SMBA’S submission on PC 78



TO: Planning Technician, Auckland Council



TELEPHONE 09 3765414 or 021 902 744


This is a submission opposing Proposed Plan Change 78 as it affects the inner city suburb of Auckland known as St Mary’s Bay. This submission relates to all aspects of PC78 as they affect St Mary’s Bay which, for the purposes of this notice, is the area bounded by St Mary’s College and Jacob’s Ladder in the east, the northern motorway to the north, Curran Street to the west and Jervois Road/College Hill to the south.

The Association will not benefit in any form of trade competition through this submission.


This submission relates to all of Plan Change 78.

This submission is lodged by the Association which was formed IN 1975 for the purpose of supporting the interest and welfare of residents living in St Mary’s Bay. The Association currently has over 300 members.

The St Mary’s Bay area is recognised regionally, nationally, and internationally as a uniquely preserved collection of period housing dating back to the 1800’s. The housing stock of St Mary’s Bay and similar inner suburbs of Auckland are said to be the largest surviving collection of 19th Century wooden dwellings in the world. The legacy nineteenth century road network is characterised by its small and narrow streets.

The Association generally opposes Plan Change 78 because it has not been sufficiently nor accurately assessed, there has been inadequate consultation, and it is not consistent with sound resource management practice, the sustainable management purpose and principles of the Resource Management Act 1991 and will not enable people and communities to provide for their social and economic well-being.

Primary Submission

The Association opposes the changes being introduced by Proposed Plan Change 78 (“PC78”) for the primary reason that the National Policy Statement on Urban Development 2020 (as amended May 2022) (“NPS-UD”) does not give effect to the Resource Management Act 1991. None of its directions, including purported rules, are the product of a section 32 analysis.

The directives contained in the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 (“the Amendment Act”) are inconsistent with and do not give effect to the requirements of Part 2 of the Resource Management Act 1991. They do not provide for managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural wellbeing. The proposals enable and require development which will generate significant adverse effects on the environment.

Without derogating from this primary submission, the Association wishes to make the following more specific submission points in opposition to Plan Change 78:

  1. The Association opposes the walkable catchment of 1200 metres imposed on St Mary’s Bay and measured from the western edge of the City Centre zone.
  1. The Association opposes the removal of the majority of the Special Character Area Overlay from St Mary’s Bay, and particularly in circumstances where there has not been any analysis or justification for this action in the s.32 RMA reports.
  1. The Association opposes the potential through Plan Change 78 to reduce significantly the protection of the historic heritage of St Mary’s Bay whether by the failure of the Council to fulfil its obligations under s.6f RMA, the Heritage New Zealand Pouhere Taonga Act 2014, and the AUP Chapter B5 Regional Policy Statement instruction, or otherwise.
  1. The Association opposes the failure of Plan Change 78 to provide for historic heritage and/or special character sub-areas over St Mary’s Bay particularly in circumstances where the number of historic heritage dwellings present across St Mary’s Bay reached the 75% and 66% arbitrary threshold unilaterally imposed by the Council without any statutory or evidential foundation. The Association notes with concern the inadequacies of the Council historic heritage rating method for dwellings and the failure to follow the guidance found in AUP Schedule 15 which determines the attributes that contribute to heritage and character.
  1. The Association opposes the failure of the Plan Change 78 to recognise the spiritual, ecological, archaeological, and historic value of the Kauri residential buildings located across St Mary’s Bay as the legitimate built remnants of the forests of Tai Tokerau and Waitakere. This failure shows neglect for the principles of the Treaty of Waitangi, an obligation which the Council must meet under s.8 RMA.
  1. The Association opposes the walkable catchment of 400 metres from the Ponsonby Road Town Centre zone imposed over St Mary’s Bay and opposes the characterisation of Ponsonby Road as a Town Centre that justifies a walkable catchment under Policy 3(d) National Policy Statement on Urban Development (NPS-UD).
  1. The Association opposes the reliance on the Ponsonby Town Centre zone to justify any walkable catchment from Ponsonby Road. The Council is not required by the NPS-UD or otherwise, to impose any walkable catchment from any Town Centre Zone.
  1. The Association opposes any walkable catchment extending into St Mary’s Bay being imposed and/or measured from any part of Ponsonby Road.
  1. The Association opposes the failure of the Council to provide a structure plan (or other) analysis of the likely effects of proposed intensification over St Mary’s Bay as required under the provisions of the AUP Chapter B, and s.32 RMA.
  1. The Association opposes the failure of the Council to include the road network of St Mary’s Bay as a Qualifying Matter recognising the physical constraints of the network and its inability to manage the traffic generation that will arise from the proposed intensification.
  1. The Association opposes the absence of any controls/rules /or standards to prevent development applications being considered for consent in areas covered by the Combined Wastewater/Stormwater Constraint notation.
  1. The Association opposes the deletion of important standards in the MHU zone, namely 6.6 Alternative Height in Relation to Boundary and the associated amenity standards for assessment found H5.8.2(5) Sunlight Access (a) & (b) and Overlooking and Privacy (d); and H5.6.7 Height in Relation to Boundary adjoining lower intensity zones.
  1. The Association opposes the absence of a minimum site size for development in the THAB zone in St Mary’s Bay. The Association notes the need to ensure that THAB development opportunities are restricted to the road network that can provide complying carriageway width and pavement strength to sustain intensification development.
  1. The Association requests Plan Change 78 be amended to account for the above matters and to impose the Low Density Residential Zone over all properties that will be located in an Historic Heritage area or Special Character Area Overlay in St Mary’s Bay in satisfaction of this submission.
  1. The Association requests that Plan Change 78 reinstate the operative zones of St Mary’s Bay that have been altered by PC78, that were not included in the operative St Mary’s Bay Special Character Area Overlay prior to the notification of PC78.


The reasons for The Association’s opposition to PC78 are as follows:

  1. Walkable Catchments – The walkable catchment of 1200 metres imposed from the western edge of the City Centre Zone is contrary to international planning advice and unsupportable. The Council’s international consultant, Mr Jan Gehl, recommended 500-800 metres as the furthest walking catchment likely to be used in association with a city centre. His advice was received and adopted by the Council in 2011 and is now ignored. All international recommendations are based on an 800 metre maximum walkable catchment. This distance gives recognition to topography and the various population cohorts likely to walk. In particular the requested 800 metre walkable catchment cannot rely on access via Jacob’s Ladder or the St Mary’s Bay motorway pathway because these routes are declared unsafe by Council’s Parks Department.
  1. Justification for SCA Removal – The Council has failed to justify the removal of the SCA overlay from St Mary’s Bay in the s.32 RMA reports which have been written to support PC78. There is no reference in any report to the reasons for the removal of this important resource management district plan control from this suburb. The demolition control is an integral part of the SCA and is the technique relied upon to implement the instruction of AUP Chapter B5.
  1. Historic Heritage Ratings – Having provided an historic heritage rating for every dwelling in St Mary’s Bay, the Council acknowledges that over 200 of the existing dwellings have high historic heritage value and therefore are protected by s.6f RMA. The obligation to protect these dwellings has been ignored. Although the Association notes the inadequacies of the rating methodology, it has used the rating methodology to review obvious errors in the rating assessments of some dwellings in St Mary’s Bay. The Association has taken expert advice to conclude that some dwellings rated “4” in the Council methodology are more accurately rated “5”. The attached plan Annexure 1 (shown below) sets out the Association’s assessment of sub-areas of historic heritage which meet the Council’s arbitrary thresholds for inclusion in Special Character areas. The attached Annexure 1 (shown below) Plan demonstrates the Association’s review of the heritage rating outcomes across St Mary’s Bay. The plan confirms that the arbitrary Council imposed threshold of 75% and 66% are met. In addition, any dwelling or part thereof predating 1900 requires specific protection under the Heritage New Zealand Pouhere Taonga Act 2014. This acknowledgement has not occurred in PC78.
  1. No Reason for SCA Removal – The Council gives no reason in the s32 RMA documents supporting PC78 why the previous Special Character Area Overlay for St Mary’s Bay has not been imposed as in other inner city suburbs but has been withdrawn despite the clear evidence that groupings of historic heritage dwellings across St Mary’s Bay reach the arbitrary thresholds of 75% and 66% used throughout Auckland by the Council, as the basis for reimposing Special Character Areas. Of particular concern is the removal of protection of the environs of Selby Square – a unique civic and heritage part of Auckland containing a scheduled building.
  1. Te Tiriti o Waitangi Obligation s8 RMA – The intensification outcome of PC78 directly attacks the mauri and wairua of the ancient Kauri forests which are extant in the Kauri cottages and villas across St Mary’s Bay. There is no s.32 documentation discussing why this spiritual and ecological connection has been ignored contrary to the provisions of s8 RMA.
  1. Ponsonby Road Town Centre Zone – Ponsonby Road and its environs are not properly characterised as a major or minor town centre because it has none of the characteristics of a town centre. Ponsonby Road is unique because it is a lineal specialist retail/entertainment town centre space with few amenity, convenience, or community facilities. The retail catchment is mainly beyond any walkable catchment. This matter arises from Policy 3(d) NPS-UD. It is an option and is not a mandatory requirement. The Ponsonby Road Town Centre Zone is identified as a large third tier zone. In fact, it is very low density and is not a significant employer. There is very limited commercial activity above ground level. Future development opportunities are significantly limited by the Business Special Character Area constraints along the full length of Ponsonby Road. In the light of this knowledge, Council should have exercised its discretion not to attach THAB zoning to it.
  1. No Walkable Catchment Required – The walkable catchment of 400 metres from Ponsonby Road is therefore a fiction invented by the Council. Policy 3(d) of the NPSUD makes walkable catchment imposition from town centre zones an option for the Council to impose. The imposition must be related to the character and amenity provided by the Town Centre Zone. There is no obligation on the Council under the NPSUD or otherwise to impose a walkable catchment connected to the Ponsonby Town Centre Zone, nor is there any objectively sustainable imperative for any walkable catchment to be related to the Ponsonby Town Centre Zone and/or Ponsonby Road. There is no justification in this case for the Council to do so in Plan Change 78.
  1. Failure to Provide Structure Plan – The only planning method available for the Council to test the potential adverse effects of the intensification model across St Mary’s Bay is to use the structure planning analysis technique endorsed by Chapter B2 of the AUP. This will enable a finer grained and more context specific analysis for changes to the operative plan. The failure of the Council to prepare a structure plan for this major urban paradigm shift to settlement patterns and development initiatives is contrary to the provisions of s.32 RMA and the quality and sufficiency of the proposed changes in Plan Change 78 are irretrievably undermined and cannot be relied on. Just by way of example, Plan Change 78 has failed to account for current road network, infrastructure and open space limitations.
  1. Best Zone Choice – The newly created Low Density Residential Zone is the appropriate zone to be placed on any parts of St Mary’s Bay where an Historic Heritage Area or Special Character Area overlay is imposed. The Mixed Housing Urban Zone is inappropriate as the underlying zone for such overlays and must be restricted to sites where redevelopment is not contrary to the purpose of any heritage or special character overlays. The zone choice requested by the Association is depicted on Annexure 2 (shown below) attached to this submission.
  1. Wrong Zone Choices – Without justification the Council, through PC78, has wrongly rezoned areas of St Mary’s Bay which were not covered by the former Special Character Area Overlay in the Operative AUP for greater intensity. This action has been taken without consultation with the affected landowners or with consideration to the potential adverse effects. These areas must revert to the operative zone arrangements accepting that previous MHS zoned areas will become MHU zone.
  1. Road Network Constraints – There are existing serious transport infrastructure constraints throughout St Mary’s Bay relating to substandard road reserve widths, traffic congestion and high on-street parking demands. The proposed residential intensification will overwhelm the existing transport infrastructure leading to serious adverse social, economic and cultural effects. There is no capacity for the Council to improve the existing transport infrastructure to avoid, remedy or mitigate such effects without significant road widening involving major traffic disruptions and significant property acquisition. There has been no s.32 RMA analysis of such effects and/or assessment of the serious impact that will occur from the proposed residential intensification through Plan Change 78.
  1. Section 77I of the Amendment Act provides that:

“A specified territorial authority may make the MDRS and the relevant building height or density requirements under policy 3 less enabling of development in relation to an area within a relevant residential zone only to the extent necessary to accommodate 1 or more of the following qualifying matters thatare present:

(j) any other matter that makes higher density, as provided for by the MDRS or policy 3, inappropriate in an area, but only if section 77L is satisfied.”

  1. Section 77L provides as follows:

“Further requirement about application of section 77I(j)

A matter is not a qualifying matter under section 77I(j) in relation to an area unless the evaluation report referred to in section 32 also—

(a) identifies the specific characteristic that makes the level of development provided by the MDRS (as specified in Schedule 3A or as provided for by policy 3) inappropriate in the area; and

(b) justifies why that characteristic makes that level of development inappropriate in light of the national significance of urban development and the objectives of the NPS-UD; and

(c) includes a site-specific analysis that—

(i) identifies the site to which the matter relates; and

(ii) evaluates the specific characteristic on a site-specific basis to determine the geographic area where intensification needs to be compatible with the specific matter; and

(iii) evaluates an appropriate range of options to achieve the greatest heights and densities permitted by the MDRS (as specified in Schedule 3A) or as provided for by policy 3 while managing the specific characteristics.”

In accordance with sections 77H and 77L Auckland Council has determined that the level of access provided to the existing Beachlands Coastal Village, for which no improvements in capacity are presently contemplated, should not be subject to density increases and that the roading network limitations and traffic situation constitute a Qualifying Matter. For the same reasons the roads in St Mary’s Bay which are of substandard width must be regarded as a Qualifying Matter.

  1. Failure to Control Development in Infrastructure Constrained Areas – PC78 has imposed constraint mapping across St Mary’s Bay to address the Combined Wastewater/Stormwater constraints. A rule is required to prevent development applications for intensification from lodgement until the constraint is addressed with upgraded infrastructure
  2. Abandoning Amenity Controls in MHU Zone – The amenity standards for solar access and privacy in the operative MHU zone provide a guarantee that properties enjoy an acceptable level of amenity from neighbouring developments. These standards must be reinstated in the new MHU zone to protect these basic amenities.
  3. Minimum Lot Size in THAB Zone – All development in the THAB zone requires a minimum lot size of at least 1000m² to achieve the purpose of the development envelope promoted by the THAB zone. THAB developments must be restricted to roads with reserve widths of not less than 16 metres to meet AT standards.
  1. Summary – Overall, the Council has failed in its duty to prepare a plan change which meets the purpose of s.32 RMA, and to protect the wellbeing of the community and the historic heritage of St Mary’s Bay required by Part 2 RMA. PC78 does not achieve sustainable management and is accordingly contrary to the purpose of the RMA.

The Association seeks the following decisions by the Council, amending PC78:

  1. Reduce the Central City Zone walkable catchment to 800 metres measured form Victoria Park Market and ignoring Jacob’s Ladder as an access point.
  1. Reimpose the operative Special Character Area Overlay across St Mary’s Bay, or, alternatively impose Historic Heritage Character Areas as set out in the St Mary’s Bay Association’s submission Annexure 2 (shown below)
  1. Accept the inadequate road network capacity of St Mary’s Bay as a Qualifying Matter under the Amendment Act and NPS-UD criteria.
  1. Assist the implementation of the Combined Wastewater/Stormwater Constraint notation by preventing/or delaying the consideration of new development applications within the notified area until the constraint is remedied.
  1. Impose the operative Standards H5.6.6 and H5.6.7 and the associated assessment criteria at H5.8.2(5) to the revised format of the MHU Zone in PC78.
  1. Impose a minimum lot size of 1000m² for new development in the THAB Zone and prevent such developments on road with a reserve less than 16 metres.
  1. Delete the reference to any walkable catchment extending into St Mary’s Bay, measured from the Ponsonby Road Town Centre western edge or elsewhere.
  1. Impose the Low Density Residential Zone as the underlying zone for any areas covered by Historic Heritage Area or Special Character Area overlays as depicted on the plan attached as Annexure 2 (shown below) to the submission of the St Mary’s Bay Association.
  1. Reinstate all operative or similar zones across those parts of St Mary’s Bay not affected by the Historic Heritage or Special Character overlays as depicted on the plan attached as Annexure 2 (shown below) to the submission of the St Mary’s Bay Association.

The Association wishes to be heard in support of this submission and declares that it cannot gain any advantage in trade competition through this submission.

The Association’s members are directly affected by the adverse effects that will arise from PC78 and as set out by the matters of concern in this submission.

Signature of Submitter’s Agent:

Signed for and on behalf of the St Mary’s Bay Association

Date: 29 September 2022