Enabling Housing Supply Amendment Act – what are the Medium Density Residential Standards?

Thursday, April 7, 2022

The Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 (Amendment Act) requires Tier 1 Councils (being Councils within the urban environments of Auckland, Hamilton, Tauranga, Wellington, and Christchurch) to change their planning rules to ensure that development is enabled in accordance with the Medium Density Residential Standards (MDRS).

Appendix A below summarises the MDRS prescribed by the Amendment Act.

Where do the Medium Density Residential Standards apply?

The MDRS will apply in every ‘relevant residential zone’. This is defined broadly to include ‘all residential zones’ except:

  • a large lot residential zone;
  • an area predominantly urban in character that the 2018 census recorded as having a resident population of less than 5,000, unless a local authority intends the area to become part of an urban environment; and
  • A settlement zone.

Unless these specific exemptions apply, the presumption is that the MDRS will apply to a residentially zoned site.

However, ‘qualifying matters’ may also apply to a site, which allows Council(s) to impose restrictions on the application of the MDRS. Qualifying matters include but are not limited to:  

  • enabling the safe and efficient operation of nationally significant infrastructure, including the State highway network, rail corridors and utility structures such as the national grid;
  • the protection of natural and physical resources including preservation of natural character, natural features and landscapes, historic heritage, customary rights, and management of significant risks from natural hazards;
  • compliance with the directives contained in the National Policy Statement for Urban Development and the New Zealand Coastal Policy Statement; and
  • a catch-all provision which provides a pathway for Council(s) to restrict development in ‘inappropriate’ areas subject to a site-specific analysis. This evaluation report must identify why a departure from the MDRS can be justified when assessed against the national significance of urban development.

While the direction contained in the Amendment Act must enable development in accordance with MDRS, a landowner/developer is not required to build to the maximum density. For this reason, the development opportunity created by MDRS should be treated as development ‘potential’ only. Uptake of MDRS will be subject to a number of factors, including motivation of landowners to intensify built form on existing sites, costs associated with development, and market demand for high density living.

What do the Medium Density Residential Standards enable?

Land use Activities - Permitted

The construction or use of a building will be a permitted activity if it complies with MDRS provided it also complies with all other relevant general and zone-specific standards in the District Plan. Importantly, the Amendment Act provides that there must be no other density standards included in a District Plan that are more restrictive than the MDRS.

Land Use Activities – Restricted Discretionary

If the activity does not meet the MDRS, then the District Plan must provide for the construction and use of one or more residential units on a site as a restricted discretionary activity. This means that Council has discretion to decline a restricted discretionary consent application and may impose conditions. Because the matters of restricted discretion are not prescribed by the Amendment Act, it is likely Council(s) will define them in a manner that grants them maximum discretion to impose conditions on a restricted discretionary consent.

Subdivision Activities – Controlled

All subdivision standards within a District Plan must be consistent with the level of development permitted by the MDRS. Subdivision of land that meets the MDRS must be provided for as a controlled activity. A controlled activity application must be granted by Council, but the Council has discretion to impose conditions.

All subdivision remains subject to section 106 of the Resource Management Act which provides that Council may refuse to grant consent if there is significant risk from natural hazards or sufficient provision has not been made for legal or physical access.

Limits on Notification

The Amendment Act provides that public notification is specifically precluded for resource consent applications seeking to authorise land use activities and subdivision anticipated above. This means that there will be no opportunity for potentially affected persons to participate in the resource consent process.

What is the Implementation Process?

Council(s) must notify a Plan Change (called an Intensification Planning Instrument (IPI)) incorporating the MDRS into the District Plan before 20 August 2022. Generally, the MDRS will have immediate legal effect from the date of notification.

Where a proposed District Plan has already been notified (i.e proposed Selwyn and Waimakariri District Plans) Council(s) will also be required to notify a Variation to that proposed District Plan incorporating the MDRS. The IPI process will also impact rezoning Plan Changes already underway.

The Amendment Act introduces an Intensification Streamlined Planning Process (ISPP) that Council(s) must utilise when undertaking the Plan Change process. Council(s) are directed to establish an Independent Hearing Panel to hear and make decisions on the IPI and related Variations. There are no rights of appeal to the Environment Court. This is to ensure that the IPIs are operative by mid-2023.

The public will be able to submit on the IPI process, and even though the MDRS are prescribed within the Amendment Act, we can see several reasons for submitters to engage with the process:

  • What are the matters of discretion under the controlled and restricted discretionary consenting pathways?

  • Should a site be subject to a qualifying matter?

  • Should an urban area that did not meet the 5,000-population threshold in 2018 be subject to MDRS?

  • What financial contributions are set by the Council(s) (expected to be a mechanism adopted by Council(s) to direct development to suitable areas) and in which areas do these apply?

Increased development potential will likely increase demand on existing and planned infrastructure. It is not yet clear how this issue will be resolved (i.e. cost allocation), but the IPI may contain clues as to Council(s) preference. The IPI process should also be viewed in conjunction with any other changes to regulatory documents (such as a Council’s Long-Term Plan, and broader infrastructure strategies) which may give insight into the implementation of the MDRS.

For further information on the MDRS, please contact a member of our resource management team.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

 

Appendix A

Medium Density Standard

Performance Standard Requirement 

Dwellings (max)

3

Building Height (max)

11m (except 50% of roof may be 12m where 15° pitch)

Height in relation to boundary (max)

60° recession plane measured from a point 4m above ground level along all boundaries

Setbacks (min)

Front – 1.5m
Side – 1m
Rear – 1m

Setbacks do not apply to site boundaries where there is existing or proposed common walls (i.e multi-unit townhouses).

Building coverage (max)

50%

Landscaped area (min)

20% (can include tree canopy area)

Impervious coverage (max)

n/a

Outdoor living space (min)

 

 

Ground floor - 20mwith no dimension less than 3 metres.

Upper floor - 8m2 with no dimension less than 1.8 metres.

Common/cumulative spaces may be used utilised
 

Outlook space (min)

Principal living room - 4m x 4m
All other habitable rooms –1m x 1m

Windows to street (min)

20% of street facing façade to be glazed windows or doors

 

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