Primed for Success: Russell McVeagh’s top tips for a successful PAUP outcome

RMLA catches up with Russell McVeagh’s Allison Arthur-Young, Partner in the Environment, Planning & Natural Resources team, to pick up tips on achieving favourable outcomes in future hearings; learnings from the PAUP process to date; and how to sidestep consenting challenges on the road ahead.

The Proposed Unitary Plan for Auckland (PAUP) is the largest scale rewrite of the local planning controls ever undertaken in New Zealand and will shape the development of the Auckland region for decades to come. Russell McVeagh, one of New Zealand’s most prominent law firms, has been involved in the PAUP process since the very beginning, assisting clients in providing input into the Unitary Plan as early as 2011.

Having acted for over 50 clients throughout the process, from leading industry, retail and infrastructure providers, commercial and residential developers to major recreation facilities, healthcare providers, schools and industry groups, the  Auckland-based law firm has been involved, to some extent, across every single hearing topic.

Russell McVeagh assisted numerous clients to prepare feedback on the draft Unitary Plan in March 2013, and on formal submissions on the notified Unitary Plan, released in September that same year. It was closely involved in the mediation and hearings process between September 2014 and May 2016, including briefing experts, attending mediation, reviewing expert evidence and presenting at hearings. The firm also led the discussions that resulted in the Panel issuing interim guidance – a process that significantly enhanced the hearing process for all involved.

RMLA: Looking ahead, what are the biggest consenting challenges presented by the PAUP from a legal perspective?

Allison Arthur-Young: Integration. Despite almost everyone’s best efforts to simplify the Unitary Plan, the sheer number of rules in the zones, Auckland-wide provisions, precincts and overlays mean that even simple projects have the potential to require a complicated suite of resource consents.

Enabling zone provisions may be of limited assistance if numerous resource consents are required under the various other layers of the Plan. It won’t always be easy for applicants, submitters, and the Council to chart a path through the Plan.

Another challenge will be ensuring that future plan changes remain consistent with the overall direction of the Unitary Plan. A plan as complex as the Unitary Plan has the potential to have its overall policy direction eroded if subsequent plan changes are not thoughtfully considered.

RMLA: What are the key benefits?

Allison Arthur-Young: Consistency. Finally, six years after the formation of the Super City, the planning boundaries have come down which will be beneficial both for applicants (particularly those organisations that operate all across the region), as well as for those advising on the Unitary Plan.

There will now be just one (admittedly, large!) rulebook, instead of several, for example, our linear infrastructure clients will find the consistency a significant improvement on the pre-PAUP planning processes in Auckland.

RMLA:  What were the biggest learnings from this Auckland Unitary Plan hearings process in terms of:

a) best practice?

Allison Arthur-Young: A key learning to apply for future time-pressured planning processes is the importance of presenting a succinct, focused case. In these processes, ten pages of ‘to the point’ evidence or legal submissions can be most persuasive.

Another best practice tool that evolved organically was collaboration between like-minded submitters, consultants and lawyers. We helped facilitate a number of ‘submitter working groups’ through the various hearing topics, which were able to achieve great results while reducing costs for individual participants (collaborative groups we worked with included key retailers, major recreation facility operators, and infrastructure providers).

b) pitfalls to avoid?

Allison Arthur-Young: While we saw many benefits associated with the tight timeframes, in some respects, the hearings process was too condensed. Given the scale and importance of the Unitary Plan for Auckland, some topics (particularly nearer the end of the hearings process) would have been assisted by additional mediation and hearing time.

The process may also have benefited from building in time for a recommendation to be made on the Regional Policy Statement, and a ‘pause’ for parties to reflect on that step; that would have provided clarity on what was to be ‘given effect to’ before the regional and district provisions were heard.

Having said that, the Council, submitters and in particular the Independent Hearings Panel worked incredibly hard to hit the very ambitious timeframes the legislation provided.

Another potential pitfall with large plans, is determining the plan’s structure too early in the piece – before it can be determined whether that structure is the most appropriate. The Unitary Plan would have benefited from a more focused discussion with the Panel and submitters on the proposed plan structure at the outset. For example, the early decision by Auckland Council to limit the number of zones in the Unitary Plan meant that multiple, detailed precincts were required in addition to the underlying zoning; that structural decision might have been more robustly tested.

RMLA: For future hearings, what advice can Russell McVeagh provide to submitters, to support a favourable outcome?

Allison Arthur-Young: Make an effort to participate in mediation or expert conferencing in a solutions-focused way.

We were able to achieve some great results for our clients through these processes and in many cases, were able to reach agreement with Council and/or other submitters, putting our clients in a strong position ahead of evidence exchange and the hearing. These processes also have the added benefit of reducing evidence and enabling more focused hearings.

Russell McVeagh is a Platinum Sponsor of RMLA’s OUTstanding Annual Conference 2016, to be held in Nelson September 22-24.