BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL IN THE MATTER of the Resource Management Act 1991 and the Local Government (Auckland Transitional Provisions) Act 2010 AND IN THE MATTER of the Proposed Auckland Unitary Plan, Topics 051-054 Centre Zones, Business Park and Industry zones, Business activities and Business controls CLOSING REMARKS ON BEHALF OF AUCKLAND COUNCIL IN RELATION TO TOPICS 051-054 Barristers & Solicitors Bill Loutit / Tim Fischer Telephone: +64-9-358 2222 Facsimile: +64-9-307 0331 Email: [email protected]DX CX10092 Private Bag 92518 Auckland
Transcript
BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL
IN THE MATTER of the Resource
Management Act 1991
and the Local
Government
(Auckland Transitional
Provisions) Act 2010
AND
IN THE MATTER of the Proposed
Auckland Unitary Plan,
Topics 051-054 Centre
Zones, Business Park
and Industry zones,
Business activities and
Business controls
CLOSING REMARKS ON BEHALF OF AUCKLAND COUNCIL IN RELATION TO TOPICS 051-054
Barristers & Solicitors
Bill Loutit / Tim Fischer Telephone: +64-9-358 2222Facsimile: +64-9-307 0331Email: [email protected] CX10092Private Bag 92518Auckland
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MAY IT PLEASE THE PANEL
1. INTRODUCTION
1.1 This memorandum records the matters that Auckland Council (Council) wishes to
raise by way of closing remarks in respect of a number of issues that emerged at the
hearing held on 7-11 September 2015 for Topics 051-054 Centre Zones, Business Park
and Industry zones, Business activities and Business controls (Business Topics).
1.2 Included with these closing remarks as Annexure A is a further consolidated
mark-up of the Business Topic provisions that records the Council's final
position including the further changes outlined in this document. The Council's
proposed changes to the planning maps are also attached.
1.3 Specifically this memorandum addresses the following matters:
2.1 During the Council's opening submissions the Panel asked that the Council
address the issue of whether there is scope to move the Dilworth Terrace
Houses Viewshaft (DTHV) to an alternative location at The Strand.
2.2 This issue was addressed in the Council's closing remarks for Topic 050 City
Centre. In the hearing for that topic Mr Littlejohn on behalf of the Dilworth
Terraces Body Corporate raised scope issues about Ngati Whatua's
submissions and evidence seeking that the DTHV be moved to The Strand.
This matter was responded to in the legal submissions on behalf of Ngati
Whatua.
2.3 The Council agrees with counsel for Ngati Whatua that the option of the DTHV
being moved to The Strand is fairly and reasonably raised in the Ngati Whatua
submissions because the submissions specifically refer to views from The
Strand being potentially explored. However the Council does not support
relocating the DTHV to The Strand for the reasons set in in the evidence of Ms
Ampanthong and Ms Brown in their evidence on Topic 050 City Centre. In
short they consider that the Council's proposed location will better protect
views to the DTHV.
3. INTEGRATION BETWEEN LAND USE PLANNING AND AUCKLAND TRANSPORT DEVELOPMENT PROGRAMME
3.1 During the Council's opening submissions, the Panel asked the Council's
transport planner, Mr Wong-Toi, several questions about integration between
land use planning and the Auckland Transport (AT) development programme.
The issues were raised in the context of discussions about the proposed
Identified Growth Corridors (IGCs).
3.2 AT's funding and work programme has been explained in evidence lodged with
the Panel for other PAUP topics including Topic 012 RPS Significant
Infrastructure, Energy and Transport, Topic 013 RPS Urban Growth and
Topics 059, 060, 062, 063 Residential objectives and policies, activities,
development controls and controls and assessment.
3.3 As outlined in Mr Donald Munro’s evidence for Topic 012, AT’s funding is
largely sourced from the Council via the Long Term Plan (LTP), and the New
Zealand Transport Agency (NZTA) via the National Land Transport Fund. AT
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must prioritise its investment within the budgetary limits placed on it by the
Council and NZTA.
3.4 Through the LTP process, the Council determines a ten year investment
programme; setting out the services, programmes and projects which are to be
funded by the Council and the appropriate allocation of this source of funds to
AT. Accordingly, AT's ability to realise particular projects depends on
prioritisation of funding by the Council (as well as NZTA and the Crown).
3.5 In concert with the Council and their development of the LTP, AT produces the
Regional Land Transport Programme, which is aligned with the LTP and sets
out the investment programme for Auckland’s transport system over the next
ten years, with projects ordered by priority for the first three years of the
planning period.
3.6 The Council then evaluates each transport project in the LTP for whether it
may be appropriate to collect development contributions to fund, or partially
fund, the project in accordance with its development contribution policy. As
required by the Local Government Act 2002, this assessment is based on the
extent to which the benefits of a project can be attributed to growth. Very few if
any transport projects achieve 100% funding from development contributions
and most also require funding from other sources including rates. The Council
allocates projects to one of six transport funding areas within which
development contributions are levied on developments as they occur. These
are an over-arching Auckland wide area or one of five sub-areas (Central,
North, South, West and Hauraki Gulf Islands).
3.7 As previously stated in Mr Munro’s evidence for Topic 013, due to a range of
reasons, the collection of development contributions under the Auckland
Council Contributions Policy 2015 does not solve the significant budget
constraints facing AT. To address this funding shortage alternative funding
sources are required, such as the three-year Interim Transport Levy confirmed
in the most recent Council budget.
3.8 AT, in collaboration with the Council and its partner transport agencies, is
continuously working to co-ordinate growth and the prioritisation / funding of
transport infrastructure, as outlined in the evidence of Mr Munro on Topics 059,
060, 062 and 063. This work includes a continuously iterative process of
transport modelling as well as a range of other methods.
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3.9 For urban areas, like the proposed Identified Growth Corridors, work is
continuously undertaken to assess the impacts of, and prioritise responses to,
changes in land use. This work includes:
(a) The review and update of tactical plans for arterial roads, public
transport, walking, cycling, freight and road safety;
(b) The development of multi-criteria deficiency analysis to identify the
key problems for both the movement and place functions of the
arterial road network, and to support the justification and priorities for
projects over a 10 year planning horizon; and
(c) The development of Corridor Management Plans to identify the
transport projects necessary to reach a desired 30 year end-state on
corridors within the existing urban footprint with known deficiencies
and / or forthcoming land use development.
3.10 One or more of these tools could be employed to identify and plan for network
development within the proposed Identified Growth Corridors. However, as
mentioned above, funding and prioritisation of particular projects is a matter for
AT, its partner transport agencies and the Council. It is a dynamic process
which will allow AT to develop and upgrade the transport network for Identified
Growth Corridors as they evolve. However if there are too many Identified
Growth Corridors the limited funding will be stretched too far.
4. IDENTIFIED GROWTH CORRIDORS (IGCs)
4.1 A number of the key issues raised at the hearing relating to the proposed
IGCs. In particular issues were raised as to the number of IGCs that should be
included in the plan. The Council proposed five. The Key Retailers Group
proposed eleven while PSPIB Ltd and DNZ Ltd proposed two. The Panel also
asked questions of Mr Akehurst as to whether the proposed IGCs recognise
existing uses or provide for new opportunities.
4.2 Retail opportunities within IGCs are in addition to the opportunities provided for
in other Business zones across Auckland. The economic modelling has shown
surpluses in nearly all areas, including under a wide range of tested input
scenarios informed by the retail economic experts.
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4.3 The number of IGCs is of critical importance to achieving the "centres plus"
strategy for management of commercial growth and the "compact city" urban
form. There is a high level of agreement among the interested parties that
achieving these matters relies on a robust centres focused commercial
framework. This framework delivers a wide range of benefits that are at risk if
too much opportunity is provided for retail to locate on industrial land and along
corridors i.e. too much supply would direct any future growth patterns away
from centres.
4.4 The key benefits of such a centres focussed framework are:
(a) Household and business travel efficiency: A centres hierarchy with
co-location of activities enables households (and businesses) to meet
their daily and weekly needs at the least cost by participating in multi-
purpose trips (this is not about intersections and traffic congestion
per se)1. There is also a public benefit due to the regional efficiencies
that are gained.
(b) Agglomeration economies: This is the key reason cities form. It is
based on human nature and arises in all cities. Economic activities
benefit (as a whole) through co-location. Cities are more productive
when activities cluster, more employment is generated and economic
output rises above an even distribution of activity.
(c) Urban Structure: The ability to interpret and make sense of the urban
landscape depends on a centres network. Centres provide a sense
of place and act as the key points for social interaction.
(d) Public Infrastructure: The centres are heavily invested in by the
Council over decades and are the focal point for infrastructure (social,
transport, services). Impacts on centres that cause detrimental
effects on them risk undermining that investment, or requiring its
duplication elsewhere.
(e) Sustainability: Intensification is the natural market response to rising
land prices. These are driven by high demand in areas with high
1 This is a core economic effect for households and businesses. Within the Auckland and New Zealand context the effect is substantial. The New Zealand Household Travel Survey 2009-2012 showed that over 40 per cent of private vehicle trips involved shopping. The shopping component of trips alone amounted to approximately 92 million hours and 2.9 billion vehicle kilometres per year travelled by New Zealand households in total (Ministry of Transport, 2013).
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levels of amenity, economic growth, connectivity and market mass
(such as in Auckland). A compact city form is the outcome of those
demand and supply forces over time. These urban economics are
well understood and arise through the combined economic and social
choices of households and businesses.
4.5 The Council supports the IGC mechanism as providing a "release valve" for
new out-of-centre commercial activities where appropriate. However the
benefits of a centres focussed commercial framework, which are set out
above, will be compromised if the opportunities for retail within IGCs are
excessive.
4.6 In my submission the eleven IGCs proposed on behalf of the Key Retailers
Group provides too much opportunity for out-of-centre commercial growth and
the dispersal of commercial activities which could compromise the function,
role and amenity of centres in the PAUP hierarchy and network of centres.
This dispersal is likely to be accelerated by the opportunity for retail
development from high levels of people activity in corridors; and the significant
availability of land at lower cost than in and around centres because there
may be an economic incentive for out-of-centre commercial growth (for the
individual businesses making that choice in the absence of price signals that
direct them to centre locations). Further, the ability of retail to outbid other
uses and agglomerative forces of retail may accelerate the uptake of capacity
within IGCs, resulting in an inefficiently high share/amount of land used to
meet retail needs at the regional level.
4.7 If an excessive number of IGCs are included in the plan the Council will have
very little effective control over effects on the centres network though the
resource consent process. This is because it is very difficult to demonstrate
“significant” effects for individual areas or developments, yet in aggregate they
may have significant effects on Auckland’s urban form. In short, if the eleven
IGCs are included in the plan, it would be questionable whether a centres-
focussed urban form could be achieved and the benefits of a centres focussed
commercial framework are at risk.
4.8 The five IGCs suggested by the Council have a collective zoned land area of
115 ha, while the eleven IGCs suggested by the Key Retailers Group have a
collective zoned land area of 187 ha. The level of additional opportunity within
the eleven IGCs proposed by the Key Retailers Group is likely to significantly
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exceed any retail growth requirements over the 10 year life of the PAUP
(especially when considering the existing urban base which has developed
over many decades). This is demonstrated by the following analysis:
(a) The five IGCs proposed by the Council are equivalent to 34% of the
land zoned Metropolitan Centre under the PAUP, while the eleven
IGCs proposed by the Key Retailers Group are equivalent to 55% of
the land zoned Metropolitan Centre.
(b) The estimated existing retail and household services floorspace is
213,000 m2 for the Council's five IGCs and 295,000 m2 for the Key
Retailers Group's eleven IGCs.
(c) Assuming that the ground floor area within the IGCs transitions to
retail uses, the Council's five IGCs could accommodate between
166,000 – 575,000m2 of additional retail floorspace, while the Key
Retailers Group's eleven IGCs could accommodate between 318,000
– 969,000 m2 of additional retail floorspace, depending upon the level
of development intensity.
(d) The above level of additional retail floorspace within the Council's five
IGCs would amount to between 22% and 77% of total floorspace
demand projected for Auckland between 2013 and 2026; and the
share is 43% to 130% for the Key Retailers Group's 11 IGCs.
(e) Even if only half of the ground floor non-retail land use in the IGCs got
taken up by retail uses, it would amount to:
between 11% and 39% of the projected retail floorspace growth out to 2026 for the Council's five IGCs
between 21% and 65% of the projected retail floorspace growth out to 2026 for the Key Retailers Group's eleven IGCs
4.9 The following table sets out the existing and potential retail floorspace by IGC.
The sub-total shows the Council's proposed five IGCs and the total shows the
Key Retailers Group's eleven IGCs.
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Table 1. Existing and potential retail floorspace by IGC, 2014
4.10 This table also answers questions from the Panel as to whether the proposed
IGCs are to recognise existing uses or provide for new retail opportunities: the
answer is "both". The existing retail floor space within the Council's five IGCs
is significant but there is potential for this amount to more than double
depending on the level of development intensity and share of other non-retail
ground floor activity that transitions to retail uses.
4.11 In my submission the figures above show that the eleven IGCs proposed by
the Key Retailers Group provides much more out-of-centre retail opportunity
than is required to accommodate retail growth requirements. This threatens
the centres focussed philosophy which is at the heart of the Business zones,
from high level objectives and policies which address the role and function of
particular zones, down to rules and development controls that more specifically
identify the scale and mix of activities generally appropriate in each of the
Business zones.
4.12 In my submission the five IGCs supported by the Council strike the right
balance between providing for commercial growth out-of-centre and avoiding
too much dispersal of commercial activities which could compromise the
function, role and amenity of centres in the PAUP hierarchy and network of
centres. If more retail opportunities are required on transport corridors in the
future then B3.1 of the RPS provides an appropriate framework for assessing
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and implementing IGCs through a change to the district plan (this was
acknowledged on behalf of the Key Retailers Group at the hearing). The
Council's proposed approach of five IGCs is therefore the most appropriate in
terms of the relevant statutory tests.
5. LINCOLN JUNCTION CHANGES TO PROPOSED IGC
5.1 At the hearing Mr Teal on behalf of Lincoln Junction Ltd referred to rebuttal
evidence he produced. His rebuttal evidence addresses the Council's
proposed IGC for Lincoln Road. In particular he seeks to increase the depth of
the IGC to cover more of the site owned by Lincoln Junction Ltd.
5.2 This was a new matter raised in rebuttal evidence which the Council did not
have the opportunity to respond to in evidence. At the hearing it was agreed
that this matter would be addressed in the Council's closing remarks.
5.3 The Council does not support the additional depth for the IGC proposed by Mr
Teal for the following reasons:
(a) The proposed depth is significant and goes beyond that normally
associated with an IGC (it would be equivalent to both the Pak n Save
and Mitre 10 on the opposite site of and Lincoln Junction which is
comprehensive large format retail); and
(b) Mr Teal's proposal would therefore likely provide for a new centre
rather than providing a "release valve" for additional retail that cannot
appropriately be accommodated in a centre.
6. INTEGRATED RETAIL DEVELOPMENTS
6.1 At the hearing the Scentre (New Zealand) Ltd, Kiwi Income Property Trust,
PSIPIB Ltd and DNZ Ltd presented submissions seeking changes to Policy
D3.3.9 to "encourage integrated retail developments" in Metropolitan Centre
zones. There was considerable discussion with the Panel as to whether this
was appropriate. In particular the Panel raised concerns about the implications
of having a complex definition to describe what were colloquially described as
"shopping malls" during the hearing.
6.2 The Council maintains its position that referring to integrated retail
developments in Policy D3.3.9 is not necessary or appropriate because they
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do not have a tendency to locate out-of-centre and they are a configuration of
retail which should not necessarily be encouraged in preference to alternative
configurations such as a "main street". These concerns were brought into
focus through discussions at the hearing.
6.3 In my submission the submitters' proposed approach reflects a desire to keep
"doing what they are doing" rather than having any sound resource
management basis. As noted by the Panel, and the submitters' own urban
design witness, Mr Bird, shopping malls are evolving and changing with time.
These issues were highlighted by Mr Bird's acknowledgement at the hearing
that "malls are trending more open".
6.4 The definition is a live issue and could of course be changed to respond to
these types of concerns. In fact a revised definition was proposed in the legal
submissions on behalf of the submitters to enable more flexibility for design
and evolution. The Council is however opposed to the submitters' proposed
definition because, while it may go some way towards achieving the intended
outcome, it could also encompass a significantly broader range of retail
activities than intended e.g. a stand-alone or conjoined large format retail
provider would come within the ambit of the definition simply through
exceeding 5,000 m2 and having a single management entity. Such an activity
would then unintentionally be subject to the particular design standards
afforded to shopping malls.
6.5 The definition is necessary (because it triggers the specific assessment criteria
in I3.8 of the proposed plan provisions) and will be determined as part of Topic
065 Definitions. However the issues above highlight some of the inherent
difficulties with encouraging integrated retail developments through the policy
framework. In particular the definition is likely to be too broad or the need to
define the characteristics of shopping malls with certainty will necessarily "lock
in" at least some shopping mall characteristics regardless of how the definition
is "tweaked". If integrated retail developments are encouraged in Policy
D3.3.9, these defined characteristics would become part of the policy
framework. This appears to be favoured by the submitters because it would
provide an "easier" resource consent pathway for the current shopping mall
model.
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6.6 In my submission the submitters' short sighted preference for an easier
resource consent pathway is not the most appropriate outcome for the
following reasons:
(a) There are no resource management reasons for preferring shopping
malls over the other types and configurations of retail which may seek
to establish within Metropolitan Centres;
(b) Including a policy preference for integrated retail developments would
be likely to constrain other types and configurations of retail which
may be equally or more appropriate in the context;
(c) It focusses on providing for a particular type and configuration of retail
rather than managing the effects of retail regardless of the type or
configuration; and
(d) A policy framework that encourages the defined characteristics could
prevent the current "shopping mall" model from evolving and
improving over time.
6.7 The Council therefore maintains its position that "integrated retail
developments" should not be encouraged in Policy D3.3.9 for the reasons set
out above.
7. SUPERMARKETS IN THE LIGHT INDUSTRY ZONE
7.1 At the hearing the Key Retailers Group continued to pursue discretionary
status for supermarkets in the Light Industry zone. The Council is opposed to
this approach for the reasons set out in detail in the rebuttal evidence of Ms
Wickham2, Ms Fairgray3 and Mr Akehurst. Those reasons will not be repeated
in full here.
7.2 The Key Retailers Group suggested in particular that the Light Industry zone
would be the only way to accommodate the number of supermarkets required
in the future and that this is appropriate because many Light Industry zoned
areas abut residential areas and can therefore serve workers and surrounding
residents. The Key Retailers Group suggested that supermarkets would have
2 Ms Wickham, rebuttal evidence, part 10.3 Ms Fairgray, rebuttal evidence, part 5.
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a marginal effect in terms of taking up Light Industry zoned land. This was
illustrated by expressing the projected demand as a nominal percentage of the
overall Light Industry resource.
7.3 In my submission, calculating a nominal percentage of the uptake of Light
Industry zoned land overlooks some key issues. In particular a wider area of
land than the supermarket site itself is likely to be rendered unavailable or less
suitable for light industrial activities. Supermarkets will potentially have reverse
sensitivity effects on other activities within the zone meaning that the effects of
establishing a supermarket in the Light Industry zone go beyond the
supermarket site (these issues were confirmed by Mr Officer on behalf of Allied
Concrete who confirm that supermarkets "would not sit happily" with his
operations). There may also be agglomeration effects through greater uptake
of adjoining and adjacent land by other retail activities which would benefit
from collocating with the supermarket. This in turn could undermine the
Council's "centres plus" strategy for the distribution of commercial growth.
7.4 At the hearing the Panel raised several other relevant matters:
(a) The large extent of Light Industry zoned land (approximately half of all
Business zoned land); and
(b) The prospect of cheaper land (relative to over Business zones) would
provide an economic incentive for supermarkets to prefer the Light
Industry zone.
7.5 In my submission, if supermarkets are a discretionary activity in the Light
Industry zone, the availability of cheaper land is likely to accelerate outcomes
in the Light Industry zone which the Council considers undesirable. In
particular the "centres plus" strategy will be undermined through the
establishment of out-of-centre commercial growth. Adverse impacts on the
function, role and amenity of centres may also be exacerbated by the large
extent of Light Industry zoned land and any related supermarket opportunities.
The large extent of the Light Industry zone also means that while some parts
abut Residential zones, and may therefore be more suitable for supermarkets,
there are many parts that are not in such proximity and are therefore less
suitable, and are likely to be less efficient than locations in centres or IGCs.
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7.6 In my submission discretionary status is not appropriate for supermarkets in
the Light Industry zone and the Council's proposal for non-complying status is
the most appropriate in terms of the statutory tests.
8. BUSINESS ZONES – OBJECTIVES AND POLICIES
Metropolitan and Town Centre zones – Policies 1A
8.1 During the hearing the Panel raised an issue regarding the use of the phrase
“function, role and amenity” of centres. It also noted that some of the policies
contain references to the "vitality" of a centre and asked whether this was
appropriate in light of the preference for "function, role and amenity"
elsewhere. The relevant policies are Policy 1A in the Metropolitan Centre zone
and Policy 1A in the Town Centre zone. The Metropolitan Centre example
reads:
1A. Manage development in Metropolitan Centres so that it contributes to the function, amenity and vitality of the centre.
8.2 The phrase “function, role and amenity” is addressed in the legal submissions
on behalf of the Key Retailers Group from paragraph 2.20. The Council
considers that this language is appropriate for similar reasons to those set out
in the legal submissions. In particular the "role" of centres invites
"consideration of how the centre sits within the hierarchy of centres" while
amenity refers to "the physical quality of the centre and the vitality that is
generated by visitors attracted by services". For these purposes the Council
considers that this characterisation is appropriate while also noting that there
are other aspects of amenity not included within the Key Retailers Group legal
submissions4.
8.3 Policies 1A in the Metropolitan and Town Centre zones were agreed at
mediation and seek to manage how development occurs within centres. In this
context the Council considers that the references to amenity include vitality,
and the references to vitality can therefore be deleted. In addition, the Council
considers that a reference to "role" is unnecessary, as development within the
Metropolitan and Town Centre zones does not need to be assessed against
the centre’s position in the hierarchy.
4 For example amenity includes “functional amenity”. This is the manner in which households interact and use the services and retail provided in centres. It includes the breadth and depth of offer and an ability to cross shop or cross use the centre for a range of activities on a single trip.
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8.4 The Council therefore proposes to amend the relevant policies to refer to
"function and amenity" rather than "function, amenity and vitality". The
proposed amendment for Policy 1A in the Metropolitan Centre zone is shown
below with a corresponding change to Policy 1A in the Town Centre zone
shown in the attached track changes:
1A. Manage development in Metropolitan Centres so that it contributes to the function, and amenity and vitality of the centre.
8.5 There are references to vitality in paragraph 2 of the Introduction to the
Business zones and in some assessment criteria. These references could
also be changed to "amenity" if the Panel prefers although this change has not
been made in the marked-up provisions attached to these submissions.
Mixed Use zone – Objective 1
8.6 At the hearing the planner on behalf of Housing New Zealand Limited, Mr
Lindenberg, raised an issue with Objective 1 for the Mixed Use zone. In
particular he noted that the objective appears to be missing a verb. The
Council has considered this issue and proposes to revise the objective as
follows:
Moderate to high intensity residential and employment opportunities exist, in areas in close proximity to, or which can support the City Centre, Metropolitan Centre, Town Centre zones and the rapid and frequent services network.
Heavy Industry zone – Objective 4
8.7 At the hearing some issues were raised in relation to Objective 4 for the Heavy
Industry zone. In particular the planner on behalf of Mighty River Power Ltd
objected to the requirement to manage amenity within the Heavy Industry zone
and questions were asked about use of the word "managed". The Council's
approach has been to use the word "managed" as a shorter version of "avoid,
remedy or mitigate". This approach has been used for the Business zones and
in other parts of the plan. The Council considers that this language should be
maintained for consistency and to avoid interpretation issues arising if different
language is used to mean the same thing.
8.8 The Council has considered whether it is appropriate to manage amenity
values within the Heavy Industry zone and considers it more appropriate to
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refer to the "amenity values of adjacent areas" (due to the functional and
utilitarian nature of activities anticipated within the Heavy Industry zone). The
Council therefore proposes the following changes in response to submitters
concerns:
4. Adverse effects on the: the natural environment and general
a. natural environment within and surrounding the zone , both within the zone and on adjacent areas,
b. amenity values and the of adjacent areasc. are managed.
Policies and assessment criteria – Functional and operational requirements
8.9 At the hearing the Key Retailers Group and Restaurant Brands sought to
amend references to "functional requirements" in various policies and
assessment criteria by adding a reference to "operational requirements". They
argue that the two terms are different. The Council's position is that
"functional" is sufficient and appropriate without the word "operational" for the
reasons set out in Mr Wyatt's rebuttal evidence.
8.10 The legal submissions on behalf of the Key Retailers Group referred to the
Council's legal submissions on Topics 033 and 034 General Coastal Marine
zone and Other Coastal zones as supporting a distinction between "functional"
and "operational". As the Panel is aware, the issues in those topics are
particular to the coastal environment. The Council is proposing separate
definitions for "functional need" and "operational need" but the definitions are
specific and particularly relevant to the context e.g. functional need is defined
to mean a proposal or activity that needs to locate or operate in the coastal
marine area because it can only occur in that environment.
8.11 At the hearing the Panel observed that "operational requirements" was used in
assessment criteria 7.2B.2 and 7.1A. The Council considers this to be an
oversight that arose through the mediation process and all references to
"operational requirements" should be replaced by "functional requirements" for
the reasons set out in Mr Wyatt's rebuttal evidence i.e. the two terms are
synonyms and there is no meaningful distinction between the two. There was
also a reference to "functional or operational need" which the Council proposes
to revise to "functional requirement". The changes have been made in the
attached document.
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9. BUSINESS ZONES – LAND USE RULES AND ASSESSMENT MATTERS
Activity table – "site" vs "tenancy" for offices
9.1 In planning evidence and at the hearing Mr Grala sought on behalf of Ormiston
Joint Venture Ltd that restrictions on office GFA should apply "per tenancy"
rather than "per site". This would enable the relatively undeveloped Ormiston
Local Centre to develop offices to a significantly greater extent without
triggering more restrictive activity status. Mr Wyatt had some discussions with
the Panel on this issue but it is appropriate that we confirm the Council's
position and the reasons for its position.
9.2 The notified PAUP proposed to limit sizes of both office and retail activities in
some zones with the thresholds specified "per site". At mediation it was
agreed that the retail thresholds should apply "per tenancy" but a similar
agreement was not reached in relation to offices.
9.3 This is because there are different reasons for controlling the effects of retail
and offices. For example the Council is concerned about the size of large
format retail tenancies because once a store exceeds approximately 450 m2
there is potential for it to have significant distributional effects. In contrast, with
offices the Council is concerned about a cumulative intensity and scale
occurring which may significantly affect the function, role and amenity of the
network of centres.
9.4 Controlling offices by tenancy rather than by site would fail to address the
Council's concerns because a number of smaller office tenancies could be
established to achieve an inappropriate intensity and scale without triggering
more restrictive activity status. For example under Mr Grala's proposal a
600 m2 office tenancy may trigger a resource consent application but an
unlimited number of 500 m2 office tenancies could be established on a site as
a permitted activity.
9.5 In my submission there are good reasons for approaching the retail and office
thresholds differently and in my submission the Council's proposed approach is
more appropriate than Mr Grala's. The Council's concerns about the
potentially significant adverse effects of out-of-centre offices on the function,
role and amenity of the network of centres warrant managing offices by site
rather than by tenancy. Mr Grala is concerned about a lack of opportunity for
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offices but in the Local Centre zone this can be addressed by lodging a
General Commercial Frontages – development controls vs assessment criteria
9.6 During the course of the hearing the Panel raised some questions as to
whether the requirements for General Commercial Frontages (GCF), in
particular the requirements for 70% of new buildings to adjoin site frontages
subject to a GCF, should be included as development controls or assessment
criteria. It was clarified that both options would rely on the use of GCF layer on
the planning maps.
9.7 As noted by Ms Coady at the hearing, putting aside the site-specific issues of
where the GCFs should be applied, the GCF mechanism is of great
importance, because it enables certain streets to be prioritised for "better"
urban design outcomes than might otherwise be achieved. GCFs are
secondary to Key Retail Frontages which largely reflect the existing "main
streets". In the context of intensified centres, with more people living more
compactly and doing different things at different times of the day, it is
appropriate for more streets than just the "main street" to exhibit visual quality,
safety and comfort. Without these qualities less activity will occur and less
people will be inclined to transact on foot – a key reason for seeking to
intensify centres in the first place.
9.8 This GCF approach is effective and efficient because it enables the more
important streets to be targeted without applying urban design controls more
widely than necessary e.g. to streets with low visibility or pedestrian activity.
The importance of GCFs and the reasons for prioritisation are addressed
further in paragraphs 5.42 and 5.43 of Mr Munro's evidence in chief. GCF
streets enable the community's wellbeing by giving certainty to developers and
residents as to the qualities that are likely to arise over time.
9.9 The issue of whether urban design requirements should be included in
development controls or assessment has been a key consideration for the
Council through the plan development and mediation process. As outlined in
the evidence-in-chief of Mr Munro5 this process resulted in the Council
proposing to remove a number of urban design controls in favour of
5 Mr Munro, evidence-in-chief, paras 5.11-5.25.
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assessment criteria. In my submission Mr Munro's evidence shows that both
approaches have advantages in terms of efficiency, effectiveness and quality
of outcomes.
9.10 Although in number of instances the Council has supported removing urban
design development controls in favour of assessment criteria, its position is
that the frontage requirements for buildings in GCFs are more appropriate as a
development control than an assessment criteria. As mentioned above, this
approach will provide certainty and clear guidance to developers in that they
will know the "maximum" that could be potentially be required. A development
criteria is also more appropriate in the circumstances because the frontage
requirement is targeted at frontages which have all been individually assessed
and considered through application of the GCF frontage. This reduces the
potential for the frontage requirements to be inappropriate when compared to
development controls that apply more widely.
9.11 A key element in the Council's support for a development control over
assessment criteria in this instance is that the PAUP does not impose a
"penalty" if development controls are contravened – buildings will retain
restricted discretionary activity status with discretion reserved over building
design and external appearance. Proposals that contravene the building
frontage requirements are therefore not discouraged or undermined and can
be assessed on their merits.
9.12 In my submission this approach is the most efficient and effective and will
ensure that a “quality built environment” will be achieved in terms of the
proposed RPS. Including the frontage requirements as development controls
is the most appropriate approach in terms of the statutory tests. If the Panel
has concerns that the proposed building frontage control is too onerous then it
has the options of removing it from particular sites or reducing the 70%
threshold slightly.
Site specific height - Samson Corporation Limited and Sterling Nominees Limited
9.13 At the hearing legal submissions were presented on behalf of Samson
Corporation Ltd and Sterling Nominees Ltd in relation to additional height
sought for a block bounded by Ponsonby Road, McKelvie Street and Pollen
Street in Ponsonby. The submissions suggest that the Council's position on
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height is inconsistent with an agreement concluded between Samson and the
Council, subsequently endorsed by the Environment Court, whereby the “lost”
development potential of the site scheduled was transferred to another part of
the block, secured by provisions in the District Plan. It is submitted that the
Unitary Plan does not maintain the agreed heritage schedule incentive. The
Panel asked the Council for an explanation.
9.14 A copy of the relevant consent order is attached as Annexure B. The consent
order includes a rule which provides for the development capacity lost as a
result of scheduling a heritage building to be transferred to and available as
bonus floor area in any application for redevelopment of any other site within
the block contained by Ponsonby Road, MacKelvie Street, and Pollen Street,
Ponsonby. In his planning evidence Mr Brown on behalf of Samson proposes
to increase the height over part of this block to provide for an additional storey,
partly to recognise the bonus floor area available through the operative district
plan.
9.15 The PAUP does not include a development control requiring floor area ratios or
a regime for the transfer of bonus floor areas except in the City Centre zone. It
therefore does not include the constraint for which the "bonus" was agreed
through Plan Change 217. This raises questions as to whether the height
concession that is being sought is equivalent to the bonus floor area and
whether additional height would have similar effects to those anticipated as a
result of the bonus floor space.
9.16 These issues are currently being discussed with the Council's Heritage Unit
and had not been resolved at the time these submissions were lodged with the
Panel. The issue may also benefit from further discussions with the submitter.
The Council therefore proposes to advise of its final position either by filing a
separate memorandum through the Business Topics or through Topic 078
Additional Height Control (the relevant submission point 6247-75 has been
addressed as part of the Business Topics but has been allocated to Topic
078).
10. DEFINITION OF "RETIREMENT VILLAGE"
10.1 At the hearing some questions from the Panel arose in relation to the definition
of retirement village and in particular the exclusion of dwellings from the
definition. This issue is addressed in detail in Ms Rogers' evidence on Topic
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059, 060, 062, 063 Residential objectives and policies, activities, development
controls and controls and assessment.6
10.2 The reasons for the approach to the "retirement villages" definition will be
addressed in detail through the topics above. In summary the reasons for
excluding dwellings from the definition of retirement villages include the
following:
(a) Retirement villages are large comprehensively developed residential
developments which require a particular resource management
approach;
(b) Retirement villages should be assessed in an integrated manner
rather than being broken down into their component parts and
assessed separately;
(c) Dwelling controls which apply to retirement villages should be limited
to those that are appropriate and relevant – this is proposed to
include "outlook space" and "daylight"; and
(d) Multi-unit development developments should not be able to establish
under the guise of a retirement village and then seek to subdivide into
separate dwelling units that are unable to meet the dwelling amenity
requirements.
11. PROVISIONAL LOCAL ALCOHOL POLICY
11.1 At the hearing legal submissions were presented on behalf of the Auckland
Regional Public Health Service (ARPHS). The legal submissions seek to
advance the evidence of ARPHS staff which seeks that the PAUP control
alcohol outlet location and density in addition to the Council's local alcohol
policy. The Panel asked that we provide an update on the status of that
document. Before doing that we will provide some background information on
the legislative framework.
11.2 Under the Sale and Supply of Alcohol Act 2012 (SSAA) territorial authorities
may, but are not required to, have a local alcohol policy relating to the sale,
supply, or consumption of alcohol within their district. The relevance of a local
alcohol policy is that it must be taken into account under section 105 of the
SSAA by the licensing authority or the licensing committee when deciding
6 Ms Rogers, evidence in chief, paras 9.8-9.17.
21
whether to issue an alcohol licence. Incidentally, decision-makers are also
empowered to consider whether the amenity and good order of the locality
would be likely to be reduced, to more than a minor extent, by the effects of the
issue of the licence.
11.3 A local alcohol policy may include policies on any or all of the matters relating
to licencing that are set out in section 77 of the SSAA. Section 77 specifically
provides for certain policies relating to alcohol outlet location and density,
which ARPHS is seeking to control through the district plan, as follows:
(a) location of licensed premises by reference to broad areas;
(b) location of licensed premises by reference to proximity to premises of
a particular kind or kinds;
(c) location of licensed premises by reference to proximity to facilities of
a particular kind or kinds; and
(d) whether further licences (or licences of a particular kind or kinds)
should be issued for premises in the district concerned, or any stated
part of the district.
11.4 The SSAA requires a provisional policy to be produced by consulting on the
draft policy using the special consultative procedure under the Local
Government Act 2002. After decisions have been made the provisional policy
is publicly notified by the Council and submitters may lodge appeals with the
Alcohol Regulatory and Licensing Authority (ARLA). ARLA may ask the
Council to reconsider an element of a provisional local alcohol policy appealed
against if it is satisfied that the element is unreasonable in light of the object of
the SSAA. Adoption of a provisional local alcohol policy occurs progressively
by operation of the law effectively after each element goes beyond challenge.
It is then publicly notified and brought into force on a day stated by Council
resolution.
11.5 Auckland Council started work on its provisional local alcohol policy (PLAP) as
early as 2011 when an Alcohol-Related Harms Research report was prepared
for the Community and Cultural Policy Unit. This was prepared in anticipation
of the SSAA being enacted to provide for local alcohol policies. Over the
following years the Council went through a long and detailed process of
developing its draft local alcohol policy. This included preparation of Issues
and Options papers, Position papers, economic impact assessments, Council
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and Committee meetings, public and stakeholder meetings, public
communications and much more.
11.6 Following Council decisions on submissions, the Auckland Council PLAP was
issued in May 2015. It includes controls over alcohol outlet location and
density which are matters that ARPHS seeks to also be included in the district
plan. Nine appeals were lodged with ARLA. The appellants include
supermarkets, bottle stores, off-licence holders, a residents group, the Police
and ARPHS. The Council has requested that ARLA hear the appeals with
urgency and we have been advised that this is expected to occur in the first
quarter of 2016.
11.7 In the circumstances parliament has specifically enacted legislation to enable
territorial authorities to control alcohol outlet location and density. The Council
has chosen to do so and has engaged in a lengthy process to promulgate a
local alcohol policy under the SSAA. At the hearing ARPHS suggested that
controlling alcohol related matters through the district plan was appropriate
because the Council may discontinue the development of its PLAP. After more
than four years of development, and a request on behalf of the Council that the
appeals be heard with urgency, this is extremely unlikely and almost
implausible.
11.8 Further, as pointed out by the Panel, it is well established by case law that the
RMA is not a licencing regime. In Foxley Engineering Limited v Wellington City
Council W12/94, 16 March 1994 (PT) (citing Te Aroha Air Quality Protection
Appeal Group v Waikato Regional Council (1993) 2 NZRMA 574) the
Environment Court held that "the Resource Management Act does not provide
for licensing … commercial enterprises." ARPHS concerns should be
addressed through the SSAA processes, which are specifically aimed at
alcohol licencing.
11.9 In my submission it is unnecessary and inappropriate to do anything other than
let the PLAP appeals run their course. This is particularly the case given that
ARPHS is a party to the PLAP appeals and has full standing to participate in
the process and advocate its position before ARLA. Addressing alcohol
density and location issues through the district plan could pre-empt the
decision of the appellate body with jurisdiction and specialist expertise to
determine those matters. Addressing these matters through the district plan
could also result in inconsistent regulatory regimes for alcohol.
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12. CHANGES OF MINOR EFFECT AND CORRECTION OF ERRORS
Assessment criterion I3.6.2(c)(i)
12.1 This criterion under "Design of parking, access and servicing" refers to surface
parking and landscaping. In the text changes attached to the Joint Planning
Statement, the Key Retailers Group sought to amend "surface parking" to "at
grade parking". Council’s witnesses overlooked this change as part of their
rebuttal evidence, but agree that this amendment is appropriate. The
amendment is shown in the attached track changes.
Universal access definition
12.2 At paragraph 14.16 of his primary evidence, Mr Wyatt proposed the following
definition of universal access:
The provision of buildings that are accessible and usable to the greatest extent possible by people of all ages and abilities.
12.3 This proposed definition was not included in the track changes attached to Mr
Wyatt’s primary or rebuttal evidence. To correct this error it has been added to
the attached track changes.
Assessment criteria for large format activities in I3.8
12.4 Paragraph 14.8 of Mr Wyatt’s evidence contains recommended amendments
to the introductory paragraph of I3.8.1. Bullet points 2 and 3 contain an
incorrect reference to "integrated retail developments". The zones that the
assessment criteria for "integrated retail developments" apply to are set out in
bullet point 1 and "integrated retail developments" have been incorrectly
included in bullet points 2 and 3.
In addition to the assessment criteria for new buildings stated above, the following criteria applies to buildings for:
• integrated retail developments in the Metropolitan Centre, Town Centre and Local Centre zones;
• supermarkets, department stores and large format retail in the Centres, Mixed Use and General Business zones, where the activity or integrated retail development exceeds 1000m2 GFA per tenancy;
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• trade suppliers in the General Business zone, where the activity or integrated retail development exceeds 1000m2 GFA per tenancy
Matters of discretion in I3.6.1
12.5 It was agreed during mediation that the assessment criteria for supermarkets
greater than 4000 m2 in the Local Centre zone should be amended from
I3.6.2(1) to I3.6.2(2) because the assessment criteria in the latter section are
more appropriate for that activity. In addition the assessment criteria were
proposed to be amended to refer to "supermarkets greater than 2000 m2 in the
Local Centre zone". However consequential changes were not proposed to
the corresponding matters of discretion. These amendments have been
proposed by the Council in the attached track changes to I3.6.1(1) and
12.6 At paragraph 5.4.24 of his primary evidence, Mr Wong-Toi recommended the
following new transport-related assessment criterion for large format retail
located within IGCs:
The council will consider the relevant assessment criteria below for the restricted discretionary activities listed above.…3. The integration of the development with transport network improvements or transport infrastructure upgrades where implementation is programmed.
12.7 This criterion was not included in the track changes attached to Mr Wyatt’s
primary or rebuttal evidence. To correct this error it has been added to the
attached track changes.
Activity Table 2 amendment regarding existing lawfully established commercial activities
12.8 At paragraph 8.18 and 8.19 of her rebuttal evidence, Ms Wickham
recommended amendments to Light Industry zone policy 1A and land use
control 3.4. The amendments propose to exclude entertainment facilities from
the scope of the proposed land use control concerning existing lawfully
established commercial activities. The following consequential amendment to
Activity Table 2 is required to implement this approach:
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Existing lawfully established retail, office and commercial services activities as at the date the Unitary Plan becomes operative
12.9 This was overlooked and the amendment was not included in the track
changes attached to Mr Wyatt’s primary or rebuttal evidence. To correct this
error the proposed change has been added to the attached track changes
version of the plan provisions.
13. FURTHER WORK REQUIRED
13.1 At the conclusion of the hearing the Panel requested that the Council
undertake further work on the following matters:
(a) Economic analysis on the proportion of existing activities in the Light
Industry zone on the spectrum from light industrial production to
commercial activities and the demand / supply balance for the types
of activities provided for in the Light Industry zone; and
(b) A report listing requests for new precincts and providing an update on
the status of discussions with submitters e.g. issues resolved, issues
outstanding and discussions ongoing (grouped by geographic area so
that a broad overview can be obtained).
13.2 For the economic analysis, an outline of work is currently being finalised and
will be submitted to the Panel shortly. Work on the precinct report is on-going
and that will be filed with the Panel as soon as complete.
