Blog
Welcome to 2013!
With strong demand for housing and commercial development and a number of significant policy and plan developments, 2013 is shaping up to be an exciting year for Auckland.
Notable developments include the Resource Management Reform Bill and the development of the new Auckland Unitary Plan. Both documents will have significant implications for property developers and investors. We discuss these documents below:
Resource Management Reform Bill
In terms of the Resource Management Reform Bill, the government has signalled a number of improvements to the RMA to assist with streamlining the resource consenting process.
These improvements are designed to precede a larger-scale resource management reform that will deliver more substantive improvements to the planning and consenting system.
The main features of the proposed Bill are to:
- establish a 6-month consent time frame for medium-sized projects, with additional related improvements to resource consent processes. This seeks to address the remaining inefficiencies following the previous 2009 amendments for small and large projects (this includes controls on “stopping the clock”):
- require a consent authority to agree to a request for direct referral if regulations are made that establish an investment threshold and if the proposal meets that threshold, unless there are exceptional circumstances:
- improve the direct referral provisions:
- establish a streamlined process to assist with developing the first Unitary Plan for Auckland.
- introduce the ability for regulations to be made that require local authorities to monitor the environment according to specified priorities and methodologies.
- clarify the requirements on local authorities for the analysis that underpins plans and policy statements (such as the forthcoming Unitary Plan), including placing greater emphasis on the need for quantitative assessment of costs and benefits and the need to consider regional economic impact and opportunity costs:
- improve decision-making by local authorities to ensure it is based on adequate, relevant, and robust evidence and analysis, and to increase the level of transparency of decision-making:
- clarify and improve the workability of the RMA through a number of technical changes, including—
- extending access to the emergency provisions under the RMA to all lifeline utilities to enable action to save life and prevent injury or damage to property or the environment without first obtaining a resource consent:
- improving the processing of proposals of national significance:
- clarifying that a tree protection rule can only apply to a tree or group of trees that is specifically identified in a schedule to a plan by street address or legal description of the land.
The final deadline for submissions on the Bill is Thursday, 28 February 2013.
A copy of the bill is available at:
http://www.legislation.govt.nz/bill/government/2012/0093/latest/versions.aspx
The Auckland Unitary Plan
We have previously reported on the significance of the Auckland Unitary Plan. The Unitary Plan is a key regulatory tool to implement the Auckland Spatial Plan. The Auckland Spatial Plan was adopted last year.
The development of the Unitary Plan will take centre stage this year.
Anyone with an interest in land investment or development needs to monitor and be involved in the Unitary Plan, as this can have a significant bearing on the value and opportunities of a property portfolio.
The Auckland Unitary Plan will establish a consolidated rulebook setting out what you can (and can’t) do with your land and buildings. It will replace the 12 existing district and regional plans. Once adopted the Unitary Plan will have a life of 10 years.
The new Unitary Plan presents an opportunity to streamline a range of planning rules. It will create a combined Regional and District level rule book. This will involve a rationalisation of the existing zones that presently apply across the greater Auckland region. At the same time, the standardisation of zoning has the potential for greater “up zoning” opportunities or conversely potentially further restrictions. Some of the rules will be similar to those of the old district plans, and some may be completely new. In order to achieve the objectives of the Auckland Plan, it is likely that the rules applying to most properties will change to some extent to achieve the greater intensification aims. We certainly see the likelihood of greater controls in and around achieving good urban design outcomes.
It is important that landowners understand the implications of the Unitary Plan, and the impacts of the new rules/zones on their property portfolio. The submission process can be utilised to protect existing interests, or enable further opportunities. This can be a relatively inexpensive process to ensure that the rules and policies are correct from the outset.
Even if a land owner is happy with the direction of the Unitary Plan, it is important that you lodge submissions in support, because the process of considering and approving these new rules and policies can result in changes to the final version of the Unitary Plan. It is important to be involved in the entire process of the Unitary Plan, in case these rules and policies change and impact on a property portfolio. For example, if you are happy with the proposed parking standards, it is important to support that rule, because if another party lodges a submission that seeks to change the parking standard, that my impact on your desired outcome(s).
Likewise, it is critical to ensure that the rules and policies do not impose unnecessary compliance costs and obligations for the future development or tenanting of sites (e.g. greater parking requirements, restrictions on potential land uses, restrictions on building heights or gross floor areas).
One simple approach will be for all land owners to conduct a gap analysis between the current uses, the existing District Plan rules and the new Unitary Plan rules and policies to identify any changes and/or opportunities for each site. This is essentially about aligning the Unitary Plan rules and policies with the strategic direction of the property portfolio. Getting the rules right now can save a lot of time and angst when it comes to the future development or sale of sites.
The Council is aiming to have a draft of the Unitary Plan prepared by March 2013, with public notification to follow in the latter half of 2013. A submission period will follow, where landowners will be able to lodge submissions in support of or opposition to the Unitary Plan. There will also be hearings to consider these submissions. It is vital that land owners are involved in this process in order to preserve or, where possible, enhance the value of their landholdings. In the meantime, existing district and regional statutory plans will continue to apply. Some parts of the Unitary Plan will have immediate legal effect e.g. heritage and natural resources.
As noted above, a one-off process has been announced by the Government. Council hearings will be replaced with a comprehensive independent hearing panel process for the plan as notified. After considering the plan, the panel will deliver its recommendations to the Council. Where the Council accepts the panel’s decision, these provisions will be immediately operative, subject only to appeals on points of law. Where the Council does not accept the recommendation(s), full appeal rights to the Environment Court will be available. It is estimated that most, if not all, of the plan provisions will be operative in three years.
An Auckland Update
We thought it would be worth providing an update on a number of topical matters that are on the horizon.
Several of these matters will have a bearing on the future of Auckland, including:
- the Auckland Spatial Plan;
- the draft Auckland Unitary Plan:
- the development contribution policy; and
- RMA reforms.
The Auckland Plan
The Auckland Council released its draft spatial plan last year, along with a number of supporting policy documents. The spatial plan, which is referred to as the Auckland Plan, is intended to guide Auckland’s journey to becoming the world’s most liveable city by 2040.
A key objective of the Plan is to deliver a ‘quality compact Auckland’. One of the more controversial methods for achieving this objective was a proposed 75/25 split between growth in existing urban areas and growth in new ‘greenfield’ land. However, the Council has recently announced that it is reconsidering this method, with an indication that it may now adopt a 60/40 split.
The Council has also stated that it will introduce a range of tools to encourage further urban intensification, including significant ‘up zoning’ of land to allow greater residential densities, particularly around existing centres and strategic corridors. The challenge will be to achieve high quality urban outcomes despite increasing density.
The success of the Auckland Plan will be dependent on the implementation tools and funding mechanisms that support the document. These include a clear and concise Unitary Plan, and a development contribution and infrastructure funding system that is effective and equitable.
Fragmentation of land remains a major constraint to integrated development. We believe that there is a compelling case for the establishment of an Auckland urban development agency with the power to compulsorily acquire and aggregate land for urban redevelopment projects. Such an agency would work in partnership with the private sector to unlock the potential of land in strategic locations within Auckland.
The Council intends to adopt the final version of the Auckland Plan in April 2012.
Auckland Unitary Plan
If the Auckland Plan is the visioning document for the City, the Unitary Plan is the means to implement the land use and transport planning that will give life to the vision. It replaces the district and regional plans of the eight former local authorities that existed in Auckland.
The attached photo, showing the current stack of Auckland planning documents, provides some sense of the enormity of the challenge!
The Council has stated that it has adopted the following key principles for the development of the Unitary Plan:
- outcomes focused
- simple
- bold
- innovative
- user-friendly
- regulation in proportion to the scale of potential impact.
The development of the Unitary Plan presents an opportunity to streamline a range of planning rules, including the associated development engineering codes. At the same time, it will be important to recognise those unique and special parts of Auckland that require an area-specific planning response.
In our experience, people want certainty when it comes to knowing what they can do with their property. The Council will have the difficult task of drafting rules that provide for greater certainty while retaining sufficient flexibility to encourage innovative development that enhances urban amenity. We consider that it may be appropriate to draft the rules in a way that enables most projects to follow a standard consenting process, while a more design-focused approach might be required for strategically significant projects.
The Council aims to have a draft of the Unitary Plan prepared by December 2012, with public notification to follow in the first half of 2013. In the meantime, existing district and regional statutory plans will continue to apply. These plans will remain relevant for some time after 2013.
It is important that landowners understand the implications of the Unitary Plan, and the impact of the new rules on their property. The submission process can be utilised to protect existing interests, or enable further opportunities.
Further information on the Unitary Plan is available at:
Development Contribution Policy
A new integrated policy on development contributions and financial contributions will be put in place as part of the Council's Long Term Plan 2012-2022.
The Council has indicated that the proposed development contributions policy would include the following:
- Alignment with the Auckland Plan
- Commonality across the Auckland Region
- Clarity of approach
- Minimal funding areas
- An integrated capital works programme
- New growth projections for the region
- New development contribution charges
- Outcomes focused for Auckland
The activities funded by development contributions include open space acquisition, stormwater infrastructure, transport infrastructure, and local and regional recreation facilities. Watercare charges are not within the scope of the development contributions review, and would continue to be applied separately.
The proposed policy establishes regional or sub-regional funding areas to respond to growth demand. These large funding areas create averaging, with less proximity of assets to particular development. Higher density residential activities are proposed to have a reduced unit charge.
The proposed policy seeks to make the contribution payable at a range of stages, including at issue of a section 224c certificate for a subdivision or upon issue of a building consent. Further flexibility is sought from some in the development community, with a request that the policy provide for payment to be delayed until the Code Compliance Certificate is issued. There seems to be a logical basis for this request, particularly for commercial developments, as occupation and use of buildings cannot occur until the CCC has been issued.
The current development contribution policies of the former councils will continue to apply until 1 July 2012. For consents lodged on or before 30 June 2012, but granted after 1 July 2012, it is proposed that the lower of the old and new charges will apply. For development lodged on or after 1 July 2012, the new policy would apply. The proposed policy includes a discount system for the provision of Low Impact Design (for stormwater management), and an ability to seek refunds for the provision of public assets over and above minimum requirements.
Attendees at the consultation workshops sought transparency in the methodology and assumptions that will underpin the development contribution charges, together with a clear understanding of the infrastructure that will be funded through development contributions.
Further information on the development contributions policy is available at the following link:
The closing date for submissions to the proposed development contributions policy is 4pm on Friday 23 March 2012.
RMA Reforms
The Government is due to consider a range of possible changes to the RMA in 2012, as part of the second phase of its reforms. A technical advisory group (TAG) has been established to review the principles (sections 6 and 7) of the RMA. The TAG, chaired by Auckland barrister Alan Dormer, was requested to report back to Cabinet with recommendations by February 2012.
It is also likely that other initiatives to be considered will include clarifying the relationship of the Auckland Plan with the Unitary Plan, and the role of the Auckland Plan in determining resource consent applications.
There is a possibility that the Government could establish special procedures to deal with the hearing and consideration of the Unitary Plan. While we note that a streamlined plan hearing process can have many advantages, this does have the potential to constrain outcomes that are sought by submitters, particualry if any appeals are restricted only to points of law.
The Government has also signaled that it wishes to facilitate the efficient processing of notified applications, by requiring that decisions be made within six months.
It is proposed that a second Resource Management Amendment Bill containing the Government’s proposals for reform will be introduced to Parliament in late 2012.
Auckland Spatial Plan
What is ‘spatial planning’?
Spatial planning is public sector planning that is undertaken to influence the future distribution of land use activities within a defined area.
The output of spatial planning is generally a plan that identifies future priorities for growth, investment, and conservation within a city or region. Spatial plans are an attempt to create a cohesive and robust blueprint for a city’s future development, through reconciling public sector policies relating to such matters as environmental protection, economic growth, sustainability, social equity, and transport and infrastructure provision.
The objective of a spatial plan is to provide an integrated long-term vision for the growth and development of a region. It is expected that a spatial plan will adopt a planning horizon of up to 30 years. A spatial plan will guide the location of development activities and supporting infrastructure, and indicate the sequencing of such growth.
Why undertake spatial planning?
In Auckland’s case, there is a legislative requirement to undertake spatial planning. Section 70 of the Local Government (Auckland Council) Act 2009 states that the recently formed Auckland Council “must prepare and adopt a spatial plan for Auckland”
Even without this statutory obligation, there are a number of reasons why the Auckland Council would want to prepare a spatial plan for Auckland.
Perhaps foremost on the list is that a spatial plan will provide a consistent long-term vision for Auckland. A stable and coherent planning framework is required if significant private sector investment is to occur. These conditions will also encourage the efficient provision of infrastructure to serve existing communities and future growth.
In addition, a spatial plan will also provide a vehicle for reconciling competing government policies. An obvious example arises in respect of the tension between facilitating economic growth while concurrently seeking to preserve amenity values and the quality of the environment.
The Auckland Spatial Plan
The Auckland Council intends to release a draft Auckland Spatial Plan at the end of March 2011 for public consultation. The intention is, following feedback and further work, to finalise and adopt the spatial plan by the end of 2011.
The Local Government (Auckland Council) Act 2009 describes the purpose of the spatial plan as being “to contribute to Auckland's social, economic, environmental, and cultural well-being through a comprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth and development”.
There is an expectation that the Spatial Plan will have a strong focus on visual maps and plans, to illustrate the constraints, opportunities and priorities for the region. High-level policies will also be incorporated in the document.
The Spatial Plan needs to identify the existing and future distribution of land use activities, including residential and employment activities, critical infrastructure, transportation networks, regionally significant open space, historic heritage sites, landscapes and natural features.
The Auckland Council is required to consult widely throughout the preparation and development of the Spatial Plan. Central government and infrastructure providers, among others, are specifically identified in the legislation as key stakeholders with whom the Council must actively engage. The obligation does not end there. The Council must endeavour to secure and maintain the support and co-operation of these same parties in the implementation of the Spatial Plan.
Adoption of the Spatial Plan must occur in accordance with the ‘special consultative procedure’, which is contained in the Local Government Act. Councils currently utilise that procedure when striking rates, establishing annual plans, and when engaging with communities about significant projects and policies.
Relationship with the Unitary Plan
The Auckland Council is a unitary authority, meaning that it exercises the functions of both a regional and local authority for the Auckland region. It proposes to replace the existing district and regional plans of the former councils with a new ‘Unitary Plan’.
A hierarchy will exist between the Auckland Spatial Plan and the Auckland Unitary Plan. The former document will establish the high-level strategic vision for Auckland, while the Unitary Plan will be one of a number of tools that implement that vision. The Unitary Plan is a subordinate document, which will contain methods and rules to give effect to the Spatial Plan and manage the effects of activities on the environment. The Unitary Plan will give legs to the vision, particularly as it relates to the development of land in private ownership.
It is expected that more detailed (and controversial) issues such as the precise location of the Metropolitan Urban Limits will be debated, and possibly litigated, through the Unitary Plan rather than the Spatial Plan. However, the Spatial Plan will still need to grapple with some difficult issues such as those relating to intensification, identification of ‘greenfield’ growth areas, heritage and environmental protection, economic development, infrastructure provision, and funding for the costs associated with growth. It is also important to remember that Auckland has developed, at least partially, in a polycentric manner. As a consequence, the Spatial Plan would be expected to provide significant opportunities and choice to the community outside of the CBD in terms of housing, employment and social needs.
Implementation Tools
Formulation of the Spatial Plan presents an ideal opportunity to debate whether the right tools are in place to deliver the vision for Auckland. Fragmentation of land is a major constraint to integrated development, and perhaps there is a need now to revisit the creation of urban development agencies. Such agencies would be able to aggregate land and work in partnership with the private sector on major redevelopment projects, in order to unlock the potential of land in strategic locations within Auckland.
In addition, the use of greater development incentives could be considered. Examples might include density and height bonuses and development contribution reductions to encourage land aggregation and more efficient use of sites. It is also likely that the Spatial Plan will include a strong focus on raising the quality of urban design, particularly in town centres.
The Spatial Plan will need to secure a level of buy-in from central government. Substantial government funding will be spent over coming decades in Auckland, and the outcomes of that spending should be well-aligned with the vision encapsulated in the Spatial Plan. Close alignment of central and local government strategic objectives and associated funding has the potential to transform Auckland into the most liveable city in the world, and one of the most productive. The government has recently issued a number of position papers on the Spatial Plan and it will be interesting to see how these align with the thinking of the Auckland Council. Copies of these papers are available at the following link:
Who should be interested?
The new Auckland Spatial Plan should be of interest to anyone who is interested in the future of Auckland, or is involved in the New Zealand planning system. For professional planners it is an exciting development, and may be a sign of things to come in other regions. For developers and business leaders it represents a rare chance to help shape the future of New Zealand’s economic engine, and identify trends and opportunities that can inform investment and grow business. It is also an opportinuty to recognise those areas and features that make Auckland special.
Campbell Brown Planning Limited can provide advice and assistance to help you understand the wide opportunities that exist with regard to the proposed Auckland Spatial Plan.
Proposed National Policy Statement on Indigenous Biodiversity
The Ministry for the Environment has released a proposed National Policy Statement on Indigenous Biodiversity (proposed NPS) for public comment. The proposed NPS would establish policies and decision-making frameworks for the identification and management of indigenous biodiversity.
Local authority initiatives to protect significant indigenous vegetation and significant fauna habitat have often met with heated responses from landowners keen to avoid the erosion of existing development rights. The proposed NPS is an attempt to provide greater clarity and consistency around these issues.
Councils should be aware that many local authorities would need to promulgate specific plan changes to accommodate new obligations arising under the proposed NPS.
The proposed NPS will be of particular interest to local authorities, environmental groups, infrastructure providers, Maori, farmers and other owners of land containing significant indigenous vegetation and fauna habitat.
National policy statements are government initiated policy documents that provide guidance on matters of national importance. The policies contained in an NPS provide a framework for local authorities when exercising functions under the RMA, particularly when considering applications for resource consent and preparing statutory planning documents such as district plans.
In this case, the proposed NPS relates to the need to maintain New Zealand’s indigenous biological diversity. This objective links back to section 6(c) of the Resource Management Act 1991. The maintenance of indigenous biological diversity is also specifically identified as a function of regional councils and local authorities under sections 30 and 31 of the RMA.
Notable features of the proposed NPS are:
- The proposed NPS contains a list of criteria to help councils identify areas of native vegetation and habitats of indigenous animals that are rare or threatened at a national level;
- The proposed NPS requires district and relevant regional plans to identify these areas of significant biodiversity within five years of the NPS taking effect;
- Local authorities would be required to manage the effects of activities through district and regional plans and resource consent decisions to ensure there is no net loss of significant indigenous biodiversity;
- The proposed NPS seeks to promote the maintenance of indigenous biodiversity while recognising the rights and responsibilities of landowners and the interests of Maori;
- The proposed NPS does not apply to land that is within the public conservation estate.
Regional policy statements notified after the proposed NPS takes effect would be required to include criteria for the identification of areas of significant vegetation and significant habitat of indigenous fauna. As a minimum, regional councils would need to adopt the ‘baseline’ criteria that are set out in the proposed NPS in order to meet their obligations under the RMA.
The proposed NPS would also require that district and regional plans include maps or schedules of significant indigenous vegetation and significant habitats of indigenous fauna, together with the baseline criteria for identifying such areas if the plan does not already include more stringent criteria. This latter obligation would need to be satisfied within five years of the NPS taking effect.
The proposed NPS introduces a couple of interesting concepts. Local authorities must manage the effects of activities to ensure that there is ‘no net loss’ of biodiversity. Decision-makers can achieve this objective by accepting that effects on biodiversity will be ‘offset’, as an alternative to the conventional resource management techniques of avoiding, remedying or mitigating. Schedule 2 of the proposed NPS sets out a number of principles to be applied when considering a biodiversity offset.
Policy 8 of the proposed NPS would impose consultation requirements on local authorities when developing biodiversity-related provisions in their plans. The policy is noteworthy as it includes a specific requirement to consult with people whose properties would be affected by the proposed plan, in addition to the general public and tangata whenua. This reflects an acknowledgement that the goodwill and sympathetic management of private landowners is fundamental if the biodiversity decline is to be arrested.
The proposed NPS has the potential to impose substantial costs on local authorities, through the technical work that may be required to identify the areas of significant vegetation and fauna habitat in the district and promulgate a subsequent plan change. Plan change processes also carry the prospect of expensive litigation if appeals are lodged in relation to a council’s decision.
Landowners with significant indigenous vegetation on their land, but currently with little or no district plan restrictions applying to the management of that land, should see the proposed NPS as a signal that a more restrictive district plan management regime is on its way. It is increasingly likely that the district plan will identify the vegetation as being significant and impose controls on clearance. Infrastructure providers might consider it appropriate for the proposed NPS to include some recognition of the public good element of major infrastructure, in order to guide decision-makers when balancing competing protection and development objectives.
There are some inherent challenges in the proposed NPS. On the one hand, the overriding objective is to halt the decline in New Zealand’s biodiversity by preventing further loss of significant vegetation and fauna habitat. However, the proposed NPS also explicitly recognises the rights of people and communities to make reasonable use of their land. This tension can be difficult to reconcile and requires local authorities to undertake a fine balancing act.
The Government is seeking public submissions on the proposed NPS. The opportunity to lodge a submission closes on 2 May 2011.
Campbell Brown has substantial experience of resource management processes within areas that have significant indigenous vegetation and fauna habitat, covering both district plan development and resource consenting. We can offer further advice about the proposed NPS and its implications, or provide assistance by drafting a submission. Campbell Brown can also assist local authorities by conducting a brief review of statutory plans to determine the extent of amendments that may be required to meet the obligations arising under the proposed NPS.
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