Auckland 2040 planning legal challenge on something the Panel was legally allowed to do
the Decision from Judge Kirkpatrick (text at bottom of post)
I see through Radio New Zealand that the lobby group Auckland 2040 are considering mounting a legal challenge against Council and the Unitary Plan Hearings Panel after Panel Chair Judge Kirkpatrick (of the Environment Court) decided yesterday to reject “late submissions” to the Panel in regards to the Rezoning topic about to get under way.
From Radio NZ:
Intensified Auckland housing faces legal challenge
In announcing revised proposals for the city’s Unitary Plan last month, the council said it wanted to rezone more suburban residential land for housing up to seven storeys high, in some cases, rather than single houses.
Lobby group Auckland 2040 believed the changes were outside of the scope of submissions on the plan, and said homeowners now directly affected should be able to make new submissions.
But an independent hearings panel has decided that late submissions would not be allowed, and it has also refused a request to reject the council’s proposals.
Chair of Auckland 2040 Richard Burton said it was not the outcome they had hoped for and the decision effectively disenfranchised thousands of people.
Auckland 2040 said it would now consider legal action.
So Auckland 2040 are going to tie up Ratepayers resources (both man power and dollars) in a legal challenge against something the Unitary Plan Hearings Panel was allowed to do to meet Section 146 of the Local Government (Auckland Transition Provisional) Act 2010 to meet the July 22 statutory deadline of sending recommendations back to Auckland Council. That allowing being to reject late submissions.
Bob Dey wrote the following outlining the situation that has led up to today.
From the Bob Dey – Property Report:
………Orakei Local Board member & mayoral candidate Mark Thomas wrote to Judge Kirkpatrick asking that home owners caught up in amended zone proposals be allowed to make a late submission,
Auckland 2040 sought interim guidance on the extent to which the panel might use its ability to make recommendations on out-of-scope submissions, while Housing NZ submitted that the scope for amended residential zonings wasn’t as limited as the council’s position indicated.
The judge’s response
Judge Kirkpatrick said in his response he was treating Ms Burlinson & Mr Newman’s positions “as representative of the positions that potentially many landowners & occupiers would be in, rather than being confined to their own properties”.
Given current hearing pressures, he wouldn’t traverse in detail the legal background to the issues of scope to make changes to a notified plan or the exercise of the power to grant waivers for late submissions [but]…. “section 144(5) of the Local Government (Auckland Transitional Provisions) Act 2010… provides that the panel is not limited to making recommendations only within the scope of submissions on the proposed unitary plan”.
In relation to the stage of the hearing – one of the considerations for the panel on accepting late submissions, Judge Kirkpatrick said: “If a general waiver were granted to allow late primary submissions to be lodged in relation to the council’s announcement of its current preliminary position, then the panel would be very unlikely to be able to make its recommendations to the council by the 22 July deadline imposed by section 146 of the Local Government (Auckland Transitional Provisions) Act. Any extension of the hearing process, while potentially assisting those who may now wish to make submissions, would also adversely affect those who have already made submissions by delaying the conclusion of this process and making the plan operative.
“The present process is not the only one available to deal with any rezoning proposals: once the proposed unitary plan is made operative, it may be changed in accordance with schedule 1 to the Resource Management Act (that is Public Plan Changes (led by Council), Private Plan Changes (non Council led) but face a two year stand down once the Plan goes operative, or for submitters to appeal through the Environment Court or High Court depending on the situation – admin).
“Overall, these considerations stand against the grant of waivers for late submissions and also raise the question whether the current process is the most appropriate one in which to consider all aspects of the council’s current position. For those reasons I refuse to grant waivers either generally, as sought by Mr Thomas, or in the particular case of Newman. I also refuse to reject the council’s material as to its position on residential zonings at this preliminary stage.”
On Auckland 2040’s request for guidance on how the panel would deal with out-of-scope submissions, Judge Kirkpatrick said: “Even where a discretion is expressed in unlimited terms, the general law requires a statutory body which makes decisions that could affect people’s rights & interests to act in accordance with the principles of natural justice..
“It is important to bear in mind that the council’s proposals are no more than its current preliminary position. Having notified the proposed unitary plan and then lodged its own submission on it, the council is in no different position to other submitters at this stage in the process. In presenting its case in support of its submission it may advance out-of-scope matters, but in doing so it must satisfy the panel that it would be appropriate for that matter to be the subject of an out-of-scope recommendation. The panel will be exploring this in detail when the council presents its case in relation to these out-of-scope submissions.”
In his consideration Judge Kirkpatrick weighed the concerns of those wishing to make late submissions against that of due process and statutory framework/timelines which Council, submitters like myself and the Panel are bound by.
Simply put and as I have said many times before if you did not make a submission back in 2013 regardless of you supporting or opposing the Unitary Plan as it went to notification then tough. Even if you supported the zone on your property at the time the Plan was noticed in September 2013 then you SHOULD HAVE SUBMITTED in support of the Plan. That way you would be involved in the process including now with rezoning now being heard and considered by the Panel.
As Judge Kirkpatrick stated and as I picked up:
“The present process is not the only one available to deal with any rezoning proposals: once the proposed unitary plan is made operative, it may be changed in accordance with schedule 1 to the Resource Management Act (that is Public Plan Changes (led by Council), Private Plan Changes (non Council led) but face a two-year stand down once the Plan goes operative, or for submitters to appeal through the Environment Court or High Court depending on the situation – admin).
So options are still available once the Plan goes live in August to those in Auckland.
What Auckland 2040 are doing is to hold up the Hearings (and most likely trigger the Panel missing its deadlines) and annoy Council, submitters like myself and Central Government (who have made their position extremely clear the Plan is to be operative by August) as well as potentially waste Ratepayers dollars in defence of such a legal challenge. So much for keeping Rates down in the next Annual Plan…
Full text from Judge Kirkpatrick