Auckland Council will today begin contacting around 430 Aucklanders to alert them to a potential issue with decisions made on their resource consents during 2017.
The resource consents, decided between 1 December 2016 and 19 December 2017, relate to properties zoned ‘Single House’ and where a ‘Special Character Areas Residential Overlay’ also applies under the Auckland Unitary Plan.
After receiving external legal advice, the council granted consents in these specific areas using only the Special Character Overlay rules but did not consider the related underlying zone rules.
This means not all of the relevant rules within the Auckland Unitary Plan were considered. While these consents are still valid, they are at risk of legal action and the council is asking these resource consents holders to update their resource consents to address all relevant planning matters.
17,000 consents granted each year
Ian Smallburn, General Manager Resource Consents, says the council grants around 17,000 resource consents each year and, while about 430 resource consents are potentially impacted in total, it is a smaller number of 137 that are the priority.
“Our analysis shows that for the majority of consent holders, updating their resource consent should be relatively straight-forward.
“However, 137 resource consents have also had a building consent issued and site works may be underway. These consent holders are a priority for the council to resolve any issues.
Legal advice and Environment Court ruling
The issue arose when the Auckland Unitary Plan became 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 uncertainly about which should take precedence.
“To ensure we were making the right decisions, the council obtained external legal advice once the Unitary Plan was in place. Our initial approach was consistent with that advice.
“Even with that advice, the council continued to receive a number of queries about how to apply the rules. To clarify the rules, we then sought a declaration from the Environment Court on the correct interpretation to provide certainty for property owners, developers and planning professionals.
“The Court agreed with the council that the Unitary Plan rules were not clear, but it disagreed with our approach ruling that both sets of rules - the Special Character Areas Overlay rules and the underlying zoning rules - should be considered equally.
“Once the Environment Court made its decision, we took immediate steps to implement the correct practice in December 2017.
“Because Auckland Council did not consider the underlying Single House Zone rules when determining the resource consent they are vulnerable to judicial review from a third party.
Help and support
In light of the Court’s ruling Auckland Council undertook a thorough review of all affected consents to ensure we were taking the correct steps to address this issue. It also completed a detailed review of the Auckland Unitary Plan and a further report to the Environment Court in July 2018.
Within the next three weeks the council will be contacting all affected resource consent holders
“We are strongly recommending that all resource consent holders apply for a new resource consent as soon as possible and contact the council’s planning department.
“The council will be helping resource consent holders to manage this issue as best we can, including all processing and pre-application fees being waivered for a new consent.
“In addition, 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.
“We will be providing additional resources to ensure we can cope with the extra work that will create, and not affect the business as usual process of the consenting team.
“We are committed to working with all affected parties to ensure that the issue can be dealt with as quickly as possible.”
