The existence or content of structure plans is not prescribed in New Zealand legislation.
Relationship with the Local Government Act 2002
The preparation and implementation of structure plans is influenced by the requirements of the Local Government Act 2002 (LGA).
Under section 93 of the LGA, councils are required to prepare a LTP every three years that describes the community outcomes for the relevant city/district/region, and setting out its priorities over the next 10 years. These, in turn, may act as a useful basis for preparing a structure plan (such that the structure plan can become a tool for implementing the LTP). When scoping the issues and objectives to be addressed by a structure plan, it is important to ensure there is consistency with the community outcomes described in the current LTP.
Amendments to the LGA in 2014 now also require councils to prepare an infrastructure strategy for at least a 30 year period, and to incorporate this into their LTP. Therefore there is a direct relationship between these strategies and structure plans. Inadequate infrastructure provision or unanticipated demand on existing infrastructure outlined in these strategies or associated asset management plans could act as a significant constraint to the development of structure plans. It will therefore be necessary to ensure that the impact on existing assets and services are taken into account when developing a structure plan and that appropriate mechanisms are identified to address any funding shortfall for the provision of future infrastructure (e.g. financial/development contributions).
Relationship with the Resource Management Act 1991
Structure plans represent one method by which councils can carry out their functions under sections 30 and 31 of the RMA.
They are a technique that has gained acceptance in the Environment Court as a way of promoting the integrated management of environmental issues, and providing for the wellbeing, health and safety of existing and future residents (see, for example, Omokoroa Ratepayers Association v The Western Bay of Plenty District Council and The Bay of Plenty Regional Council (A102/2004)).
Structure plans do not have any explicit legal status or statutory effect unless they are incorporated into a statutory planning document such as a district or regional plan (e.g. through policies, rules, or specific zoning). This is also the case for any supporting design guidelines or engineering codes of practice unless they are also incorporated into a statutory plan.
Incorporating structure plan components into district plans through a plan change must follow the process set out in Schedule 1 RMA. Furthermore, it must be supported by a robust s32 evaluation (for further guidance see A Guide to Section 32 of the Resource Management Act). Ensuring that the development of the structure plan considers a range of alternative concepts and follows good consultation practice will assist with development of district and regional plans and the supporting s32 evaluation and documentation.
Care needs to be taken when incorporating structure plans into RMA plans as there will often be matters a structure plan seeks to manage that are not relevant matters under the RMA (e.g. providing a full range of educational opportunities). To ensure that the overall context is understood when referring to documents that deal with non-RMA matters, RMA plans can explain this by way of an explanatory note.
Structure plans that are not incorporated into RMA plan may otherwise be considered as an "other matter" when assessing a resource consent under s104(1)(c) of the RMA, provided they are 'relevant and reasonably necessary to determine the application’. The weight given to non-statutory plans in resource consent processes is likely to be higher when a robust process has been followed, including extensive community consultation, research, submission, and hearing processes (see for example, Wainui Beach Protection Society v Gisborne District Council, A113/04 at para 47).
Relevant Case law
Several Environment Court and High Court cases have commented on the use of structure planning and the weight to be given to non-regulatory structure plans in subsequent RMA planning and consenting processes. The following cases are of particular relevance to structure planning and effectively conclude that non-statutory structure plans are a valid RMA planning method, but they will not have as much weight as statutory RMA documents.
Omokoroa Ratepayers Association v Western Bay of Plenty District Council and the Bay of Plenty Regional Council (A102/2004)
The appropriateness of structure planning as a resource management tool was commented on in this case.. The Environment Court did not accept the Omokoroa Ratepayers Association's case that the structure plan and zoning contained in Plan Change 20 was inconsistent with the RMA. The Court commented that structure plans support the purpose of the RMA, particularly for the integrated management of the effects of the use and development of land. Councils are free to adopt structure planning as a method to achieve the purpose of the Act and to give effect to the Act in its district.
Infinity Group v Queenstown Lakes District Council (C010/05)
In this case, the Environment Court commented on the Wanaka 2020 document, which was referred to in a submission on a variation and relied on by the Council to make changes to the variation. The argument was that it was not an RMA document, was not required to be consistent with Part 2 and does not provide a lawful basis for the alterations to the variation in question. In that context, the Court placed little weight on the Wanaka 2020 plan. The Court commented that whatever the value of the structure planning exercise, it is not a substitute for the well-established process under the RMA by which the public are entitled to notice of proposals to alter planning instruments, and have legal rights to take part in formal hearings about them.
Auckland Memorial Park Ltd v Auckland Council [2014] NZEnvC 9
This case related to appeals to three plan changes introduced by Auckland Council and it considered the Silverdale South Structure Plan (amongst other non-statutory documents) and whether it identified the intensity of development now proposed.
The Court considered the date of the structure plan (some 14 years old) and its non-statutory origin. It balanced this against the current statutory documents - in particular, the operative district plan (operative 2009-2011) and found that the structure plan was of little significance or help in relation to the current appeal. The Court also noted that the non-statutory origin of the plan also meant that it was not a document to be considered under s 74(2)(b)(i) of the Act.
Malory Corporation v Rodney District Council (CIV-2009-404-005572)
In a different context, the High Court considered the weight to be given to a structure plan which had not made its way into the District Plan, when rejecting a private plan change proposal under clause 25(4) of Part 2, Schedule 1 of the RMA.
The Court found that:
- The appellant’s proposed development had been considered and excluded from the final structure plan. The substance of the request had therefore been considered within the last 2 years (and therefore contrary to clause 25(4)(b) of Part 2, Schedule 1 of the RMA);
- The appellant’s proposed development was timed subsequent to the structure plan, and would require revisiting fundamental Auckland urban growth issues. The proposed district plan had not been finalised, and the plan change had the potential to subvert the planning process. It was therefore not in accordance with sound resource management practice (and therefore contrary to clause 25(4)(c) of Part 2, Schedule 1 of the RMA).
The significant weight given to the structure plan recognised that the appellant’s proposed development had been specifically considered during the structure planning exercise, which had been through extensive consultation and a council hearing before it was adopted.
