Environmental / Resource Management

Resource Legislation Amendment Bill 2015: Amendments to the plan making provisions

The Resource Legislation Amendment Bill (the Bill) proposes a suite of amendments to the Resource Management Act 1991 (the RMA) so as to achieve the sustainable management of natural and physical resources in an efficient and equitable way. In particular, the Bill proposes a number of changes to the plan making processes in the RMA.

The Bill introduces two new planning tracks, resulting in a total of three different tracks by which a council can produce a plan:

  1. The existing track which now has tighter timeframes;
  2. A new collaborative track to encourage greater front-end public engagement, intended to produce plans that better reflect community values and thereby reduce litigation costs and lengthy delays; and
  3. A new streamlined track to provide for more flexibility in planning processes and time frames and allow these to be tailored to specific issues and circumstances.

Other amendments relevant to plan making include:

  1. Insertion of new Subpart 1 of Part 5 (Standards, policy statements and plans) relating to a National Planning Template;
  2. Insertion of new Subpart 2 of Part 5 relating to iwi engagement; and
  3. Miscellaneous amendments to Schedule 1.

PLANNING CHANGES

On average, it takes six years for a new plan to be made operative under the current regime. The Bill amends this scheme in three ways:

  1. Councils will need to seek the approval of Minister for the Environment to extend the 
two-year time limit (from date of notification) in which they are required to make 
decisions on a proposed plan or plan change;
  2. When it is easy to identify who is directly affected by a plan change, councils will be 
able to limit notification to only those people who are directly affected; 
and
  3. Provide clarification that councils can give effect to a proposed Regional Policy 
Statement when it is developed as part of a combined plan.

Further, the Bill inserts two new subparts to Part 5 and amendments to Schedule 1 which outline the alternative plan making routes.

The Collaborative Track

This approach is based on the Land and Water Forum where different interests are encouraged to work together to find resource management and planning solutions.

Proposed new subpart 4 to Part 5, comprising new section 80A, gives an overview of the collaborative planning process.

Proposed new Part 4 of Schedule 1, comprising new clauses 36 to 73, sets out the procedural matters applying to the local authority's use of the collaborative planning process for a change to a policy statement or plan.

Importantly, where notice is given of a local authority's choice to use the collaborative planning process, a collaborative group is to be established. The appointments made to the collaborative groups "collectively...reflects a balanced range of the community's interests, values, and investments in the relevant area as they relate to the resource management issues to be considered by the group".

The provisions in new Subpart 4 include relevant matters such as:

  • the considerations relevant to the choice of this process, including ensuring consistency with its obligations under any relevant iwi participation legislation or arrangement;
  • the notification requirements; and
  • the appointments to be made to the collaborative group, the terms of reference, and publicity and reporting requirements.

A review panel is also required to be established by the local authority to hear submissions and make recommendations on a proposed policy statement or plan in the course of the collaborative planning process undertaken under this Part.

Proposed new Subpart 4 also makes provision for:

  • a local authority, if it has begun preparing, changing, or reviewing a policy statement or plan before the provisions authorising the use of a collaborative planning process come into force, to use a collaborative process in accordance with the arrangement set out in amended clause 14 of new Schedule 2; and
  • rights of appeal under the collaborative planning process.

The Streamlined Track

This approach is used where the council and Government agree on a tailored approach to specific local conditions.

Proposed new subpart 5 to Part 5, comprising new sections 80B and 80C, sets out the purpose and scope of the new streamlined planning process. In particular, the process requires a local authority to apply to the Minister for a direction to use this process. Proposed new section 80C sets out criteria that must be satisfied before the streamlined planning process may be used. An application must be made first under this new subpart before a local authority can give notice under clause 5 or new clause 5A of Schedule 1 or new Part 4 of Schedule 1.

Proposed new Part 5 of Schedule 1, comprising new clauses 74 to 93, sets out the procedural matters applying to the local authority's use of the streamlined planning process for a change to a policy statement or plan. In particular, clauses 74 to 91 outline:

  • the application requirements and how an application is to be dealt with;
  • the responsible Minister's power to direct that a streamlined planning process is followed; and the Minister's decision on the proposed planning instrument once the streamlined planning process has been followed; and
  • the rights and obligations of the local authority that applies for, and enters into, a streamlined planning process.

The planning instrument approved under this process becomes operative from the day after the date on which public notice is given in accordance with the relevant section.

Importantly, there are no appeal rights in respect of the streamlined planning process but judicial review rights are preserved (proposed new clause 93).

NATIONAL INSTRUMENTS

The Bill proposes to include new material on National Environmental Standards (NESs), National Policy Statements (NPSs), and the National Planning Template (NPT) under the new subpart heading "National instruments". The aim of introducing the NPT is to increase consistency and reduce the complexity of plans throughout New Zealand.

The NPT must set out requirements or other provisions relating to any aspect of the structure, format, or content of regional policy statements and plans to address matters that the Minister considers are nationally significant or require national consistency. Specific requirements are outlined in proposed new section 58C and include (inter alia):

  • the structure and form of regional policy statements and plans;
  • objectives, policies, methods (including rules), and other provisions that must or may be included in plans or regional policy statements; and
  • time frames for councils to give effect to the NPT.

This is relevant to the plan making process in the sense that any district plan must "give effect to" the NPT (in accordance with the proposed amendments to section 75). Likewise, the NPT is proposed to sit alongside obligations on local authorities in relation to preparing and publishing evaluation reports under sections 32 to 32A.

IWI ENGAGEMENT

The Bill seeks to improve consistency in iwi engagement in plan development.

To this end, new section 34A(1A) (in Part 4 of the RMA) is proposed which requires local authorities to consult tangata whenua, through relevant iwi authorities, on the appointment of hearings commissioners with an understanding of tikanga Māori and of the perspectives of local iwi and hapū for the purpose of hearings under Part 1 of Schedule 1. If the local authority considers that it is appropriate, the local authority must make at least 1 such appointment in consultation with the relevant iwi authorities.

Similarly, section 32 is proposed to be amended with the insertion of new subsection (4A) which requires evaluation reports to summarise all advice received from iwi authorities under Schedule 1 and the responses to this advice.

The Bill inserts a new subpart 2 to Part 5 "Iwi participation arrangements" to provide for local authorities and iwi authorities to discuss, agree, and record how tangata whenua, through iwi authorities, are to participate in the plan-making processes under Schedule 1 (section 58K).

New section 58L requires local authorities to invite iwi authorities representing the tangata whenua of a region or district to enter into 1 or more iwi participation arrangements. This requirement is triggered by a triennial general election held under section 10 of the Local Electoral Act 2001.

New section 58M sets out the required content of iwi participation arrangements, including:

  • how an iwi authority party may participate in the preparation or change of a policy statement or plan; and
  • how the parties will give effect to the requirements of any provision of any iwi participation legislation.

Importantly, proposed section 58P provides that any relevant iwi participation legislation prevails over an iwi participation arrangement.

Accordingly, there are a number of amendments proposed to Schedule 1 to provide for greater iwi involvement, including:

  • Proposed policy statements or plans are to be prepared in accordance with any applicable iwi participation arrangement (clause 1A);
  • Local authorities are required to seek and have particular regard to iwi advice given on the draft proposed policy statement or plan before notification (clause 4A); and
  • Iwi participation arrangements are also to apply in Part 2 of Schedule 1 (which relates to requests for changes to policy statements or plans and for the preparation of regional plans) (clause 26A).

MISCELLANEOUS AMENDMENTS TO SCHEDULE 1

Limited Notification of plan changes

Clause 5 of Schedule 1 of the RMA is amended to provide that a local authority proceeding with a change to a policy statement or plan may either publicly notify, or give limited notification of, the change. The procedure for giving limited notification of a change is set out under proposed new clause 5A of Schedule 1.

The Bill amends Clause 6 of Schedule 1 to clarify the distinction between submissions made under the clause 5 notification process and those made under the limited notification process of proposed new clause 5A. Proposed new clause 6A sets out the requirements for the latter. Consequential amendments to clauses 7-8A and 25 are also proposed.

Extensions of time for decisions on provisions and matters raised in submissions

Proposed new clause 10A to Schedule 1 enables a local authority to apply to the Minister for an extension of time for making its decision on a proposed policy statement or plan under clause 10. Before making an application, the local authority must taking into account:

  • The interests of any person who, in its opinion, may be directly affected by an extension;
  • The interests of the community in achieving adequate assessment of the effects of the proposed policy statement or plan or change to a policy statement or plan; and
  • Its duty under section 21 to avoid unreasonable delay.

The application for extension must set out the local authority's reasons for the request and the duration of the extension required. If the Minister grants an extension, the local authority must give public notice of that extension.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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