Auckland Council recently announced that about 420 property owners to reapply for already issued resource consents to protect them from possible legal challenges. And the council says some of those who reapply may not get a resource consent after seeking a new one!
It may be that as many as 130 of the affected property owners have already obtained building consents for work on their dwellings.
The re-applications will be fee-free and expedited as quickly as possible. Council have done this so that issued consents are not vulnerable to being overturned by judicial review after building has been completed – which would be far more expensive and inconvenient.
The issue arose when the Auckland Unitary Plan became operative in part in November 2016. The final wording of the rules for Special Character Overlay Areas and the underlying Single House Zones were, in places, inconsistent and created uncertainly about which should take precedence.
It is important to note that Auckland Council obtained external legal advice to determine the correct interpretation of the rules. They adopted an approach that was consistent with this advice when processing resource consents between December 2016 and December 2017. This approach was that the Special Character Areas Overlay rules took precedence over the underlying zone rules.
Because there was still some uncertainty, Auckland Council sought clarification on the rules from the Environment Court. On 19 December 2017 the Court agreed that the relevant Unitary Plan rules were not clear and thanked the Council for seeking clarification. The Environment Court did not agree with Council’s existing interpretation of the rules and declared that both sets of rules – the Special Character Areas Overlay and the underlying zoning rules – should apply when considering resource consent applications.
Council immediately changed their resource consents practice following the court ruling and began to apply both sets of rules to resource consent applications, in line with the Court’s decision.
Although existing resource consents remain valid as they can only be cancelled by the High Court, an interested party (for example a neighbour) could make an application to the High Court seeking a judicial review of an affected resource consent. This is why Council are recommending that all affected consent holders apply for a new resource consent; this would remove any uncertainty about potential issues with their consent. They are also recommending that people do not progress with a Building Consent application or begin work on the property until a new resource consent is in place.
Council do not have the power to order that work stops on any of the affected sites as they are still validly granted consents, but they are vulnerable to judicial review in the High Court. Some property owners may well choose to wager that no one will be willing to go to the considerable trouble and expense of court action.
Council’s analysis indicates that, for the majority of consent holders, updating their resource consent should be relatively straight-forward.
The Environment Court proceedings concluded in March 2018. After the December 2017 interim decision, detailed analysis was carried out of the impact of the decision on the AUP to understand what Plan changes may be required. A report was prepared and filed in court in July 2018.
In relation to consents granted during the relevant period, initially Council were trying to address each one on a case-by-case basis. They also carried out a thorough review to identify the number potentially impacted and then formulate an appropriate strategy to manage potential issues with these consents. As a result of that work, a public announcement was made on 29 August and a plan of action implemented to assist consent holders through the issue. There is now a dedicated team dealing with these consents.
Regulatory Services Director, Penny Pirrit, has said Auckland Council would be looking at changing the Unitary Plan so the overlay rules take precedence. However, a plan change will take until mid-to-late 2019 to complete at the earliest.
I am dealing with local instances that have been brought to the Local Board’s attention.