Unitary Plan - Interim Guidance - Special Character
The Unitary Plan Independent Hearing Panel has released interim guidance on Topic 029 Special Character. In this blog, we summarise the key parts of that guidance.
Executive Summary
The Panel is not convinced by the arguments put forward by the Council and some submitters that special character (or historic character as the Council is seeking to call it) is "historic heritage" requiring protection as a matter of national importance.
The Panel considers that, if the Council wishes to change the basis for controls on the use and development of residential areas from special character to historic character (i.e. change the policy basis from s7(c) and (f) of the RMA to s6(f) of the RMA) it should proceed by way of a plan change with a robust s32 analysis.
Scope for Change
The Unitary Plan as notified identified and proposed provisions for "special character areas". In B.4.2 Special Character the Introduction states "...In special character areas the maintenance and enhancement of the amenity values and quality of the environment ....." These are s7 matters under the RMA.
The Council has proposed to change "special character'' to "historic character'' and stated that this is based on s6(f) - the protection of historic heritage as a matter of national importance. The Council acknowledged that this is a significant philosophical shift.
For present purposes the Panel assumes that there is scope [to make this change] and proceeds on this basis to consider the merits of a change from "special character'' to "historic character'' and the implications of this.
The Range of Heritage and Character Matters
The Panel agrees that there is a range of "heritage" and "character'' matters that are addressed by the provisions in the Unitary Plan. While different aspects of the range may overlap in particular circumstances, it is still essential to understand the separate bases for them in order to identify appropriate objectives and policies for each aspect.
The highest level of protection of historic heritage and control of land use is for "historic heritage". These are the scheduled items and some associated surrounds and areas in the Unitary Plan. The protection of historic heritage from inappropriate subdivision, use and development is required to be recognised and provided for as a matter of national importance. At a somewhat lower level in the range is "special character", to which particular regard needs to be had to the maintenance and enhancement of amenity values and the quality of the environment.
Historic heritage is different from and should not be confused with the character of the built environment, whatever qualifier is attached to "character''. The policy basis for the management regime dealing with effects on character is under s7 and not under s6.
The Panel is not convinced by the arguments put forward by the Council and some submitters that special character (or historic character as the Council is seeking to call it) is "historic heritage" requiring protection as a matter of national importance.
The reason for this is that the relevant statutory considerations under s6 versus s7 are very different. As a result, the application of them would significantly change the management regime as set out in the notified Plan.
The Panel is [also] concerned about the natural justice implications to those who may have chosen not to submit to the Plan as they may have been satisfied with the nature and extent of the special character areas being applied. The Panel considers that the Council's proposal to elevate what it now calls historic character to a matter of national importance through this process is inappropriate.
The Panel considers that if the Council wishes to change the basis for controls on the use and development of a number of residential areas from special character to historic character (i.e. change the policy basis from s7(c) and (f) of the RMA to s6(f) of the RMA) then it should proceed by a plan change with a robust s32 analysis.
Special Character Provisions
The Panel supports the reviewed provisions provided by a number of parties at the hearing, including the Council and Housing New Zealand, as being generally appropriate to address special character and s7 issues.
Total or Substantial Demolition Rule
The Panel is searching for consistency in the use of "demolition" in the Plan. At this stage the Panel wishes to review the several formulations put forward by parties in these topics and compare them to formulations / variations / definitions / uses in other topics.
Additional Special Character Areas
The Panel does not support the inclusion of additional special character areas in the Plan at this stage. It does not consider that sufficient evidence or analysis has been provided to support such inclusions.
Notification
The Panel considers that the normal tests for notification should apply to special character area provisions.
