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The site of the proposed Ahuareka Village – the development was touted as a ‘unique hamlet’ of 186 houses, but was declined by the Environment Court as being contrary to the objectives of the Auckland Unitary Plan

Pushing the (rural urban) boundaries – By Jenny Chung and Christina Sheard

The ‘Big Little City’ envisioned by the Auckland Unitary Plan (operative in part) (AUP) relies on the identification inside the rural urban boundary (RUB) as a method to achieve a ‘compact urban form’ in Auckland. As a general rule, only land within the RUB is land identified by the AUP as being suitable for urban development.

The Environment Court recently turned down a proposal for a ‘hamlet’ of 186 households and non-residential sites in Whitford, on the basis that the proposed development was contrary to the AUP’s objectives and policies relating to urban growth.

In the case of Ahuareka Trustees (No. 2) Ltd v Auckland Council, the court sought to give effect to one of the key objectives of the AUP, being the containment of urbanisation and residential intensification within the RUB or existing identified rural and coastal towns and villages.

The Environment Court’s decision

The proposal was located in the ‘countryside living zone’ and the Whitford Sub-precinct B, outside of the RUB, any residential zones, and any identified rural and coastal villages. Situated between the Formosa Golf Resort and Waikopua Creek, the land was previously a mixed-stock farm and is currently grazed by cattle and horses.

The court considered whether the proposal constituted ‘urbanisation’ and was critical of the applicant’s planning witness for not addressing the regional policy statement provisions on urban growth and form (Chapter B2 of the AUP). Those provisions address three key themes:

• Urbanisation and residential intensification should occur so as to achieve a compact urban form and be contained within the RUB or existing rural and coastal towns and villages
• Urban growth should happen in residential zones which provide for a range of residential needs and intensities
• Urban development and residential intensification elsewhere must take place through structure plan and plan changes processes to ensure the efficient use and development of infrastructure, and to be consistent with the hierarchy for intensity of residential development identified in the AUP. 

The planning witness considered that the proposal did not constitute ‘urbanisation’, but was instead ‘rural countryside living’. The court commented that this was “a big call” on his part. If the proposal constituted ‘urbanisation’ or ‘residential intensification’ as identified in Chapter B2, the proposal would be in direct conflict with the relevant objectives and policies.

The court found that the proposal did constitute ‘urbanisation’ due to the intensity of the development, the combined nature of the development involving mixed residential, commercial, retail and community service aspects, and the size and scale of the development. While 41.58 ha of remnant rural land was to be retained as pasture, the residential (and ancillary) development on adjacent land comprising 16.47 ha had an “overwhelmingly urban character of a kind which the AUP contemplates will be located within the RUB or within rural or coastal villages”.

As the proposed development was located outside of the RUB, residential zones, and rural and coastal villages, the court held such a stand-alone residential development should have been advanced by way of structure plan and plan change processes, as required by the AUP.

Further, the court found additional issues with the proposal, including inadequate proposed enhancement planting under the Sub-precinct B requirements, and a potential precedent effect in terms of further urbanisation of an area outside the RUB which is presently subject to growth pressure.

Accordingly, the court declined the appeal, stating that the proposal was “a direct challenge to the stated intention of the AUP for a hierarchy of residential development to occur in residential zones within a compact urban form and the objectives and policies which seek to achieve that.”

The applicant could still apply for a plan change to advance this proposal, but may be deterred by the lengthy and expensive process involved for a plan change.

Lessons learnt

The AUP seeks to achieve a compact urban form for Auckland city, and for this reason has identified where urban development should take place.

As noted by the AUP independent hearings panel, the RUB is an appropriate planning tool to define the extent of large urban areas, and a signal for a tight and firm restriction on the supply of future urban land.

The panel was of the view that proposals to change the location of the RUB in the future should be through plan changes in the event that land supply proves inadequate or if a more efficient land supply is identified. For the establishment of new or significant expansion of towns and villages located outside the contemplated areas of urbanisation, the requirement to go through structure planning and plan change processes was considered to be the best approach.

Key takeaways from this decision are:

• Development outside the RUB is problematic, and proposals for urbanisation outside the RUB or existing villages are likely to need a plan change process
• It is the scale and nature of the development proposed that is important, not what it is called. Dressing up a proposal as a ‘hamlet’ to downplay its scale and significance will not be effective
• Despite the lack of reference to ‘precedent effects’ in the Resource Management Act 1991, the court will consider the potential effect of a proposal on the AUP’s integrity.

It remains to be seen what will happen to the RUB given Phil Twyford’s recent comments as the new Minister of Transport, Housing and Urban Development – that the government is considering scrapping the “highly restrictive” RUB to increase the available land supply.

Jenny Chung is a solicitor and Christina Sheard a partner at Kensington Swan; check out the firm’s website for more articles on environment and planning issues kensingtonswan.com


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