Naturally Resourceful

02 Apr 2009

Proposed reform of the RMA plan change provisions

Submissions are due on the Resource Management (Simplifying and Streamlining) Amendment Bill on 3 April 2009. Having reviewed the proposed amendments, the majority of the comments and concerns in our earlier FYI (The Proposed Resource Management Act Amendments - Some Preliminary Comments) remain. 

In this final FYI on the Bill, we provide additional comments in relation to the proposed amendments to the plan change provisions. 

Improving plan development and change processes

The explanatory note to the Bill lists one of its main measures as being to "introduce mechanisms to speed up and reduce costs in the plan preparation and change process". While many of the proposed amendments will achieve this aim, others have the potential to introduce uncertainty and increase delays.

Review of plans

The Bill removes the compulsory requirement for territorial authorities to review their plans every 10 years. Instead, a territorial authority would be required to commence a full review of its district plan "if the plan no longer assists the authority to carry out its functions in order to achieve the purpose of the RMA" (clause 56: replacement section 79(2)). 

Many, but not all, territorial authorities carry out rolling reviews of their plans so the requirement for a 10 yearly review was both unnecessary and ineffective. 

However, the proposed amendment is vague and broad ranging - it could be narrowly interpreted as only requiring a review if the entire plan (rather than parts of it) no longer assist the territorial authority. While case law has determined that "plan" extends to mean "parts of plans", there is potential uncertainty about whether it would continue to apply to this provision.

The proposed amendment also provides no guidance about how a territorial authority is to determine that the plan is no longer of assistance. Is an adverse comment or decision from the Environment Court needed? Is it enough to receive internal or external advice that a provision could be problematic? Is criticism from members of the community enough? 

There could be more certainty that reviews would occur as they are needed if the proposed new section 79(2) was drafted in a similar manner to proposed new section 25B(3) (clause 19). This latter provision provides the Minister with an explicit power to direct a territorial authority to commence a review of all, or part, of a plan. The Minister must also set a timeframe for commencing the review. 

The Bill does not remove the requirement for regional councils to carry out compulsory 10 yearly reviews of regional planning documents. As with district plans, the Bill provides the Minister with powers to direct a regional council to carry out a full or partial review of regional planning documents.

Legal effect of plan changes

The Bill proposes a new section 86A (clause 59) which provides that a rule in a proposed plan or change does not have legal effect until:

1. the decision on submissions relating to the rule is made and publicly notified; or
2. the ability to make a submission or lodge an appeal has passed (or the appeal has been determined or withdrawn) in accordance with new section 86C (previously, section 19, which would be repealed); or
3.  the proposed plan or change becomes operative in accordance with clause 20 of Schedule 1 but only if "before publicly notifying the proposed plan or change under clause 5 of that schedule, the local authority concerned makes a resolution to this effect" and public notification includes that resolution. 

The Bill provides exceptions for rules that protect water, air, soil, areas of significant indigenous vegetation, areas of significant habitats of indigenous fauna, historic heritage, or that provide for an aquaculture management area. These rules will have legal effect from the date of public notification. There is also the ability to apply to the Environment Court to have particular rules take effect earlier. 

The delay in rules taking effect would enable them to be tested before landowners have restrictions put on their properties. However, one risk of such an increased "lead-in" time is that there could be a flood of applications for inappropriate development immediately before the proposed rule has legal effect, with the aim of circumventing the rule. This result could ultimately undermine what the proposed rule seeks to achieve.

Making further submissions

The Bill proposes a number of amendments to Schedule 1 of the RMA. The right of any person to make further submissions would be removed. This right has been replaced by the ability for a local authority to "seek the view of any person that it considers may be adversely affected by a matter raised in a submission" (clause 148: new clause 8 Schedule 1). 

As drafted, new clause 8 provides a discretionary power, which is open-ended. The Bill provides no guidance about who may be adversely affected. It is not limited to people who made submissions generally or who made submissions on a particular matter. It could potentially relate to the entire community, or large parts of it. There is the potential for significant delays for the plan change process as views are sought. 

Any decision by a local authority to seek views, or perhaps not to seek views, or about the parties who it identified as affected could potentially be open to legal challenge, and resulting delays.

A concern about the ability to seek views is that this process does not give a person whose view is sought standing to appear at any hearing. Further, while submitters are notified of any views obtained, there is no ability to comment on those views. The only ability to respond to the views obtained lies with the Council. 

Overall, we consider that this proposed change would create cost, delay, risk and uncertainty.

Submissions by trade competitors

The Bill attempts to limit the ability of trade competitors to lodge submissions on plan changes. Submissions are only allowed if the trade competitor is directly affected by an effect of the plan change that adversely affects the environment and does not relate to trade competition or the effects of trade competition. Trade competition is discussed in detail in our "FYI: The 'supermarket circus' - Trade Competition under the RMA" (March 2009).

Decisions on matters raised in submissions

The Bill streamlines Council decision-making on submissions so that the decision does not need to address each submission individually. Instead, submissions can be grouped and decided by issue. This is a beneficial change. 

However, while the aim of the Bill is to streamline decision-making, the timeframe for a local authority notifying its decisions on submissions remains two years.

Decisions on notices of requirement

Consistent with proposed amendments to Part 8 of the RMA, the Bill gives territorial authorities decision making power on notices of requirement that are included in a plan change (clause 148(10): replacement clauses 9(1) and (2) of Schedule 1). 

Proposed new clause 14(2B) of the 1st Schedule retains the ability for a requiring authority to appeal a Council's decision on the merits. However, as with decisions on notices of requirement under Part 8, there is no ability to comment on any restrictions or conditions that are imposed through the plan change process (due to there being no requirement for a territorial authority to issue a draft decision). Notices of requirement are discussed further in our March "FYI: The Resource Management (Simplifying and Streamlining) Amendment Bill".

Appeal aspects - withdrawal of plan change as a whole / points of law

The Bill removes the ability for an appellant to seek the withdrawal of the proposed plan change as a whole. This proposed amendment brings the appeal rights in line with the powers of the Environment Court (which has no power to order the withdrawal of an entire plan). However, the ability to lodge a submission seeking the withdrawal of a whole plan change is not barred.

Proposed new clause 14(2A) limits appeals on plan changes (other than designations and notices of requirement) to questions of law only, except in cases where the appellant has sought the leave of the Environment Court (under proposed new section 280A). An application for leave would only be granted if the local authority's decision:

• has a significant impact on existing property rights;
• fails to give effect to Part 2 of the RMA; or
• is unclear in meaning or effect.

This proposed change places a considerable reliance on careful, objective and high quality policy planning at local authority level. Currently, the Environment Court plays a critical role in considering the merit and quality of plan change provisions.

However, the broad ranging basis for seeking leave to appeal on the merits could undermine any streamlining, and instead simply result in an extra step in the plan change process.

Ministerial intervention on plan changes

The Bill broadens the type of applications for which Ministerial intervention can be sought. Changes to district plans, variations to proposed plans, and proposed regional plans are now included. 

The Bill provides the ability to make applications for Ministerial intervention to the Environmental Protection Agency (EPA). Such intervention could result in clearer processes, time and cost savings, particularly when Councils lack resources to effectively process private plan change requests.

However, a local authority could not apply to the EPA for changes to its own plan. Instead, it would need to apply to the Minister. It is not clear why local authority initiated plan changes or variations have been distinguished in this way. 

Combined district / regional plans and regional policy statements

The Bill would allow all local authorities within the same region to combine to prepare a single document that fulfils the requirements of a regional policy statement, regional plans, and district plans. 

There is a benefit in allowing regional policy statements, which set the policy direction for the region, to be combined with regional plans and district plans. This approach may reinforce the requirement of section 75(3) of the RMA for district plans to "give effect to" regional policy statements.

Removal of non-complying activity status

The Bill removes the non-complying activity category of activities (clause 147). This change will come into force 3 years after the rest of the Bill. 

Each local authority would be required to amend its plan or proposed plan within the 3 year period. After that time, any activity that is still referred to as a non-complying activity would be deemed to be a discretionary activity. 

This proposed amendment is concerning. Non-complying activity status is the primary tool for managing activities which are regarded as generally inappropriate and/or which do not meet specific standards (ie height limits, water quality standards and minimum flows etc). Policies would have to be very clear and directive to provide guidance about undesirable activities. 

Authors

Heather Ash

Partner - Public Sector

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Duncan Laing

Partner - Public Sector

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Bill Loutit

Partner - Public Sector

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Padraig McNamara

Partner - Public Sector

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James Winchester

Partner - Public Sector

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