Environment Court Confirms Correct Interpretation of Rural Subdivision Rules

Environment Court Confirms Correct Interpretation of Rural Subdivision Rules

A recent Environment Court decision has unlocked significant rural subdivision opportunities for rural landowners in Auckland.

The decision confirms that the rules relating to the creation of additional sites through the protection of ecological features are not as restrictive as Auckland Council have been interpreting them. It’s a win-win for landowners and the environment, and it exposes a critical flaw in the way Auckland Council has been processing rural subdivision applications in recent times.

Before we dive into the specifics of the decision, let’s take a step back. What exactly are these rural subdivision rules, and how has Auckland Council’s interpretation been holding landowners back?

Chapter E39: Subdivision – Rural

The Auckland Unitary Plan is the rulebook for how Auckland’s natural and physical resources are used, including how rural land is subdivided. Of relevance are:

  • Chapter E39: The rural subdivision rules
  • Standard E39.6.4.4: Specific rules relating to the creation of sites through the protection of wetlands or native vegetation
  • Table E39.6.4.4.1: Specifies the minimum area required for wetlands and native vegetation

For more on what rural subdivision is, you can find this information on our website, here.

Auckland Council’s Interpretation

Auckland Council’s position is that these areas have to be contiguous, or all in one block. This interpretation, as the Environment Court correctly pointed out, is not consistent with the wording in the Auckland Unitary Plan, or in fact, the purpose and principles of the Resource Management Act 1991 (RMA).

A scenario that we often see is that a property will have separate smaller wetlands or areas of native bush. Each is under the relevant threshold, but combined, they meet or exceed the relevant threshold. Because they’re not physically joined (contiguous), Auckland Council wouldn’t count them towards the area of feature protected to enable subdivision. They would; however, still require those smaller areas to be protected as part of a successful application that involved protection of qualifying contiguous features.

The Environment Court’s Decision

The Environment Court ruling confirms that the rules must be interpreted as written in the Auckland Unitary Plan. This now means that the areas of smaller, separate wetlands and pockets of native vegetation can be combined to meet the subdivision thresholds.

The Environment Court was particularly critical of Auckland Council’s interpretation. They concluded that the reason for their approach was an internal decision to suppress further subdivision within the rural area rather than the protection of important ecological resources, which ultimately worked against the purpose of s 6(c) RMA, which is the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna, and a matter of national importance.

The full decision can be found here.

Implications for Rural Landowners

The Environment Court’s decision has major implications for rural landowners in Auckland, most importantly, increased subdivision potential.

This decision also provides rural landowners and their consultant teams with more certainty when investigating rural subdivision potential, and ultimately, will reduce subdivision consent processing timeframes.

Moving Forward with Confidence

While this decision creates significant opportunities for rural landowners, translating it into practical outcomes requires thorough evaluation of your specific situation. Each situation is unique, requiring specific expertise in rural subdivision and ecology. If you’d like further information about the decision or to understand the implications for your property, please reach out to our team.

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