081 Housing New Zealand - Legal Submissions

7/26/2019 081 Housing New Zealand - Legal Submissions

1/34

CEK-004386-240-419-V3

BEFORE THE AUCKLAND UNITARY PLANINDEPENDENT HEARINGS PANEL AT AUCKLAND

IN THE MATTER of the Resource ManagementAct 1991 ("the Act")

A N D

IN THE MATTER of a submission lodged on theProposed Auckland Unitary Plan

LEGAL SUBMISSIONS ON BEHALF OF

HOUSING NEW ZEALAND CORPORATION

Hearing 081Rezoning and Precincts (Geographical Areas)

ELLIS GOULDSOLICITORSAUCKLAND

REF: Dr C E Kirman / A K Devine

Level 17 Vero Centre48 Shortland Street, Auckland

Tel: (09) 307 2172 Fax: (09) 358 5215

PO Box 1509DX: CP22003AUCKLAND


2/34

1

CEK-004386-240-419-V3

Introduction

1. These legal submissions to be presented are in support of the submissions

and further submissions of Housing New Zealand Corporation (the

Corporation) in respect of provisions to the Proposed Auckland Unitary Plan

(Unitary Plan) covered by Hearing Topic 081 Rezoning and Precincts

Geographical Areas.

2. The Corporation has lodged planning, urban design and economic evidence

on this Topic. Given this Topic draws on and is informed by planning

provisions that are the subject of earlier hearings, the Corporation also relies

on the evidence and legal arguments it has presented in earlier hearings, in

particular in relation to the Regional Policy Statement (RPS) (Topics 005,

006, 007, 009, 010, 012, 013) and Topic 020 Viewshafts, Topic 022 Natural

hazards and flooding, Topic 023 SEA and vegetation management, Topics

029/030 Special Character and Pre-1944, Topic 031 Historic Heritage, Topic

032 Historic Heritage Schedules, Topic 035 Air Quality, Topic 042

Infrastructure, Topics 043 and 044 Transport, Topic 045 Airport, Topic 050

City Centre, Topics 051-054 Centres Zones, Business park and industries

zones, Business activities and Business Controls, Topics 059, 060, 062 and

063 Residential provisions, Topic 061 Retirement and Affordability, Topic 064

Subdivision and Topic 080Rezoning and Precincts (General).

Background Information - Housing New Zealand Corporation

3. The Corporations detailed evidence regarding social housing in the Auckland

region, the public health benefits of such housing and the role the Corporation

has in the provision of social housing on behalf of the Government was given

in Hearing 013Urban Growth. A summary of the Corporationsbackgroundwas provided in Hearing 005 RPS Issues, and for the reference of other

submitters not involved in that hearing, is attached as Attachment Ato these

legal submissions.

4. In summary, the Corporation manages a portfolio of approximately 30,800

dwellings in the Auckland region, providing housing to over 104,000 people

(approximately 7% of the regions population). The Corporationstenants are

people who face barriers (for a number of reasons) to housing in the wider

rental and housing market.


3/34

- 2 -

CEK-004386-240-419-V3

5. The Corporation has lodged extensive submissions on the zoning provisions

in the Unitary Plan, in particular the principles that it considers should inform

the spatial application of zoning within the Region so that the direction and

vision of the Auckland Plan and the Unitary Plan RPS can best be achieved.

6. As previously noted by the Corporation in its presentation on Topic 061,

Auckland has a unique and critical opportunity through this Unitary Plan

process to identify a policy framework for the future growth of Auckland which

seeks a transformational shift (to use the Auckland Plan language) with

regard to how urban growth and intensification can be accommodated within

the Region. With Aucklands current housing shortage this need for a

transformational shift in the approach to urban growth and intensification has

even greater importance.

7. A point emphasised by the Corporation throughout this process is that the

management of urban growth and intensification needs to be addressed in a

holistic manner by the Unitary Plan, not as a discrete issue, and should inform

all aspects of resource management decision-making within the Unitary Plan.

This is not to say that intensification and the management of urban growth

should trump other resource management issues such as the protection of

volcanic views, heritage matters or the interface with infrastructure, but ratherthat the ability to provide for intensification and urban growth within the

Region is a matter that is considered in an integrated way when determining

how and to what extent these other resource management issues are

managed.

8. As noted in previous hearings, the Corporations observation with regards to

the current structure of the Unitary Plan is that each resource management

issue, for example, the protection of volcanic views, water quality, themanagement of the interface of sensitive activities (such as residential

activities) with industrial and infrastructure activities, has been undertaken

without a holistic consideration of how the planning frameworks proposed to

manage each of these resource management issues will impact on the ability

to manage issues, such as the intensification of the Region and the provision

of more affordable housing for all Aucklanders, including social housing.


4/34

- 3 -

CEK-004386-240-419-V3

9. The Corporations position is best summarised in the joint planning evidence

of Ms Linzey and Mr Lindenberg on Topic 061 as follows:

The overarching basis of the Corporations submission on the PAUP is the need to

enable the increased supply of housing choices, particularly within the existing urban

area, in order to achieve the intensification and quality compact city aspirations of

both the Auckland Plan and the Unitary Plan (para 18)

Indeed, the Corporations position with regard to the PAUP process as a whole, is

that Auckland has a unique opportunity through this plan development process to

identify a policy framework for the future growth of Auckland which seeks a step

change or transformational shift (to use the Auckland Plan language) with regard to

how urban growth and intensification should occur in the future...

This transformational shift requires an innovative response, and a recognition that the

planning framework of the past will not achieve the urban growth and quality compact

city aspirations which both the Auckland Plan and Unitary Plan are seeking.

We support the need for zone provisions of the PAUP (particularly the Residential,

Centre and Mixed Use zone rules and development controls) to be bold in their

intentions to enable a form of urban intensification within the Isthmus area in order to

achieve the urban intensification outcomes which the Councils Auckland Plan and

PAUP RPS provisions describe.

We suggest that such a bold and innovative approach within the key urban zoned

locations, which will provide for residential activities and development, would need to

include:

Moderate increases to the permitted height limits in appropriate locations

(being in and around centres, and within walking distance of public transport

facilities and other recreational, community, commercial and employment

opportunities and facilities);

Significant reductions in, or removal of, land use density controls

(particularly in the Mixed Housing zones);

A reduction in the currently proposed extensive suite of quantitative

development controls, such that a limited number of quantitative controls are

retained to address the key matters which have the potential to create

adverse effects external to a site, most notably in relation to amenity effects

(such as retention of building height, HiRB/Yard, building coverage,

impermeable surface controls for instance); with the remainder of controls

which relate to potential effects internal to a site being addressed in a more

flexible manner through the use of design-related assessment criteria; and

A simplified yet potentially strengthened, suite of assessment criteria,

particularly in relation to development control infringements (in order to

address concerns of neighbours in relation to amenity impacts, and provide


5/34

- 4 -

CEK-004386-240-419-V3

clear guidance to processing planner to assist in their assessment), as well

as design assessment. (paras 27 to 30.4)

However, as already presented to the Panel by the Corporation in relation to the

constraints imposed by the numerous Overlays which apply within the inner Isthmus

(such as heritage and special character issues), the PAUP continues to retain an

inherent conflict between the role of zone provisions (which are seeking to provide for

desired development patterns and built forms of the future), and the trumping role of

Overlay provisionsa number of which seek to continue to maintain and protect the

development patterns of the past.

This is the driving theme behind the Corporations submissions across many chapters

of the PAUP with regard to the need for a greater balance to be achieved across

these often competing outcomes. Put simply, if we continue to pursue the type of

planning provisions and methods we have typically applied in the past, we will

continue to get the development patterns and built form outcomes on the ground

which we have always got. It is our opinion that such an approach has the potential to

further compound the existing issues of inefficient land use and lost development

opportunity within the inner Isthmus, and the directing of new residential growth and

intensification opportunities to the outer edges of the existing urban area in a search

for achieving the development of housing that is more affordable and as a

consequence, have a continuing negative impact on the rising costs of housing in the

market attractive areas of Auckland where people want to live and affordability is

most lacking (paras 32-33)

10. This transformational shift will require an innovative and strategic planning

response, and a recognition that the planning frameworks of the past will not

allow for the urban growth and quality compact city aspirations that both the

Auckland Plan and RPS envisage.

11. The Corporations view is that the residential provisions as now proposed by

the Council better reflect the future development pattern and form which both

the Auckland Plan and RPS provisions seek to enable, but the spatial

application of these zoning provisions is key to ensuring that aspirations for a

quality compact city can be achieved. Put simply, an approach that provides

for intensification focused to the assessed demand of the next 5 to 15 years is

not sufficient. It is the Corporations position that it is appropriate to set out

the urban form framework (for a compact urban form) through to 2040 now.

While a model of incremental zoning changes to achieve urban intensification

may be attractive in terms of a journey of small steps, as Mr Heath and Mr

Osborne explain in their evidence on Topic 080, such an approach runs a real

risk of missing the targets of 70% growth within the 2010 metropolitan urban

limits as it fails to adequately recognise the market constraints of existing


6/34


7/34

- 6 -

CEK-004386-240-419-V3

that are most in need. In that regard, it should be recognised that the

Corporation is in a unique position, in that its size and extensive land holdings

within the Region means it (more readily than private developers) can give

effect to the vision for intensification within the Isthmus because of its ability

to amalgamate and develop land holdings. The Corporation (as previously

noted in Topic 013) currently faces significant challenges in that the demand

for social housing has changed markedly from the 2-3 bedroom houses on

large lots that were built in the 1930s and 1940s, to single unit housing and

4-5 bedroom homes. This contrasts with the Corporations current housing

portfolio in the Auckland Region, of which 76% is of 2-3 bedroom typology,

the majority of which are on large lots.

Relief sought

15. By way of Directions of the Panel dated 14 January 2016, the Corporation

has been asked as part of this hearing Topic and hearing Topic 080 to

present legal submissions and evidence in relation to both the scope and

merits of the range of residential zonings sought throughout the Region. In

that regard, the zoning principles informing the Corporation's proposed spatial

application of the residential zone has been presented as part of the

Corporations joint case with the MBIE in Topic 080. These legalsubmissions, therefore, focus on the scope of the Corporationsand the other

central government submitters(MBIE and the Minister) submissions.

16. By way of background, the Local Government (Auckland Transitional

Provisions) Act 2010 (LGATPA)established a modified hearings process for

the promulgation of the Unitary Plan. As such, the submission and hearing

process, and importantly the rights of appeal, differ from plans and plan

changes that are promulgated under the RMA. In that regard, the followingfeatures of this modified process are noted:

(c) The LGATPA establishes a hearings process whereby an Independent

Panel hears submissions on the Unitary Plan and makes a

recommendation, and the Council then makes a decision on that

recommendationsections 128, 129, 144 LGATPA.

(d) The Schedule 1 RMA submission process still applies, modified only

by extending the period of time within which a submission may be

made following notification of the Unitary Plan. Under the RMA

process, submissions close 40 working days following notification (cl


8/34

- 7 -

CEK-004386-240-419-V3

5(3), Schedule 1 RMA), in contrast, under the LGATPA submitters

have 60 working days following notification of the Unitary Plan within

which to make a submission (section 123(7)).

(e) As with submissions, the further submission process follows the RMA

Schedule 1 process, modified only to extend the timeframe within

which a further submission may be made, from 10 working days

following the summary of decisions under the RMA (cl 7(1)(c),

Schedule 1), to 30 working days under the LGATPA (section 123(8)).

(f) A summary of decisions sought is still produced by Council. Again,

the usual Schedule 1 process applies here, the only amendment being

the extended time within which to lodge further submission (section123(8) LGATPA).

(g) The right to be heard at the hearing still exists Every person who

has made a submission and stated that they wish to be heard at the

Hearing may speak at a hearing session, either personally or through

a representative, and call evidence(section 129 LGATPA)

(h) The Panel has an ability to make recommendations outside of scope

section 144(5) LGATPA:

144 Hear ings Panel must make recomm endat ions to Coun ci l on

proposed plan

...

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 bysection 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 tothe proposed plan identified by the Panel or any other

person during the Hearing.
http://www.legislation.govt.nz/act/public/2010/0037/latest/link.aspx?id=DLM241208#DLM241208http://www.legislation.govt.nz/act/public/2010/0037/latest/link.aspx?id=DLM5600661#DLM5600661http://www.legislation.govt.nz/act/public/2010/0037/latest/link.aspx?id=DLM5600661#DLM5600661http://www.legislation.govt.nz/act/public/2010/0037/latest/link.aspx?id=DLM241208#DLM241208


9/34

- 8 -

CEK-004386-240-419-V3

(i) If the Council accepts a recommendation, there are rights of appeal to

the High Court only on matters of law (section 158 LGATPA).

(j) In circumstances where the Council rejects the Panels

recommendation, full rights of appeal to the Environment Court exist

and the matter is heard in the normal way (i.e. de novo hearing)

section 156(1) LGATPA. To appeal under this section, a person must

have been a submitter on the plan and have addressed the provision

or matter(s) that they seek to appeal in their submission.

(k) If a recommendation is made by the Panel which is outside the scope

of submissions and this recommendation is accepted by Council, then

this can be appealed to the Environment Court on merits in the usualway under section 156(3) of the LGATPA. Unlike the other rights of

appeal, there is no requirement that a person pursuing an appeal in

respect of out of scope recommendation be a submitter on the

Unitary Plan, rather, they must be unduly prejudicedby the inclusion

of the provision or exclusion of the matter.

17. The Corporation says that this process, as well as creating an efficient and

tight timeframe in which participation and decision making on the Unitary Plan

is undertaken, provides an inbuilt framework that allows for participation of the

public in the same way as the RMA and in a manner that ensures matters of

natural justice are adequately protected. As such, the Corporation submits

that the discussion of the participatory nature of the process which informs

the determination of the scope of submissions in the General Distributors

Limited v Waipa District Council case, is still relevant to this process, even

where this process has been modified from that process established under

the RMA:

The promulgation of district plans and any changes to them is a participatory

process. Ultimately plans express community consensus about land use

planning and development in any given area. To this end the Act requires

that public notice be given by a local authority before it promulgates or makes

changes to its plan. There is the submission/further submission process to be

worked through. A degree of specificity is required in a submission cl 6 in

the First Schedule and Form 5 in the Regulations. Those who submit are

entitled to attend the hearing when their submission is considered and theyare entitled to a decision which should include the reasons for accepting or

rejecting their submission. There is a right of appeal to the Environment Court


10/34


11/34


12/34

- 11 -

CEK-004386-240-419-V3

Analysis - Scope of Corporations submissions

24. The Corporation considers that its submissions on the Unitary Plan, along

with those made by MBIE and the Minister2are sufficiently broad to support

the amendments to the spatial application of the residential zones as detailed

in the evidence of the Corporation, and the attendant mapping. As noted in

the Corporations January and February submissions3, the Corporation

strongly supported the strategic direction of the Auckland Plan, but

considered that the Unitary Plan (as notified) fell well short of implementing

this strategic direction of providing greater residential intensification. As

stated in the Corporations submission:

Overall, Housing New Zealand considers that the provisions of the Proposed

AUP as notified (30 September 2013) do not sufficiently provide for the long

term residential development capacity needed to meet the population growth

expected in Auckland, as set out in the Auckland Plan. While the objectives

and policies of the Regional Policy Statement are, in the main, supported by

Housing New Zealand, it is concerned that they are not adequately reflected

in the District Plan provisions. In particular, the additional consenting

requirements and the complexity of the District and Regional Plan provisions,

particularly the rules, are not the most appropriate policies and methods to

achieve the urban and economic growth goals of the Regional Policy

Statement. This is particularly the case in respect of provisions relating to

use, development and subdivision within the existing 2010 metropolitan

area. (Refer: page 4, 28 February 2014, Housing New Zealand Corporation

submission)

(Emphasis added)

2The Minister for the Environments submission clearly states that: the nature of this submission is

high-level: it does not specify amendments to individual provisions in the Proposed AUP, though such

amendments will be required in order to give effect to the relief sought in the submission.(Refer: para

4, submission of the Minister for the Environment)

3The Corporations submission included the following statement under the Relief sought section: such

further, other or consequential orders, relief or amendments as are considered appropriate and

necessary to address the matters raised in this submission so as to adequately recognise and respond

to the development and operational requirements of Housing New Zealand as the key social housing

provider in New Zealand. (Refer: page 10, 28 February 2014, Housing New Zealand Corporation

submission)


13/34

- 12 -

CEK-004386-240-419-V3

Comment: The Corporations submission clearly states its concern that the

notified Unitary Plan did not sufficiently provide for the long-term residential

growth and the urban growth goals of the Auckland Plan. These concerns

mirror those of MBIE in its submission which states:

MBIEs concern with the Unitary Plan as proposed is that it does not follow

through on its strategic objectives (which are generally supported) with the

appropriately-aligned polices and rules:

By not providing sufficient capacity through appropriate zonings and

density provisions to meet Aucklands forecast growth

By failing to free development from complicated policies and rules that

will create high transaction costs, thereby limiting innovation andresponsiveness of supply to demand.

In doing so, the proposed Unitary Plan does not provide for the growth that

Auckland needs over the next thirty years, and to the extent that it does not,

Aucklands housing market will not perform efficiently and house prices will

become even more unaffordable. (Refer: paras 8 and 9, MBIE submission)

(Emphasis added)

25. A similar submission regarding the need for greater residential development

capacity was made by the Minister in her submission:

The proposed development controls and zoning (including future and urban

land) do not provide the needed long-term residential development capacity

to meet the projected population growth. (Refer: para 17, submission of the

Minister for the Environment)

26. The Corporations submission then continued to state:

In addition to the comments made in respect of the extent of the residential

zones for urban intensification (see items 11 and 12 below), the provisions of

the residential zones are not sufficiently enabling to encourage urban

intensification (particularly urban regeneration) at a scale that is necessary to

provide for 70% of the Citys residential demand as the population grows.

Failing to enable or provide for appropriately located and designed residential

growth within the urban area will mean the Unitary Plan will not be consistent

with, nor aid the implementation of, the strategic directions identified in the

Auckland Plan. This issue is compounded by the imposition of Overlays

which further restrict the zoning.(Refer: page 4, 28 February 2014, Housing

New Zealand Corporation submission)


14/34

- 13 -

CEK-004386-240-419-V3

(emphasis added)

Comment: Again, the Corporations submission clearly puts at issue the need

for reconsideration of the extent of the residential zones and urban

intensification so that there is congruence with the strategic directionsidentified in the Auckland Plan. In that regard, the Corporations submission

aligns closely with the relief sought by other Central Government submitters,

more specifically the MBIE submission which sought that: where necessary

to achieve alignment with the objectives of the Auckland Plan and the

Regional Policy statement sections of the proposed Unitary Plan, the zoning,

overlays and development controls and other rules in the proposed Unitary

Plan are adjusted and amended such that they do not constrain provision of

sufficient residential development to meet Aucklands long term (30 year)

growth projections, and proactively enable efficient growth in areas of high

market demand. (Refer: para 78, MBIE submission) (Emphasis added)

27. The Corporations submission further stated:

That the provisions of the residential zones do not sufficiently encourage

housing choices that are both necessary to support the social and economic

demands of Aucklands community and are identified as appropriate in the

Regional Policy Statement sections of Proposed AUP; (Refer: page 4, 28

February 2014, Housing New Zealand Corporation submission)

(Emphasis added)

Comment: The Corporations concern that the current residential zone

provisions, including their spatial application, did not sufficiently encourage

housing choice within the Region is clearly stated. Again, this is line with the

Ministers submission (made by the Hon. Amy Adams as an whole-of-

Government submission endorsed by Cabinet) which recorded the following

concern with the Unitary Plan residential provisions:

Based on Auckland Council and independent market-based modelling, there

appears to be a large gap between the likely development capacity provided

by the proposed AUP and that required to meet the objectives and projected

population growth over the next 30 years. Some estimates have the gap at

about half of that required. This is concerning irrespective of what growth

and household formation projections are used.

In some market-attractive areas, where the development sector would be

expected to respond to rising land values with more intensive (i.e. efficient)


15/34

- 14 -

CEK-004386-240-419-V3

development, rules are especially constraining, and in some cases represent

a down-zoning from existing plans. Conversely, the areas where zoning

intensity has increased tend to be the areas where the economics of

medium-and high-density development is more questionable due to the

relatively lower levels of consumer demand for those typologies. Thisconstrains choices for households, creates additional uncertainty for

developers who will still likely risk out-of-zone development, and by

extension creates greater uncertainty for infrastructure providers about where

growth is actually likely to occur.

There will always be uncertainty about how the market will respond to

development opportunities. In addition, areas that are not market-attractive

now may be more attractive in 15-30 years as development economics

evolve, and as public and private investment generates amenity and

connectivity. Nevertheless, it is vital that a market perspective informs the

policies and rules in the AUP. I consider it is not enough for the AUP just to

provide the needed capacity at a theoretical level. In order to meet the Plans

own objectives, and the wellbeing and resource-efficiency provisions of the

RMA (urban land, dwellings, and infrastructure are all natural and physical

resources for the purposes of the RMA), the AUP needs to provide

residential capacity in areas where it is demanded, and likely to be taken up.

(Refer: paras 27-29, submission of the Minister for the Environment)

(Emphasis added)

With the following relief being specifically sought:

[T]hat zoning, overlays, development controls and other rules be adjusted to

provide sufficient residential development capacity and land supply

particularly in areas of high market demand to meet Aucklands long-term

(30 year) growth projections, as well as the development objectives of the

AUP itself (as specified in the Auckland Plan and the Regional Policy

Statement (RPS) component of the AUP).(Refer: para 31, submission of the

Minister for the Environment)

(Emphasis added)

28. The Corporations submission also clearly noted concern that:

With respect to residential zoning, that there has been inconsistent

application of the Regional Policy Statement direction for urban intensification

opportunities around Centres, Frequent Transport networks and facilities and

other community infrastructure (e.g. education facilities). In particular,

Housing NZ is concerned that the extent of areas zoned for greater


16/34

- 15 -

CEK-004386-240-419-V3

residential intensification is not sufficient to achieve the desired urban uplift,

nor to support other significant resources (e.g. the public transport network).

For example, Housing NZ has undertaken an assessment of the extent of

Terrance Housing and Apartment Buildings Zone (THAB zone) and

concludes that it only represents 3.5% of land in the Metropolitan UrbanArea. Similarly, the Mixed Housing Urban zone only representing some

6.5%.(Refer: page 6, 28 February 2014, Housing New Zealand Corporation

submission)

(Emphasis added)

Comment: It follows that in seeking that there be a greater extent of land

zoned for residential intensification, low intensity zones such as SHZ would

decrease in size. Again this is in line with the relief sought in the Ministers

submission that:

[T]he Proposed AUPs policies and methods be reconciled with its RPS-level

objectives, improving the AUPs integrity, and that the approach for doing this

focuses on increasing development capacity to provide housing supply and

choice across a wide range of new and existing locations. (Refer: para 49,

submission of the Minister for the Environment)

(Emphasis added)

29. The Corporations submission also sought significant amendments to many of

the proposed overlays notified in the Unitary Plan, with the stated aim of

increasing the ability for residential growth to occur within residential zones

within the Region (including the SHZ), noting:

To this end, Housing NZ is concerned that substantial rezoning is required to

achieve the outcomes of the Auckland Plan and the Regional Policy

Statement. In response, Housing New Zealand seeks the rezoning of a

notable proportion of its land. Table 3 provides a summary of property

specific rezoning submissions. These specific property submission points are

made in addition to the submission matters that Housing NZ has made with

zone, overlay and precinct provisions (Table 1). In this regard, it is important

to note that the specific relief identified in terms of zoning requests in

contingent on the provisions of the District Plan zones, overlays and precincts

(to achieve the outcomes that Housing NZ is seeking). In summary, rezoning

requests are made for the following broad reasons:

There are a number of Housing NZ properties and sites that are within

walking access of Frequent Transport networks and facilities, education and


17/34

- 16 -

CEK-004386-240-419-V3

other social facilities and/or centres such that they warrant a zoning that

would enable further urban intensification from that currently proposed (e.g. a

shift from proposed zonings of Single House and Mixed Housing Suburban to

Mixed Housing Urban, Terrace Housing and Apartments or in a few cases to

Mixed Use);

There are a few Housing NZ properties and sites where the zoning proposed

in the Proposed AUP is inconsistent with the current development pattern on

or surrounding the site and it is considered an alternate zone is more

appropriate to the sites existing or proposed zoning;

There are a number of Housing NZ properties that appear to have been

down-zoned (compared with either existing zoning or surrounding zoning)

on the basis of infrastructure constraints (primarily flood hazard notations). It

is submitted that these areas are better managed through the application of

Overlays to address resource values / issues (such that if these issues can

be addressed, the wider zoning pattern appears appropriate for the site);

...

That there are instances where the precautionary approach has resulted in

significant areas of the City being encompassed within Overlays. Housing NZ

considers that the broad spread of Overlays and the constraints that are

imposed by them are not, on balance, appropriately reflective of the resource

management issues in the Regional Policy Statement. Housing NZ submits in

opposition to the extent and degree of regulation of these Overlays. In

particular, Housing NZ considers that these Overlays will unreasonably

restrict development such that there is a risk that providing sufficient capacity

to deliver a quality compact city with some 70% of growth directed to the

existing metropolitan areas of the City will not be achieved. As illustrations

(with Tables 1 and 4 providing further detail):

Approximately 80% of the areas of the City zoned for Terrace Housing and

Apartments are have some form of Overlay (including designation) over it,

leaving on 362ha without some form of further development control.

For Housing New Zealands stock, these figures are even higher, with 85%

affected by overlay and only 21ha unaffected;

Approximately 65% and 75% respectively of the Mixed Housing Urban and

Mixed Housing Suburban zones have some form of Overlay (including

designation) over it.


18/34


19/34

- 18 -

CEK-004386-240-419-V3

initially undertaken a theoretical suitability test assessment (based on

proximity criteria) and where relevant has sought to supplement this with

qualitative assessment (based on a review of surrounding development and

urban form).

These sites have assessed against the following criteria:

a. For sites where Housing New Zealand seeks that they be rezoned to

Terrace Housing and Apartment Building Zone;

i. They are within 400m of the Metropolitan Centre of Town

Centre (a proximate walking distance of 5min, which is

considered a reasonable distance for people walking to daily

facilities and amenities and an appropriate distance to

complement the higher density urban form of the Centres

themselves);

b. For sites where Housing New Zealand seeks that they be rezoned to

Mixed Housing Urban:

They are within 800m of the Metropolitan Centre or Town Centre (as a 10min

walk time proximate, which is considered a reasonable walking distance for

larger shopping amenities provided by such centres);

i. They are within 400m of a Local Centre or Mixed Use Zone

(a proximate walking distance of 5min, which is considered a

reasonable distance for people walking to daily facilities and

amenities);

ii. They are within 250m of either a Frequent Transport Network

(providing for walkable access to public transport services);

or

iii. They are within 250m of other social infrastructure sites

mapped in the PAUP (e.g. schools and tertiary education

facilities).

c. For sites where Housing New Zealand seeks that they be rezoned to

Mixed Housing Suburban:

i. They are within 800m of a Local Centre or Mixed Use Zone

(a proximate walking distance of 10min, which is considered

a reasonable distance for residents in development of this

scale to be walking to such amenities; or


20/34

- 19 -

CEK-004386-240-419-V3

ii. They are within 400m of Neighborhood Centres as this zone

provides for the daily access to amenities appropriate to

support urban development.

In addition to assessing the proximity to facilities, amenities and services (set

out above), Housing New Zealand has also reviewed the constraints that

appear to have informed the proposed zoning pattern of the PAUP. For the

reasons set out in Housing New Zealands submission in support of the

objectives and policies for urban development (Part 2.3 Objectives 1-4), and

in seeking amendment to other policies of the REGIONAL POLICY

STATEMENT (including but not limited to Policy 5 in Part B.6.7; Policy 3 in

Part B.2.3; Policies 1 and 9 in Part B.4.1), Housing New Zealand does not

support the effective down-zoning of land on the basis of other resource

values.

The approach of the PAUP has been to recognise and provide for resource

values and constraints through application of Overlays. The principle of this

approach is supported by Housing New Zealand as it clearly identities the

values that are being protected / provided for and the management

mechanisms that are being used to achieve that protection / provision.

However, it appears that in addition to the application of Overlays, these

values have been used to inform the underlying zoning. Housing New

Zealand considers that this approach results in confusion in the intent of the

zoning and the overlays. For example, it appears that some areas of the City

have been effectively down-zoned due to the sensitivity of development of

these areas for heritage (potential heritage). However, in addition to this, the

areas also have character or heritage overlays applied. Similarly, areas

appear to have been down-zoned in areas of potential flood hazards.

Notwithstanding other concerns from Housing New Zealand (regarding the

accuracy and legality of this non-statutory information being used for zoning

and rules), the outcome is that these areas are effectively being managed by

two processes (Rules for the flood hazard and zoning pattern).

Housing New Zealand seeks that the management of values and resources

that are identified in Overlays be managed through the application of Overlay

rules, to specifically address the resource values / issues that are relevant to

that Overlay and not the zoning pattern. In instances where this approach

from Council has been applied, Housing New Zealand has sought to amend

the zoning to reflect either the proximity criteria above or (as appropriate) the

pattern of surrounding development that is not affected by the Overlay. It is

noted that while Housing New Zealand has only submitted seeking this relief

to their sites, consequential amendments may be appropriate for wider areas

of areas that have effectively been down-zoned.


21/34

- 20 -

CEK-004386-240-419-V3

In addition to the site context issues above, there are a few Housing New

Zealand properties and sites where the zoning proposed in the Proposed

AUP is inconsistent with the current development pattern on or surrounding

the site (including some inaccurate zones). Following our site assessments,

Housing New Zealand seeks that these sites are re-zoned to provide azoning more consistent with these development patterns.

Finally, following detailed review of Housing New Zealand sites, there are

also a few Housing New Zealand sites where it is considered that an

alternative enabling zoning would facilitate Housing New Zealand to deliver

positive social and community change. Such outcomes would assist in

Housing New Zealand contributing to the social and economic wellbeing of

the community. For example, in cases where the age and condition of

existing stock is having potential adverse effects on communities (e.g.

amenity values), it is considered that an opportunity for redevelopment of

these areas would positively contribute to quality urban form (Issue B.1.1 of

the REGIONAL POLICY STATEMENT).

Housing New Zealand seeks a number of amendments of the provisions of

the Unitary Plan relating to the use and development of its sites in the

Region. The amendments sough can be met by amendments to the zoning

provisions and/or by removal of the sites from various overlay provisions, but

as an alternative can also be dealt with by way of introduction of another

planning mechanism (for example, a Precinct (recognising Housing New

Zealands submission on the weighting given to Precincts relative to

Overlays)). (Refer: Table 3: Housing New Zealand Site Specific Zoning

Submissions 3c. Submissions in Opposition (Amendment Sought), Housing

New Zealand Submission)

(Emphasis added)

Comment: Similar concerns regard the inconsistent zoning of land aroundcentres and transport networks, the down-zoning of areas, and the

widespread use of overlays which prevents intensification included in the

notified Unitary Plan, was also included in the MBIE submission which noted

that:

The broad brush approach of the overlays, the inconsistency in zonings

between market interest and density allocations (e.g. down-zoned areas

around centres and transport corridors), and the misalignment between

density allowances and specific development controls that then constrain

attaining that density.(Refer: para 12, MBIE submission)


22/34

- 21 -

CEK-004386-240-419-V3

32. And later in the MBIE submission similar submission points were made

stating:

As noted in the Government submission, the misalignment between the

regional-level objectives and the district-level provisions are expressedthrough:

Proposed development controls and zoning (including future urban land) that

do not provide the needed long-term development capacity to meet projected

population growth

A deliberate down-zoning apparent between the draft Unitary Plan released

in March 2013, and the proposed version, creating a misalignment between

areas of high demand and the areas where growth is provided for, which may

create additional uncertainty for infrastructure providers, and additional cost

to housing provision as developers challenge through out-of-zone consents,

the development rules and zonings in order to achieve economically viable

development(Refer: para 23, MBIE submission)

There is little justification provided for why many zoning decisions across the

city have been made i.e. why ostensibly market-attractive areas near

transport and employment etc. have been zoned at low densities (or lower

densities than indicated in the draft Auckland Unitary Plan in March 2013).

Inefficient use of market attractive land while protecting the micro-amenity of

neighbourhoods in the short-term will seriously compromise the macro-utility

of the city as a whole, and detract from the overarching vision of Auckland as

the worlds most liveable city attractive, economically efficient and socially

equitable.(Refer: para 28, MBIE submission)

MBIE seeks amendment to the zoning and density rules pertaining across

the region to re-establish and ensure alignment with the strategic objectives

of the Auckland Plan and the Regional Policy Statement sections of theproposed Unitary Plan, with the zoning, overlays and development controls

and other rules adjusted to provide sufficient residential development

capacity and land-supply particularly in areas of high market demand to

meet Aucklands long term (30 year) growth projections. (Refer: para 30,

MBIE submission)

Where necessary to achieve alignment with the objectives of the Auckland

Plan and the Regional Policy Statement sections of the proposed Unitary

Plan, the zoning, overlays and development controls and other rules in theproposed Unitary Plan are adjusted and amended such that they do not

constrain provision of sufficient residential development to meet Aucklands


23/34

- 22 -

CEK-004386-240-419-V3

long term (30 year) growth projections, and proactively enable efficient

growth in areas of high market demand. (Refer: para 78, MBIE submission)

(Emphasis added)

33. Detailed amendments were also sought by the Corporation to the RPS which

sought, that "opportunities for brownfield urban intensification should be

optimised". Further, amendments to the RPS were sought to enable higher

residential densities and efficient use of land in neighbourhoods located in

close proximity to employment opportunities.

34. In relation to the Single House Zone (SHZ), specific amendments were

sought to the regional and district objectives and policies to allow for greater

density within this zone by way of rules permitting the conversion of an

existing dwelling into two dwellings, and the establishment of a small

detached residential unit in addition to the main dwelling.

35. For the Mixed Housing Suburban (MHS) and Mixed Housing Urban (MHU)

zones, amendments were also sought to the regional and district objectives

and policies to require the density and scale of development for those zones

to achieve an appropriate balance between making the most efficient use of

the site, whilst still providing quality amenity for residents and adjoining sites.

36. For the Terrace Housing and Apartment Buildings (THAB) zone,

amendments were sought by the Corporation to the regional and district

objectives and policies to require development to make the most efficient

use of the site as was practicable, taking into account the ability to provide

quality amenity for residents as well as adjoining sites.

37. Reading the Central Government Submissions together (i.e. the whole relief

package detailed in each submission to use Chisholm Js language in the

Shawv Selwyn District Council [2001] 2 NZLR 277 decision), it is submitted

that it is quite clear that the objectives, policies, rules and spatial application

of the zoning of the Unitary Plan as notified were under challenge due to the

Corporation, and other Central Government submitters expressed concerns

that the notified provisions would not provide for the levels of intensification

required to address the Regions housing shortage and to accommodate

future growth. Whilst couched in broad terms, it is submitted that the relief

sought was made with the necessary specificity to make clear to those

reading the submission that greater intensification within zones and changes


24/34

- 23 -

CEK-004386-240-419-V3

in the spatial composition of zones could occur (Refer: Shaw v Selwyn District

Council [2001] 2 NZLR 277 at paras 29-33).

38. As such, it is submitted, that it would not be justifiable for a person to have

assumed that the notified zoning of SHZ, for example, necessarily meant that

their property was exempt from future intensification because of its SHZ

zoning in the notified version of the Unitary Plan. In that regard, it is

submitted that the Panel, in determining the ambit or scope of a submission,

should also consider the effects or consequences of the changes being

sought in submissions, rather than the particular coding of a submission point.

In a resource management context it follows, as a matter of law, that

submissions seeking amendments to high level planning instruments, will if

accepted, lead to amendments to lower order planning instruments. As noted

in Auckland Regional Council v Arrigato Investments Limited and Others

[2001] NZRMA 158:

The Act creates a hierarchy of documents, each being required to reflect the

objectives and policies of the document higher in the chain. There is a

mechanism for resolving conflict: see s 82. Naturally, the most specific

document is that at the bottom of the hierarchy the district plan. But all

documents in the chain should be considered when attempting to assess the

overall objectives and policies and how in a given situation the sustainable

management of natural and physical resources is to be promoted (which is

the purpose of the Act: see s 5(1)).

For instance, one cannot sensibly consider whether s 6(a) was misinterpreted

without considering the documents reliant on it further down the chain. Even

when one gets to the district plan, which has specific objectives, policies,

rule, and provisions relating to Pakiri and to subdivisions at Pakiri, one is still

assisted in the appropriate understanding of that document by considering

the other documents which in part led to it. The statutory documents need to

be assessed as a whole. (Refer: Auckland Regional Council v Arrigato

Investments Limited and Others [2001] NZRMA 158 at paras 12 and 13)

39. In effect, this is simply a reversal of the situation faced by the High Court in

the Shawdecision where Chishom J stated:

Although it is true that no new objectives and policies were actually

formulated in either referrers' submission, there can be little doubt that both

submissions signalled that the relief package was intended to include such

modification to the objectives and policies as might be necessary to support

the proposed rules. In my opinion the workable approach discussed by


25/34


26/34


27/34


28/34


29/34

1

CEK-004386-240-419-V3

Attachment A

The Corporation

1. The Corporation was formed in 2001 as a statutory corporation established

under the Housing Corporation Act 1974 (as amended by the Housing

Corporation Amendment Act 2001). It is also a Crown agency under the

Crown Entities Act 2004.

2. The Corporation's statutory objectives are to give effect to the Government's

social objectives by providing housing and related services. To this end:

The Corporation owns or manages more than 68,000 rental

properties throughout New Zealand, including about 1,500 homes for

community groups that provide housing services. Approximately two-

thirds of the total state housing portfolio was built before 1980, and

half of it before 1960.

The Corporation has 200,000 people occupying Corporation

tenancies, with 6,960 new tenancies started in the 2012/13 year.6

The Corporation manages a portfolio of approximately 30,800

dwellings in the Auckland region, providing housing to over 104,000

occupants.

The Corporation has social housing in locations spread throughout

the Auckland region. With the exception of Great Barrier Island, the

Corporation manages tenancies located within all of the Auckland

Council Local Board boundaries.

6The figures in the first two bullet points are from the 2012-2013 Annual Report.


30/34

- 2 -

CEK-004386-240-419-V3

Social Housing Policy

(c) Social housing is a subset of affordable housing, and meets the

housing needs of people who face barriers to housing in the wider

rental and housing market. In general terms housing supply issues

have made housing less affordable and as such there is an increased

demand for social housing. This is particularly so in the Auckland

region.

(d) The Housing Corporation Act 1974 sets out the Corporations

functions to provide housing and housing-related services to support

the Crowns social objectives. Under the Crown Entities Act 2004,

the Corporation is listed as a Crown agent and is required to giveeffect to Government policies.

(e) The Corporation works within a community of government, charitable

and private sector organisations to provide social housing and

housing support throughout New Zealand. From July 2011 the

Corporations primary goal has been to provide social housing to

those with the highest need. This has meant moving away from a

state house for lifeapproach towards providing housing for people

in need for the duration of that need.

(f) The Corporations tenant base is characterised by lower income

households, with over 90 percent of tenants paying a subsidised

income related rent. More than a third of the Corporations tenants

identify as Maori (compared with 14.67% of the general population)

and over a quarter of tenants identify themselves as Pacific peoples

(compared with 6.9% of the general population).7

7Statistics taken from the Briefing for the Incoming Minister of Housing, 2013.


31/34

- 3 -

CEK-004386-240-419-V3

(g) There has been a marked change in the type of social housing that is

required by the Corporations tenant base:

a. Demand has increased for single bedroom housing required

for single persons, the elderly or disabled, and larger homes

with four to six bedrooms required to house larger families.

b. As a result the size of many state houses in the Auckland

region do not match the changing demand for social housing,

with a large proportion of the Corporations housing stock

comprising older 2-3 bedroom homes on large lots which are

too large for smaller households and too small for larger

households..

c. This has meant that the Corporation has had to review its

housing portfolio and assess how it can respond to the

changes in demand, given its current housing supply is

skewed towards 23 bedroom houses that do not meet the

needs of tenants and/or are uneconomic to maintain.

(h) The Corporation has a long-term Asset Management Strategy which

is focused on providing houses that are the right size, in the right

place and in the right condition. As part of that strategy the

Corporation will look to redevelop existing sites by using them more

efficiently in order to improve the quality and quantity of social

housing that is available.

(i) The Corporation has been involved in a number of redevelopment

projects that have amalgamated sites to allow for more efficient use

of the Corporations stock, or to use single sites more effectively. A

recent example of this type of development was undertaken on sites

owned by the Corporation on Garrison Avenue, Three Kings. In this

instance, a group of four old, single-storey dwellings were replaced


32/34


33/34


34/34

081 Housing New Zealand - Legal Submissions

Documents

Transcript of 081 Housing New Zealand - Legal Submissions