How will the Proposed Waikato District Plan impact subdivision opportunities?

Background  

On Monday 17 January 2022 the Waikato District Council circulated its decisions on the Proposed Waikato District Plan (Decisions Version). Since the Proposed Waikato District Plan (PDP) was publicly notified on 18 July 2018 Council received over 1,000 submissions on its contents. Hearings were completed in July 2021 and the notified decisions bring all rules into effect.

This article summarises the changes to subdivision rules applying in residential and rural zones in Waikato District.          

General Residential Zone

Subdivisions in the general residential zone now have restricted discretionary status meaning they require resource consent. Proposed residential subdivisions must comply with activity specific standards to have a restricted discretionary status. Lots resulting from the subdivision must have a minimum net site area of 450m², be able to connect to a public-reticulated water supply and wastewater and, follow the relevant structure plan in order to comply.

The matters the Council will consider at its discretion when assessing a subdivision application have been expanded to include:

• potential for reverse sensitivity effects;
• avoidance or the mitigation of conflict with gas transmission infrastructure and the ability to maintain it; and
• provision for new infrastructure and the operation and upgrading of existing infrastructure.

[Please note that there are other matters of discretion that have not changed from the Operative Plan provisions for subdivision.]

Council may grant or refuse consent to a subdivision in a residential zone and may impose conditions in relation to  the matters within its discretion.

If the subdivision does not comply with the activity specific standards, the subdivision will have a discretionary activity status. Council must consider fully discretionary subdivision proposals against all the relevant objectives and policies in the Plan when deciding whether to grant or refuse consent.

General Rural Zone

Subdivision in the general rural zone retains restricted discretionary activity status provided it complies with the activity specific standards. However, the Decisions Version has made it harder to subdivide rural land.

In particular the new rules aim to minimise the fragmentation of productive rural land where high class soils are located.

In order to create a new lot from a title that issued before 6 December 1997 the parent title must be at least 40 hectares in area and (if the parent title does not contain high quality soils), the subdivision can create no more than one new lot which must have an area of between 8000m² and 1.6 hectares.  Different rules apply on high-quality soils as below.

If the parent title contains high class soils it is prohibited to subdivide land where the parent title was issued before 6 December 1997 if the subdivision will create more than one new lot (previously two) located on any high class soil. Where land to be subdivided contains high class soils, the new lot to be created must not contain more than 15% of its total land area as high class soils.

Subdivision to create even a single new lot from any parent title that issued after 6 December 1997 is a non-complying activity which means that it is difficult to obtain consent and it is  prohibited to subdivide land with a parent title issued after 6 December 1997 if the subdivision will create any new lot containing high class soil.

The list of matters the Council may consider before allowing a subdivision to proceed has been expanded under the Decisions Version. The matters include:

• effects on rural productivity and the availability of high class soils;
• the provision of infrastructure, including the water supply accessible for firefighting; and
• the subdivision layout and design in regard to how this may impact the operation, maintenance, upgrading and development of infrastructure or give rise to reverse sensitivity effects on existing land transport networks.

[Please note that there are other matters of discretion that have not changed from the Operative Plan provisions for subdivision.]

Boundary relocation under the PDP has more stringent criteria to meet in order for consent to be granted. The Decisions Version has increased the scope of the matters to be considered in the Council’s discretion for a  boundary relocation to include:

• effects on rural productivity and fragmentation of high class soils;
• effects on high class soils, farm management and productivity; and
• the overall layout of the subdivision having regard to the operation, upgrading and development of existing infrastructure assets.

[Please note that there are other matters of discretion that have not changed from the Operative Plan provisions for subdivision.]

If a proposed subdivision does not meet the activity specific standards it will be a non-complying activity under the new rules for which it is more difficult to get a resource consent. Council may approve an application for consent that has a non-complying status if the adverse effects on the environment are no more than minor, or the activity will not be contrary to the policies and objectives of the District Plan (so long as it is not prohibited).

What happens next?

Once any appeals on the PDP are resolved, the PDP will become the Operative Waikato District Plan, replacing the current Waikato and Franklin sections. This will provide a single set of rules governing how people can subdivide their land, covering the entire District.

Submitters and any interested parties should obtain legal advice regarding the implications of the PDP and appeal rights. Any notice of appeal must be lodged with the Environment Court no later than 1 March 2022.

It may be possible to participate in proceedings if someone else lodges an appeal with the Environment Court. Under s 274 of the Resource Management Act, becoming a party to the proceedings is possible if you lodged a submission on the PDP that is about the subject matter of the proceedings or if you have an interest in the proceedings greater than the interest of the general public.

Please contact our Resource Management specialist lawyers Joan Forret and Charlotte Muggeridge who can provide detailed legal advice relating to the PDP changes, participating in proceedings and can assist with lodging appeals.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.