051-054 hrg - auckland council - legal submissions

8/20/2019 051-054 Hrg - Auckland Council - Legal Submissions

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BEFORE THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL

IN THE MATTER of the Resource

Management Act 1991

and the Local

Government

Auckland Transitional

Provisions) Act 2010

AND

IN THE MATTER o the Proposed

Auckland Unitary Plan,

Topics 051-054 Centre

Zones, Business Park

and Industry zones,

Business activities and

Business controls

LEGAL SUBMISSIONS ON BEHALF OF AUCKLAND COUNCIL

Hearing dates: Monday 7 September 2 15 to Friday September 2 15

Simpson Grierson

Barristers Solicitors

8 Loutit T Fischer

Telephone: +64-9-358 2222

Facsimile: +64-9-307 331

Email : tim .fischer@sim psongrierson .com

DX CX10092

Private Bag 92518

Auckland


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MAY IT PLEASE THE PANEL:

1 INTRODUCTION

1 1

This

is

a hearing

of

submissions and further submissions received by the

Auckland Council

Council)

on the Proposed Auckland Unitary Plan

PAUP)

Topics 051-054 Centre Zones, Business Park and Industry zones,

Business activities and Business controls Business Topics).

1.2 The

PAUP divides Auckland s business areas into the following ten zones:

(a) City Centre;

(b) Metropolitan, Town, Local, and Neighbourhood Centre zones;

(c) Mixed Use, General Business and Business Park zones; and

(d) Heavy and Light Industry zones.

1.3

The

Business Topics concern the district plan provisions that apply in all

of

these zones except the City Centre Business zones) which has already

been heard through Topic 050 City Centre

The

Business Topics also

include some other related provisions which are explained below.

1.4

These legal submissions on

behalf of

the Council address the submissions

and evidence on the following PAUP provisions that come within the

Business Topics:

(a) 0 .3 Business

zones

objectives and policies;

(b) 1 3 Business zones - activity tables, notification, land use controls,

development controls , assessment criteria , special information

requirements;

(c)

E.4.5 Identified Growth Corridors overlay objectives and policies;

(d)

E.4.4 City Centre Fringe

Office

overlay objectives and policies;

(e)

J.4.5 City Centre Fringe

Office

overlay rules;

(f) H.5.2.3.2 Subdivision

controls

business zones; and

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(g) Planning Maps - Building Frontage: General Commercial and Key

Retail Frontages.

1 5 The Council s evidence and legal submissions also address the following:

1

2

(a) Site or area specific height requests

Site or area specific height requests for the Business zones have

been variously allocated to the Business Topics and Topic 078

Additional Zone Height Control The Council has elected to produce

evidence in relation to all site or area specific height requests at the

earliest opportunity, that being the Business Topics.

1

Submitters will

have the opportunity to respond to the Council s evidence either as

part o the Business Topics or through Topic 078 Additional Zone

Height Control

b) Affordable housing height bonus

The Council

is

proposing to reintroduce a height bonus in return for

provision of affordable housing through Topic 61 Affordability This

issue has been substantively discussed as part

o

that topic.

However, given that the proposed provisions provide for bonus height

in the Business zones, they are included in the Council s evidence so

that they can

be

addressed by interested parties to the Business

Topics.

(c) Retirement villages

The Panel s Procedural Minute No.13

2

recorded agreement between

the parties that the Special Purpose Retirement Village zone should

be removed in favour o specific retirement village provisions in the

Residential and Business zones. Submitters to Topic 61 Retirement

Villages and Affordability were granted standing to participate in the

Business Topics. These matters have been addressed in the

Council s evidence accordingly.

This approach was noted in the Pre-hearing Meeting Report for

Topic 078 Additional Zone Height Control

The

Council also lodged a memorandum with the Panel

on 1

August 2015 to further explain its approach and this

was uploaded to the Panel s website.

Topic

61

Retirement Villages and Affordability, 5 June 2015.

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d) Dilworth Terrace View Protection Plane

The Panel has indicated

3

that it would like the parties to consider the

effects of amending the Dilworth Terrace View Protection Plane as

proposed in evidence y Ngati Whatua Orakei Whai Rawa Limited

during Topic 050 City Centre Parties without standing in the

Business Topics were allowed to submit evidence and appear before

the Panel only

in

relation to the Dilworth Terrace View Protection

Plane. These matters have been addressed in the Council s evidence

accordingly.

(e)

Industrial rezoning

At the Topic 035 ir Quality hearing the Panel indicated it would be of

assistance

if

the Council produced evidence for Industry rezoning

requests at the same time as the evidence for the Industry zone-wide

provisions. The rezoning submissions have generally been allocated

to Topic 81 Rezoning and Precincts Some submitters have

responded to the Council s evidence through the Business Topics

while others have indicated they will respond through Topic

81

Rezoning and Precincts

1 6 There are 3,318 primary submission points and 30,544 further submission

points allocated to the Business Topics. The Parties and Issues Reports

and the Submission Point Pathway Reports provide further information

about the submissions.

1 7

Economic experts

for

the Business Topics participated

in

informal

caucusing i.e. not directed

y

the Panel in terms section 133

of

the Local

Government (Auckland Transitional Provisions) Amendment Act 2013

LGATPA).

There was no facilitator and the process was coordinated by

the Council

for

the purpose of sharing the Council s economic analysis,

modelling techniques, and getting early feedback form the various experts .

A joint statement was prepared by the experts involved and has been

uploaded to the Panel s website . The joint statement is concerned with the

3

Email from Mr Jellie, 10 August 2015.

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economic analysis and modelling spatial patterns o retail capacity

surplus/deficits. It also addresses economic principles for retail location and

principles for appropriate IGC location and the location of retail within IGCs.

1 8

Panel-assisted mediation took place for the Business Topics on 8-12 June,

29 June - 2 July and 15 July 2015. The parties who attended mediation

were able to reach agreement about the wording

o

many

o

the provisions.

However there are some significant outstanding issues raised

in

the

evidence o submitters, which is not surprising given the breadth o the

Business Topics and the number o submitters involved. It

is

notable that

there are very few high level philosophical challenges to the Council 's

overarching strategy for the Business zones.

1 9 Given this broad scope, and the large number o submission points, these

legal submissions address the key differences between what is sought by

submitters and the position o the Council.

1 10 The approach taken

in

these legal submissions is therefore not to address all

matters raised in submissions or evidence on the Business Topics. Nor do

they discuss all matters referred to in the Council's evidence or agreed through

mediation. By not referring to particular submissions or evidence, this should

not be taken to indicate the Council's acceptance of or agreement to the

matters raised. In some cases the Council's position is simply reflected

in

revised provisions attached

to

the Council's evidence.

1 11 The Council's planning witnesses have prepared a number of iterations of the

Business Topic provisions. The Council's position for this hearing is primarily

represented

in

the revised plan provisions attached

to

Mr Wyatt's rebuttal

evidence. Where these legal submissions refer

to

plan provisions

by

number

they are referring to the numbers

in

the provisions attached to Mr Wyatt's

rebuttal evidence unless indicated otherwise.

1 12 However there are also some matters which fall outside the text for the

Business zones e.g changes to the planning maps, subdivision provisions,

affordable housing provisions and the Dilworth Terrace View Protection

Plane. For these matters the Council's position is reflected

in

the evidence

o the relevant witnesses and a consolidated version o all changes

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proposed by the Council will be included with the Council's closing

remarks.

1 13

The Council's legal submissions are structured as follows:

(a) Evidence;

(b) Statutory framework and Interim Guidance ;

(c) Auckland Plan;

(d) Regional Policy Statement and centres plus ;

(e) Business zones objectives and policies;

(f) Identified Growth

Corridors

objectives, policies, rules and mapping;

(g) Business zones

land

use rules and assessment matters;

(h) City Centre Fringe Office overlay objectives, policies and rules;

(i) Height;

U Affordable housing height bonus;

(k) Building Frontage: General Commercial and Key Retail Frontages;

I) Subdivision controls business zones;

(m) Retirement villages;

(n) Dilworth Terrace View Protection Plane;

(o) Industrial rezoning; and

(p) Conclusion .

1 14

A short overview

of

the relevant provisions is provided

in

the relevant sections

of these submissions. They are also explained in the evidence of the Council's

witnesses which are set out below.

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2

EVIDENCE

2 1 As the Panel will be aware, the Council is calling evidence from 6 expert

witnesses in support of its position on the Business Topics. The number of

witnesses that are required to

be

called has been influenced by the inclusion

of

evidence on a large number of site specific matters such as rezoning,

Additional Zone Height Control, and Key Retail and General Commercial

Frontages. A number of other witnesses are also required as a result of the

inclusion of the additional matters described above within the Business Topics.

2 2

So as to use the hearing time allocated to the Council efficiently, the Council

intends to call these witnesses together in their areas of expertise where

possible, and in the following order:

Planning

a) Matt Bonis - Commercial activity strategy and implementation, role

and function

of

centres

b) Jarette Wickham Industrial provisions, evaluation and

recommendations for site specific heavy industry rezoning

submissions

c) Jeremy Wyatt Background, Business Park zone, City Centre Fringe

Office overlay, miscellaneous matters

Transport

d) Kevin

Wong Toi

Transport planning

e) Karl

Hancock

Identified Growth Corridors Transport engineering

Economics

f) Greg Akehurst Retail and office distribution economics

g) Susan Fairgray Economic modelling

Urban Design and Height Planning

h) lan Munro Commercial zone built form objectives, policies and rules

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(i) Sarah Coady - Design statements and spatial application of Key

Retail and General Commercial frontages

U Trevor Mackie - Building height in commercial and industrial zones

(k) Hannah Thompson, Hamish Scott, Lee-Ann Lucas, Douglas Sadlier,

Ross Moffatt - Evaluation and recommendations for site specific

height submissions

lanning Miscellaneous

{I

Deanne Rogers - Retirement villages

(m) Anthony Traub Industrial subdivision planning

(n) David Mead - Affordable housing height bonuses affecting

commercial zones

(o) Panjama Ampanthong Dilworth Terrace Houses Viewshaft

(p) George

Farrant

Wind control

Industrial - Air Quality and Rezoning

(q) Mike Harvey - Heavy industry rezoning submissions and

development control (buffer rule)

(r) Douglas Sadlier, Joy

La

Nauze, Roger Eccles, Dave Paul and Jo Hart

- Evaluation and recommendations for site specific heavy industry

rezoning submissions

3 STATUTORY FRAMEWORK AND INTERIM GUIDANCE

3 1 The legal framework applying to the PAUP under the LGTPA and the

Resource Management Act 1991 RMA) will be very familiar to the Panel.

This framework has been

set

out previously in various legal submissions

on behalf of the Council in other hearing topics.

3.2 Therefore the relevant statutory tests when assessing the PAUP s district plan

provisions are included in Attachment A to these legal submissions for the

Panel s convenience. We do not outline the statutory tests

in

any detail in the

body of these submissions. We will however specifically address matters

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relating to trade competition or the effects o trade competition which are

particularly pertinent given the Panel's Interim Guidance on Topic 013 8 .1

Commercial and Industrial Growth.

3.3 Section 83.1 of the proposed RPS includes provisions that seek to sustain and

enhance the function, role and amenity o

centres. Such provisions are

generally expressed to relate to effects beyond those effects ordinarily

associated with trade effects or trade competition . The Panel's Interim

Guidance commented on this approach as follows:

Resource management policies should not be concerned with the

viability of activities, including centres of activities. The proposed

policies

to

protect centres from adverse effects beyond those effects

ordinarily associated with trade effects

or

trade competition appear to

be seeking to protect the viability of those centres and thus are contrary

to s61(3) RMA.

3.4 The Council has reflected upon the views expressed by the Panel in the

Interim Guidance and the issues raised by the Interim Guidance. In my

submission, the Council's approach in 83.1, which has been mirrored in the

Business Topic provisions which give effect to the RPS, is lawful and

appropriate in the circumstances.

3.5 The starting point is section 75(3) o the RMA which provides:

n

preparing

or

changing any district plan, a territorial authority must not

have regard to trade competition or the effects of trade competition.

3.6 This provision was considered by the High Court

in General Distributors v

Waipa District Council (2008) 5 ELRNZ 59. The High Court interpreted the

provision with reference to the decision o the Supreme Court in Discount

Brands Ltd v Westfield (NZ) Ltd [2005] NZSC 17:

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[93] It follows that section 74(3) RMA does not preclude a territorial

authority preparing

or

changing its district plan, from considering those

wider and significant social and economic effects which are beyond the

effects ordinarily associated with trade competition. Indeed, it is obliged

to do so in terms of s 74(1).

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[94] ... Local authorities promulgating plans

or

changing plans must not

have regard to trade competition or to the effects which are normally

associated with trade competition. he promotion o town centre

consolidation and the dispersal

o

commercial activity however are

legitimate resource management issues because they can raise

significant social and economic concerns. Provision can properly be

made for them in district plans.

3.7 Therefore, expressing objectives and policies to relate to effects beyond those

effects ordinarily associated with trade effects or trade competition, reflects the

findings

o

the High Court

in General Distributors

and the Supreme Court

in

Discount Brands.

In

my submission this approach does not contravene

sections 61(3) and 75(3) o the RMA. To the contrary the approach adds a

necessary qualifier to ensure that regard is not had to matters precluded from

consideration under the RMA and the

Discount Brands Ltd

decision.

3.8 The cases above indicate that the relevant policies in the RPS and the district

plan provisions are addressing legitimate resource management issues in

relation to social and economic wellbeing. These are important matters under

Part 2

o

the RMA which has critical importance when exercising plan-making

powers and functions under the RMA.

4

UCKL ND PL N

4 1 While there are a range o other planning documents relevant to the PAUP, a

key document for the purposes o evaluating the merits of the PAUP district

plan business provisions is the Auckland Plan.

4.2 The Auckland Plan is the spatial plan for Auckland prepared under section

79

o the LGATPA. Its legal relevance is that it is a strategy prepared under

another Act that must

be

had regard to under section 74(2)(b)(i) of the RMA

when considering the Business Topic provisions.

4 3

The Auckland Plan sets a 30 year strategic direction for Auckland. The

provisions o

the Auckland Plan of most relevance for this hearing are

discussed in

the evidence of the

Council s planning

witnesses. These

provisions can generally be found

in

Chapter 6 Auckland s Economy and

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Chapter 10 Urban Auckland. Provisions in other Chapters o the Auckland

Plan are also relevant to the Business zones.

4.4

The Auckland Plan addresses some matters that are o fundamental

importance to the Business zone provisions and the way that Auckland will

develop and grow. In particular this includes provision for a hierarchy and

network o centres to accommodate and manage intensification and

commercial growth and to manage industrial land to promote industrial

activities. The Council has had regard to this approach when developing the

PAUP. This approach is also reflected the RPS which explained further below.

4.5

The relevant provisions are addressed in detail in the evidence o Mr Bonis on

behalf

o

the Council.

4

5 REGIONAL POLICY STATEMENT AND CENTRES PLUS

5 1 The relevant parts o the RPS are set out in the evidence o Mr Bonis.

5

5.2 We will not repeat Mr Bonis' summary in full. However key objectives and

policies from the RPS relate to providing for growth in a quality compact urban

form, quality built form, development capacity and supply o land for urban

development, and social infrastructure.

5.3

Section B3.1 of the RPS is intended to reflect Plan Change 6 to the operative

Auckland Regional Policy Statement

6

It also has regard to the hierarchy and

network o centres set out in the Auckland Plan. This high level approach has

influenced the Council's position on most o the provisions in all Business

zones from objectives down to land use and development controls . It is

fundamental to the Council's position on the Business Topics.

5.4

In summary Section

B3 1

embodies a centres plus strategy which means that

the policy direction

is

for commercial growth to be located within the hierarchy

o centres plus identified growth corridors

(IGCs)

and other locations where

appropriate. The centres plus strategy in the RPS includes a preference for

commercial growth in centres rather than IGCs or other out-of-centre locations:

4

Mr Bonis, evidence-in-chief, part 7.

5

Mr Bonis, evidence-in-chief, para

7 2

6

Change

6

was developed by the legacy councils and was ultimately resolved by Environment Court consent

order. This was a long and difficult process involving a large number of submitters.

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commercial activities are encouraged in centres and enabled where

appropriate on IGCs. A key aspect of the strategy is to sustain and enhance

the function, role and amenity of centres having regard to their position in the

hierarchy or network of centres.

5 5 The centres strategy was addressed through

Topic 013 83 1 Commercial and

Industrial Growth which was notable for the very high level of consensus

reached between the many interested parties. These parties included many

submitters with a direct and substantial interest

in

Auckland retailing.

5 6 Importantly the Interim Guidance for Topic 013 83 1 Commercial and Industrial

Growth states that the Panel supports commercial growth on transport

corridors as well as

in

centres .

5 Section B3 1 of the RPS should be given effect to when determining the district

level provisions within the Business Topics. The centres plus approach is

important to all Business zones because the scale and mix of activities

in

any

Business zone could affect the function , role and amenity of the other Business

zones. The Business zones work together as a package to provide for the

current and future commercial and employment needs of Aucklanders and

achieve a compact quality urban form

in

accordance with the Council's

strategic approach. IGCs are discussed separately below.

5 8 The centres plus approach is reflected from the top down in the Business

zones, from high level objectives and policies which address the role and

function of particular zones, down to rules and development controls that more

specifically identify the scale and mix of activities generally appropriate in each

of

the Business zones.

6 BUSINESS ZONE OBJECTIVES AND POLICIES

Overview

6 1

The Business zone descriptions, objectives and policies are included in

Chapter

3

of the PAUP. Submissions and evidence

on

these provisions are

variously addressed in planning evidence on behalf of the Council from Mr

Wyatt, Mr Bonis and Ms Wickham. High level urban design matters are

addressed

in

the evidence

of

Mr Munro.

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6.2 The nine Business zones included n Chapter 3 are:

(a) Metropolitan, Town, Local, and Neighbourhood Centre zones

Centres zones);

(b) Mixed Use, General Business and Business Park zones ; and

(c) Heavy and Light Industry zones Industry zones).

6.3 Chapter 3

s

structured to first provide broad descriptions, objectives and

policies that apply generally to the Centres zones and the Mixed Use, General

Business and Business Park zones. These general provisions are followed by

zone descriptions, objectives and policies for each of the nine Business zones.

The description for each zone identifies the general features and refers to

existing and potential land uses.

6.4 The provisions n Chapter

3

need to be considered with specific Auckland

wide objectives and policies. Auckland-wide provisions with particular

relevance include the transport provisions n C1.2 and the general provisions n

C1.7 which address matters such as lighting, noise and signs.

6.5

The objectives and policies relating to the Business zones provide a framework

for the management of activities n business areas beyond the City Centre.

This framework reinforces the role of centres as focal points for business and

community investment and recognises the need to provide suitable locations

for specific industries. As mentioned above the PAUP embodies the centres

plus approach to the distribution and management of commercial and

industrial growth.

6.6

The concept

of

a hierarchy

of

centres is fundamental to the Business zones.

It describes a regulatory framework for a network

of centres that are ranked

from those that have regional significance to those that have local importance

to the immediate community and passers-by. A centre's place n the hierarchy

depends on a number of factors including size, location, access to public

transport, scale of built form, existing activities and future activities anticipated

n

the centre, surrounding environment and growth expectations.

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6.7 n addition to the Centres zones the PAUP includes the following Business

zones:

a) Mixed Use zone

Provides for residential activities and smaller scale commercial

activities. The zone is typically located around centres and along

sections o the rapid and frequent service network. Given their

proximity to centres these zones may

in

some cases provide for

intensification and residential and commercial consolidation

supporting centres.

b)

General usiness zone

Provides for business activities that may be less appropriate for or

unable to locate in centres. This includes activities ranging from light

industrial to limited office, large format retail and trade suppliers. The

zone is proposed in few locations across the Region. Where the

zone is located around centres it may support and reinforce the

centre .

c) usiness Park zone

Provides a location where office-type business activities can group

together

in

a park or campus like environment. The zone enables

moderate to intensive office activities and some ancillary services.

The zone has been proposed for five locations and is expected to

have limited future application.

d) Light Industry zone

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Provides for industrial activities that do not generate objectionable

odour, dust or noise. This includes manufacturing, production,

logistics, storage, transport and distribution activities.

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(e)

Heavy Industry zone

Provides for industrial activities that may produce objectionable

odour, dust and noise emissions. Sensitive activities are not

appropriate

in

the zone and the zone has a functional standard

o

amenity.

6 8

Each zone plays an important part in the PAUP s strategy for distribution and

management o commercial and industrial growth. The objectives and policies

for the Business zones generally seek to sustain and enhance the function,

role and amenity of centres within the hierarchy. This gives effect to the RPS

distributional strategy.

6 9 A number o amendments to the PAUP were agreed at mediation or have been

proposed by the Council and are not disputed in submitters evidence. These

amendments are shown in the revised version o the plan provisions attached

to the rebuttal evidence o Mr Wyatt.

n

summary the key changes include the

following:

• Amend the objectives and policies o the Centres zones to reiterate the

growth, scale and intensity implicit

in

the hierarchy

o

centres and

associated regeneration and intensification initiatives

• Amend the objectives and policies o the Centres zones to confirm the

functional and social amenity outcomes that Centres should exhibit

according to their place

in

the hierarchy

• Amend the objectives and policies o the Business zones to ensure that

development is managed appropriately with a focus on design quality for

developments that have a greater prominence of visual effects

• Amend the General Business zone provisions to make it clear that General

Business zone activities should not

be

detrimental to centres

• Amend the Business Park objectives and policies by splitting them to

distinguish between existing and new business parks (the latter are not

encouraged)

• Amend the Light Industry zone description and add new policies to

acknowledge the presence o existing lawfully established commercial

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activities and existing heavy industries within the Light Industry zone and to

recognise and provide for their ongoing operation

• Amend the Industry zone policies to consolidate and emphasise that non

industrial activities that do not support the primary function

o

the zones

should be limited or avoided

• Amendments for clarity and consistency

6 1 0

The revised provisions are similar n their general approach to the notified

PAUP. There are no major policy shifts - rather the provisions have been

amended to align with the higher level provisions and to clarify and refine the

purpose o the zones and their position

n

the strategic framework.

6 11

Many

o

the Council s proposed amendments are supported by submitters

or

have not been disputed in evidence . However submitters evidence proposes

some additional amendments to the objectives and policies. The number

o

agreed amendments to the objectives and policies has narrowed the issues

considerably.

6 12 The evidence from submitters raises the following key outstanding issues

which are responded to in the Council s rebuttal evidence and addressed

under separate headings below:

(a)

Residential activities within centres;

b) Key retail and general commercial frontages;

(c)

Encouraging integrated retail developments n centres;

d)

Supermarkets

n

the Mixed Use and Light Industry zones;

(e) Department stores in Local Centre zone; and

(f)

Functional and operational requirements.

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Policies Residential activities within centres

6.13 In his planning evidence Mr Lala

7

seeks changes to Policy

03

.1.2 to delete the

reference to managing reverse sensitivity effects which then appears to have

been incorporated into his revised Policy 03.1.1 Ob He also seeks to revise

Policy 03 .1 1 Ob to manage the effects of ground floor residential activities

within centres rather than discouraging dwellings at ground floor street

frontage as proposed

by

the Council.

6.14

The Council's position is that Mr Lala's proposed changes are not necessary or

appropriate. The reasons for this are set out in the rebuttal evidence of Mr

Wyatt.

In particular Mr Lala's proposed changes narrow the consideration of

reverse sensitivity to residential activity at ground floor while the Council's

approach applies more widely. The Council's approach to discouraging

dwellings at ground floor is more likely to achieve appropriate centre amenity

and reduce commercial growth constraints. Mr Wyatt agrees that Policy

03.1.1Ob would benefit from explicitly enabling dwellings above ground floor in

Centre zones.

Policies Key retail and general commercial frontages

6.15

In his planning evidence on behalf of the Property Council Mr Lala proposes a

softening of Polices 03.3.7a and 03.4.4a which require buildings to generally

front the street where they are subject to the Key Retail or General

Commercial Frontage. He also seeks to relax the related rules by providing

for a variety of exceptions to the frontage requirements.

6.16 The Council's position is that this approach would not give effect to the RPS

by

achieving a quality built form and is unnecessary because any departures from

the Council's proposed policies can be assessed on their merits through the

resource consent process. These reasons are set out further in the evidence

of Mr Munro on behalf of the Council.

9

7

Property Council 6212, Monaro Properties and Takapuna Properties 3776, Crown Corp 4353 , BHV 4368,

Fairmont Investment 4287, Monte Holdings 8968, Aryan Equities 9377, Stingray Bay Farms

6631

, G&C Worger

Family

Trust no

submission number, AJK Inves tments- no submission number, Kauri Tamaki 5823, Tamaki

Redevelopment 4854, Orakei Bay Village 4830,

88

Broadway 3449.

8

Mr Wyatt, rebuttal evidence, part 6

9

Mr Munro, rebuttal evidence, paras 6.1-6.5.

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olicies Encouraging integrated retail developments in centres

6.17 In their planning evidence on behalf of PSIPIB Ltd and ONZ Ltd Ms Carvill and

Ms Tait recommend changes to Policy 03.3.9 to encourage integrated retail

developments in Metropolitan Centre zones. Foster et al seek similar relief on

behalf o Progressive Enterprises Ltd, Scentre (New Zealand) Ltd, Bunnings

Ltd , The National Trading Company o New Zealand Ltd and Kiwi Income

Property Trust Key Retailers Group). The Council's proposed version o the

policy focuses on supermarkets and department stores.

6.18

The Council's position is that it is not necessary or appropriate to refer to

integrated retail developments in the policy. The reasons for this are set out in

the evidence

o

Mr Munro.

1

In

particular integrated retail developments do not

have a tendency to locate out-of-centre and they are a configuration o retail

which should not necessarily

be

encouraged in preference to alternative

configurations such as a main street .

6.19 Foster et al also seek changes to Policy 03.3.9 to require the functional and

operational requirements o supermarkets, integrated retail developments and

department stores to

be

balanced against the need to achieve a quality built

environment. The Council's position is that this is not appropriate because the

word balanced implies that there is an inherent tension and equal trade-offs

to be made between the two. The reasons for this are further explained in the

evidence of Mr Munro who considers that the Council's proposed wording

(which requires both functional and built quality aspects to be recognised ) is

more appropriate.

olicies

Supermarkets in the Mixed Use and Light Industry zones

6.20 Planning evidence from Foster et al on behalf o the Key Retailers Group

seeks to insert a new policy for the Mixed Use zone that recognises the

positive contribution o supermarkets and explicitly enables supermarkets

within the Mixed Use zone . A policy is also sought to enable supermarkets

in

the Light Industry zone.

10

Mr Munro, rebuttal evidence, para 12.1-12.5.

Mr Munro, rebuttal evidence, para 13.2-13.4.

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6.21 The Council is opposed to the proposed policies for the reasons set out in the

rebuttal evidence of Mr Bonis

12

and Ms Wickham

13

.

Mr Bonis considers that

the Mixed Use zone policy is inappropriate because it encourages

supermarkets regardless o scale and does not provide for management of the

resultant environmental effects.

Ms

Wickham considers that it is not

appropriate to enable supermarkets in

the Light Industry zone due to

questions raised in the economic rebuttal evidence about the submitters'

projected demand for supermarkets, the scarcity o land zoned for light

industry activities, the distance from residential areas for some areas o Light

Industry zone, potential reverse sensitivity effects on light industry activities

and failure to give effect to proposed RPS provisions providing for the efficient

use of scarce industrial land for industrial activities.

olicies Department stores n Local Centre zones

6.22 Planning evidence from Foster et al on behalf o the Key Retailers Group

seeks to amend Policy 03.5.6 to provide explicit recognition o department

stores in Local Centre zones, and provide for their functional requirements.

6.23 The Council is opposed to this approach for the reasons set out in the rebuttal

evidence

o

Mr Bonis.

14

He

considers that department stores do not represent

a necessary component o local centres such that they require specific policy

acknowledgement o functional requirements and recognition .

Policies and assessment criteria Functional and operational

requirements

6.24 Planning evidence on behalf of the Key Retailers Group and Restaurant

Brands seeks to amend references to functional requirements

in

various

policies and assessment criteria by adding a reference to operational

requirements . They argue that the two terms are different.

6.25 This question is addressed in the rebuttal evidence o Mr Wyatt on behalf o

the Council. Mr Wyatt

15

notes that this issue has been discussed in other

12

Mr Bonis, rebuttal evidence, paras 5.1-5.8.

13

Ms Wickham , rebuttal evidence, part 10.

14

Mr Bonis, rebuttal evidence, paras 7 1 -7.2..

15

Mr Wyatt, rebuttal evidence, para 11.2.

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Topics and the Council has consistently taken the position that functional

includes operational . Mr Wyatt supports this view.

n

doing

so he

notes that

the Oxford English Dictionary uses the two terms as synonyms and he

considers that there is no meaningful distinction between the two. For these

reasons the Council's position is that functional

is

sufficient and appropriate

without the word operational . This approach will also maintain consistency

with other parts o the plan.

7 IDENTIFIED GROWTH CORRIDORS - OBJECTIVES POLICIES RULES

AND MAPPING

Overview

7 1

The objectives and policies for IGCs are included

in

Chapter E4.5 o the

PAUP.

7.2 IGCs are an overlay mechanism in the PAUP which give effect to the centres

plus approach o the RPS by providing a release valve for new out-of-centre

commercial activities where appropriate. The centres plus approach and the

outcome of

Topic 013 83 1 Commercial and Industrial Growth

has been

described above and I won't repeat that here.

7.3 The PAUP did not include any rules for IGCs but a suite of rules and

assessment matters were agreed at mediation and are included in

the revised

provisions attached to Mr Wyatt's rebuttal evidence. Similarly the PAUP

included only one IGC at Lincoln Road and the parties are in agreement that

several more should

be

added. There are also a number o others that are

disputed between the parties. The Council supports five IGCs and there are

some submitters who consider this too many while others consider that it

is

not

enough.

7.4 A number of amendments to the PAUP in relation to IGCs were agreed at

mediation or have been proposed by the Council and are not disputed in

the

submitters' evidence. These amendments are shown in the revised version

o

the plan provisions attached to the rebuttal evidence o Mr Wyatt.

n

summary

the key changes include the following:

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• Amend the objectives and policies to clarify the matters that should be had

regard to when applying the IGC overlay and assessing applications for

resource consent

• Provide activity status for certain types

o

retail

in

IGCs to apply if it is more

lenient than the underlying zone

• New matters of discretion and assessment criteria to manage the effects o

large retail

in

IGCs

• Inclusion o IGCs at Wairau Road, New North Road and Stoddard Road

7 5 Submitters evidence proposes additional amendments in relation to IGCs

which are not agreed and are therefore

in

dispute. However, putting aside the

mapping, number and location of IGCs, there are very few material disputes as

to the plan provisions for IGCs. The evidence from submitters raises the

following key outstanding issues which are responded to

in

the Council s

rebuttal evidence:

(a) Overlay description;

(b) Activity status for retail and trade suppliers; and

(c) PotentiaiiGCs

Overlay description

Submitters evidence

7 6

In

planning evidence

on

behalf o PSPIB Ltd and DNZ Ltd Ms Carvill and Ms

Tait seek that the overlay description

be

amended to explicitly state that IGCs

are to provide overflow capacity for large format retail activities unable to

locate in centres, and without adversely impacting on the transport function of

the corridor, or the function and vitality o centres.

16

This is proposed in

reliance on economic evidence from Mr Philpott and transport evidence from

Mr McKenzie.

16

Ms Carvill and Ms Tail, evidence-in-chief, para 9 1 .1

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Council s position

7 7 The Council is opposed

to

the changes proposed on behalf of the submitters

for the reasons set out

in

the rebuttal evidence

of

Mr Bonis. Mr Bonis

considers the proposed amendments to the overlay description are

unnecessary and inappropriate.

17

In particular the overlay description

proposed by Ms Carvill and Ms Tait is absolute in saying that there will

be no

adverse effects on the transport function of the corridor or the function and

vitality of centres while the policy and rule framework anticipates some adverse

effects and provides for their management. The proposed description is

therefore inaccurate.

Activity status for retail and trade suppliers

Submitters evidence

7 8

Ms Carvill and Ms Tait seek to amend the provisions so that retail activities

below 200m2 GFA and trade suppliers would default to the status in the

underlying zone, rather than being discretionary

or

restricted discretionary,

if

that is more lenient than the underlying zone. The issues raised appear

to relate to concerns that agglomeration

of

smaller retail activities in IGCs

will result in unplanned centres. The argument for trade suppliers appears

to be that other Business zones are available to accommodate trade

suppliers .

Council s position

7 9

The Council s position

is

that the activity status

in

its revised provisions

is

more

appropriate. The economic evidence of Ms Fairgary on behalf of the Council

does not support the relief sought by Ms Carvill and Ms Tait. She considers

that discretionary status for retail less than 450m2 in IGCs is appropriate

because individual proposals would be subject to

an

assessment that would

sufficiently mitigate the risk

of

formation

of

de facto centres.

18

7

Mr Bonis, rebuttal evidence, para 9.4.

18

Ms Fairgray, rebuttal evidence, para 6.2.

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7 10 Ms Fairgray also considers it is preferable from an economic perspective to

encourage trade suppliers to agglomerate with other retail within IGCs rather

than having them dispersed throughout the Light Industry zone.

19

This

supports restricted discretionary status for trade suppliers in IGCs although, as

noted by Mr Bonis, in many instances the underlying zone will have a more

lenient activity status which will prevail e.g. Lincoln Road, Wairau Road and

parts o Stoddard Road have

an

underlying Light Industry zone which permits

trade suppliers.

20

Potential IGCs

7 11 Potential IGCs are shown as an overlay on the planning maps. The PAUP

included a single IGC at Lincoln Road, Henderson. A number

o

other

possibilities have been considered at mediation and

in

discussions between

the parties. Some possibilities have been discounted through the process

while others are addressed in evidence from the parties.

7 12

Potential IGCs are addressed on behalf o the Council

in

planning evidence

from Mr Bonis, transport planning evidence from Mr Wong-Toi and economic

evidence from Ms Fairgray and Mr Akehurst. Mr Hancock has provided

transport engineering evidence on behalf of Auckland Transport.

atters to be considered

7 13

The matters that are to be had regard to when considering whether IGCs

should

be

included in the plan are set out in Policy 7 o B3 1 o the RPS.

These include the following matters:

a) adverse effects

on

the function, role and amenity of the city centre,

metropolitan and town centres beyond those effects ordinarily

associated with trade effects or trade competition;

b) adverse effects on the quality compact urban form and including the

anticipated planned location o activities, facilities, infrastructure and

public investment;

19

Ms Fairgray, rebuttal evidence, para 6.5.

20

Mr Bonis, rebutta l evidence, para 9.10.

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(c) effects

on

community social and economic wellbeing and

accessibility;

(d) the integration and efficient use and provision

of

land and

infrastructure;

(e) impacts on the safe and efficient operation and the management of

the transport system including public transport and the road network;

(f) the impacts of the development on the efficient use of any scarce

industrial land, in particular opportunities for employment for land

extensive industrial activities and heavy industry;

(g) avoiding conflicts between incompatible activities; and

(h) the effects on residential activity.

Economic modelling and analysis

7 14 The Council has also undertaken extensive economic analysis, including

modelling, to indicate where additional retail may

be

required and would

be

consistent with the existing centres network as a result of retail floor space

capacity shortfalls. The analysis

is

a logical and robust process to understand

the retail market using comprehensive empirical data on a sound conceptual

basis. This analysis shows where sufficient PAUP capacity to meet future

retail demand does and does not exist. The geographic patterns of surplus

and deficit influence the consistency of potential IGCs with a centres-based

urban form and the effect on the centres network. These matters are

addressed in detail in the evidence

of

Ms Fairgray on behalf of the Council.

7 15

In

my submission the Council s modelling is notable for its robustness and the

quality of the data used. As explained by Mr Akehurst

2

:

For the first time n my 20 years o experience n these matters Council

has developed a flexible model o the future o retail in the city based on

empirical data covering both the existing supply o retail the future

supply o retail and commercial land and capacity and households

shopping patterns.

2

r

Akehurst, evidence-in-chief, para 4.4

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7.16 As mentioned above informal expert conferencing was coordinated by the

Council and a joint statement was prepared by the experts involved which has

been uploaded to the Panel s website. The purpose o the conferencing was

to share the Council s economic analysis and modelling techniques and get

early feedback from the various experts. The joint statement is concerned with

the economic analysis and modelling spatial patterns o retail capacity

surplus/deficits. It also includes addresses economic principles for retail

location and principles for appropriate IGC location and the location o retail

within IGCs.

7.17

n

general there was broad agreement over the Council s modelling approach

in principle and some of the findings drawn from the model. Mr Thompson is

the notable exception although some other experts also expressed

reservations or disagreement on particular issues which are identified in the

joint statement. Mr Thompson disagreed with almost every proposition put

forward at the conference and promoted alternative approaches to modelling

retail capacity surplus/deficits.

7.18

n

his evidence Mr Thompson promotes estimating capacity through assessing

current market feasibility o sites using an Urban Feasibility Model UFM). All

other economic experts agreed that this approach is not robust or appropriate

(there are nine reasons for this outlined

in

the joint statement). The many

shortcomings

o

Mr Thompson s approach are also addressed in the primary

and rebuttal evidence of Ms Fairgray.

n

particular there are doubts as to

whether Mr Thompson has fully understood the modelling process. Ms

Fairgray s primary and rebuttal evidence summarises some of the major issues

with the alternative approaches Mr Thompson is promoting.

7.19

n

relation to Mr Thompson s UFM approach Ms Fairgray points out in

particular that it incorrectly assumes demand and prices hold constant over

time and fails to take into account changes in market feasibility as demand

grows.

n

reality, demand and prices increase through time, meaning more

sites become market feasible through time. It is also reliant on a greater set

o

assumptions. It is therefore not a useful modelling tool in the Auckland context

and the weight o economic opinion at the expert conference confirmed this.

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Proposed

IGCs

7.20

The Council proposes inclusion of five IGCs in the plan. Two of these (Lincoln

Road and Ti Rakau Drive) have been challenged in evidence from submitters

who seek fewer IGCs. Other submitters are seeking inclusion

of

a further six

IGCs in the plan. The Council opposes including these additional IGCs in the

plan.

7.21 The Council considers that the number of IGCs must strike the right balance

and is critical to achieving its strategy for centres plus management of

commercial growth. This is reflected in the evidence in chief of Mr Bonis

22

:

An inadequate number

o

IGCs

coupled with a restrictive approach

t

commercial provision renders the mechanism redundant. Too many

IGCs will promote a diffuse pattern o commercial activity to the

detriment o the centres network.

7.22

In my submission the IGCs supported by the Council are the most appropriate

in terms of the statutory tests. In particular they strike the right balance

between providing for commercial growth out-of-centre and avoiding too much

dispersal

of

commercial activities which could compromise the function, role

and amenity of centres

in

the PAUP hierarchy and network of centres. As

explained above this centres plus strategy

is

fundamental to the Council's

entire approach to the Business zone provisions from the objectives down to

activity status and development controls.

7.23 The IGCs proposed by the Council are described

23

and spatially defined

24

in

the evidence-in-chief

of

Mr Bonis. The Council supports including the following

five IGCs

in

the plan:

(a) Wairau Road;

ew

North Road Kingsland; Stoddard Road

t mediation all parties agreed that these are appropriately included

in the plan as IGCs. There is no evidence challenging any of these

IGCs.

22

Mr Boni

s

evidence-in-chief, para 16.10.

23

Mr

Bonis, evidence-in-chief, para 20.

24 B . . . .

f

Mr

oms,

ev1dence-1n-ch1e

, Attachment

B.

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(b) Lincoln Road Henderson; Ti Rakau Drive

At mediation all parties except PSPIB Ltd and DNZ Ltd agreed that

these areas are appropriately included

in

the plan as IGCs. PSPIB

Ltd and DNZ Ltd have produced planning, transport and economic

evidence challenging inclusion of these IGCs in the plan. The

Council s position is that both areas should

be

included as IGCs for

the reasons set out in the evidence o its witnesses.

Although finely balanced, Mr Bonis supports including Lincoln Road

as

an

IGC, based on the planning history for the area, the ability to

accommodate additional retail capacity

in

an area where there is a

localised shortfall , and the proximate and intensifying residential

population. Lincoln Road is also observed to have a strong

commercial character?

Mr Bonis rebuttal evidence shows that the

submitters evidence overemphasises the absence of a confirmed

retail supply deficit and overlooks other reasons for making the area

an IGC?

6

Mr Bonis also supports inclusion

o

Ti

Rakau Drive and refers to Mr

Akehurst s evidence that an IGC overlay in this area is appropriate in

accommodating LFR that can t locate at Botany Downs or

Pakauranga.

27

He also refers to evidence from Mr Wong-Toi which

identifies that the proximate residential intensification areas close to

the corridor provides some relative transport benefits.

28

The

submitters concerns appear to stem from the likely dispersal

o

retail

and associated transport effects. However Mr Bonis considers that

the effects

o

development along this IGC can be appropriately

managed through the assessment o individual resource consent

applications against the objectives, policies and assessment cr iteria

which have been agreed for IGCs.

29

25

Mr Bonis, evidence-in-chief, para 20.23.

26

Mr Bonis, rebuttal evidence, para 9 1 3

27


28

Mr Bonis, evidence-in-chief , para 20.28.

29


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7.24 A joint planning statement on behalf of the Key Retailers Group proposes a

further six IGCs which are not supported by the Council. As mentioned above

too many IGCs has the potential to undermine the Council's centres plus

strategy for management

o

commercial growth. This position is reflected in

the rebuttal evidence

o

Mr Akehurst

30

:

n

my view it would be very dangerous to allow a very large number o

IGCs that cover a large amount o land to be identified as potential retail

locations because it will lead to significant adverse effects on the centre

network

as

a whole and the centre network

as

a whole

is

the

most

efficient and effective way

to deliver a sustainable future for Auckland

-

both in its support for a compact city form and in terms o efficient land

use for economic activity.

7.25

These concerns are one o the key reasons that the Council opposes the six

additional IGCs proposed by the Key Retailers Group although there are also

other specific reasons for opposing the additional IGCs. The Council's specific

reasons for opposing the additional six IGCs include the following:

(a)

Constellation Drive Albany

Any retail capacity deficit in this area could

be

accommodated

through the Albany centre

31

and an IGC at Wairau Road . Existing

land uses including substantial office presence would not be assisted

and could be displaced by an IGC in this location.

32

The Council

opposes this IGC.

b) Great North Road Arch Hill

This corridor has a limited presence o retail activities and a relatively

large proportion o office based activities. An IGC aimed largely at

accommodating space extensive retail activities may prevent further

30

Mr Akehurst, rebuttal evidence, para 8.8; see also Ms Fairgray, evidence-in-chief, paras 8.29 and 8.30; rebuttal

evidence, para 8.8.

31

M F . 'd . . f 8

a1rgray, ev1

ence 1n ch1e

, para .13.

32


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residential and business intensification in this area.

33

The Council

opposes this IGC.

c) Lunn Avenue, Mt Wellington; Ellerslie-Panmure Highway, Mt

Wellington

Lunn Avenue already contains substantial trade suppliers, retail and a

range of food retailers. However it is poorly integrated with the public

transport network

34

and

is

not proximate to areas o residential

growth.

35

Including Lunn Ave or the Ellerslie-Panmure Highway as

IGCs may have implications for the Panmure Town Centre which

plays an important role with the surrounding community_3

6

The

Council opposes these IGCs.

d) Great South Road, Takanini west o Walters Road); Great South

Road, Takanini east of Walters Road)

This area accommodates the Fonterra Factory as well as numerous

small scale light industry and automotive services. Identification as

an IGC is likely to displace industrial activities

in this area which

support substantial employment.

37

Substantial retail capacity is

available at the centres of Papakura, Takanini and Manukau?

8

The

Council opposes these IGCs.

33


34

Mr Wong-Toi, evidence-in-chief, para 5.4.10; rebuttal evidence, para 4.15.

35


36

Ms Fairgray, ev idence

i

n-chief, para 8.32 .

37


38

Ms Fairgray, evidence-in-chief , para 8.28.

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8

BUSINESS ZON S LAND USE RULES AND ASSESSMENT MATTERS

Overview

8 1

The provisions

in

Chapter

3

implement the objectives and policies

of

Chapter

3 Business zones. As mentioned above the scale and mix

of

activities

provided for in the Business zone rules partly reflects the hierarchy which is

inherent in the PAUP centres strategy.

8 2

Submissions are variously addressed

in

the planning evidence of Mr Wyatt, Mr

Bonis, Ms Wickham and Mr Farrant, the urban design evidence Mr Munro and

Ms Coady, the economic evidence of Mr Akehurst and the air quality evidence

of Mr Harvey. The provisions of Chapter 3 also include zone-wide height

controls which are addressed

in

a separate section below.

8.3 Chapter 3 contains two activity tables for the Business zones : Table 1 1

applies to the Centres zones and Mixed Use, General Business and Business

Park zones; and Table 1.2 applies to the Industry zones . The balance of

Chapter

3

is comprised of notification rules, land use controls, development

controls, matters of control/discretion, assessment criteria and special

information requirements.

8 4 These provisions in Chapter 3 are variously expressed to be applicable to

activities in

particular zones or particular activities

in

multiple zones. The land

use and development controls are often concerned with design and amenity.

They include matters such as building setback at upper floors, maximum tower

dimension and tower separation, buildings fronting the street, minimum floor to

floor height, glazing and other controls.

8 5

A number

of

amendments to the PAUP were agreed at mediation or have been

proposed by the Council and are not disputed in the submitters evidence.

These amendments are shown in the revised version of the plan provisions

attached to the rebuttal evidence of Mr Wyatt.

In

summary the key changes

include the following:

• Non-industrial Business zones - amend activity status for department

stores, cinemas, garden centres, marine retail, offices, retail, service

stations, justice facilities, recreation facilities and tertiary education facilities

(generally a less restrictive activity status is proposed)

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• Industry zones - add a permitted activity for existing lawfully established

commercial activities in the Light Industry zone, add a restricted

discretionary activity for stand-alone offices up to 100m

2

GFA in both the

Light and Heavy Industry zones, make education facilities not otherwise

provided for more restrictive in the Heavy Industry zone, make emergency

services less restrictive in the Heavy Industry zone and add recreation

facilities and tertiary education facilities to the Industry zones activity table

• Deletion

o

a number of urban design related development controls and

incorporation into assessment criteria which provide more flexibility e.g.

building entrances, roller doors, ground floor at street frontage level, and

building setback

• Amend notification rule for Heavy Industry zone so that offices that are

non-complying are publicly notified

• Amend the notification rule for the Light Industry zone so that offices and

retail are subject to the normal tests for notification and retirement villages

are publicly notified along with dwellings

• Amend or delete development controls to reduce regulation and focus on

the critical matters e.g. buildings fronting the street, minimum floor to floor

height, maximum impervious area, yards, landscape planting, screening

and storage and wind control

• Amend assessment criteria to reduce in number and focus on the types

o

development with the most potential effects i.e. larger buildings and along

Key Retail Frontage and General Commercial Frontage streets

8 6 Many

o

the Council s proposed amendments are supported by submitters or

have not been disputed

n

evidence. However submitters evidence proposes

additional amendments to the rules and assessment matters. The evidence

from submitters raises the following key outstanding issues which are

responded to

n

the Council s rebuttal evidence:

Activity status

(a) Business Park zones;

(b) Emergency services n the Neighbourhood Centre zone;

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(c) Trade suppliers and motor vehicle sales in the Mixed Use zone;

(d) Retail within 400 m of the Metropolitan Centre zone in the General

Business zone;

(e) Offices, supermarkets and entertainment facilities in the Local Centre

zone;

(f) Supermarkets

in

the Neighbourhood Centre and Light Industry zones;

(g) Broadcasting facilities

in

the Light Industry zone;

(h) Reverse sensitivity in the Light Industry zone;

(i) Commercial activit ies in the Light Industry zone;

U

Competitive design provisions; and

(k) Drive through facilities.

Notification rule

{I)

Buildings infringing height;

Land use and development controls

(m) Agglomeration of retail and food and beverage

in

the Mixed Use and

General Business zones;

(n) Residential activities at ground floor;

(o) Side and rear yards in the Neighbourhood, Local or Town Centre

zones;

(p) Glazing on building elevations that front a street within Metropolitan

and Town Centre zones;

ssessment criteria and special information requirements

(q) should vs extent to which ;

(r) Buildings adjoining site frontage;

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(s) Stud heights for drive-through restaurants;

(t) Vehicle access and building continuity; and

(u) Special information requirements.

Activity status Business Park zones

8.7

Planning evidence from Mr Smith and Mr Thompson

39

seeks that the activity

status for department stores

in

the Business Park zones

be

relaxed from non

complying to discretionary. Planning evidence from Mr

McKal

0

seeks

changes to activity status in

the Business Park zones for a number of activities

including residential and commercial sexual services.

8.8

The Council agrees it is appropriate reclassify commercial sexual services and

department stores from non-complying to discretionary activity. Discretionary

status for department stores is supported by Mr Wyatt because the objectives

and policies of the Business Park zone will appropriately manage the effects of

department stores and department stores are unlikely to locate in a Business

Park zone due to the land costs and pressure for more intensive development

within the zone.

4

The Council does not consider that any other changes to

activity status are warranted particularly Mr McKay s proposal of permitted

activity status for residential activities .

8.9

The Council s position is supported by Mr Wyatt

42

who provides planning

reasons

in

his rebuttal evidence. He considers that the Business Park zone

caters primarily for existing intensive out-of-centre office activities and

residential activities would compete directly for the above ground space within

the zone which is not the most efficient use of Business Park land.

Activity status and assessment criteria Emergency services n the

Neighbourhood Centre zone

8.10

In her evidence on behalf of the NZ Fire Service Fiona Blight seeks that the

activity status for emergency services in the Neighbourhood Centre zone

be

39

Goodman Property Trust, Goodman Paihia, The Warehouse and Northcote

Rd

1 Holdings.

40

NZIA Generation Zero and Urban Design Forum.

4

Mr Wyatt, rebuttal evidence, para 5 4

4 M W .

r yatt, rebuttal evidence, para 5.

7.

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relaxed from discretionary to restricted discretionary (with the normal tests for

notification). She also seeks changes

in

relation to the wording

of

the

assessment criteria dealing with the functional requirements

of

emergency

services.

8 11 The Council s position

is

that the activity status and assessment criteria

attached to the rebuttal evidence of Mr Wyatt are appropriate and should not

be amended in response to Ms Blight s evidence.

8.12 The Council s position

is

supported by Mr Wyatt who provides planning

reasons in his rebuttal evidence.

43

He considers that the assessment criteria

are clear and discretionary status is appropriate because the Neighbourhood

Centre zone objectives and policies do not envisage development with the

scale and type of effects that a fire station may have.

Activity Status Trade suppliers and motor vehicle sales

in

the Mixed

Use zone

8.13 Planning evidence from Mr Norwell

44

and Ms Panther-Knight

45

seeks

restricted discretionary activity status for trade suppliers and motor vehicle

sales in the Mixed Use zone.


is

that discretionary status is more appropriate. The

planning reasons for this are set out in the rebuttal evidence of Mr Bonis.

46

He

considers that trade suppliers are not easily accommodated in the Mixed Use

zone and discretionary status is appropriate to enable each proposal to be fully

assessed on its merits (this need not preclude outcomes like the Grey Lynn

Bunnings).

43

r

Wyatt

, rebuttal evidence, part

7.

44 B .

unn1ngs.

45

Gilltrap Holdings.

46

r

Bon i

s

rebuttal evidence, part 5

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Activity status - General Business zone retail within 400 m o the

Metropolitan Centre zone

8.15

Planning evidence from Ms Carvill and

Ms

Tait

47

seeks addition o a new rule

in the General Business zone to make retail up to 450m2 GFA per tenancy a

restricted discretionary activity if it is within a 400 m walk from the Metropolitan

Centre zone.

8.16 The Council does not support this rule for the reasons set out in rebuttal

evidence from Mr Bonis

48

and Ms Fairgray

49

. In short the rule is unnecessary

and would duplicate or disperse economic activity away from the adjacent

Metropolitan Centre. Economic activity could instead

be

attracted to collocate

with large format retail

in

the General Business zone which would relocate or

disperse the core o the centre.

Activity status - Offices supermarkets and entertainment facilities

n

the

Local Centre zone

8.17 Planning evidence from Mr Sousa on behalf o Mr Hogan seeks to provide for

offices, supermarkets and entertainment facilities as permitted activities in the

Local Centre zones.


is

that it is more appropriate to have a tiered approach

under which smaller scale offices and supermarkets are permitted while larger

scale activities require a restricted discretionary resource consent. The

Council also considers that discretionary status is more appropriate for

entertainment facilities in

the Local Centre zone. The planning reasons

in

support of this approach are set out

in

the rebuttal evidence of Mr Bonis.

50

Activity status - Supermarkets n the Neighbourhood Centre and Light

Industry zones

8.19

The planning evidence o Foster et al on behalf of the Key Retailers Group

seeks

an

activity status for supermarkets in the Neighbourhood Centre and

47

PSPIB Ltd and DNZ Ltd.

48

Mr Bonis, rebuttal evidence, part 6.

49

Ms Fairgray, rebuttal evidence, para 8 1 and 8.2.

50

Mr Bonis, rebuttal evidence, part 7 and part 10

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Light Industry zones that is less restrictive than the non-complying status

proposed by the Council. Discretionary status is sought in the Light Industry

zone. In the Neighbourhood Centre zone discretionary status is sought for

supermarkets exceeding 2000m2 and restricted discretionary status is sought

for smaller supermarkets.

8 20 The Council does not support this approach for the reasons set out in the

rebuttal evidence of Mr Bonis5

1

Ms Wickham5

2

Ms

airgral

3

and Mr

Akehurst.

8 21 Ms Wickham s reasons for considering that it is not appropriate for

supermarkets to

be

discretionary in the Light Industry zone are the same as

those set out in relation to the policy sought to enable supermarkets in the

Light industry zone. They include questions raised in the economic evidence

about the submitters projected demand for supermarkets, the scarcity of land

zoned for light industry activities, the distance from residential areas for some

areas

of

Light Industry zone, potential reverse sensitivity effects on light

industry activities and failure to give effect to proposed RPS provisions

providing for the efficient use of scarce industrial land for industrial activities.

8 22

Mr Bonis

54

considers that non-complying status is more appropriate for

supermarkets in the Neighbourhood Centre zone for the following reasons:

(a) It will better achieve the proposed objectives particularly 3 6

.1

and 2

which seek to limit the scale and intensity of commercial activities;

(b) The built form and transport intensity of larger scale supermarkets is

typically incongruent with the amenity expectations of both

neighbourhood centres and the adjoining residential interface;

(c) Supermarkets may displace smaller more convenience based

activities narrowing the ability

of

the local community to access

frequent needs (it is acknowledged that in-centre supermarket

developments can in some instances foster reinvestment and

improved accessibility to convenience retail) ; and

5

Mr Bonis, rebuttal evidence, part 8.

5

Ms Wickham, rebuttal evidence, part 10.

53

Ms Fairgray, rebuttal evidence, part 5.

54


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35


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(d) There is an absence o developable sites able to absorb larger scale

supermarkets with the most likely resultant scenario being extension

onto an adjoining zone.

Activity

st tus

Broadcasting facilities

n

the Light Industry zone

8 23 Planning evidence from Mr Cook on behalf o Sky Network Television seeks

that broadcasting facilities are provided for as a permitted activity in the Light

Industry zone rather than defaulting to non-complying status as an activity not

otherwise provided for.

8 24 The Council does not support this approach for the reasons set out in the

planning evidence of Ms Wickham.

55

In

particular she considers that consider

that the large office component o such activities would be contrary to the RPS

83.1 Policies

11

and 12 and Policy 4 of the Light Industry zone which seeks to

avoid activities that do not support the primary function

o

the zone by limiting

office activities except where they are accessory to the primary activity on the

site or up to 100m2 GFA.

Activity

st tus

Reverse sensitivity n the Light Industry zone

8 25 There is a range o evidence from industrial parties seeking more restrictive

activity status for activities in the Light Industry zone. This includes more

restrictive activity status for drive-through facilities , garden centres, marine

retail, motor vehicle sales, trade suppliers, storage and lock

up

animal

breeding and boarding, and horticulture.

8 26 The Council s position is that permitted activity status is appropriate for these

activities. The planning reasons for this position are set out

in

the rebuttal

evidence

o Ms

Wickham.

6

She considers that the activities

in

question may

result

in

some reverse sensitivity effects but the amenity expectations of

people utilising such activities are not particularly high. Where these activities

which generally have a large outdoor component are located within 1OOm o a

Heavy Industry zone the Council proposes restricted discretionary status with

an assessment

o

reverse sensitivity being required .

55

Ms Wickham, rebuttal evidence, part 4.

56

Ms Wickham, rebuttal evidence, part

6.

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Activity status and land use control Commercial activities

n

the Light

Industry zone

8.27 n her planning evidence-in-chief on behalf of the Council Ms Wickham

proposed a permitted activity rule for existing lawfully established commercial

activities in the Light Industry zone with a land use control managing scale

and providing that activities may change within the range

o

commercial

activities. This was proposed in response to submissions.

8.28 Evidence from submitters ranges from those who think that Ms Wickham's land

use control goes too far

in

allowing one commercial activity to

be

substituted

for another (e.g. retail for office) to those who more generally seek a more

permissive approach to commercial activities in the Light Industry zone. There

are also a number who support the control.

8.29 The Council's position

is

that allowing existing commercial activities to

be

substituted with others

is

an effective and efficient approach which recognises

the value of existing business investment by providing a degree o flexibility as

to the permissible use. The Council has however revised its position to

exclude entertainment facilities from the rule because they are less appropriate

in

the Light Industry zone. The Council does not support a more permissive

approach to any other commercial activities such as new stand-alone offices.

The reasons for this position are explained further in the rebuttal evidence of

Ms

Wickham.

57

8.30 The Council does not support applying the permitted activity rule for existing

lawfully established commercial activities to the Heavy Industry zone as

requested by Mr Haines on behalf of Atlas Concrete . This

is

because heavy

industrial activities generate a lower level o amenity and are therefore more

vulnerable to reverse sensitivity effects from commercial activities. n addition

to this there are much fewer commercial activities in the Heavy Industry zones

because the operative district plan zonings do not provide for commercial

activities to the same extent as the operative zonings for the Light Industry

zone. It is therefore unnecessary and inappropriate to provide for existing

commercial activities in the heavy Industry zone . This is explained in the

rebuttal evidence o Ms Wickham.

57

Ms Wickham , rebuttal evidence, parts 8 and 9.

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Activity status Competitive design provisions

8 31 Evidence on behalf o Mr Hollenstein seeks permitted activity status for

applicants that opt for competitive design process. The crux o this method

is

to substitute the consent authority with

an

Urban Design Jury at least 50%

appointed by the applicant. The proposed method also enables permitted

status to be awarded by the Council's urban design panel and it allows the

Council to grant contraventions to some bulk and location rules (including

building height) through officer discretion rather than the resource consent

process.

8.32

The Council's position

is

that the submitter's proposed approach is unlawful

and lacks planning merit. Urban design and planning concerns are addressed

in

the evidence of Mr Munro on behalf o the Council. Mr Munro considers that

the proposed approach does not have resource management merit because it

encourages personal aesthetic preference or design popularity as a reliable or

adequate substitute to an impartial assessment o effects and PAUP policy

implementation .

58

He considers that the Council's revised approach which

has substantially removed rules and replaced them with a non-notified

restricted discretionary pathway (based

on

assessment matters) is a more

appropriate and reliable method than the submitter's proposal.

8.33

n

my submission the proposed approach is also unlawful because the

proposed rules are not certain on their face and they seek to confer discretion

outside the resource consent process. This is contrary to the RMA.

Activity

st tus

Drive through facilities

8.34

Restaurant Brands seeks permitted activity status for drive-through restaurants

across the Metropolitan Centre, Town Centre, Local Centre, Neighbourhood

Centre, Mixed Use and General Business zones.

8.35 n

his evidence-in-chief on behalf

o

the Council Mr Wyatt considers that the

merits o the submissions require further investigation, and I agree that the

notified version is the appropriate activity status for drive through

58

Mr Munro, rebuttal evidence, para 4.4.

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restaurants at this time .

59

In his evidence-in-chief Mr Arbuthnot

60

notes that

this differs from the mediated provisions and maintains his position that drive

through restaurants should

be

permitted in the identified zones.

8.36 The Council's position is that the activity status for drive through restaurants

set out in the revised provisions attached to Mr Wyatt's rebuttal evidence is the

most appropriate approach. This approach permits drive through restaurants

in the Mixed Use and General Business zones. They would be restricted

discretionary in the Metropolitan, Town and Local Centre zones (the submitter

seeks permitted). In the Business Park zone they would be non-complying

(the submitter seeks discretionary).

In

the Neighbourhood Centre zone they

would

be

discretionary (not disputed by the submitter).

8.37 The Council considers that its proposed approach will appropriately manage

the potential adverse effects

of

drive through facilities.

In

particular matters

such as siting and design, signage, traffic and parking, noise and residential

interface issues will

be

appropriately assessed through the resource consent

process. In my submission it is more appropriate that these matters are

assessed on a case-by-case basis rather than relying on the general permitted

activity controls which may not adequately address the potential effects

of

a

particular proposal.

Notification rule Buildings infringing height

8.38 Planning evidence from r Campbell

61

seeks to remove potential for

notification

of

building height infringements on sites greater than 1 ha. The

Council does not support this change for the reasons set out in Mr Wyatt's

62

rebuttal evidence. He consider that building height has

051-054 hrg - auckland council - legal submissions

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