Regulatory vs. non-regulatory means of giving effect to structure plans
Consideration as to which principal means a structure plan is to be implemented needs to be given early in the structure planning process so that the appropriate timeframes, statutory requirements and consultation procedures can be put in place. The principal means of implementation may follow a regulatory or non-regulatory path, however the reality is that there will often be combination of both paths to meet the wide diversity of issues encountered.
Regulatory approaches
The decision of whether a Structure Plan needs to be given effect to (either in part of in whole) through provisions of a plan with statutory effect will be determined by a variety of factors. A regulatory approach may be favoured when:
In higher growth areas, there is a significant risk in the use of non-regulatory structure plan provisions due to the potential for market conditions to change rapidly and new developers coming into the area. This risk can translate into financial losses for councils and infrastructure providers who may have already invested in providing services which subsequently have to be redesigned, moved, or in some cases find the need for such services eliminated altogether.
A key consideration is that the Environment Court accords much greater weight to structure plans with statutory status.
Non regulatory approaches
There may be a wide range of stakeholders in the structure planning process, as well as a great diversity in the range of issues that need to be resolved. Not all of these can be dealt with through planning legislation so many structure plans as a matter of course have at least some non-regulatory component.
On occasion structure plans may be able to be given effect to without formalising structure plan provisions in a district plan. Such may be the case when:
- Where no additional infrastructure is to be provided, or there is certainty about the provision, timing and funding of infrastructure.
The advantage of non-regulatory approaches is avoidance of legal processes around establishing and processing Structure Plan requirements. Non-regulatory approaches are also more flexible and can be easier to change (if the complexity of stakeholder and provider relationships is low) and are therefore more adaptable to changing needs.
Giving effect to structure plans through district plans
In giving effect to structure plans through a district plan (and in some cases a regional plan or a combination) there are likely to be policies or rules which will relate to both subdivision and land use matters. Because of the greater understanding of the nature, scale and character of the area being structure planned, the provisions to be inserted in the plan will often be more specific than the generic subdivision and land-use controls.
Structure plans may for example dispense with generic lot size, earthworks provisions, and financial contributions specified for general use in a plan, and specify standards tailored to meet the objectives and design parameters of the area subject to the structure plan.
How provisions are inserted into the plan will depend on the structure of the plan itself (such as whether subdivision provisions are contained in a separate chapter from land-use controls associated with a particular zone). There are however two principal means:
The former approach offers the advantage of maintaining the integrity of the plan chapters as the “sole source” of provisions relating to particular issues and may reduce the amount of cross referencing required. However, it can also create confusion as to which policies and rules apply are to apply both inside and outside the area subject to the structure plan. Further confusion may be added if other structure plans are also contained in the plan and the distinction between them is not absolutely clear.
The latter approach of using self-contained sections avoids confusion between the provisions of the area being structure planned and those outside it. However great attention to detail is required to ensure the new section is cross-referenced appropriately to and from any provisions which lie in the more general chapters of the plan (such as those which may relate to subdivision) and the overall plan’s planning maps.
Regardless of the approach taken, it is important the provisions drafted convey clarity of intent, minimise ambiguity, and a within the same general style and format as the rest of the district plan.
Discuss draft provisions with those who will have to implement them (such as consent planners, engineers, and monitoring and enforcement staff). They can provide useful input as to appropriate wording, and can identify areas where ambiguity exists or controls will may be too weak to achieve the desired outcome.
Further guidance on writing plan provisions can be found in the guidance notes on Development of a policy framework and Writing provisions for regional and district plans.
