Plan Change 26 to Auckland Unitary Plan


Photo credit: Bayleys Realty Group

Plan Change 26 seeks changes to the Auckland Unitary Plan to make it clear that certain planning provisions of the underlying Special Character Areas Overlay will prevail over the corresponding provisions of the underlying residential zones. The proposed plan change also refines some of the standards within the Special Character Areas Overlay, including height in relation to boundary, yards, paved areas and fences.

One of the most important things to understand about this plan change is that it is not introducing new rules or standards; it is clearing up an inadvertent legal confusion and effectively bringing the old Res 1 controls back into play, which were the heritage protections of the old District Plan for the last 20 years or so. 

The issues that the plan change deals with 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. Council obtained external legal advice to determine the correct interpretation of the rules and adopted the approach that the Special Character Areas Overlay rules took precedence over the underlying zone rules between December 2016 and December 2017.

The legal position was clarified in three Environment Court cases: Auckland Council v Budden [2017] NZEnvC 209, Auckland Council v Budden (No 2) [2018] NZEnvC 3 and Auckland Council v Budden (No 3) [2018] NZEnvC 30. 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.

Following this, hundreds were advised to re-apply for their consents in September 2018.

The challenge of dealing with these issues is summarised at p. 26 of the Coombes & Williams Overlay Analysis Report, December 2018:

‘There is no simple amendment that can address all of these issues collectively. It would not be appropriate to introduce a general rule that makes the overlay provisions always prevail over zone and Auckland-wide provisions. This would create issues when the overlay provisions are more permissive than their equivalents elsewhere in the plan, but the overall intent of the overlay is to be restrictive. In such cases the overlay is not meant to enable particular activities where there are other reasons for a zone to restrict that activity. Such an approach would create anomalous situations such as the Volcanic Viewshafts Overlay allowing building heights up to a sloping viewshaft height when the building height in the surrounding zone is lower.’

The wording of the proposed change is (the full document is here):

Chapter D18

  1. Amend the introductory text preceding Activity Table D18.4.1 Special Character Areas Overlay – Residential to state:
    1. That Activity Table D18.4.1 does not apply to land use activities;
    2. That the activity status of activities in Activity Table D18.4.1 takes precedence over the activity status of that activity in the underlying zone;
    3. That the activity status in the relevant zone applies to land use activities and to development activities that are not specified in Table D18.4.1; and
    4. That all other relevant overlay, precinct and Auckland-wide rules apply unless otherwise specified.
  2. Amend Activity Table D18.4.1 Special Character Areas Overlay – Residential to:
    1. Insert a new activity rule to provide for the construction of new fences and walls, and alterations to fences and walls that comply with Standard D18.6.1.7(1) as a permitted activity; and
    2. Insert a new activity rule to state that the construction of new fences and walls, or alterations to fences and walls, that do not comply with Standard D18.6.1.7(1) is a restricted discretionary activity.
  3. Amend D18.6.1 Standards for buildings in the Special Character Areas Overlay –Residential to:
    1. Clarify that the development standards listed within D18.6.1 apply to all activities undertaken in the Special Character Areas Overlay – Residential, whether they are listed in Activity Table D18.4.1 or in the relevant zone; and
    2. State that the following development standards in D18.6.1 prevail over the equivalent development standards in the underlying zone (except where otherwise specified):
      1. building height
      2. height in relation to boundary
      3. yards
      4. building coverage
      5. maximum impervious area
      6. landscaped area
      7. fences and walls
  1. Include a purpose statement for the following development standards:
    1. building height
    2. height in relation to boundary
    3. yards
    4. building coverage
    5. landscaped area
    6. maximum impervious area
    7. fences and walls
  2. Amend Standard D18.6.1.2 Height in relation to boundary to specify that:
    1. The control (3m + 45 degree recession plane) only applies to sites with a frontage length of less than 15m;
    2. The underlying zone height in relation to boundary standard applies:
      1. To sites that have a frontage length of 15m or greater; or
      2. Rear sites.
    3. Standard D18.6.1.2 only applies to side and rear boundaries (not front boundaries)
    4. Standard D18.6.1.2 does not apply to site boundaries with an existing common wall between two buildings on adjacent sites or where a common wall is proposed;
    5. Standard D18.6.1.2 applies from the farthest boundary of legal rights of way, entrance strips, access sites or pedestrian access ways; and
    6. That gable ends, dormers or roofs may project beyond the recession plane in certain circumstances.
  3. Delete the rear yard requirement from D18.6.1.3; and state that the underlying zone yard standards apply for all other yards.
  4. Amend the reference to ‘maximum paved area’ in D18.6.1.6 to ‘maximum impervious area’; along with associated amendments to the maximum levels in Table D18.
  5. Amend the standard that relates to fences and walls in D18.6.1.7 to the effect that fences constructed between the front facades of houses and the street are limited to 1.2m in height, but can be up to 2m in height elsewhere on a site.
  6. Amend D18.8 to require an assessment of resource consents against the matters of discretion and assessment criteria set out in D18.8 as well as the matters of discretion and assessment criteria in the underlying zone (for infringements to equivalent standards only). For clarity, PPC 26 does not propose any amendments to the following standards in Chapter D18:
    1. Objectives
    2.  Policies
    3. Table D18.4.2 Activity table – Special Character Areas Overlay – Business
    4. Notification
    5. 6.2 Standards for buildings in the Special Character Areas Overlay – Business
    6. Assessment – controlled activities
    7. Special Information Requirements

Chapter E38: Subdivision – Urban

Amend Standard E38.8.2.6 to state that the minimum net site area standards in Table E38. prevail over the zone-specific standards in Table E38.

It may appear that the intensity of the Special Character Areas is being increased when compared to the underlying residential zoning of Single House Zone (SHZ) but  it is important to be sure that we are comparing like with like. An historic analysis shows that the Special Character Areas (i.e. Grey Lynn, Ponsonby) were relatively intensively developed compared to today’s standards and, for consistency, the standards for new builds and alterations in the area reflect this. The Plan Change 26 Evaluation Report contains the following table summarising the phases of development in Auckland’s isthmus suburbs with the sizes of the lots and frontages:

Screen Shot 2019-06-18 at 17.34.00

These rules reflect the existing, historic building pattern – houses were traditionally built much closer and higher relative to the boundary and were extended at the back over time. So, for example, it is worth noting that the height in relation to boundary in the Special Character Area of 3m + 45 degree recession plane only applies to properties that have a frontage of less than 15m.

This plan change is not creating new rules, nor is it allowing additional development, it is reinstating the same (‘Res 1’) rules that have existed in the affected area for the last 20 years. Prior to the Unitary Plan, the Auckland District Plan had a special ‘Isthmus A’ zoning area for Grey Lynn and Ponsonby. This recognised that lots in these historic suburbs tend to be much smaller and narrower than modern subdivisions, by allowing  owners to:

A) build to a height to boundary starting at 3m on boundary (same as current overlay rules but the old District Plan only required 1 m side yard)

B) smaller lots to build on a greater proportion of the land. The District Plan used a different formula from the current overlay rules but the effect was similar – you could build on 35% of a 500 sqm lot, 40 % on a 400 sqm lot, rising to 50% for a 200sqm lot.

Auckland Council, via the Unitary Plan process, opted to simplify the large number of zones it inherited from the six prior District Plans. It did this by creating residential zones based on the primary housing types in each area, e.g. single house zone, allowing 1 house per lot, or terraced housing and apartment zone, etc. The single house zone set a minimum lot size of 600 sqm – a size rarely found in our historic neighbourhoods. Note also that the SHZ permits existing housing to be demolished as of right!

Proposed Plan Change 26 clarifies the Unitary Plan by stating that the overlay rules will overwrite the zone rules while tidying up a few minor issues like changing maximum paved area to impervious surface area. It does not add additional development rights, it just continues the rules that have existed for over 20 years.

If development were restricted to SHZ rules, we’d lose more of our heritage buildings. Owners no longer able to build behind their existing house may instead choose to build over the existing building, or seek permission to demolish entirely.

Public input closes on the 12th of July, 2019, you can find more information and submit here.

About Vernon Tava

Barrister. Lives in Auckland, New Zealand.
This entry was posted in Auckland Council, Waitemata Local Board and tagged , , , , , , . Bookmark the permalink.

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