The category of activity - permitted, controlled, restricted discretionary, discretionary, non-complying or prohibited - should closely follow the requirements of the rule making power for District Plans in s76. Refer to the guidance note Writing provisions for regional and district plans for detailed information on writing rules. Careful consideration should be given to the definition of "site" and how this relates to the implementation of subdivision provisions and to land use controls.
a) Permitted activity subdivision
A major difficulty with the permitted activity category is that permitted activity standards and conditions need to be certain without any element of discretion. Setting subdivision conditions can often involve the exercise of value judgements and it can be difficult to state all the standards that might need to be covered as a permitted activity given the great variations in circumstances between different subdivisions. There can also be difficulties in monitoring and enforcing permitted activity subdivisions. Consequently, there is only very limited scope for this consent category for subdivision activity.
The permitted activity category may be appropriate for:
- Subdivisions with simple standards and conditions that are prescribed in the district plan, such as minor boundary adjustments and the subdivision of existing buildings where subdivision was envisaged and provided for at the land use consent stage.
- The conversion of tenure from cross-lease to unit title or fee-simple subdivision.
- A second stage cross-lease where all of the services and financial contributions were paid upon the first stage.
Even in these circumstances, great care would be required to anticipate likely standards applicable for such subdivisions, such as protection of easements.
b) Controlled activity subdivision
The controlled activity category gives certainty of an approval but allows control to be exercised in respect of matters nominated in the district plan. Any assessment of effects on the environment is confined to nominated matters only and conditions may be imposed on a range of specified matters. Unlike controlled activity land use applications, a controlled activity subdivision application can be declined in certain circumstances set out in s106. The district plan may also allow for non-notification of controlled subdivision applications.
For most subdivisions, a robust district plan will make it clear that the type of development which will follow subdivision is anticipated by the plan. If the district plan has clearly indicated standards such as minimum site size and shape, access and suitability of building platforms, then the controlled activity category may well be the most appropriate category within which subdivisions should be placed. This would avoid administration and compliance costs such as lot size or density concerns being the subject of a separate assessment on each and every subdivision.
The district plan can reserve control over the ability to impose conditions on such matters as future building location (and even building design, but only in certain sensitive environments), earthworks, landscape treatment, provision of access and utility services, and any financial contributions payable. A controlled activity status would not, however, allow a council to reduce or enlarge the scale of a proposed subdivision or the number of lots therein. For all controlled activities, the council will need to be certain of the infrastructure capacity for that area, and have a well-developed zoning and rules framework.
The controlled activity category may be appropriate for:
- Land uses which are already established, or will be established (for instance through a condition of land use consent), and the subdivision will not create any further development possibilities which will result in more than minor adverse effects. Minimum site size and shape controls may not be necessary if there is legal access and all necessary infrastructure is provided for.
- Subdivision that allows for an appropriate pattern and density of development that maintains the character and environmental quality of an area and where environmental standards can be readily set and met.
- Subdivision within commercial and industrial zones where there are no infrastructure capacity issues.
- Residential infill sites where the district plan zoning clearly envisages such development and the subdivision is in accordance with the density provisions of the zone. In such cases, minimum site size, shape and access width controls may in some cases not be considered necessary.
- Subdivisions in accordance with an established structure plan.
- Creation of lots for minor utilities, roading or reserve purposes.
- Boundary adjustments.
c) Restricted discretionary activity subdivision
The restricted discretionary activity allows discretion to be exercised over the matters specified in the District Plan. The restricted discretionary category gives applicants less certainty because consents can be refused. However, from a council's perspective it provides the option of refusal if an important standard is not met, and the imposition of conditions is not enough to mitigate any adverse effects. The district plan may also allow for non-notification of restricted discretionary subdivision applications.
The restricted discretionary category may be appropriate for:
- Instances where the performance standards in the plan allow some flexibility beyond the controlled activity standards over such matters as site size or shape.
- Developments within moderately sensitive landscape areas where the plan specifies discretionary criteria as to location of allotment boundaries in relation to existing features or topography, building platforms, access roads, etc.
- Developments which do not comply with detailed provisions of structure plans, and where public input has already been provided through plan reviews or plan changes establishing the zoning applicable.
- Subdivision of sites affecting places or objects of cultural significance or containing heritage buildings or protected trees.
- Subdivisions within areas prone to a moderate natural hazard risk.
- Rural subdivisions within close proximity to established intensive production activities.
d) Discretionary activity subdivision
The discretionary activity category enables wider discretion in considering the effects of subdivision. An application may be notified and consent may be refused. If the district plan has been prepared in a thorough manner, and clearly envisages subdivision subject to justified standards, then it should not be necessary to make wide use of the discretionary activity category.
However, the discretionary activity category may be appropriate for:
- Subdivisions creating sites of less than the normally-prescribed size and where the plan very clearly sets out the objectives, policies and criteria under which applications could be favourably considered.
- Subdivisions achieving heritage protection, providing 'environmental compensation' (e.g. protection of indigenous vegetation), and other potential trading or transferable right concessions.
- Developments within highly sensitive landscape areas, areas subject to a high natural hazard risk, or areas of high cultural or heritage value.
e) Non-complying activity subdivision
The non-complying activity category means that either the district plan will state the activity is non-complying, or the application does not meet the district plan's performance standards. Many district plans will impose a threshold, often in terms of site size, below which subdivision becomes a non-complying activity. In such cases it is very important for district plan policies in particular to clearly articulate how those thresholds have been arrived at, why it is important that they not be threatened; and why those thresholds apply in the relevant zone or area.
Non-complying subdivisions will be subject to the s104D test of either not being inconsistent with the plans objectives and policies, or having effects which are no more than minor. Such applications will not normally derive support from objectives and policies. Non-complying activity applications are often notified and consent may be refused.
The non-complying activity category should be used judiciously, but may be appropriate for:
- Subdivisions creating sites of less than the normally-prescribed size which are not anticipated within the policy framework of the plan.
- Development within areas subject to significant development constraints (e.g. absence of core infrastructural services, within air-noise contours of an airport, under high voltage transmission lines).
- Development which is contrary to wider strategies for urban consolidation.
- Subdivisions which propose significant variations to any pre-approved structure or concept plan.
f) Prohibited activity subdivision
The prohibited activity category means that there is no ability to apply for the particular type of subdivision once the rule is beyond challenge. The Environment Court has stated that the total prohibition of subdivision as a method of control should be used extremely sparingly in sustainable management terms.
The prohibited activity subdivision could be used in areas subject to serious risk of natural hazards and in relation to historic places to avoid cutting off the curtilage from a building.
