Resource Management Update – April 2017

Home Insights Resource Management Update – April 2017

In this edition:

Resource Legislation Amendment Bill passes into law

The Resource Legislation Amendment Bill (Bill) has passed into law with the support of the Māori Party. In exchange for its support, the Māori Party secured two last minute concessions strengthening provisions providing for Māori involvement in decision-making and allowing councils to ban GM crops in their region without being overruled by the Minister through their regulation-making powers. The version of the Bill that was passed can be found here. The bulk of the Bill remains mostly unchanged from the original version.

Summary of key amendments to the RMA

  • Notification of resource consents – There are now additional express restrictions on notification:
    • Public notification is precluded (subject to special circumstances) for subdivision and residential activities (if they are restricted discretionary or discretionary) and boundary activities (if they are restricted discretionary, discretionary or non-complying).
    • Limited notification is precluded for controlled land use activities (but not subdivision or regional activities).
  • Appeal rights on resource consents – No rights of appeal in relation to boundary activities, subdivision, or residential activity, unless the activities are non-complying.
  • Permitted activities – Boundary activities approved by neighbours on infringed boundaries, and activities involving ‘marginal or temporary non-compliances’, are deemed permitted activities.
  • Streamlined and collaborative planning processes – There are now additional options to prepare and change plans.
  • Development capacity – Councils have a new function to ensure there is sufficient development capacity for business and residential land, with further amendments to align relevant definitions with the National Policy Statement on Urban Development Capacity 2016.
  • Limited notification of plan changes (and now also plan variations) – Can now occur provided all directly affected persons can be identified.
  • Regulation-making powers – Additional regulation-making powers now apply but require the opportunity for public comment and the Minister to have particular regard to the report on public comments.
  • Preparing NPS and NES (together known as “national directions”) – NPS/NES can be region/district specific, but consultation must be nationwide.
  • National Planning Standards (previously known as National Planning Templates) – Have been introduced with public submissions now required. However, there is no right for submitters to be heard or a requirement to consult with stakeholders on technical provisions.

Next steps
The passage of this legislation is the latest in a suite of reforms of the RMA, often designed to tackle particular regional issues or to fix what is often just symptomatic of under resourced councils. In our view, the result is an unwieldy and inelegant piece of legislation that has moved far beyond its original intent.

A major rethink is required – whether that means binning the RMA and starting fresh, or taking a hard and principled look at the RMA and enacting further reforms, will be a matter for Parliament to consider following the election. 

Allison Arthur-Young and David Alley

Goodbye to the RMA? Productivity Commission releases final report on Better Urban Planning

The Productivity Commission released its final report on “Better Urban Planning”. We have previously reported on the draft report in our September 2016 issue of the Resource Management Update.

Most notably, the Commission’s report proposes a new statute to replace the RMA that would distinguish between natural and built environments, while outlining how to manage the interrelationship between the two environments. The proposed new statute would retain some of the conceptual elements of the RMA, but would introduce different institutional arrangements as well as checks and balances aimed at improving planning outcomes at the local, regional and national level.

In addition to a replacement for the RMA, the Commission’s report makes 64 recommendations including that:

  • Plan reviews and plan changes across the country be undertaken by local independent hearings panels rather than councils.
  • Spatial plans (such as the Auckland Plan) become a standard and mandatory component of the planning hierarchy, with spatial plans to provide for future growth including identifying infrastructure corridors, public open spaces and conservation areas.
  • Māori participation in, and ‘stewardship’ of the planning system be provided for through a National Māori Advisory Board, which would monitor how the planning system gives effect to the principles of the Treaty of Waitangi, advise central government agencies and carry out an audit of the planning system every five years.
  • A value-capture tool for councils be established to help fund infrastructure projects, such as through targeted rates on changes in land values.
  • Urban development authorities be established to oversee joint public/private development projects and allow for the fast track of consents, compulsory acquisition powers and coordination between different infrastructure arms of councils.

The Commission’s recommendations would herald a major overhaul of the current system and have been met with endorsement from a range of sectors. While we consider a major re-think of the RMA is required (as discussed in relation to the passing of the Resource Legislation Amendment Bill), given the obstacles the current Government has faced in trying to get its latest reforms through a further rewrite of the law will make people nervous. Separating out urban and natural resource management may help to at least confine the inevitable debates.

To view the final report and related documents click here

Allison Arthur-Young and David Alley

Unitary Plan update – plan changes coming

On 28 March 2017, Auckland Council’s Planning Committee granted approval for officers to progress and report back on plan changes to the Auckland Unitary Plan. The first ‘administrative’ plan change is intended to correct errors, including:

  • corrections if it is clear the Panel’s recommendation was not carried through;
  • corrections to reflect agreements reached between submitters and Council through mediation where the Panel accepted the agreement but this was not reflected;
  • amendments to correct provisions where it does not change the policy or intent of the provision;
  • corrections to overlays, precincts, zones or controls where the spatial application is clearly wrongly applied;
  • corrections to the schedules where there is clear discrepancy between Council’s closing statement and the Unitary Plan and if the matter was agreed between parties but appeared silent in Panel’s recommendation; and
  • updating the GIS viewer to land recently vested as open space, roads or other types of reserves.

Council officers proposed that the plan change be notified in August 2017 and proposed that any errors be identified for consideration by 13 April 2017. Anyone who is aware of an error is encouraged to inform the Council by that date at this email address.

The second proposed plan change will be to correct errors in the notable tree schedule. The plan change is proposed to address mapping issues, incorrect information in the schedule, or items missing from the schedule or included by mistake which are causing ambiguity for the consenting process and impacting the protection of notable trees. We consider the Council may also look to use this process to comprehensively review the scheduled trees to add or remove others.

Council officers proposed that the scheduled trees plan change be notified in mid-2018, so it is still some time away.

Processing of private plan change applications
Under the Resource Management Act 1991, the Council has discretion to decline to process requests for private plan changes for the first two years after the relevant provisions became operative. The Planning Committee has adopted the following criteria that the Council will take into account when considering whether to accept private plan change requests during this two-year period:

  • any matter specified in clause 25 of the First Schedule to the Resource Management Act 1991 (clause 25 sets out the jurisdiction of local authorities when considering how to process a private plan change application);
  • whether the outcomes of any plan change:
    • align with the Future Urban Land Supply Strategy;
    • give effect to the Auckland Plan;
    • follow Appendix 1 – Structure Plan Guidelines of the Auckland Unitary Plan for any structure planning related plan change; and
    • give effect to the environmental outcomes expected and effectiveness of the Auckland Unitary Plan [sic].

We recommend any person considering a private plan change is cognisant of these criteria and makes efforts to engage closely with the Council before committing significant resources to preparing a request.

Bronwyn Carruthers and Michael Doesburg

Development of the National Planning Standards – the inside word

The Resource Legislation Amendment Bill 2015 proposes the introduction of National Planning Standards (previously referred to as National Planning Templates). The purpose of the Standards is to provide a consistent and standardised structure for the development of policy statements and plans around New Zealand, and is likely to extend into significant content too. 

Bronwyn Carruthers is a member of the Think Tank put together by the Ministry for the Environment to be used as a sounding board on the development of the form and content of the Standards. 

The Standards are proposed to have the following three categories:

  • minimum requirements for the structure and form of policy statements and plans;
  • consistency in content that may already be similar in form and / or function across New Zealand; and
  • consistent recognition of national direction in plans, by providing plan content, in order to support more consistent implementation of national direction.

The Ministry is currently finalising papers on a number of topics, including:

  • the structure of regional policy statements, regional and district plans;
  • the format for policy statements and plans ie format of objectives, policies and rules as well as navigational tools and design elements;
  • the use of metrics;
  • definitions; and
  • eDelivery and electronic functionality of plans.

The Ministry is proposing to develop a shared online forum for early consultation on these topic papers. This will be an interactive and shared workspace so that interested persons and parties can comment on the topic papers, and easily and quickly see the comments made by others. 

Where to from here?
The Ministry is undertaking an engagement phase from April to July this year, which will start with the launch of the online forum. The Standards will then be developed with pilot Councils over the next year, with draft Standards being released for formal public consultation in mid-2018. Following consideration of any submissions received, the Ministry is aiming for the Standards to be gazetted in March 2019 (as required by the Bill).

Bronwyn Carruthers

Waikato has a plan – draft Waikato Plan notified for submissions

The draft Waikato Plan is currently open for public consultation: The Plan is a high-level strategic document that sets out long-term priorities for the region. While the Plan is not a statutory document, it will provide guidance for future regional and local planning documents, as the Auckland Plan has.

The five high-level priorities identified in the Plan are:

  1. Planning for population change (growth and decline).
  2. Connecting communities through targeted investment.
  3. Partnering with iwi.
  4. Addressing issues around the allocation and quality of fresh water.
  5. Advancing regional economic development.

Some of the key actions identified by the Plan are:

  • Developing a high level Regional Development Strategy which would identify future residential, employment and industrial areas and key infrastructure needs.
  • Identifying the regional priorities for infrastructure investment.
  • Improving transportation, including through alternative funding mechanisms, encouraging electric and driverless vehicle uptake, integrating Waikato and Auckland Transport networks, and establishing a freight and logistics action group.
  • Implementing the Waikato Economic Development Strategy, known as "Waikato Means Business" and developing a Regional Investment Prospectus to assist business and industry in making informed decisions when planning for growth.

While one of the key priorities of the Plan is addressing water allocation and quality, the draft Plan notably has only one key action in relation to water: to develop the Waikato as a “Waters Centre of Excellence”. The first phase involves supporting the University of Waikato and NIWA’s Freshwater Institute and its focus on research, and the second phase will look at the more difficult issues such as technology change, population growth, rural intensification, industrial growth, community engagement, cultural expectations, developing resistance and compliance management.

Have your say
The Plan’s public submission period closed on 10 April. Public hearings will take place later in April and early May, with implementation of the final Plan due to begin in August. 

Daniel Minhinnick and Jess Riddell

King Salmon and the identification of ONLs – Man O’War Station Ltd v Auckland Council

Proposed Change 8 to the Operative Auckland Regional Policy Statement introduced two new ONLs on Man O’War’s land. Man O’War submitted on the change, then appealed to the Environment Court. After the Environment Court hearing, but before the decision was released, the Supreme Court released its decision in King Salmon. The Environment Court reserved leave for parties to make further submissions in light of the King Salmon decision, an opportunity that was not taken up by Man O’War. Instead, Man O’War subsequently appealed the Environment Court’s decision to confirm the two ONLs on its land. The High Court rejected Man O War’s appeal. Man O’War then appealed to the Court of Appeal.

Given the now strict approach to the avoidance of adverse effects where policies say avoid, questions arose as to where the bar should be set for classifying land as ONL (outstanding at a national or regional level?), keeping in mind the consequences of affording land that status.

The Court of Appeal held that whether land has attributes sufficient to make it an ONL requires an essentially factual assessment based upon the inherent quality of the landscape itself:

[i]t would be illogical and ultimately contrary to the intent of s6(a) and (b) to conclude that the outstanding area should only be so classified if it were not suitable for a range of other activities.

The Court considered that King Salmon has not changed the threshold to be applied in deciding whether a landscape is outstanding for the purpose of s6(a), despite the fact the degree of protection for those landscapes has changed. 

The planning consequences that flow from the fact the land is an ONL were also held to be irrelevant in determining whether or not it is an ONL. These are conceptually separate ideas and the Court was not persuaded there is a logical link between the two. The Court was not persuaded that the ongoing use of Man O’War’s land would constitute adverse effects on the values of the specified ONLs.

Consistent with King Salmon, it is ‘inappropriate’ subdivision, use and development that is to be avoided, with inappropriateness assessed by reference to what is sought to be protected. It is not all adverse effects, nor all activities, that are to be avoided.

Bronwyn Carruthers

‘Overall broad judgment’ for resource consents hangs in the balance – High Court’s Davidson decision

The R J Davidson Family Trust has recently applied for leave to appeal to the Court of Appeal, with the application to be heard by the Court in mid-May, on the ground that the High Court misinterpreted the need to assess applications for consent under s 104 ‘subject to Part 2’.

In the meantime, the Environment Court is continuing to grapple with arguments regarding the application of Davidson and the ‘overall broad judgment’ approach, with differing results.

Judge Smith’s division, in a recent decision in Envirofume Ltd v Bay of Plenty Regional Council [2017] NZEnvC 12, held that Part 2 remains relevant to resource consents for the following reasons:

  • as an overview or check that the purpose of the Act and that Part 2 issues are properly covered and clear;
  • to focus the Court or decision makers on the overall purpose of the consent in question; and
  • as a check that the various documents have recognised, provided for, or given effect to the Act and other documents in the hierarchy.

That approach differs from the approach taken by Judge Jackson’s division (which originally heard the Davidson appeal), reinforced in its recent decision in Infinity Investment Group Holdings Ltd v Canterbury Regional Council [2017] NZEnvC 36. The Court in Infinity affirmed its approach in Davidson (and the High Court's reasoning on appeal), and further held that, while regard still needs to be had to the higher order documents between a district or regional plan and Part 2 in the ‘planning hierarchy’, considerably less weight will be attributed to those documents if they have already been given effect to further down the hierarchy. It also confirmed that, in the event that a lower order planning document is invalid, uncertain, or incomplete, regard must first be had to the next higher-order document to attempt to cure the defect, rather than ‘unlocking’ general recourse to Part 2. It is only if the defect continues up through the remainder of the hierarchy that recourse to Part 2 is required.

In light of the differing approaches being taken, by both the Courts and the parties, we consider the Court of Appeal’s guidance may be very useful to clarify what it determines to be the correct approach.

Daniel Minhinnick and Aidan Cameron

Settlement of Unitary Plan error of law appeals

High Court confirms an error of law is actually required to amend the Plan
The decision on Man O’War Farm Limited’s High Court appeal alleging that Auckland Council made various errors in relation to its inclusion of certain provisions in the decisions version of the Unitary Plan has recently been released. The decision is important as it concerned the Court's jurisdiction to amend the Unitary Plan where a settlement of an appeal has been proposed by the parties. 

In early February, Man O’War and the Council, along with the other parties to the appeal, approached the Court indicating a settlement had been reached and that all involved agreed the aspects of the Plan subject to the appeal required clarification. Amendments were drafted to make the clarifications the parties agreed were necessary, and the Court was requested to use its powers under clause 20.19 of the High Court Rules to approve the amendments.

Although the Court agreed it had jurisdiction to approve settlements to amend the Unitary Plan, it found it could only do so where it was first satisfied the decision challenged was made pursuant to an error of law. Here, it was being asked to approve a settlement notwithstanding there was no agreement between the parties as to whether an error had been made; there was no material before it on which it could satisfy itself there was such an error; and without a hearing being held to determine that question. The Court considered, without resolutions on these questions, it was in effect being asked to insert provisions the parties themselves think are preferable. To do so, however, the Court found would be inappropriate, as it would be inconsistent with the public and participatory approach to the Unitary Plan’s development. 

As a result of the Court’s decision, parties seeking to settle Unitary Plan High Court appeals should ensure there is agreement that a clear error of law was made before they seek the Court's approval of any settlements which seek to amend the provisions of the Plan. In practice, the decision may decrease the number of Unitary Plan settlements, where there is a reluctance on the part of Auckland Council to agree that an error of law has been made. 

Bronwyn Carruthers and David Owen

This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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