Wednesday, 2 November 2016

Urban Development Capacity 2016: A First Look at the new National Policy Statement

The current government has struggled for years to come up with a meaningful response to the housing crisis in Auckland. The latest attempt is the issuance of a National Policy Statement ("NPS") to form part of the Resource Management Act. In effect it tells councils to get ahead of the curve in terms of ensuring enough land is available for residential and commercial development in the short, medium and long term.

At first glance what's not to like about this? Some councils are notoriously slow at rezoning land or, instead, for promoting development in areas where the market doesn't want to go. Setting councils' first priority as housing their population over the prettiness of their city is not a bad idea.

At the heart of the NPS is the requirement to ensure that sufficient "development capacity" exists to meet predicted demand. This capacity includes not only land zoned for (re-)development but also "the provision of adequate development infrastructure to support the development of the land".

It is that last bit that will cause no end of problems.

Providing infrastructure is not a function or responsibility of a council under the RMA. In fact, as far as I can tell, it isn't a statutory responsibility of a council at all. We are used to the idea that councils operate water systems and roads but, technically, they do it voluntarily. All over New Zealand you can find examples of properties that opt out of those systems and there really isn't a rule that says that councils must be the provider.

So this NPS seems to be imposing a statutory obligation on councils that doesn't currently exist.

Minister Smith placed great weight on a decision of the Supreme Court (EDS v NZ King Salmon) to legitimise the use and power of an NPS. The majority opinion certainly reinforces the power of a NPS to "over-ride" the RMA. But I suspect that he glossed over para 88 in which the Court allowed for the possibility that an NPS can be invalid or unlawful. In this particular case that possibility was never raised.

Not being a lawyer I will have to leave it to others to speculate on the validity of the NPS. But it is possible that, like Minister Smith's idea to develop housing on Crown land in Auckland already promised to others, this idea will be a non-starter.

Update 13:38:

I have had some feedback from public law experts who assure me that this is all perfectly kosher. None of the lawyers who submitted on the draft NPS raised any questions of validity. 

Strangely, I am more worried now than I was. Before, I thought the whole thing could get struck down in court; now it seems the Minister for the Environment has wide-ranging, self-granted powers to intervene directly in our councils' core business. And this process sets a precedent for further unilateral controls being imposed over local government in the future in which Parliament will have no say.

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