Earlier this week the Government (with the National Party’s support) announced the introduction of the Resource Management (Enabling Housing Supply and Other Matters) Amendment Bill (Bill).

The Bill will accelerate the implementation of the National Policy Statement on Urban Development 2020 (NPS-UD), and will require certain local authorities to make additional amendments to district plans to increase housing supply.

Key points:

• The Bill amends the Resource Management Act 1991 (RMA) to accelerate the implementation of the NPS-UD and requires district plans to permit greater intensity on most residential sites
• Certain councils are required to notify plan changes which give effect to the Bill by August 2022
• Submissions on the Bill will be invited shortly.

Acceleration of the implementation of the NPS-UD

The NPS-UD requires that the district plans and regional policy statements in ‘Tier 1’ urban environments enable greater urban density, particularly around the city centre and metropolitan centre zones, as well as in the walkable catchments of rapid transit and the edge of the city centre and metropolitan zones (Policy 3 Matters). Councils were required to notify plan changes giving effect to those Policy 3 Matters by August 2022 (Intensification Plan Changes).

The Bill accelerates the implementation of the NPS-UD by creating a new Intensification Streamlined Planning Process (ISPP), which replaces the usual Schedule 1 process for the Intensification Plan Changes. The ISPP will allow decisions to be made on the Intensification Plan Changes by August 2023. This drastically speeds up the expected timeframes for district plans to give effect to the NPS‑UD.

The ISPP is based on the streamlined planning process in the RMA. It involves:

1. Submissions on the Intensification Plan Change which are heard by an independent panel (Panel) appointed by the council;
2. The Panel makes recommendations to the council; and
3. The council either accepts the Panel’s recommendations and notifies its decision, or if the council disagrees with a recommendation of the Panel a final decision is made by the Minister for the Environment.

There are no appeal rights against a recommendation of a Panel, or a decision of a council or the Minister for the Environment. These decisions can still be subject to judicial review.

The Minister for the Environment may direct a council as to the composition of the Panel and the timing of the stages of the ISPP. This power appears to be available in case the Minister believes that the process adopted for preparing the Intensification Plan Change is not sufficiently swift.

New requirements for intensification

The Bill requires that every residential zone in an urban environment of specified territorial authorities must incorporate the Medium Density Residential Standards (MDR Standards). Tier 1 urban environments, and any Tier 2 urban environment specified in an Order in Council, are required to implement the MDR Standards through their Intensification Plan Change and the ISPP.

The MDR Standards require that every residential zone in an urban environment permits 3 units per site that comply with the associated MDR Building Standards (Building Standards). Those Building Standards permit three storey buildings (11 metres high) on most residential sites, with only a 2.5m setback from the front boundary and a 1m setback from the side and rear boundaries. A development of 4 or more units per site, or a development that does not comply with the Building Standards will still require resource consent but can be no more stringent than a restricted discretionary activity. A development of 4 or more units per site that complies with the Building Standards must also be processed on a non-notified basis.

The only sites to which the MDR Standards and Building Standards will not apply, are those to which a number of qualifying matters apply. Those qualifying matters include:

• a matter of national importance that decision makers are required to recognise and provide for under section 6 of the RMA (for example historic heritage or significant natural hazards);
• a matter required in order to give effect to a national policy statement (other than the NPS-UD);
• the need to give effect to a designation or heritage order; and
• a matter necessary to implement, or to ensure consistency with, iwi participation legislation.

The MDR Standards will take effect from the date that an Intensification Plan Change is notified, with the only exceptions being for sites to which a qualifying matter applies or to which a new residential zone applies.

Effect on Private Plan Changes

The Bill also requires that accepted private plan changes must be withdrawn where those plan changes:

• intend to give effect to intensification policies of the NPS-UD; or
• propose changes to a residential zone that will be subject to the MDRSs; or
• create a new relevant residential zone that does not incorporate the MDRSs; and
• have been notified on or before the enactment of the Bill but a hearing is not completed on or before 20 February 2022.

Our comment

The Bill is a significant shift in urban development planning and reflects both this Government’s and the National Party’s desire to uplift housing supply and ease housing unaffordability. It will present a significant opportunity for more intensive development in areas where it has not previously been permitted, but also removes the ability for local authorities to determine how and where this intensification should occur in their regions and districts.

While the Bill targets some difficulties that exist in the consenting process (such as the time taken to proceed through the consenting process, risk of local authorities declining developments and objections from neighbours) it does not address other drivers of the housing shortage such as infrastructure funding challenges, increasing cost of building and building supply challenges.

In our experience it is not often the individual resource consents on individual properties that are the main obstacle to more housing, at least at scale. Rather it is finding available land serviced by infrastructure, or that can be serviced at a reasonable cost, and delays that can be experienced in relation to both consenting and accessing labour and materials. Therefore this legislative change alone is unlikely to be enough to completely address the problem. However, it is likely to increase opportunities for small scale intensification of existing residential neighbourhoods in our major centres.

Equally, because of that we can also foresee significant issues with the amenity of residential neighbourhoods in those centres given the permissive height, bulk and location controls contained in the Bill.

The Bill is required to be implemented rapidly by local authorities, who do not appear to have been consulted prior to its introduction. This could be a challenge for councils, especially given likely opposition from some communities to the changes that the Bill requires.

Significantly, the bipartisan support for the Bill means the changes that it makes should be enduring. However, it will be interesting to see how the changes made in the Bill are incorporated into the proposed Natural and Built Environments Act, which is set to replace the RMA.

Next steps

The Bill was introduced on 19 October 2021 and will be referred to a Select Committee, which will invite public submissions on the Bill in due course.

Get in touch with one of our contacts (pictured to the right) if you would like to understand the implications of the Bill, or if you would like to make a submission on it.

Special thanks to Chris Ryan and Rachel Abraham for their assistance in writing this article.