Zoning as a tool in Plans

Zoning is a long-used technique used to divide areas of land or water into distinct areas in order to manage effects, activities or uses. In Keystone Watch Group v Auckland City Council [2000] A7/2000, the Environment Court said the use of a ‘zoning technique’ is to “allow the district plan to create bundles of activities considered generally appropriate in each zone or area, in recognising the constraints of the environment and that some activities may not be appropriate in every location”.

While the terms ‘environments’, or ‘management areas’ are sometimes used in place of zoning, the principles and objectives are essentially the same, for example:

• management or separation of incompatible uses
• avoidance of hazards
• identification and management of areas where similar outcomes are sought or bundles of effects need to be managed.

The technique of zoning has been criticised by some as being too directive or inflexible, however the fact remains that differentiation of any regulations according to geographic areas results in something that is analogous to a zone. In many cases analysis of the criticism of zoning shows that it is the regulation rather than the zoning triggers that are at issue (not the idea of the zoning itself), or the way in which some councils have allocated or changed zoning that is of concern.

Legitimacy of zoning as a tool under the RMA

While there have been numerous Environment Court cases dealing with zoning, most have related to the appropriateness of a certain zone, or rules that the zone triggers. Few cases have challenged zoning as a tool for use in RMA plans, and none have found that zoning, as a tool or method, is inappropriate within the context of the RMA. But what is also clear from case law is that zoning is a technique or method to achieve the objectives and policies of a plan, and is not an outcome in itself.

Practice in zoning under the RMA

Do:

• treat zoning as being a method to geographically delineate those areas where certain effects are acceptable or not acceptable, or where certain management tools are to be applied
• test proposed zoning in terms of:

• its appropriateness in reflecting current uses
• whether the zoning is appropriate to achieve the purpose of the RMA and objectives and policies of the plan
• whether the proposed zoning achieves integrated management of the effects of the use, development, or protection of the land or water ; and
• whether it controls the potential effects of the use, development, or protection of the land or water.

Avoid:

• using zoning under previous plans as an automatic starting point without reviewing whether such zoning is still the most appropriate management approach under a new plan or plan change
• zoning land to allow an activity when the infrastructure necessary to allow that activity to occur without adverse environmental effects does not exist, and there is no commitment to provide it.

Scheduling as an alternative to ‘spot zoning’

In some cases existing uses within a particular zone are of a nature that would be inconsistent with the zone objectives and policies. While the existing character of the use can be recognised under RMA s.10, any changes to the activity may require multiple resource consents to be lodged to ensure its lawfulness. In the past some plans have introduced ‘spot zones’ that apply certain development opportunities and controls to just one or two sites to get around this problem.

The inherent danger in spot zoning is that the number of spot zones can quickly multiply and overly complicate the plan. An alternative approach is to ‘schedule’ certain sites to allow for their continued use and development, within certain parameters to ensure the acceptability of environmental effects. In George Ellis Transport Ltd v Dunedin City Council [2003] A161/03, the Environment Court considered some of the factors for adopting scheduling would include:

• agreements between stakeholders as to the use of the technique
• ability to identify particular sites
• ability to develop the formal standards and/or criteria for operation
• the nature of the activity and its scope
• potential impacts
• available resources on which scheduling would depend.

In Kamo Veterinary Holdings Ltd v Whangarei District Council [2003] A161/2003, the Court suggested that zoning “at such a ‘micro’ level is probably not generally to be encouraged, because of the complexities of considering a multiplicity of inter-acting effects if undertaken a lot”. In the Court’s opinion, a schedule could take the form of a table in the plan conveying the following information:

• scheduled site number (if there is more than one site on the schedule)
• applicable planning map reference (number)
• permitted activities for the site
• legal description of the site
• conditions applicable to the site and permitted activities.

This material would be accompanied by a general statement explaining the reasons for adopting the method and its purpose, together with such objective(s) and policies as deemed appropriate and explanatory material describing how the schedule operates.

Case law

An Application By Christchurch City Council [1994] C123/94: It is lawful for a district plan to contain a rule in respect of permitted activities having the form: “Any activity which complies with the standards specified for the zone” where the standards specified go to the effects which activities have on the environment rather than to their purpose.

Cornwall Trust Board v Auckland City Council [1997] A058/97. In considering the rezoning of land the test is whether the zoning is appropriate for the purpose of, and in terms of, the RMA. An argument based on whether an alteration to the zoning given to land under previous legislation is justified, is unsound. The Court accepted that when deciding on zoning it is usual to look at existing uses, but noted that the land in question had high environmental quality and amenity value. The Court found that the most appropriate zoning was that to achieve the objectives and policies of the proposed district plan.

Boon v Marlborough District Council W032/98 [1998] NZRMA 305. In assessing whether the council had achieved sustainable management through zoning in a proposed plan change, two questions are relevant:

1. Does the proposed zoning achieve integrated management of the effects of the use, development, or protection of the land?
2. Does it control the potential effects of the use, development, or protection of the land?

In looking at the benefits and costs of alternatives to zoning, the Court decided that zoning was not the most efficient, appropriate and effective means of exercising the Council’s functions in this case. There was an absence of a forestry-related industry requiring the zone to be set up, and other activities also zoned for the site compromised the sustainability of the industry for which it was intended. The proposed zone therefore failed to meet the requirements of RMA s.32, s.5(2), and s.7(b).

Horrocks v Auckland City Council [1999] A140/99. Whilst the concept of spot zones is generally undesirable, small transition zones are appropriate in resource management terms enabling as they do protection of amenities on the one hand and reasonable use of properties on the other (see also Kamo Veterinary Holdings Limited and Northland Shelf Company No 9 v Whangarei District Council [2003] A161/03 in regard to ‘scheduling’ as an alternative).

Wilkinson v Hurunui District Council [2000] C50/00. A rule must apply to a defined area of a district (usually defined by zoning). Consequently the framework of issues cited in Nugent [1996] NZRMA 481 needs to be amended slightly when the question is where a zoning or other line should be drawn. In addition to the requirements of s.74 and s.75, the other key issue in considering whether land should be included in a zone is whether the zoning achieves the objectives, or implements the policies of the proposed plan.

Hastings v Auckland City Council [2001] A068/01. In deciding the zoning of land, the previous zoning under the Town and Country Planning regime is not relevant. The test is whether the zoning is appropriate for the purpose of current legislation.

Golden Bay Marine Farmers v Tasman District Council [2003] W19/03. Allocation of the CMA for specific purposes via zoning was accepted as appropriate.

Fore World Developments Ltd v Napier City Council [2006] W29/06. While land may not be capable of supporting an economically viable farming activity, that does not automatically mean that some sort of residential zoning would become a ‘reasonable use’. The Court noted that “the choice of an appropriate zoning is driven by a matrix of factors in which such things as location, servicing ability, and the nature of the surrounding area may be as influential as the quality of the land itself”.

Fore World Developments Ltd. v Napier City Council [2005] It is bad resource management practice and contrary to the purpose of the RMA to zone land for an activity when the infrastructure necessary to allow that activity to occur without adverse environmental effects does not exist, and there is no commitment to provide it.

Garnett v Tasman District Council [2001] W073/01 In dealing with (amongst other matters) a challenge to use of zoning as a technique the Court found that there was “no evidence to suggest that the council’s approach to zoning rural land was anything other than appropriate with respect to the sustainable management of Tasman District’s resources”.