Proposed Plan Change 42 Rural Subdivision

Transcription

1 Proposed Plan Change 42 Rural Subdivision

2

3 MATAMATA-PIAKO DISTRICT COUNCIL Rural Subdivision Rule Review Plan Change Report July 2012 Contents 1.0 INTRODUCTION RURAL SUBDIVISION CONTROLLING RURAL SUBDIVISION OTHER MATTERS RESOURCE MANAGEMENT ISSUES FOR RURAL SUBDIVISION FRAGMENTATION OF RURAL LAND IMPACTS OF THE LAND RESOURCE BASE Land Versatility Land Productivity Land Use Capability Classification System DEMANDS ON EXISTING INFRASTRUCTURE, SERVICES AND COMMUNITY FACILITIES EFFECTS ON RURAL CHARACTER AND AMENITY, LANDSCAPE AND HERITAGE VALUES AND THE NATURAL ENVIRONMENT REVERSE SENSITIVITY EFFECTS MATAMATA-PIAKO DISTRICT APPROACH TO MANAGING RURAL SUBDIVISION RELEVANT ISSUES, OBJECTIVES AND POLICIES RURAL SUBDIVISION RULES SUMMARY OF RELEVANT PROVISIONS TRENDS AND PATTERNS Size of Existing Allotments Location of New Lots in Relation to Land Use Capability STRATEGIC DIRECTION RESOURCE MANAGEMENT ACT CONSIDERATIONS WAIKATO REGIONAL COUNCIL Waikato Regional Policy Statement Proposed Waikato Regional Policy Statement Sub-Regional Growth Strategy FutureProof CASE LAW Sanson Decision OTHER TERRITORIAL APPROACHES TO RURAL SUBDIVISION HAURAKI DISTRICT COUNCIL Proposed Subdivision Provisions 17 Page

4 5.1.2 Approach to Subdivision in the Rural Zone WAIPA DISTRICT COUNCIL Growth Strategy Operative Waipa District Plan Draft Waipa District Plan WAIKATO DISTRICT COUNCIL Waikato District Growth Strategy Plan Change 2 to the Proposed Waikato District Plan CONSULTATION, DISCUSSION AND FINDINGS FIRST ROUND OF CONSULTATION Process Outcomes SECOND ROUND OF CONSULTATION Process Outcomes FINDINGS (DISCUSSION) AGFIRST REPORT PROPOSED PLAN PROPOSED RE-ZONING BACKGROUND CHANGES SOUGHT CONSULTATION DISCUSSION 80 APPENDICES Appendix 1 Relevant Provisions from the Resource Management Act Appendix 2 Relevant Objectives and Policies from the Matamata-Piako Operative District Plan 87 Appendix 3 Relevant Provisions from the Proposed Regional Policy Statement 95 Appendix 4 Planning Maps of Proposed Rezoning Areas 101 Appendix 5 Maps of Subdivision Data within Matamata-Piako District between Appendix 6 First Round Consultation Records 109 Appendix 7 Second Round Consultation Records 185 Appendix 8 AgFirst Report 249 Appendix 9 Section 32 Assessment 269 Appendix 10 Summary of other Districts Approaches 291

5 1.0 INTRODUCTION The Matamata-Piako District (the District ) comprises a total area of 182,150 hectares of which 85% is used for agriculture and rural processing. Compared with other parts of New Zealand, the District contains a disproportionately high amount of Class I, II and III soils. These soils are among the most versatile and have been identified as being a finite resource which needs to be safeguarded from inappropriate subdivision, use and development. Increasing rates of lifestyle and other uneconomical forms of subdivision in the District s rural areas can create a number of resource management issues. For example, inappropriate subdivision in rural areas can fragment titles and withdraw land from rural production, introduce reverse sensitivity effects which can restrict the ability to use rural land for agricultural and horticulture purposes, and adversely impact on the character and amenity values of the rural area. There are a number of factors which have contributed to the growing demand for residential sites in rural settings including rising urban land values and a desire to live in a rural setting. The MPDC Growth Strategy ( Strategy ), adopted in September 2009, identifies as a vision that the long-term viability of the agricultural sector needs to be ensured. The Strategy recommends a review of the rural subdivision rules, which has led to this plan change. Some territorial authorities that are faced with similar issues have initiated changes or variations to their plans (i.e. Waikato District Council, Hastings District Council and Horowhenua District Council). Others have utilised the Resource Management Act 1991 ten year review process to introduce robust regulatory regimes aimed at addressing the adverse effects of rural subdivision (i.e. Hauraki District Council and Waipa District Council). This report covers the following topics: Introduction General Discussion of Resource Management Issues Overview of Matamata-Piako as a District Policy and Statutory Context Other Districts Consultation, Discussion and Findings Plan Provisions and Changes 1

6 1.1 Rural Subdivision Subdivision is a technical process involving the division of allotments, and in some cases the redefinition of boundaries, to create separate and new titles. The subsequent development and use of the subdivided land will depend on a range of factors including the type of land tenure, the land use zoning, the size and shape of the allotment, climate and soil type. The following diagram shows the indicative subdivision process: Balance / New Lot 16 hectares New Lot 8 hectares New Lot 8 hectares Parent Lot 32 hectares Lot 1 Lot 2 Lot 3 Subdivision has very few (if any) direct effects on the environment other than those resulting from road access. However, as subdivision is often accompanied by a property right to develop the land, regulatory controls tend to be concerned with the subsequent use and any actual or potential adverse effects associated with that use. The nature and scale of any adverse effects will depend on the specific environment, and nature and purpose of the eventual land use. 1.2 Controlling Rural Subdivision In New Zealand, subdivision is governed by the Resource Management Act 1991 (the RMA ). Territorial authorities are responsible for controlling subdivision (section 31(2)). The purpose of the RMA is to promote the sustainable management of natural and physical resources (section 5 of the RMA). To achieve this, the RMA focuses on managing the effects of activities rather than regulating the activities themselves. Intervention will only occur where an activity is likely to generate adverse environmental effects by way of a requirement to apply for a resource consent. Subdivision generally requires a consent under the RMA, unless it is expressly authorised by a national environmental standard, or by a rule in a district plan or proposed district plan (section 11 of the RMA). The RMA does not distinguish between urban and rural subdivision and considers both in the same way. A landowner does not immediately have a right to subdivide their property. Instead, the ability for a landowner to subdivide is determined through subdivision provisions that are provided for in the relevant district plan. The functions of territorial authorities are identified within Section 31 of the RMA. Of note, this section identifies that every territorial authority shall have the following function: 2

7 1(a) The establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district: 1(b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of (iia) the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land. The RMA also requires that district plans must give effect to regional policy statements and that they must not be inconsistent with regional plans. 1.3 Other Matters A national policy statement (NPS) is a planning document under the RMA that gives central government direction for making resource management decisions about nationally significant issues. Councils have to ensure that their plans give effect to a NPS. Examples of a NPS include Renewable Electricity Generation and Freshwater Management. National environmental standards (NESs) are regulations made under the RMA that prescribe technical standards, methods or requirements for environmental matters. NESs have the ability to capture wider benefits than is possible from decision-making at a regional or local level, by ensuring a nationally consistent approach, providing more certainty, and administrative efficiencies to the local plan development process. Each local or regional council must enforce the same standard, although it may impose stricter rules or bylaws if the national environmental standard explicitly allows for this. The Hauraki Gulf Marine Park Act 2000 provides a framework to integrate different agencies which impact on the Hauraki Gulf in the management of the Hauraki Gulf. The Act recognises the national significance of the Hauraki Gulf (section 7) and the management of the Haruaki Gulf (section 8). The Act requires territorial authorities to ensure that their plans give effect to with sections 7 and 8, to incorporate the matters of sections 7 and 8 into their planning and decision-making processes. 3

8 2.0 RESOURCE MANAGEMENT ISSUES FOR RURAL SUBDIVISION There is a tendency to view rural subdivision as being a negative activity. However, subdivision can provide both opportunities and costs for individuals and communities, and the environment. Subdivision can (amongst other things): Enable new primary production activities such as nurseries and horticulture to establish. Enable the creation of small-scale farm units and lifestyle-living blocks. Increase the landowner s equity in land. Be used as a mechanism to protect important natural features through restrictive covenants being placed on the title of new allotments. Enable different generations of a family to live in the same area/on the original farm. Increases the rural population base. Provide an economic benefit for the subdivider. Subdivision can also: Lead to fragmentation of rural land and a reduction in the availability of prime agricultural land and access to aggregate and mineral resources. Limit the land resource base (i.e. the use of the surface of the soil) and its ability to be used for productive purposes including the ability to use land for the production of food. Increase demands on existing infrastructure, services and community facilities, at a direct cost to the Council and therefore ratepayers. Impact on heritage, landscape and amenity values and the character of the rural environment through the establishment and presence of new dwellings and associated activities. Generate reverse sensitivity issues that arise from residential living occurring in rural areas. The above potential adverse effects are discussed below. 2.1 Fragmentation of Rural Land The successive subdivision of rural land into smaller lots can diminish opportunities to maintain larger rural holdings that are suitable for primary production. However, the creation of small rural allotments through subdivision may not necessarily reduce rural productivity as many farming units already comprise a number of land parcels. 4

9 Although, once separate titles are created and new land uses are established, the opportunity to amalgamate land to recreate larger rural lots is inhibited. This is because the existence of separate titles creates opportunities and expectations regarding the use of the land including a disincentive to continued investment in rural production activities which can have a negative effect on rural productivity. Furthermore, in order to support a diverse and changing population and to provide for a variety of activities, a range of allotment sizes in different locations and environments, including the rural environment are required. 2.2 Impacts of the Land Resource Base Many consider that New Zealand has a finite supply of high quality and versatile soils (i.e. LUC Class I-II) and that these soils should be retained for productive purposes such as agricultural and horticultural activities. Rural subdivision can have indirect adverse effect on the versatility and productive capability of the soil resource. For example, if land which contains high quality soils was subdivided and subsequently used for rural-residential activities, there is the potential irreversible loss of options for the use of that soil resource. The versatility and productivity of land are considered to be two separate, albeit linked aspects as discussed below Land Versatility In New Zealand, the concept of versatility is used to indicate the relative range of crops and land use systems that are feasible within the bounds circumscribed by climatic factors. Verstality is assessed in terms of physical characteristics and assumes that nutirent limits can be overcome. Nutrient levels are management dependent and tend to be crop specific. Productivity of land is not necessarily related to its versatility. It has been argued that the productive capacity of the land is the ability to produce, or to be a direct component of production. Consequently, when considering potential activities there are a number of land characteristics that are important and need to be considered including soil fertility and structure, water availability and site features, such as topography and climate, as well as size and shape of the landholding. As such, many areas of land can be extremely productive for a narrow range of crops or for a specific crop Land Productivity Section 7(g) of the Act requries decision makers to have regard to any finite characteristics of natural and phsycial resources. If productive land is considered to be finite resource, any activities affecting the ability of productive land (including subdivison) must be considered when making decisions under the Act. There is growing world demand for food and New Zealand is in a relatively good position to provide large areas of land for food production. The capacity of the land for those productive purposes will need to be managed in a sustainable manner. Technological advances, changes of preferences/tastes and market demands will impact on what land could be productive for. For example, grapes are being grown on land previously considered unsuitable for horticulture. Therefore the amount of land considered to have productive capacity may not be fixed. 5

10 2.2.3 Land Use Capability Classification System The Land Use Capability (LUC) system is the most common method for rating land in New Zealand. It arranges different types of land according to those properties that determine its capacity for permanent sustained production. There are eight LUC classes ranging in order of increasing degree of limitation or hazard to use and a decreasing order of versatility of use, from Class I to VIII. Within each LUC Class the land is assigned a subclass according to the type of limitation, such as erodability, wetness, soil limitations within the rooting zone or climate. It is generally accepted that Class I - III are the most versatile soils in New Zealand. 2.3 Demands on Existing Infrastructure, Services and Community Facilities Many rural areas are under threat of losing rural services such as school and community halls. Rural subdivision is sometimes perceived as an opportunity to increase the population base and economic activity in a rural area which will in turn support local services. However, as smaller lifestyle living lots are created in rural areas, urban services can often be expected to be made available to these lots. In the past, councils have experienced pressure to install, extend and/or upgrade services, including water supply, sewage disposal, street lighting, rubbish collection and roading. The costs associated with installing/upgrading these services can be high and may not always be recoverable through financial/development contribution policies. 2.4 Effects on Rural Character and Amenity, Landscape and Heritage Values and the Natural Environment Rural environments are typically characterised by large areas of open space and a low density of development and views of special features are often uninterrupted. These are some of the characteristics that make rural living attractive to current urban dwellers. Although subdivision itself has very few direct adverse effects on the environment, some subsequent land use activities can compromise or even destroy the heritage, landscape, amenity values or character of a rural area, and adversely impact the natural environment. For example, residential development results in the introduction of built (or physical) features such as dwellings and curtilage, impervious surfaces, fencelines, mailboxes which cumulatively may erode the open, natural character and amenity values that are associated with the rural environment. 2.5 Reverse Sensitivity Effects Reverse sensitivity is a situation that arises when a new and incompatible activity is introduced into an environment which has the potential to limit the operation of existing and lawfully established activities. It is particularly relevant to rural activities which may have effects that extend beyond the boundaries of the site and which may not always be able to be avoided or mitigated. Rural reserve sensitivity issues may relate to odour, smoke, noise, dust, spray drift and hours of operation. For rural areas, the most common example is where residential activities (i.e. a sensitive activity) establish within proximity of existing primary production activities. In some instances, these activities may become the subject of 6

11 the newcomer s complaints. As such, constraints may be imposed on existing rural activities that limit their operation and diversification as the internalisation of these nuisance effects is not practicable or possible. 7

12 3.0 MATAMATA-PIAKO DISTRICT The Matamata-Piako District is characterised by large areas of rural land which primarily contain pastoral and arable farming activities. Rural activities and associated support services and manufacturing account for approximately 45 percent of the District s economic activity. A key and unusual feature of the District when compared with other parts of New Zealand is that it has a disproportionately high amount of Class I, II and III soils (refer Appendix 8). These soils are considered to be among the most versatile and have been identified as being a finite resource which needs to be safeguarded from inappropriate subdivision, use and development. 3.1 Approach to Managing Rural Subdivision Rural subdivision in the District is primarily controlled through rule provisions contained within the Matamata-Piako District Plan ( District Plan ). Currently there are three general approaches within the District Plan to controlling subdivision in the rural environment. Control is centred around the size of the proposed allotments, whether the subdivision will occur on high or low quality soils and the age of the Certificate of Title. This is expanded upon further in the following sections. 3.2 Relevant Issues, Objectives and Policies The relevant issues, objectives and policies pertaining to rural subdivision seek to: Manage urban growth to avoid adverse impacts on high quality soils and to prevent the rural land resources being used for non-productive purposes and particularly those that could result in the fragmentation of titles or compromise the productive capability of rural land. Manage incompatible activities and associated reverse sensitivity effects through separation distances between such activities. Ensure that reasonable measures are implemented to internalise any nuisance effects associated with rural activities whilst recognising that this may not always be possible and some level of effect may have to be tolerated. Protect, retain and enhance outstanding landscapes and other special features. Maintain and enhance rural amenity through standards that relate to privacy and daylighting. The relevant objectives and policies are included in Appendix 2 of this report. 8

13 3.3 Rural Subdivision Rules Table 2 below identifies the subdivision provisions in the current operative District Plan for the Rural Zone and their activity status. Table 2: Rural Subdivision Rules Subdivision Provision Description Activity Status Rural lot Low quality soils Rural Residential Boundary adjustment Minimum lot size of 8 hectares. Therefore a lot of at least 16 hectares is required to subdivide. Minimum lot size of 5,000m 2 of Class IV to VIII soils is required. One lot of 2,500m 2 to 1 hectare in area allowed, 8 hectare balance lot. Requires title issued prior to November Will result in the two new lots with substantially unchanged frontages and areas. Controlled Discretionary Discretionary Controlled Bonus protection lot Protection (physically and legally) of 1 to 15 hectares of feature of significance, one residential lot may be created of 2,500m 2 to 5,000m 2. Over 15 hectares an additional house site may be provided. Discretionary Bonus reconstituted lot A boundary adjustment between two contiguous titles that existed prior to November 1996 where one title has a maximum area of 5,000m 2 for one dwelling and the balance lot has an area of at least 8 hectares. Discretionary Activities with resource consent Excludes dwellings. Discretionary Works and Network Utilities - Discretionary 9

14 3.4 Summary of Relevant Provisions A summary of the relevant rural subdivision rules for the District are provided in Table 3 below. Table 3: Matamata-Piako District Council - Rural Subdivision Rules Rule Type Activity Status Minimum Lot Size Maximum Lot Size Average Lot Size Other Subdivision Rules Number of Dwellings per Site Rule Subdivision in the Rural Zone is generally a Controlled or Discretionary Activity. Boundary adjustments and bonus reconstituted lots are a Controlled or Discretionary Activity. Subdivision to create a lot to accommodate an activity for which land use consent has been granted is a Discretionary Activity. Where a controlled activity does not meet all the subdivision provisions of Sections 6 to 12 it shall be a deemed a Discretionary Activity. Rural lots 8 hectares Low quality soils 5,000m 2 Rural residential 2,500m 2 Protection lot 2,500m 2 Rural residential one hectare Protection lot 5,000m 2 There is no maximum net lot area for the other types of subdivision. N/A no requirement as such. Shape factor Each lot shall be capable of containing a rectangular area no less than 10 metres on one side and 15 metres on the other side, for building purposes, free of impediments. One dwelling per property is a Permitted Activity. One dwelling per Certificate of Title for a rural lot (existing at November 1996) less or equal to 4.2 hectares in area is a Controlled Activity. One dwelling accessory to an approved dwelling directly associated with farming or production forestry is a Controlled Activity. Two or more dwellings accessory to an approved dwelling directly associated with farming or production forestry is a Discretionary Activity. A dwelling for a dependent person(s) provided that the gross floor area does not exceed 50m 2, be relocatable, and shall be relocated when no longer required (with a restrictive covenant on the title) is a Permitted Activity. All dwellings in the Kaitiaki (Conservation) Zone are a Non-Complying Activity. 10

15 Table 3: Matamata-Piako District Council - Rural Subdivision Rules Rule Type Papakainga Housing Rule If the site is subject to an Iwi Housing and Marae Development Plan, housing is a Permitted Activity. If there is no approved plan, housing is a Discretionary Activity. 3.5 Trends and Patterns Size of Existing Allotments There are 5,217 rural zoned properties within the District which have an average area of hectares. 1 Table 4 below identifies the existing rural zoned lots within the district in respect of area. The areas have been grouped by category being: up to 4 hectares, 4 hectares up to 8 hectares, 8 hectares up to 16 hectares, 16 hectares up to 40 hectares, 40 hectares up to 80 hectares and over 80 hectares in area. The table identifies that the largest proportion of lot sizes within the rural zone are less than four hectares (40%) and over 40 hectares (29%). It should be noted that in the two groupings over 40 hectare there is a range of size with two lots being over 750 hectares in area as the upper extent. Table 4: Rural Zone Lots, as at February 2010 Total Number Total Area (ha) Average Area (ha) Under 4 hectares 2,076 1, to 8 hectares 427 2, to 16 hectares 409 4, to 40 hectares , to 80 hectares 1,065 60, Over 80 hectares , There are 2,305 existing lots 16 hectares or greater in area. The existing rural zone subdivision rules, irrespective of soil quality or age of title, allows for a minimum parent lot size of 16 hectares. On the basis that, as a controlled activity, a minimum lot size of 8 hectares is required, theoretically those 2,305 lots would be able to be subdivided. Incorporating an assumption that no area is excluded for shared accesses, for example, a theoretical total of 16,096 new lots (including the balance area) may be created, which is 13,791 additional lots. Maps attached as Appendix 5 have been prepared that identify the location of rural subdivisions undertaken in the district between 2005 and 2010 and also identifies the size of lots created. A total of 537 new rural lots have been created. Of these by far the greatest majority were under four hectares in area, being 249 new lots (46%). 1 Calculations exclude lots less than 100m 2 in area. 11

16 To expand upon this data, this map has been overlaid with the soil class map for the District, attached as Appendix 5. It shows that new subdivisions in the last five years have been spread throughout the District. There appears to be no clear patterns in terms of the location of new lots from these maps Location of New Lots in Relation to Land Use Capability Table 5 below identifies the location of new lots created in the last five years in terms of lot size and quality of soils. A total of 427 new lots have been created on high quality soils with associated future development anticipated on those lots removing particular land areas from being productive in a rural producing capacity. Table 5: Number of Lots Created Between 1 July 2005 and 30 June 2010 Lot Area Class I to III Class IV to VIII Total Under 4 hectares to 8 hectares to 10 hectares to 25 hectares to 40 hectares Over 40 hectares Total Note: It is noted that some of these lots may have resulted from boundary adjustments, or are in areas that have subsequently been rezoned rural-residential. 12

17 4.0 STRATEGIC DIRECTION Managing rural subdivision was recognised in and addressed as part of the Matamata-Piako District Council Growth Strategy (the Strategy ) which was adopted by Council in September This district-wide Strategy seeks to ensure that future urban growth and development is managed in a sustainable manner i.e. new urban growth is directed to the most appropriate locations. As part of its vision, the Strategy seeks to ensure the long-term viability of the agricultural sector by preserving rural lifestyle and landscapes, protecting farm land and addressing the depopulation of the rural area. To enact this vision, the Strategy recommended a review of the rural subdivision rules, and highlights the need for robust management of the effects of horticulture and intensive farming on rural amenity values. Growth strategies which have been prepared by other local government organisations have highlighted similar issues and recommendations regarding the impacts of rural subdivision. Growth strategies tend to focus on ensuring that urban development on productive soils is avoided by redirecting growth to existing cities, towns and villages and implementing restrictive management approaches for subdivision outside of defined urban boundaries and on productive soils. However, they have little or no legal effect under the RMA. In order to give them legal impetus, both regional and territorial authorities implement these strategies and policies through changes to operative district/regional plans or variations to proposed regional/district plans and as part of a regional/district plan review process. For example, some local authorities, including Waikato District Council, Hastings District Council and Horowhenua District Council have initiated changes or variations to their first generation plans. Others, including Hauraki District Council and Waipa District Council have utilised the Resource Management Act 1991 ( RMA or the Act ) ten year review process to introduce robust regulatory regimes aimed at addressing the adverse effects of rural subdivision. 4.1 Resource Management Act Considerations As alluded to in earlier sections of this report, rural subdivision is primarily controlled through provisions contained in a district plan. The RMA provides for a hierarchy of policy statements and plans to guide resource management activities and decision making. These include, at the regional level, regional policy statements and regional plans, and at the territorial level, district plans. The Act requires that district plans must give effect to a regional policy statement and not be inconsistent with a regional plan. In addressing the impacts of rural subdivision it is important to understand the strategic direction that the Waikato Regional Council is pursuing in terms of soil conservation and land management. 4.2 Waikato Regional Council The Waikato Region, of which the Matamata-Piako District is part of, covers approximately 9,325 square kilometres. The land resource of the region which contains about one-quarter of New Zealand s high class soils is the basis of the region s economy. 13

18 Waikato Regional Council is charged with the integrated management of natural and physical resources of the Waikato Region including the management and conservation of the region s soil resource. To do this, objectives, policies and methods are provided in the Waikato Regional Policy Statement and specific rules controlling the use of the soil resource are provided in the Waikato Regional Plan Waikato Regional Policy Statement The Waikato Regional Policy Statement contains an overview of the significant resource management issues for the region and identifies policies and methods to achieve integrated management of the region s natural and physical resources. The objectives and policies of the RPS aim to maintain versatility and productive capacity of the Region s soil resources (Objective 3.3.9, Policy One). However, the purpose of these provisions is on the effects that primary production activities have on the soil resource rather than urban development Proposed Waikato Regional Policy Statement The RPS is currently being reviewed as part of the RMA ten-year review process. A Proposed Waikato RPS (Proposed RPS) was notified in November 2010 with Hearings being undertaken in early-mid The Proposed RPS seeks to provide greater guidance and control in terms of directing future urban growth to identified areas and controlling residential development in rural areas and particularly in areas identified as having high class soils. The Proposed RPS contains a more robust resource management regime which aims to: Restrict urban and rural-residential development on high class soils and restrict the level of impermeable surfaces on these soils. Retaining high class soils for primary production activities and to actively encourage the amalgamation of small titles. Direct urban and rural-residential development to soils of lesser versatility. It also includes a definition of High Class Soils as follows: (T)hose soils on Land Use Capability Classes I and II (excluding peat soils) and soils on Land Use Capability Class IIIe1 and IIIe5 classified as Allophanic Soils using the New Zealand Soil Classification. Relevant provisions from the Proposed Regional Policy Statement are included as Appendix 3 to this report Sub-Regional Growth Strategy FutureProof FutureProof is a joint project which was set up and adopted by the Waikato Regional Council, and Hamilton City, Waikato and Waipa District Councils in conjunction with the New Zealand Transport Authority, Matamata-Piako District Council and tangata whenua to consider how the Waikato region should develop into the future. FutureProof was developed under the requirements of the Local Government Act 2002 and it is being implemented through a variety of mechanisms including through changes to district plans. 14

19 This Strategy recognises the growth pressures being experienced in the Waikato-Hamilton-Waipa sub-region, identifies a number of management issues and adverse effects arising from current growth patterns and presents a strategy that accommodates an approximate doubling of the sub-region s population over the next 50 years including a settlement pattern. FutureProof specifies a review of the rural subdivision as a priority action and specifies that ongoing ruralresidential subdivision should be directed to identified areas where it will not detract from rural or natural character, protects versatile and high quality soils for primary production, maintains the rural character of the countryside and protection of rural areas from urban development and minimises the loss of highly productive land Matamata-Piako s role in the Strategy is limited as the area does not cover the Matamata-Piako district. Rather it is a contributor to the project (as a neighbouring Council) but not necessarily required to adhered to it. 4.3 Case Law There is case law that relates to versatile soils, rural amenity and reverse sensitivity. In respect of soil versatility the decision of G and C Gentry and T and D Lawton v Waikato District Council (A118/99) related to the rezoning of approximately 17 hectares of high quality soils held in two Certificates of Title from Rural Zone to Rural Residential Zone. It would result in 20 lots approximately two hectares in area. It was considered that the preserving the versatility of the soil for future generations was an important factor in upholding the Council decision to decline the application. The site of the proposed rezoning was on the edge of an existing village and abutting on at least one boundary the Residential Zone. In the decision the Court stated the following: In our view, the fragmentation of this land which is highly versatile farm land of high quality soil in a relatively large holding, would be contrary to sections 5(2)(a) and 5(2)(b) of the Act. Subdivision for ruralresidential development would reduce the versatility of the land and prevent the development of productive use of the soil resource. It would also be failing to safeguard the life-supporting capacity of the soil. Fragmentation of this land will have an adverse effect on the ability of the soil on the site to provide for the needs of future generations. As the plan recognises, the adverse effects of fragmentation on the future utilisation of the soil cannot be remedied or mitigated. Rezoning this site will, in our view, enable the fragmentation of the land and prevent the efficient use and development of the soil resource in the future. Maintaining the land as a rural entity will retain opportunities for future generations to use the soil as they see fit to provide for their needs. The strategy in the district plan seeks to safeguard the capacity of rural land, and high quality soils in particular, to produce food, fuel and fibre to meet the needs of this and future generations. The Plan does not set out to protect high quality land as an end itself. Rather the Plan considers high quality soil within the context of all the soil in the district and adopts a policy that seeks to avoid adverse effects of activities causing irreversible changes to that soil resource. As identified in Olliver v Marlborough DC (W054/04) the objectives and policies of a plan are important in achieving the purpose of the Resource Management Act It was considered that it was the level of direction and requirements within the objectives and policies which reinforced Council s view that development should not occur until the appropriate services were available. 15

20 The issue of reverse sensitivity is an aspect of the rural zone which requires consideration. The Environment Court case of Auckland RC v Auckland CC (A010/97) was in relation to reserve sensitivity and whether it was appropriate to provide for reserve sensitivity in a district plan. Under the provisions of the Resource Management Act 1991, territorial authority functions include integrated management of the effects of the use of the land and the control of actual or potential effects of the use of the land. The judge stated that to reject provisions of the kind proposed, on the basis of leaving promoters to judge their own needs, of not protecting them from their own folly, and of failing to consider the effects of those who may come to the nuisance, would be to fail to perform the functions prescribed for territorial authorities. The issues associated with reverse sensitivity and nuisance effects cannot be ignored in the formation of provisions and these potential adverse effects be considered. Visual character of the landscape and the ability and capacity of the landscape of the site and its surrounds to absorb further development was discussed in Copland v Queenstown Lakes DC (C003/05), with one of the conclusions being that the additional development from the subdivision would represent further domestication of the landscape, and that the existing natural character would be further compromised. The built form of the dwelling, the orientation of the dwelling, which were both unknown factors, in addition to the building platform, the ability of landscape planting to mitigate visual effects, in terms of growth periods and success rates of plants, and additional, and on isolation, minimal features such as an additional mailbox, rubbish bags on collection day, would contribute to an unacceptable level of cumulative effects. It is noted that the site was within an identified visual amenity landscape area Sanson Decision Sanson v Matamata-Piako District Council (NZENVC 165) 17 June This was a proposal in the Matamata-Piako District to create four lots between 5,507m 2 and 8,050m 2 with a balance of 10.89ha. The application was a noncomplying activity. The judgement includes the following comments. Para 25 In terms of taking land out of productive use we would agree that losing 10ha, or even 13 ha, taken as a single instance is unlikely to have significant direct adverse effect, locally, regionally or nationally. But the cumulative effect of the loss of even that much cannot be ignored, especially when such outcome conflicts with the relevant Plan provisions Further the lodgement goes on to state in para 28 Putting all of that together no great analysis of the provisions is required. It is hard to imagine that any given proposal could more clearly conflict with, or in the words of S104D be contrary to the objectives and policies of this Plan. There is no avoiding the stark fact that this proposal allows the coverage of such sites, and it would be directly responsible for fragmenting titles and establishing houses on such soils, the outcome would be exactly the opposite of what the Plan says is sought. This sets a clear message, that even before this plan change, that protection of soils from fragmentation is provided for in the Plan. 16

21 5.0 OTHER TERRITORIAL APPROACHES TO RURAL SUBDIVISION Different district plans can have varying subdivision provisions although the land may have similar characteristics. The RMA requires that territorial authorities ensure that their district plans are consistent with the district plans (or proposed district plans) of adjacent territorial authorities and that cross boundary issues are addressed (section 74(2)(c) and (f)). Adjoining territorial authorities should work together on preparing district plan provisions in adjoining areas with similar/same characteristics adjacent to common boundaries, particular when considering urban growth. This report has investigated the rural subdivision provision of three of the territorial authorities which immediately adjoins Matamata-Piako district, Waipa (south-west), Hauraki (north) and Waikato district (west). At present, all three district councils are in the process of reviewing their district plan provisions relating to rural subdivision. A summary of these is provided below, further details are contained in Appendix Hauraki District Council Hauraki District Council (HDC) notified the Proposed Hauraki District Plan in August As part of the plan development process, HDC chose to review and make significant changes to the district plan s rural subdivision provisions. The retention of highly productive land for productive purposes was a priority in the Operative District Plan. The overall objective was to limit fragmentation of productive land and maintain the open rural character. However, the Council is seeking to: Allow for population growth and lifestyle properties in areas that are not so versatile for productive purposes. Retain the Hauraki Plains as predominantly a dairying region. Allow the good land in the Waihi Basin to be available for a wide variety of productive uses such as horticulture as well as dairying Proposed Subdivision Provisions Rules relating to this were reassessed and amended through Plan Change 4 to the Operative Hauraki District Plan in Despite this, Council considers that further amendments are required to better achieve the overall objective and to improve the workability of the rules for Council and subdividers alike. To address the perceived shortcomings within the operative plan, the proposed plan aims to tighten the rules around rural subdivision and subsequent uses of that land to provide greater protection to high quality soils and to ensure the best use of that land. The main changes are: Increasing the minimum subdivision standard on the Hauraki Plains from 6 to 40 hectares. Retaining the minimum subdivision standard in the Waihi Basin at 6 ha. Outside Plains & Waihi Basin provide for lifestyle lots up to 5 lots from one property, otherwise retain the 40 ha minimum. 17

22 Activities outside those directly related to rural productivity will be subject to resource consent in these areas. The key issue has been identified as being the protection of the productive capacity of high quality land but to redefine the approach to geographic areas (i.e. Plains and Waihi Basin) rather than strict adherence to Class I-III land. Standards for both subdivision and development have been received to further restrict subdivision to larger lots and to ensure that land is not compromised by building coverage. Small lot subdivision is still to be provided within high quality soil areas, provided that productive land is not taken out of production. Standards for subdivision of hill country (lifestyle) are to be reviewed with respect to enabling longer accessways, discouraging rows of houses along the road frontage and lesser road upgrading standards. Standards are to be reviewed to encourage subdivision that includes covenanting/protection of indigenous vegetation (i.e. tradeable development rights) Approach to Subdivision in the Rural Zone With regard to subdivision in the Rural Zone, the rule provisions contained within the Proposed Hauraki District Plan differentiate between: The Plains and Waihi Basin Areas and All Other Rural Areas. The creation of general and lifestyle lots. The Plains and Waihi Basin Areas are considered to have high productive capability. The creation of lifestyle lots within these areas are generally not permitted on land with high productive capability unless the site is physically separated from the parent lot and of such a size and shape that prevents its efficient management as part of the parent title. Lifestyle lots are designed to meet the needs of those people who require a certain amount of land for horticultural and/or agricultural activities. Lifestyle lots should not compromise the potential of the District s productive land to be used for a range of alternative productive activities. Therefore, Lifestyle lots are not permitted on land with high productive capability (Waihi Basin and Plains Areas) unless the site is physically separated from the parent lot and of such a size and shape that prevents its efficient management as part of the parent title. 5.2 Waipa District Council Growth Strategy The Waipa District Growth Strategy (Growth Strategy) was developed as part of the Waipa District Council s Waipa 2050 Project. The Growth Strategy is consistent with FutureProof in that it aims to redirect the majority of growth to defined towns and villages with the prospect of a more restrictive regime in the rural areas. The Growth Strategy is providing a key input to the preparation of a full review of the District Plan. 18

23 The Growth Strategy adopts an integrated approach to managing rural subdivision by: Identifying defined locations for rural-residential development primarily those areas around existing rural villages. Identification in the District Plan of those situations and/or locations where rural living is not suitable. Tightened subdivision controls around protecting elite soils and access to aggregate and mineral resources and defining the locations within the rural environment where development can and cannot occur. Development of an inventory of approved land uses in areas where it is deemed necessary (i.e. within sensitive receiving environments). Use of rural-residential transferable development rights and other mechanisms in appropriate locations to provide for preservation and enhancement of nature areas/features. The District Plan will provide the criteria within which the ability to subdivide and develop within the rural area will be based. The Growth Strategy will provide the basis from which those controls will be developed Operative Waipa District Plan The current Waipa District Plan was made operative in 1997 and the Council is currently undertaking a full review of the District Plan and a Draft District Plan has been developed. The Operative District Plan has a minimum net lot area of 25 hectares for new lots within the Rural Zone. They have identified the following as the main changes to the District during the period the Plan was made operative: There's been a high rate of growth, but not necessarily in the right places. More than a third of the District's growth has been in rural areas. There's a growing desire to maintain the unique character of our towns and villages. Rural subdivision is taking more of our high quality soils out of production. Our population is ageing and that's driving a growing demand for different types of housing Draft Waipa District Plan Council released the Draft Waipa District Plan for comment in October The Draft Plan has been developed under the FutureProof policy framework and it has been influenced by the Waipa 2050 District Growth Strategy, Town Plans and the Council s Environment Strategy. Council is proposing to consult with those stakeholders who provided comments on the Draft Plan before finalising the Proposed District Plan for formal public consultation. The Draft District Plan has incorporated an average net lot area of 40 hectares, with a minimum net lot area of 2,500m 2 as a Restricted Discretionary Activity within the Rural Zone. Lots can be created using the transfer of development rights, from the creation of environmental protection lots, public benefit lots, and the amalgamation of more than two existing lots, to areas of low class soils, specified areas identified near existing settlements. Relevant objectives and policies relate to the efficient use of land, promotion of primary production in rural zones, 19

24 retention of rural land for production (high quality soils), efficient servicing and protection of the natural environment. 5.3 Waikato District Council Waikato District Growth Strategy Waikato District Council adopted the Waikato District Growth Strategy in July The aim of this Growth Strategy is to reverse the trend of 80 percent of development occurring within rural areas and direct such growth towards sustaining and growing the District s townships and identified villages and their services. The Strategy identified a need to protect the District s critical environmental resources such as versatile soils, productive lands and environmental assets, whilst retaining opportunities to access minerals, generate power and retain recreational development opportunities. It specifies growth patterns within the District and seeks to ensure that development occurs in accordance with identified settlement patterns (areas of future urban growth). This involves providing tighter controls over the remainder of the rural environment to prevent urban sprawl, maintain the character and amenity values of rural areas and to safeguard rural areas for rural production activities. The first step is to reduce the amount/rate of rural subdivision through Plan Change 2/Variation 16 to the Proposed Waikato District Plan. The second step is to plan for urban expansion through a series of structure plans Plan Change 2 to the Proposed Waikato District Plan Plan Change 2 (formally known as Variation 16) was aimed at implementing the Council s strategic planning objectives with an aim to reduce the amount of rural subdivision and residential development in the Rural and Coastal Zones and anchors the framework for managing growth in the District. It was notified on 2 October 2010 and the decisions on the submissions were notified on 19 November The key issue the plan change was aiming to address was how the District Plan provides some direction for strategic growth, however it also provided for a significant amount of rural subdivision. Provisions in the current District Plan would enable the number of Certificates of Title in the Rural Zone to increase to 22,000 (from 6,500 in 1998 and 13,000 in 2010). The following key resource management issues have been identified: There is a need to align the District Plan with the Waikato District Growth Strategy, FutureProof and the Waikato Regional Policy Statement. A need to protect the productive use of rural land and ensure that any reverse sensitivity effects on existing rural activities associated with new lifestyle owners wanting a quiet rural lifestyle are avoided. Ensure that subdivision and development is directed towards growing existing towns and settlements or in areas that are zoned for population growth (urban and Country Living Zones). The provision and efficient use of services and infrastructure is recognised. 20