Regulatory control is likely to be the primary management tool for controlling non-residential activities in residential areas. This is reflected in district plans generally. Plans can adopt an effects-based approach (with little or no identification of particular activities), an activity-based approach, or a combination of both. The approach adopted will have significant implications for the development of objectives, policies and rules. Whatever approach is taken, this will need to be subject to an evaluation under s32 of the RMA. This is particularly important as the Resource Management Amendment Act 2013 provides greater guidance and specificity about what is required in s32 reporting, particularly for the assessment of costs and benefits. These changes to s32 reporting come into force 3 December 2013 (3 months after Royal Accent of the Act).
- Plan strategies should adopt a top-down approach, beginning with objectives and policies through to zone statements (if applicable), rules and assessment matters. Some plans have quite specific rules which are supported by only limited and very general objectives and policies.
- Decide whether to differentiate between residential and non-residential activities, and then whether to differentiate between different types of non-residential activities. For example, a Council may want to provide church activities and preschools with more generous provisions on the basis that they are argued to serve local needs.
- The Council may wish to provide more liberal standards for different categories of non-residential activities (e.g. for preschools but not for offices). If so, such an approach needs to be justified at a policy level, and the rules carefully drafted to support this. This is important because if the activities have similar effects the Council's intentions may succumb to the 'baseline test'. The permitted baseline is a concept designed to disregard effects on the environment that are permitted by a plan or have been consented to (further information is provided in the guidance note on writing provisions for regional and district plans).
Objectives and policies
- Objectives should specify desired environmental outcomes (i.e. 'what' is desired) and policies the means (i.e. 'how') to achieve them.
- Avoid circularity in policy wording by supporting non-residential activities, while also pointing out that their potential adverse effects must be avoided. It is more helpful to specify the circumstances in which consent might be favored or discouraged.
- Similarly, wording such as 'avoid, remedy and mitigate' in policies only paraphrases one component of s5, and provides little assistance to decision makers. It should be clear to readers of the plan and to interested residents the extent to which non-residential activities are likely to be acceptable in their neighbourhood, and under what circumstances.
Rules - activity-based approach
- Rules need to provide reasonable certainty for both communities and developers. Rules that result in large numbers of existing non-residential activities becoming non-complying and reliant on existing-use rights are likely to be resisted by affected landowners and the business community.
- Special provisions such as scheduling, site-specific permitted activity status, or rezoning could be considered for significant or established existing facilities in these circumstances. These techniques involve identifying existing activities on their sites and having special rules for their operation, protection or expansion.
- Give careful consideration to allowing some reasonable ongoing use and expansion of these activities while ensuring they do not detract from the character and amenities of the residential locality. Specific rules could be applied to ensure minimum setbacks, limiting large scale buildings, signage, etc.
- Failure to provide for larger scale non-residential activities elsewhere in appropriate zones is likely to result in pressure to establish in residential areas on the edge of existing business zones. In this respect a council needs to be realistic about retaining residential zonings in locations where this might be an anomaly, and where amenity values are already compromised.
- In an activity based plan there will be other rules or general activities (e.g. traffic and parking) that apply. These need to be adequately cross referenced.
- If particular categories of non-residential activities are to be discouraged (and this can be justified), give consideration to the consent category applied. If the Council decides a certain activity is unsuitable in a residential area, and is contrary to well focused policies, its categorisation as a non-complying, rather than as a discretionary activity, should be considered. New service stations in a quiet residential area are a potential example of such an activity.
- Controlled activity status will be inappropriate if the council anticipates there may be situations where consent should be declined as controlled activities must be granted under the RMA.
Rules - effects-based approach
In the case of effects-based plans, similar principles apply but are linked to the threshold level set in the rules. For non-residential activities threshold levels may include floor-space limits, traffic generation levels, requirements for continued on-site residential occupation, and noise levels. This approach requires a judgement as to the relative significance of non-compliance and the consequent activity status.
If an effects-based approach is adopted, rule provisions are more demanding to draft and have a particular need for policy clarity. Policies should use phrases such as 'the council will discourage non-residential activities generating traffic levels greater than that anticipated for residential use' rather than 'to avoid, remedy and mitigate the effects of traffic'.
Thresholds in effects-based plans are quantifiable standards that trigger consent. In activity-based plans they can form the basis of assessment criteria, without necessarily being in the form of a rule. A possible effects checklist is as follows.
- Floor-space threshold
- Noise threshold:
- on zone boundaries
- Traffic generation:
- by category of vehicle (total)
- hourly (peaks)
- heavy traffic
- On-site residential occupation
- Number of people employed (from offsite)
- Total site area for a non-residential activity (scale)
- Heritage and protected trees
- Size, number and design of signage
- Hazardous substances threshold
- Glare threshold
- numbers required
- maximum number threshold (scale)
- Location and safety of access point - standards
- Differentiation in rule thresholds by zone - according to sensitivity of the particular residential environment
- Adequacy of controls relating to certain existing non-residential activities in the residential area
- Specific provisions for any expansion of existing non-residential activities
- Setbacks from waterways.
A plan need not contain all of these standards, and may include any combination of them. 'Hybrids' between these two models may well be the most practicable approach.
With effects-based plans in particular, it is important that standards are not subjective to the point that the status of the activity is unclear.
Non-residential activities in residential areas are one of the main sources of complaints to councils. This reinforces the need for a clear policy framework in district plans to ensure that the public expectations as to what the plan can deliver are realistic. Where standards are set these must be legally certain, so that the plan can be enforced.
Assessment matters or assessment criteria can be included in plans to assist decision making on resource consents. Such assessment matters are in addition to and not a substitute for the matters in s104. Assessment matters are not required under s75, but will assist the decision-making process for controlled and discretionary activities, and may be taken into account under s104(1)(c). They are not policies, but provide more detailed guidance, particularly to an applicant as to the factors a Council considers is relevant when consent is required under a particular rule.
Assessment matters can enable the Council to address factors it considers important, but which are too subjective to qualify as rules. For example, assessment matters could take into account factors such as external appearance. This will enable Council to consider whether the non-residential activity looks residential in appearance and is of a similar scale and signal the relevance of this factor to developers.
If an activity-based approach is adopted, identified activities will be given particular status within zones (e.g. preschools as a discretionary activity). In this case, although rule drafting is easier, accurate definitions assume critical importance.
Some plans use generic categories (e.g. 'places of assembly') without defining them, or by describing them as comprising education facilities, preschools, spiritual facilities, etc. without defining them. This may lead to difficulties in administering the plan which is why clear definitions are often important.
'Home occupations' are almost universally provided for as permitted activities, although the threshold levels for the establishment as of right (e.g. floor space) can vary.