Better Urban Planning?

Monday September 5, 2016

An interesting response to New Zealand’s urban planning problem is recommended in the Productivity Commission’s Report, Better Urban Planning, which was released on 19 August 2016.  Historically, New Zealand’s urban planning has developed without a great deal of guidance from central government, but this is about to change if the recommendations in the Report are implemented. 

The purpose of the Commission’s inquiry was to review New Zealand’s urban planning system and to identify the most appropriate system for allocating land use to support desirable social, economic, environmental and cultural outcomes.  The Report needs to be read in this context, as it did not attempt to provide a response to improving the regulatory framework for better urban planning design, as the name of the Report might suggest.  The Report focusses on the environmental outcomes the Commission says are most closely connected to cities, urban development and land use: air quality, drinking and recreational water quality, and climate change. 

In summary, the key recommendations in the Report, and perhaps the most interesting, are: a Government Policy Statement (GPS) on environmental sustainability, introducing market-based tools for environmental management, appointment of a permanent independent hearing panel (IHP) for certain applications under the RMA, limiting participation in the planning process, and the introduction of spatial plans as part of the planning system.  Each of these recommendations will now be discussed in turn.

A GPS on environmental sustainability is an interesting tool to address urban planning (and the crisis at the forefront of many young New Zealanders' minds – housing affordability) when the other options available under the RMA, such as a National Environmental Standard, or a National Policy Statement, are considered.  The only other GPS in place at present is the GPS on land transport, although other GPSs have been used to regulate electricity governance.  The Report says the GPS will set environmental priorities and principles so decision makers can prioritise environmental issues regarding scarce resources or conflicting objectives. 

A permanent IHP is recommended to hear matters on land use rules and policies, and the Environment Court would have a different role if the recommendations by the Commission are followed.  The Court’s role would be reduced due to the introduction of the IHP, limited appeal rights, and a narrower notification criteria.  This proposal appears similar to the process used for the proposed Auckland Unitary Plan.

The Report’s recommendation regarding participation seem incongruous.  On one hand, the Report says that notification would be “more squarely focussed on those directly affected”, yet on the other hand the Report says there should be more representative consultation.  While there are obvious differences between notification and consultation, in terms of improving planning outcomes, narrowing participation in the process and limiting the ability to appeal council decisions seems at odds with the participatory nature of the RMA.

It is a welcome change to see soft regulation options emerging, rather than prescriptive regulations which can be difficult to adapt to a changing environment.  The use of market-based tools to provide for responsive management seems a positive step towards improving regulation for urban planning and the Report identifies that a greater emphasis is needed on adaptive management.

A good common-sense recommendation to improving the current system is the introduction of mandatory spatial plans as part of the planning system under the RMA.  The Report recognises that this may risk increasing the cost and complexity of the system, but says that possibilities exist to remove other parts of the planning system under the Local Government Act 2002 and the Land Transport Management Act 2003. 

The Report identifies two issues that the Commission is seeking feedback on, and the Commission is welcoming submissions on how best to address these issues.  The first issue is the preferred legal framework under which urban planning could be best addressed.  The options are either regulating planning under the RMA, or introducing a separate ‘built environment’ statute.  Perhaps this issue is not surprising given the move away from the statutory tools available under the RMA and the limited participation proposed in the recommendations.
 
The second issue identified by the Commission was enforcement.  The Report recognised that in some circumstances it was possible that enforcement by locally elected bodies was problematic, and perhaps a more effective approach would be to expand the Environmental Protection Agency’s role and introduce regional offices.   This latter option is certainly appealing from an environmental management perspective due to the increased perception that enforcement is not a political tool.  The other alternative is to increase the oversight of regional councils.

Submissions are sought on the draft findings, recommendations and questions raised in the Report by 3 October 2016.

Vanessa Hamm, Partner and Kimberley Jordan, Solicitor