
Gunnell, S.N. 2023 Analysis of natural hazards and risk as a qualifying matter in intensification planning instruments. Lower Hutt, NZ: GNS Science. GNS Science miscellaneous series 147. 49 p.; doi: 10.21420/728Z-TB66
Abstract
Meeting the demand for housing in our largest cities continues to be a challenge in Aotearoa New Zealand. To address this, several recent legislative changes designed to remove planning barriers to development and hasten the delivery of housing and business capacity have been implemented. However, the directive focus of this legislation on urban growth and the provision of higher-density housing has the potential to result in development occurring in areas prone to hazards and place more people, property and infrastructure at risk.
The National Policy Statement on Urban Development (NPS-UD) was gazetted in August 2020. It classified urban environments in Aotearoa New Zealand into three tiers. Tier 1 urban environments are Auckland, Hamilton, Tauranga, Wellington and Christchurch, being those that are the largest and face the greatest growth pressure. The NPS-UD requires that the
local authorities[1] that have jurisdiction over tier 1 urban environments amend their regional policy statement (regional council) or district plan (district and city council) to enable sufficient development capacity for housing and business land in urban areas (policy 3). This includes providing for as much development capacity as possible in city-centre zones and for buildings at least six storeys high within a walkable catchment of metropolitan and city-centre zones and existing and planned rapid transport stops.
However, under the existing plan-making process, it would take until at least August 2024
to deliver on the outcomes sought by the NPS-UD. In order to expedite the provision of housing, central government passed the Resource Management (Enabling Housing Supply) Amendment Act 2021 (RMA-EHS). The RMA-EHS introduces a new planning process
to support councils to implement the intensification policies from the NPS-UD, called the Intensification Streamlined Planning Process (ISPP). The RMA-EHS requires the 14 tier 1 territorial authorities[2] and other specified territorial authorities[3] to amend their district plans
to implement the intensification policies of the NPS-UD and apply the Medium Density Residential Standards (MDRS) to all existing residential zones (excluding those zoned as
large lot residential). The MDRS permit up to three dwellings, three storeys high per site, provided that a number of other standards (e.g. yard setbacks, building coverage, and height in relation to boundary) are met. The Intensification Planning Instruments (IPIs) that detail
the required changes were required to be notified through an ISPP by August 2022. The MDRS had immediate legal effect upon notification of the IPI for a specified territorial authority.
The density and height requirements of the NPS-UD and the MDRS can only be modified or reduced where there is a ‘qualifying matter’ present. In relation to natural hazards[4], there are three possible qualifying matters available:
The effect of a qualifying matter is to stop the immediate legal effect of the intensification directives of policy 3 of the NPS-UD and MDRS in those areas identified as subject to a qualifying matter and allow a specified territorial authority to make height or density requirements under policy 3 and the MDRS less enabling of development, but only to the extent necessary to accommodate the qualifying matter.
The purpose of this research was to investigate how tier 1 territorial authorities across Aotearoa New Zealand are applying natural hazards as qualifying matters within the required district plan changes to understand the potential implications of these legislative changes on the management of development in areas subject to natural hazard risk.
What was found was a wide range of approaches to implementing the legislation, with councils largely interpreting the legislation and justifying their particular approach in isolation. While the majority of councils applied existing or proposed natural hazard overlays and associated provisions as qualifying matters even where they do not specifically reduce the density and height requirements of policy 3 of the NPS-UD and the MDRS, some took a purist approach and only applied natural hazards as qualifying matters where the intensification standards
were specifically reduced by the rule framework. All coastal hazards were justified as qualifying matters in terms of giving effect to the NZCPS, and, in some cases, also as a s6(h) matter.
All other natural hazards were applied as qualifying matters to recognise and provide for the management of significant risks from natural hazards as a matter of national importance under s6(h). Due to there being no definition of ‘significant’ risk in legislation, there was also variance in what natural hazards councils determined to present a significant risk. In some instances, councils equated a significant risk with a high hazard or risk, and, in others, councils took the approach that any natural hazard that required a planning response to manage it represented a significant risk.
Ultimately, while the decisions on the IPIs are still to be made, what this research highlighted is that councils have generally implemented the RMA-EHS and applied natural hazards as qualifying matters based on their individual interpretation of the legislation and how it interacts with their existing and/or proposed planning frameworks, as well as the specific issues relevant to their area of jurisdiction. While there has been large variation in the approaches taken,
this will become a moot point once decisions on the IPIs are made, as the spatial layers and associated provisions will form part of the operative plan and impose restrictions as intended, whether applied as a qualifying matter or not in the IPI.
The following recommendations are made to ensure that natural hazard risk is effectively managed in the face of legislative change that has a strong urban development focus:
S86B(3) of the RMA should be amended such that rules relating to the management of natural hazard risk have immediate legal effect upon public notification of a proposed plan.
[1] ‘Local authorities’ refers to district, city and regional councils, including unitary authorities that are territorial authorities that have the responsibilities, duties and powers of a regional council.
[2] ‘Territorial authority’ refers to either a city or district council, which are the second tier of local government in Aotearoa New Zealand below regional councils.
[3] A specified territorial authority may also be a tier 2 or tier 3 territorial authority in certain instances, as detailed in sections 80I(1) and 80K(1) of the RMA. For example, Rotorua Lakes District Council is a tier 2 local authority that requested that the provisions of the NPS-UD apply to them also, which was granted by central government.
[4] While the National Planning Standards direct councils to separate the management of coastal hazards from other natural hazards, in this report, ‘natural hazards’ refers to both, unless specifically identified.