of the Resource Management Act 1991 as amended by the Local Government (Auckland Transitional Provisions) Amendment Act 2010

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1 In the Matter And In the Matter of the Resource Management Act 1991 as amended by the Local Government (Auckland Transitional Provisions) Amendment Act 2010 of a submission lodged by Omaha Beach Community (Inc) (2970 2) on the Proposed Auckland Unitary Plan Statement of Evidence of CCH Allan on behalf of Omaha Beach Community (Inc) in relation to Topic February 2016 Richard Brabant Barrister Level 2, Broker House, 14 Vulcan Lane PO Box 1502, Shortland St Auckland City richard@brabant.co.nz 1

2 Summary 1. The coastal settlement at Omaha South has been largely developed to a master plan completed by John Darby. Comprehensive subdivision and land use consents were obtained at the outset for the different neighbourhood units within the planned settlement. 2. Comprehensive legal documentation was completed by the landowner/developer which requires every residential or commercial building (there is a small commercial precinct) to obtain design control approval from the Omaha Beach Residents Society ( OBRS ) Design Control Committee ( DCC ). 3. The objects of the OBRS Constitution include "the control of the design of all improvements, buildings, dwellings, landscapes and works of every kind on any property". Every property owner at Omaha South is required by an encumbrance secured over every title to be a member of the OBRS and comply with all of the provisions of the Constitution. 4. The registration of land covenants, encumbrances and consent notices required as a condition of the original subdivision consents and every property owner is required to comply with the rules in Plan Change 76 (which became the Omaha South Special Zone in Chapter 12 of the Rodney District Council District Plan) in respect of any building or development to be undertaken in the Omaha South settlement. Clause 15.5 of the Constitution imposes that obligation for a term of 20 years from 23 January The legal mechanisms established at the outset and the design requirements imposed since then provide certainty of built outcomes for all residents within the Omaha South settlement. There are approximately 40 sites yet to be developed out of a total of

3 Qualifications and Experience 6. My full name is Christopher Calder Hamilton Allan. I am a partner in the Auckland law firm of Grove Darlow & Partners. I have some 33 years experience in property and commercial law. I am familiar with the legal documentation relevant to this hearing, registered against all of the property titles in the Omaha South settlement. My family owns a residential dwelling in the Omaha South settlement through a family trust. 7. There are two Residents Associations active in the Omaha Beach coastal settlement. The "over-arching" Residents Association is the Omaha Beach Community (Inc). Some 96% of the property owners at Omaha Beach are members of OBC. For property owners at Omaha Beach North this is voluntary; all property owners at Omaha Beach South are members of OBC through the OBRS being a member of OBC. I am a committee member of OBC and have been for 8 years. In the past I have been a committee member of OBRS and I'm familiar with the Constitution and the way in which Design Approvals are managed through the DCC. Legal mechanisms for securing development outcomes 8. Appendix 1 is a copy of the OBRS Constitution. Section 15 establishes the DCC and sets out the design approval process for all buildings. The DCC must include in its membership and urban planning consultant and an architect. 9. Appendix 2 is a copy of the Design Guidelines, developed by the Committee in consultation with the DCC. 1 The Guidelines are written in a way which distinguishes building controls which are mandatory, directory, or encourage a preferred form of development. Importantly, the Constitution stipulates that design approval is subject to Rule 1 Rule

4 15.5. This rule requires all members, in respect of any building or development within the precinct (refer to definition) to comply with the rules in Plan Change 76 of the District Plan (which became the Operative Special Zone for Omaha South) for a term of 20 years from 23 January I assume this term was chosen as a sufficient period for these plan provisions to be obligatory to ensure all development was completed in accordance with the same development controls. With only some 40 sites yet to be developed that seems almost certain to be achieved; however there is an emerging pattern of alteration and addition work for which Design Approval is being sought. 10. All members of the Society are required by Rule 15.6 to obtain Design Approval from the DCC before any request to the Auckland Council for a resource for building consent. That rule imposes an order of priority on design compliance, being during the 20 year term compliance with PC 76, and when that term expires the development controls in the District Plan applying to Omaha South. 11. Apart from legal encumbrances or covenants securing these special arrangements to control building development, there are also consent notices on titles where, in agreement with iwi, midden sites were surveyed and identified on the Deposited Plans and on titles affected, to protect those sites. This mechanism was addressed on behalf of OBC in an earlier topic. 12. Appendix 3 is a copy of a title for a property at Omaha South showing the registration of the encumbrances which secure the intended development outcomes. 13. The only circumstances in which the Society may give a Design Approval to a development that does not comply in all respects with the development controls in (what is now) the Omaha South Special 4

5 zone is set out in Rule This provides for the obtaining of a written certification of an expert that "the proposed non-compliance or deviation from Plan Change 76 will not have a materially adverse impact on the efficacy of Plan Change 76". To date, the Society has engaged the services of Mr Allan Watson to complete this task. To the best of my knowledge, there have not been a large number of requests for deviation, and where they have been his certification has been the exception rather than the rule. Conclusions 14. Those who designed and developed the Omaha South coastal settlement completed a master plan and put in place legal processes to ensure certainty of development outcomes. The coastal community has relied on those provisions and property owners have obligations through legal encumbrances on their titles in relation to building works. 15. These are tied to what, at the time the documents were completed, was the plan change which enabled the settlement to happen. The continued application of the development controls referred to in the Constitution is requested by the OBC on behalf of the residents to ensure a continuity of development outcomes. Dated this 10th day of February 2016 Chris Allan 5

6 Appendix 1: OBRS Consitution

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33 Appendix 2: Design Guidelines

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39 Appendix 3: Certificate of Title for a Property in Omaha South Showing Encumbrances

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