The amendment allowed Auckland Council to opt out of Medium Density Residential Standards (MDRS) as long as they can provide the same amount of capacity for housing across the region, as seen in recent headlines about the 2 million dwellings. As of 3rd of November Auckland Council has withdrawn PC78 (MDRS Plan Change) and replaced it with a new plan change (Plan Change 120) that allows significant upzoning along the rapid transit networks and includes significantly reducing character areas, these new rules are not in force yet. Plan Change 120 has a secondary focus to protect sites subject to natural hazards from inappropriate development, these new rules are in place now and we recommend talking to us about how this may impact what you can build on your site.

Building in hazardous areas is getting more challenging

The RMA updates include stricter regulations around building in hazard prone areas with the idea that building in inappropriate areas will become very difficult and will need a high level of evidence to support acceptability. A councils ability to refuse a subdivision consent based on hazards is strengthened by the amendments. Furthermore, any proposed rules relating to hazards in Auckland Council’s new intensification plan change (PC120) have immediate legal effect meaning they will apply straight away. If you are developing a site with flood layers, coastal hazards and other restrictions, this may become challenging and additional assessment required to demonstrate acceptability.

Information and assessments to be commensurate to scale of the project

There are new clauses in the RMA that mean that council must take into consideration the scale of the activity when reviewing an application and asking for further information. What this means is that Councils will be able to have discretion for smaller applications (additions and alterations) to be not as detailed/thorough as other more complex applications. Applications will still need to provide applicable specialist reports is support of a proposal such as flood reports if developing in a flood plain.

Related to this, the ‘commensurate’ bar may be interpreted to be a bit higher for the s88 (completeness) check. Council needs to check upfront that they have enough information to ensure the application can processed non-notified at this stage as they can only ask for s92 questions in relation to overall acceptability of the proposal (s104). Direction in the amendment is to encourage council to focus on the key effects and not sweat the small stuff when asking for further information.

More risk if RFI’s are not replied to in time

The amendment includes a clause to help council streamline consent processes, by returning applications that fail to respond to further information requests in time (3 months). Previously, councils could only threaten to notify an application if there was no response for an extended period of time, at which point, an applicant could withdraw an application or respond with the requested information. In practice this meant council systems became clogged with applications which have been on hold, sometimes for years as no one wanted to initiate a costly and time-consuming notification process. What this means for applicants is that focus on prompt responses must be made to avoid applications being returned, the good news is that this provision does not apply to applications that are currently processing. There is also no right for objection to this decision to return an application if councils choose to use it.

Streamlining the condition review process

At the moment, there is no formal RMA process for applicants to review draft conditions of consent and councils tend to request an application to go on hold while applicants review conditions. This is usually a mutually agreeable situation as applicants can take their time to review and negotiate conditions instead of having conditions imposed which may be unworkable or have errors and then go through protracted and costly objection processes. The new clause automatically puts the application on hold for condition review, meaning less admin on both the council and applicant’s side.

Strengthened compliance and enforcement

There are some long overdue changes in the RMA strengthening compliance and enforcement provisions, with a significant increase in fines and council able to consider an applicant’s compliance history with assessing applications.