The Government has been trying for years to curate environmental policy and planning to ensure land supply for development. By Alice Balme, partner, and Imogen Edwards, associate, Wynn Williams.
The National Policy Statement on Urban Development Capacity 2016 was short-lived and was swiftly replaced by the National Policy Statement on Urban Development 2020 (NPS-UD) as part of Government’s Urban Growth Agenda. The NPS-UD took a more direct approach, including mandating that the highest growth (tier 1) councils provide as much development capacity as possible in city centres and enable development of at least six storeys in metropolitan centres and areas near rapid transit stops. The NPS-UD also sought to reduce the emphasis previously placed on the effects of development on amenity values, and axed plan provisions that required minimum numbers of car parks for development (other than accessible car parks).
Still not satisfied, as the Honourable David Parker MP put it, the Government “drew Excalibur” and slashed further constraints on land supply. With cross-party support the Government introduced the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021. The Act amends the Resource Management Act 1991 and requires tier 1 councils to amend their planning rulebooks to enable up to three, three storey dwellings on any residential zoned land without requiring resource consent.
In addition to enabling three, three storey dwellings, the Act provides enabling development standards known as the Medium Density Residential Standards (MDRS) – which address matters such as height in relation to boundary, setbacks, building coverage etc. Provided a proposal meets the MDRS, resource consent is not required, so there can be no scrutiny on issues like urban design.
The 14 tier 1 district councils (in the Auckland, Waikato, Bay of Plenty, Wellington and Canterbury regions) must make the required amendments no later than 20 August 2022.
What does this mean?
With the 20 August 2022 deadline fast approaching, tier 1 district councils are busy preparing and consulting on “intensification planning instruments” to implement the MDRS. The urban landscape in such areas is expected to change significantly. All residential land will have the opportunity for substantial development, with only large-lot residential zones and areas subject to “qualifying matters” being excluded. Qualifying matters may justify a departure from the MDRS and include matters of national importance under section 6 of the RMA, the safe and efficient operation of nationally significant infrastructure and “any other matter that makes higher density inappropriate in an area”.
Intensification planning instruments follow a streamlined plan-making process. An independent hearings panel will consider submissions and make recommendations to councils. If the recommendations are accepted, the changes become operative with no right of appeal and challenge only available by judicial review. If any recommendation is rejected by a council, the Minister for the Environment has the final say – again, there is no right of appeal and challenge is only available by way of judicial review.
While mandated MDRS may make the intensification planning process seem like a fait accompli, it’s difficult to imagine that the process won’t be contentious and become a political hot potato. A number of organisations have an interest in seeing greater intensification enabled, while others will have a strong view about where and how development should be limited in response to qualifying matters.
With no appeal rights, submitters have one chance to influence the decision on how the MDRS will be implemented in each tier 1 district – battle lines will be drawn and will be hard-fought.
Will the changes fix the housing supply problem?
The changes may be welcome news for developers or people thinking about building and subdividing off the backyard. However, tier 1 councils working to implement the changes under urgency may not be as thankful for disruption to their other planning processes.
While the RMA and planning restrictions are often blamed for housing supply issues, the MDRS is unlikely to be a panacea for New Zealand’s housing shortage. There are other short, medium and long-term impediments to delivering quality affordable housing. Planning constraints may be lifted, but the MDRS will not resolve the shortage or cost of building materials, nor magically build roads and three waters infrastructure overnight.
Regardless, Excalibur has been pulled from the stone and all we can do is wait and see whether the MDRS will shift the dial and result in well-functioning urban environments and a competitive land and housing market.