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The Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill

It sounds a mouthful, but simply put this Bill recently introduced into parliament seeks to rapidly accelerate the supply of housing in areas where the demand for housing is high. It does this by somewhat controversially overriding councils’ plans and requires densification where densification might not have otherwise been permitted by the relevant council.

Nick Kearney, Special Counsel, provides useful knowledge on the Bill.

 

Nick

To allow this, the Bill introduces the notion of Medium Density Residential Standards (MDRS) in all major cities in the country, which are called “tier 1 environments”. These MDRS’s will enable medium density housing of at least 3 dwellings of up to 3 storeys per site regardless of the zoning. Importantly, the Bill directs tier 1 councils to notify such intensification planning by 20 August 2022, which is less than 10 months away.

Presently, these MDRS will enable:

  • more flexible height in relation to boundary standards to enable 3 storeys on average-sized sites.
  • smaller private outlook spaces (space between windows and other buildings) and private outdoor living spaces (for example, balconies).
  • reduced side yard setbacks to allow development closer to side boundaries.
  • more resource consents (when needed) to proceed on a non-notified basis.

Relevant territorial authorities will be required, by law, to apply the MDRS to all existing residential areas, except for areas zoned as large lot residential or areas where qualifying matters apply. Tier 1 (major city) urban environments that are being rezoned as residential will also be required to apply the MDRS.

Exemptions

Areas that have specific characteristics that make it inappropriate to apply the MDRS in full will be exempt. A qualifying matter exists where there is a need to balance the heights, densities, and other standards of the MDRS against the need to manage those specific characteristics in the locality. This could mean that current zones that have historic character overlays might be unaffected by the Bill.

Where a qualifying matter applies, the relevant territorial authority may amend the densities and heights required by the MDRS as appropriate. If this occurs, the authority must provide evidence to support this. In other words, it cannot just refuse to impose MDRS because of public pressure (for example) without providing evidence of the area’s special characteristics.

With a small number of exceptions, residential zones implementing the MDRS will have immediate legal effect.

 

Councils must incorporate the MDRS into their RMA planning documents using an intensified and streamlined planning process, and this process will be quicker than the standard process used under the Resource Management Act.

Naturally, there may be tier 1 territorial authorities that are currently preparing plan changes. Those territorial authorities may need to adjust their proposed plans once this Bill is enacted. For this reason, the Bill requires that proposed plans, or private plan changes that are accepted, must be withdrawn in circumstances where the MDRS won’t apply following the plan change.

This Bill will also give very strong powers to the Ministers for the Environment and of Housing, to make changes to the National Policy Statement for Urban Development to remove current or potential inconsistencies between the NPS-UD and this Bill once enacted into law. Perhaps worryingly, or not depending on your viewpoint, in using this power the Minister will not be required to follow the standard process requirements for modifying national policy statements as laid out in the RMA.

All of these changes are designed and intended to remove layers and layers of processes in the planning and consent stage to allow the (lack of) housing challenge to be fought. At first blush, it appears to be a classic scenario of having legislation that is unworkable on the one hand (and let’s face it, the RMA is unfriendly to say the least) but then react to that with a large overkill at the opposite end of the spectrum. It is certain the Bill will proceed, because both major parties support it (albeit the government has enough votes to get it through without National’s help).

Finally, if you’re reading this living in Auckland and think you’ll escape the city and these pending changes, cities to avoid are Hamilton, Tauranga, Wellington and Christchurch as these are the cities that currently make up the tier 1 environments where these MDRS will shortly apply.

 

For all your Property Law queries, get in touch with Nick and the property team.
nick@davenportslaw.co.nz | 09 883 4420

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