December 2023

The Resource Management Act 1991 (RMA) allows for any person to make a request for a district plan to be amended. This is known as a private plan change. In this article we explain what a private plan change is, and what the process involves.

District plans govern land use throughout New Zealand. Under section 79 of the RMA, councils must initiate a process to review their district plans every 10 years. This is known as a plan change. During this process, district plan rules can be amended or replaced, and new rules can be introduced.

However, a district plan can also be altered outside of the standard council-initiated process. Under Schedule 1, Clause 21(1) of the RMA, any person can seek changes to a district plan through a private plan change. A private plan change allows a person to apply to change existing provisions of a district plan immediately, rather than waiting to make submissions on a proposed plan under the standard council led plan change process.

A private plan change is typically an application made by a developer to council to make a range of changes to a large section of land to enable a development to occur. A common use of a private plan change is the rezoning of land to provide for more residential development, or the creation of a new town development.

The benefit of a private plan change is that someone other than council sets the start time for the plan change. An applicant needs to provide all of the necessary information to council in order for the application to be granted and for the district plan to be amended accordingly.

What does the private plan change process involve?

A private plan change can take anywhere between one to two years to process from start to finish. Below we outline the typical steps in the private plan change process under Schedule 1 of the RMA:

1. The applicant and council have a pre application meeting to understand what constraints and information will be required to initiate the plan change.
2. The applicant then lodges a private plan change application with council. This application must include:[1]
   • an explanation of the proposed plan change;
   • a ‘section 32’ report which considers the appropriateness of the plan change,  and has a cost benefit analysis of the environmental, economic, social, and cultural effects of the plan change; and
   • an assessment of the environmental effects of the proposal.
3. Council will then process the application. Within 20 working days of receiving the application, council may request further information from the applicant.[2] If council determines that sufficient information has still not been provided after receiving the further information, it may request additional information within 15 working days.[3]
4. Within 30 working days of receiving the private plan change application or any additional information, council will then make its decision whether to accept, adopt or reject the private plan change request.[4] By accepting the request, council agrees the private plan change can proceed to notification. If council adopts the private plan change request, it continues the process as if it was a council-initiated plan change and will bear the cost of managing the plan change from the date that it adopts it. If council rejects the request, the private plan change application does not go ahead. Council may only reject the request if it is frivolous of vexatious, or the request has already been considered in the last 2 years.[5]
5. Council must inform the applicant of its decision within 10 working days of the decision being issued.[6]
6. A person who made a request for a private plan change may appeal the council’s decision to the Environment Court within 15 working days of receiving the decision.[7]
7. Within four months of making its decision, council must publicly notify its decision to accept the plan change and allow submissions and further submission from the public on the application.[8]
8. Members of the public will then have 20 workings days after the application is notified to make a submission on the application.[9]
9. A hearing will be held (unless there are no submissions received). The applicant and all submitters may present at the hearing, and an officer will present a report under section 42A of the RMA assessing the requested private plan change and the various submissions with a recommendation to adopt or decline the private plan change request.
10. Following the hearing, council will publicly notify its decision on the private plan change.
11. Any submitter to the private plan change may appeal the council’s decision to the Environment Court within 30 working days of the decision being made.[10]

Will private plan changes continue under the new Act?

Private plan changes will still be possible under the main replacement of the RMA, the Natural and Built Environment Act 2023 (NBA). The NBA came into force on 23 August 2023. Because the new district plans required under the NBA need to be drafted, these plans will not be operative for some years (between 5-10 years). Until then, the private plan change processes under the RMA will continue.

Should you use a private plan change?

Depending on the current zoning and rules to a property, it may be more appropriate to apply for a resource consent. However, where a proposal is not what is contemplated under the property’s current zoning and departs significantly from the rules in a district plan, then a private plan change request may be more appropriate. The applicant for a private plan change is required to pay all the reasonable costs incurred in processing the plan change request. This includes council staff costs, consultants’ fees, notification costs, administration costs, and the cost of holding a hearing if required.

If you are a considering whether a private plan change might be right the right option for you, please get in touch with your lawyer.

 

 

[1] Resource Management Act 1991, Schedule 1 Clause 22.
[2] Schedule 1 Clause 23(1).
[3] Schedule 1 Clause 23(2).
[4] Schedule 1 Clause 25(2) and Clause 25(4).
[5] Schedule 1 Clause 25(4).
[6] Schedule 1 Clause 25(5).
[7] Schedule 1 Clause 27(1).
[8] Schedule 1 Clause 26(1)(b)(i).
[9] Section 97.
[10] Schedule 1 Clause 14(4).