Our thoughts on … the Urban Development Bill
Legislation to expedite urban developments in New Zealand - the Urban Development Bill - has been published for its first reading and it includes a number of provisions that circumvent the RMA. In this think piece, Lucy explores the implications of just three components of the Bill in relation to current planning practice.
Image: Lucy Cooper
The Urban Development Bill (UDB) has been published for its first reading. It’s described as an omnibus bill providing the functions, powers, rights, and duties of Kāinga Ora—Homes and Communities, to enable it to undertake its urban development functions. Except as otherwise specified in the UDB, the provisions of the Resource Management Act 1991 (the RMA) continue to apply in relation to urban development projects (s14). However, it’s where the UDB trumps the RMA that significant questions arise. Here’s what’s caught my eye so far.
Recognising amenity values
Section 5(b) directs that specified development projects provided for under the UDB must promote sustainable management, recognise and provide for s6 of the RMA, and have particular regard to s7 matters but (and here’s the kicker) recognise that amenity values may change (my emphasis).
The RMA contemplates and provides for change, provided it is consistent with the principles of sustainable management; and s7 of the RMA requires decision-makers to have particular regard to the maintenance and enhancement of amenity values. So, in an ideal world, any change in amenity values that arise from a development provided for in the UDB would be consistent with achieving the outcomes set out in sections 5, 6, and 7 of the RMA.
But that but… Is it me, or does that little conjunction have the effect of subtly undermining the directions before it? It appears to single out a ‘change in amenity values’ for special attention. But when would a decision-maker need to specifically recognise that amenity values may change, and to what purpose? When that change in amenity values is not consistent with the outcomes of the purpose and principles of the RMA? Or when the purpose of the UDB – to facilitate urban development that contributes to sustainable, inclusive, and thriving communities - is at risk? And how much amenity do you need to create ‘sustainable, inclusive, and thriving communities’? My feeling is, quite a lot. Does this provision undermine or boost the ability to achieve high amenity values in new development? Does the UDB raise some potential equity issues in this respect? For example, can communities affected by Kāinga Ora proposals expect less amenity or different development outcomes than communities where residential development will be authorised under the provisions of district plans and the RMA only? Or will it be the other way around? It will be interesting to see how this plays out in practice.
Engagement and Consultation
There appear to be two key moments for engagement and consultation provided for in the UDB. The first is when a specified development project is being considered, at which point Kāinga Ora is directed to ‘seek to engage’ (s33) with agencies including relevant local authorities, Māori entities, NZ Police, and Fire and Emergency NZ (s35). Kāinga Ora can seek to engage early, and that can satisfy the engagement obligations under the UDB. Early engagement can include engagement undertaken before a project is selected to be assessed as a potential specified development project, or as part of an earlier assessment of a project (s36).
Engagement gives way to consultation during the preparation of a development plan (s70). At this stage, Kāinga Ora must involve the people that own or live on land within a project area; and also has the discretion to consult any person, group, or community representative with ‘an interest’ during this stage.
Large scale regeneration projects in the Auckland suburbs of Glen Innes and Tāmaki have demonstrated the importance of getting community consultation and engagement right and early, and the significant social, cultural, and economic costs when it’s done poorly. The lessons from Tāmaki at least would be that effective, long-term engagement and consultation is critical where regeneration involves existing, established communities and where residents will undoubtedly experience disruption and upheaval, including being evicted, to make way for new development.
The Minister responsible for the UDB, Phil Twyford, views its consultation and engagement provisions as ‘front-loading’ public consultation. Yet, there seem to be few guarantees in the Bill that the quality of consultation will be commensurate with the potential complexity and scale of change facilitated by the UDB. The UDB also contains significant land acquisition powers, described in a recent NBR article as being similar to those seen in the controversial Public Works Act, held by many as being responsible for radically shrinking Māori landholding. Some areas of Aotearoa may face a double whammy of extensive urban development and compulsory purchase of land, which would be testing for even the most well-consulted, well-engaged communities.
Just some of the questions for me as I look at the UDB’s consultation framework are:
To misquote biblical sources, you may seek and not find. So, what level of effort is involved in ‘seeking to engage’?
How will local authorities ensure consultation and engagement with them is effective, representative of community outcomes, and reflective of local strategic direction?
How and when will Kāinga Ora engage with other housing providers in a project area, and should they perhaps be considered ‘key stakeholders’ under the UDB?
Where are the safeguards in the UDB to connect the requirement to consult and engage with the purpose to create ‘thriving communities’?
Is it too late to engage with owners and occupiers at the development plan stage, or should existing communities be provided for much earlier in the process?
How and when will Kāinga Ora exercise its discretion to consult community representatives? and
How difficult will those representatives find it to convince Kāinga Ora that they are worthy of engagement?
Modification of planning instruments
Section 66 of the UDB is dense and appears considerably enabling for Kāinga Ora when preparing development plans. Kāinga Ora can develop objectives, policies, methods, and rules for a project area and these can override, add to, or suspend any provisions of a regional policy statement (RPS) or a plan made under the RMA.
Rules can apply across the whole or part of a project area, apply differently to different parts of a project area, and manage activities that are not anticipated by the draft development plan.
Kāinga Ora is required to prepare an evaluation report (s72), which looks similar to that required for a plan change under s32 of the RMA. However, when considering if its proposal is the most appropriate way to achieve the project objectives, Kāinga Ora must have regard to the purpose of the UDB, which is to facilitate urban development that contributes to sustainable, inclusive, and thriving communities. The purpose and principles of sections 5, 6, and 7 of the RMA, which are the central consideration when evaluating a regular plan change, appear to take very much a back seat under the UDB.
What are the risks of this approach? Is the link between the UDB and the environmental principles and bottom lines of the RMA too tenuous to guarantee sustainable development will result? How will environmental-based evaluation occur in practice under the UDB provisions? How will submitters successfully (and efficiently) make the case for consideration of environmental principles, and how will decision-makers weigh those considerations?
These are very much my first thoughts on the implications of the UDB. There’s an awful lot in the Bill to interest planners, housing officers, urban designers, landscape planners, community development officers, infrastructure and transport planners, as well as representatives of communities and community groups. If you have any burning thoughts on these issues (or answers to some of the questions I’ve raised!), we would love to hear from you. Please contact Lucy by email, lucy@planalytics.co.nz