Affordable Housing: Enabling Territorial Authorities Act 2008

1: Title
This Act is the Affordable Housing: Enabling Territorial Authorities Act 2008.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
1: Meeting housing needs
3: Act binds the Crown
This Act binds the Crown.
4: Interpretation
In this Act, unless the context requires another meaning,— affordable housing
a: is for persons living in households that—
i: have low to moderate income; and
ii: have no, low, or moderate legal or beneficial interests in property; and
b: is priced so that the persons are able to meet—
i: their housing costs; and
ii: their other essential basic living costs; and
c: is within the regulatory criteria for determining what affordable housing is, if regulations setting criteria exist affordable housing policy
a: covers the matters described in sections 9 15
b: is adopted by a territorial authority building consent section 7 building consent authority section 7 consent authority section 2 council-controlled organisation section 6 council organisation section 6 covenant development contribution section 197 district section 5 district plan section 2 land section 2 Minister
a: the authority of a warrant; or
b: the authority of the Prime Minister public notice section 5 resource consent section 2 social housing
a: persons on low incomes:
b: persons with special housing needs:
c: persons whose disabilities mean that they need support or supervision in their housing special consultative procedure section 5 territorial authority section 5
5: Purposes
The purposes of this Act are to—
a: enable a territorial authority, in consultation with its community, to require persons doing developments to facilitate the provision of affordable housing—
i: for the purpose of meeting a need for it that the authority has identified by doing a housing needs assessment:
ii: in a manner that takes account of the desirability of the community having a variety of housing sizes, tenures, and costs:
b: void covenants that have, as one of their purposes, stopping the provision of affordable housing or social housing.
6: What this Act does about affordable housing and social housing
1: Territorial authorities that want to find out whether there is enough affordable housing in their districts may do housing needs assessments. Sections 7 8
2: If the housing needs assessments show the territorial authorities that there is not enough affordable housing in their districts, they may make affordable housing policies. Sections 9 15
3: The steps that the territorial authorities must take in making and communicating affordable housing policies are in sections 16 20
4: Persons affected by the application of the policy may want to object or appeal. Sections 21 24
5: Territorial authorities need powers to implement their affordable housing policies. Sections 25 28
6: Territorial authorities have powers under the Resource Management Act 1991 Section 29
7: Covenants are void if one of their purposes is to stop the provision of affordable housing or social housing. Section 30
8: Territorial authorities may include their affordable housing policies in their long-term council community plans, if they want to, but this Act requires them to include only a summary of the policy.
9: Territorial authorities doing actions under this Act must observe all the principles in section 14 Territorial authority may assess need for affordable housing
7: Decision to assess
A territorial authority may decide to assess the need for affordable housing in its district at any time.
8: Method of assessment
1: A territorial authority that decides to assess the need for affordable housing in its district must choose the method by which it does the assessment.
2: The authority must choose a method that gives results for the authority’s district that include—
a: a description of the current balance between supply and demand in the housing market generally and, if relevant, in different sectors:
b: the identification of land available for housing development:
c: an estimate of the number of households that currently need affordable housing and the number that are likely to need it in the reasonably foreseeable future. What must be covered in affordable housing policy
9: Outcomes and objectives
An affordable housing policy must state clearly the outcomes and objectives that the territorial authority wants to achieve by way of the policy.
10: Criteria for application of policy to development
1: An affordable housing policy must state the criteria that determine which developments the policy applies to.
2: The criteria that the authority must consider for inclusion in its affordable housing policy include—
a: the proposed location of the development:
b: the kind of development proposed, whether commercial, industrial, or residential, or a sub-group of commercial or industrial:
c: the potential of the development to generate a need for affordable housing:
d: the desirability of the community having a variety of housing sizes, tenures, and costs.
11: Actions required of persons doing developments
1: An affordable housing policy must state what the territorial authority requires a person to do to facilitate the provision of affordable housing, if the person is doing a development to which the policy applies.
2: Without limiting what the policy may state, things that the policy may state that the person must do include—
a: including a proportion of affordable housing in the development:
b: including a proportion of affordable housing in another development that the person is doing or is to do:
c: including in the proportion of affordable housing a particular kind of housing:
d: giving the territorial authority some land in its district:
e: giving the territorial authority an amount of money.
3: If the policy states that the person may be required to do any of the things listed in subsection (2)
a: for subsection (2)(a) and (b)
b: for subsection (2)(c)
c: for subsection (2)(d)
d: for subsection (2)(e)
12: Actions required of territorial authorities
1: An affordable housing policy must state what the territorial authority may do to help a person to facilitate the provision of affordable housing, if the person is doing a development to which the policy applies.
2: Without limiting what the policy may state, things that the policy may state that the territorial authority may do include—
a: excusing the person from paying some or all of the person’s development contribution under its policy on development contributions:
b: giving the person a density bonus:
c: giving the person financial assistance under an applicable funding or financial policy:
d: giving the person rates remission under its rates remission policy:
e: giving the person rates postponement under its rates postponement policy.
13: Criteria for allocation
An affordable housing policy must state the criteria to be applied to decide who is to be allocated affordable housing.
14: Methods of retention
1: An affordable housing policy must state how affordable housing is to remain subject to the affordable housing policy.
2: Without limiting what the policy may state, things that the policy may state include the following:
a: the person doing the development must sell or rent the housing to a person who meets the criteria specified in the provisions of the policy that reflect section 13
b: the person to whom the housing is allocated must offer it first to the territorial authority or a council-controlled organisation, a council organisation, or a trust if the person decides to sell it:
c: the territorial authority or a council-controlled organisation, a council organisation, or a trust that buys the housing must sell it to a person who meets the criteria specified in the provisions of the policy that reflect section 13
d: the territorial authority or a council-controlled organisation, a council organisation, or a trust must own the housing subject to an occupation right agreement with the person to whom the housing is allocated:
e: the territorial authority or a council-controlled organisation, a council organisation, or a trust must own the housing jointly with the person to whom the housing is allocated.
15: Objections and appeals
An affordable housing policy must state that persons affected by the application of the policy have rights to object and appeal. How affordable housing policy is made and updated
16: Making, reviewing, and amending policy
1: A territorial authority may start on the process of adopting an affordable housing policy if—
a: it has assessed the need for affordable housing in its district under sections 7 8
b: its assessment shows that there is not enough affordable housing in its district.
2: The territorial authority must use the special consultative procedure to adopt an affordable housing policy.
3: The statement of proposal required by the special consultative procedure must include—
a: a draft of the policy containing provisions that reflect sections 9 15
b: a summary of the way in which the draft policy affects—
i: the policies the authority has adopted under the Local Government Act 2002
ii: the authority's district plan.
4: An authority that adopts an affordable housing policy must review it after identifying community outcomes under section 91
5: An authority that wants to amend its affordable housing policy in a substantial way may follow subsection (1) subsections (2) and (3)
6: An authority that wants to amend its affordable housing policy in a minor way must follow section 156(2)
7: An affordable housing policy may provide that an action described in the policy must or may be done by the territorial authority, a committee or other subordinate decision-making body of the territorial authority, or a member or officer of the territorial authority and may specify conditions applying to the doing of the action. This subsection does not limit or affect anything in the Local Government Act 2002 Territorial authority must communicate policy
17: Telling public about adoption of policy
A territorial authority that adopts an affordable housing policy must give public notice of the adoption of the policy.
18: Telling applicants for consents about policy
1: A territorial authority that adopts an affordable housing policy must ensure that the information described in subsection (2)
a: a building consent:
b: a resource consent.
2: The information is—
a: where the person can obtain a written or electronic copy of the policy:
b: how the person can find out whether the policy applies to the person’s development.
19: Telling affected persons about decision that policy applies
1: This section applies when a territorial authority decides that its affordable housing policy applies to a development under the provisions of its policy that reflect section 10
2: The authority must give written or electronic notice to the following persons:
a: the person doing the development:
b: the owner of the land on which the person proposes to do the development:
c: the owners of land bordering the land on which the person proposes to do the development.
3: The notice must tell the persons about—
a: the decision:
b: how the persons can object to the decision.
20: Telling affected persons about decisions on sections 11 to 14 matters
1: This section applies when a territorial authority makes a decision under any of the provisions of its affordable housing policy that reflect sections 11 14
2: The authority must give written or electronic notice to the person affected by the decision.
3: The notice must tell the person about—
a: the decision:
b: how the person can object to the decision.
4: Examples of decisions to which this section applies are—
a: a decision about the amount of money that a person doing a development must give the territorial authority (a decision like this would be made under the provisions of the policy that reflect section 11
b: a decision not to give rates remission to a person doing a development (a decision like this would be made under the provisions of the policy that reflect section 12
c: a decision not to allocate affordable housing to a person (a decision like this would be made under the provisions of the policy that reflect section 13
d: a decision that the person to whom affordable housing is allocated must offer it first to the territorial authority (a decision like this would be made under the provisions of the policy that reflect section 14 Objections and appeals
21: Who may object to what
1: A person to whom notice is given under section 19(2)(a)
a: may object to the decision on any ground; and
b: may object to a provision in the territorial authority's affordable housing policy on any ground.
2: A person to whom notice is given under section 19(2)(b)
a: may object to the decision on the ground that the decision—
i: renders the land incapable of reasonable use; and
ii: places an unfair and unreasonable burden on the person; and
b: may object to the decision on any other ground; and
c: may object to a provision in the territorial authority's affordable housing policy on any ground.
3: A person to whom notice is given under section 20 section 11 14
a: may object to the decision on any ground; and
b: may object to a provision in the territorial authority's affordable housing policy on any ground.
4: No person may object under section 22 1991 No 69 s 85(2)
22: Objections made to territorial authority
1: A person objecting under section 21
2: The person must give the territorial authority a statement of the objection that—
a: contains reasons for the objection:
b: is written or electronic:
c: is given within—
i: 15 working days after the date on which the person receives the notice given under section 19 20
ii: a longer time that the authority allows.
3: An authority that receives an objection must—
a: give written or electronic notice to the person of the date, time, and place for the hearing of the objection:
b: do 1 of the following after receiving the objection:
i: dismiss it:
ii: partly uphold it:
iii: wholly uphold it:
c: give written or electronic notice of its decision and the reasons for it to—
i: the person:
ii: any other person the authority considers appropriate.
23: Appeals made to Environment Court
1: The following persons who objected to the territorial authority under section 22
a: a person doing a development:
b: the owner of the land on which a person proposes to do a development:
c: the owner of land bordering the land on which a person proposes to do a development:
d: a person affected by a decision on a section 11 14
2: The person must—
a: lodge a notice of appeal with the Environment Court:
b: lodge the notice within—
i: 15 working days after the date on which the person receives the notice given under section 22(3)(c)
ii: a longer time that the court allows:
c: serve a copy of the notice on the territorial authority.
3: The court must—
a: hear the appeal on the merits of the case:
b: have regard to the decision that is the subject of the appeal:
c: do 1 of the following:
i: dismiss the objection:
ii: partly uphold the objection:
iii: wholly uphold the objection.
4: Part 11 Resource Management Act 1991
24: Effect on affordable housing policy of objections and appeals
1: This section applies to an objection to a provision in a territorial authority’s affordable housing policy under section 21
2: Subsection (3)
a: a territorial authority dismisses or partly upholds an objection; and
b: the person who objected does not appeal.
3: The territorial authority must,—
a: if it dismissed the objection, keep applying the policy:
b: if it partly upheld the objection,—
i: keep applying the policy, but in a way that reflects its decision:
ii: follow section 16(5)
4: Subsection (5)
a: a territorial authority dismisses or partly upholds an objection; and
b: the person who objected appeals.
5: The territorial authority must—
a: stop applying the provision:
b: implement the court's decision on the appeal.
6: Subsection (7)
7: The territorial authority must—
a: stop applying the provision:
b: follow section 16(5) 1991 No 69 s 85(3) Implementing affordable housing policy
25: Binding commitments may be required
1: This section applies when—
a: a person—
i: applies for a building consent for a development in a territorial authority’s district; or
ii: has been granted a resource consent for a development in a territorial authority’s district; or
iii: both applies for a building consent and has been granted a resource consent for a development in a territorial authority’s district; and
b: the person is required by the territorial authority to do an action under its affordable housing policy.
2: The territorial authority may require the person to make a binding commitment to it that the person will take all practicable steps to ensure that the action is done.
3: The territorial authority may require only 1 binding commitment from a person who needs more than 1 consent for a development.
4: If the territorial authority requires the person to make a binding commitment to it, the territorial authority must be satisfied that the person is able to keep the binding commitment.
5: If the territorial authority requires the person to satisfy it of the person’s ability to keep the binding commitment, the means by which the authority requires the person to satisfy it must be reasonable.
6: The territorial authority must notify the building consent authority to which the person applied for a building consent and the consent authority that granted the resource consent of 1 of the following:
a: that the person is not required to make a binding commitment to the territorial authority; or
b: that—
i: the person was required to make a binding commitment to the territorial authority; and
ii: the person has done so; and
iii: the territorial authority is satisfied that the person is able to keep the commitment.
7: The territorial authority must not notify the building consent authority or the consent authority of subsection (6)(b)(ii) and (iii)
a: the person has made the binding commitment; and
b: the territorial authority is satisfied that the person is able to keep the commitment.
8: The building consent authority must not grant the consent, and the consent authority must prevent the commencement of the consent under the Resource Management Act 1991 subsection (6)
9: Without limiting the form a binding commitment under this section may take, a binding commitment may take the form of a contract or deed, which could be supported by, for example, a bond, guarantee, indemnity, mortgage, or security interest under the Personal Property Securities Act 1999
26: No payment of compensation
1: Land is not taken or injuriously affected only because an affordable housing policy exists. Consequently, the territorial authority is not liable to pay compensation only for that reason.
2: Land is not taken or injuriously affected only because of a provision in a territorial authority’s affordable housing policy. Consequently, the territorial authority is not liable to pay compensation only for that reason.
3: Land is not taken or injuriously affected only because a territorial authority requires a person doing a development to do an action under the authority’s affordable housing policy. Consequently, the territorial authority is not liable to pay compensation only for that reason. 1991 No 69 s 85
27: Use of land and money
1: A territorial authority has the powers in subsections (4) to (8)
2: The powers in this section apply to all or some of the land or money.
3: The authority may use the land or money to provide affordable housing.
4: The authority may use the land or money to offset the loss of the development contributions of other persons doing developments to which the policy applies.
5: The authority may give the land, or sell it cheaply, to a person who agrees to build affordable housing on it.
6: The authority may give the land, or sell it cheaply, to a body to use to provide affordable housing.
7: The authority may give the money to a body to use to provide affordable housing.
8: Territorial authorities may pool the land or money to use it to provide affordable housing in the district or districts of one, some, or all of the authorities.
9: A territorial authority that owns land to provide affordable housing as part of its social policy may give the land, or sell it cheaply, to a body to use to provide affordable housing.
28: Policies must be aligned
1: This section applies to a territorial authority that wants to use a power described in section 27
2: The authority must follow sections 102(6) 93(4) 83 84(2) Relationship with Resource Management Act 1991
29: Environment Court to decide
1: This section applies to a person described in subsection (2)
2: The persons are—
a: the territorial authority:
b: a person who has made a submission on—
i: the district plan:
ii: the preparation or change of the district plan:
c: a person representing a relevant aspect of the public interest:
d: a person who has an interest in the conflict that is greater than the interest that the general public has:
e: the Minister for the Environment:
f: the Minister of Housing.
3: If the person is not the territorial authority, the person must give the territorial authority a written or electronic notice describing the conflict.
4: As soon as is practicable after receiving a notice under subsection (3)
5: The territorial authority must, within 90 days of receiving a notice under subsection (3)
6: The person may apply to the Environment Court to resolve the conflict, except that a person who is required to give a notice under subsection (3)
7: In resolving the conflict, the court must take into account—
a: the following provisions of the Resource Management Act 1991
i: Part 2
ii: section 74
b: the following sections of the Local Government Act 2002
i: section 10
ii: section 14
iii: sections 76 81
8: If the court decides that there is a conflict, it must do 1 or both of the following to resolve the conflict:
a: amend the policy:
b: amend the plan.
9: Part 11 Covenants
30: Some are void
1: A covenant over land is void if one of its purposes is to stop the provision of affordable housing or social housing on the land.
2: Without limiting the covenants that are void under subsection (1)
a: a covenant that the transferee will not directly or indirectly convey the land to Housing New Zealand Corporation, any other central or local government body, or a private body that may facilitate the occupation of housing on the land by persons selected by the corporation or the body:
b: a covenant that the transferee will not directly or indirectly convey the land to Housing New Zealand Corporation, a subsidiary company of Housing New Zealand Corporation, any other central or local government body, or a private body that provides housing to tenants on a subsidised basis:
c: a covenant that the transferee will not directly or indirectly convey the land to a central or local government body or a private body for the purposes of public or institutional housing. Regulations
31: Regulations
1: The Minister must consult persons who the Minister considers are able to give helpful advice on the content of proposed regulations.
2: When the Minister has consulted on proposed regulations, the Minister must take the results of the consultation into account and then may recommend to the Governor-General that the regulations be made.
3: The Governor-General may, on the recommendation of the Minister, by Order in Council, make regulations for all or any of the following purposes:
a: setting criteria for determining what affordable housing is, for the purposes of the definition in section 4
b: providing a template that a territorial authority may use or adapt for—
i: a method of assessing the need for affordable housing:
ii: an affordable housing policy:
c: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect. Transitional provisions
32: Building consents
1: This section applies to a building consent that—
a: has been granted:
b: has been applied for.
2: The territorial authority referred to in subsection (3)
3: This Act does not apply to the building consent if the granting or applying was done before—
a: the date on which the territorial authority adopts an affordable housing policy:
b: the date on which the territorial authority amends its affordable housing policy in a way that would affect the consent if the amendment were to apply to it.
33: Resource consents
1: This section applies to a resource consent that—
a: has been granted:
b: has been applied for:
c: is the subject of a lodged application for review of its conditions.
2: The territorial authority referred to in subsection (3)
3: This Act does not apply to the resource consent if the granting, applying, or lodging was done before—
a: the date on which the territorial authority adopts an affordable housing policy:
b: the date on which the territorial authority amends its affordable housing policy in a way that would affect—
i: the consent if the amendment were to apply to it:
ii: the consent’s conditions if the amendment were to apply to them.
34: Covenants
Section 30
2: Amendments to other enactments
35: Amendments to Building Act 2004
1: This section amends the Building Act 2004
2: Section 49(2)(b) ; and
3: Section 49(2)
c: if section 25 section 25(6) 2008-09-17 Building Act 2004
36: Amendments to Goods and Services Tax Act 1985
1: This section amends the Goods and Services Tax Act 1985
2: Section 5
7D: For the purposes of this Act, a territorial authority is treated as supplying goods and services to a person if the territorial authority requires the person to give it land or money under the provisions of its affordable housing policy that reflect section 11 2008
7E: For the purposes of this Act, a person who gives a territorial authority land under the provisions of the authority's affordable housing policy that reflect section 11 2008
3: Section 11B
1D: If a supply under section 5(7D)
1E: If a supply under section 5(7E) 2008-09-17 Goods and Services Tax Act 1985
37: Amendments to Housing Corporation Act 1974
1: This section amends the Housing Corporation Act 1974
2: Section 3B(b) ; and
3: Section 3B
c: to arrange for territorial authorities applying the Affordable Housing: Enabling Territorial Authorities Act 2008 to receive appropriate advice and information, of a policy or other nature, about housing and services related to housing. 2008-09-17 Housing Corporation Act 1974
38: Amendments to Local Government Act 2002
1: This section amends the Local Government Act 2002
2: Schedule 10 clause 7
7A: Affordable housing policy
A long-term council community plan must contain a summary of the local authority's affordable housing policy, if it has adopted one under the Affordable Housing: Enabling Territorial Authorities Act 2008 2008-09-17 Local Government Act 2002