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Scope of Kāinga Ora’s planning powers will be critical to both its success and existence

August 16, 2019

Contacts

Partners Josh Cairns, Matt Conway, Jonathan Salter, Sarah Scott
Senior Associates Katherine Viskovic

Local government Urban development

In summary - what you need to know

  • Kāinga Ora’s proposed powers are likely to be substantial and wide-ranging to avoid getting tied up in knots through regulatory, funding and acquisition processes

  • These powers also correspond to a likely reduction in the powers of local authorities and communities, and could scare away support for this framework

  • We believe the success of this legislation will depend on whether the goal of enabling more urban development is held widely enough, and if an acceptable balance can be struck that does not discount the expertise and local mandate of local authorities

Introduction

As outlined in our July report Urban Growth - Time to deliver, the government is seeking to establish Kāinga Ora as a ‘one-stop shop’ urban development authority that allows for a streamlined, effective and consistent approach to deliver housing “at scale and pace”.

The drivers for this goal bear some resemblance to the drivers for the recently-announced Resource Management Act (RMA) reform, which include a dissatisfaction with the level of development that has been enabled and delivered to date. Both legislative programmes will confront key issues and challenges that have traditionally sat at the heart of the debate about planning powers. Including the tension between protecting the environmental values we hold dear and enabling more development with less red tape, and between streamlined consenting processes and the community’s desire to have their say.

Whether the Kāinga Ora legislative programme will be able to overcome those challenges will depend in large part on how widely shared the goal of further urban development is, and the community’s willingness to relinquish some of the control and input that it has historically held dear. It may also prove to be a litmus test for some of the RMA reforms the government will be considering over the coming months.

Kāinga Ora’s likely powers and key issues

If Kāinga Ora is to deliver on its goals, it will need substantial and wide-ranging powers to avoid getting tied up in knots through regulatory, funding and acquisition processes.

The signals from Cabinet papers released by the Ministry of Housing and Urban Development are that, in addition to funding, acquisition and other powers, Kāinga Ora will likely be empowered to:

  • Produce development plans for each “specified development project”, outlining the development process and setting out resource management planning rules. This should ensure developments are properly planned and coordinated, particularly in relation to integration with infrastructure and surrounding areas. Depending on the extent of public input allowed, this step could also generate a degree of social licence and reduce community concerns that developments will ride roughshod over their preferences.
     
  • Override, add to, or suspend land use rules in the district plan, regional plan and regional policy statements. the assumptions behind this ability (that land use rules haven’t been well-developed and are an inappropriate constraint on development) are unlikely to be correct in all cases. This power could also be too much of a shift away from local planning for the community to stomach and we anticipate significant debate about proposals of this nature. However, we see a need to have this debate and test whether the goal of more urban development is shared widely and deeply enough to overcome these reservations.
     
  • Issue resource consents (with shortened timeframes for processing consent applications and truncated appeal rights) and undertake compliance and monitoring of consents. Given that the speed and certainty of resource consent processes is a common complaint, powers of this nature would not be a surprising sight in the second stage bill. These powers would reduce local authority influence and would therefore confront issues similar to those described above.
     
  • Remove, change or replace, or put in place designations for infrastructure. Requiring authorities under the RMA already have the power to make the final decision on requirements for designations, but notification, submissions and appeal rights still apply, and there is no guarantee of an outcome in the requiring authority’s favour. Giving Kāinga Ora enhanced requiring authority powers to confirm a designation even in the face of public opposition would naturally increase certainty for the development in question. If NZTA had had such powers in 2013, there would probably be a flyover at the Basin Reserve in Wellington by now, for example.
     
  • Act as a heritage protection authority. In effect this means that Kāinga Ora would be able to override heritage protections, which are often connected with very strongly-held and sometimes polarising views.

These powers would be a substantial boost to the effectiveness of a UDA. The powers, and the corresponding reduction in the powers of local authorities and communities, are also precisely what could make it hard for the government to get enough support to pass the necessary legislation. New Zealanders have for a long time sought the chance to have their say on developments that they consider affect them.

If the goal of enabling more urban development is held widely enough, that might create sufficient momentum to get these powers included in the Kāinga Ora legislation. The question is whether the government will be able to do so in a way that does not discount the expertise and local mandate of local authorities and does not paint a picture of local perspectives as being something to be “overcome”.

Is it possible to achieve an effective urban development authority that won’t concern the community?

We hope the answer is yes. At very least, we think it is worth investigating a framework like this further, particularly in light of the issues discussed above and the possibilities to provide appropriate checks and balances on Kainga Ora’s powers and their use.

A lot of work has gone into investigating possible models for a national framework, including the recent report by Infrastructure NZ discussing the approaches in Singapore, Hong Kong and China. That report recommended (among other things):

  • The setting of national priorities.

  • Regions developing spatial plans to translate those national priorities into relevant regional outcomes and, in turn, tangible projects and land use plans which deliver the outcomes.

  • Regions developing minimum land use rules to align with infrastructure capacity and investment as a prerequisite for land development.

  • Local councils developing maximum land use rules to align with community aspirations.

  • Regional and local spatial and land use plans that are signed off by central government.

In our view, ensuring that there is a well-planned and clearly-communicated overall framework will be critical in ensuring that development plans are actually good planning.

We also consider it important to ensure an on-going role for local authorities in the implementation of that framework, making use of their local knowledge and understanding of community views.

Getting the public’s buy-in at appropriate stages is also likely to make such a framework more durable and capable of being implemented. In particular, achievement of a clear public mandate for the overall framework could be critical for giving comfort about how Kāinga Ora’s powers would be used and, accordingly, getting the legislation over the line.

For further discussion of this topic or assistance with making a submission, please get in touch with our contacts above.