RM Journal

Eden-Epsom Residential Protection Society Inc v Auckland Council [2021] NZEnvC 082


Author: Bronwyn Carruthers, Barrister, Shortland Chambers

The Environment Court has recently clarified the relevance of the National Policy Statement: Urban Development when determining private plan change requests.

Private Plan Change 21 to the Auckland Unitary Plan seeks to enable expansion and intensification of the Southern Cross hospital at 3 Brightside Road, Epsom including onto 3 adjoining lots on Gillies Ave currently zoned residential. The site is an “urban environment” within the jurisdiction of a “Tier 1” local authority.

The Court posed two questions to the parties at the start of the substantive hearing:

(1) Does the NPS-UD apply yet? It is operative, but does it drive PPC21; are we required to move ahead of decision-making by the Council on implementation of directive and urgent policies?

(2) If it does drive PPC21 how and in what ways would it drive it?The NPS-UD became operative on 20 August 2020. It applies to “planning decisions by any local authority that affect an urban environment” (Clause 1.3).

The NPS-UD defines “planning decision” as a decision on any of the following:

  • a regional policy statement or proposed regional policy statement;
  • a regional plan or proposed regional plan;
  • a district plan or proposed district plan;
  • a resource consent;
  • a designation;
  • a heritage order; or
  • a water conservation order.

The question for the Court was whether a decision on the merits of a private plan change request is a “planning decision”.

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