be
adequately managed. Therefore it is recommended that the submissions requesting
maintenance of the existing zoning on the basis of additional stormwater effects be
rejected.
8.1.2
Transportation Effects
The applicant's assessment
The transport report by Traffic Design Group states that traffic generation from the
proposal is within the existing road network capacity and that the site can be
designed to have acceptable access and on-site turning. Subject to achieving the
access and turning design aspects, the report concludes that there is no traffic
engineering or transport planning reason that would preclude the change in zone of
the site.
The transport report assesses that 3 car trips would be generated per peak hour and
27 trips per day from the whole site if three residential units were to be developed (as
permitted under the residential 6a zoning). The assessment also considers the
potential trip generation based on the former use of the site as a scout hall using the
existing 6 parking spaces that are provided on site, along with the types of activities
that are permitted by the open space 3 zone. It concludes that the estimated potential
trip generation of the land uses enabled by the proposed plan change is not of a more
significant scale than the potential trip generation of the existing site under its current
zoning.
Concerns raised by submitters
Submitters raised concerns about increased traffic generation affecting them and the
neighbourhood.
Reporting Planner's assessment
I concur with the Transport Report assessment that the activities permitted by the
open space 3 zoning have the potential to generate at least a similar level of traffic to
the proposed plan change.
Based on the applicant’s assessment, in particular the small peak and daily trip
generation, and also taking into account the potential traffic generation associated
with the current open space 3 zoning, it is my view that the plan change will give rise
to no more than minor adverse effects associated with traffic generation.
Response to submitters
Any effects from traffic generation are considered to be less than minor. Therefore it
is recommended that submissions opposing the rezoning on the basis of additional
traffic effects be rejected.
8.1.3
Visual / character effects
The applicant's assessment
The applicant’s AEE (section 10.3.3) states that the proposed zoning will retain the
elements of the neighbouring sites’ medium intensity residential character through the
application of the zone bulk and location controls and subdivision controls that apply
in residential 6a zone. There would be a reduction in open space on the site due to
the increased building coverage allowed, although the residential 6a zone
development controls would ensure a level of private open space similar to other
dwellings in a residential zone.
Concerns raised by submitters
Submitters expressed concern that the resulting density of dwellings on the site would
not be in keeping with the surrounding dwellings, as the immediate area is not
developed to the permitted density of the residential 6a zone. Many thought the
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
22
intensity of the residential 5 zoning would be more appropriate for the site, and they
previously had had the impression that this intensity level was going to apply to the
site.
Reporting Planner's assessment
In terms of density, lot sizes in the immediate vicinity are large compared to what is
permitted, ranging between approximately 680m² to 1,350m² for the 8 lots adjoining
the subject site. As per council's rating database, four of these large lots contain
multiple rateable residential units. Three sites (45 and 47 Comins Crescent, 121
Selwyn Avenue) contain two rateable units at a density of around 350-450m² per
residential unit. One site (113-117 Selwyn Avenue) contains six rateable residential
units at a density of approximately 225m² per residential unit. The remaining four
sites contain one residential unit. These sites are not developed to the permitted
density; however retain the option to do so under their residential 6a zoning.
Minimum density in the residential 6a zone is 1 unit per 375m² gross site area. This
would enable a maximum number of 3 units to be built on the subject site. Whilst the
applicant has indicated their intention is to build two dwellings, this is not considered
relevant to the assessment of the effects.
Three dwellings would give a density of 1 unit per 420m² gross site area. It is noted
that as a rear site the driveway takes up a portion of the gross site area, if excluding
the driveway the resulting density would be approximately 1 unit per 390m² (net site
area).
Given that half of the immediately surrounding properties have a density of 1 unit per
225-450m², it is my opinion that a density of 1 unit per 375m² on the subject site
would not be out of keeping of the context of the surrounding environment. I also
consider that, since all surrounding properties are zoned residential 6a, it would be
incongruent to apply a zone with a different density.
In response to requests that a more appropriate zone would be residential 5, it is
noted that the objectives of this zone is ‘to protect and maintain the low intensity
character of certain areas’. This is applied in selected lower density locations to
secure their pleasantness and aesthetic coherence, preserve the integrity of special
character areas and reflect the limited capacity of the environment to sustain
additional development. I therefore consider that a residential 5 zoning for this site
would be inconsistent with the objectives of the plan. Furthermore, the permitted
building coverage (35%) is same under both residential 5 and residential 6a,
potentially resulting in the same level of coverage with comparable visual effects.
I acknowledge that a change of use on the site from open space-related activities to
residential development will have some minor effects, including increased building
coverage, changing the character of the site. However, as a privately owned site not
currently used for recreation purposes the current zoning is not considered
appropriate. I concur with the applicant’s assessment that the residential 6a zone will
maintain a suitable level of open space through its requirement for 100m² of private
open space per dwelling and 35% building coverage control. It is my opinion that
while the character of the site itself would change, the character of the surrounding
low to medium intensity residential area would not and therefore any adverse effects
would be no more than minor.
Response to submitters
The density enabled by the proposed plan change is considered to be reasonable
and appropriate within the context of the surrounding area. Therefore it is
recommended that submissions opposing the rezoning on the grounds of density be
rejected.
8.1.4
Amenity effects
The applicant's assessment
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
23
The assessment in the application does not specifically address amenity effects such
as sunlight and privacy.
Concerns raised by submitters
Submitters raised concerns about the potential amenity effects from development,
including; reduced privacy, overshadowing affecting access to sunlight penetration of
outdoor living spaces, and reduced views towards the city. One submitter was also
concerned about how these effects would impact on value of their home.
Reporting Planner's assessment
There are development control rules in the district plan which are in place to manage
the adverse effects that development of a site can have on neighbouring sites. A
comparison of the existing open space 3 development controls for the subject site
with those applying to the proposed residential 6a zone is shown in Table 3.
Table 4: Comparison of development controls in Open Space 3 and Residential 6a zones
Open Space 3
Residential 6a
Height
10m
8m
Height in relation to boundary
2m + 35°/45°/55°
2m + 35°/45°/55°
Yard
6m front, side and
rear
2.5m front; nil side and
rear
Building coverage
15%
35%
The development controls applying to the residential 6a zone include the application
of boundary setbacks and building in relation to boundary controls ("recession
planes"). These controls ensure adequate penetration of sunlight to neighbouring
properties. The application of the recession planes means that any building erected
on this site could not be built to the maximum height (8m, two storeys) within 6m of
the eastern and western boundaries, or within approximately 4.2m from the northern
boundary without resource consent. I consider the recession planes are an
appropriate control to ensure adequate sunlight reaches neighbouring properties. I
note that most of the residential zones, including residential 5, have the same height
limits and building in relation to boundary controls. The existing open space 3 zone
also has the same building in relation to boundary control.
Each residential unit within the residential 6a zone requires a private open space area
of 100m². This is to be screened from other areas of private open space by fencing of
1.8m in height. The subject site is already mostly surrounded by close boarded fence
and also on some boundaries by screening vegetation, which creates privacy for the
open space areas on neighbouring properties. The installation of any remaining
boundary fencing will be required upon development of the site.
Under the residential 6a zone provisions (and all other residential zones in the district
plan) it is possible to build to two storeys; as such any future development has the
potential to create some overlooking onto neighbouring properties from any second
storey windows. This may result in adverse effects on the privacy of neighbouring
sites. However, any potential adverse effects are considered minor as a recreation
building could also create similar effects under the current zoning.
Views enjoyed from private properties are not protected by the district plan unless
they are within a specifically listed significant viewshaft (generally in place to protect
views from public places to significant landforms). Development on the subject site
could change the outlook from some properties. However, this is already the case
under the current open space 3 zoning where a 10m high building could be built on
the site as of right, rather than 8m allowed for by the residential 6a zone. I consider
potential adverse effects from the development to be similar to those permitted under
the current zoning.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
24
It is understandable that some neighbours may have bought their property on the
basis of the site’s open space zoning, and the amenity that that zoning and use
provides to them (e.g. additional outlook etc). However planning is a dynamic process
and changes of use and zone occur constantly throughout the city. The open space
zoning of the site was not there to provide these additional amenities, rather it was a
by-product of the use of the site by community activities. Any loss of amenity as
currently enjoyed will not be of such a scale that this outweighs the benefits of the
rezoning.
Response to submitters
It is considered that the rules for the residential 6a zone for height, height in relation
to boundary, yards and private open space will ensure that adequate sunlight
penetration and privacy are maintained consistent with the development controls that
apply to surrounding sites.
Therefore it is recommended that submissions opposing the plan change on the basis
of amenity and outlook effects be rejected.
8.1.5
Vegetation effects
The applicant's assessment
A tree assessment by Peers Brown Miller Ltd was provided in response to
submissions on vegetation. The assessment identifies that four of the six trees on site
are subject to 'general protection' under the open space 3 zone. In the arborist's
opinion, not one of those four trees has attributes that would warrant being further
evaluated in terms of eligibility for scheduling (specific protection) as they are either of
low stature, poor structure, mediocre health or possess a limited remaining life span.
Concerns raised by submitters
It was submitted that there is a significant tree on the property which may deserve to
be protected.
Reporting Planner's assessment
The application does not indicate whether future development would necessitate the
removal of trees. The trees are located along the boundaries of the site, and therefore
may be outside future building platforms.
District plan manages trees by way of scheduling of specifically identified trees, as
well as general tree protection rules.
There are no scheduled, notable trees located on the property. A recent exercise and
plan change process (plan modification 305) was undertaken by Auckland Council to
identify additional notable trees worthy of protection across the region. 732 trees were
identified within the Auckland Isthmus. The identification process involved open
nominations for notable trees. These nominations were then assessed by council’s
arborists and consultant arborists using a Standard Tree Evaluation Method
(STEM). Those trees which met a certain scoring threshold were included in the plan
change.
The identification and assessment of additional notable trees was not influenced by
the zoning and whether or not the 'general' protection applied to that tree - the section
32 report for plan modification 305 stated that:
"The proposed plan change involves the addition of notable trees to the existing
operative district plan tree schedule that have been identified as having significant
historical, botanical and amenity values. It is important to note that the proposed plan
change does not make a distinction between trees that will continue to be protected
by district plan rules after 1 January 2012 and those that will no longer be protected
by the general tree protection rules. If the tree has been assessed and has scored
above the threshold, it has been recommended for scheduling and forms part of this
plan change."
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
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Therefore while there was an opportunity for any tree on the plan change site to be
nominated as notable, this did not occur. This suggests that there are no significant
trees on the subject site.
I accept the applicant’s arborist assessment that the trees on site do not warrant
investigation into their significance.
Up to January 2012, the district plan contained a 'general protection' rule applying to
all trees over 6m in height across the Isthmus, which required resource consent to
cut, damage, alter, injure, destroy or partially destroy these trees. However, this rule
was partially revoked as a result of 2009 amendments to the RMA (taking effect on 1
January 2012) and a subsequent Environment Court declaration.
The result of the amendment and declaration is that the protection for trees over 6m
applies in the open space 3 zone but does not apply in the residential 6a zone.
Therefore a potential effect of this proposed plan change is that the trees could be
removed without the need for resource consent (as could trees on the surrounding
properties).
All trees have some ecological and amenity values, so there would be some potential
effects in this regard if the trees on site were to be removed, as a result of the
rezoning. However, as discussed above, no tree on the site appears to be significant
in itself. In terms of the value of the trees as part of a group or ecosystem, none of the
trees on the immediately surrounding residential sites are protected from removal
under the district plan and no ecological overlay applies. Therefore the trees on this
site do not form part of a special vegetated character to the area or an important
ecosystem, as recognised by the Plan. It is my opinion that within this context the
effects of removing the vegetation present would be minor, should that arise from the
rezoning.
Response to submitters
It is considered that there are no significant trees on the site that warrant protection.
Therefore it recommended that the submission opposing the rezoning on the grounds
of tree protection be rejected.
8.1.6
Retention of Open Space zone
The applicant's assessment
The application in section 13.3.1 assesses the option of retaining the status quo of
the site being zoned open space 3. It states that the retention of the zoning would not
fairly and reasonably provide for the use of the land in a manner appropriate to its
surroundings and development potential, and that the existing zoning is redundant
due to the cessation of scouting activities on the site. The applicant has not recorded
any consultation with open space team at the Council regarding potential Council
acquisition of the site.
Concerns raised by submitters
There was an expectation by some that the subject site would remain in use as open
space. A number of submitters indicated that they sought advice from the council
prior to purchasing their homes; and they were advised that a change in zone would
not occur or was very unlikely.
Reporting Planner's assessment
Under clause 21 of the first schedule of the RMA anyone has the ability to lodge a
private plan change request. This has happened for the subject site and the
application has to be assessed upon its merits.
The site was originally zoned residential, the same as the surrounding properties, and
has never been owned by the council. Therefore the site was recognised as suitable
for residential use. It was only rezoned as open space in order to decrease rates and
reflect the community use which occurred on the site at one time. The site is no
longer used for community activities.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
26
While it is acknowledged that there is a general shortage of open space in the
Auckland region, this site is privately owned and does not meet the criteria to be
acquired by council as a public open space. The latest approved approach to public
space acquisition is an interim approach published in the Auckland Council's
Regional Development and Operations Committee minutes from 15 September 2011,
where the following questions are used in assessing potential new acquisitions:
•
Is the proposed acquisition in an area of growth?
•
Does the proposed acquisition provide opportunities for new sports fields
and is it located in an area that has an identified shortfall?
•
Is the proposed acquisition necessary to enable the protection of significant
ecological, natural, cultural or heritage features/landscapes?
•
Does the proposed acquisition improve the quality of existing open space
(eg through improving physical and visual access and sightlines)?
•
Does the proposed acquisition help to improve linkages and connectivity
(eg coastal and riparian sites, cycleways and walkways)?
Site specific attributes are also considered in the assessment to ensure that a site is
suitable for its intended use and include:
•
Topography
•
Size
•
Configuration
•
Surrounding land-use compatibility
•
Whether or not the site protects significant natural features, ecosystem
health, cultural or heritage values
•
Meeting identified recreational needs
•
The cost of the site, including the cost of the acquisition process and
subsequent maintenance costs.
The subject site is a rear site with no street frontage, it is relatively small and sloping,
and has no particular special values. I consider the characteristics of this site make it
unsuitable for public open space. Furthermore, at this stage nobody is seeking that
the site be acquired by the council for the purposes of public open space.
Retaining this site in a community or recreational use would require a private owner
or community group to choose to operate a community or recreational facility on the
site. Council has no control over who purchases the site and there is no likelihood
that a recreational activity will use the site in the foreseeable future. Currently the site
is being underutilised and is therefore an inefficient use of land.
In addition there is case law from the Planning Tribunal providing guidance in this
matter. In the case of Dilworth Trust Board and Dunholme Tennis Club Inc v
Auckland City Council (1980) 7 NZTPA 1980 it was decided that it is not appropriate
for the council to retain a restrictive zoning such as open space or special purpose
zoning if it is not required by the owner. Therefore there is a risk to council if the
restrictive zoning is retained contrary to the owners' wishes.
Response to submitters
I consider it to be unreasonable to retain the open space zone on this site where the
landowner does not wish to undertake a recreational activity. Therefore it is
recommended that submissions requesting the retention of the open space zone be
rejected.
8.1.7
Preservation of building
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
27
The applicant's assessment
The application does not mention any significant aspects to the building on the site.
Concerns raised by submitters
One submitter stated that the scout hall building has significance due to its age and
construction. The submitter stated that the building’s current cladding covers original
weatherboards which are probably kauri, and the preservation of the building should
be considered. Another submitter said that the building on site may have been
erected pre 1940 and therefore should be protected.
Reporting Planner's assessment
The building on the site was built in 1953. It is not scheduled as a heritage item in the
district plan or NZ Historic Places Trust database and there is no heritage or
character overlay zone applying to the site or surrounding area. The building in its
current state does not appear to have any particular heritage values. Given the age
and appearance of the building, I do not consider it to warrant further investigation
into its heritage value or protection.
Response to submitters
It is recommended that submissions requesting the preservation of the building be
rejected.
8.1.8
Noise
The applicant's assessment
The application does not identify any noise effects.
Concerns raised by submitters
Submitters mentioned a potential adverse noise effect from the proposal.
Planner's assessment
The future construction of dwellings as enabled by the plan change will create
temporary construction noise effects. The future inhabitants of the dwellings are
expected to generate some noise from time to time.
Both the open space 3 and residential 6a contain noise standards; these are listed in
Table 2 below demonstrating that the current noise limits are higher than for the
proposed residential 6a zone (55dBA as opposed to 50dBA during day time). Many of
the activities permitted in the open space 3 zone (e.g. playground) are also more
likely to generate noise than residential activities. I do not consider there to be any
increase in potential noise effects as a result of this proposal.
Table 5: Relevant noise limits
Zone
Open Space 3
Temporary
construction
Noise resulting from construction work shall not exceed a
reasonable level as determined by reference to NZS
6803P:1984. For construction work noise received in
residentially zoned areas, the upper limits prescribed by
Table 1 of the standard shall apply.
Usual limit
Monday
to
Saturday
7.00am - 10.00pm and
Sunday & Public Holidays
9.00am - 6.00pm: L10
55dBA
At all other times: L10
Residential 6a
Monday to Saturday 7.00am 10.00pm and Sunday & Public
Holidays 9.00am - 6.00pm: L10
50dBA
At all other times: L10 40dBA
Lmax 75 dBA, or background
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40dBA Lmax 75 dBA, or
background (L95) plus 30
dBA, whichever is the
lower
(L95) plus 30 dBA, whichever is
the lower
Response to submitters
It is recommended that submissions opposing the rezoning on the grounds of noise
be rejected.
8.2
Section 32 evaluation
8.2.1
Introduction
Section 32(1)(d) of the RMA requires the person who requested the plan change to
carry out an evaluation before a proposed plan change is notified. A section 32
evaluation of alternatives, benefits and costs was submitted as part of the request
(Section 13, pages 18 – 26).
In addition, under section 32(2)(a) a further evaluation must be made by a local
authority before making a decision under clause 10 or clause 29(4) of the First
Schedule. This is carried out below.
8.2.2
Statutory overview
Section 32(3) of the Resource Management Act requires that an evaluation examine:
(a)
“the extent to which each objective is the most appropriate way to achieve
the purpose of this Act; and
(b)
whether, having regard to their efficiency and effectiveness, the policies,
rules, or other methods are the most appropriate for achieving the
objectives”
Section 32(4) requires that an evaluation take into account:
(a)
“the benefits and costs of policies, rules, or other methods; and
(b)
the risk of acting or not acting if there is uncertain or insufficient
information about the subject matter of the policies, rules, or other
methods.”
8.2.3
Extent to which objectives are the most appropriate
(s32(3)(a))
Although this plan change does not introduce new objectives to the district plan, it is
appropriate to consider whether the existing objectives of the residential 6a zone are
the most appropriate for the purpose of the plan change, and whether they are in turn
consistent with the purpose of the Act.
In my opinion the district plan objectives most relevant to this plan change are those
relating to the Isthmus Area as a whole, the open space 3 zone, the residential zones
as a whole and the residential 6a zone. The objectives for the open space 3 zone and
residential 6a zone have already been set out in sections 3.1.1 and 4.2.1 above but
they are repeated here for convenient reference along with those relating to the
district wide objectives.
The most relevant district wide objectives are considered to be those listed in section
2.3.3 under the heading Community:
•
"To protect and enhance residential amenities.
•
To encourage the wide use and provision of education, heath, recreation
and community resources and facilities.
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•
To allow maximum flexibility for individual site development without
adversely impacting on neighbouring activities."
The open space 3 zone provides for organised recreation facilities with the district
plan objective being clause 9.6.3:
"To provide for organised sports and recreation activities which are compatible with
the physical characteristics of the land and which do not impact adversely on the
amenity and quality of the surrounding environment."
Relevant objectives for the Residential zones are clauses 7.3.1 to 7.3.3:
"To provide opportunities for residential growth in Auckland by encouraging suitable
intensification of housing in appropriate locations.
To identify, maintain and enhance the recognised character and amenity of
residential environments.
To provide for a broad and flexible range of residential development while offering
reasonable protection to the amenities of neighbouring properties and the local
environment."
The residential 6a provides for medium intensity residential activity with the district
plan objective being clause 7.6.6.1:
"To provide for medium intensity residential neighbourhoods in appropriate locations."
As discussed elsewhere in this report, the site no longer provides for organised sports
and recreation activities and as a result no longer meets the objective of the open
space 3 zone. Nor is it likely to in the future. It does not meet council's criteria to
acquire as a public open space. It is considered that it is appropriate to rezone the
site for an alternative use.
It is my opinion that the district plan objectives would best be met by rezoning the site
as residential 6a. There are no infrastructural or environmental constraints that limit
this site from being zoned residential 6a, and the district plan promotes intensification
of housing where appropriate. The immediately surrounding sites are zoned
residential 6a, so it is recognised as an appropriate location for a medium intensity
residential neighbourhood. This zone would allow flexibility for site development while
the development controls applying would manage potential adverse impacts on
neighbouring residents and the local environment.
In regard to Part 2 of the RMA, in my opinion a residential 6a zoning represents the
sustainable management of the subject site because it enables the reasonable use of
the urban land for residential purposes while avoiding, remedying or mitigating any
potential adverse effects. It is my view that the provisions of the residential 6a zone
ensure that amenity values of surrounding sites are protected, and that the
application of this zone to the site would allow for the efficient use of land which is
currently underutilised.
8.2.4
Extent to which policies, rules and other methods are the
most appropriate for achieving the objectives (s32(3)(b))
As discussed above, the plan change applies the existing objectives of the residential
6a zone to the site. Existing district plan provisions aim to assist the council in
controlling actual or potential effects of the use, development and protection of land.
The rules enable specific activities as permitted, while requiring others to obtain the
appropriate resource consent. Development controls are also in place to manage
actual and potential effects on the environment and adjoining residential activities.
The plan change represents appropriate use and development of land and the
residential 6a policies, rules and other methods are the most appropriate for
achieving the objectives.
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8.2.5
Benefits and costs of policies, rules or other methods
(s32(4)(a))
Applicant's options
Section 13.4 of the applicant’s statutory analysis includes a consideration of
alternatives to the zoning proposed which includes:
•
Do nothing (retain the status quo)
•
Alternative zonings
•
Wait for the wider district plan review to rezone the land.
I generally agree with the assessment provided by the applicant that the proposed
plan change is the preferable alternative.
Council's options
The options available to the Council at this stage in the private plan change process
are to:
1. Decline the plan change; or
2. Approve the plan change as lodged; or
3. Approve the plan change with modifications. The modifications made must be in
response to matters raised and decisions sought in submissions.
In terms of the options available to the council at this stage in the process, I have set
out below the benefits and costs of these options.
1. Decline the plan change
Benefits
•
Consistent with the relief sought in some of the submissions.
•
Would leave the land zoned open space 3 and an alternative recreation use
could potentially be found.
•
Adjacent sites may retain their current level of amenity and outlook, assuming
the site was not redeveloped to accommodate an alternative recreation
use.
Costs
•
Land is likely to remain under utilised due to lack of private parties wanting to
develop a recreational activity on this site. This would be an inefficient use of
this physical resource and could possibly lead to dereliction in the longer
term.
•
Owners will not be able to provide for their economic and social wellbeing
through provision of housing on the site and will not be able to make
reasonable use of their land.
•
Additional risk and compliance costs to the applicant and the Council.
•
Uncertainty for the landowner and adjoining neighbours as to what might
reasonably be expected for the land.
2. Approve the plan change as lodged
Benefits
•
It enables the redevelopment of the site for residential purposes, which is an
efficient use of the site.
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•
The residential 6a zoning is appropriate within the site's context and would
maintain the low to medium density residential character of the area.
•
It provides more certainty for the landowner and neighbours as to the future
form of development on the site.
•
It is known that there is demand for residential development on this site and
the plan change will provide an opportunity for people to live in this desirable
location, providing for social wellbeing.
Costs
•
Adjoining residents will experience some effects on the level of amenity
currently enjoyed, and a change from the existing character of the site.
•
Adjoining residents will experience short-term uncertainty as to the final form
of the residential development permitted as a result of the plan change.
•
Would be inconsistent with the relief sought by some of the submissions.
•
Will result in the loss of the ability to use the land for some other recreation
purpose should a private party be interested in developing the site for this
purpose.
3. Approve the plan change with modifications
Submitters have suggested either modifying the plan change to zone the site as
residential 5 (two residential units permitted) or imposing restrictions so that three
dwellings cannot be placed on the site (no preferred mechanism for these restrictions
was stated).
Benefits (of limiting number of residential units on the site)
•
It enables the redevelopment of the site for residential purposes, which is a
more efficient use of the site than current (but less than what is likely /
reasonable, given the surrounding conditions / context).
•
Would be consistent with the relief sought by some of the submitters.
•
Intensity of future residential use would be reduced by the lower density
required, including lower traffic generation.
Costs
•
The development capability of this site as compared to similar neighbouring
sites would be unnecessarily restricted, and the ability to achieve the most
efficient use of the land would be more limited than if the site was zoned
residential 6a.
•
It would be inconsistent with the objective for the residential 5 zone, and
zoning one rear residential site differently to all surrounding residential sites
is incongruous in terms of the district plan.
•
Imposing special restrictions on a single residential site would either
complicate the plan change and the district plan structure, or require costly
additional mechanisms (e.g. covenant), both of which are considered to be
unnecessary.
8.2.6
Sufficiency of information [risk of acting or not acting]
(s32(4)(b))
In undertaking a section 32 assessment, the council is required to consider the risk of
acting or not acting if there is uncertain or insufficient information about the subject
matter of the policies, rules or methods. In this case, there are no new policies and
the plan change proposes to utilise an existing district plan zone. It is considered that
there is sufficient information available with respect to the plan change and there are
no outstanding issues.
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8.2.7
Whether the proposed rules assist the council to carry out
its function of control of actual or potential effects of the
use, development or protection of land (s76)
No new rules are proposed. It is considered that under the proposed zone change
council will be able to control potential adverse effects from the site on the wider area.
8.2.8
Necessity in achieving the purpose of the Act (s72)
The applicant has proposed the plan change in order for them to use privately owned
land for residential purposes, where a previously established recreational activity is
not longer operational. The plan change does not seek to modify the objectives or
policies of the district plan, it applies a residential zoning consistent with the
surrounding neighbourhood. Under the current zoning (open space 3) erection of a
dwelling is a non-complying activity requiring resource consent, which does not
provide an appropriate management framework for the future, foreseeable use of the
property. The plan change will therefore enable the landowner to provide for their
social, cultural and economic wellbeing through the efficient use of land, in a way that
will not significantly diminish the amenity of the surrounding area. This is consistent
with the purpose of the Act.
8.3
Auckland Council planning documents
The applicant assesses the plan change proposal against relevant statutory and non
statutory documents in section 8 of the application report.
8.3.1
Auckland Regional Policy Statement
In accordance with Section 75(3)(c) of the Act, the district plan must give effect to any
regional policy statement. As required by Section 74(2)(a) of the Act, the Council
must have regard to any regional plan change when preparing or changing the district
plan.
The applicant states that the site is not significant within the regional context and the
plan change request is consistent with the strategic objectives of the Auckland
Regional Policy Statement. I agree that this proposal does not give rise to any
matters that require specific consideration in terms of the Auckland Regional Policy
Statement.
8.3.2
Auckland District Plan (Isthmus section)
Section 8.2.4 above sets out those district plan objectives and policies most relevant
to this plan change request. The applicant has provided a brief discussion of the
consistency of the plan change with the objectives in Part 2 sections 2.2 and 2.3 of
the district plan.
As noted previously, the plan change does not amend the existing objectives and
policies of the district plan; rather it seeks to apply an existing district plan zone to the
land.
For the reasons detailed previously in this report, it is considered that the plan change
is consistent with the relevant provisions of the district plan.
8.3.3
Auckland Plan
The Auckland Plan, adopted in March 2012, is produced by the Council under the
requirements of sections 79 and 80 of the Local Government (Auckland Council) Act
2009. It provides a 30-year blueprint for the development of Auckland, and will shape
where we live, work, and the transport we use.
Recreation and sport priorities are included in the Auckland Plan such as prioritising
and optimising our recreation and sports facilities and public open space use and the
capability of recreation and sport organisations. Housing priorities include increasing
housing supply to meet demand. The priorities for urban environments as a whole
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include realising quality, compact urban environments and to create enduring
neighbourhoods.
The site is within an area where moderate change is anticipated by the development
strategy (Map D.2) including low-medium rise apartments and low-medium density. I
concur with the applicant that the proposed plan change is consistent with the
Auckland Plan.
8.3.4
Auckland Council Long Term Plan 2012
The Long Term Plan 2012-2012 is a strategic planning and funding document and
aligns with the delivery of the priorities contained in the Auckland Plan. The applicant
states that the proposed zone change is considered to be consistent with the Long
Term Plan as it provides for residential development on a site identified as suitable for
intensification in the Auckland Plan. I agree that this proposal is consistent with the
Long Term Plan.
9.0
Conclusions
This report has considered private plan change request 353 and the decisions sought
in submissions and further submissions. The plan change seeks to rezone 45A
Comins Crescent from open space 3 to residential 6a so that it can be redeveloped
for residential purposes.
Following an assessment against the matters set out in the Resource Management
Act 1991, including the applicant’s assessment of effects and the section 32 analysis,
and the submissions received, this report recommends that the proposed plan
change request be approved.
Overall, it is concluded that the proposed plan change will provide for the sustainable
management of the site and its surrounds, and is a more appropriate zone for the site
than the current zoning.
10.0 Recommendations
1. That, subject to further information that may be presented at the hearing by the
applicant or submitters, the panel accept or reject submissions as outlined in this
report.
2. That, subject to further information that may be presented at the hearing by the
applicant or submitters, the plan change be approved.
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Name and title of signatories
Author
Chloe Trenouth, Consultant Planner.
Reviewer
Anna Turner, Planner, Operative Plans (Central)
team.
Approver
Bryce Pomfrett, Team Leader, Operative Plans
(Central) team.
Hearing report – Plan Modification 353 to Auckland Council District Plan (Isthmus Section)
Signature