Importance of conducting a planning feasibility before building, subdividing, purchasing or selling
Have you done your planning and Unitary Plan due diligence before purchasing your dream property or starting on your renovation project or selling your family home? Why do you need to do this? Is it worth investing few hundred dollars for a planning review report?
Answer to the above questions is, “it depends”. It depends on many things, such as the following:
nature and size of your development or property;
location, zoning and size of your property;
is your property affected by geotechnical issues, flood plain, overland flow path or other engineering constraints?;
size of your investment; and
your willingness to manage and/or take risk.
To further elaborate on the above, let us consider a hypothetical yet practical scenario. Client A, “I purchased 4 ha land in rural Auckland few years ago. I was told I would be able to subdivide and build a new dwelling. When I went to Council, their planner said that I am neither allowed to subdivide nor build a house. I am disappointed. Why can’t I do what I want on my property? Why is Council and Council planner being so difficult? I feel I have been misled by the agent who sold me the property”.
Let’s break it down and do some facts checking about the Client A’s situation.
I was told I would be able to subdivide and build a new dwelling. I feel I have been misled by the agent who sold me the property.
When Client A purchased their property in 2010, rules of the District Plan of the former Rodney District Council applied. Under that planning rules subdivision and new dwelling both were feasible on the land. Both activities were a Restricted Discretionary Activity, which means a resource consents would (in most cases) be issued by Council with some condition attached to the consent.
When Client A went to Council in 2018, the former District Plan had been replaced by the new Auckland Council Unitary Plan. Under the rules of Unitary Plan, the land and surrounding area was assigned a new zoning. Subdividing a 4 ha property into smaller lots and building a new dwelling on the property is a Non-Complying Activity. Non-complying activities are the most stringent of the types of activities under the Resource Management Act 1991 (RMA) in terms of the test required for an activity to satisfy the provisions of the District Plan. A consent application for Non-Complying Activity may be declined by Council.
So the real estate agent in 2010 was right. However, in 2018 the development potential of Client A’s property was different due to change in the rules. I.e. the new rules of Unitary Plan.
When I went to Council, their planner said that I am neither allowed to subdivide nor build a house. Why can’t I do what I want on my property? Why is Council and Council planner being so difficult?
Let us be outright very clear that Council planners don’t and can’t make ad hoc decisions about what you can and can’t do on your property. Among other matters, Council planners (both policy and consents) are guided firstly by the Resource Management Act and other higher order legislations such as the National Environmental Standards. Secondly, Council planners are implementing the planning rules of the Unitary Plan to reach a decision about any consent application or to process a plan change or Notice of Requirement (NoR). It may be relevant to remind here that Unitary Plan is a rulebook prepared after a rigorous “public process” under an Act of the Parliament of New Zealand. Council planners assess each consent application on a case-by-case basis as each site has their specific attributes. For example, according to the maximum height rule in the Residential - Terrace Housing and Apartment Building Zone height of buildings could be up to 16 meters. However, you may not be able to build a building of 16m because your site is affected by a volcanic viewshaft that applies over your property, and the maximum you could build is 2 stories.
Council planners do not decide for themselves, or in isolation or vacuum. In addition to the responsibility and obligation to abide by the legislations and District Plan (Unitary Plan in case of Auckland), they are bound by their professional ethics and code of conduct similar to medicine practice or any other professional discipline. New Zealand Planning Institute, the professional body of planners oversee the overall ethics and code of conduct matter related to planners, in general. In case of Environment Court, the court has its own code of conduct. Lawyers would be familiar with such Court requirements. In a consent situation, planners (also known as “processing planner”) are merely messengers who have the role of implementing the planning rules and relevant legislations in making recommendation about an application. It is important to realise here that a processing planner doesn’t sign off consent (other than very simple ones); this delegation is either with the managers or an independent commissioner. In Plan Changes (Council initiated), Council planners (also known as “reporting planner”) provide their expert planning advice to the decision makers; a decision is made by independent commissioners and/or elected representatives of the Council.
As an applicant it may be frustrating for us when we are informed we can’t do what we want on our property but we need to be mindful that “a rule is a rule”. This applies equally to both applicant and planners. Needless to say, planners (both Council and consultant) can’t work outside those rules. In my experience as a Senior Planner in Resource Consents in Auckland Council, Council planners approach applications with positive and open mindedness; they are willing and want to help applicants and developers. Unfortunately, there are instances where planners are required to be honest and provide their planning advice professionally. Planners often have the unpopular job of delivering news to property owners and developers that the intended activity is outside what is feasible under the rules or legislations.
In my experience, if you want your consents on time, you need to work with various arms of Council and its planners. Antagonising or confronting them with unreasonable pressure is not going to help anybody. We need to appreciate that Council planners are working on multiple and often complex consent applications simultaneously. They have time pressure under the Resource Management Act that they have to deliver within certain days. Additionally, processing resource consents is one of the multiple roles a Council planner is juggling in their job. Finally, they are also human. We might be carried away because we feel that they are encroaching on our property rights but they are only doing their job remaining well within the legislative framework and professional integrity. Similarly, from my experience of working as a Policy Planner with Auckland Council for eight years including Unitary Plan, in a Plan Change and NoR situation you might want to build and maintain a good working professional relationship with both your consultant and reporting planners.
Investing time and money upfront to conduct planning due diligence is not only important but it is essential if you do not want surprises down the road. Size and complexity of such due diligence is determined by many factors. There is no “one size fits all” when it comes to planning due diligence. It might be just case of couple of hours of checking Unitary Plan, title and property bag if you have a 2 lot infill subdivision. At the other end, a thorough investigation may be needed if your site or development is large and complex. Generally, as a thumb rule, higher the risk greater the importance of conducting a more thorough planning due diligence.
iSolutions offers planning due diligence at a reasonable price. Contact them today at
email@example.com | 021 022 310 75 | www.isolutionsnz.com
Views in this blog above are personal opinion of Raj Maharjan, Director @ iSolutions Consultants Ltd. It should not be treated to be suitable as an expert planning advice. The scenario(s) described above are hypothetical and if it resembles with real life of anyone, that is merely by co-incidence. Photos source: Internet.
Post initially published in LinkedIn 20 February, 2019.