By Andrew Bruce*
For those people who have ever built a house, extended their current home or even added a garage there is a high likelihood they’ve had to wade through the resource consent process.
This can be quite an eye opener to the uninitiated as the process can become very time consuming, expensive and stressful.
In fact many projects come to a grinding halt before they begin due to the hurdles that have to be overcome through this Resource Management Act (RMA) process.
So why is it so difficult?
Many people blame the Resource Management Act. This is the overarching document that sets out the requirement for Council to have a District (or Regional) Plan and specifies matters which Council has control over. District Plans are developed by Councils to manage land use.
These plans set rules which cover things like:
- How high you can build (maximum height)
- Location of building/s on your site (yard set back)
- If you can operate an office in a residential area
- Number of dwellings allowed per site, etc
In very simplistic terms I’ve broken down the process of developing a District Plan into six steps, which takes on average about 7 years:
1. Strategic direction is set by Councillors (representing the community)
2. A draft District Plan is written by Council planners implementing the strategic direction.
3. The draft is endorsed (after changes) by the elected representatives (Local Boards/Councillors).
4. It’s then released for two public submission periods.
5. At the close of submissions, the planners then make recommendations on changes to the draft District Plan taking into account public feedback.
6. After hearings, the final approval of the District Plan is generally made by Councillors.
Once the final District Plan has been signed off, it is then used by the Council planners as the “rule book” to assess future resource consent applications.
Currently the Auckland Unitary Plan is at stage 5 of this process. So if these rules have gone through such a thorough process isn’t it just a matter of applying the rules?
To my way of thinking this is where we run into our issues.
While there is a rule book (i.e. District Plan), where people want to go outside the rules (ie. apply for resource consent) a lot is left to interpretation of the planner assessing the resource consent application.
A planner may take an extremely conservative view of your application or a more pragmatic planner may take a more proactive approach.
Recently we lodged a resource consent for a new commercial building. In this instance, although the project overall needed consent, it complied with height in relation to boundary. However the planner still requested we provide a diagram to show potential shading effects on one of the neighbours. As our aim was to obtain the consent as expediently as possible, we chose not to argue with the Council planner and provide the shading diagram (at added time and expense).
As the building complied, it only showed shading which was allowed by the District Plan so the entire exercise was a waste of time and money other than to appease the planner.
So why does this occur?
I believe this is where politics and planning can become intertwined.
If I build something my neighbour doesn’t like, often my neighbour will complain to Council. On the other hand, if someone is wanting to build, they will undoubtedly feel the Council is placing hurdles in their way.
Either way, pressure then is placed upon the planner (by applicants, neighbours and often indirectly by elected representatives) regarding their decision and when this happens a natural reaction is the planner will become more conservative in their approach.
This generally means seeking extra supporting reports from the applicant i.e. extra cost and time delays.
From the planners point of view this costs Council no extra money, provides extra support if the application is challenged and places the application ‘on hold’ so the statutory processing time is stopped.
Why is the Council conservative?
1. There is a statutory time pressure of 20 working days to complete the process. If this isn’t adhered to there can be financial implications on Council.
2. Councils have reputational and legal risk when approving any resource consent.
3. Council planners are placed under organisational / political pressure with queries on their decision making process.
For these reasons, I don’t believe the RMA is the sole issue or even the District Plans; if they weren’t in place there would be other similar documents with similar controls.
I believe the crux of the issue is the planner having to balance competing interests: people who what to build or change things against people who don’t want change.
The District Plans help with this balance but the consent process still needs a decision maker. The planner is often that person and the level of support they are provided at an organisational and elected representative level may have a significant influence on their approach. The less support they receive, naturally the more conservative their decision making process will be, with the flow on effect being extra costs, time delays and uncertainty when seeking resource consent approval.
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Andrew Bruce is President of the Auckland Property Investors Association www.apia.org.nz
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9 Comments
Well the RMA requires Councils to have a plan, it doesn't mean the plan has to be restrictive. Some councils have very relaxed plans, allowing many forms of activity to be permitted activities. Of course you need a building consent, but resource consents don't need to be a requirement for building a house. There is nothing to stop a council making apartment development a permitted activity, they outline the limits and away you go and buy the land and build.
This is fully on the councils and their plans, or alternatively the voters they represent.
Useful, if limited view.
The actual issue is that Councils use a 'rule-based' approach, not a 'risk-based' one.
This means that any proposal - anything at all - cannot be deemed to have passed the 'so what?' test and is waved through with small time and fee impact. No, it has to be measured against the Rules, a hundred ticks and crosses assigned, a weighting applied, and a decision made. Or just made up. One day, some day.
The results are obvious:
- Time (and therefore $) incurred
- Fees incurred
- 'Clarifications' needed (e.g. applicants not using Plan-style terminology)
- Use of consultants (engineers, specialists) insisted upon
- Arbitrary decisions by Council staff, especially around time and those clarifications
- Decisions effectively unappealable.
I have argued (here) for a risk-based approach, but this is only the start.
We also need a 'small applications claims Court' to sit above the processes of all TLA's, with power to remove stuff that doesn't pass the smell or impact tests, to penalise Councils who take too much time, are unnecessarily pedantic, or who cannot justify the decision to a 'reasonable person', and so on.
Exactly as the IPCA does for Police, with a very marked effect on policing and general behaviour.
Sadly absent for TLA stuff, especially at the trivial end.
Most applicants just meekly bow, pay the fees or extra costs, mutter sotto voce, and carry on.
Or end-run the whole thing: houses on wheels, trying the same application in a neighbouring TLA, etc. Can work wonders, I'm told....
The purpose of the RMA and district plans created under it are:
5 Purpose
-
(1)The purpose of this Act is to promote the sustainable management of natural and physical resources.
You will search in vain through the legislation for any mention of building height restrictions, rural urban boundaries, boundary setbacks and so on. These are fabrications of planners.
Indeed I challenge any commentator such as Andrew to find any council in the country that can show that its councillors (unprompted by staff) set out a strategic direction that planners dutifully went off and wrote up. Never happened. Our district plans are there because they are what planners like not what the community wanted.
Kumbel
Have a look in Auckland's backyard.
TransportBlog (http://transportblog.co.nz/2014/07/17/how-the-unitary-plan-changed/) sumarieses the changes Councillors and Local Board members made to the Draft Unitary Plan as a direct result of local lobbying from their communities.
May well be but tweaking a draft plan is a far cry from the twinkly stars and unicorns story about councillors setting the strategic direction and staff humbly scribbling out a plan that matches that direction and only that direction. It is also a far cry from any genuine effort to find out what the community values and doesn't value and making sure that everyone understands the impacts (financial and otherwise) that each major rule will have not only on the council but the community as a whole before pen is put to paper in the first place.
Once all of this investment is made in multi-volume plans it will take a lot to shift a council in any substantive way from the path already set.
The difference between the "public input" in affordable US cities that have never succumbed to the price bubble epidemic, and us, is this. In those US cities, the public understands that if you don't want development in your backyard, you have to allow sprawl - otherwise your kids will never be able to afford to leave home.
Aucklanders are nowhere near this sophisticated. They fall for the growth containment Kool-Aid, which is really a rentier gouge, but absolutely oppose intensification anywhere near them. Funny enough, many of those US cities are ones we would sneer at as redneck, bible-bashing, gun-nut hicksvilles. Sorry, they are actually MUCH smarter than us even if we think we are more "sophisticated", which is really a code for BS most of the time.
Kumbel, having spent the last 20 years within the local government/planning sphere I feel somewhat qualified to coment on your obvious lack of understanding of the overall process.
If the entire process was solely driven by Council planners and there was no community/elected reprentative input, the Unitary Plan would be completed within 6 - 12 months (rather than the extimated 3/4 years).
I agree Council staff put up options for consideration but Councillors (who in theory represent wider community interests) set the general direction.
You are new here. As many of the commenters here know I was a council senior manager for some years and saw the general process repeated in numerous ways not just the district plan.
But I am happy to back down and apologise if you can show me one council in the country that
- undertook independent research with its community on a big issue like whether spatial planning should be reinstated within the RMA-prescribed district plan or whether the RMA should be implemented as written.
- clearly outlined in this research what the pros and cons, and the likely outcomes for their community of each option would be before a single word was drafted by a staff member.
You see it is all about framing. By the time the average councillor gets anywhere near a district plan they have already been told what the playing fields markings are and what the rules of the game are. Even when the staff have simply made them up.
I don't know how long it will take for "planners" to understand that a market with carefully balanced permitted "supply" against carefully estimated future demand, is a quota scheme and an oligopoly price gouge.
Free markets keep the price of ANYTHING affordable only because supply is superabundant and there is freedom of entry of new suppliers into the market.
The Poms have been trying Plan after Plan after Plan since 1947 and still have not learned this. They now have the first world's worst crisis in housing - homelessness, child health, rental stress, collapsing home ownership rates among the under-35's, mortgage debt systemic risk, and so on.
Do we have to be so stupid as to duplicate the errors?
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