Item 2a: No More Non-complying Activities – then Let’s Prohibit Everything

The Bill currently before Parliament proposes to simplify plans by removing the category of ‘non-complying’ activity. My last NBR column suggested that many Councils will seize on the precedent set by the Swanson Structure Plan to generate a stream of structure plans which make any departure from the structure plan a Prohibited Activity.

Section 147 of the proposed Bill requires local authorities to delete any reference to non-complying activities in their plans with a reference to a discretionary activity. However, several of my colleagues suggest that enthusiastic central planners will carry out this process but will then publish a new plan which inserts prohibited activities to replace the old non-complying activities. Rust never sleeps.

So the Bill will almost certainly have to require that only Central Government can define prohibited activities – presumably such things as developing a playground over an abandoned weapons range, etc.

Item 2b:  No More Objections from Trade Competitors – but Councils are the worst Offenders.

The RMA reform Bill makes a good attempt to prevent trade competitors using the RMA processes to stifle their competition. A whole new Part, Part 11A, Act Not to be used to oppose Trade Competitors, has been inserted and seems to cover the ground in relation to objections to applications, while a new Section 51 also confirms that Local Authorities when preparing plans “shall not have regard to trade competition or the effects of trade competition.”

However, this may not be strong enough wording to prevent councils including “retail hierarchies” in their plans, which can then be used to refuse consents to applicants who fall outside the preferred locations. Naturally, trade competitors will also object to the applications, but not because they oppose the competitor, you understand, but because, if granted, the consent will “undermine the integrity of the plan”.

For example Wellington City’s Proposed Plan Change 66 openly declares its intention to:

Manage the location and scale of retail activities and integrated retail developments to ensure that they do not adversely impact on the sustainability of the Golden Mile and, where applicable, other identified Suburban Centre retail areas.

The Golden Mile is the main shopping street in the Wellington CBD. So in this case the “anti-competitive’ agent is the council itself. This of course is an open invitation to competitors with any such proposal to enter the fray as defenders of the District Plan and Council’s noble intentions. (Note the use of “sustainability” as an alternative to “profitability”. Sustainability can be used to mean whatever anyone wants it to mean – which is why the word is so popular with central planners and politicians.)

Consequently, the Bill requires a stronger clause which prohibits local authorities including provisions in their plans designed to protect one group of activities in one location from similar activities in other locations, or including provisions such as “retail hierarchies” which have the same intention. We seek your assistance in drafting a suitable clause or set of clauses to present to the Select Committee.

Item 2c: No More Blanket Tree Protection – What about conditions of Consent?

The Report of the Technical Advisory Group says:

Delete existing blanket tree protection rules in urban areas and prohibit local authorities from imposing rules of this type in the future.

This proposal will prevent the need for approximately 4,000 resource consent applications per annum across New Zealand. The proposal will require Local authorities to identify and schedule specific trees that are worthy of protection, and may result in a minor reduction in urban amenity.  Other options exist to effectively prevent councils from adopting blanket protection rules (such as the use of Ministerial plan change directive powers or the use of national environmental standards) but these options will incur additional delay and costs.

The new subsection in the Amendment Bill prohibits a rule in a district plan from providing for the protection of any tree, or group of trees, in an urban environment unless the tree or group of trees is specifically identified in a schedule to the district plan, or located within a reserve or an area subject to a conservation management plan or conservation management strategy.

52 District rules

Section 76 is amended by inserting the following subsection after subsection (4):

(4A) However, a rule must not provide for the protection of any tree, or group of trees, in an urban environment unless the tree or group of trees is—

(a) specifically identified in a schedule to the plan; or

(b) located within an area in the district that—

(i) is a reserve (within the meaning of section 2(1) of the Reserves Act 1977); or

(ii) is subject to a conservation management plan or conservation management strategy prepared in accordance with the Conservation Act 1987 or the Reserves Act 1977.

However, a recently published Plan Review now requires that every proposal to subdivide or develop land will require a report from a landscape architect including a detailed landscaping plan. Consents will include conditions requiring that the landscape plan be implemented, following the defined species of trees, and that any tree removal or pruning will require a resource consent.

It can be reasonably argued that a condition of consent is not a “rule” in a plan.

Consequently, a clause needs to be added to prevent conditions of consent being used to protect trees and groups of trees, and requiring resource consents for modification or removal indefinitely, under this amended section.