District Plan Hauraki Gulf Islands Section - Proposed 2006
(Notified version 2006)
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Hearing reports index
Report on submissions to the Auckland City District Plan: Hauraki Gulf Islands
Section – Proposed 2006
| Topic: |
Part 6 - Financial contributions |
| Report to: |
The Hearing Panel |
| Author: |
Katherine Dorofaeff, senior planner |
| Date: |
25 September 2008 |
| Group file: |
314/274009
|
1.0 Introduction
This report relates to submissions and further submissions ('submissions') that
were received by the council in relation to part 6 - Financial contributions, of
the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006 ('the
Plan'). The Plan was publicly notified on 18 September 2006. The closing date for
lodging submissions was 11 December 2006. The submissions and summary of decisions
requested were publicly notified for further submission on 29 April 2007. The closing
date for lodging further submissions was 28 May 2007.
This report has been prepared under section 42A of the Resource Management Act
1991 ('the RMA'), to assist the hearings panel to consider the submissions on part
6 - Financial contributions. This report identifies and comments on the decisions
requested in the submissions (grouped by subject matter or individually). It includes
some recommendations from the reporting planner identifying what amendments (if
any) should be made to the Plan to address matters raised in submissions. Further
submissions are not specifically addressed but are listed in appendix 1 to this
report. Further submissions will be dealt with in conjunction with the submissions
to which they relate.
The recommendations contained in this report are not decisions of the council.
The council will issue its decisions following consideration of the submissions,
further submissions, any supporting evidence presented at the hearing, and this
report. The council's decisions will be released after all the hearings to the Plan
have been completed. The decision reports will identify in more detail whether each
submission has been accepted or rejected (in full or in part).
2.0 Statutory framework
This section of the report briefly sets out the statutory framework within which
the council must consider the submissions. These were summarised by the Environment
Court in Eldamos Investments Limited v Gisborne District Council W
047/05
where the court set out the following measures for evaluating objectives, policies,
rules and other methods in district plans:
- The objectives of the Plan are to be evaluated by the extent to which they:
- Are the most appropriate way to achieve the purpose of the RMA (s32(3)(a));
and
- Assist the council to carry out its functions in order to achieve the purpose
of the RMA (s72); and
- Are in accordance with the provisions of part 2 of the RMA (s74(1).
- The policies, rules, or other methods in the Plan are to be evaluated by the
extent to which they:
- Are the most appropriate way to achieve the objectives of the Plan (s32(3)(b));
and
- Assist the council to carry out its functions in order to achieve the purpose
of the RMA (s72); and
- Are in accordance with the provisions of part 2 of the RMA (s74(1)); and
- (If a rule) achieve the objectives and policies of the Plan (s76(1)(b)).
The purpose of the RMA is "to promote the sustainable management of natural and
physical resources", and "sustainable management" is defined in section 5(2) as
meaning:
"... managing the use, development, and protection of natural and physical resources
in a way, or at a rate, which enables people and communities to provide for their
social, economic, and cultural wellbeing and for their health and safety while—
(a) Sustaining the potential of natural and physical resources (excluding minerals)
to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems;
and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the
environment."
Along with section 5, part 2 of the RMA includes sections 6 (matters of national
importance), 7 (other matters) and 8 (Treaty of Waitangi), which set out a range
of matters that the council needs to recognise and provide for in achieving the
purpose of the RMA. Those matters are also relevant when considering submissions.
The Plan must assist the council to carry out its functions under section 31
of the RMA. These functions are:
"(a) The establishment, implementation, and review of objectives, policies, and
methods to achieve integrated management of the effects of the use, development,
or protection of land and associated natural and physical resources of the district:
(b) the control of any actual or potential effects of the use, development, or
protection of land, including for the purpose of—
(i) the avoidance or mitigation of natural hazards; and
(ii) the prevention or mitigation of any adverse effects of the storage, use,
disposal, or transportation of hazardous substances; and
(iia) the prevention or mitigation of any adverse effects of the development,
subdivision, or use of contaminated land:
(iii) the maintenance of indigenous biological diversity:
(c) ...
(d) The control of the emission of noise and the mitigation of the effects of
noise:
(e) The control of any actual or potential effects of activities in relation
to the surface of water in rivers and lakes."
In addition to the matters listed above from the Eldamos decision:
- The Plan must "give effect to" any national policy statement and any New Zealand
coastal policy statement (s75(3)(a) and (b)).
- The Plan must "give effect to" the regional policy statement (made operative
after 10 August 2005) (s75(3)(c)).
- The Plan must be "not inconsistent with" any regional plan (s75(4)).
- The council must ensure that that the Plan does not conflict with sections
7 and 8 of the Hauraki Gulf Marine Park Act 2000 ("the HGMPA"). Section
10 of the HGMPA requires that sections 7 and 8 of that Act be treated as a New
Zealand coastal policy statement under the RMA.
RMA provisions specific to financial contributions
Section 108(2)(a) states:
"(2) A resource consent may include any one or more of the following conditions:
(a) Subject to subsection (10), a condition requiring that a financial contribution
be made:
..."
Section 108(9) and (10) state:
"(9) In this section, financial contribution means a contribution
of—
(a)Money; or
(b)Land, including an esplanade reserve or esplanade strip (other than in relation
to a subdivision consent), but excluding Maori land within the meaning of the
Maori Land Act 1993 unless that Act provides otherwise; or
(c)A combination of money and land.
(10) A consent authority must not include a condition in a resource consent requiring
a financial contribution unless—
(a) The condition is imposed in accordance with the purposes specified in the
plan or proposed plan (including the purpose of ensuring positive effects on the
environment to offset any adverse effect); and
(b) The level of contribution is determined in the manner described in the plan
or proposed plan."
3.0 Background
This section of the report sets out background information about the topic under
consideration. It identifies how the Plan deals with financial contributions.
Clause 6.1 Introduction, provides a useful background as follows:
"Financial contributions are intended to address the effects of subdivision and
development in the islands and are a means of achieving the Plan's objectives. The
RMA allows the council to collect financial contributions in certain circumstances.
The RMA allows the council to impose a condition requiring a financial contribution
on any resource consent for any purpose specified in the Plan.
A financial contribution is defined in the RMA as:
"a contribution of -
(a) Money; or
(b) Land, including an esplanade reserve or esplanade strip (other than in relation
to a subdivision consent), but excluding Maori land within the meaning of the Maori
Land Act 1993 unless that Act provides otherwise; or
(c) A combination of money and land."
The RMA requires the council to identify in the Plan the purposes for which financial
contributions will be imposed. Section 32 of the RMA requires the council to adequately
justify all its objectives, policies and rules and to evaluate their efficiency
and effectiveness. The RMA also requires that the level of contribution be determined
in the manner described in the Plan and requires the council to spend any money
received as a financial contribution in reasonable accordance with the purposes
for which it was received.
The council will be investigating the feasibility of development contributions
for the islands under the Local Government Act 2002. Any development contributions
applicable in the islands will not necessarily replace financial contributions and
it is expected that some financial contribution provisions will remain in the Plan
even after development contributions are in force in the islands. However, the Local
Government Act 2002 prevents the council requiring a development contribution to
the extent that it has already imposed a financial contribution for the same purpose."
Part 6 - Financial contributions, is structured as follows:
6.1 Introduction
6.2 Resource management issues
6.3 Objectives and policies
6.4 Resource management strategy
6.5 Financial contributions for open space
6.6 Financial contributions for infrastructure
6.7 Financial contributions for community amenities
6.8 Financial contributions for environment or heritage
6.9 Application to reduce or waive financial contributions payable on permitted
activities.
Appendix 4 contains a table which summarises the financial contributions
set out in part 6 of the Plan.
4.0 Overview analysis of submissions
4.1 Introduction
This section of the report identifies and comments on the decisions requested
in submissions about part 6 - Financial contributions. The submissions are addressed
under subject headings. This summary report seeks to identify issues and options
for the panel, rather than to give detailed recommendations on all submissions.
A list of the submissions which raise issues about part 6 - Financial contributions,
together with the related further submissions is contained in appendix 1.
Appendix 2 contains the summary of the decisions requested by the submissions
considered in this report. Any amendments to the Plan recommended in response to
submissions are noted briefly in this section of the report and are further detailed
in appendix 3.
The list of submissions contained in appendix 1 may include some submissions
and further submissions which were received 'late', ie they were received after
the closing date for lodging submissions (11 December 2006) or further submissions
(28 May 2007). All late submissions were considered by the hearing panel at
the start of the hearing process and the panel has already waived the failure to
comply with the time limit for any late submissions or further submissions listed
in appendix 1. This has been done in accordance with sections 37 and 37A of the
RMA.
4.2 Submissions about part 6 in general
Submissions dealt with in this section:
Group 1:
1351/1,
1361/1,
1371/1,
1386/1,
1396/1,
1891/1,
1940/1,
1952/1,
2161/1,
2186/1,
2195/1,
2196/1,
2207/1,
2220/1,
2309/1,
2393/1,
2421/1,
2465/1,
2481/1,
2487/1,
2491/1,
2748/1,
3030/1,
3117/1,
3119/1,
3123/1,
3129/1,
3162/1,
3245/1,
3737/1,
3762/1
Other:
119/1,
526/10,
527/10,
528/10,
529/10,
532/1,
539/10,
560/3,
560/4,
560/5,
560/6,
1091/5,
1093/14,
1093/15,
1093/16,
1094/2,
1094/3,
1094/4,
1094/5,
1100/8
1250/14,
1405/18,
1406/18,
1596/9,
2820/1,
3061/42
4.2.1 Decisions requested
| Clause |
Decision requested |
Sub. no
|
| 6 |
Remove all provision of development levies. |
119/1
|
| 6 |
Retain the existing provision from the operative Plan relating
to financial contributions. |
526/10,
527/10,
528/10,
529/10,
539/10,
1091/5,
1100/8
|
| 6 |
Removal of the rules contained in clauses 6.6, 6.7 and 6.8,
or a greater definition of the likely contributions including a described maximum.
|
532/1
|
| 6 |
Delete part 6 in its entirety. |
560/3,
1093/14,
1094/2
|
| 6 |
Delete the provisions for financial contribution in respect
of open space, infrastructure, community amenities, and environment or heritage
matters. |
560/4,
1093/15,
1094/3
|
| 6 |
Delete the requirement that a financial contribution be paid
for any activity having permitted activity status under the Plan. |
560/5,
1093/16,
1094/4
|
| 6 |
Clarification of the term "residential development" and in
particular, an explanation as to whether development of owner-occupied residential
building are excluded from application of the financial contribution rule.
|
560/6,
1094/5
|
| 6 |
Retain part 6 but make it clear that financial contributions
are not required for permitted activities |
1250/14
|
| 6 |
Amend Part 6 so that financial contributions apply to subdivision
only (on Great Barrier) |
1351/1,
1361/1,
1371/1,
1386/1,
1396/1,
1891/1,
1940/1,
1952/1,
2161/1,
2186/1,
2195/1,
2196/1,
2207/1,
2220/1,
2309/1,
2393/1,
2421/1,
2465/1,
2481/1,
2487/1,
2491/1,
2748/1,
3030/1,
3117/1,
3119/1,
3123/1,
3129/1,
3162/1,
3245/1,
3737/1,
3762/1
|
| 6 |
Amend part 6 Financial contributions to exclude Great Barrier
Island |
1405/18,
1406/18
|
| 6 |
Provisions of part 6.0 Financial contributions (particularly
clauses 6.3.3, 6.5.2.7 and 6.6.2.5) need re-wording to ensure that financial
contributions are spent in the local area. |
1596/9
|
| 6 |
Reject the entire part 6 and revert to the existing operative
plan |
2820/1
|
| 6 |
Part 6.0 is opposed, the parallel provisions of the Operative
Hauraki Gulf Island District Plan 1996 should be retained until critical strategic
decisions have been made as to whether the operative provisions will be replaced
with development contributions. A plan change should be undertaken once the
critical strategic decisions have been made and a sensible integrated community
mandated set of provisions have been evolved. |
3061/42
|
4.2.2 Comments on decisions requested
4.2.2.1 Oppose / delete financial contributions
There are submissions opposing the whole of part 6 (
119/1,
560/3,
560/4,
1093/14,
1093/15,
1094/2,
1094/3).
In considering submissions which seek to delete financial contributions, the
panel will need to consider the purpose of financial contributions, and who should
pay for the cost of avoiding, remedying or mitigating the adverse effects of subdivision
and development on the environment of the islands. The purpose of the financial
contributions is usefully explained in clauses 6.4.1 and 6.4.2 as follows:
" 6.4.1 Purpose of financial contributions
Financial contributions are an integral part of resource management strategy.
They assist to avoid, remedy or mitigate the adverse effects of subdivision and
development by ensuring that developers pay a fair contribution towards the cost
of addressing these effects. Financial contributions can also provide significant
public benefit by providing and developing open space, protecting the environment
and heritage and providing for infrastructure and community amenities.
..."
" 6.4.2 Avoiding, remedying and mitigating adverse effects
New subdivision and development in the islands will usually have an adverse impact
on open space as a result of the introduction of new users. In addition, there is
generally also an impact on infrastructure and community amenities, and a need to
avoid, remedy or mitigate these effects. In some cases, there may also be a need
to avoid, remedy or mitigate adverse effects on environmental and heritage features
caused by subdivision and development.
It is becoming increasingly important to ensure that developers and resource
users face the true cost of the effects generated by their developments. Unless
this is done other sources of funding must be found to address these effects (such
as rates). Alternatively the effects will not be addressed, resulting in worse environmental
outcomes.
The imposition of financial contributions is therefore seen as a means of remedying
and mitigating adverse environmental effects generated by subdivision and development."
4.2.2.2 Definition of likely contributions
As an alternative to removal of the rules relating to contributions for infrastructure,
community amenities, and environment or heritage, submission
532/1 seeks a greater definition of the likely contributions including a described
maximum.
With respect to contributions for infrastructure, community amenities, and environment
or heritage, part 6 gives less detail about how these will be calculated than it
does for contributions for open space
[1] . However clause 6.6.2.2 (infrastructure), clause 6.7.2.2 (community
amenities) and clause 6.8.3.2 (environment or heritage) do describe how the level
and form of the contributions will be determined. The actual amount will need to
be determined on a case by case basis. It is considered that these clauses are consistent
with the following requirements set out in section 108(10) of the RMA:
"A consent authority must not include a condition in a resource consent requiring
a financial contribution unless—
(a) The condition is imposed in accordance with the purposes specified in the
plan or proposed plan (including the purpose of ensuring positive effects on the
environment to offset any adverse effect); and
(b) The level of contribution is determined in the manner described in the plan
or proposed plan."
4.2.2.3 Retain provisions from the operative Plan
There are submissions seeking to retain the financial contributions provisions
from the Operative Plan (
526/10,
527/10,
528/10,
529/10,
539/10,
1091/5,
1100/8,
2820/1,
3061/42).
Financial contributions are set out in part 9 of the Operative Plan. Part 9 is
attached as appendix 5 to this report.
The main differences between the rules for financial contributions in the Operative
and Proposed Plan are noted below:
- Unlike the Proposed Plan, the Operative Plan does not provide for financial
contributions to be taken on permitted activities but limits their application
to subdivision and land use consents.
- The Operative Plan provides for financial contributions to be taken as cash,
land, works or services. This reflects the RMA definition of 'financial contributions'
that existed prior to amendments to the RMA in 1997. The Proposed Plan provides
for financial contributions to be taken as money or land only. This reflects the
current RMA definition of 'financial contributions'.
[2]
- For subdivision consents, the Operative Plan provides for a maximum financial
contribution in money of 10% of the value of the lots created. For financial contributions
for open space, the Proposed Plan provides for a maximum contribution in money
of 7.5% of the value of each additional site created.
- For land use consents, the Operative Plan provides for a maximum contribution
in money of 1% of the total value of the development. In the Proposed Plan, for
open space financial contributions on land use consents, the maximum contribution
in money is 7.5% of the value of the work (for work over $100,000).
- Compared with the Operative Plan, the Proposed Plan is more precise about
the types of financial contribution. The Operative Plan takes a 'global' approach
and only provides for one type of financial contribution which may be required
to achieve a range of outcomes. The Proposed Plan is more effects based and separately
identifies financial contributions for open space, infrastructure, community amenities,
and for environment or heritage.
The provisions in the Proposed Plan are more legally robust than those in the
Operative Plan, as they have been drafted in the context of the current RMA provisions
and case law. During the development of the Proposed Plan, the council considered
'rolling over' the provisions in the Operative Plan without any substantial change.
Legal advice was received that this approach posed a serious risk to the council
due to the evolution of law relating to financial contributions. In particular,
due to its global approach to financial contributions, the Operative Plan was considered
to lack a sufficient link between the method of calculating a contribution and the
actual demand created by a subdivision or development. Legal challenge can occur
by means of appeals to the Plan, or through appeals to conditions requiring financial
contributions on individual resource consent applications.
Development contributions (LGA) v financial contributions (RMA)
Submission
3061/42 suggests that the provisions from the Operative Plan should be retained
until critical strategic decisions have been made as to whether the operative provisions
will be replaced with development contributions. The submission suggests that a
plan change should be undertaken once the critical strategic decisions have been
made and a sensible integrated community mandated set of provisions have been evolved.
The Local Government Act 2002 ('LGA') enables councils to require development
contributions from developers to help fund the cost of new or expanded infrastructure,
which is required to meet the additional demand created by growth. If a council
wishes to require development contributions it must provide for it in a development
contribution policy included in the council's long-term council community plan.
The formation of a development contributions policy must meet the requirements of
the special consultative procedure as set out in sections 83 and 84 of the LGA.
A development contribution can be required when a resource consent, building consent
or an authorisation for a service connection is granted. The LGA provides that a
requirement for development contribution on a resource consent is not a condition
that gives rise to any right of objection or appeal. The only way to challenge the
levying of development contribution is by seeking a judicial review of the decision.
The council adopted its first development contributions policy in 2005. Since
then the policy has been further developed through annual amendments to the long
term plan. Formulation of the policy focussed initially on the isthmus and central
area portions of the city, as this is where the most growth is occurring. The policy
currently provides for the council to charge development contributions to help fund
community amenities (community halls and centres, leisure facilities, libraries,
cultural facilities), stormwater, public space land acquisition, public space infrastructure
(enhancement), and transport. The council began applying development contributions
for community amenities in the Hauraki Gulf islands from 1 July 2008. None of the
other development contributions apply in the Hauraki Gulf islands, but are currently
limited to the isthmus and central area portions of Auckland City. The development
contributions for community amenities applies to residential developments only.
Information about the council's development contributions policy can be found in
the Annual Plan 2008/2006
[3] , and in the amendments to Auckland City's Long-term Plan 2006-2016
[4] .
Currently the council uses a mixture of development contributions under the LGA
and financial contributions under the RMA. The development contributions policy
forms part of the council's long term plan while financial contributions requirements
are contained in the district plan. Individual developments may be charged a mixture
of development contributions and financial contributions for different purposes
eg a development contribution for community amenities and a financial contribution
for open space.
There is some level of uncertainty over the timeframes for implementing a full
development contributions policy for the islands, the content or scope of that policy,
and the extent of legal challenges it may face. It is therefore critical to ensure
that the financial contributions provisions of the Plan are legally robust so that
contributions can be collected under the RMA in the absence of a development contributions
policy under the LGA.
4.2.2.4 Permitted activities
Submissions
560/5,
1093/16,
1094/4,
1250/14
oppose the requirements for financial contributions to be payable on permitted activities.
Part 6 provides that payment of a financial contribution may be required as a
condition of a resource consent (for a subdivision or land use activity) or alternatively
may be specified by a rule in the Plan as payable in respect of permitted activities.
This recognises that even for permitted activities, it may be warranted for the
council to recover a fair contribution towards the cost of avoiding, remedying or
mitigating the adverse effects of the activity on the environment. These provisions
should be retained.
4.2.2.5 Great Barrier
Submission
1351/1
and 30 others suggest that on Great Barrier, financial contributions should apply
to subdivision only. This would mean that financial contributions could not be taken
on land use consents or on permitted activities.
The panel will need to consider whether, on Great Barrier, it would be fair and
equitable to apply financial contributions to subdivision only. Such an approach
would fail to recognise that subdivision is not the only form of development which
can have adverse effects on open space, infrastructure, community amenities, and
environment and heritage.
Submissions
1405/18 (GBI Community Board) and
1406/18
suggest that Great Barrier should be excluded from the financial contributions requirements.
In their supporting reasons, these submissions maintain that "any current infrastructure
deficit is the result of past activity and clearly not the responsibility of any
future subdivision or development, until it can be shown to be the cause".
Financial contributions in part 6 are not designed to remedy deficiencies caused
by existing or past activities. Rather they are intended avoid, remedy or mitigate
adverse effects arising from new subdivision and development. Clause 6.4.3 contains
the following useful statement about bearing the cost of effects:
"... Given that a range of users will benefit, it is not reasonable to expect
new subdivision and development to pay the full costs of providing open space, infrastructure,
community amenities and protection of environmental and heritage features. However,
the council will require new subdivision and development to make a reasonable contribution
to costs of providing open space, infrastructure, and community amenities and protecting
environmental and heritage features in the islands, having regard to the effects
generated by that subdivision and development."
In terms of financial contributions for infrastructure, as set out in clause
6.6.2.2, the council can only require such a contribution where a subdivision or
development either:
- involves the uptake of capacity provided by one or more planned infrastructure
projects; or
- generates adverse effects requiring the council to incur expenditure on one
or more local infrastructure projects not identified in the long term council
community plan or a council asset management plan.
The maximum amount of the contribution will be determined by reference to the
share of the capacity (of a planned project) that the subdivision or development
will take up, or by the extent to which the subdivision or development creates the
need to undertake an unplanned project.
4.2.2.6 Local area
Submission
1596/9
seeks that the provisions of part 6 (particularly clauses 6.3.3, 6.5.2.7 and 6.6.2.5)
be re-worded to ensure that financial contributions are spent in the local area.
Clause 6.3.3 contains an objective, and associated policies, relating to the
need to have a transparent system for collecting and spending financial contributions
for the benefit of the islands. Clause 6.5.2.7 relates to the expenditure of financial
contributions for open space purposes which have been paid in money. Clause 6.6.2.5
relates to the expenditure of financial contributions for infrastructure purposes
which have been paid in money.
Section 111 of the RMA requires the council to spend financial contributions
in money "in reasonable accordance with the purposes for which the money was received".
In general, it is council policy to spend financial contributions within the
area that they are collected.
4.2.2.7 Residential development
Submissions
560/6 and
1094/5
seek clarification of the term 'residential development' and in particular, an explanation
as to whether development of owner-occupied residential buildings are excluded from
application of the financial contribution rule.
Clause 6.5.2.1(2)(a) applies financial contributions for open space to the following
land use activities:
"residential development (such as a boarding house or hostel, accommodation for
retired, elderly or disabled people, visitor accommodation, tourist complex or multiple
dwellings)."
'Dwelling' is not included in the list of examples of residential development.
This implies that the financial contribution is not intended to apply to a single
dwelling on a site. However this would benefit from clarification. The following
amendment is recommended:
residential development (such as a boarding house or hostel, accommodation for
retired, elderly or disabled people, visitor accommodation, tourist complex or multiple
dwellings). Note: a single dwelling on a site is not considered to be a residential
development for the purposes of this rule .
Clause 6.5.2.3(1) sets out the methodology for calculating the value of the work
for determining the level and form of contribution payable on land use activities
and consents. In relation to residential development, 'value of work, means the
value of development or redevelopment (other than subdivision) by:
- "Constructing, erecting or altering any one or more buildings or other works
for the purpose of providing a boarding house or hostel, accommodation for retired,
elderly or disabled people, visitor accommodation, tourist complex, and multiple
dwellings; or
- ..."
The provision of a dwelling is not listed as activity to be taken into account
for determining the value of the work. This supports the view that the Plan does
not intend for a financial contribution to be payable for the construction of a
single dwelling on a site. It is however noted that this approach is not consistent
with the policies in clause 6.3.3(1) and 6.5.1(1) of the Plan. Clause 6.3.3(1) states:
"1. By applying financial contributions in a just and consistent way to all new
subdivision and development which generates effects that need to be avoided, remedied
or mitigated."
Clause 6.5.1(1) states:
"1. By requiring all residential, commercial and industrial subdivision and development
on the islands to contribute to the islands' public open space either by way of
money or land or a combination of both."
It is noted that where the dwelling is constructed on a site created by recent
subdivision, then a financial contribution would have been payable at the subdivision
stage.
4.3 Submissions about clauses 6.1 - Introduction and 6.4.1 - Purpose of financial
contributions
Submissions dealt with in this section:
1250/15,
3521/51,
3656/1
4.3.1 Decisions requested
| Clause |
Decision requested |
Sub. no
|
| 6.1 |
Specify in the introduction to part 6 that financial contributions
cannot be used as a way to bypass the assessment process of resource consents.
|
1250/15
|
| 6.4.1 |
Amend clause 6.4.1(5) by replacing the reference to archaeological
heritage with the broader historic heritage. |
3521/51 |
| 6.4.1 |
Add as clause 6.4.1(9) or after (7) providing a specified percentage
of a subdivision for affordable housing. |
3656/1 |
4.3.2 Comments on decisions requested
4.3.2.1 Clause 6.1 Introduction
In response to submission
1250/15,
it is not considered necessary to include a statement specifying that financial
contributions cannot be used to bypass the assessment process of resource consents.
As set out in s108(2)(a) of the RMA, a resource consent may include a condition
that a financial contribution be made. Section 108(1) further specifies that the
contribution must be in accordance with purposes specified in the Plan, including
the purpose of ensuring positive effects on the environment to offset any adverse
effect. Financial contributions can be used to avoid, remedy or mitigate the adverse
effects of subdivision and development on the environment. Where a proposal requires
a resource consent, financial contributions can be considered as part of the assessment
process. They are not a means of bypassing the assessment process.
4.3.2.2 Clause 6.4.1 Purpose of financial contributions
Archaeological heritage
In response to submission
3521/51 (from the ARC) it is recommended that clause 6.4.1(5) be amended as
follows:
5. Protecting or enhancing amenities, habitats, ecosystems, landscape features
and archaeological heritage or cultural values.
This amendment is consistent with the terminology used in the objectives, policies,
and rules in clause 6.8 Financial contributions for environment or heritage.
Affordable housing
Submission
3656/1 seeks to include an additional subclause in clause 6.4.1 providing a
specified percentage of a subdivision for affordable housing.
Clause 6.4.1 lists eight purposes for which financial contributions may be required.
The purposes identified relate directly to the financial contributions required
elsewhere in part 6 for open space, infrastructure, community amenities, and environment
or heritage. It is not appropriate to add affordable housing to the list in clause
6.4.1, as there are no accompanying objectives, policies and rules elsewhere in
part 6.
The Affordable Housing: Enabling Territorial Authorities Bill was passed into
law on 5 September 2008. The bill enables (but does not require) city and district
councils to assess the level of affordable housing in their districts, and to develop
and implement affordable housing policies based on that assessment. The bill provides
for public participation in the development of affordable housing policies. Section
11(2) sets out some actions that the policy may require of persons doing developments:
"Without limiting what the policy may state, things that the policy may state
that the person must do include -
(a) including a proportion of affordable housing in the development:
(b) including a proportion of affordable housing in another development that
the person is doing or is to do:
(c) including in the proportion of affordable housing a particular kind of housing:
(d) giving the territorial authority some land in its district:
(e) giving the territorial authority an amount of money."
If the council wishes to introduce a requirement for developers to contribute
towards affordable housing, it should consider doing so under this new legislation.
4.4 Submissions about the clause 6.5 - Financial contributions for open space
Submissions dealt with in this section:
518/15,
618/158,
753/20,
821/21,
836/11,
1093/17,
1093/18,
1101/38,
1127/27,
1190/19,
1245/1,
1245/12,
1286/119,
1287/62,
1288/145,
1289/45,
1895/3,
2001/56
4.4.1 Decisions requested
| Clause |
Decision requested |
Sub. no
|
| 6.5.2.1 |
Include the reference to open space strategies such as Recreation
Waiheke, Recreation Great Barrier and others that are relevant to the Gulf Islands
in clause 6.5.2 as useful resources for determination of financial contributions
in resource consent applications. |
1245/1
|
| 6.5.2.2 |
Clause 6.5.2.2(1) refers to each additional site created but
clause 6.5.2.2(2) references average values of all of the sites not the additional
sites. The rule needs clarification and amendment so it is clear. The process
of determining a contribution should be set out by way of an example. |
618/158,
1101/38,
1127/27,
1286/119,
1287/62,
1288/145,
1289/45,
2001/56
|
| 6.5.2.2 |
The council should only receive a financial contribution in
respect of such subdivision (where a property / title is divided by a legal
road or a legal unformed road) where a direct negative effect can be demonstrated
on the environment and no compensatory activity eg planting be possible.
|
1895/3
|
| 6.5.2.3 |
Regarding financial contributions 7.5% plus GST for new development
over $100,000. Increase to $200,000 as the cost of building doesn't allow much
to be built under $100,000. |
518/15
|
| 6.5.2.3 |
Expresses concern at financial contributions of 7.5% + GST
for new development over $100,000. Increase to $200,000. |
753/20,
836/11,
1190/19
|
| 6.5.2.3 |
Delete the requirement for a financial contribution of 7.5%
plus GST for new development over $100,000. |
821/21
|
| 6.5.2.3 |
Amend the calculations in point 1 of clause 6.5.2.3 following
proper cost benefit analysis by:
increasing the monetary value of work that will trigger a form
of contribution and/or
reducing the percentage of the total value of work that determines
the contribution figure payable.
|
1093/17
|
| 6.5.2.3 |
Increase the level of financial contribution from 7.5% to 10%
as per the operative Plan |
1245/12
|
| 6.5.2.4 |
Amend clause 6.5.2.4 contributions less than the maximum amount,
by adding the following:
"The extent to which the proposed development will benefit the
economy and local employment".
"The extent to which the resulting rateable value will contribute
to rates income and the increase or otherwise in local body service requirements
resulting from the development".
|
1093/18
|
4.4.2 Comments on decisions requested
4.4.2.1 Open space strategies
Submission
1245/1 suggests
that the Plan should refer to open space strategies such as Recreation Waiheke,
Recreation Great Barrier, and others relevant to the gulf islands as useful resources
for determining financial contributions in resource consent applications.
The documents referred to are useful resources for setting priorities for the
expenditure of financial contributions, and also for identifying circumstances where
it may be preferable to take land rather than money. However there is likely to
be little, if any, value added by referring to them in the Plan. It is noted that
these documents have not been incorporated by reference as provided for under part
3, of schedule 1 to the RMA.
4.4.2.2 Clause 6.5.2.2 Level and form of contribution - subdivision consents
Submission
618/158 and seven other submissions suggest that some amendment may be required
to clarify how an open space contribution is determined for a subdivision consent.
It queries the references to 'each additional site created' and 'average (mean)
value of all sites created'. These submissions relate to clause 6.5.2.2(1) which
states as follows (underlining added):
"1. The council may require a payment of money based on 7.5 per cent of the value
of each additional site created (other than an access site).
Methodology
The assessment of the land value will be based on the market value of the land
being developed:
- In its 'developed' state, that is, with the rights and configuration given
to the land by consent being considered, and by any previous consents; and
- As assessed not more than 12 months before the contribution is paid; and
- Including GST.
To overcome difficulties in determining which new site or sites are the additional
site(s) created, the value of the additional sites will be determined by using the
average (mean) value of all sites created by the subdivision (other than
an access site)."
A financial contribution is payable on each additional site created by the subdivision.
The maximum contribution is based on 7.5% of the value of each additional site created.
The average (mean) value of all sites created is used to determine the value of
the additional sites. For example, if a subdivision resulted in one site being
subdivided into five sites, then the council may require a payment of money based
on 7.5% of the value of each of the additional four sites created. It would be difficult
to determine which four of the five sites, were the 'additional sites created'.
The five sites created might vary considerably in value owing to differences in
size and other marketable attributes. If the most valuable site was not treated
as an additional site, then the amount of the financial contribution would be reduced.
To avoid this scenario, the Plan states that the value of the four additional sites
would be determined by using the average (mean) value of all five sites created.
Amendments should be considered to make clause 6.5.2.2(1) clearer for users of
the Plan.
Submission
1895/3
seeks to limit the circumstances under which a financial contribution should be
payable for a particular type of subdivision sought elsewhere in the overall submission.
Other subparts of submission 1895 (
1895/1
and 2) seek to provide for subdivision down to 1500m 2 as a permitted
activity where a property or title is divided by a formed or unformed legal road.
Those subparts are considered in the hearing report on part 12 where it is recommended
that they be rejected.
4.4.2.3 Clause 6.5.2.3 Level and form of contribution - land use activities
and consents
Clause 6.5.2.3 enables the council to take a financial contribution where the
value of the work associated with a development or redevelopment exceeds $100,000.
The council may require a payment of money based on 7.5 per cent of the total value
of the work. Alternatively the council may require land of equal value.
There are a number of submissions opposing the level of the financial contribution
provided for in clause 6.5.2.3. Submissions seek amendments to:
- delete the requirement
- increase the monetary value of work that will trigger the contribution eg
from $100,000 to $200,000
- reduce the percentage of the total value of the work which is used to calculate
the contribution
- increase the percentage of the total value of the work which is used to calculate
the contribution ie from 7.5% to 10%.
The panel will need to decide whether any amendments are warranted. It
is noted that clause 6.5.2.3 specifies the maximum value of the contribution
for open space which can be taken for land use activities and consents. The council
can, and does, take less than the maximum where the full amount cannot be justified.
The amount of any financial contribution can be challenged by the applicant, and
the council must be able to justify the amount taken on a case by case basis, with
reference to the anticipated effects of the proposed subdivision or development.
Deleting the requirements in clause 6.5.2.3 would mean that financial contributions
for open space could only be taken on subdivision consents, and not on land use
activities and consents. This would fail to recognise that the need for open space
can be generated by land use developments as well as by subdivision.
4.4.2.4 Clause 6.5.2.4 Contributions less than the maximum amount
Clauses 6.5.2.2 and 6.5.2.3 set out the maximum amounts that the council may
require as payment of financial contributions for open space. Clause 6.5.2.4 sets
out the following four matters which the council will consider when deciding to
whether to impose the maximum amount:
- "Whether the subdivision or development will be of benefit, either to the
physical and/or natural environment or the local and/or wider community, having
regard to the extent to which it protects environmental and heritage features
as part of the overall development.
- The extent to which the subdivision or development will generate demand for
open space and the need for further land or money or a combination of both as
a means of meeting the demand. In considering this, regard will be given to the
development patterns and public open space patterns in the vicinity, and to the
objectives and policies for the applicable strategic management area, land unit
or settlement area.
- Whether any contribution is necessary having regard to development patterns
and land use activities in the area.
- The extent to which any adverse effects of subdivision or redevelopment have
been or will be avoided, remedied or mitigated through mechanisms other than a
financial contribution (such as a works and services condition under section 108(2)(c)
of the RMA)."
Submission
1093/18 seeks to add the following additional matters:
- The extent to which the proposed development will benefit the economy and
local employment.
- The extent to which the resulting rateable value will contribute to rates
income and the increase or otherwise in local body service requirements resulting
from the development.
The additional matters suggested are not supported as they do not relate directly
to the need for open space on the islands.
4.5 Submissions about clause 6.6 - Financial contributions for infrastructure
Submissions dealt with in this section:
618/159,
618/161,
1101/39,
1101/41,
1127/28,
1127/30,
1243/42,
1243/43,
1286/120,
1286/122,
1287/63,
1287/65,
1288/146,
1288/148,
1289/46,
1289/48,
2001/57,
2764/1
4.5.1 Decisions requested
| Clause |
Decision requested |
Sub. no |
| 6.6 |
The proposed ability to take land for infrastructure contributions
should be deleted. Alternatively the rules can allow for that contribution to
be taken as a credit where the applicant offers land to the council. It should
not be imposed as a condition of consent but should be an agreement between
the two parties. |
618/161,
1101/41,
1127/30,
1286/122,
1287/65,
1288/148,
1289/48
|
| 6.6.2.1 |
Ensure that the provision for financial contributions on certain
permitted activities in clause 6.6.2.1 is not ultra vires. |
1243/42
|
| 6.6.2.1 |
Provide clause 6.6.2.1 that financial contributions will not
be required as a condition of resource consents for normal farming activities.
|
1243/43
|
| 6.6.2.2 |
Clause 6.6.2.2 needs amendment as it is too subjective as to
means of determining share in relation to capacity and has inadequate certainty.
|
618/159,
1101/39,
1127/28,
1286/120,
1287/63,
1288/146,
1289/46,
2001/57
|
| 6.6.2.4 |
Include subdivisions where there is no significant change in
land uses, or no additional dwellings created in clause 6.6.2.4 exemptions.
|
2764/1
|
4.5.2 Comments on decisions requested
4.5.2.1 Delete financial contributions of land for infrastructure
Submission
618/161 and six other submissions seek to delete the ability to take land for
infrastructure contributions. Alternatively the submissions suggest that the rules
can allow for that contribution to be taken as a credit where the applicant offers
land to the council. It should not be imposed as a condition of consent but should
be an agreement between the two parties.
Part 6 provides a framework whereby financial contributions can be used to recover
a fair contribution towards the costs of avoiding, remedying or mitigating the adverse
effects of subdivision and development on the environment of the islands. The objective
of the financial contributions for infrastructure is "To ensure that the physical
infrastructure of the islands is able to cater for additional demand generated by
new residents and businesses."
Section 108(9) provides for a financial contribution to be money, land or a combination
of both. It is considered that the council should retain the ability to require
a financial contribution for infrastructure to be taken in land and not limit itself
to money only. If land is required, its value cannot exceed the amount that could
be required in money.
4.5.2.2 Clause 6.6.2.1 Application
Permitted activities
Clause 6.6.2.1 notes that payment of financial contributions may be required
as a condition of resource consent or alternatively may be specified by a rule in
this Plan as payable in respect of permitted activities. Submission
1243/42 seeks to ensure that provision for financial contributions on certain
permitted activities in this clause is not ultra vires (ie beyond the scope or in
excess of the legal power or authority vested in the council).
Legal advice on this particular matter was provided by the council's solicitors
during the drafting of this part of the Plan. The provisions are in accordance with
the legal advice received. However it will be appropriate to obtain further advice
from the council's solicitors prior to finalising the panel's recommendations on
this part of the Plan. This is to ensure that there has been no subsequent case
law which would alter the legal situation.
Farming activities
Submission
1243/43 asks that financial contributions under clause 6.6.2.1 not be required
as a condition of resource consent for normal farming activities.
As set out in clause 6.6.2.2, the council can only require a financial contribution
for infrastructure where a subdivision or development either:
- involves the uptake of capacity provided by one or more planned infrastructure
projects; or
- generates adverse effects requiring the council to incur expenditure on one
or more local infrastructure projects not identified in the long term council
community plan or a council asset management plan.
The maximum amount of the contribution will be determined by reference to the
share of the capacity (of a planned project) that the subdivision or development
will take up, or by the extent to which the subdivision or development creates the
need to undertake an unplanned project.
In the future there may be a situation where it is appropriate for the council
to levy a financial contribution for infrastructure on a development for an intensive
farming activity.
4.5.2.3 Clause 6.6.2.2 Level and form of contribution
Submission
618/159 and seven other submissions suggest that clause 6.6.2.2 needs amendment
as it is too subjective as to the means of determining share in relation to capacity
and has inadequate certainty.
Clause 6.6.2.2 does describe how the level and form of the contributions will
be determined and meets the requirements of section 108(10)(b) of the RMA. The amount
of financial contributions would need to be determined on a case by case basis.
4.5.2.4 Clause 6.6.2.4 Exemptions
Clause 6.6.2.4 Exemptions, lists the types of subdivision consents, land use
consents and land use activities which are exempt from financial contributions for
infrastructure. Submission
2764/1
seeks to exempt subdivisions where there is no significant change in land uses,
or no additional dwellings created.
Under clause 6.6.2.4, the following exemptions apply:
- subdivisions are exempt from a contribution for planned infrastructure projects
(but not unplanned projects) if a contribution has already been taken at a land
use or building consent stage
- land use activities are exempt from a contribution for planned infrastructure
projects (but not unplanned projects) if a contribution has already been taken
at subdivision stage
- subdivisions to create special purpose sites under clause 12.9.2 are exempt
from financial contributions for infrastructure.
Subdivisions that involve no significant change in land uses or create no additional
dwelling sites are unlikely incur a contribution under clause 6.6.2.2. Such subdivisions
are unlikely to uptake any capacity provided by planned projects or result in any
need for council expenditure on unplanned projects. It is not necessary to include
such subdivisions in the list of exemptions.
It is however noted that an industrial subdivision would not create additional
dwelling sites, but it may warrant a financial contribution for infrastructure.
4.6 Submissions about clause 6.7 - Financial contributions for community amenities
Submissions dealt with in this section:
618/160,
618/162,
1101/40,
1101/42,
1127/29,
1127/31,
1243/44,
1243/45,
1286/121,
1286/123,
1287/64,
1287/66,
1288/147,
1288/149,
1289/47,
1289/49,
2001/58
4.6.1 Decisions requested
| Clause |
Decision requested |
Sub. no
|
| 6.7 |
The proposed ability to take land for community amenity contributions
should be deleted. Alternatively the rules can allow for that contribution to
be taken as a credit where the applicant offers land to the council. It should
not be imposed as a condition of consent but should be an agreement between
the two parties. |
618/162,
1101/42,
1127/31,
1286/123,
1287/66,
1288/149,
1289/49
|
| 6.7.2 |
Clause 6.7.2 needs amendment as it is too subjective as to
means of determining share in relation to capacity and has inadequate certainty.
|
618/160,
1101/40,
1127/29,
1286/121,
1287/64,
1288/147,
1289/47,
2001/58
|
| 6.7.2.1 |
Ensure that the provision for financial contributions on certain
permitted activities in clause 6.7.2.1 is not ultra vires. |
1243/44
|
| 6.7.2.1 |
Provide in clause 6.7.2.1 that financial contributions will
not be required as a condition of resource consents for normal farming activities.
|
1243/45
|
4.6.2 Comments on decisions requested
4.6.2.1 Delete financial contributions of land for community amenities
Submission
618/162 and six other submissions seek to delete the ability to take land for
community amenity contributions. Alternatively the submissions suggest that the
rules can allow for that contribution to be taken as a credit where the applicant
offers land to the council. It should not be imposed as a condition of consent but
should be an agreement between the two parties.
Part 6 provides a framework whereby financial contributions can be used to recover
a fair contribution towards the costs of avoiding, remedying or mitigating the adverse
effects of subdivision and development on the environment of the islands. The objective
of the financial contributions for community amenities is "To ensure that community
amenities on the islands are able to cater for additional demand generated by new
residents and businesses."
Section 108(9) provides for a financial contribution to be money, land or a combination
of both. It is considered that the council should retain the ability to require
a financial contribution for community amenities to be taken in land and not limit
itself to money only. If land is required, its value cannot exceed the amount that
could be required in money.
4.6.2.2 Clause 6.7.2 Rules - financial contributions for community amenities
Submission
618/160 and seven other submissions suggest that clause 6.7.2 needs amendment
as it is too subjective as to the means of determining share in relation to capacity
and has inadequate certainty.
Clause 6.7.2.2 does describe how the level and form of the contributions will
be determined and meets the requirements of section 108(10)(b) of the RMA. The amount
of financial contributions would need to be determined on a case by case basis.
4.6.2.3 Clause 6.7.2.1 Application
Permitted activities
Clause 6.7.2.1 notes that payment of financial contributions may be required
as a condition of resource consent or alternatively may be specified by a rule in
this Plan as payable in respect of permitted activities. Submission
1243/44 seeks to ensure that provision for financial contributions on certain
permitted activities in this clause is not ultra vires (ie beyond the scope or in
excess of the legal power or authority vested in the council).
Legal advice on this particular matter was provided by the council's solicitors
during the drafting of this part of the Plan. The provisions are in accordance with
the legal advice received. However it will be appropriate to obtain further advice
from the council's solicitors prior to finalising the panel's recommendations on
this part of the Plan. This is to ensure that there has been no subsequent case
law which would alter the legal situation.
Farming activities
Submission
1243/45 asks that financial contributions under clause 6.7.2.1 not be required
as a condition of resource consents for normal farming activities.
As set out in clause 6.7.2.2, the council can only require a financial contribution
for community amenities where a subdivision or development involves the uptake of
capacity provided by one or more planned community amenity projects. The maximum
amount of the contribution will be determined by reference to the share of that
capacity (of a planned project) that the subdivision or development will take up.
In the future there may be a situation where it is appropriate for the council
to levy a financial contribution for community amenities on a development for an
intensive farming activity.
4.7 Submissions about clause 6.8 - Financial contributions for environment or
heritage
Submissions dealt with in this section:
337/1,
337/2,
337/3,
338/1,
338/2,
338/3,
618/163,
1101/43,
1127/32,
1243/46,
1243/47,
1243/48,
1243/49,
1243/50,
1243/51,
1286/124,
1287/67,
1288/150,
1289/50,
2641/8,
3521/52
4.7.1 Decisions requested
| Clause |
Decision requested |
Sub. no
|
| 6.8 |
The proposed ability to take land for environment or heritage
should be deleted. Alternatively the rules can allow for that contribution to
be taken as a credit where the applicant offers land to the council. It should
not be imposed as a condition of consent but should be an agreement between
the two parties. |
618/163,
1101/43,
1127/32,
1286/124,
1287/67,
1288/150,
1289/50
|
| 6.8 |
Retain clause 6.8 'Financial contributions for environment
and heritage' |
2641/8
|
| 6.8 |
Retain the provisions in clause 6.8. |
3521/52
|
| 6.8.1 |
Adding to the end of clause 6.8.1(1):
"unless it is demonstrated that the maintenance of the threatened habitat
results in the impractical use of land."
|
337/1,
338/1
|
| 6.8.1 |
Remove the words "inappropriate activity" from clause 6.8.1(1).
|
1243/46
|
| 6.8.1 |
Reword the clause 6.8.1(2) to read "The provision of policy
mechanisms to allow developers and subdividers to mitigate any adverse effects
through financial contributions". |
1243/47
|
| 6.8.1 |
With respect to clause 6.8.1(2), provide for financial contributions
to relate directly to the activity for which consent is granted (or which is
permitted). |
1243/48
|
| 6.8.2 |
Remove the words "inappropriate activity" from clause 6.8.2(1)
|
1243/49
|
| 6.8.3.1 |
Ensure that the provision for financial contributions on certain
permitted activities in clause 6.8.3.1 is not ultra vires. |
1243/50
|
| 6.8.3.1 |
Provide in clause 6.8.3.1 that financial contributions will
not be required as a condition of resource consents for normal farming activities.
|
1243/51
|
| 6.8.3.2 |
Add additional points to clause 6.8.3.2:
"5. The proposed mitigating factors of an application.
6. The location of the building platform proposed and the consequent practicalities."
|
337/2,
338/2
|
| 6.8.3.2 |
Add an additional paragraph in clause 6.8.3.2 entitled "Contributions
in landscaping and vegetation". This could note that this is a permitted form
of financial contributions because the owner would need to maintain this area.
|
337/3,
338/3
|
4.7.2 Comments on decisions requested
4.7.2.1 Support clause 6.8 Financial contributions for environment or heritage
Submissions
2641/8 (NZ Historic Places Trust) and
3521/52 (ARC) both seek to retain clause 6.8 Financial contributions for environment
or heritage.
4.7.2.2 Delete financial contributions of land for environment or heritage
Submission
618/163 and others seek to delete the ability to take land for environment or
heritage contributions. Alternatively the submissions suggest that the rules can
allow for that contribution to be taken as a credit where the applicant offers land
to the council. It should not be imposed as a condition of consent but should be
an agreement between the two parties.
Part 6 provides a framework whereby financial contributions can be used to recover
a fair contribution towards the costs of avoiding, remedying or mitigating the adverse
effects of subdivision and development on the environment of the islands. The objective
of the financial contribution for environment is:
"To provide opportunities to safeguard and protect important natural habitats
and other environmental qualities and values through the use of financial contributions."
The objective of the financial contribution for heritage is:
"To provide opportunities to safeguard and protect important heritage qualities
and values through the use of financial contributions."
Section 108(9) provides for a financial contribution to be money, land or a combination
of both. It is considered that the council should retain the ability to require
a financial contribution for environment or heritage purposes to be taken in land
and not limit itself to money only.
4.7.2.3 Clause 6.8.1 Objective (environment)
Policy 1 -
337/1 and
338/1
Submissions
337/1 and
338/1
seek to amend the policy in clause 6.8.1(1) as follows:
- By accurately identifying, on a project by project basis, important habitats
and other natural features which may be threatened or compromised by a subdivision,
development or inappropriate activity unless it is demonstrated that the maintenance
of threatened habitat results in the impractical use of land .
The amendment proposed would compromise and undermine the policy.
Policy 1 -
1243/46
Submission
1243/46 also seeks an amendment to clause 6.8.1(1) as follows:
- By accurately identifying, on a project by project basis, important habitats
and other natural features which may be threatened or compromised by a subdivision,
development or
inappropriate activity .
The financial contributions in part 6 seek to address the effects of subdivision
and development. It is not clear why clause 6.8.1(1) refers to 'inappropriate activity'
in addition to 'subdivision or development'. Deletion of this phrase would be consistent
with the terminology used elsewhere in part 6. It is recommended that the clause
be amended as follows:
1. By accurately identifying, on a project by project basis, important habitats
and other natural features which may be threatened or compromised by a subdivision
, or development or inappropriate activity .
Policy 2 -
1243/47
Submission
1243/47 seeks to amend the policy in clause 6.8.1(2) as follows:
- By
providing the provision of policy mechanisms , such as
environmental compensation, which to allow developers and subdividers
to remedy or mitigate any adverse effects from their proposals through
the use of financial contributions.
It is considered that the term 'environmental compensation' lacks clarity as
it is not further explained in the Plan and can be interpreted in a variety of ways.
The term can therefore be deleted. The words 'the use of' are also not needed and
can be deleted. The following wording is therefore suggested:
- By providing policy mechanisms
, such as environmental compensation,
which allow developers and subdividers to remedy or mitigate any adverse effects
from their proposals through the use of financial contributions.
Alternatively, the term 'environmental compensation' could be further explained.
Policy 2 -
1243/48
With respect to the policy in clause 6.8.1(2), submission
1243/48 asks that it provide for financial contributions to relate directly
to the activity for which consent is granted (or which is permitted).
It is considered that this concern is addressed by the following wording in clause
6.8.3.2 relating to the level and form of contribution:
"The council may require a fair and reasonable contribution for environmental
or heritage purposes based on the amount of land, the cost of work, necessary to
avoid, remedy or mitigate the adverse effects generated by the subdivision or development.
Such contributions will be assessed on a case by case, project by project basis."
4.7.2.4 Clause 6.8.2 Objective (heritage)
Submission
1243/49 seeks to amend policy 1 in clause 6.8.2(1) as follows:
- By accurately identifying, on a project by project basis, important heritage
features which may be threatened or compromised by a subdivision, development
or
inappropriate activity .
The financial contributions in part 6 seek to address the effects of subdivision
and development. It is not clear why clause 6.8.2(1) refers to 'inappropriate activity'
in addition to 'subdivision or development'. Deletion of this phrase would be consistent
with the terminology used elsewhere in part 6. It is recommended that the clause
be amended as follows:
- By accurately identifying, on a project by project basis, important heritage
features which may be threatened or compromised by a subdivision
, or
development or inappropriate activity .
4.7.2.5 Clause 6.8.3.1 Application
Permitted activities
Clause 6.8.3.1 notes that payment of financial contributions may be required
as a condition of resource consent or alternatively may be specified by a rule in
this Plan as payable in respect of permitted activities. Submission
1243/50 seeks to ensure that provision for financial contributions on certain
permitted activities in this clause is not ultra vires (ie beyond the scope or in
excess of the legal power or authority vested in the council).
Legal advice on this particular matter was provided by the council's solicitors
during the drafting of this part of the Plan. The provisions are in accordance with
the legal advice received. However it will be appropriate to obtain further advice
from the council's solicitors prior to finalising the panel's recommendations on
this part of the Plan. This is to ensure that there has been no subsequent case
law which would alter the legal situation.
Farming activities
Submission
1243/51 asks that financial contributions under clause 6.8.3.1 not be required
as a condition of resource consents for normal farming activities.
Clause 6.8.3.1 includes the following explanation of the application of financial
contributions for environment or heritage:
"The use of financial contributions as a means of avoiding, remedying or mitigating
damage to important natural or heritage features or qualities will be considered
on a project by project basis.
It is intended that financial contributions for these purposes may be used as
a way of allowing a development or subdivision to proceed while at the same time
safeguarding the natural and heritage values of the islands. As a result of this
opportunity, it is envisaged that both developers and the council may see the value
in such contributions and that developers may offer financial contributions to protect
important natural and heritage features as part of their development or subdivision
proposal.
Because these policies will be applied on a case by case basis, it becomes difficult
to identify, with any precision, where and when financial contributions for environmental
and heritage purposes will actually be required. Part 7 - Heritage however
does identify those aspects of the islands' natural environment and heritage which
the council believes requires protection or at least careful management. Part 7
should be referred to in order to gain a good appreciation of the circumstances
where these policies may apply.
Financial contributions for environmental or heritage purposes may be specified
by a rule in this Plan to be a condition of permitted activity status, or required
as a condition of consent on any land use and subdivision consent. Such contributions
may be required in money or land or a combination of these. The council may also
impose on a consent a condition requiring that services or works be provided."
In the future there may be a situation where it is appropriate for the council
to levy a financial contribution for environment or heritage purposes on a development
for an intensive farming activity.
4.7.2.6 Clause 6.8.3.2 Level and form of contribution
Assessing the level of contribution
Clause 6.8.3.2 lists four factors which should be taken into account in assessing
the level of financial contribution required for environment or heritage purposes
to address the identified adverse effects. Submissions
337/2 and
338/2
seek to add two additional factors. With these additions, the list would read as
follows:
"In assessing the level of contribution required to address the identified adverse
effects, a number of factors will be taken into account. These include:
- The importance of the environmental or heritage feature in question and in
particular its uniqueness to the local area and islands more generally.
- The contribution the particular feature makes to an identified set of environmental
or heritage values. For example whether the feature is an important part of a
local habitat in the case of environmental values, or important to local heritage
character in the case of heritage values.
- The existing condition of the feature in question and whether or not the protection
of the feature will enhance its condition.
- Such other factors may be relevant in the particular circumstances of the
case."
- The proposed mitigating factors of an application.
- The location of the building platform proposed and the consequent practicalities.
Item (5) is not supported in its current form as it is not specific to environment
or heritage. However the following wording is suggested:
The extent to which any adverse effects of the subdivision or development
on the environmental or heritage feature in question have been or will be avoided,
remedied, or mitigated through mechanisms other than a financial contribution.
It is considered that proposed item (6) is not an appropriate factor to use in
assessing the level of financial contribution as it does not relate directly to
the effect of the subdivision or development on environmental or heritage qualities
and values. The location of the building platform and consequent practicalities
are however likely to be relevant when assessing a resource consent application.
Contributions in landscaping and vegetation
Clause 6.8.3.2 includes rules relating to contributions in land and rules relating
to contributions in money. Submissions
337/3 and
338/3
seeks an additional paragraph entitled 'Contributions in landscaping and vegetation'.
The submissions suggest that this could be noted as a permitted form of financial
contribution because the owner would need to maintain this area.
Financial contribution is defined in section 108(9) of the RMA as:
"a contribution of -
(a) Money; or
(b) Land, including an esplanade reserve or esplanade strip (other than in relation
to a subdivision consent), but excluding Maori land within the meaning of the Maori
Land Act 1993 unless that Act provides otherwise; or
(c) A combination of money and land."
The RMA therefore provides for contributions in land, money or both. It does
not provide for financial contributions in landscaping and vegetation. The amendment
sought by these submissions is therefore not recommended. However landscaping, including
planting, are relevant factors for the council to take into account when assessing
a resource consent application to determine whether adverse effects are avoided,
remedied or mitigated. Landscaping may be required as a condition of consent.
4.8 Submissions about clause 6.9 - Application to reduce or waive financial
contributions payable on permitted activities
Submissions dealt with in this section:
618/164,
1101/44,
1127/33,
1286/125,
1287/68,
1288/151,
1289/51,
2001/59
4.8.1 Decisions requested
| Clause |
Decision requested |
Sub. no
|
| 6.9 |
Clause 6.9 suggests that the maximum contribution will be taken
unless a restricted discretionary application is made - but clause 6.5.2.4 suggests
that for all cases the maximum doesn't automatically apply - this a fundamental
conflict and will create misinterpretation issues and administrative uncertainty.
|
618/164,
1101/44,
1286/125,
1287/68,
1288/151,
1289/51
|
| 6.9 |
Clause 6.9 suggests that the maximum contribution will be taken
unless a restricted discretionary application is made, but clause 6.5.2.4 suggests
that for all cases the maximum does not automatically apply. This is a fundamental
conflict and will create misinterpretation issues and administrative uncertainty.
The appropriate process is to set the basis for contributions with a maximum
applying and determine them according to guidelines without a need to apply
for waiver or reduction on the basis that the maximum is a given. |
1127/33
|
| 6.9 |
Clause 6.9 needs amendment because of fundamental conflicts
with clause 6.5.2.4. |
2001/59
|
4.8.2 Comments on decisions requested
These submissions query the relationship between clauses 6.9 and 6.5.2.4.
Clause 6.5.2.4 relates to financial contributions for open space. It lists four
matters which the council will consider in assessing whether to impose the maximum
financial contribution under clause 6.5.2.2 (for subdivision consents) or clause
6.5.2.3 (for land use activities and consents), or less than the maximum.
Clause 6.9 deals with applications to reduce or waive financial contributions
payable on permitted activities. It states as follows:
"Where payment of a financial contribution is required in respect of any activity
having permitted activity status under this Plan, waiver or reduction of the maximum
financial contribution payable under the rules in this part will be treated as a
restricted discretionary activity. The council restricts its discretion to the matters
specified in clauses 6.5.2.4, 6.6.2.2, 6.7.2.2, and 6.8.3.2.
The treatment of a waiver or reduction of a financial contribution in these circumstances
as a restricted discretionary activity is for the benefit of the applicant, as it
provides the council with the opportunity to impose a lesser contribution than the
maxima specified in clauses 6.5.2.2, 6.5.2.3, 6.6.2.2, 6.7.2.2, and 6.8.3.2, as
the case may be."
It is important to note that clause 6.5.2.4 applies to financial contributions
for open space where payment is required as a condition of a subdivision or land
use consent, or as specified by a rule in the Plan for a permitted activity. Clause
6.9 applies only to permitted activities, where there is no resource consent process
involved.
Where the subdivision or development requires a resource consent, the appropriate
level of that financial contribution will be assessed as part of the consenting
process. If the applicant considers that the amount of the financial contribution
is unreasonable, they can challenge a proposed condition at a council hearing and
also subsequently appeal to the Environment Court.
Where the development does not require a resource consent, but incurs a financial
contribution as a permitted activity, the maximum amount of the financial contribution
specified in the Plan will apply in the first instance. However clause 6.9 sets
out the process whereby the applicant can apply for a waiver or reduction of the
maximum financial contribution payable as a restricted discretionary activity. Clause
6.9 therefore establishes a legal process for an applicant to challenge the amount
imposed as a financial contribution. In considering an application under clause
6.9, the council has restricted its discretion to the matters specified in clauses
6.5.2.4 (for open space), 6.6.2.2 (for infrastructure), 6.7.2.2 (for community amenities),
and 6.8.3.2 (for environment or heritage).
It is considered that there is not a fundamental conflict between clause 6.9
and 6.5.2.4. In addition it is considered that clause 6.9 fairly provides a means
for the amount of the financial contribution payable on permitted activities to
be reduced or waived. If there was no obvious mechanism for applicants to apply
for a reduction or waiver, then this would mean that the permitted activity status
was potentially more onerous than for a proposal that required a resource consent.
Submission
1127/33 suggests that the maximum financial contribution should apply with no
opportunity to apply for a waiver or reduction. This approach would create more
certainty for the council and make administration easier. However given current
case law it would be difficult for the council to justify a 'one size fits all'
approach.
5.0 Conclusion
This summary report identifies and comments on decisions requested in submissions
lodged regarding part 6 - Financial contributions, of the Proposed Auckland City
District Plan: Hauraki Gulf Islands Section 2006. The report seeks to identify
issues and options for the panel, rather than to give detailed recommendations on
all submissions. Any recommendations or suggestions given are made prior to the
hearing of submissions and therefore without the benefit of evidence which may be
presented at that time. At this stage before the hearing, it is recommended
that this part of the Plan be approved, with amendments (as outlined in appendix
3), for the reasons outlined in this report.
| |
Name and title of signatories |
Signature |
| Author |
Katherine Dorofaeff, Senior planner: islands |
|
| Reviewer |
Megan Tyler, Manager: Islands
|
|
| Approver |
Penny Pirrit, Manager: City Planning |
|
Appendix 1
List of submissions and further submissions
Appendix 2
Summary of decisions requested
Appendix 3
Recommended amendments to the Plan
Appendix 4
Summary of financial contributions in part 6 of the Plan
Appendix 5
Part 9 - Financial contributions, of the Operative Plan
[1] The level and form of financial
contributions for open space are detailed in clauses 6.5.2.2 and 6.5.2.3.
[2] However a condition may
be included on a resource consent requiring that works or services be provided (s108(2)(c)
of the RMA)
[3] The development
contributions policy is found in appendix 6 of the Annual Plan. The Annual Plan
2008/2009
is available on the council's website at
www.aucklandcity.govt.nz/council/documents/annualplan/plan2008/default.asp
[4] Amendments
to Auckland City's Long-term Plan 2006-2016 can be found on the council's website
at
www.aucklandcity.govt.nz/council/documents/annualplan/plan2007/default.asp
