Get in on the Act

Get in on the Act

Total Property - Issue 3 2017

By RMA expert Gerard Cleary

Few pieces of legislation in New Zealand have been subjected to the level of sustained criticism directed at the Resource Management Act. Now in its 26th year on the statute books, the act has been frequently identified as an impediment to the efficient operation of business in New Zealand.

As political footballs go, the RMA has been kicked around repeatedly over the years, with both Labour and National making numerous amendments to the original act. Broadly speaking, most these changes have been focused on the processes involved in the implementation of the act as opposed to the act’s key provisions.

Looming on the immediate horizon is a further suite of amendments, including:

• Introduction of a fast track 10-day process for minor consents and the ability for local authorities to waive consent requirements for minor issues;
• Increased choices being made available to local authorities as to the processes for the development of district and regional plans;
• Requirements on local councils to ensure that there is sufficient residential and business development capacity to meet long-term demand; and
• Provisions that require councils to use a standard planning template.

A key aim of the above amendments is to avoid the impacts associated with, in some cases, the chronic under-supply in major centres of land for urban development. That is, of course, to be welcomed, as are attempts to reduce delays and frustrations associated with consents for minor infringements of planning rules.

Ultimately, any judgement as to the effectiveness of the scheduled amendments must be reserved until their implementation. For the time being, it would be a reasonably safe bet to speculate that in the very near future there will be calls for even greater amendments and perhaps even a fundamental overhaul of the RMA itself.

THE RMA EFFECT

For those involved in commercial property, the level of interaction with the RMA largely depends on which of the following broad categories they fit within:
• A lessee of commercial (including office, retail and industrial) premises;
• An investor in an existing commercial building;
• A developer of commercial property in a location appropriately zoned for such use;
• A developer of commercial property “out of zone”, whether by means of a resource consent or plan change application.

For a proposed lessee, if the standard ADLS lease is to be used, there is a specific clause (38.1) which makes it clear that the landlord is not warranting that the intended use of premises complies with any by-laws or other ordinances of a local authority. As this would include rules within district or regional plans, the onus falls on the prospective tenant to check that compliance with these plans is achieved. This should normally be a very straightforward exercise in respect of district plans, although complications can arise if the tenant’s proposed use requires some form of discharge permit under a regional plan.

For investors in existing commercial property, the bottom line is the security of the investment. This typically involves considerations such as the quality of the existing tenants and their lease terms.

Regardless of the scale of the investment and a property’s characteristics, carrying out planning due diligence can be invaluable. This may include an analysis of such factors as the consenting history (if any) behind the property as well as the relevant zoning provisions.

For “in-zone” developers, the focus will be on the relevant zone provisions.

Although these will be permissive of development, rules within district plans are essentially lowest common denominator provisions that do not always suit individual development proposals. This may mean a resource consent is required.

There has been a significant rise in the importance placed on urban design. New buildings or alterations to existing buildings within commercial centres are often subject to the consent process, with the decision to grant or decline consent determined by urban design assessment matters.

While it is difficult to mount a convincing argument that good urban design isn't important, most commentators on the RMA would accept that the inherent subjectivity associated with the discipline of urban design can prove to be a real challenge in the consent process.

Put another way, it is extremely commonplace for designers of a proposed commercial project and members of a local authority urban design panel to hold very different opinions on the merits of an individual design. This can prove frustrating for all concerned, with the result being prolonged delays in obtaining approval.

The last category is “out of zone” developers seeking either a resource consent or plan change for commercial development in a zone which does not provide for such use. Often this can be an extremely challenging task, as such projects can be subject to a high level of opposition from not only affected communities, but also local authority planners.
Gerard Cleary is a special counsel with law firm Anthony Harper. He has more than 20 years' experience in RMA and local government matters.

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