Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Housing Supply Accords and Special Housing Areas Bill (Consistent) (Section 27(1)) [2013] NZBORARp 14 (6 May 2013)

Last Updated: 1 April 2019

Housing Supply Accords and Special Housing Bill

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: HOUSING SUPPLY ACCORDS AND SPECIAL HOUSING AREAS BILL

6 MAY 2013

1. We have considered whether the Housing Supply Accords and Special Housing Areas Bill (PCO 17416/1.7) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill will be considered by the Cabinet Legislation Committee at its meeting on Thursday 9 May 2013.
   
2. We understand that the Bill may be subject to further amendment before it is submitted to the Cabinet Legislation Committee. We will provide supplementary advice should this prove necessary.
   
3. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered possible inconsistencies with s 27(1) (natural justice).
   

The Bill

4. The purpose of the Bill is to enhance housing affordability by facilitating an increase in land and housing supply in the regions or districts with housing supply or affordability issues. Key features of the Bill are:
   
   1. providing that the Government may enter into a housing supply accord with a territorial authority in a scheduled region (currently there is only one scheduled region, Auckland);
   2. allowing for the establishment of “qualifying developments” which are defined as predominantly residential and must meet certain height and capacity requirements;
   100. allowing “special housing areas” to be established in a scheduled region;
   4. creating a new resource consent process for qualified developments in special housing areas.
      

Consistency with the Bill of Rights Act

5. Section 27(1) of the Bill of Rights Act affirms the right of everyone to the observance of the principles of natural justice. The right to natural justice may impose an obligation on a decision-maker to ensure that anyone whose rights or interests may be affected by a decision have sufficient notice and are given adequate opportunity to be heard.
   
6. Under the Resource Management Act 1991 (“RMA”), a local authority is empowered to

publicly notify a resource consent application, except in certain circumstances. The Bill

creates a new process for resource consent applications for qualifying developments in special housing areas that restricts public notification of those applications.1

7. Under clause 24(1), an authorised agency considering a resource consent application under the new process must not notify or hold a hearing in relation to the application except in limited circumstances. Clause 24(2) empowers the authorised agency to notify the owners of the adjoining land and the New Zealand Transport Agency (where the land

adjoins a state highway) of the application if the proposed activity’s adverse effects on those persons are minor or more than minor. Those notified of the application may make a submission on the application and request a hearing. Under clause 24A, the authorised agency must hold a hearing if requested to do so.

8. Clause 45 provides that under the new process there is to be no public notification, submissions or hearings in relation to the review of any conditions of a resource consent granted under the Bill.
   
9. Under the RMA, the public may have the opportunity to submit on and participate in a request for a change to a district or regional plan. For completeness, we note that under the new process, clauses 58A-58EK of the Bill only appear to provide for limited notification of plan changes or variations to adjoining land owners and the New Zealand Transport Agency, but they do not explicitly prohibit public notification in the same way as clauses 24 and 45.
   
10. We do not consider that the limited notification provisions in clauses 24 and 58A-58EK or the prohibition on public notification, submissions or hearings in clause 45 are inconsistent with s 27(1). Members of the public or interested persons generally cannot be said to have a right or interest of the kind engaged by s 27(1).2 Those who may be directly affected by a resource consent application (and that effect is minor or more than minor) or plan change or variation will have the opportunity to make submissions and attend a hearing on the application.
    
11. We also note that clauses 51 and 55 limit appeal rights. Clause 51 provides that there is no right to appeal or object to a decision made by an authorised agency in respect of a resource consent application under the new process except as provided in clause 52. Clause 52 allows a right of objection (including a hearing) for certain persons. Clause 55 provides that there is no right to appeal decisions made regarding objections brought under clause

52. Clauses 58A-58EK appear to limit appeal rights on decisions on plan changes or variations.

12. Clauses 51 and 55, and clauses 58A-58EK, do not limit the natural justice obligations of the authorised agency when considering objections and making decisions. We also note that the right to judicially review a decision made by an authorised agency remains.
    
1. However, under clause 19A, a person may elect to apply for a resource consent under the RMA and have the application determined in accordance with it if that person has a right to apply under the RMA.
2. Chisholm v Auckland City Council (CA 32/02, 29 November 2002) at [32].

Conclusion

13. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Housing Supply Accords and Special Housing Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.