On this page
- Planning and the District Plan
- Building and Building Control
- Key Differences – Planning and Building
- District Plan Rules for STVA
- Resource Consents
- Existing Use Rights
- Financial Contributions
- RMA Compliance, Monitoring and Enforcement Provisions
- Building Act 2004
- Building Act 2004 Compliance and Enforcement Provisions
- Compliance and Enforcement Policy
- Rates
Requirements of the Mackenzie District Plan (Planning) and the Building Act 2004 (Building Control) are separate, but equally important and relevant for establishing lawful and safe STVA. The differing requirements often lead to uncertainty or confusion for customers who are not professionals in those fields.
The purpose of this information is to provide a more comprehensive explanation of requirements and considerations for STVA activity, including planning and building. It also includes further information about rates and how they are applied to STVA.
Planning and the District Plan
The Resource Management Act 1991 (the RMA) is legislation which places duties on District Councils to establish, implement and review objectives, policies and methods to manage the effects of use, development, or protection of land, natural and physical resources of the district.
Section 73 of the Act requires each district to adopt a district plan to carry out these functions. The Mackenzie District Plan is our district plan which contains policies, objectives, rules and standards that apply in the district. Within this, the district is separated into different zones, each with specific requirements. There are also ‘District Wide’ rules which apply, irrespective of the zoning. These requirements must be considered and met when carrying out an activity.
The Mackenzie District Plan also contains rules for Financial Contributions which apply to new developments and visitor accommodation.
Building and Building Control
The Building Act 2004 is legislation which regulates building work, establishes a licensing regime for building practitioners, and sets performance standards for buildings to ensure that:
- People who use buildings can do so safely.
- Buildings contribute to the health, physical independence and wellbeing of the people who use them.
- People who use buildings can escape from the building if it is on fire.
- Buildings are designed, built, and able to be used in ways that promote sustainable development.
The NZ Building Code states how a building must perform in its intended use, and all building work in NZ must meet the requirements of the building code, even if it does not require a building consent (refer Appendix 1 for further information on the NZ Building Code).
Key Differences – Planning and Building
Planning
For a person wishing to use land or build STVA, or to use an established building for that purpose, the district plan contains the rules and standards that must be followed for carrying out the STVA activity on a site.
STVA must not commence unless it complies with the rules and standards in the district plan. If the activity does not, or cannot comply, it must be authorised by a land use resource consent.
Building
This is the physical building that is constructed or used for STVA, which must meet the requirements of the Building Act 2004 including the Building Regulations 1992 – Schedule 1(The Building Code). If a building consent is required for the building work, the building must be built in accordance with the consent.
If buildings are to be used for STVA, both the planning and building requirements must be satisfied.
District Plan Rules for STVA
The process for determining which rules apply to STVA is first to identify in which zone the activity is to be located. This is done by viewing the district plan on the Council’s website Map - Mackenzie District Plan and searching for the property. Once located, the relevant zone is identified, and the corresponding section of the district plan can be viewed. Each section contains the rules that apply to the zone.
Note: The district plan does not use the term – Short Term Visitor Accommodation or STVA. This is a general term which is more commonly used, particularly in the context of tourism and economic development. Instead, the district plan uses the definitions:
Residential Visitor Accommodation
Means the use of a residential unit for visitor accommodation including any residential unit used as a holiday home.
Note: A Residential Unit is defined as:
Residential Unit- means a building(s) or part of a building that is used for a residential activity exclusively by one household, and must include sleeping, cooking, bathing and toilet facilities.
Commercial Visitor Accommodation
Means land and buildings used for any form of visitor accommodation that is not defined as residential visitor accommodation, including:
- backpackers;
- camping grounds;
- hostels;
- hotels;
- motels;
- motor inns; and
- tourist lodges.
There is a common requirement for residential visitor accommodation in the following zones:
Zone
- Medium Density Residential
- Low Density Residential Zone
- Large Lot Residential Zone
- Rural Lifestyle Zone
- General Rural Zone
Permitted Activity (applies to the zones listed above)
Where:
- No more than one residential unit on a site is used for residential visitor accommodation, including a minor residential unit; and
- The maximum occupancy of the residential unit used for residential visitor accommodation does not exceed six guests per night.
In most cases, to be a Permitted Activity the activity must also comply with the zone standards, which can be viewed in each section below the zone rules.
A land use resource consent is required for Residential Visitor Accommodation over and above the Permitted Activity thresholds or where any relevant zone standards are not complied with.
Commercial Visitor Accommodation is not a Permitted Activity in any of the zones, and a land use resource consent is always required.
Resource Consents
If a STVA activity contravenes a rule in the Plan, resource consent must be obtained for the activity. In the Plan, STVA activities which do not comply are described as:
- Restricted Discretionary Activity – A resource consent is required for the activity.The Council’s power to decline a consent, or to grant a consent and to impose conditions on the consent, is restricted to the matters over which discretion is restricted in the Plan.
- Discretionary Activity - A resource consent is required for the activity. The Council may decline the consent or grant the consent with or without conditions.
The type of activity and matters of discretion for restricted discretionary activities are determined in the Plan rules (in the right-hand column for each rule).
Further information on resource consents and the application process can be found here.
Existing Use Rights
Section 10 of the RMA provides for some activities, including STVA, to rely on existing use rights to operate. This applies if an activity was lawfully established before a rule in a district plan became operative of the proposed plan was notified. The effects of the activity must also be the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified.
In some cases, it may not be immediately apparent that an STVA provider can rely on existing use rights, and the Council may need to request information from the provider to determine if this may be the case.
Due to the significant increase in the number of properties used to provide STVA in more recent years, existing use rights will not be applicable in most cases.
Financial Contributions
The Council applies financial contributions to developments under provisions of the RMA and these are provided for in the Plan.
Under Rule FC-S6 of the Plan, new or additional Residential and/or Visitor Accommodation developments are subject to financial contributions towards the provision and maintenance of land and/or facilities for open space and recreation. This requirement is in addition to other financial contributions provisions for new developments.
The amount payable is calculated in accordance with the rule which can be read here.
RMA Compliance, Monitoring and Enforcement Provisions
The RMA enables Councils and Council Enforcement Officers to undertake compliance, monitoring and enforcement activities to determine compliance with the district plan or resource consents, and to carry out enforcement if a contravention has occurred. These provisions include:
- Section 316 – Application for an enforcement order. The Environment Court may issue an Enforcement Order under section 314 requiring a person to cease an activity which contravenes a rule in a plan and/or requiring a person to do something which is necessary to ensure compliance.
- Section 332 – The power to carry out an inspection to determine compliance with a rule in a plan or with an abatement notice.
- Section 322 – An abatement notice may be issued to cease an activity and/or require a person contravening a rule in a Plan to take certain actions.
- Section 343C – An Enforcement Officer may issue infringement notices for offences against the RMA.
It is important to note that the contravention of a rule in the Plan is an offence against section 338(1)(a) of the RMA for which both property owners and property management companies may be liable.
In cases of serious non-compliance, a person or company may be prosecuted by the Council and significant fines may be imposed by a Court on conviction.
Under section 104(2) (EA) of the RMA, when considering a resource consent application, the Council may also have regard to any previous or current abatement notices, enforcement orders, infringement notices, or convictions received by the applicant under the Act.
Building Act 2004
Change of Use
In many cases, STVA is provided in buildings which are constructed as residential dwellings. Throughout the consenting and building process for these dwellings, the Council’s Building Consent Authority assessed compliance with the New Zealand Building Code based on clause A1 ‘Classified uses’. The most common classified use of residential buildings in the district is ‘2.0 Housing – 2.0.2 Detached Dwelling’.
If the use of a building changes at any time after it is built, the building owner must notify the Council’s Territorial Authority of the change of use as per section 114 or 115 of the Building Act 2004. A change of use occurs when both:
- the use of a building or part of a building changes from one use to another as defined in the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (the Regulations) – Schedule 2
- and the new use has more onerous or additional Building Code requirements than the old use.
Information on the Building Performance website provides a detailed explanation of ‘Change of Use’ - view here.
In the case of a new building project which is to be used for STVA, particularly where several units within a building are being planned to accommodate guests, the building should be designed accordingly, and the use should be disclosed at the building consent application stage. This will ensure the building is fit for the intended use of the building.
Unauthorised change of use may present a risk to users of a building and may lead to enforcement against a building owner.
Access and Facilities for Persons with Disabilities
Under section 118 of the Act, if provision is being made for the construction or alteration of any building to which members of the public are admitted, there must be reasonable and adequate provision of access and parking for persons with disabilities.
This requirement applies to buildings used for STVA.
Building work in connection with access and facilities for disabled persons must be authorised by a building consent under section 40 of the Act.
Building Act 2004 Compliance and Enforcement Provisions
The Building Act 2004 (the Act) enables Councils to undertake compliance and enforcement activities where a person is contravening or failing to comply with the Act. These provisions include the Act:
- Section 164 – A Notice to Fix must be issued when a person contravenes or fails to comply with the Act or the Regulations, requiring that person to remedy the contravention or failure to comply.
- Section 372 – An Enforcement Officer may issue infringement notices for offences against the Act.
In cases of serious non-compliance, a person or company may be prosecuted by the Council and significant fines may be imposed by a Court on conviction.
Compliance and Enforcement Policy
Compliance and enforcement activities are undertaken in accordance with Council’s Compliance and Enforcement Policy - PDF, 637.6 KB.
The Policy provides guidelines and principles to be considered when undertaking compliance and enforcement activities. The circumstances of each case will be considered against the policy.
Rates
Where property is used for STVA the Tourism and Promotion Charge for Secondary Accommodation will apply in addition to other general and targeted rates.
To ensure that all relevant properties are subject of the charge, when STVA properties are identified, the Council may correct records in the ratings information database and rates records under section 40 of the Local Government (Rating) Act 2002.
The ability to reassess the rate to properties can affect the current year’s rates (ie backdating the change to the beginning of the current rating year) if the property has been used for STVA from 1 July each year.
If the property has not been used for STVA from 1 July in the current rating year, the property will be reassessed from 1 July in the next rating year.
Further information on the rates can be found here.