What Does Section 4 of the Unitary Plan Mean?
Section Four of the Unitary Plan is arguably the most important part of the entire Unitary Plan. Section Four contains all the RULES and definitions of those rules that are seen in the Unitary Plan – and also does one’s head in on the way out. One has to remember that the Unitary Plan is a document based on our Resource Management Act 1991 and subsequent amendments as they come from Wellington. What activities are permitted, controlled, restricted discretionary, discretionary, non complying and prohibited are all spelt out in the Unitary Plan and the definitions provided in the RMA.
Unfortunately the RMA is a cumbersome document (I have a copy here at home) and could be easily one of three (what I call) pieces of super legislation New Zealand have. By super legislation I mean it is beyond thick as a brick in size, has language that would baffle most people and has the greatest effect on most ordinary citizens’ lives. Of course the other two pieces of super legislation that we all love to have would be Tax Law and ACC
With a cumbersome document like the RMA comes an equally as cumbersome document we know as the Unitary Plan. At what ever pages thick and language that will leave 99% of the city befuddled (paraphrasing Orakei Local Board Chair Desley Simpson) you can see why residents and business might get upset with the Unitary Plan.
Where am I going with this?
Recently there was a major outcry on Mixed Housing Zones and what was entailed with them. In short as it has always been with a MHZ you can build a two storey (eight metre) house as of right – it is a permitted activity under most existing plans and the upcoming Unitary Plan. Where things get interesting is that you can build a three storey (10 metre) high house (not quite sure you can do Walk Up apartments though) providing you meeting the resource consent and urban design controls in place. This is because such an activity is classified as a Discretionary Restricted Activity per the RMA. Again this piece was already in most existing plans and is again in the upcoming Unitary Plan. So nothing different per se.
I believe what might have people “interested” is what does Restricted Discretionary Activity mean? In the Unitary Plan and as set out in the RMA it means:
220.127.116.11 Restricted discretionary activities
Resource consent is required for a restricted discretionary activity. Council may approve or decline a proposal for a restricted discretionary activity. The Unitary Plan specifies the matters over which council has restricted its discretion. Council’s consideration of the proposal, and the ability to refuse the application and impose conditions, is restricted to these matters.
The Unitary Plan uses this approach where it is possible to limit discretion to specific effects associated with an activity or development, which need to be assessed.
A permitted activity as a comparison is:
18.104.22.168 Permitted activities
Resource consent is not required for a permitted activity if it complies with all the relevant rules in the Unitary Plan. The Unitary Plan uses this approach to provide for activities to be carried out as of right, provided certain controls are met. If an activity does not comply with one or more of the relevant controls it is not a permitted activity. In those instances the activity will fall into one of the activity categories below and will require resource consent.
The RMA permits certain existing land uses, which were lawfully established, to continue despite contravening a rule in the Unitary Plan. These activities have existing use rights, but must satisfy the provisions outlined in s. 10 and s. 20A of the RMA.
It is the responsibility of the person claiming existing use rights to demonstrate they comply with the relevant sections of the RMA.
Certificates of Compliance (CoC)
An application can be made to council to obtain a CoC for a permitted activity. A CoC certifies that the development is fully complying. Section 139 of the RMA outlines the role of consenting authorities and environmental protection agencies in issuing CoCs. A CoC is treated as if it was a resource consent.
To provide the relevant Section Four material and what activities are what to the five residential zones I have these embeds
4.1 General Provisions
4.3.1 Residential Zones
And the Mixed Housing Zone document which all the Councillors and Local Board members have sitting in their email boxes but have not publicly released to their communities. The document is a public document and meant to be discussed with residents and businesses
Now from here a two prong situation arises.
First is that I do not like Restricted Discretionary Activities as it gives a central planner too much power away from the community. Yes we have to weigh up private property rights of the individual but for activities to be lugged under the RDA class means there is going to be more than a minor impact and those in the immediate vicinity might want to be notified. You know – a no surprises policy. The Centralised Master Community Plan and Semi-Liberal Plan District methodologies I am working on would restore a more community based approach to planning and assist a no surprises policy.
Second Prong is that the language in Section Four is a total dog and will do anyone’s head in. It even does my head in and I am supposedly clued up with planning, the RMA and the Unitary Plan. If the “planners” language is confusing people on what can actually happen in a Mixed Housing Zone then I don’t blame them for their confusion.
While this might need a rewrite of the RMA itself, maybe Council could to simplify the language their end and run a traffic light system for the class of activities followed by basic plain English of each of the lights/categories. Example:
- Green: Permitted Activities
- Yellow: Controlled Activities (usually activities that produce emissions or other pollutants that can be controlled); and Restricted Discretionary Activities (more relevant to residential zones and their subsequent activities)
- Orange: Discretionary Activities
- Red: Non Complying Activities
No need to mention Prohibited Activities as that is usually controlled by Central Government and often refers to things either toxic or nuclear in nature.
With a traffic light set up followed by basic plain English definitions if someone was to engage on an activity within one of the five residential zones; the citizen in question might have an easier time understand the rules and not be so confused.
I might work on simplifying and setting up a Traffic Light kind of system for the Unitary Plan but, not until after my submission is handed in by May 31.
In saying that; a well-informed citizen equipped with the knowledge and an understandable plan is a happy citizen. The opposite is a confused and angry citizen.
Maybe Council needs to work on its English in the Unitary Plan a bit better. Oh and lots of pictures – for pictures speak a thousand words (and save paper )
Talking Auckland: Blog of TotaRim Consultancy Limited
Bringing Well Managed Progress to Auckland and The Unitary Plan
Auckland: 2013 – YOUR CITY, YOUR CALL