Over the last week the Unitary Plan has blown up again as a political issue. As I wrote on Tuesday, some groups – most notably anti-housing supply lobby group Auckland 2040 and some councillors – have criticised the Council over its submission to the impending “rezoning hearings” on the Unitary Plan.
Council’s proposal is hardly radical with 78% of Auckland still limited to no more than two storeys and a further 17% limited to 3 storeys but it has enraged some people who see it as undemocratic.
The problem, opponents say, is that people don’t have an opportunity to submit on the rezoning:
Members of the Auckland 2040 community group accused the council of being “devious” and “hijacking the democratic process”, which several residents and ratepayers groups said would change the character of their suburbs.
Now, it’s certainly true that people who didn’t originally submit on the Unitary Plan won’t be able to make further submissions to the hearings process. However, most of the criticisms made by opponents of rezoning fall short of the mark.
In order to understand why, let’s take a look at the process to date.
What is the hearings process?
Many of the people criticising Council over its rezoning proposal seem to think that its rezoning proposal will automatically result in three-storey high-rise apartments near them. That’s not the case.
To understand why, it’s first important to understand the process that the Unitary Plan has followed/will take:
- First, Council developed a draft Unitary Plan and asked for feedback from Aucklanders.
- On the basis of this feedback, they downzoned a lot of the city and then “notified” the Unitary Plan, opening it up to formal submissions.
- After notification, an Independent Hearings Panel was appointed by Council and Government to review the plan and hear submitters using a slightly streamlined process created by the government. That’s still ongoing and it’s the panels job to weigh up the submissions and evidence.
- The Panel will complete its review in July and send a recommended, final version of the Plan back to Council.
- Council will then have 20 days to take a vote on whether to adopt the Panel’s version or not. The parts they accept will come into effect, if they don’t agree on some areas then those will be subject to the normal environment court process, in other words regulatory uncertainty will continue
If you want to know more about the Independent Hearings Panel, you can go take a look at their website.
What is Auckland Council’s role in the hearings?
When the Unitary Plan is adopted, Auckland Council will be responsible for administering it, and reviewing and changing it from time to time.
But up until that point, Council is in the same position as all other submitters on the plan: It can submit evidence and proposed rules and zoning maps to the hearings panel, and have those weighed up against proposals put forward by other submitters.
As I’ve pointed out before the panel could reject the council’s evidence and zoning changes outright. Alternatively they could decide they don’t go far enough and beef the zoning up further.
That’s an important point that is being lost in the discussion – the Panel, not Council, is responsible for weighing up the evidence and making decisions.
How far can the hearings panel go?
The Panel haven’t issued any final decisions yet – they seem to be holding off until they’ve heard all the evidence. But they have issued some “interim guidance” intended to give submitters an idea of what they expect from the Unitary Plan.
For example, their interim guidance on volcanic viewshafts, which Stu took a look at last year, basically told the Council to go back and do more analysis to show that viewshafts were actually a good idea. Similarly, the Panel’s interim guidance on rezoning indicates that they are expecting to make some changes to enable more housing supply and reduce the burden of restrictive zoning:
The Panel have quite broad latitude to recommend changes to the Unitary Plan. The Local Government (Auckland Transitional Provisions) Act 2010, which set up the Panel, states the following:
Scope of recommendations
(4) The Hearings Panel must make recommendations on any provision included in the proposed plan under clause 4(5) or (6) of Schedule 1 of the RMA (which relates to designations and heritage orders), as applied by section 123.
(5) However, the Hearings Panel—
(a) is not limited to making recommendations only within the scope of the submissions made on the proposed plan; and
(b) may make recommendations on any other matters relating to the proposed plan identified by the Panel or any other person during the Hearing.
In other words, if they decided that it would be best to rezone all of Auckland for midrise apartment blocks, they could recommend that. They probably won’t, but they could.
What is “out of scope” for the hearings?
One of the key piliars of criticism that has emerged has come from the council proposing “out of scope” changes to zoning that weren’t requested by submitters. The council called changes they made where there hadn’t been specific piece of evidence about an exact property “out of scope”. However, it’s not clear that the changes actually are “out of scope” as several submitters have requested broad rezoning to improve housing choice and affordability.
5478-57 Generation Zero Not Supplied RPS Urban growth B2.1 Providing for growth in a quality compact urban form Upzone across the urban area where this supports the Regional Policy Statement aims of intensifying near centres and in areas accessible to high quality public transport.
The non-profit community housing provider CORT has submitted asking for significantly more upzoning to enable more affordable housing (submission point 4381).
Specifically they have asked for:
– a significant reduction to the extent of the single house zone.
– increase the extent of the mixed housing urban zone to 70% of residential areas
– increase the extent of the THAB zone to 10% of residential areas
The new zealand property council has also submitted requesting greater density generally.
Also, in January Housing New Zealand put in a legal submission pointing out that the Government’s submissions did ask for quite a bit of rezoning:
In other words, it’s not clear that anything that Council proposed is actually “out of scope”. In fact, arbitrarily refusing to consider rezoning in some areas would be unfair to submitters like Generation Zero, CORT, and the Government who are requesting broad rezoning. They have a democratic right to be heard.
For the record here is the submission from the Minister for the Environment referenced above. In it she is very critical of the down-zoning that occurred following the draft plan.
Where to from here?
- The Unitary Plan is under review by an Independent Hearings Panel, who will issue their recommendations in July.
- The fact that Auckland Council has put in a submission that suggests rezoning some areas does not mean that it is going to happen – the Panel will decide.
- The Panel has the ability to recommend quite broad changes to the Plan, including changes that were not specifically requested by submitters.
- In any case, some submitters have asked for broad rezoning throughout the city – meaning that Auckland 2040’s claim that the Council’s proposal is “out of scope” is not true.
In this context, it’s best if people – Councillors included – stop panicking about the possibility of rezoning. It’s simply not appropriate to try to hijack an independent hearings process midway through. Doing so would run roughshod over the rights of the people who did submit on time and in good faith that their views would be heard.
Mayor Len Brown has called for an extraordinary meeting next Wednesday for the council to decide on their position. We will obviously be watching this with great interest.