Opinion: Be careful what you wish for

When national direction doesn’t come in the form hoped for.

The concept of “sustainable management” is the cornerstone of the Resource Management Act. It encompasses the use, development and protection of resources (such as the use of land and water) to enable people and communities to provide for their wellbeing while at the same time:

  1. sustaining the potential of those natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
  2. safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
  3. avoiding, remedying, or mitigating any adverse effects of activities on the environment.

The potential for tension between these (often competing) aspirations is significant and much criticism has been levelled at politicians of all persuasions during the Act’s 30-year life span regarding the lack of clear national direction as to which aspirations should take priority in the event of a conflict.

A fair criticism when one considers that during the first 17 years of the Act’s life, only one national policy statement (the New Zealand Coastal Policy Statement) was produced (and only then because it was mandatory). The next one followed in 2008 (for electricity transmission) and by 2014 there were still only two other policy statements (for renewable electricity and freshwater management).

The last two or three years, however, have seen central government pick up the pace with an updated version of the National Policy Statement on Freshwater Management, two versions of the National Policy Statement on Urban Development, subsequent bi-partisan legislation to supplement the NPS-UD with mandatory Medium Density Residential Standards (the so called intensification directive) and a new National Policy Statement on Highly Productive Soils. However, after years of calling for more direction from on high, many councils are now grappling with the shape and scope of the direction that has now arrived. As Aesop famously espoused “be careful what you wish for, least it comes true”.

There is no better demonstration of this, than the responses of various councils to Central Government’s intensification directive. Increasingly frustrated by the resistance of a number of councils to intensifying their green leafy suburbs, Central Government reacted by requiring councils to change their district plans to permit up to three homes of up to 12m high to be built in most residential areas (with certain exceptions), without the requirement for resource consent.

With battle lines drawn, a number of councils have pushed back, utilising the exceptions or “qualifying matters” within the legislation to exempt swathes of suburban land. Hamilton Council has utilised its need to protect the Waikato River and the identification of significant areas of heritage housing and features to limit the areas where such intensification can happen, with its Planning Chair stating:

“I think our community can be reassured we’ve done everything we can to get a balance that’s right for Hamilton in the face of poor and rushed legislation with no consultation with us.”

In a similar vein, Auckland Council has identified some 37km2 of land in the light rail corridor (arguably the perfect area for intensified development) as exempt along with other qualifying matters which greatly reduce the application of the directive.

In a bold move, Christchurch City Council has gone a step further again by simply refusing to notify the requisite changes to the District Plan at all. Fuelled by resistance from many members of the community, the requisite plan change was unpopular around the Council table from the start with Deputy Mayor Andrew Turner beginning his remarks stating:

“Christchurch isn’t Auckland. Christchurch does not need Auckland’s solutions to problems that Christchurch doesn’t have.”

However, despite views of this nature being widely shared amongst Councillors, the Council have no statutory ability to decide not to implement the required changes.

As such, in declining to approve the Plan Change, there is now a real risk that Hon Nanaia Mahuta (as the Minister for Local Government) will utilise the powers available to her under the Local Government Act 2002 and appoint a Commissioner or a Crown Manager to implement the Plan Change on the Council’s behalf.

Moreover, if a Commissioner or Crown Manager is appointed, their role is not necessarily limited to simply notifying the required Plan Change – it could extend to all of the Council’s functions and duties. There is also a risk that if an appointment of this nature were to occur, Councillors will no longer have any input into the content of the Plan Change, and the Change may ultimately be notified with less qualifying matters than those recommended by Council officers.

This risk was clearly articulated by Councillor Dr Melanie Coker in her speech on the Change:

“I want to vote no, not to notify to give the proverbial finger to the government and let them take full responsibility. I also want to vote yes to notify to try our best to protect our character and heritage areas and trees in our suburbs.”

The consequences of the Council’s decision have also been accepted by outgoing Mayor Lianne Dalziel in a letter to Minister Parker acknowledging:

“I am aware that the Council is now technically in breach of our statutory obligations and that there are powers available to Ministers to intervene. I am asking Ministers not to do so.”

Somewhat undermining the intent of national direction, Dalziel argues that “this legislation has never made sense for Ōtautahi Christchurch” because “our environment and our planning arrangements are quite different to both Auckland and Wellington”. In her view, this warrants a “bespoke solution for Ōtautahi Christchurch that meets the Government’s objectives whilst promoting a sustainable urban form that protects our tree canopy and enhances the liveability of our city”.

In other words, the case by case, district by district decision making so often cast as the villain in any review of the RMA.

To date, we are not aware of any response from the Government to Christchurch City Council’s request but with local government elections now completed, it is reasonable to assume the clock is ticking. No doubt every other council in the country is also watching with interest.

[1]     Resource Management Act 1991, section 5.

[2]    Geoffrey Palmer “The Resource Management Act – How we got it and what changes are being made to it” (Address to Resource Management Law Association Devon Hotel, New Plymouth 27 September 2013) at p 11.

Lauren Semple

Partner, Greenwood Roche

Lauren Semple leads Greenwood Roche’s resource management team and has more than 30 years’ experience in all aspects of consenting large scale development projects using a range of processes including traditional consenting under the Resource Management Act, direct referral, special legislation (Canterbury Earthquake Recovery Act 2011 and the Greater Christchurch Regeneration Act 2016) and more recently applications under the COVID-19 Recovery (Fast Track Consenting) Act 2020.

Lauren has successfully consented a significant number of large scale residential developments, the Dunedin Stadium, the temporary Christchurch stadium, the new Hagley Building at Christchurch Hospital and the Christchurch Justice and Emergency Precinct. She is currently leading the consenting of the new Dunedin Hospital, and providing legal advice on the Lake Onlsow hydro battery project among other development projects. Lauren has also been advising various infrastructure agencies in relation to the reform of the Resource Management Act 1991 and is a member of the Infrastructure Commission Steering Group looking at the new National Planning Framework.

Lauren combines her legal knowledge with an in-depth understanding of the development sector, offering pragmatic and highly effective strategies to accelerate the consenting of major projects.

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