Auckland Unitary Plan list
The purpose of the Auckland Unitary Plan (AUP) list
The purpose of the Auckland Unitary Plan list is to manage litigation resulting from the proposed Auckland Unitary Plan (AUP) to ensure all appeals and judicial review proceedings relating to the AUP are dealt with as quickly as the High Court’s resources permit.
The list began in October 2016. Originally there were 41 appeals on a question of law and eight judicial review applications on the list. As at 1 March there were 34 appeals and seven judicial reviews remaining. A further seven matters have also settled and await consent orders.
Legislative background to AUP
The 49 legal challenges arise as a result of the development of the first Unitary Plan for Auckland.
This process is provided for under Part 4 of the Local Government (Auckland Transitional Provisions) Act 2010 (the Act). The Act has enabled a fast-tracked planning process for Auckland:
- The Auckland Council (the Council) was required to develop a Proposed Unitary Plan, publically notify that plan and call for submissions on the plan.
- An expert Independent Hearings Panel (the Panel) was appointed to hear submitters and make recommendations to the Council on the provisions of the final Unitary Plan. The Panel was required to issue a report of recommendations to the Council.
- The Council was then required to make decisions on the contents of all parts of the Unitary Plan following receipt of the Panel’s recommendations, and to publically notify its decisions.
- Those who submitted to the Panel were permitted to appeal the Council’s decisions. The Act also preserved the right for parties to apply for judicial review the Council’s decision.
- The Act also makes provision for certain appeals to be made to the Environment Court.
Categorisation of the proceedings
All AUP proceedings were referred to the list Judge, Justice Whata.
The first case management conference for all the AUP proceedings was held on 14 October 2016. The purpose of the conference was to determine issues around
- The categorisation of proceedings
- Overlapping appeals before the Environment Court
- Joinder of interested parties and
- Security for costs.
At the first case management conference it was resolved that the appeals and review proceedings would be divided into three categories:
- Category 1 – appeals/applications benefitting from settlement discussions.
- Category 2 – scope and/or zoning changes.
- Category 3 – issue specific appeals/applications.
Category 1 (matters capable of reaching settlement)
The category 1 proceedings are all matters that appear to warrant discussions between the Council and the relevant parties as to whether they can be settled by consent. These proceedings, which are listed in Table 1.
Category 1 timings
Eight of the original 15 cases in this category have settled and await consent orders. One matter has been discontinued, a further case management conference is set for 27 March for the six remaining matters which have not settled.
Category 2 (scope, zoning)
The category 2 proceedings, set out in Table 2, include as a primary issue whether the Panel had scope to make the zoning recommendations it did in relation to affected land areas, and the associated zoning decisions that were made by the Council.
The Court resolved to proceed by way of the preliminary question procedure. The preliminary question procedure is provided for in r 10.15 of the High Court Rules, which permits the Court to make orders that any question be decided separately from any other question(s) in the proceeding, and to formulate the question that is to be decided separately. This may occur at any time in the proceeding: before, during or after the trial. The purpose of the rule is to speed up the proceedings by limiting the scope of the trial in advance. In some cases, the procedure disposes of the need for a trial altogether.
The Court ordered that a test case (or test cases) be prepared by the Council and the parties for the purpose of resolving the issue of the scope of the jurisdiction of the Panel to make recommendations. The objective of the test case(s) is to provide a principled framework for the resolution of the individual appeals and/or review proceedings.
Category 2 timings
The test cases were heard in late November 2016 and the Court delivered its decision on 13 February 2017. The court found that, with the exception of two discrete decisions in respect of two test cases, the Independent Hearing Panel’s recommendations were within the scope of submissions, and thus there was not error of law.
The two matters which were successful have been referred back to the Environment Court.
- STRAND HOLDINGS LIMITED v THE AUCKLAND UNITARY PLAN INDEPENDENT HEARINGS PANEL  NZHC 371 [8 March 2017]
- WALLACE GROUP LIMITED v AUCKLAND COUNCIL  NZHC 372 [8 March 2017]
The Category 2 proceedings which do not form part of the test cases and which have not settled have a case management hearing on 27 March 2017.
Category 3 (other matters)
The category 3 matters relate to discrete (non-zoning) issues. They are set out in Table 3. They have been categorised as “priority” and “non-priority” proceedings. The “priority” proceedings are those that have the greatest impact on the operability of the Unitary Plan.
Category 3 timings
Two of the priority matters have been heard.
Case management hearings for the remaining four matters have been set for 27 March and 10 April. The High Court has set aside 10 days to resolve the “priority” proceedings, commencing 13 February 2017.
All the “non-priority” proceedings have a further case management conference on 27 March except for the Federated Farmers appeal which is set down for 10 April 2017.
The individual proceedings, organised in tables by their categorisation can be downloaded.
Tables of proceedings filed :