Resource Management Act 1991
The purpose of the Resource Management Act is to promote the sustainable management of natural and physical resources. 382 Sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while:
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
To achieve this purpose, Section 9 of the Resource Management Act prevents any person using land in a manner that contravenes a national environmental standard, a regional rule or a district rule unless the land use is expressly allowed by a resource consent or an existing use right. That is, there is a presumption that land use is permitted, unless controls are included in a planning document.
The Resource Management Act defines “land” to include land covered by water and the airspace above land. 383 However, some land uses (uses of the coastal marine area, uses of beds of lakes and river, uses of water and discharges of contaminants) are controlled by the more restrictive sections 12, 13, 14, and 15 of the Resource Management Act.
The Resource Management Act defines “use” to mean any use of land including, to alter, demolish, erect, extend, place, reconstruct, remove, or use a structure or part of a structure in, on, under, or over land, to drill, excavate, or tunnel land or disturb land in a similar way, to damage, destroy, or disturb the habitats of plants or animals in, on, or under land or to enter onto or pass across the surface of water in a lake or river.
The use of land is regulated by both territorial authorities and regional councils. Territorial authorities are responsible for the control of land use generally.
Regional councils are responsible for the control of land use where it relates to soil conservation, freshwater management, natural hazards, hazardous substances, the coastal marine area, and indigenous biodiversity.
There is some overlap in the responsibilities of territorial authorities and regional councils so the local authority responsible in each circumstance must be identified in regional policy statements.
As set out above, land uses are only controlled under the Resource Management Act if specified in a national environmental standard, regional plan or district plan. The hierarchy of planning documents and the processes for their preparation are outlined in the RMA section of this website. The following section discusses common land use controls. The discussion is general in nature - remember that land use controls vary from region-to-region and district-to-district.
Zones and Overlays
Most, if not all, district plans divide the district into zones. Each zone is generally named by reference to its predominant land use (such as residential, rural, rural lifestyle, industrial, commercial, etc) and identified on planning maps. Each zone has specific controls for land uses in the area covered by the zone.
Overlays are often used to identify important natural values, such as significant indigenous biodiversity and outstanding natural landscapes. Each overlay is generally named by reference to its predominant natural value and identified on planning maps. Each overlay generally has controls for land uses in the overlay area. If an activity is controlled by both zone rules and overlay rules, the more restrictive activity status (usually the overlay rule) will effectively ‘trump’ the less restrictive activity status unless otherwise specified.
Many district plans have multiple residential zones to provide for the different densities, amenities and values of different residential areas.
Example: The Proposed Thames Coromandel District Plan has 4 residential zones: Coastal Living Zone, Extra Density Residential Zone, Low Density Residential Zone, and the Residential Zone.
Example: The Proposed Auckland Unitary Plan has 6 residential zones: Large Lot zone, Rural and Coastal Settlement zone, Single House zone, Mixed Housing Suburban zone, Mixed Housing Urban zone, and Terrace Housing and Apartment Buildings zone.
Zoning is the key mechanism for controlling the density of residential areas. In areas where populations are growing, territorial authorities need to carefully plan for residential growth. In areas where populations are falling, territorial authorities will need to address urban degeneration.
Example: The Proposed Auckland Unitary Plan is being developed to implement the goal of “a Quality, Compact Auckland”. 388 To achieve this it is proposed that 70 per cent of new dwellings will be built within the existing metropolitan area, particularly near town centres and major public transportation routes. 389 The allowable density depends on the residential zone. In the Large lot, Rural and coastal settlements, and Single house zones one dwelling per site is allowed. In the Mixed Housing Suburban zone one dwelling per 200 m2, 300 m2, or 400 m2 is allowed depending on the controls met. In the Mixed Housing Urban zone one dwelling per 250 m2, 300 m2, or any size is allowed depending on the controls met. 390
Residential zones are likely to include building controls covering matters such as building height, height in relation to boundaries, building coverage, front yards, outdoor living space, landscaping, parking requirements, and energy efficiency. Design controls may be applied in special character or heritage areas.
Activities which are likely to be controlled in residential zones include retirement villages, visitor accommodation, commercial activities (including dairies, cafes, restaurants, service stations), childcare centres, community facilities, education facilities, healthcare facilities, events, electricity and telecommunications facilities, wastewater, stormwater, water infrastructure, and camping grounds. 391
Many district plans have multiple rural zones to provide for the different activities in and values of each rural area. Overlays (for values such as significant indigenous biodiversity and outstanding natural landscapes) are likely to apply in many parts of rural zones.
Example:The Proposed Thames Coromandel District Plan has 2 rural zones: Rural Zone, Rural Lifestyle Zone.
Example: The Proposed Auckland Unitary Plan has 5 rural zones: Rural Conservation, Countryside Living, Rural Coastal, Mixed Rural and Rural Production.
In many parts of New Zealand, demand for urban expansion and rural lifestyle and retirement properties continues to put pressure on rural areas. Zoning (including controls on subdivision and minimum lot size) is the key mechanism for maintaining the productive capacity and other values of rural areas.
Example: The Proposed Thames Coromandel District Plan provides for subdivision within the Rural Zone as a discretionary activity provided the minimum average lot area is 20 hectares. 392
Example: The Proposed Auckland Unitary Plan provides for subdivision with the Rural Zones as a discretionary activity only if it complies with the transferable rural site subdivision or Countryside Living zone requirements. Other subdivision is prohibited. 393
Activities which are likely to be controlled in rural zones include farming, intensive farming, forestry, animal boarding, rural commercial services, rural industries, primary produce manufacturing, camping grounds, visitor accommodation, restaurants and cafes, garden centres, markets, events, electricity and telecommunications facilities, wind turbines, refuse transfer stations, landfills, water treatment plants, childcare facilities , community facilities, healthcare facilities, education facilities, and mineral prospecting, exploration and extraction.
District plans should provide for existing commercial centres and, in growing areas, consider how to provide for future commercial development. Factors relating to population, demand, social needs, public facilities, and transportation are likely to influence commercial zoning policies.
Example: The Proposed Thames Coromandel District Plan has 2 commercial zones: Commercial Zone and Village Zone.
Example: The Proposed Auckland Unitary Plan has 8 commercial zones: City Centre zone, Metropolitan Centre zone, Town Centre zone, Local Centre zone, Neighbourhood Centre zone, Mixed Use zone, General Business zone, and Business Park zone.
Key issues in commercial zones will include building heights, efficient and safe public and private transportation and amenity matters.
A local authority preparing or changing a plan must not have regard to trade competition or the effects of trade competition. 394 This is intended to reduce anti-competitive behaviour by property owners and occupiers. A trade competitor may make a submission on a proposed plan or plan change if they are directly affected by an adverse effect on the environment which does not relate to trade competition or the effects of trade competition. 395
The location of industrial activities (which may generate objectionable odour, dust, noise and other contaminants) away from residential activities was an early driver for zoning. Key issues in industrial zones will include noise limits, odour pollution, air emissions, waste discharges, and hazardous substances.
Example: The Proposed Thames Coromandel District Plan has 2 industrial zones: Industrial Zone and Light Industrial Zone.
The Proposed Auckland Unitary Plan has 2 industrial zones: Light Industry zone and Heavy Industry zone.
A key consideration when preparing a plan is reverse sensitivity: the introduction of sensitive activities (e.g. residential activities) within the vicinity of existing activities (e.g. rural or industrial activities) which may lead to restraints or demands for restraints on those existing activities.
An example of reverse sensitivity is new residential development near to an existing airport. To address this, a plan could restrict the right to construct dwellings within the vicinity of an airport and/or require dwellings to have appropriate sound proofing to mitigate aircraft noise nuisance. 396
Section 85(1) of the RMA states that “an interest in land shall be deemed not to be taken or injuriously affected by reason of any provision in a plan unless otherwise provided for in this Act”. This means that a landowner is not entitled to compensation for any adverse financial effects of any plan provision.
However, the RMA does provide for a person to apply to the Environment Court to determine whether a provision in a plan or a proposed plan “renders any land incapable of reasonable use, and places an unfair and unreasonable burden on any person having an interest in the land”. In such circumstances the Court may direct the local authority to modify, delete or replace the provision. 397
Section 5 RMA
Section 2 Resource Management Act 1991
Section 2 Resource Management Act 1991
Section 31 Resource Management Act 1991
Section 30 Resource Management Act 1991
Section 62(1)(i) Resource Management Act 1991
Part 1, Chapter B, 2.3 Development capacity and supply of land for urban development
Part 3, Chapter I, 1.3.1 Maximum density
Refer to the relevant district or city plan for controls specific to your location
Part VII, Section 38, Rule 9
Part 3, Chapter H, 5.1, Activity Table 5
Sections 66(3) and 74(3) Resource Management Act 1991
Section 308B Resource Management Act 1991
Nolan, page 209
Section 85(3) Resource Management Act 1991
Last updated at 9:47AM on February 25, 2015