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Status quo – not an option

development up to six storeys

by Dr Jenny Condie
It is a common rhetorical device to say the status quo is not an option. What we usually mean by this is that the old ways of doing things will not set us up for success in the future. When it comes to Wellington city’s spatial plan this is true. However, the literal meaning of this phrase is also true in this case, as the new National Policy Statement on Urban Development (NPS-UD) has made a number of elements of our current district plan unlawful. (The NPS-UD is issued by central government and is legally binding on councils.)

There has been a lot of debate since the Wellington City Council’s draft spatial plan was released for consultation, much of it focused on the tension between existing character protections in our inner suburbs and a desire to allow more housing development within walking distance of the city. With consultation open for another month, I thought it might be useful to draw a distinction between where the status quo is literally no longer an option and where councillors will still have flexibility to make choices.

I hope this will help people to focus their submissions on the things we can change rather than the things we legally can’t.

What choice does the City Council have available to us about character protections under the new NPS-UD?

The short version is that suburb-wide character protections are no longer permitted under the new NPS-UD. In other words, the status quo is no longer legally an option. Under the new NPS-UD, we can (probably) still maintain some protections of character areas in our inner suburbs, but how we do that will have to change.

The NPS-UD says that we must allow buildings of at least 6 storeys within walking distance of the edge of the city centre. Note this doesn’t say we must “require” 6 storey buildings, just that we can’t prevent up to 6 storeys in certain areas. This would include most of the suburbs that currently have pre-1930s character protection.

The NPS-UD does allow for some exceptions to the “at least 6 storeys” rule, known as ‘qualifying matters’. Heritage is mentioned as a specific qualifying matter, but character is not. It is not clear if character would be accepted under a generic “any other matter” exception provided in section 3.32.1.h.

character 2

The draft spatial plan has been prepared on the assumption that character would be a valid exception under the NPS-UD. However, character protections would need to be justified on a site-specific basis.

WCC staff and consultants have conducted a street-by-street analysis which will allow us to meet this requirement. We will also have to demonstrate an “appropriate range of options to achieve the greatest heights and densities” while maintaining character. This would include things such as allowing up to 4 storeys near character areas.

Within this targeted approach proposed by staff there is some flexibility.

Are the criteria for identifying character that deserves protection too loose or too strict?

Is four storeys in these areas a good compromise between the 6 storeys required by the NPS-UD and the two storeys which most character houses occupy?

Is the walking catchment the right size? Should we be increasing it to a 20 minute walking catchment or reducing it to 5 minutes?

In our previous consultation, 56% of people agreed or strongly agreed with the statement “I support higher buildings near the central city even if it means removing the protection of the character of Newtown, Mt Cook, Mt Vic, Thorndon, The Terrace, Holloway Road, Aro Valley and Berhampore.”

If that included you, then let us know if you like the proposal in the draft spatial plan or if you think we should remove character protections altogether. In that case, individual heritage buildings would still have protections, and we could continue to require compliance with strict design guides in these suburbs.

One of the key criteria for allowing exceptions like character protections to the “at least 6 storeys” rule is that we have to show that the city can meet its housing development needs even with these exceptions. Which means that if we allow less development in the inner suburbs in order to protect character areas, there will need to be more development elsewhere. This would mean either even taller buildings within the CBD (potentially risky because of earthquakes) or greater development in the outer suburbs (longer travel times and less economically attractive for density).

The northern suburbs would likely see the greatest share of any development that can’t be accommodated in the inner suburbs, as the north is served by train stations where the “at least 6 storeys” rule also applies within walking distance. The more character protections we keep in the inner suburbs, the more housing development will need to happen in Ngaio, Khandallah, Johnsonville, and Tawa. (Kilbirnie and Miramar will likely also see increased development, but multiple natural hazards in these areas makes development more risky and expensive.)

This is another area where I expect we will get plenty of feedback. Let us know if you think the walking catchments in these areas should be larger or smaller than proposed.

Find out more and provide your feedback here.

Consultation is open until Monday 5 October at 5pm

17 comments:

  1. David Mackenzie, 14. September 2020, 9:28

    I fail to understand this in my naivety. I thought a policy statement was just a policy. Where does the force of law enter a policy? Surely it is just an indication of what the government would prefer. We are entitled to have different preferences.

     
  2. D'Esterre, 14. September 2020, 19:57

    “…the new National Policy Statement on Urban Development has made a number of elements of our current district plan unlawful. (The NPS-UD is issued by central government and is legally binding on councils.)”
    David Mackenzie is right: this cannot be correct. A policy statement is just that: it cannot be legally binding. If the current – or any future – government wishes to bind Councils to its vision, it must enact legislation.

    We are indeed justified in having a contrary view. That includes the Council. It is completely within its rights to give full consideration to both heritage and character (whatever the difference is), anywhere in the city.

    “….the more housing development will need to happen in Ngaio, Khandallah, Johnsonville, and Tawa.”
    Ngaio and Khandallah in particular, being areas of early settlement, have both heritage and character housing. Surely they are also deserving of protection?

    For the life of me, I don’t understand where the projected population growth figures come from. We’ve heard in the past optimistic predictions of this sort. They turned out to be wrong. No reason to think it’d be different this time around.

     
  3. TrevorH, 14. September 2020, 20:01

    As others have pointed out, policy statements are not legally binding. Perhaps Councillors need a civics lesson?

     
  4. E G, 14. September 2020, 20:19

    National Policy Statements are pieces of National Direction under the Resource Management At — they legally direct councils what to put in their plans and then those plans are legally enforceable. It’s not just about preferences and what the government would prefer!

     
  5. Marko, 14. September 2020, 22:37

    To those commenting that the NPS-UD is not legally binding … it is. It is a form of secondary legislation (regulation) under the Resource Management Act. “National Policy Statement” is the legislative tool central government can use to mandate activities for councils to do. For example there is an NPS on Freshwater and another one on Coastal ecosystems. It’s more than just a ‘policy’ it is a legislative direction.

     
  6. Toni, 14. September 2020, 22:43

    This is on the MFE website:
    National Policy Statements under the Resource Management Act 1991 – they are instruments issued under section 52(2) of the Act. They enable the Government to prescribe objectives and policies for matters of national significance which are relevant to achieving the sustainable management purpose of the RMA. A NPS may also give particular direction to local authorities as to how they need to give effect to policies and objectives. The only mandatory NPS is the New Zealand Coastal Policy Statement, prepared by the Minister of Conservation. Other NPSs are optional and are authorised by the Minister for the Environment.

     
  7. David Mackenzie, 15. September 2020, 7:19

    Getting down to the substance of the plan: my policy is not to have tall buildings in my city; if the population must grow by the laws of nature, people must be accommodated, we must all get used to living closer together; this latter is tolerable if there are open spaces for recreation and exercises, full of flora. The concept of character is inadequate to protect the valuable and interesting constructions of our city. We need a stronger criterion “cultural and historical value” to be applied by a body competent and the decisions of which are hard to challenge. Private property right is after all an ancient concept, but may be an obstacle to greater public good and need to be diminished.

     
  8. D'Esterre, 15. September 2020, 13:29

    Toni: “The only mandatory NPS is the New Zealand Coastal Policy Statement, prepared by the Minister of Conservation. Other NPSs are optional and are authorised by the Minister for the Environment.” So, this NPS is optional and therefore not binding upon this Council, or on any other.

    In this household, one of us has done some work related to the RMA, so we’ve had a bit of a dig around regarding this particular NPS. It has nothing to do with the RMA. It’s been gazetted, but it’s under the aegis of the Urban Development Bill, which has passed its third reading; it came into effect 20th August. And: said Bill (now Act) is concerned with Kainga Ora homes and communities. It isn’t clear to me how the NPS is connected with that Act. What has this to do with the heritage and character areas of Wellington city? It’s stretching the connection out paper-thin, I’d have thought.

    As to the RMA itself, I remember when it was enacted. And I also remember in the 1990s the then government being forced to rein in sundry Councils’ regulatory overreach in respect of what they believed the Act empowered them to do.

    There’s talk of the government repealing it in favour of a more fit-for-purpose piece of legislation. With the current lot – even assuming that they are re-elected – I’ll believe that when I see it.

     
  9. Matt, 15. September 2020, 15:37

    Hi E’Esterre, Toni and EG are correct. Check Section 55 of the RMA: Key bit is here:

    2) A local authority must amend a document, if a national policy statement directs so,—
    (a) to include specific objectives and policies set out in the statement; or
    (b)so that objectives and policies specified in the document give effect to objectives and policies specified in the statement; or
    (c) if it is necessary to make the document consistent with any constraint or limit set out in the statement.

    Basically the NPS sits at a higher national level than local district plans. Councils need to bring their district plans into line with the objectives and policies of the NPS. This is legally binding. The NPS has directed a lot of change and different interpretations from the existing framework. WCC has no choice but to bring their planning documents into line with it.

     
  10. Jame, 15. September 2020, 15:58

    We should be talking about the contents, not arguing about whether it is legal or not.
    The National Policy Statement is issued under the Resource Management Act. See the notice in the New Zealand Gazette.
    Section 55 of the Resource Management Act says that local authorities “must” amend their own plans as required by the National Policy Statement. This is what the Wellington City Council is now starting to do.

     
  11. Toni, 15. September 2020, 15:58

    D’Esterre: Exactly my point = there is only one mandatory NPS!
    However it seems like the council want to use the new NPS-UD as sledgehammer to get what they want.

     
  12. James, 15. September 2020, 17:10

    @Toni and @D’Esterre have misunderstood what ‘mandatory’ means in this context.
    The RMA requires that there must always be a coastal policy statement in place – it is mandatory to have one. In contrast, having a national policy statement is optional – the Minister can choose whether to prepare one or not. But if a national policy statement is issued, councils must comply with it.

     
  13. Conor, 15. September 2020, 20:07

    Jenny’s right! Though the way the council has interpreted the NPS-UD so far leaves a bit to be desired. There are inconsistencies around train stations and a lack of clarity around the walking catchment from the edge of the city centre and Kilbirnie.

     
  14. David Lee, 16. September 2020, 8:24

    David McKenzie and D’Esterre make excellent points questioning the legal status of the Spatial Plan. There should be a word for the process by which government guidance calcifies into law (and ‘TINA’) as it drips down through the layers of bureaucracy.

    One wonders what (if anything at all) the Wellington City Council has said to the government in response. Did it defend our city’s inner city heritage areas? Did it point out their value to the capital not just aesthetically and culturally but also economically? That they have been praised in international travel guides?

    At a screening of one of Gaylene Preston’s films in the United States, the audience applauded scenes of Mt Victoria’s wooden houses. They contribute positively to New Zealand’s image overseas. If this ill-conceived Spatial Plan is implemented it will result in officially encouraged vandalism of our irreplaceable city heritage and will long be regretted.
    David J Lee

     
  15. D'Esterre, 16. September 2020, 23:42

    Jame: “The National Policy Statement is issued under the Resource Management Act. See the notice in the New Zealand Gazette. Section 55 of the Resource Management Act says that local authorities “must” amend their own plans as required by the National Policy Statement.” Yup. Having had another poke around, we can see that this is so. However. In the current context, that doesn’t make it right.

    David Lee: “There should be a word for the process by which government guidance calcifies into law (and ‘TINA’) as it drips down through the layers of bureaucracy.” Indeed there should. In the case of this NPS, it’s the triumph of ideology over pragmatism.

    “Did it defend our city’s inner city heritage areas? Did it point out their value to the capital not just aesthetically and culturally but also economically?” Doesn’t sound like it. I fail to understand why the Council would just meekly accept edicts of this sort, without at least some defence of the city-as-it-is. Previous consultation may well have elicited support from many citizens for removal of heritage and character protections. But that support will likely evaporate when people are directly affected by development which destroys the character and/or the amenities of their areas.

    “If this ill-conceived Spatial Plan is implemented it will result in officially encouraged vandalism of our irreplaceable city heritage and will long be regretted.” There’s a considerable risk of this coming to pass. Attempts to replace heritage and character structures with higher-density structures may well run slap up against Wellington’s challenging topography and subsoil conditions, along with the risks of rising sea levels. It may turn out to be impracticable in much of Wellington to construct those higher-density buildings.

    I take exception to citizens being accused of NIMBYism. This is just an epithet, chucked around by people who don’t have countervailing arguments against those who wish to protect their areas from the negative effects of higher-density development. Of course we’re concerned about protecting our property values: that’s entirely appropriate. And we want to see how the population growth projections being claimed have been arrived at. Absent evidence of this sort, we’re justified in being very sceptical about such claims.

    David Mackenzie: “…my policy is not to have tall buildings in my city…” My view as well: at least, not in many of the areas proposed for them in the spatial plan.

     
  16. James, 17. September 2020, 10:04

    Wellington City Council’s submission to the consultation is here (PDF). Only skimmed briefly (27 pages) but spotted this comment:
    “The Council seeks recognition in the policy that a basic methodology of increasing density does fully not account for heritage, character, topography, hazards or other constraints such as infrastructure capacity …”

     
  17. D'Esterre, 17. September 2020, 17:24

    James: “…spotted this comment…” That wasn’t the impression we got from the staffer we spoke to at the drop-in. More like TINA, in fact.

     

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