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High Court determines approach to “scope” lawful

Media release

Published: 13 February 2017

The High Court has today released a decision ruling that the Auckland Unitary Plan Independent Hearings Panel’s approach to “scope” for residential zoning in key test case areas was lawful.

The decision follows a preliminary hearing held in November 2016 which considered whether the Panel approached the matter of “scope” correctly in relation to certain areas of residential zoning in the Proposed Auckland Unitary Plan.

The court was formally asked to rule on seven agreed questions of law. The issue at the heart of the preliminary questions potentially affected approximately 29,000 properties originally zoned Single House and Mixed Housing Suburban in the notified Proposed Auckland Unitary Plan.

The Court addressed the matter of scope by focusing on residential zoning in a number of test cases in Mt Albert, Glendowie, Blockhouse Bay, Judges Bay, Grey Lynn, Takanini, Howick and Parnell.

The court ruled that the IHP has approached the matter of “scope” correctly, with the exception of two site specific test cases – 117-133 The Strand, Parnell (relocation of viewshaft), and 55 Takanini School Road (notified as Industrial and rezoned Residential).

In his decision, Justice Whata said: “The purpose of resolving the test cases was to provide affected appellants with guidance on the issue of scope. It will be for them to decide whether and to what extent they wish to pursue their appeals in light of my decision.”

Auckland Council’s Director Legal and Risk, Katherine Anderson says: “As the decision has implications for appeals that are still before the courts, the council will not be making any further comment at this stage.”

The full decision can be read here (PDF 998KB).

The Court’s statements on the outcome and the effect of the decision (paragraph 302 of the decision) can be found separately here (PDF 144KB).