Summary

An Environment Court decision issued in December 2017 confirmed that enabling provisions within overlays, zones or Auckland-wide chapters in the Auckland Unitary Plan (AUP) cannot prevail over more restrictive provisions unless there is a specific rule that allows it. This decision required a change in Auckland Council’s approach to considering resource consent applications for alterations and additions to existing dwellings where they are subject to the Special Character Area – Residential (SCAR) overlay and the underlying Residential – Single House Zone (SHZ). The Council now ensures that the two sets of rules are considered in the consenting process, instead of only the overlay rules. The decision also raised concerns regarding whether the other overlays in the plan would operate as intended with this revised approach.

A comprehensive analysis has been undertaken of the 26 overlays in the AUP to consider how they would be affected by the change in approach. The analysis has identified potential issues in the SCAR overlay and also in nine other overlays. The issues in the other overlays are much more limited in scale and significance than those in the SCAR overlay. The identified issues fall into the following categories:

1. Enabling activities – Where an overlay provision is more permissive, and the purpose of the overlay supports enabling the relevant activity, applying a more restrictive zone provision means the overlay does not function as intended (eight overlays affected).

2. Unclear exceptions to rules – Some enabling provisions include wording stating (or implying) that more permissive rules in that section of the AUP override the zone activity status. In some cases, the wording is not sufficiently clear (three overlays and three Auckland-wide chapters affected).

3. Competing matters of discretion – Applying both an overlay and zone/Auckland-wide rule can involve competing policy directions. This is particularly an issue where restricted discretionary activities matters of discretion are inconsistent (at least three overlays affected).

4. Consistency – There are naming and content inconsistencies across the AUP that create uncertainty regarding whether a more restrictive rule applies to a particular activity (five overlays affected).

5. Activities not provided for – Some overlays do not operate as intended because they inadvertently enable activities that should be restricted by a zone or by the general rule C1.7 in the AUP which makes “activities not provided for” a discretionary activity (seven zones affected).

The review has shown that the issues between the various overlays and the underlying zones could not be addressed by a single amendment to the AUP (such as a new general rule to require overlay rules to always prevail over zones or Auckland-wide provisions). That would cause a different range of issues, particularly where an overlay provision is less restrictive than a zone provision but has no reason to be more enabling than a particular zone. If the overlay always prevailed, the Volcanic Viewshaft overlay would enable building higher than the underlying zone, and the Quarry Buffer Area Overlay would facilitate dwellings in the industrial zones. Instead of a single amendment applying across the AUP, a more tailored approach, to address the identified issues, is required to ensure that each of the AUP overlays operates as intended.

Auckland Council working paper, December 2018