Unitary Plan under scrutiny at High Court

Auckland High Court on the corner of Waterloo Quadrant and Parliament street, Auckland. Photo / File

Auckland's new development blueprint, the proposed Unitary Plan, has come under scrutiny at the opening of a High Court hearing where several appellants argue errors of law were made in its development.

The plan, passed and notified by Auckland Council in August, attracted 106 appeals. Most were to the Environment Court while 39 were filed to the High Court. The council has asked the Environment Court to put on hold any relevant appeals that contain the same subject matter pending the outcome of the High Court hearings.

Today's hearing before Justice Christian Whata in the High Court at Auckland involves 18 appellants on the issue of zonings and scope, in particular whether or not the Independent Hearings Panel had jurisdiction to make recommendations to Auckland Council on specified matters.

The council identified three groups of appeals - category 1 covers appeals that are subject to settlement discussions, category 2 which is the subject of this week's hearing on scope and/or zoning changes, and category three which is issue-specific appeals.

In an earlier minute to the parties involved, Justice Whata said he had resolved to have a test case or test cases prepared by the Council and the parties to help resolve the issue of the scope of the jurisdiction of the hearings panels to make recommendations and to provide a principled framework for resolving individual claims.

Among the appeals being heard this week is a joint one lodged by lobby groups Auckland 2040 and the Character Coalition challenging certain zoning decisions. It opposed higher housing density in the plan's final version and the removal of some blanket protections for neighbourhoods built prior to 1944.

That appeal was so broad that the council decided until all appeals are resolved, any resource consent applications will be assessed against parts of both the old and new plans. Other appellants involved in this week's hearing include retailer Bunnings, retirement village operator Summerset Group, Auckland University of Technology, and several residents' societies.

The Unitary Plan, which is the first combined planning document for Auckland, targets providing capacity for more than 400,000 new residential homes to meet the region's projected population growth over the next 30 years. The government set up an independent hearings panel to make recommendations to the council to ensure the plan was brought into force within a three-year time limit.

Appellants have claimed the panel and council made errors in law during the process.
The regime the panel was operating under is "unique and has not been tested through case law," said Royden Somerville QC, representing the council.

Under the Local Government Act, the panel wasn't constrained to making recommendations only on what was covered in submissions, and wasn't required to make recommendations that addressed each submission directly, he said.

However, the panel's broad discretionary power was constrained by a requirement to ensure the hearing process was appropriate and fair and to identify any recommendations that were beyond the scope of submissions, Somerville said. To ensure justice, anyone can appeal to the Environment Court in respect to out-of-scope recommendations.

Somerville said the very broad range of submissions meant very few changes were out-of-scope but the panel took a conservative approach to identifying what recommendations fell into this category to ensure anyone who didn't make a submission that may be affected by rezoning were still able to have their say.

The panel reviewed zoning and precinct issues on an area by area basis with reference to submissions in relation to each area but the act doesn't require participation by all potentially affected people, he said.

Somerville told the court the process adopted by the panel involving "notification, submissions, summarising the points of relief, further submissions, and the opportunity for waivers for late submissions and other submissions provided a real opportunity for participation by those potentially affected".

The case is continuing for the rest of the week.