By: Tegan Wadworth
The Environment Court has granted the Waimakariri District Council’s application for the subdivision and development rules in the General Rural Zone of its proposed District Plan to have immediate legal effect (meaning that the rules would apply from the date of notification).  The proposed District Plan was publicly notified on 18 September 2021.

Subdivision and development type rules in district plans typically only have legal effect once a decision on submissions is made and publicly notified, and no appeals against the council’s decision are lodged.  Given current and increasing development pressures on rural land, together with the need to protect rural productive potential and rural character and amenity of the area, the Council applied to the Environment Court for some of the rural subdivision and development rules in the proposed District Plan to have immediate legal effect.

The Environment Court considered the following matters in making its decision:
  • Nature and effect of proposed changes – the changes involve a new minimum lot size in the General Rural Zone of 20ha (as opposed to the current 4ha minimum), while maintaining the minimum lot size of 4ha in the Rural Lifestyle Zone.  Also, in most cases, the number of residential units permitted on an individual lot has reduced to one residential and one minor residential unit.  In combination, the proposed changes are intended to reduce development opportunities for residential units, minor residential units and subdivisions (subject to certain legacy provisions intended to preserve existing subdivision consents where either records of title have not yet been issued or where residential units have not yet established).
  • Spatial extent of proposed changes – the General Rural Zone covers 68% of the Waimakariri District, and even if the relevant rules had immediate legal effect, the proposed legacy provisions in the Plan mean that there is still the potential for a further 536 opportunities for residential development.
  • Extent of consultation – the Council had engaged in extensive public consultation, beyond that required in the RMA, in various forms prior to notifying the proposed District Plan, and the issue of rural land, subdivision and development had been a consultation topic for five years.
  • Necessary to achieve the purpose of the RMA – the Court recognised concerns that the operative District Plan may not be giving effect to the Canterbury Regional Policy Statement in terms of outcomes sought for the productivity of the region’s soil resources and ability to use land for primary production (which in turn raised concerns that the operative District Plan was not giving effect to the purpose of the RMA). The rules in the proposed District Plan are intended to remedy this.
  • Prejudice – given the extensive public consultation and evidence that the public were alive to the proposed changes, the Court did not consider that anyone would be prejudiced by granting the Council’s application order for the rules to have immediate legal effect without waiting for a response from any parties.

The Court recognised that if the rules were to have immediate legal effect, rural landowners would be impacted.  For example, the cost of resource consent applications for subdivision or residential development would likely increase, along with increased uncertainty about the outcome of such applications.

Ultimately the Court considered that the reasons in favour of the rules having immediate legal effect were sufficient and made the order sought, noting that if the order was not granted there would be a rush of applications under the more development-permissive operative rules.

Despite the rural subdivision and development rules now having immediate legal effect, submissions on the proposed District Plan will still need to be heard and the rules may therefore be subject to change through that process. The proposed District Plan is open for public submissions until 5pm on Friday 26 November.
 
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