As introduced, the bill would require Kāinga Ora to carry out engagement or consultation at different stages in the SDP process. We sought advice about the difference between consultation and engagement. We consider that “engagement” better reflects the desired outcome of the SDP process, whereas “consultation” would have a more limited focus.

We recommend inserting clause 24A to set out engagement requirements that Kāinga Ora would be required to meet when acting under a provision of this legislation requiring engagement.

When undertaking engagement, our proposed clause would require Kāinga Ora to do at least one of the following:

• consult on a proposal

• seek input during the formulation of a proposal, or feedback on a proposal, on an iterative basis.

We recommend clarifying that the input or feedback could be sought through a variety of forums, as Kāinga Ora thinks appropriate. They could include hui or meetings, and social media.

We consider that engagement should be proportionate to the proposal in question. Therefore, we recommend inserting clause 24A(4) so that Kāinga Ora’s approach to engagement:

• takes into account the purpose of the engagement

• considers the needs of the persons it is engaging with

• allows adequate time for responses and for engagement to occur, taking into account that persons may have other governance obligations, and tikanga Māori

• could consider the relevance and sufficiency of any earlier engagement.

Clause 33 sets out what Kāinga Ora would need to do when assessing a project selected in accordance with clause 31. Subclause (a) would require Kāinga Ora to identify “at a high level” the constraints and opportunities that arise for the project from the matters listed in clause 34(1). We recommend replacing reference to identifying “at a high level” with identifying “in general terms”. This would better reflect the intended outcome of the project assessment phase as being an overview of the identified constraints and opportunities of an SDP.

As referred to above, clause 34(1) sets out the matters Kāinga Ora would be required to identify when making an assessment under clause 33(a).

We recommend including a requirement in clause 34(1)(b) to identify “parks” and “regional parks” by their location, as defined in the Local Government Act 2002.

We also recommend including in clause 34(1)(e) a requirement to identify Māori cultural values alongside archaeological and heritage values.

Finally, we recommend that clause 34(1)(a)(vi) is amended to include land to which special rules apply under a local Act, as well as land protected under a local Act, as many local Acts do not specifically refer to protecting land.

As introduced, clause 35 sets out who Kāinga Ora would need to seek engagement with for the purposes of a project assessment under clause 33(b). The parties it must engage with are Māori and key stakeholders, as set out in subclauses (2) and (3) respectively.

Under subclause (3), a key stakeholder that Kāinga Ora must engage with are “relevant infrastructure operators”, but only if Kāinga Ora has identified that the infrastructure may be affected by a project. We recommend amending this paragraph to refer to relevant infrastructure providers that will be, or are likely to be, affected.

As introduced, if Kāinga Ora was assessing a project under subpart 1 of Part 2, clause 36 would provide the possibility that early engagement with Māori and key stakeholders could satisfy the obligation to engage contained in clauses 33(b) and 35. This would mean that engagement carried out prior to a project being selected as a potential SDP could be considered engagement for the purposes of developing a project assessment report.

However, we note that projects could change significantly between the time early engagement took place and the project was assessed. We consider that the intent was to allow for the possibility of early engagement, but not that it should be the only engagement if it were not robust or recent enough.

Earlier in our commentary we proposed new clause 24A, which is a general engagement clause for provisions in the bill. New clause 24A would provide some scope for early engagement to be considered as part of determining an engagement process. We believe this would better ensure that Kāinga Ora does not unreasonably rely on prior engagement to satisfy the engagement obligations. Accordingly, we recommend deleting clause 36.

Clause 41 specifies what a report should contain where Kāinga Ora is recommending that an SDP be established.

We recommend amending clause 41(2)(a), by inserting subparagraph (iiia), so that a report would be required to set out a summary of the engagement undertaken with Māori, and the feedback received. It should also set out how that feedback informed any of the report’s recommendations.

As introduced, paragraph (v) would require the report to set out whether any early engagement had been relied on during the project assessment. We recommend amending this to reflect our proposed new clause 24A(4)(c).

Clause 42 specifies what content a report should cover if Kāinga Ora decided not to recommend that a project be established as an SDP. Kāinga Ora would need to broadly describe and assess the project, but would not need to set out as much detail as under clause 41.

We recommend amending clause 42 so that Kāinga Ora would be expressly required to provide reasoning in the report as to why it did not recommend the project be established as an SDP.

In situations where Kāinga Ora intends to recommend establishing an SDP, it would need to provide a copy of a draft project assessment report (once it was sufficiently advanced) to territorial authorities. Territorial authorities would then have an opportunity to decide whether to support the project as an SDP.

Clause 43(2)(b) would require Kāinga Ora to give territorial authorities at least 10 working days to respond. We understand that this is not likely to be sufficient in most cases, and recommend extending the timeframe to “at least 20 working days”.

If the joint Ministers decided to recommend that a project should be established as an SDP, clause 50 would enable an Order in Council to be made to establish the SDP.

We recommend inserting clause 50(2A) to allow the establishment order to specify a date on which an SDP would be deemed to have lapsed and be disestablished, if a draft development plan had not been publicly notified under clause 76. That date could be different from the default 5 year period specified in clause 5 of Schedule 2.

Clause 54 would allow Kāinga Ora to appoint 1 or more hearings commissioners to exercise delegated powers under the bill, or to hear resource consent applications, objections, or other matters. As introduced, subclause (2)(b) would require Kāinga Ora to have a process for managing conflicts of interest of hearings commissioners.

We recommend amending this provision so that any local affiliations or interests of Māori appointed as commissioners do not disqualify the person’s appointment as a hearings commissioner (by virtue of that fact alone).

Clause 55 sets out how key features set out in an SDP’s establishment order could be amended. Kāinga Ora would be required to follow the establishment process set out in subpart 1 of Part 2, modified to relate to the content of the proposed amendment. Under subclause (3), the joint Ministers could accept the recommendation for amendment only if they were satisfied that certain requirements had been met.

One of those requirements is being satisfied that, given the likely effects of the proposed amendment, the engagement undertaken by Kāinga Ora was appropriate. We recommend amending clause 55(3)(a) to specify that the joint Ministers must also be satisfied that Kāinga Ora engaged on the amendment with Māori and key stakeholders as would normally be required by clause 35.

Clause 57 would give Kāinga Ora the power to transfer assets related to a SDP, or disestablish an SDP, under the provisions of Schedule 2.

As introduced, the phrase “may transfer … or disestablish” is used. We recommend making it clear that the bill would give Kāinga Ora the ability to transfer assets of an SDP, or disestablish an SDP, under the provisions of Schedule 2.

We recommend inserting clause 58A to clarify the general principles for development plans. This new clause would replicate most of the requirements of clause 61 as introduced, which we propose deleting. This includes stipulating that, after an SDP’s establishment, Kāinga Ora must prepare a development plan, and any applicable supporting documents. The development plan should enable the project’s objectives to be achieved, and make provision for any Treaty settlement obligations that apply in the project area.

Clause 60(a) sets out the instruments made under the Resource Management Act 1991 (RMA) that a development plan must be consistent with. They include certain applicable provisions of national planning standards approved under section 58E of the RMA. We recommend expanding this clause to cover all the applicable provisions of national planning standards approved under section 58E of the Resource Management Act, not just certain aspects. This would take into account the possibility that new planning standards could be developed.

As mentioned above, we propose deleting clause 61 as introduced, and replacing it. Our proposed new clause 61 would place an obligation on Kāinga Ora to ensure it is adequately informed when preparing a draft development plan. We consider that it should take the steps it considers necessary:

• to be informed on the matters relevant to achieving the project’s objectives

• to proceed to develop a plan that is suitable for public notification under clause 76.

We also recommend stipulating that Kāinga Ora must carry out the above by engaging with Māori and key stakeholders identified during the project assessment process under clause 35.

Clause 62 sets out what content must be included in a development plan.

Clause 62(2) would require a structure plan to be included, setting out matters such as the proposed land use and densities, location of infrastructure and community facilities, and the likely staging of the project. To best ensure that an SDP integrates with existing land uses, we recommend requiring the structure plan to also set out:

• the location of nationally significant infrastructure in, or adjacent to, the project area

• the location of any existing infrastructure for the three waters services.

• the general location and description of proposed new infrastructure, if it is to be connected with, or integrated into, any existing infrastructure network (either within or outside the SDP).

Clause 62(3) would require the development plan to state any conditions applicable to the project area, whether imposed by the Minister of Conservation or adopted by Kāinga Ora under iwi participation legislation. In regard to the latter, we recommend replacing the word “redress” with “other measure”, to better reflect the definition of “redress” in clause 9 of the bill. This is to make clear that Kāinga Ora must include in a development plan any requirements under settlement Acts for the protection of iwi interests, or requirements that enable iwi participating in arrangements to protect those interests.

Under clause 67, Kāinga Ora would have to notify the requiring authority (of an existing designation) of its intention to include the designation in a draft development plan. Kāinga Ora would then be required to include the designation in the plan without change, unless the requiring authority modified or withdrew it. As introduced, the bill does not expressly provide for the designation to be modified if it is included in a draft development plan.

We recommend inserting subclause (2A) to clarify that if a requiring authority advised Kāinga Ora that a modified designation was to be included in the draft development plan, it must specify the nature of the modifications, and the reasons for them.

Clause 69 sets out the relevant mandatory considerations that Kāinga Ora must have regard to when preparing a development plan (to the extent they are relevant to the SDP). We note that this clause refers to specific documents or plans, rather than general principles or concepts.

We recommend amending clause 69(1) to include a requirement to consider any spatial plans prepared under the Local Government (Auckland Council) Act 2009 that may be applicable to an SDP.

We recommend amending clause 69(1) so that the requirement to consider any relevant planning document recognised by an iwi authority and lodged with a territorial authority, also refers to hapū and local authorities.

We also recommend amending clause 69(1) to make it clear that while it sets out the documents that Kāinga Ora must have regard to, Kāinga Ora would be able to have regard to any matter it considered relevant to the SDP.

We recommend inserting new clause 69(1A) to require Kāinga Ora to consider any planning documents prepared by a customary marine title group under the Marine and Coastal Area (Takutai Moana) Act 2011, to the extent that they relate to the project area.

As introduced, clause 70 sets out who Kāinga Ora must consult with when preparing a draft development plan. We consider that effective consultation would have occurred earlier in the SDP process. We have proposed a new clause 61 that more appropriately sets out engagement requirements for the drafting of a development plan. Therefore, we recommend deleting clause 70.

Clause 72 sets out what would need to be included in an evaluation report. We recommend amending subclause (2)(d) to require it to set out how the draft development plan (or proposed amendment) takes into account any applicable iwi participation legislation.

Clause 73 sets out what environmental matters would need to be addressed in an evaluation report. We recommend including a requirement to set out how Kāinga Ora has had regard to any emissions reduction plan or national adaptation plan that applies in a project area. We also recommend requiring Kāinga Ora to set out how it had regard to advice on the management of any natural resource within a project area.

As discussed above, we recommend amending clause 74 so that an infrastructure statement forms part of an evaluation report. We also recommend requiring that, in the statement, Kāinga Ora must:

• assess (not merely describe) the effect of proposed infrastructure on existing infrastructure

• identify any technical design standards or codes that it has adopted in the draft development plan

• include details about the estimated operating costs associated with the proposed infrastructure.

Clause 75 sets out the preconditions that must be met prior to public notification. We propose the following changes:

• We recommend inserting clauses 75(5A) and 75(5B) (which were contained in clause 142 in the bill as introduced) to require Kāinga Ora to obtain a post-settlement governance entity’s consent or views in certain situations where a draft development plan proposes setting apart a specified reserve for the SDP.

• Under clause 75(6)(b) as introduced, if the draft development plan involved the revocation or cancellation of a conservation interest in land, Kāinga Ora would need to get agreement from the land owner. We recommend amending this provision to clarify that the revocation or cancellation of a conservation interest is also subject to any conditions that the Minister of Conservation may impose on the use of the land.

• Clause 75(8) would require the Minister of Conservation to have regard to certain matters when making decisions relating to subclauses (6) and (7). We recommend including a requirement that the Minister of Conservation be satisfied that any name or name changes to certain proposed reserves would meet the naming requirements of the New Zealand Geographic Board Ngā Poi Taunaha o Aotearoa.

• We recommend including a new requirement (as clause 75(8A)) that approval be obtained from the relevant local authority for any proposed change to a park or regional park before the draft development plan could be publicly notified.

• We also recommend inserting clause 75(8B) to require Kāinga Ora to obtain approval from certain Ministers in situations relating to common marine and coastal areas being set aside for a specified work.

Clause 77 provides that any person could make a submission to Kāinga Ora on the draft development plan.

As introduced, subclause (3) would allow Kāinga Ora to accept a late submission. We recommend amending this to state that, where a late submission is lodged, Kāinga Ora may recommend to the independent hearings panel (IHP) whether it should accept or reject the late submission. The IHP would decide whether to accept it.

As introduced, clause 79 would require the Minister to appoint an independent hearings panel to carry out the role prescribed in clause 80. Clause 79(1) would require the Minister to do this after a draft development plan had been publicly notified. We recommend making the timing of the appointment of the IHP more flexible.

Clause 80 sets out the role of the IHP. We recommend inserting clause 80(1AA) to specify that the purpose of an IHP is to ensure that a draft development plan is subject to a process of independent consideration.

Clause 82 provides for the IHP to make a report with recommendations about the draft development plan to the responsible Minister and Kāinga Ora. Subclause (2) sets out what must be included in the report. We recommend requiring the IHP to include its reasons for any proposed amendments to the plan.

Clause 88 sets out, in relation to development plans, the appeal rights that would be available to those who submitted on the draft plan. We recommend inserting subclause (1A) to stipulate that the appeal rights under clause 88 would be the only right of appeal in respect of any aspect of a draft development plan, including rights of appeal in respect of designations.

Clause 89 sets out the various effects that would occur during the period between a development plan becoming operative and the establishment of an SDP.

We recommend making it clear that any arrangements in an operative development plan regarding parks or regional parks would be deemed to have satisfied any consultation process required under the Local Government Act. We recommend inserting clause 89(da) accordingly.

Clause 116 would specify that, in relation to resource consent applications, the role of Kāinga Ora is to be the consent authority from the date on which a development plan for an SDP became operative.

We recommend inserting subclause (3A) to clarify that any enforcement functions carried out must comply with private property entry requirements under the RMA. Further, we recommend inserting clause 116A to clarify that Kāinga Ora would take the role of the territorial authority for the monitoring and enforcement functions of subdivision consents under the RMA.

As introduced, clause 117 sets out situations when Kāinga Ora should delegate its consent authority functions. We recommend replacing it with a principles-based approach to managing conflicts of interest, based on the Local Government Act. This would make it clear that Kāinga Ora would also be subject to this provision. It would require Kāinga Ora to ensure it separated its delivery and regulatory functions when carrying out the role of a consent authority.

We recommend amending clause 137 to set out the activities for which Kāinga Ora could be a network utility operator or requiring authority, in terms of activities within or outside the project area. Our amendments would set out the following:

• For activities within the project area, Kāinga Ora could exercise its discretion to be a requiring authority for infrastructure, for community facilities, or if establishing a designation to be transferred to a Minister of the Crown.

• For activities outside the project area, Kāinga Ora could exercise its discretion to be a requiring authority for activities for three waters services, land transport, or public transport, as long as they were related to an SDP.

Clause 139 provides some exceptions to the requirements of the RMA. We recommend inserting subclause (4A) to clarify that it would not apply to designations for nationally significant infrastructure.

We also recommend amending clause 139 to clarify that section 178 of the RMA would apply to clause 139. This would provide interim protection for new and existing designations when a notice of requirement was lodged.

Clause 141 sets out the notice requirements for proposals of national significance (where a new designation is to be established). We recommend amending clause 141 to make it clear that the restriction against lodging notices of requirements directly to the Environmental Protection Authority would only apply to designations that are within or partially within the project area.

We recommend inserting clause 141A to set out a process for Kāinga Ora to establish a new designation, or alter an existing one, after a development plan has become operative. This process would reflect the existing process under the RMA.

We recommend that the definition of “non-roading infrastructure” in clause 147 be amended and renamed “water-related infrastructure” to better reflect the nature of the infrastructure it refers to. We recommend this change be made throughout the bill.

Clauses 148 to 154 set out the detail of the roading powers that would be available to Kāinga Ora. The specific powers would, if activated under an operative development plan, enable Kāinga Ora to:

• build, change, and move roading infrastructure within SDPs

• perform other roading-related functions of local authorities that are provided for in existing legislation.

Clause 152 would place limits on Kāinga Ora’s exercise of roading powers, including in relation to the disposal of land no longer required for roading.

We recommend amending clause 152 so that the territorial authority could be recompensed for the administrative costs associated with the disposal of the land, if requested. We also recommend making it clear that Kāinga Ora would not be entitled to any proceeds from any sale of land not required for a road, unless Kāinga Ora owned the land. We recommend inserting clauses 152(3)(c) and 152(4) accordingly.

Clauses 155 to 168 would provide the powers and requirements for Kāinga Ora to build, alter (including connect to and move), and transfer water-related infrastructure (referred to as “non-roading infrastructure” in the bill as introduced).

Clause 166 would set limits on Kāinga Ora’s power to alter water-related infrastructure that it did not control. Kāinga Ora would be required to give the controlling authority of the infrastructure 20 working days’ notice that it intended to exercise a power to alter the infrastructure. The controlling authority would be able to set any “reasonable conditions” relating to the works at least 5 days prior to the work starting. We recommend amending these time periods to 30 working days and 10 working days, respectively.

Clause 166(3) would define what a reasonable condition is. We recommend inserting paragraph (d) to clarify that it would be reasonable to impose a condition so that the controlling authority could meet its obligations under any enactment, resource consent, or drinking-water standard.

Under clause 173 as introduced, Kāinga Ora would need to make a determination to change a bylaw in accordance with certain provisions of the Local Government Act, and engage with the bylaw-making authority about it.

We recommend replicating the relevant provisions of the Local Government Act in clause 173. We also recommend clarifying that the purpose of engaging with the bylaw-making authority is to ensure it is aware of the proposed change, and to assist Kāinga Ora to decide whether it wishes to proceed with the change.

We recommend inserting new clause 184A to set out when bylaws can or must be reviewed, and what the responsibilities and effects are after a bylaw review. Subclause (2) sets out when a bylaw must or could be reviewed by Kāinga Ora. Notably, under proposed subclause (4), if Kāinga Ora had reviewed a bylaw and deemed it unnecessary, it must propose that the bylaw be revoked.

Clause 190 would allow for an Order in Council to be made authorising Kāinga Ora to set rates for a project. The Minister could only recommend the order if they were satisfied that certain matters under subclause (2) were met. One of those is that the order would authorise targeted rates to fund activities only to the extent that they were not already funded by local government rates. We recommend extending paragraph (c) to include levies, as well as local government rates. We recommend defining what a levy is by inserting subclause (4). This would help avoid any double-charging for activities.

Clause 192 would allow for an order to specify a targeted rate that was not provided for in a development plan, as long as the Minister was satisfied that it was required to meet an unforeseen and urgent need for revenue that could not be met by other means. Kāinga Ora would need to give 14 days’ public notice of the proposed rate.

We recommend also inserting a requirement for the Minister to have regard to the reasonable practicalities for any territorial authority to carry out its functions under the subpart, such as in collecting the rate. We recommend inserting clause 192(1)(ab) accordingly.

Clause 253(2)(d) would stipulate that when Kāinga Ora acquires private land for a specified work, section 26(3) of the Public Works Act 1981 applies. However, the land would vest in Kāinga Ora rather than the Crown. The land would also be subject to any registered heritage covenant.

In addition to heritage covenants, we recommend amending clause 253(2)(d)(ii) to ensure that the following also continue to apply:

• all “conservation interests” as defined in clause 9 of the bill

• open space covenants under section 22 of the Queen Elizabeth the Second National Trust Act 1977.

This would mean that while covenanted land or land with conservation interests could be acquired for urban development, the covenant or interest would continue to apply until it was removed through the SDP process or through the ordinary process for removing that kind of covenant or interest.

Clause 255 sets out that if land being acquired for an SDP is owned by a Crown agent, the agent’s right of objection is limited. We recommend amending clause 255 so that it applies to land owned by a Crown agent that is being acquired for any type of urban development project, not just an SDP.

We recommend amending clause 256 to incorporate Part 6 of the Public Works Act 1981, which would enable Kāinga Ora to undertake a land swap as a means of compensation for the acquisition of land. We recommend inserting subclause (1)(e) accordingly.

We recommend inserting new clause 259A to give Kāinga Ora an express power to grant leases or easements over land that it has acquired for a specified work. The proposed new clause is consistent with the relevant sections in the Public Works Act.

Clause 261 sets out the conditions that would need to be met before Kāinga Ora could transfer land to a developer. Subclause (2) would require Kāinga Ora to enter into a development agreement with the transferees. The agreement would need to specify several matters. We recommend adding two new matters to be specified:

• whether the transferees are going to dispose of the land to either Kāinga Ora or another party in the future

• if so, when or in what circumstances.

Clause 282 sets out the factors Kāinga Ora must have regard to when considering the governance arrangements for urban development projects. We recommend amending it to require Kāinga Ora to have regard to the capability needed to engage with and understand the perspectives of Māori in the urban development project area.

In addition to the factors expressly stated, clause 282(c) specifies that regard should be given to “all other relevant factors”. We recommend amending this so that Kāinga Ora may have regard to other factors that it considers relevant.

Clause 284 would enable territorial authorities that have supported the establishment of an SDP to nominate a person for appointment to certain project governance bodies. We propose amending clause 284. We were satisfied that clause 284 as amended would not prevent territorial authorities that do not support the establishment of an SDP to nominate a person for the body, and that a supporting territorial authority would be able to nominate more than 1 person for appointment. This would be subject to the nominated person being suitable and able to be validly appointed.