The value of National Planning Standards

Those who follow Wellington planning issues will know there is an ongoing dispute about the proper interpretation of the phrase ‘ground level’ in the Wellington City District Plan.

We now have a High Court decision on what this phrase means, as it is currently written in the plan. However, the dispute highlights the importance of having key terms clearly defined in RMA plans and the potential for confusion if there is variability in how terms are used throughout the country. It also underlines the cost and uncertainty that can arise from terms used in plans being open to different interpretations.

The Ministry for the Environment’s work on the new National Planning Standards may help address these issues.

The Wellington dispute began when Wellington City Council determined that a proposed children’s playground structure which effectively concealed an uphill neighbour’s view of the Wellington Harbour was a permitted activity. The structure was 4 metres high and 11 metres long.

The matter went to the Environment Court where it was determined on the basis of the Court’s interpretation of how the term ‘ground level’ in the Wellington City District Plan should be applied. Wellington City Council appealed the Environment Court’s interpretation of the term to the High Court.

The recent High Court decision, Wellington City Council v Aitchison [2017] NZHC 1264, held that, under the Wellington City District Plan, where there is a retaining wall on the boundary of a property a two-step process is required to determine the “ground level at the boundary”. First, the “ground level” will be the point where the front surface of the wall meets the ground. Secondly, the point “at the boundary” is where the ground level intersects with the boundary.  The Court held that this interpretation balances the need to facilitate new development with the need to protect the amenity of neighbouring properties.

Subject to the Council seeking to appeal to the Court of Appeal, this resolves the issue of the interpretation of the phrase ‘ground level’ in the current iteration of the Wellington District Plan.

The Resource Legislation Amendment Act 2017 empowered the Minister for the Environment to issue national planning standards which, among other things, enable the Ministry to direct local authorities to include specific provisions in their policy statements and plans. One of the matters the Minister must consider when deciding to prepare national planning standards is whether “it is desirable to have national consistency in relation to a resource management issue”. The first set of national planning standards must be approved by 17 April 2019.

The Ministry for the Environment has indicated that the first set of national planning standards will include definitions to be used in policy statements and plans, on the basis that definitions are one of the policy statement/plan components that will benefit most from standardisation. The Ministry’s discussion paper on national planning standard definitions indicates that ‘ground level’ is likely to be one of the terms defined and raises a number of questions about that approach to developing standard definitions proposed in the paper. Anyone has the opportunity to provide feedback on the discussion paper by 31 July 2017.

If a national planning standard is approved with a particular definition of ‘ground level’ to be used in all district plans, territorial authorities would need to amend their plans to include the definition, and make any consequential amendments, either within the timeframe specified in the standard or, if no timeframe was specified, within 1 year of the national planning standard being publicly notified.

Therefore, in 3 years from now we could have a consistent definition of ‘ground level’ used in all RMA district plans throughout the country. Provided that definition is easy to apply and unambiguous, disputes like Aitchison could become a thing of the past.