Subdivision: are you affected?

Resource Management

The answer to this question may depend on whether you think you might want to develop your land by dividing it into saleable lots, or just happen to live in the vicinity of a proposed subdivision.

What is a subdivision? 

Basically, it involves the division of any allotment (or “parcel of land shown separately on a survey plan”) for the purpose of obtaining a new title (or titles) for the new allotment(s) created.

Other activities that might be less obvious are also considered “subdivisions”. For example, the creation of unit titles, or the creation and separation of cross-leases as was recently confirmed by the Environment Court in Re McKay[1], as being a “subdivision”.  Leasing an allotment (or part of one) for a term, including renewals, that is or could be for more than 35 years. Undertaking a boundary adjustment between two adjoining titles is also a subdivision.

The main reason for subdividing is to improve the value of land.

Having determined that what you are planning is a “subdivision”, then what? 

Subdivisions are governed by the Resource Management Act (RMA) and in particular, section 11. This section restricts subdivision unless;

  • It is for a statutory purpose such as public works, reserves, conservation, and heritage purposes), or
  • It is “expressly allowed” by a resource consent, or
  • It is not contrary to a national environmental standard or rule in a district plan (or proposed plan).

In general, that means that unless the district plan allows for subdivision as a permitted activity you will need a resource consent in order to subdivide.  That will likely be the case whatever the type of subdivision proposed.

How hard is it to get resource consent?

As with all resource consents, how hard it is to get consent will depend on the number of issues that arise.  The closer you are to the level of development permitted by the relevant district plans and standards, the easier it should be. 

Where to start?

You will need to get a clear idea of the issues you could be facing at the outset. These include geotechnical, ecological, cultural, heritage or servicing/ infrastructure issues.  The larger and more complex the proposal, the more important it is to have a good team on board to help you identify the issues and provide advice.  For example a good planner is a must, as is having a competent, reliable, and even creative surveyor. Depending on the proposal, other advisors may include designers, landscape experts, ecologists, engineers and heritage experts. 

Many of these issues will be dictated by the nature of the land you are proposing to subdivide. Drainage patterns, proximity to infrastructure, historical settlement (including pre-european), soil types and possible contamination issues could all create issues that may need to be resolved.

The zoning of the land will also be critical.  For in-fill subdivisions, it is unlikely there will be any particular zoning issues rather than lot size, density and servicing.  However, greenfields developments that have an inappropriate zoning, especially if it indicates that the land is on the wrong side of an urban boundary, could spell an early end to your plans or trigger the need to investigate other options including plan changes.

In most urban centres, the need to intensify the current urban densities and make better use of existing infrastructure (and co-ordinate future infrastructure) is driving many planning decisions.  This means that the opportunities for in-fill housing and other higher density developments have increased. 

How does zoning affect me?

It is worthwhile becoming aware of what is allowed in the zone where you are living, or where you own property.  If you are thinking of developing your property, it makes sense to look at what development opportunities already exist – or even if you don’t intend to develop your property, it is useful to know what other property owners might do.

That is as important now as it has ever been.  This is because, if a subdivision is proposed then it is likely that it will proceed on a “non- notified” basis (unless it has components that mean it is classified a non-complying activity - which is an activity that is not specifically contemplated by a plan).  As it is not notified, no-one can make a submission, or lodge an appeal if they don’t like the outcome.

But before you think, “that’s a good idea, better get our subdivision plans up and running, no one can complain”, the inability to appeal applies to applicants as well as submitters (under the current law).  This has meant that developers in many areas have contrived to make their subdivisions non-complying, not because they want to invite submitters to object but so they will possess an appeal right if the Council imposes conditions the developer does not like – which happens more frequently than you might think.

Will this situation change?

This is the situation under the current law, but is an aspect that the current government has indicated it is considering repealing.  Any repeal may involve allowing greater opportunities to become involved in the subdivision, as well as other planning, applications.  Whether that’s a good idea or not will usually depend on whether you support or oppose a development. 

In many areas there is a clear bias in favour of enabling subdivision. However, there are many factors that affect this, not least being whether your local Council encourages subdivision by way of having enabling policies and rules in the district plan, appropriate policies around development contributions and efficient planning and consenting services.

Talk to us for advice

The team at Cavell Leitch has the expertise and experience to assist you achieve your goals and protect what matters.  We can assist you with obtaining your subdivision consent, working with your surveyor and planner to implement the subdivision consent and raise title and with the sale of those new titles.  We can also assist if a proposed subdivision (or plan change) is causing you concern.  We maintain contacts in a broad range of expert fields that we can utilise to assist you with your plans.  Contact us to discuss how we can help.

Andrew Schulte, Resource Management Partner and part of the Subdivision Team at Cavell Leitch.

[1]  [2018] NZEnvC 180

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Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.