MEDIA RELEASE – For immediate use, 5 June 2013

Process gaps and hurried passage of Housing Accord Bill criticised

A government Bill designed to enhance housing affordability contains a number of measures which are unclear and could cause procedural and interpretive problems, the New Zealand Law Society says.

The Law Society has also criticised the hurried passage of the legislation, including the very limited timeframe of only 10 working days for consultation and making submissions.

“This Bill will have very significant implications for Auckland – and potentially other regions – over the next three years. The rationale for using urgency is not clear,” the Law Society has told Parliament’s Social Services Committee.

Presenting the Law Society submission on the Housing Accords and Special Housing Areas Bill to the committee today, spokesperson Greg Milner-White said the Bill gave significant powers to the Minister of Housing and had major implications for local authorities.

He noted the absence of a requirement for ministerial consultation in the clause which provided for Orders in Council made on the Minister’s recommendation to establish a Special Housing Area (SHA).

“There is no requirement for the Minister to consult with local authorities, the New Zealand Transport Agency (NZTA), or affected landowners, or any obligation to seek community input,” he said.

“It seems unlikely the Minister will be able to reach a properly informed view about whether sufficient and appropriate infrastructure will be provided, without consulting at least the relevant local authorities and the NZTA and other affected parties.”

The Law Society submission also pointed to the limited requirements for notification of resource consent applications and plan changes or variations. Mr Milner-White said that where adverse effects of a proposal are more than minor, there should be an obligation to notify parties, rather than a discretionary power.

A limited notification provision along the lines contained in the Resource Management Act 1991 would ensure that the views and submissions of directly affected parties would be considered by the consent authority. Similarly in plan change situations the requirement to only notify adjoining owners and NZTA did not go far enough.

Mr Milner-White said the Bill did not define “infrastructure” but the term was used in two important clauses and whether it was intended to extend to social infrastructure, such as schools, libraries and other community facilities, was unclear. It would be useful for the Bill to define the term “infrastructure” he said.

“It would also be useful to clarify who is responsible for the provision of infrastructure necessary to enable a qualifying development, including the attribution of the cost of wider network upgrades required as a result of qualifying developments,” he said.

While the term “qualifying developments” was defined, the first limb of the definition was that the development was “predominately residential”. That was likely to be a problematic term, and if left to be interpreted on a case by case basis, it could lead to inconsistent application of the legislation.

The Law Society was also unhappy with the wide regulation-making powers conferred by clause 88 of the Bill.

“This is an example of a Henry VIII clause in that it enables primary legislation to be amended by executive regulation,” Mr Milner-White said.

“Devolution of powers to the Executive to amend or override an Act of Parliament is contrary to the rule of law and good legislation principles. Such clauses have also been criticised by the Cabinet Manual and Parliament’s own Regulations Review Committee. The Law Society submits that clause 88 is undesirable and should be removed.”

ENDS

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