As we head towards the closing of the last Auckland Unitary Plan Independent Hearings Panel (‘Panel’) hearing for the Proposed Auckland Unitary Plan (‘PAUP’), it is timely to consider the next steps to occur before the PAUP becomes operative and consider some of the lessons learnt so far.
The projected timeframe
To date, over 55 topics have been through the streamlined Panel process of prehearing meetings, mediation, expert conferencing, evidence exchange and hearing (with the standard 10 minute presentation time). At the time of writing this article, there were just four topics left to be heard, with the last Panel hearing due to occur in mid-May 2016.
22 July 2016
Once the last hearing closes, the Panel will have a quick sprint to make its recommendations to Auckland Council by 22 July 2016. However, the Panel has the ability to release its recommendations on a topicbytopic basis once a hearing has closed, so Council could start receiving recommendations from the Panel sooner than the 22 July deadline. The Panel and/or Council may seek an extension to this deadline from the Minister for the Environment, but this will need to be applied for prior to the 22 July deadline and can only be extended for up to 1 year after the original date.
Interestingly, there is no requirement for the Panel to inform the public that it has provided its recommendations to Council, nor is there any requirement for the Panel to make its recommendations publicly available. However, Council must make the Panel recommendations publicly available at the same time as publicly notifying its decisions on the PAUP (as discussed below).
19 August 2016
Auckland Council has 20 working days after receiving a recommendation from the Panel to publicly notify its decision on the PAUP. Council may accept the Panel’s recommendation, or reject the recommendation and provide an alternative solution.
Based on the Panel’s 22 July 2016 deadline, the last day for Council’s final decision would be 19 August 2016. However, Council may seek an extension from the Minister. Again, this request must be made before the original deadline is due.
16 September 2016
Following the public notification of Council’s decision, submitters will have 20 working days to lodge an appeal. Based on the 19 August 2016 deadline for Council’s final decision, the last day to lodge an appeal would be 16 September 2016. Of course, this deadline could be earlier if the recommendations and final decisions are released sooner.
Generally, where the Council accepts a Panel’s recommendation with no further amendments, appeal rights are limited to the High Court on matters of law. An appeal as of right to the Environment Court is possible where Council rejects a Panel recommendation and instead provides an alternative solution or for decisions not supported by submissions on the PAUP.
Projected operative date
Some rules of the PAUP already have legal effect (for example rules protecting water, air, and soil; significant indigenous vegetation or historic heritage). No other provisions of the PAUP should be treated as operative until Council’s decision on the Panel’s recommendations are publicly released and Council has resolved the date on which the PAUP, or each part of the PAUP, will become operative.
You can get a lot done in 3 years
If the Hearings Panel’s recommendations are released to Council by 22 July 2016, it will be 50 working days shy of the 3 year anniversary of the PAUP being publicly notified. When you consider Council received more than 93,000 primary submission points from more than 9,400 primary submitters, and that further submissions contained over 1,400,000 additional points, the progress towards an operative unitary plan is impressive.
The proactive use of prehearing meetings, mediations, expert conferencing and offline conversations has assisted with resolving a significant number of issues prior to hearings and has forced parties to focus their key issues.
While the truncated, streamlined time period has been testing at times, the process has encouraged parties to work collaboratively and creatively. Expect to see more streamlined planning processes in the future if the streamlined planning process remains in the RMA amendments currently being considered by Select Committee.
Technology is your friend
The PAUP has been designed as an “EPlan”; a first for Auckland Council. The EPlan contains the Regional Policy Statement as a separate section, with the Regional and District provisions incorporated into the following sections. A search tool is also available that allows users to search a specific property to obtain basic applicable planning provisions (such as zones, precincts and overlays). This will be useful for most “mums and dads” who use the PAUP. Larger property developers will need to dig deeper because the search tool does not provide the relevant Auckland-wide rules (such as earthworks, vegetation management and stormwater) or any provisions relating to designations.
This article was written by Natalie Amos, an Associate in Kensington Swan’s Resource Management team, together with Nicky McIndoe, Partner, and originally appeared in Inside Resources.