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UPDATE (5 July 2018):
Auckland Council will appeal the recent Enviornment Court decision that deals with subdividing land in rural Auckland. A Council spokesperson says Council’s legal advice is that the Environment Court has made a number of errors in law. “For that reason, and given the importance of protecting the rural economy’s finite resources such as high-quality soils and sensitive rural landscapes, the council has decided to appeal this decision to the High Court.”
The team behind a successful Environment Court challenge to the rules governing rural subdivision say the big winner is the Rodney environment.
The court last month upheld a raft of appeals seeking the reinstatement of rules first drafted by the former Rodney District Council and subsequently endorsed by the Unitary Plan Independent Hearings Panel (IHP).
Council added significant restrictions on the rules in its final decision on the Unitary Plan, which sparked the opposition.
At the centre of proceedings was the right of a landowner to transfer development rights by protecting and/or replanting bush and wetlands on rural land in the countryside living zone.
Council’s provisions significantly reduced the number of subdivision sites that could be created. It argued that stricter rules would prevent the fragmentation and scattered development of productive rural land.
The 10 parties who appealed that position included Cabra Rural Developments, Cato Bolam Consultants, Radiata Properties, Terra Nova Planning and Omaha Park.
Cato Bolam environmental planner Myles Goodwin says it makes sense to go back to a version of the plan that was produced by a panel of 20 experienced government-appointed commissioners, who did a good job.
“The most significant outcome of the decision is that people can restore wetlands, which greatly aids in improving the health of the region’s waterways,” Mr Goodwin says. “There is also the ability to fully cover steep slopes with planted bush and, therefore, stabilise and beautify them, again improving water quality.
“The transferable subdivision rights process, especially if reworked, encourages the transfer of the titles to the countryside living zones, thus keeping development more central.
“We think it is good for the ecology of the region and continues to provide encouragement for people to restore and protect natural areas. That has to be a win for all Aucklanders.”
Better Living Landscapes director Karen Pegrume says Rodney’s biodiversity has some significant challenges with a huge loss in wetlands, fragmented stands of bush and highly erodible soils with challenging steep hill country. She says the former Rodney council recognised these issues as far back as 1987.
“To have turned our backs on the albeit small inroads into the holistic approach to the environment that has been proven to be successful would have been a travesty to the environment,” she says.
“Ecological restoration is challenging and expensive, and almost always on land that probably should not be in ‘production’,” Ms Pegrume says. “The Hoteo River has some of the highest sediment loadings in a river system in the country and the Kaipara Harbour is silting up, with significant adverse impacts on harbour health and biodiversity.
“Many of our threatened fauna rely on threatened habitats, in particular wetlands, so the benefits of restoring wetlands to create stronger networks of ecosystems across the district can’t be disputed.
“Using incentivised subdivision is the most useful tool at the moment to achieve this in an integrated approach, which includes revegetation, protection of bush and wetlands, and restoration of those environments.
“Council has started monitoring covenants and, overall, the outcomes are good with Council at this stage taking a proactive approach to encourage compliance.”
Council planning north/west manager Warren Maclennan says the key points that the Environment Court decision changes to Council’s provisions are:
• Smaller ecological areas are required to be protected for each site (two-hectares of existing bush for the first site compared to five-hectares under Council rules)
• The ecological area is not requiredto be an identified Significant Ecological Area (SEA) in the plan, although it must meet criteria
• It removes the ‘cap’ of three on the number of sites that can be subdivided and located on a ruralsite (Council wanted any additional sites above the three to be transferred to the countryside living zone)
• Changes the language of the plan to be less directive about where receiver areas for title transfers are (Councilwanted countryside living only)
Mr Maclennan says Council’s concerns in the Environment Court case were around the likely increased subdivision from these changes and the effects of this subdivision on rural production, rural character and amenity, the overall growth concept for Auckland, and the degree of ecological benefits. He says Council’s legal and planning team are currently reviewing the decision.
In the court decision, Judge Jeff Smith said that on balance, the court concluded the IHP provisions would provide better protection by requiring active steps in relation to the protection of vegetation, and supporting these by registered covenants where subdivision was in prospect.
“Where it provides an opportunity for transferable rights, it appears that the Council has decided in its policy to utilise the countryside living zone to absorb future growth capacity by allowing significantly greater subdivision. Nevertheless, we recognise that there are potential adverse impacts involved in this if it provides an opportunity for in-situ development.
“For in-situ development, whether as non-complying or restricted discretionary, the exercise of Council’s discretions in regard to the objectives and policies would require controls (through consent conditions) to be imposed to ensure that the values of Schedule 3 areas are not compromised, and the outcomes anticipated by the plan for protection are achieved.”
Courting confusion
Anyone who has struggled to understand Auckland Council planning documents can be reassured that they are in good company. Few would be expected to understand and interpret planning rules and regulations better than a judge in the Environment Court. However, during the recent hearing on rural subdivisions, Judge Jeff Smith made repeated references to the difficulty of dealing with the electronic-only approach Council had taken to the Auckland Unitary Plan. He remarked several times on the confusion of not knowing the status of the plan and its provisions, which parts were subject to appeal, which were deemed ‘approved’, ‘operative’ or ‘treated as operative’. As a result, many witnesses were using different versions of the plan in preparing their evidence.
