Plans, policies and reports
Hauraki Gulf Islands review
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Issues and options papers
Non-complying Activities
Issue
The Hauraki Gulf Islands (HGI) District Plan identifies activities as being
either permitted, controlled, restricted discretionary, discretionary,
non-complying or prohibited. Non-complying activities are described in section
77B(5) of the Resource Management Act 1991. Particular restrictions for
non-complying activities are in Section 104D. They state that a consent
authority may grant a resource consent for a non-complying activity only if it
is satisfied that either the adverse effect of the activity will be minor, or
the application is for an activity that will not be contrary to the objectives
and policies of the relevant District Plan. There is considerable case law
regarding non-complying activities. A non-complying activity is defined in the
current District Plan as an activity that contravenes the Plan but is not listed
as a prohibited activity. Non-complying activities are generally considered the
hardest activities for which to obtain resource consent.
The current Hauraki Gulf Islands Plan is considered a permissive rather than
a prescriptive document. Only specific activities that do not meet discretionary
thresholds are considered non-complying activities. Two problems arise. Firstly,
there is a lack of consistency as to which activities trigger the non-complying
threshold; secondly, were the permissive nature of the existing plan to change,
should all non-specified activities default into non-complying activities?
Although the HGI Plan is a permissive document, Rule 2.2.3 states that any
activity that is not controlled by a specific rule in this Plan shall be
required to obtain a resource consent for a non-complying activity. This rule
does not sit comfortably with the permissive nature of the current Plan because
the first rule for each land unit states that any activity shall be a permitted
activity where it (a) conforms to the standards and terms contained in Part 6B,
and (b) meets the requirements of rules that are listed.
Therefore, while there is some inconsistency, the existing HGI Plan was
drafted on the assumption that non-specified activities would be treated as
permitted activities. Changes to the Resource Management Act now mean that if a
plan does not specify the classification of an activity, that these activities
are discretionary activities. By having to specifically classify activities as
non-complying, this would make the plan more prescriptive in nature.
Part 6C of the current Plan outlines the standards for discretionary
activities. For example, Rule 6C.1.2.2 - Daylight Control states that no
building shall exceed a height equal to the recession plane angle by more than
10 per cent. This rule effectively pushes infringements where height in relation
to boundary is greater than 10 per cent into a non-complying activity status.
The majority of non-complying land use consents processed by HGI planning staff
are for height in relation to boundary infringements. The cut-off point at which
discretionary becomes non-complying for height in relation to boundary
infringements is low. Concerns have been raised that if the written approvals of
those neighbours affected by the height in relation to boundary infringements
are obtained, there is little point in making these applications non-complying.
Currently only some development controls and other standards can create
non-complying activities, whereas others (for example, height) remain
discretionary activities regardless of the degree of infringement. Should there
be a non-complying threshold for all activities that do not comply with the
standards for discretionary activities?
Possible approaches
You may have a better or alternative approach to those outlined below. If so,
we would like to hear from you.
- Retain the status quo, where some activities are pushed into a
non-complying status.
- Change the permissive nature of the current Plan and incorporate a
non-complying default activity status. This could be achieved by listing
activities and identifying them as being permitted, controlled, restricted
discretionary, discretionary or prohibited. With the exception of prohibited
activities, all activities could be considered to be anticipated in the
various land units, subject to an assessment of effects for each specific
case, as they would have been identified and assigned an activity status.
Where an activity is not provided for in the plan, it could be considered
appropriate for the status to be non-complying, as the plan has not
otherwise anticipated that activity to occur in that particular land unit.
- Retain the permissive nature of the document but place a non-complying
ceiling for those controls considered to generate sufficient effects over
and above the discretionary threshold. For example, a non-complying
threshold of 12 metres could be used for height infringements.
- Emphasise robust objectives and policies for non-complying assessments.
Note:
While this issue paper can be read in isolation, it is best read in
association with the issue papers relating to:
