That the Joint Committee of Tasman District and Nelson City Councils

1.    Receives the report Adoption of the 2022-52 Future Development Strategy (R27097) and its attachments (1:       Resolutions on the FDS policy decisions from the 27 July Joint Committee meeting , 2:       Final 2022-52 Nelson Tasman Future Development Strategy, 3:    Final technical document to 2022-52 Nelson Tasman Future Development Strategy, 4:    Draft FDS document that went out for consultation, and 5: Reports and background information from previous meetings); and

2.    Notes the previous reports and information provided to the Joint Committee and Subcommittee in attachment 5 that have helped lead to the development of the 2022-52 Nelson Tasman Future Development Strategy; and

3.    Adopts the 2022-52 Nelson Tasman Future Development Strategy and the supporting technical document in attachment 2 and attachment 3 of this report, effective from 19 September 2022; and

4.    Notes that the 2022-52 Nelson Tasman Future Development Strategy in resolution 3 meets the requirements of the National Policy Statement on Urban Development 2020 and has been developed and adopted in accordance with the Local Government Act 2002 and in particular, the special consultative procedure under section 83; and

5.    Agrees that the Mayors and Chief Executives of Nelson City Council and Tasman District Council be delegated the authority to approve, by collective agreement, any minor amendments and correct any errors or omissions as required to finalise the 2022-52 Nelson Tasman Future Development Strategy before publication; and

6.    Notes that the adoption of the 2022-52 Nelson Tasman Future Development Strategy has the effect of repealing and replacing the 2019 Nelson Tasman Future Development Strategy.

6.       Important considerations for decision making

Please note that much of the advice below is repeated (amended as needed) from the 27 July 2022 report to the Joint Committee (refer report R26951). It is provided to ensure the Joint Committee is fully aware of all considerations it needs to take into account when adopting the final FDS.

6.1      Meets the requirements of the NPS-UD

Both Nelson and Tasman are defined as tier 2 authorities under the National Policy Statement on Urban Development 2020 (NPS UD). Tier 1 authorities include all of the local authorities within the Auckland, Hamilton, Tauranga, Wellington and Christchurch Urban Environments. Tier 2 authorities are local authorities within the following urban environments:

·    Whangārei

·    Rotorua

·    New Plymouth

·    Napier Hastings

·    Palmerston North

·    Nelson Tasman

·    Queenstown

·    Dunedin

The remaining local authorities are classed as tier 3 authorities. The NPS-UD places a number of obligations on Tier 1, 2 and 3 authorities. These include ensuring there is sufficient development capacity to meet expected demand for housing and businesses.  This is land that is plan enabled and infrastructure ready. For tier 1 & 2 authorities, this must include an additional 20% capacity as a “competitiveness margin”, essentially to reduce the chances of land supply constraints.   The FDS is a key tool for planning and managing development capacity.

The NPS-UD requires tier 1 & 2 local authorities to prepare and make publicly available an FDS in time to inform the preparation of the next Long-Term Plan (LTP).  The purpose of an FDS is to promote long-term strategic planning by setting out how a local authority intends to:

·   achieve well-functioning urban environments in its existing and future urban areas; and

·   provide at least sufficient development capacity, over the next 30 years to meet expected demand; and

·   assist the integration of planning decisions under the Resource Management Act (RMA) with infrastructure planning and funding decisions.

The 2022-52 Nelson Tasman Future Development Strategy is consistent with the purpose set out in the NPS-UD. A summary of the key strategy elements is summarised in section 4 of this report.

The FDS must as a minimum cover the urban environment. The NPS-UD defines urban environment as:

1.    Urban environment means any area of land (regardless of size, and irrespective of local authority or statistical boundaries) that:

(a) is, or is intended to be, predominantly urban in character; and

(b) is, or is intended to be, part of a housing and labour market of at least 10,000 people

The Nelson Tasman Urban Environment includes Hira, Nelson City, Richmond, Brightwater, Wakefield, Mapua and Motueka.   The FDS also includes consideration of all of the other towns in Tasman.

The NPS-UD requires councils to use the Special Consultative Procedure (SCP) under section 83 of the Local Government Act 2002 to develop an FDS. This procedure involves the preparation of a statement of proposal (including the draft FDS), public notification and opportunities for public submissions on the statement of proposal. This process has been followed in the development of the final FDS.

Section 10.1.3 of the Technical Report in attachment 3 assesses the FDS against the requirements of the NPS-UD and summarises how these have been addressed.

6.2      Fit with Purpose of Local Government

The Joint Committee of the Nelson City and Tasman District Councils delegated responsibility for hearing and deliberating on submissions on the draft FDS to a Subcommittee at its meeting of 8 March 2022. Consultation, hearings and deliberations took place between March and June 2022. The Subcommittee made recommendations to the Joint Committee for the FDS, which the Joint Committee accepted on 27 July 2022.

The Councils have undertaken an SCP process that has enabled them to understand the views and preferences of the community, as well as further targeted consultation with landowners and surrounding landowners of new sites proposed through submissions and amendments to boundaries of some sites.  The SCP process and statement of proposal itself makes it clear that the final strategy may change as a result of the consideration of the views expressed by the community and in response to other information received from experts, officers or other sources.  Therefore, the final strategy may be different from the draft proposal which was put out for consultation.

In making its recommendations, the Subcommittee considered the content of the submissions, the reasonably practicable options for achieving the objectives of the FDS and assessed the various options in terms of their advantages and disadvantages. The submission process assisted the Subcommittee to understand the views and preferences of the community. Submission processes do not amount to a poll, or a vote on any proposal.  They are one input into the Subcommittee’s recommendations, along with other information and advice the Subcommittee sought or was provided by officers. Unlike an RMA hearing process, there is no requirement to accept or reject submission.  The obligation is to consider the submissions received and evaluate them against the overall objectives of the proposal.

The Subcommittee considered whether there was a need for further consultation with the community on new sites proposed through submissions and where the boundaries of existing sites were being amended. Targeted consultation with landowners adjacent to new and amended sites was carried out by a combination of phone calls, letters and email. The subcommittee considered this provided it with enough information to be able to make decisions on the addition of sites, amended sites and sites to be removed. The cost of the further consultation on new and amended sites was relatively small, when considering the benefits of obtaining those views of landowners surrounding the sites. It was a straightforward exercise, and the scale of further consultation was considered proportionate to the scale of changes recommended by officers to the draft FDS.   Section 82(4) of the Local Government Act 2002 (LGA) states a Local Authority must have regard to the following principles of consultation:

(b) the extent to which the current views and preferences of persons who will or may be affected by, or have an interest in, the decision or matter are known to the local authority; and

(c) the nature and significance of the decision or matter, including its likely impact from the perspective of the persons who will or may be affected by, or have an interest in the decision or matter; and

(e) the costs and benefits of any consultation process or procedure.

A large number of submissions (568) were received on the draft FDS from individuals and groups within the community and these have been summarised in the officers’ report of 31st May 2022. Some submitters chose to address wider (regional) issues or chose to focus on specific matters and sites. In evaluating these submissions they were considered in terms of their content and relief sought and in the context of the size of the Nelson and Tasman communities (circa 55,500 and 58,000 respectively). The Subcommittee considered the content of the submissions received not just the quantity of submissions. The substance of the arguments put forward by submitters, along with the advice of officers and other experts, together influenced the Subcommittee’s recommendations to the Joint Committee. Submissions are of course not the sole source of knowledge about community views and preferences on urban growth matters. Together, the Subcommittee had a broad understanding of these issues already through other engagement exercises and consultations on other recent Council plans, as well as through experience of speaking with the community. The submissions also need to be considered in light of the context that they were requested i.e. the draft FDS, its objectives and the scope of potential change outlined in the Statement of Proposal. Submitters may not necessarily be representative of the views of the wider community.

The FDS is a high level, strategic planning document. It informs a wide range of other plans and strategies of both Councils. All members of our communities affected by the proposals in the eventual FDS will have further opportunities to engage and submit to both Councils, if/when sites are proposed for rezoning through changes to or reviews of Councils’ resource management plans.

The NPS UD (sub part 4 clause 3.12) requires tier 2 local authorities to prepare and make publicly available an FDS in time to inform the preparation of the next Long Term Plan (LTP). Both Councils are commencing work on their next LTP, and it is therefore important that the FDS is concluded before September 2022 to enable preparation of plans that form part of the LTP. The 2019 FDS is not compliant with the requirements of the NPS UD as it uses outdated demand projections and was developed to meet the requirements of the NPS-UDC 2016 (which has a different set of requirements than the NPS-UD 2020).

6.3      Consistency with Community Outcomes and Council Policy

The Councils are required to use the SCP when preparing the FDS. The relevant requirements of the SCP are found in sections 83 and 87 of the LGA. The general consultation requirements in section 82 apply to all consultation, including use of the SCP.

Section 83 provides that the Councils must prepare a statement of proposal (SOP) including a summary of information and a draft of the FDS. The SOP has formed the basis of the Councils’ public consultation process. The Councils distributed the summary of information in each service centre and library and restocked, and made the full SOP publicly available, including on the Councils’ websites. Written submissions were invited on the proposal, and any submitter had the opportunity to be heard in support of their submission. The process undertaken by the Councils on the FDS to date complies with the requirements of the LGA.

There are factors that the Joint Committee must have regard to in complying with the decision-making provisions in the LGA including the principles in section 14 of the Act, the Councils’ resources and the extent to which the nature of the decision, or the circumstances in which it is taken allow the Council the scope to consider options, or the views and preferences of persons. The present circumstances include the need for the Councils to meet the legislative timeline for the FDS to be finalised and adopted by the Councils in time to inform the next LTP.  This timeframe makes further consultation by the Councils on any of the matters in this report difficult but not impossible. In this context officers recommend that sufficient additional consultation has been undertaken recently on the new and amended sites.

The section 14 principles that are relevant here are:

·    openness and transparency;

·    giving effect to the Council’s identified priorities and desired outcomes in an efficient and effective manner;

·    the views of all communities;

·    community well-being and the interests of future as well as current communities;

·    strategic priorities and desired outcomes;

·    collaboration with other bodies;

·    prudent stewardship of resources; and

·    effective future management of assets.

The FDS informs both Councils’ Long Term Plans, as well as a range of other Council plans. This is a function of the FDS. The 2019 FDS did so and this FDS, if adopted will continue to do so.

The final FDS incorporates elements that have some inconsistencies with a few existing policies. Under section 80 of the LGA, the Councils are required to identify those inconsistencies, the reasons for the inconsistencies and whether the policies will be changed to reflect the decisions. This was covered in the previous report to the Joint Committee on 27 July, and the resolutions from that meeting (attachment 1 of this report) address the section 80 requirements.

6.4      Risk

The key risks are reputational and litigation related. Some people may support the Joint Committee’s decisions but others may oppose them and seek to judicially review the decisions resulting from this report.  Staff confirm that significant effort has gone into ensuring a robust and legally defensible process has been followed.

The Councils received a range of community and organisational views on the matters consulted on through the FDS Statement of Proposal.  The Subcommittee considered the views of the community, officers’ recommendations and other advice it received in order to make recommendations for the preparation of the final FDS.  Such other advice included expert advice attached to the officers’ report of 31st May 2022 and the supplementary memos provided by officers during deliberations.  This information was provided to the Joint Committee in it 27 July report.

In considering the risks associated with the FDS to both Councils, it is useful to consider the following issues:

·    Compliance with the LGA requirements

·    Review of submissions

·    Scope considerations

·    How well decision makers understand the views of the community on any matters that it may wish to amend from the draft FDS that was consulted on

·    Process of considering new sites

·    Compliance with the requirements of the NPS-UD, RMA and associated instruments

·    Questions and issues raised by the Subcommittee

·    Implications of having no FDS

Compliance with the SCP process is critical in ensuring that the public has all of the information it needs to make an informed submission. Failure to meet the requirements of the SCP process would put the FDS process at risk of legal challenge.

Summary of submission process

The FDS consultation process to date has followed the SCP process closely and is compliant with the requirements of the LGA. Additionally, early engagement prior to developing the draft FDS has allowed a more robust draft document to be presented as part of the SCP.

One aspect of the consultation that differed from the usual methods that both Councils use is the online webinar format that allowed the public to ask questions about the draft FDS. This would usually occur face to face in public drop-in sessions around each district, but this was not possible due to the restrictions that COVID 19 posed. This element of the consultation is not strictly required but the webinars did provide both a useful forum for questions from the public as well as a level of feedback. They were well attended with over 300 people joining.

The SCP process is intended to ensure that those that wish to have their say can in an effective manner. It is therefore critical that all submissions have been given an appropriate level of consideration during the process. Submissions have been received in three main formats, online in the submission database, email and hardcopy. Submissions were processed so that they were all contained within the submissions database for consideration by officers and the members of the Subcommittee.

During the process of reviewing submissions, each submission was read by more than one officer as well as by at least one member of the consultant team. The information that these submissions contain was summarised and distilled down to inform the contents of this report and its supporting documents as well as the officers’ report of 31st May 2022.

After considering the submissions, officers mapped and assessed new sites proposed as well as amended sites and considered the effects on capacity of removing certain sites as requested by unsupportive landowners, or sites that scored poorly in the MCA. Officers then undertook targeted consultation with the landowners and surrounding landowners of new and amended sites, to obtain their views on these new proposals. Officers consider this approach has provided a robust picture of landowners’ views on the latest proposals, and a sound basis on which to make recommendations.

Risks of not adopting

There is a risk that elected members may choose to not adopt at this meeting. This carries considerabe risk for the councils and staff have therefore not included it as a practicable option.

Not approving a final FDS (either with our without changes) may jeopardise its ability to inform the LTP 2024-2034 as required by the NPS UD. The implications of not adopting an FDS are that neither Council would have an up-to-date FDS to inform its other Council plans, including its LTP (including its Infrastructure Strategy) and any new Resource Management Plan. It is a requirement of the NPS UD to have an FDS in place in time to inform the LTP. The implications of this are not absolute as the level of non-compliance would be considered during any assessment of the Councils’ processes by the Minister for the Environment. If a council is not carrying out its functions or meeting its obligations under the RMA or subordinate instruments like National Policy Statements, the Minister has powers to intervene.  

These powers range from monitoring the effect and implementation of the RMA and national policy statements, through to powers to investigate the exercise or performance by a local authority of any of its functions, powers or duties under the RMA and make recommendations. The Minister also has powers to appoint one or more persons to exercise or perform all or any of the functions, powers or duties in place of the local authority.

One further risk is related to the timing of the local government elections. If the Joint Committee does not adopt the FDS prior to the elections then a new council constituted after the election may decide that it cannot make a decision on the FDS and require the proposal to be re-notified, call for submissions and conduct a new hearing and deliberations process.  This would create considerable extra time and cost implications, and may well invite criticism from the community who has already been consulted and involved in the FDS process to date.

6.5      Financial impact

The FDS does not make changes directly to the LTPs. Final decisions associated with infrastructure servicing are made through development of an infrastructure strategy, activity management plans and LTP deliberations. That being said, the FDS does provide a strong direction to both the LTP and resource management plan review processes, so the Councils will be required to take this into account. Both councils have development contributions policies that require the cost of the growth portion of new infrastructure to be met by developers. In most cases this infrastructure is built by the Councils in advance of the development occurring and it is often debt funded before the costs are recovered through development contributions.

The interest costs associated with this borrowing is also part of the development contributions so in effect the cost to the Councils in the long term is minimal.

6.6      Degree of significance and level of engagement

The SCP process and notified proposal itself makes it clear that the final proposal may change as a result of the views expressed by the community and in response to other information the councils receive.  Therefore, the final FDS, following consultation, can be different from the draft FDS which was put out for consultation.

The Joint Committee must have open minds to being persuaded that its proposal should not be adopted without change, and/or that something else should be adopted in its place. However, in order to be fair to submitters who have been involved, and those who may have chosen not to participate (given the terms of the SOP), it is appropriate that there are limits to the extent to which changes can be made without having to undertake additional consultation or engagement.  These have been at the front of the subcommittee’s thinking and where sites have changed through this process, additional targeted consultation has occurred. 

The matter that needs to be considered with reference to the significance and engagement policies of both Councils is the level of significance of any changes recommended and/or finally adopted compared to the draft FDS that went out for public consultation. The changes that have been considered are:

·    addition of new and amended sites;

·    changes to existing site boundaries in draft FDS;

·    removal of sites in draft FDS; and

·    greenfield/intensification split.

Alongside the potential changes to the draft FDS, the following matters need to be considered:

·    whether the Joint Committee considers there is enough information on the views and preferences of people who might be affected by the addition of new or amended sites or sites which are proposed to be removed;

·    the nature and significance of the decision, including its likely impact from the perspective of persons who will or may be affected by, or have any interest in, the decision or matter;

·    the costs and benefits of any consultation process or procedure;

·    whether the change is larger than could have been reasonably expected by the public, relative to the notified proposal;

·    any additional processes and decisions involved under the RMA and LGA before any development occurs, which will likely have separate and specific consultation processes.

In making its recommendations the subcommittee considered that it had enough information on the views and preferences of the community and has addressed the matters set out above. If the changes are considered to be of a high level of significance/significant then further engagement may be required, unless the Joint Committee considers it already understands the likely views of the community in relation to the proposed changes, or there are other factors that weigh against the benefit of further engagement.

Scale of changes

The Subcommittee has considered whether any of the proposed changes would not have been “reasonably foreseeable” consequences of the process and it did not consider that further wider consultation should be required. The costs and benefits of any additional consultation process or procedure must be considered. The Subcommittee requested additional advice from officers in advance of making recommendations.

There is no statutory requirement to further consult in relation to any change to a proposal after the initial call for submissions. This is a judgement based on an assessment of its scale and significance.

For the Nelson area, the changes to the FDS growth areas associated with the inclusion of new sites are considered relatively minor. There are only three changes in the form of extensions to three existing areas. Two new extension areas adjacent to the Saxton and Orphanage Stream West FDS areas have approximately 10 immediately adjacent neighbours and are only approximately 20 ha in size. The extension of N-109 Wood South to include the property at 123 Halifax Street East has approximately six immediate neighbours and is approximately 2 ha in area.

Officers consider that these two Nelson areas do not represent a significant change in the context of the overall FDS development area as it represents a net addition of 69 ha or 2% of the total FDS land capacity of 3379 ha that were notified in the SCP.  Also, these sites are adjacent to other sites proposed in the draft FDS so the public could reasonably have expected some areas to be expanded following consultation.

Officers consider that the eight new Tasman sites, the five amended Tasman sites and the four Tasman sites to be excluded do not represent a significant change in the context of the overall FDS development area. It represents a net addition of 54 ha or 1.6% of the total FDS land capacity of 3379 ha that were notified in the SCP. In Tasman there was an increase of 142 ha but a loss of 88 ha.

Looking across all the changes proposed from the draft FDS, there is a total of 123 ha of additional land proposed, or 3.6% of the total development area consulted on in the draft FDS. This represents a relatively small change to the draft FDS as a whole and as such, can be considered a reasonably anticipated outcome for the wider community.  Also, the FDS does not rezone the land.  Before the land can be developed, there will need to be a plan change process and/or resource consent process undertaken.  A plan change process would require public consultation and enable anyone to have an opportunity to comment before the land was rezoned.  If subsequent development requires resource consent then the resource consent process would require consideration of the potential impacts on neighbours before deciding whether to publicly notify any consent application. 

In recommending these changes, the Subcommittee considered whether it had sufficient information and understanding of the community’s views and preferences, (from the submissions on the draft FDS the subsequent targeted consultation and other information it has), of landowners likely to be affected by new and amended sites being proposed and considered it did.

Adopting the FDS as recommended by the Subcommittee is likely to be a moderate level of significance, given the number of submissions received on the draft FDS. Officers have sought further input from:

-   iwi on the new and amended sites proposed for inclusion in the final FDS and some iwi have responded;

-   the views of landowners whose properties were proposed for inclusion by others; and

-   the views of landowners surrounding new proposed and amended sites. 

In summary, the level of significance on decisions on the FDS is likely to be moderate. Some sites like the Maitai/Kaka Valley sites are of high public interest.  The Subcommittee did not recommend any change to these sites from what was included in the draft FDS that was consulted on. Also, the Subcommittee has a good understanding of the views of the community from the submissions and from other public input on the matter.

The rural Tasman sites consulted on attracted low levels of public interest.  The secondary proposal located in the coastal Tasman area included in the SOP was of moderate public interest with some submitters supporting it and with others against it. 

The majority of the changes proposed from the draft FDS will have a low to moderate level of significance.   However, the adoption of the FDS as a whole can be considered to have a moderate level of significance. 

6.7      Climate Impact

Climate change impacts were raised by a large number of submitters. The analysis of those impacts is outlined in attachments to this report and the officers’ report of 31st May 2022, under Vehicle Kilometres Travelled, GHG emissions and natural hazards and resilience of future development. The decisions relating to the changes proposed to the FDS do not of themselves impact on climate change, however, the implementation of these decisions will have implications and these will be considered when the FDS sites are proposed for rezoning.

6.8      Inclusion of Māori in the decision making process

Iwi were invited to advise officers of their views on the new sites proposed for inclusion in the final FDS, that were identified through submissions.  Some feedback from iwi was received and was contained in the officers’ report of 31st May 2022.

The Subcommittee included an iwi representative who was able to bring an iwi perspective to the hearing and deliberations. Iwi perspectives were reflected in the recommendations made by the Subcommittee.

6.9      Delegations

The Joint Committee has the following delegations that enable it to consider the Future Development Strategy.

Areas of Responsibility:

·     Implementation of the Nelson Tasman Future Development Strategy

Powers to Decide:

·    To adopt, approve, review and amend the Nelson Tasman Future Development Strategy and Implementation Plan

·     In matters relating to the Nelson Tasman Future Development Strategy, to undertake community engagement, including all steps relating to Special Consultative Procedures or other formal consultation processes

Powers to Recommend:

·     All other matters requiring decision will be recommended to Nelson City and Tasman District Council, subject to an equivalent resolution being adopted by the other Council

The Joint Committee has operated within its delegations throughout this process, including through the appointment of the subcommittee to hear submissions and make recommendations on the FDS.