Vernon Tava

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.    Continue reading →