One Way to both Annoy Government and Consume Ratepayers Money #UnitaryPlan UPDATED

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

Updated 1 minute ago

An Auckland lobby group is considering legal action over a decision allowing Auckland Council to continue to push for more intensive housing.

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:

Unitary plan chair says panel would miss deadline by opening proposed changes to new submissions

The independent panel hearing submissions on Auckland’s unitary plan has turned down requests to reject Auckland Council’s current preliminary position on residential zoning and also to allow late submissions on zoning.The key issue, hearing panel chair Judge David Kirkpatrick made clear in directions issued yesterday, was that accepting new submissions on late council proposals would very likely mean the panel would miss its 22 July deadline for delivering recommendations on the unitary plan to the council.He also said the panel had the general power to consider out-of-scope submissions, but had to adhere to an “appropriate & fair” procedure, but considered specific issues raised in correspondence in December were likely to be covered by other submitters.


………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.”


Full post:


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…

Central Isthmus Auckland Chamberlain Golf Course is towards the top left corner
Central Isthmus Auckland
Chamberlain Golf Course is towards the top left corner

Full text from Judge Kirkpatrick


7 thoughts on “One Way to both Annoy Government and Consume Ratepayers Money #UnitaryPlan UPDATED

  1. Some reform is needed – but it should be good reform. And should be implemented democratically and with a spirit of fairness.
    The Lockean principles were fine for their time but are they relevant if, as you say, the government is going to step in and tell Aucklanders what they have to do?

    Not being a philosopher, I’m reluctant to engage on a philosophical definition of natural justice.

    But as I see it, if I were a citizen who owned a house in an area that Council has submitted to the AUIHP for rezoning and I didn’t want the area to be rezoned then I’d expect to have a say. My area isn’t proposed for rezoning, so I am not personally affected.

    But I believe that the average citizen needs to get a fair go. Particularly when faced with developers with deep pockets and a bevy of planners and lawyers. Our elected council should be looking out for existing citizens as well as future citizens.

  2. Auckland 2040 will sue the Council costing ratepayer money because the Council wasted money sounds like Kafkaesque Nightmare.

    I am not sure why we need consult on these issues since it is basically other people telling others what they can build on their property. It’s a little like asking my neighbour what I am allowed for dinner, well I don’t like butter chicken so no butter chicken for you then Harriet cries.

    Some people say I have a right to light, it’s just as easy for me to say that shelter is a human right and Auckland 2040 members to house homeless people with them lets go back to the Common Law and Law of Equity.

  3. Hi Ben,

    Happy New Year!

    I am glad you are raising the issue of ‘tying up ratepayers resources (with manpower and dollars)’.

    It was about time.

    I raised the issue of squandering public money by the Council – when it adopted a practically unworkable and politically extremely controversial plan – three years ago, but nobody seems to care. So why should we care now?

    This whole process over the past FIVE years – the Akl Plan, the Unitary Plan, the IHP, the debates and fights and the propaganda from all camps involved – must have by now cost us tens of millions of dollars. I actually don’t know how much, because nobody bothers to calculated has much public money has been sunk into this biggest urban planning circus in NZ history. But it must be a big sum after five years. So why is the waste of limited taxpayers money suddenly an issue?

    I think Richard Burton and Auckland 2040 are absolutely right in their intent to sue; the issue of cost has not been raised before, and neither should be raised now.


    PS. But also THIS: the ‘tens of millions’ of dollars squandered so far on the tug of war over an impossible plan, are nothing when compared to the looming bill that this nation will face if and when the ‘intensified city’/‘compact Auckland of 3 million inhabitants’ starts getting hits from the ‘new climate’. I am referring to the ‘abrupt climate change’ – the process that, according to a growing chorus of scientists, has now been triggered. This tab for the new, planned ‘compact’ Auckland will open and start running, I reckon, some time after 2020…. The bill will run into HUNDREDS of millions of dollars, if not billions…. and will most likely may run along a growing list of human casualties…
    Whose responsibility is this risk?
    Isn’t urban planning about future-proofing cities?
    Why isn’t the prospect of such a huge public cost part of this debate?

    From: Talking Southern Auckland <>
    Reply-To: Talking Southern Auckland <>
    Date: Friday, January 15, 2016 at 12:00 PM
    To: Unitec <>
    Subject: [New post] One Way to both Annoy Government and Consume Ratepayers Money #UnitaryPlan

    Ben Ross – Talking Auckland posted: “Auckland 2040 planning legal challenge on something the Panel was legally allowed to do and the Decision from Judge Kirkpatrick I see through Radio New Zealand that the lobby group Auckland 2040 are considering mounting a legal challenge agai”

    1. Happy New Year back to you well Dushko and yes the Unitary Plan is back on the table as we can see.

      Couple of things there:

      Whether AKL 2040 sue the IHP or Council the decision released by Judge Kirkpatrick and as I have embedded on the blog would be the main sticking point before the Courts. That being Point No2 where Council is a submitter just like I am and it is filing changes through its evidence just as I would. The Unitary Plan has not changed since its notification in 2013 and the Panel is free to accept or reject any points made by Council in its submission just as it would with mine.

      Now the costs. Costs are meant to be reported to the Council Committees about every two months include the budget set for the Panel. Nothing stopping anyone doing a LGOIMA to find out the more line by line details.

      As for costs down the track? Send that one to the Government.

      1. The press release by Judge Kirkpatrick is frustrating. It denies natural justice to people affected and stating that the people should have submitted at the start of the process doesn’t address this. It implies that everyone in Auckland should have submitted just in case.

        The only solution to preserve the PAUP deadline is for the AUIHP to frame a solution which allows the Council’s recent rezoning to be deferred for a second phase of hearings in a few years time. These areas can be considered for higher density ready for 2020.

        DB and others rightly point out the serious shortcomings in the unitary plan process foisted on us by the government’s rush to throw aside the royal commission’s carefully researched proposals.

        I understand why the pro intensification advocates are looking to lower the cost of urban housing and to avoid the environmental damage and costs of sprawl.

        On the other hand, justice must be seen to be done. The average person didn’t submit because they were presumably comfortable with the zoning shown for their area. The Council’s proposals were in no way implicit in the draft.

        There is a hint in Kirkpatrick’s press release that he has a solution in mind. Let us hope that the panel can find a way to confirm those aspects of the plan that have been fairly aired.

        A pause for a few years before amending the zoning in tge areas in question would arguably be a good thing. It will give the industry time to show that it can intensify single dwelling zones in those areas indicated in the draft plan.

        It may allow a second tier of rezoning in a few years time to be addressed with improved standards and designs.

      2. Harriet you summed up my reply about Natural Justice and classic liberalism nicely.

        I will add further on in reply to Balance

        Natural Justice as I interpret Judge Kirkpatrick’s decision does not apply given Point Number 2 from that decision (and as I might have pointed out somewhere else). The Council is a submitter just as I am and what Council has forwarded in terms of rezoning is through its Evidence and Rebuttal mechanisms that I also have as well (again as a submitter). Kirkpatrick has made that point and the fact he and the Panel can accept or reject any submitter points in their final recommendation to Council.

        Natural justice would have been breached if the notified version of the Unitary Plan had changed prior to the recommendations being made. It has not.

        Now to the point of remedies. Yes it implies everyone should have submitted as that is the way the RMA and also the Local Government Act (Auckland Transitional Provisions) Act 2010 works. Does that suck and is immoral? Maybe but we are dealing with legal as much as that can prove annoyance.

        Kirkpatrick does point to remedies available once the Plan goes operative in August. They are Public Plan Changes (Council led), Private Plan Changes (after a 2 year stand down) and for submitters appeals in the Environment or High Court.
        But there is a major catch to anyone in Council post election trying to kick through a Public Plan Change. That is Government for reasons Harriet has mentioned in her comment will most likely veto it through an Order in Counsel via the Minister (the Government is also a submitter to the Unitary Plan as well). The Auckland Plan to which guides the Unitary Plan is going through a review this year and next year and if there are major changes to the Auckland Plan it can give rise to an early review of the Unitary Plan (done nominally every 10 years) and kick start a Public Plan Change. Thus I predict 2018 or 2019 will be the earliest any Public Plan Change would kick off – some 2-3 years after the original Unitary Plan went operative.

        Are things optimal? Even I would say no but for me I am trying to make best with the cards I have been dealt with available.

      3. Natural Justice is a Classical Liberalism idea of thought linked heavily to Lockean ideas. The idea of government zoning would be antithetical to John Locke philosophy as the government usurping private property rights. John Locke said you have a right to Life, Liberty & Property not other peoples property so I don’t understand your point about natural justice.

        The fact is last year both the productivity commission as well as the OECD said to the government if AC panders to special interest group who water down reform then the government needs to step in and up zone auckland themselves. So it’s not a discussion these reforms are coming because they have to the situation is that dire

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