What is the District Plan?
There are three significant parts to a district plan:
- The Planning Maps,
- The Objectives and Policies, and
- The Rules.
The Planning Maps
The first thing to identify is what zone the land is in. District plans have maps identifying all areas in the district and assigning them a zone.
The planning maps also identify other features that may be relevant, such as listed heritage items, overlays and hazard areas and the location of designations. These features have implications on what is permitted or not.
The Objectives and Policies
The district plan also sets out the objectives and policies for each area. These are general statements which Council sets out to identify their general aim for activities in particular areas.
District plans can divide activities into six different categories, starting from the most permissive (and accordingly the easiest to undertake) to the least permissive (and accordingly, harder to obtain):
- Permitted: No resource consent is necessary – the activity can be undertaken as of right or a certificate of compliance can be applied for.
- Controlled: A resource consent is required. However, the Council must grant that resource consent, and it only has discretion in relation to the conditions imposed on the activity. The rule sets out the criteria that Council shall have regard to when imposing conditions on this type of activity.
- Discretionary restricted: A resource consent is required and the Council has restricted its discretion to the matters listed in the district plan.
- Discretionary unrestricted: A resource consent is required and the Council's discretion as to what it can consider is not restricted.
- Non-complying: A resource consent is required. It cannot be granted unless the Council is satisfied that the environmental effects will be minor or the granting of consent will not be contrary to the objectives and policies of the district plan.
- Prohibited: This is self-explanatory. No resource consent can be applied for these activities – they will not be allowable.
When do you need a resource consent?
If a proposal complies with the suite of policies and rules in the District Plan, then no resource consent is needed. The way the Resource Management Act (RMA) is set up, a resource consent application is only needed when there are breaches to the District Plan.
To obtain a resource consent, an application on the statutory form needs to be provided along with an Assessment of Environmental Effects, and plans illustrating the proposal.
Why can’t I do what I want to on my own land?
Some things you want to do can affect your neighbours in a negative way. For example, if you block out too much of their light, store or use hazardous chemicals, create too much demand for parking or make too much noise. This is why we have rules in our District Plan to control what we do on our land. The rules are specific to each city, and then to each zone within that city.
How do you get approval to do an activity or a development?
You can get approval in a couple of ways, under the RMA, for a development or activity:
- Existing use rights certificate
- Certificate of compliance
- Resource consent (land use and/or subdivision)
- Designation (outline plan approvals).
Resource consent process
How does a planner decide if the neighbours can have a say?
There are three ways resource consents can be processed once it hits the Council. This depends upon the rules in the District Plan and the details of the proposal. These are:
- Non-notified application: this is where either no one is considered to be “affected” or all “affected” persons have given their “written approval” to the development; therefore no one is asked for their opinion. Most resource consent applications are dealt like this
- Publicly notified application: if the work will have, or is, likely to have an effect on the environment that is ‘more than minor’. Anyone can make a submission on applications that have been publicly notified (unless you are a trade competitor)
- Limited notification application: Council only notifies people who it considers might be “affected” by what you’re proposing. Typically this would be restricted to close neighbours.
Why do people get upset if their application is to be notified?
Notification has a significant impact on the consent processing timeframe and costs.
A public hearing is usually held to give applicants and submitters a chance to speak, and informal pre-hearing meetings may also be held.
Whereas, a non-notified application should take 20 working days (approximately one month), fully notified applications take 130 working days (approximately six months), and limited notified applications take 100 working days (approximately four and a half months).
If notified, submitters can be involved in the hearing and they have appeal rights to the Environment Court. Having a consent appealed, can cost a further 8-18 months in time and as the Environment Court rehears the entire matter, it also adds significantly to cost.
If it is not notified, the only person with an appeal right is the applicant.
The only way to challenge a non-notification decision is through a High Court judicial review.
What does the Council consider?
When considering any application for resource consent the consent authority must have regard to:
- Part II of the RMA – purpose and principles
- Any actual and potential effects on the environment
- Relevant provisions of a National Policy Statement/Regional Plan/District Plan (including objectives and policies)
- Any other matter the consent authority considers relevant and reasonably necessary to determine the application
Each of these issues will be addressed in any resource consent.
The two issues that usually raise the most comment are the effects and the relevant District Plan provisions.
The Council planner’s assessment of the effects of a proposal starts from the “permitted baseline”. Each resource consent application is decided on its merits with consideration given to what is proposed, the context of the site and the surrounding area and what is provided for by the District Plan. What the District Plan provides for as potential permitted development is particularly relevant to the notification assessment as it provides a baseline for comparing the effects of a proposed development.
In effect, what happens with an application is:
- The applicant selects a site and a decision made to proceed. The applicant may choose to consult neighbours and any other 'affected person’ (the ultimate decision on who is considered affected is made by the Council planners. They will identify who they consider affected and the applicant can then approach those people. This happens after the application has been submitted). The applicant attempts to obtain written approvals from those persons they believe will be identified as 'affected'.
- An application is filed along with the Assessment of Environmental Effects (AEE), which will record the results of any consultation.
- It is assigned to a Council officer who determines whether it will be notified or not. This may result in the applicant needing to obtain further written approvals from others the Council identifies as 'affected persons'.
- If notified, the officer will prepare a report for the Council, which is provided to the Council committee, the applicant and any submitters 3 weeks prior to the hearing. This report will either recommend, decline or grant of the consent. The applicant provides their report 2 weeks before the hearing and the submitter must provide any expert evidence 1 week before the hearing. At the hearing, the officer will present their report, the applicant will present their application and any submitters will put their opinions across, call their own evidence and put their case at the hearing. Prior to the hearing is often when amendments to design may also be made in an attempt to satisfy a submitter and resolve their issue and avoid a hearing.
- If non-notified, usually the officer will issue a decision on both notification and the substantive issue and no hearing is held unless specifically requested by one of the parties.
If the Council considers that there is not enough information to determine an application they can request further information (or reject the application altogether). If further information is requested, then the application is suspended until that information is received by Council.
Who is an affected person under the Resource Management Act?
The planner makes this decision once they have reviewed all the information provided by the applicant, commissioned any expert reports and received any further information they have requested from the applicant.
The test is a legal one, set out in the Resource Management Act.
The RMA test for whether someone is an affected person is whether the proposal has adverse effects on them that are ‘minor or more than minor, (but are not less than minor)’.
The RMA and associated case law also specifies how the council decides whether there are any affected persons. For example, when making the decision, the planner may disregard an adverse effect of the activity on the person if a rule in a plan or a national environmental standard permits an activity with that effect (the 'permitted baseline' – that is, what can be built without a requiring a resource consent).
If the council decides that the adverse effects on the wider environment will be no more than minor and that there will be no adversely affected persons (or where all affected persons have given their written approval), the application will usually be ‘non-notified’. The only exceptions being if the applicant requests full notification, the council considers that special circumstances warrant full notification, or a rule in a district/regional plan or national environmental standard requires public notification.
The planners may also disregard an adverse effect if a rule or national environmental standard permits an activity with that effect, and in the case of controlled or restricted discretionary activities, where an effect does not relate to a matter over which control or discretion has been reserved.
Just because some people and organisations may have an interest in a proposal, it does not mean they may be affected. Case law has shown that an affected person is one who is 'affected in a manner different from the public generally'. Being 'interested' in a manner different from the public does not make a person “affected”.
What type of conditions typically go on a resource consent?
The conditions relate to mitigating the effects of the development on the environment; for example, requiring landscaping to avoid visual effects.
What can neighbours do if they disagree with a resource consent after it is decided?
The Council cannot withdraw a resource consent - once it has been decided, it is here to stay. If you think that due process has not been followed, then you can apply for a judicial review via the High Court.
How do we know that a development is built the same as what was approved?
A RMA Monitoring and Enforcement Officer checks every single development that has a resource consent to make sure it is in line with the approval. They also check that consent conditions are complied with.
If the resource consent conditions are not met, the Council can undertake appropriate action. This ranges from a formal warning, an abatement notice to cease work or an infringement notice.The determination as to which method is used is based on the severity of the effects on the environment.
If someone is concerned about a development near them, they can call or email an enforcement officer (email@example.com), and they will research it and come and have a look. They always get back to the complainant, and the complainants details are kept confidential.
Why is there a lot of dense development happening in the Hutt?
Lower Hutt has insufficient housing to meet the needs of its residents.
Plan Change 43 seeks to allow more infill development across certain areas in the city. In doing so, it will change our residential neighbourhoods by increasing the density. Change like this can be distressing for people. This change needs to be balanced against the housing shortage in Lower Hutt and a growing homeless problem.
Why aren't there vehicle parking spaces in the development?
The recent National Policy Statement for Urban Development directs Councils to remove minimum parking standards from District Plans. As a result of this, very soon no carparking spaces will be required for development in the city. This may mean there are more vehicles parked on the street. As long as they are parked legally and registered and warranted, this is allowed. Any illegal parking can be checked by our parking officers.