BEFORE THE INDEPENDENT HEARINGS PANEL FOR THE SELWYN PROPOSED DISTRICT PLAN
UNDER the Resource Management Act 1991
IN THE MATTER of Submissions and further submissions in relation to the proposed Selwyn District Plan
AND TRICES ROAD REZONING GROUP Submitter (DPR-0298)
LEGAL SUBMISSIONS ON BEHALF OF THE TRICES ROAD REZONING GROUP TOPIC 3: URBAN GROWTH
20 August 2021
Duncan Cotterill
Solicitor acting: Katherine Forward PO Box 5, Christchurch 8140
Phone +64 3 379 2430 Fax +64 3 379 7097
Katherine.forward@duncancotterill.com
INTRODUCTION
The Submitter
1 Trices Road Rezoning Group (TRRG) is a group of six property owners with an interest in rural zoned land adjoining the southwestern part of Prebbleton Township. TRRG has lodged submissions on various provisions of the Proposed Selwyn District Plan (PSDP), including rezoning of rural land in Prebbleton to a combination of General Residential and Large Lot Residential zones, and amendments to:
Strategic Direction Objective SD-UFD-02;
the definitions of ‘Township Network’ and ‘Service Activity Centre’; and
the overview section, Objective UG-03 and several policies in the Urban Growth (UG) chapter.
2 TRRG has also lodged private Plan Change request (PC72) to the Operative Selwyn District Plan to ensure that Policy 8 of the National Policy Statement for Urban Development (2020) (NPS-UD) is engaged – which directs decision maker to be responsive to plan changes that would add significant development capacity and contribute to well-functioning urban environments, even if the development capacity is unanticipated or out of sequence.
3 TRRG have worked in unison to further residential zoning for the land for many years. The TRRG block is located within preferred rural residential area 8 in the Selwyn Rural Residential Strategy, is within the proposed Urban Growth Overlay, and adjoins the existing urban environment meaning it is an ideal and logical location for further urban growth of Prebbleton. Development of the block will achieve a compact, and efficient, urban form with excellent connectivity by multiple transport modes as well as bridging the existing urban area to the proposed Birchs Road reserve to the south. It will also support a competitive land and development market as directed by Objective 2 of the NPS-UD.
4 This merits of the TRRG rezoning proposal will be addressed during the rezoning hearing(s) to follow, however it is submitted that the proposal serves as a useful case study to assess whether the objectives and policies of the
proposed UG Chapter are the most appropriate way to achieving the purpose of the Resource Management Act 1991 (RMA).
Outline
5 These submissions address the following:
Outline the key concerns of the TRRG and introduce the planning evidence of Mr Thomson;
Provide an overview of the statutory obligations dictated by the Resource Management Act 1991 (RMA) and that must be adhered to by the panel when making decisions on the form and content of the PSDP;
Discuss the implications of the higher order planning documents that the UG Chapter must ‘give effect to’; and
Consider the relief sought by TRRG which seeks to address the concerns identified.
KEY CONCERNS
6 It is submitted that the PSDP fails to give effect to the NPS-UD. The relief sought by TRRG is necessary to enable the UG objectives and policies to deliver well-functioning urban environments that enable all people and communities to provide for their social, economic, and cultural wellbeing as directed by the NPS-UD.
7 Case law has established that ‘give effect to’ means implement, which is a strong directive. Section 75 of the RMA provides that the PSDP must give effect to both the NPS-UD and the operative Canterbury Policy Statement (CRPS). This creates a tension where the CRPS, notwithstanding Plan Change 1 to Chapter 6 of the CRPS (PC1), has not been updated to give effect to the NPS-UD. In this scenario, where conflict exists, the RMA creates a planning hierarchy where national planning documents take precedence over regional planning documents.1
1Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38 at [10 – 11]
8 It follows that the existing CRPS approach of a hard projected infrastructure boundary and future development constrained to certain areas (Rolleston, Kaiapoi and Rangiora) is contrary to the responsive planning framework required by the NPS-UD. PC1 only enables Councils to rezone enough land (and no more) to meet any shortfalls in land supply to meet the targets specified in Table 6.1 of the CRPS. These targets are the ‘minimums’ necessary to meet anticipated demand, and are, in combination with the fixed urban/rural boundary, a restrictive urban growth management approach.
9 In contrast, the NPS-UD directs Councils, both regional and local authorities, to plan for (and be responsive to) future urban development across the short, medium and long term. This can simply not be achieved by providing only for sufficient feasible housing capacity that meets housing bottom lines – UG-03.
Particularly, where these assessments are now out of date2.
10 The TRRG amendments to UG-03 to include the words "at least sufficient feasible housing and sufficient business development capacity within each township…” are necessary to ensure that the overarching directives in the NPS-UD are achieved.
11 In particular, Policy 1 of the NPS-UD requires that “planning decisions contribute to well-functioning urban environments, which are urban environments that, as a minimum: have or enable a variety of homes that meet the needs, in terms of type, price, and location, of different households…”
[my emphasis]
12 While TRRG supports retention of the UG Overlay, this is premised on outdated development strategies, and assessments of need and demand that are behind the actual rate of land development and building, and therefore are out of step with market demand. Constraining development (specifically rural residential development in the case of TRRG land) is inefficient, short sited and not responsive decision making. This is particularly so, where demand demonstrates that development at urban densities is a better use of land and more aligned to higher order policy direction.
13 The introduction of a minimum residential density of 15hh/ha to Policy UGP-13 is another example of the PSDP failing to conform to the overarching NPS-UD
22Minimum targets in Table 6.1 (as introduced by PC1 to Chapter 6 of the CRPS) were prepared for Our Space 2018-2048. These are also very sensitive to assumptions made regarding what is feasible development and to the methodology employed.
directive – to deliver well-functioning urban environments. It is submitted that in the context of the Selwyn District an increase in the minimum net densities has potential to prevent development in some areas. This is untenable in a District that has experienced a profound period of growth and where demand currently exceeds supply.
PLANNING EVIDENCE
14 Ivan Thomson, Aston Consultants, has produced evidence in support of the relief sought in the TRRG submissions on the UG Chapter. TRRG maintains its original and further submissions, unless where amended in Mr Thomson’s evidence.
15 Mr Thomson has also provided evidence in support of relief sought by TRRG to Strategic Direction Objective SD-UFD-02 and the definitions of ‘Township Network’ and ‘Service Activity Centre’. All submission points interrelate and evidence prepared for each hearing must be read alongside the other and in combination with the other TRRG submissions and further submissions.
16 Mr Thomson summarises his evidence on the UG Chapter as follows:
I do not consider the NPS-UD 2020 is restricting future land supply to what is just enough. It uses the words ‘provide at least sufficient development capacity to meet expected demand for housing and for business land over the short term, medium term, and long term’. I see no reason to depart from the NPS wording.
The Strategic Directions Objectives form the overarching provisions for the UG Chapter. These Objectives signify the importance of both the Township Network, and Activity Centre Network as providing important frameworks for the form and direction of urban development in Selwyn District.
I do not share the position, that I understand Mr Baird [Reporting Officer] may have taken, that the term ‘significant development capacity’ is considered at a sub-regional scale as it enables a unified approach for the Greater Christchurch sub-region, and it recognises the value of the sub-region as one economic housing market. In my opinion, the scale (and intensity) of a development cannot be separated from its locational context, and a series of smaller capacity
additions could just as effectively meet the objectives of the NPS if these together constitute well-functioning urban environments.
The housing needs of persons employed in a particular township and/or their social wellbeing in terms of existing family and friendship networks, will not be met if there is no local housing available. Housing needs in my opinion also need to be considered at a township not just District or subregional level. Housing supply stock must be located so as to respond to demand.
I consider that terminology is important in providing a necessary alignment with the RMA and enables a seamless application from the RMA at a local planning level.
STATUTORY FRAMEWORK AND LEGAL CONSIDERATIONS
17 Together with guidance drawn from Long Bay / Colonial Vineyards, the RMA provides that the Selwyn District Council (the Council) and in turn the panel must consider the PSDP objectives and policies in accordance with:
its functions under s31 of the RMA, specifically, to ensure that there is sufficient development capacity in respect of housing and business land to meet the expected demands of the district;
the provisions on Part 2 of the RMA;
evaluation reports prepared in accordance with s32 and s32AA of the RMA – to evaluate whether an objective is the most appropriate when measured against the relevant purpose; and
the requirement to ‘give effect to’ relevant national policy statements, including NPS-UD, the CRPS and national planning standards.
18 The obligation on the Council to provide sufficient development capacity to meet demands pertains to the district rather than the Greater Christchurch area as has been suggested by other submitters3. It is submitted that the term
“district” must apply to townships within the relevant district rather than the district as a whole. Demand is dictated by the market and so townships that
33For example, the Christchurch City Council.
exhibit strong growth (such as Prebbleton) will inevitably require greater provision for development capacity.
19 It is submitted that the TRRG relief focusses on ensuring the objectives and policies in the UG Chapter are the most appropriate in achieving the national direction dictated in higher order policy documents and ought to be preferred.
HIGHER ORDER DOCUMENTS
National direction for Urban Growth
20 The NPS-UD recognises the national significance of urban environments and provides direction on planning for urban environments through establishing well-functioning urban environments that enable the wellbeing of people and communities, provide sufficient development capacity to meet demand and ensure evidence-based, responsive decision making.
21 The ‘responsiveness’ of the NPS-UD planning framework is important, particularly in the context of submissions on the PSDP that seek rezoning outside of areas identified in Map A of the CRPS. The CRPS was prepared under the previous NPS-UDC and its prescriptive approach does not enable responsive planning at a District level as required by the NPS-UD.
22 Objective 6, and Policies 6 and 10 of the NPS-UD relevantly provide:
Objective 6 – local authority decisions on urban development are responsive, particularly in relation to proposals that would supply significant development capacity;
Policy 6 – decision makers have particular regard to any relevant contribution to providing or realising development capacity;
Policy 10 – local authorities engage with the development sector to identify opportunities for development.
23 Policy 10 is particularly important as the Council has declined to rezone any new residential land under the PSDP4, rather relying on the development sector to progress potential sites by way of submission (or Plan Change) based on demand. The success of this approach, in advance of the spatial planning
4Although lifting of deferred status in some limited areas is acknowledged.
work to come, is governed by the UG Chapter of the PSDP. For this reason, it is fundamental that the UG provisions enable rezoning proposals to be assessed on their merits together with their contribution to well-functioning urban environments (meeting the requirements of Policy 1 of the NPS-UD) and not be constrained by overbearing policy direction.
24 There is a risk that if the panel proceeds to adopt prescriptive UG Policies (Policy UGP-13 in particular) that the PSDP will fail to achieve at least sufficient development capacity over the short, medium and long term. It is not enough to rely on the CRPS to address any shortfall in the medium/ long term by adjusting the Map A boundaries.5 The NPS-UD requires the Council to be strategic in its decision making.
Sufficient development capacity
25 Part 3: Implementation sets out a non-exhaustive list of things that the Council must do to ‘give effect’ to the NPS-UD. Clause 3.2 provides that in order to be sufficient to meet expected demand for housing, the development capacity must be plan-enabled, infrastructure-ready, feasible and reasonably expected to be realised and meet the expected demand plus the appropriate competitiveness margin, to support choice and competitiveness in housing and business land markets. These considerations require careful assessment.
26 The above list will not be met if the Council adopts the UG objectives as currently drafted. It is submitted that the obligation on Council to provide for housing to meet the expected demand plus the appropriate competitiveness margin6 cannot be achieved by constraining development to housing bottom lines as contained in the CRPS or by limiting growth to densities anticipated in out-dated strategy documents such as the Prebbleton Rural Residential Strategy.
27 Further, in relation to plan-enabled development capacity, the Environment Court decision of Appealing Wanaka Incorporated v Queenstown Lakes District7 found:
5Which are based on the Projected Infrastructure Boundary included in previous Proposed Change 1 to the RPS notified in appx 2007 – well before the earthquakes and very out of date.
6The competitive margin over the short to medium term is 20% (in each location when applying Policy 1 NPS-UD) and 15% over the long term.
7[2015] NZEnvC 196
[113] … Land may be zoned residential but that does not mean it is actually assisting to meet the quantity of sections demanded. Only sections for sale can do that. There is no direct relationship between the number of sections theoretically able to be cut out of land zoned residential and the number of sections actually on the market at any one time…”
28 This is an important consideration in Selwyn where housing capacity assessment(s) inflate the capacity for infill development by not taking account of existing development constraints, including the existing pattern of small holdings and dwelling and curtilage areas which limit the capacity for ‘infill’, the existing unusual shaped (and sized) lots, and the difficulties in achieving site amalgamation given the fragmented land ownership and access constraints.
29 It is also submitted that competition cannot be achieved when there is limited supply. This is particularly relevant in the Prebbleton context.
Alignment with the Canterbury Regional Policy Statement
30 PC1 of the CRPS is alleged by some submitters8 to have already “given effect”
to the NPS-UD. This is rejected. PC1 made operative in July 2021 did not give effect to all the provisions of the NPS-UD; the wider and longer-term urban development issues are to be considered as part of a scheduled full review of the CRPS.
31 This means that parts of the CRPS (relevantly Chapters 5: Land Use and Infrastructure, and 6: Recovery and Rebuilding of Greater Christchurch) are invalid or incomplete and that the requirement for the PSDP to give effect to the NPS-UD will prevail over the requirement to give effect to the current provisions of the CRPS.
32 It is acknowledged that Objective 6.2.1 of the CRPS establishes an avoidance regime for urban growth outside of existing urban areas, or identified Greenfield Priority Areas, unless expressly provided for by the CRPS.
However, Objective 6.2.1 was not updated by PC1 and so must be considered by the panel as not yet reflecting the new national direction in the NPS-UD.
33 It would be inappropriate for the panel to infer that the UG objectives and policies must align with the provisions of the CRPS. It is submitted that there is flexibility for the panel to enable a more responsive planning framework to
8See legal submissions of Christchurch City Council in relation to the Urban Growth chapter at [4.20]
ensure plan decisions respond to real world opportunities, while also contributing to good urban outcomes and increased development capacity.
RELIEF SOUGHT
34 TRRG seeks the relief set out in their submissions and where relevant, the alternate relief proposed by Mr Thomson at Appendix 5 to his evidence, which addresses the issues and concerns outlined above. It is submitted that the TRGG modifications to the UG Chapter will achieve greater alignment with the NPS-UD and better enable the Council to fulfil its obligations under the RMA.
35 Fundamentally, the relief sought will deliver an UG Chapter that is clearly aligned with the NPS-UD and will facilitate movement over time (in the event that sufficient development capacity has been underestimated) for the Council to consider rezoning proposals on a case-by-case basis, thus ensuring it is well placed to provide for sufficient feasible development capacity within the Selwyn District.
36 In summary the NPS-UD was designed to enable UG. It is critical that the PSDP provisions provide a pathway for this to occur in the Selwyn District.
Dated 20 August 2021
Katherine Forward
Counsel for Trices Road Rezoning Group
