Mike Doesburg, a partner at Wynn Williams, asks: what will land use plans look like in a system deliberately blind to visual amenity?
The topic of amenity can be emotionally charged… People tend to feel very strongly about the amenity they perceive they enjoy. Schofield v Auckland Council [2012] NZEnvC 68, at [51].
At a high level, it is difficult to argue against planning and resource consent decisions that seek to maintain and enhance amenity values (section 7(c)), being those natural or physical qualities or characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes.
We want our cities, homes and public spaces to be pleasant and appealing. However, participants in the resource management system know how readily such issues generate dispute, delay and litigation, adding cost and complexity to otherwise meritorious proposals.
The reform of the resource management system proposes a blunt solution to the “amenity issue”.
Under the Planning Bill, decision-makers must disregard effects associated with “the visual amenity of a use, development, or building in relation to its character, appearance, aesthetic qualities or other physical feature”.
Decision-makers must also disregard the “internal and external layout of buildings on a site” and “views from private property”.
The proposed approach is not entirely novel. The previous Government’s reform attempt with the Natural and Built Environment Act 2023 had removed amenity as a system outcome from that short-lived legislation.
While the concept of removing visual amenity to avoid NIMBY litigation is easily understood, it raises the question: what will land use plans look like in a system deliberately blind to visual amenity?
Planning without amenity
For residential zones, land use planning is nearly synonymous with development standards addressing issues like building height, height in relation to boundary, yard setbacks, building coverage and minimum landscaped areas.
Such standards are so ubiquitous that it is hard to imagine a residential zone in a district plan without them.
However, when one drills into the planning reason behind those standards, they are generally directed at visual amenity issues. Auckland’s Unitary Plan defines the purpose of each standard in its zone provisions.
Examples from the standards described above include to:
height – to “minimise visual dominance effects” and to “maintain a reasonable standard of residential amenity for adjoining sites”
height in relation to boundary – “to manage the height and bulk of buildings at boundaries to maintain a reasonable level of sunlight access and minimise adverse visual dominance effects to immediate neighbours”
landscaped area – “to maintain the landscaped character of the streetscape within the zone”.
Similar reasons are given for yard setbacks and building coverage rules.
So, what will “amenity-free” residential zones look like? Potentially significantly streamlined, enabling unlimited height, no height in relation to boundary controls and the bare minimum yards to enable maintenance.
Landscaping requirements may be a thing of the past and building coverage could be limited only by stormwater or other engineering constraints. Wherever things land, the plans of tomorrow are likely to look very different.
Will amenity issues really die?
After 35 years of litigation under the RMA and barrels of judicial ink being spilled on amenity issues, it seems unlikely that their exclusion from the resource management system will be the end of the matter.
It may be that similar controls survive by proxy to achieve the goal of creating well-functioning urban areas.
Even if reform is effective at excluding amenity issues from planning and consenting decisions, those that have paid a premium to live in leafy suburbs may find other avenues to protect their interests.
Judicial review may be weaponised to challenge decisions alleging procedural defects, as a Trojan Horse brimming with landowners seeking to protect their amenity values. And the resource management system does not prevent the use of private covenants to protect amenity or ensure design outcomes.
This is already common for large master-planned developments and could be agreed between like-minded neighbours.
Comment
Stripping visual amenity from the planning lexicon may reduce one source of contention and is likely to be a change welcomed by many.
However, it will not extinguish the underlying tensions between existing and new development.
Amenity has never been just a planning concept; it reflects deeply held values about place and identity. If those values are excluded from plans and consents, they are likely to resurface elsewhere with less visibly, less consistently, and potentially with greater friction.
In that sense, planning without amenity may not be simpler, but merely different.