The Proposed Auckland Unitary Plan (“PAUP”), currently well into its hearings phase, is the single largest planning exercise ever undertaken in New Zealand. It will have significant implications for those with property interests in Auckland. A controversial aspect of the PAUP is its approach to heritage and character protection, especially the pre-1944 building demolition control overlay.
The overlay has returned to the spotlight with the release of the Independent Hearings Panel’s Interim Guidance on the topic (which suggests that the overlay is not justified), and the Council’s response to the Panel’s Interim Guidance (the Council has reaffirmed its continued support for the pre-1944 overlay).
The pre-1944 overlay
Under the PAUP, a blanket pre-1944 demolition control overlay covers large areas of Auckland. For properties within the overlay, the total or substantial demolition (more than 30% by volume) or removal of any building constructed before 1944, and the construction of new buildings or relocated buildings at the rear of any existing pre-1944 building, require resource consent as a restricted discretionary activity. Such application is expressly removed from the general rule in the PAUP against public or limited notification of restricted discretionary activities. By implication, we think this gives a clear direction as to how notification of these applications will be assessed by Council officers. Because the pre-1944 demolition control rule relates to historic heritage, it took immediate legal effect when the PAUP was notified.
Auckland Council has stated that the overlay was developed in response to concern over the loss of unknown historic character buildings in Auckland. Council policy documents confirm that its intention is to support the protection of Auckland’s historic character in order to contribute to the city’s overall amenity, design and attractiveness.
The overlay has been roundly criticised by a number of submitters, including Property Council New Zealand, as being too broad brush and arbitrary (i.e. using an arbitrary date to capture all buildings, regardless of their historic character merit) and for unreasonably limiting intensification, growth and development.
The Panel’s Interim Guidance and the Council’s response
The Independent Hearings Panel held hearings on the pre-1944 overlay in June 2015. On 15 July the Panel released its Interim Guidance on the overlay, stating that:
- The overlay is placing unnecessary constraints and burdens on landowners wanting to develop their properties.
- There is a lack of robust analysis and evidence to justify the inclusion of the overlay in the PAUP.
- There is no evidence to suggest that pre-1944 buildings are at any significant risk of demolition or that areas where there are pre-1944 buildings are at risk of losing their character.
- The overlay is inconsistent with the Council’s compact urban form strategy
Given the above, the Panel stated that it is not convinced of the need for the consenting regime established by the pre-1944 overlay provisions. The Panel recommended that the Council reconsider its approach, and if it wants to pursue the overlay, it do so through a separate plan change process that includes a robust policy analysis.
Despite the Panel’s Interim Guidance, the Council has recently confirmed its continued support for its current policy approach for the pre-1944 overlay.
Where to from here?
When released, the Interim Guidance cast serious doubt on whether the pre-1944 overlay would survive the Unitary Plan process. The Council’s recent response indicates its commitment to pursue the overlay as part of its character/heritage controls.
The Panel’s Interim Guidance is not binding on any parties, including the Council, and does not constitute its final recommendation to the Council. (The Council will make decisions on the PAUP late next year, based on recommendations from the Panel.) However, the bluntness of the guidance - the Panel has clearly conveyed its opposition to the overlay on several levels - does not leave much doubt as to what the Panel’s final stance will likely be. The Panel’s guidance also signals that any Council decision adopting something resembling the current overlay rules may be vulnerable to legal challenge through appeals.
The Panel has directed the Council to provide revised overlay maps by the end of October 2015, which means there will be changes to the spatial extent of the overlay (media reports have suggested that less than half of the area currently covered by the pre-1944 overlay will remain once the new maps are released). The Council is currently undertaking survey work in support of the revised mapping exercise, which includes assessing the character merit of every house subject to the overlay. It remains to be seen whether this more nuanced approach (as opposed to the blanket overlay that was originally imposed) will be enough to convince the Panel, and submitters, of the overlay’s merit.
Submitters with site-specific concerns relating to the overlay’s mapping, for example the inclusion or exclusion of a property within the overlay, will have the opportunity to attend hearings on these matters later in the year.