Guidance: AUP Urban Subdivision - Residential
Subdividing land can be a long and expensive process, and when proposed in conjunction with a land use proposal - for example, the construction of new dwellings - there are a range of other matters that need to be considered.
This is especially true in Auckland, where ‘joint’ land use and subdivision proposals are common, and ‘in theory’ should be a more efficient way of managing a land development proposal. However this is not always the case under the Auckland Unitary Plan (“AUP”).
Auckland Council published an updated copy of its urban subdivision (residential) practice and guidance note (“PGN”) in September 2021. The latest version of this practice note included a range of practice changes, including in relation to terminology, and how vehicle access to rear sites is considered.
This blog post includes a summary of the changes made, including a little bit of background on their rationale.
1. E27 and E38 Access Standards
1.1 Context
Despite how this standard may have been treated in the past, there is nothing in AUP Chapter E38 that explicitly says that standard E38.8.1.2 Access to rear sites only applies to vacant sites. It applies to all subdivision proposing rear sites.
It has become clear through judicial review (JR) including the Budden cases that plan rules and standards cannot be interpreted in accordance with intent. Continuing to do so creates risk for the council and applicants.
In short – Chapter E27 Transport standards apply to the land use consent, Chapter E38 apply to the subdivision, even if they conflict.
1.2 So, what assessment is required?
The assessment required is not that different. Most of the time, a land use led development that has been properly assessed, including consideration of the design and effects of any parking and access areas (as is required for 4+ dwellings in the Residential - Mixed Housing Suburban and Mixed Housing Urban Zones, and for all developments in the Residential - Terrace Housing and Apartment Buildings Zone), will have seen the necessary matters be addressed.
Once a land use consent is granted, the access arrangement approved forms part of the receiving environment. This is the lenses that the subdivision needs to be considered, irrespective of what its activity status may end up being, e.g., what different environmental effects arise from the subdivision activity?
The greater the number of rear lots being proposed (i.e., more than 9), the better the quality the right-of-way or Commonly Owned Access Lot (COAL) environment should be, in terms of design and safety. This includes grade-separated pedestrian walkways, landscaping, and crossing points where appropriate that would be accessible to someone pushing a pram or using a wheelchair.
There may be some limited scenarios where additional rear sites may not be appropriate, see AUP policy E38.3(12). This will be rare, however.
1.3 What about the bundling of the land use and subdivision consent applications? Will the overall proposal become a discretionary activity if standard E38.8.1.2 is not met?
Auckland Council has also changed its bundling practice for applications for land use and subdivision. Previously, they were bundled together for the notification determination, and then unbundled when making the s104 decisions. However, there is nothing in law that allows this to occur.
The likely change to many subdivision applications becoming a discretionary activity under rule E38.4.2(A31) for failing to meet standard E38.8.1.2 gave good reason to ‘make the change’ to the council’s reporting practice.
The change to bundling has been helpful in a way – most land use proposals are restricted discretionary. This means that the council can focus on the matters for discretion for the land use, and not feel that other effects need to be considered.
1.4 Nuances to consider:
Standard E38.8.1.2(1) only applies to proposed rear sites. If there are 3 existing rear sites, you can still propose 9 more and not infringe this part of the standard.
Any front sites that are accessed via an entrance strip, COAL or right-of-way easement are not counted when determining the total number of rear sites served in Table E38.8.1.2.1. However, remember that any site adjoining a road that has as frontage width of less than 7.5m will be a rear site, whether it looks like one or not.
2. Future Development Effects
2.1 What is a future development effect?
It is an effect that results from extra development rights that are created beyond what the AUP would otherwise enable as a permitted activity across the parent site.
These effects can be created by a subdivision around existing development and/or subdivision in accordance with a resource consent, and often in conjunction with the creation of a vacant site.
It is an effect of the subdivision and therefore must be assessed.
2.2 Wasn’t this called ‘windfall’ before?
Yes, there has been a terminology change.
The way that these effects are considered is no different to how they were previously – the Auckland Council PGN provides an example scenario that can be worked through.
2.3 What AUP provisions provide scope to consider future development effects?
Chapter E38.12.1 Matters of discretion
(6) subdivision around existing buildings and development; and subdivision in accordance with an approved land use resource consent:
(a) the effect of the design and layout of the proposed sites created.
Chapter E38.12.2 Assessment criteria
(6) subdivision around existing buildings and development, and subdivision in accordance with an approved land use resource consent:
(a) the effect of the design and layout of the proposed sites created:
(i) whether the design and layout of the proposed sites create result in new or increased non-compliance with Auckland-wide and zone rules;
2.4 How do we work our whether there is a potential future development effect?
There is a fully worked example in the Auckland Council PGN, however as a summary:
Locate your nearest calculator!
Identify the maximum building coverage and impervious area in the relevant zone standards
Work out the maximum areas permitted over the parent site
Work out the maximum areas proposed and permitted on each of the proposed sites
Is the proposed area less than what is permitted? Would an increase up to the permitted result in non-compliance or increased non-compliance over the parent site? – If yes, you have a ‘windfall’ that needs to be assessed to determine whether it could have a future potential adverse effect.
The same approach can be applied to minimum landscaped area.
2.5 Okay, I have done the calculations, and there is a ‘windfall’. This means that there is an effect, right?
Remember that the calculation/number is not the effect – it’s what would happen if there was additional development that uses the surplus.
For example, if you could get an extra 1% impervious area, perhaps detention/retention tanks are already sized for this and would not change pre-development flows. Any consent notice conditions need to be related to an adverse effect per s108AA of the RMA.
Consider the scale and significance of the effect(s)!
Does the effect need to be mitigated or avoided?
Building coverage – what is the potential effect on neighbourhood character and amenity?
Impervious area – What is the potential effect on infrastructure and hazards? Seek DE input where necessary.
Landscaped area – what is the purpose of the standard? Is the landscaping protected by a condition of the LUC in any case?
A consent notice is not your only avoidance / mitigation option! Sometimes the effects may already be managed, or even simply be less than minor.
Make sure to consider future development effects in the application AEE, as it is a relevant effect of the subdivision to consider.
Also consider whether the Medium Density Residential Standards (MDRS) once incorporated into the AUP may be changing development rights and that proposed consent notice conditions are reasonable in limiting these.
3. Outlook Space and Outdoor Living - how to make sure you are ‘in accordance with an approved land use resource consent’ under standard E38.8.2.1
Outlook spaces and outdoor living spaces that get ‘sliced’ off by future lot boundaries will not comply with the underlying land use consent, where the land use consent drawings showed these spaces as compliant. This means that the subdivision will not be in accordance with the land use consent, and standard E38.8.2.1 will not be met.
If future lot boundaries may affect outlook and outdoor living space, show the non-compliance as part of the land use proposal instead, i.e., through depicting smaller sized outlook areas, or outdoor living space courts. That way, the future subdivision will remain ‘in accordance’ with the land use consent being assessment/granted.
Outlook spaces over a future COAL or right-of-way are fine, as the outcome is the same.
4. Summary
The urban subdivision rules in Auckland as they relate to residential development can often seem quite complicated, especially when considered alongside the myriad of other Auckland Unitary Plan rules that apply to a development.
For some, it may even be easier to obtain a land use consent for a proposal first (with little to no engineering plan details) and then follow it up with a subdivision application later. The latter application often requires further engineering work and can drag out the consent processing timeframes when bundled together. Land use proposals generally only require a higher-level assessment of infrastructure capacity as opposed to detailed design.
Please contact us if you would like any further guidance on how the Chapter E38 urban subdivision rules in the Auckland Unitary Plan may affect your site or proposal.
