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Explainer: Special character resource consents

Published: 30 August 2018

Developing the Unitary Plan was a huge undertaking, bringing together about 14 different plans from across Auckland into one single set of rules.

It's the largest and most complex planning document ever produced in New Zealand decided through a unique independent hearing process. Because it is so complex, it was expected that there would be some issues that need to be clarified.

When the Auckland Unitary Plan was operative in part in November 2016, the final wording of the rules for Special Character Overlay Areas and Single House Zones were, in places, inconsistent and created some uncertainty about which rules should apply.

What happened?

Auckland Council obtained external legal advice to determine the correct interpretation of the rules to apply for consents in these specific areas.

We adopted an approach that was consistent with that advice when we processed resource consents between December 2016 and December 2017.

That approach was that the Special Character Areas Overlay rules took precedence over the underlying zone rules. As a result, only streetscape and special character effects were considered but not wider amenity effects on the environment which include different height, bulk and setback controls.

What other steps did the council take?

To provide certainty for property owners, developers and planning professionals, the council asked the Environment Court to clarify what was the correct interpretation of the rules.

In December 2017, the Environment Court agreed that the relevant Unitary Plan rules were not clear.

However, it did not agree with Auckland Council’s approach. The court ruled that both the Special Character Areas Overlay rules and the underlying zoning controls must apply when considering resource consent applications.

We immediately changed in our resource consents practice December 2017 to applying both sets of rules to resource consent applications, in line with the Court’s ruling. 

Who is affected by this issue?

The council issues approximately 17,000 resource consents every year. In total, this issue potentially affects around 430 resource consents largely for additions or alterations to an existing house.

Out of this 430, there is a smaller number of 137 properties where site works may be underway and the council will work closely with the consent holders to resolve any issues.

What is the council doing about it?

We’re contacting all affected resource consent holders and asking them to apply for an updated resource consent that will address all relevant Unitary Plan rules. We will waive all processing and pre-application fees for new resource consent applications.

For the majority of consent holders, updating their resource consent should be relatively straight-forward.

We are also providing additional resources to work with resource consent holders in resolving the issue. We will offer consent holders advice as to how they can amend their design to reduce any amenity impacts of the proposed development and facilitate mediation between consent holders and neighbouring property owners if needed.

What does this mean for property owners?

Existing resource consents remain valid, but because Auckland Council did not consider the underlying Single House Zone rules when determining some resource consent applications, the consents are vulnerable to legal challenge.

This could occur if an application to the High Court is made by an interested party (for example, a neighbour), for a judicial review of an existing resource consent.

Until resource consents are updated, the council is legally required to place a note on the Land Information Memorandum (LIM) report for affected properties. This notice will remain on the LIM until a new resource consent, that has considered all the relevant Auckland Unitary Plan rules, has been obtained.

How will I know if I am affected?

We will contact everyone who is affected by this issue over the next three weeks.

Will the council be held responsible if a development is affected?

Every resource consent is unique in what it seeks to do on an individual property and the impacts of this issue vary substantially across all affected resource contents. Auckland Council will assess each resource consent on a case-by-case basis.

We acknowledge that both the applicant and any affected neighbours are in a difficult situation. We will help affected parties manage this issue as best as we can, including free consent applications, facilitating mediation or providing planning guidance.

Will other consents be affected in the future?

No, because Auckland Council immediately changed its resource consents practice in December 2017 once the Environment Court issued its decision.

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