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 - rem
National Policy Statement on Urban Development 2020
National Policy Statement on Urban Development 2020 (NPSUD) was gazetted on 23 July 2020.
It has 8 objectives and 10 policies focused on ensuring that New Zealand’s towns and cities are well-functioning, sustainable, connected urban environments that meet the changing needs of our diverse communities, improving housing availability and affordability and achieving integrated decision-making between urban development, infrastructure and funding, and between local authorities.
For the purposes of the NPSUD an urban environment is defined as: 5245
Any area of land (regardless of size, and irrespective of local authority or statistical boundaries) that:
(a) Is, or is intended to be, predominately urban in character; and
(b) Is, or is intended to be, part of a housing and labour market of at least 10,000 people
This means that an area may seem urban in nature but if does not meet the size threshold then the NPSUD does not apply. An example of an area where this is a common feature is the Kaipara District.
The NPSUD applies to all local authorities in New Zealand, however it allocates each a tier 1, tier 2, or tier 3 status which determines the extent to which many of the requirements in the NPSUD are mandatory or optional, or when they need to be complied with by. 5246 The NPSUD also applies to all planning decisions made by a local authority, which captures both decisions on regional policy statements and on regional and district plans, and on consents, designations, heritage orders, and conservation orders.
Key requirements of the NPSUD include:
- All local authorities must provide sufficient development capacity to meet expected housing demand, and business land demand. 5247 The NPSUD includes criteria that must be met in order for this requirement to be met.
- Every local authority must monitor, quarterly, demand, supply, price, and affordability for dwellings, the proportion of housing development capacity that has been realised, and available data on business land. 5248
- Every 6 years every tier 1 and 2 local authorities must prepare a Future Development Strategy, the purpose of which is to promote long-term strategy planning by setting out how the local authority intends to achieve well functioning urban environments in its existing and future urban areas, and provide sufficient housing and business land development capacity, and to assist in integrated resource management, infrastructure, and financial decision-making. 5249
- Every 3 years and in time to inform the next long-term plan every tier 1 and 2 authority must prepare a Housing and Business Development Capacity Assessment the purpose of which is to provide information about supply and demand to inform urban environment-related decision-making. 5250
- Every tier 1 local authority must identify, by location, building heights and densities in city centre zones sufficient to maximize benefits of intensification, in metropolitan centre zones of at least 6 storeys, and in other areas, that are commensurate with accessibility or demand. 5251 There is scope for a local authority to adjust these heights and densities if necessary to provide for specifically identified matters, for example a matter of national importance in section 6 of the RMA.
- Every territorial authority must ensure its plan objectives describe the development outcomes intended for each zone and that the policies and rules individual and cumulatively are consistent with achieving those. 5252 And tier 1 authorities are expressly required to monitor the extent to which development is occurring in specific urban zones as anticipated by those objectives. Although arguably this is required of all local authorities by section 35 of the RMA anyway.
- All district plans must be amended to remove minimum car parking requirements except for in certain circumstances, including the provision of accessible parks. 5253
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.
Most, if not all, district plans divide the district into zones. Since their introduction in 2019 the type and name of the different zones that can be included are determined by the National Planning Standards in 2019. One exception is provided through the ability to include a ‘special purpose zone’ in limited circumstances. 5254
According to the Standards the function of a zone is to spatially identify and manage an area with common environmental characteristics or where environmental outcomes are sought, by bundling compatible activities or effects together, and controlling those that are incompatible. 5255 The Mapping Standard also specifies the colour with which each zone is to be identified.
According to the Standards, regional plans are only allowed to include zones that apply to the coastal marine area. 5256
The zones in the National Planning Standards are found in Table 13 and can be seen to fall under the following general categories: 5257
- Residential zones
- Rural zones
- City/metropolitan zones
- Commercial and industrial zones
- Open Space and Recreation zones
- Special purpose zones
Overlays are also controlled by the Standards. They can be included in regional instruments or district plans and are to be used to spatially identify distinctive values, risks or other factors that require management. What overlays can cover is not expressly determined by the Standards. Often, they capture areas that section 6 of the RMA requires decision-makers to recognise and provide for, such as outstanding natural landscapes, areas of high or outstanding natural character, or areas of significant indigenous vegetation or significant habitats of indigenous fauna.
Other types of management areas include precincts which are intended to capture an area where additional place-based provisions apply to modify or refine aspects of the policy approach or outcomes anticipated in the underlying zone(s), or an Area, which is the term to be used to capture any other spatially identified area. 5258
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 as a starting point, a landowner is not entitled to compensation for any adverse financial effects of any plan provision.
However, it is available to a person with an interest in land to which a provision in a plan or proposed plan relates to challenge that provision on the basis that it would render their interest in that land incapable of reasonable use or places an unfair and unreasonable burden on them. Such a challenge must be made to the Environment Court and, if successful, can result in either a direction to the local authority to do whichever of the following the local authority thinks appropriate:
- A direction that the relevant provisions be deleted, modified, or replaced; or
- Acquire all or part of the estate or interest in the land under the Public Works Act.
If issue relates to a provision in a regional coastal plan (or a proposed one) then only the former option is available.
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
Nolan, page 209
National Policy Statement on Urban Development 2020 (NPS-UD)
See the Appendix to the NPSUD for a break down of the different tiers or see here: National Policy Statement on Urban Development 2020 (NPS-UD) | Te Tūāpapa Kura Kāinga - Ministry of Housing and Urban Development (hud.govt.nz)
Part 3 subpart 1
Part 3 subpart 3
Part 3 subpart 4
Part 3 subpart 5
Part 3 subpart 6; Policy 3.
Part 3 subpart 7.
Standard 8 National Planning Standards.
Table 18 National Planning Standards.
Table 17 National Planning Standards.
Table 13 National Planning Standards, accessible here.
Tables 17 and 18 National Planning Standards.
Last updated at 11:23AM on August 24, 2021