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Questions and Answers – Resource Management Amendment Act 2005

The following ‘Questions and Answers’ should be read in conjunction with the information sheets that give an overview of the amendments to the Resource Management Act 1991 made by the Resource Management Amendment Act 2005 and what those changes mean in practice.

The ‘Questions and Answers’ below are some of the inquiries and responses that have been received by Ministry for the Environment staff since the Resource Management Amendment Act 2005 was passed on 10 August 2005. We have also updated (updates are denoted with an asterisk '*') these Q&A to reflect questions asked at the Talk Environment Roadshow RMAA05 workshops.

Resource consents

pre-circulation of evidence
further information
pre-hearing meetings and mediation
hearings
accreditation

Council functions

Plans and policy statements

Environment Court

National leadership

Consultation and joint management

Allocation

Resource consents

What effect do the amendments have on existing resource consent applications?

All applications for resource consent lodged after 10 August 2005 must follow all the requirements of the Amendment Act, including the new process for requests for further information and council decision (section 113).

Consent applications lodged before the Amendment Act came into force (i.e. on or prior to 10 August 2005) will not be required to follow the requirements of the amendments (i.e. they will follow the requirements of the RMA prior to this amendment as if this amendment hadn’t been enacted) with some exceptions. The exceptions apply if a hearing has not commenced prior to the 10 August 2005. The exceptions are:

the new reporting requirements for pre-hearing meetings and the ability for the Council (with the consent of the applicant) to require persons to attend pre-hearing meetings
the ability of the council to refer an application to mediation
the requirement for the chair of a hearings panel to be accredited (although this will only apply if the hearing is held after 10 August 2006) and the requirement that the majority of the hearings panel be accredited (although this will only apply if the hearing is held after 10 August 2007)

Is there now a requirement to gain approval for the preparation of an officer’s report (under section 42A)?

Section 42A clarifies that officers’ reports are prepared at the request of the consent authority (as distinct from further information reports, which now require the permission of the applicant). It is not intended to create a process whereby the consent authority must formally request a report for each consent before a report can be prepared.

Officers’ reports may be prepared under a general delegation and there is no need for a formal request in each case. Whether an amendment to delegations and processes is needed as a result of this amendment to section 42A will depend on how the existing delegations for the preparations of reports and processes are structured. It is always good practice for councils to review delegations, processes, and forms when an amendment is made to the RMA. Please refer to the Quality Planning guidance note – Delegations and Transfers for more information on delegations.

Pre–circulation of evidence

How will the ‘provision of evidence’ prior to hearings sections work in practice?*

If the consent authority directs provision of evidence before the hearing, then the applicant must present briefs of evidence to the consent authority 10 working days before the hearing commences, and a submitter using expert evidence must present briefs of evidence to the consent authority five working days before the hearing commences. We recommend that if the local authority is requiring provision of evidence in this way, that they should circulate the officers report 15 working days before the hearing (ie prior to requiring the evidence from applicant and submitters). To facilitate the provision of evidence in these cases, the time period for beginning the hearing has been extended to 40 working days after the close of submissions. A consent authority may wish, when it receives such evidence, to provide it to the other parties who will be heard at the hearing.

When should the decision be made that provision of evidence before the hearing is appropriate? Is it after close of submissions, or is it by the reporting officer as the hearing date comes closer?*

A direction to provide evidence cannot be made too close to a hearing because there must be sufficient working days available for that evidence to be provided. Therefore such a direction could be made after the close of submissions but should not be made less than 15 working days before the hearing. Provision of evidence before the hearing will not be appropriate in every case. It could be useful where the application is complex or where there are conflicting opinions between experts. Earlier provision of evidence may enable a hearing committee to be better prepared and to assume a more inquisitorial role.

Will an applicant have the opportunity to prepare and circulate rebuttal evidence?*

This is not specifically provided for in the Act and doesn’t need to be because the consent authority can regulate its process at hearing. An applicant could therefore rebut any conflicting evidence at the hearing, if this is provided for by the consent authority.

Further information

What is meant by ‘written notice’ in section 92? Is email correspondence okay?*

Written notice given by the consent authority of a request for further information should be a notice in writing given to the applicant. This could take the form of a letter and many councils will have standard letters for this type of request that covers all the requirements of the request. A written notice could be sent by email but the council should check its processes for sending and receiving emails under the Electronic Transactions Act before this is used as the standard mode of requesting further information by written notice.

At what stage can a decision to decline an application for insufficient information be made?

A consent authority can request further information from an applicant at any reasonable time before the hearing, or before a decision is issued if there is not a hearing. If the applicant fails to respond to this request in time, or fails to provide the information in the time set by the consent authority, or refuses to supply the information requested, then the council can decline the application if it considers it has insufficient information to determine the application. The Act does not specify whether the decision to decline could take place before a decision on notification.

As a matter of best practice, it would be sensible for a Council that is faced with a deficient application to consider whether it should be notified before determining whether to decline the application. If a decision is made to decline the application for insufficient information which the Court overturns and the application should have been notified and was not, this could lead to the Court determining the application without any opportunity for submissions by affected parties. The risk of this happening is not great however because the Court can’t approve an application if it should have been notified in the first place. Each case should be balanced on the amount of information that is available. Really, section 88 should be used in the first instance to make sure that applications are sufficient when they are first lodged. Remember there are five working days to reject in the first place, which is the opportunity to ensure that there is sufficient information to make a decision. Councils should consider this risk before deciding to decline for insufficient information prior to notification.

Why does the council have to decide whether to notify a resource consent application before requesting further information?*

They don’t but it is advisable. The Act does not specify whether the decision to decline for insufficient information could take place before a decision on notification. Although as a matter of best practice, it would be sensible for a Council that is faced with a deficient application to consider whether it should be notified before determining whether to decline the application for insufficient information. The potential risks of not notifying before requesting further information are described above.

Who should make the decision to decline on the basis of insufficient information?*

This will depend on the scheme of delegation for the council. Councils may need to review their delegations to ensure it is clear who may make these decisions.

If an applicant refuses to provide further information is there still an opportunity to object back to the Council under section 357?

Yes. An applicant may object to the councils request to provide the information under 357A(1)(b). The objection must be made within 15 working days after the request and the council must consider the objection within 20 working days (section 357C provides).

When a council declines an application under section 92A(3)(b), and the matter goes to the Environment Court for determination, does the Environment Court (under section 92A(4)) determine the whole application, or does it provide a declaration to council as to how to proceed?

The Court will first decide whether the council had sufficient information to make a decision. If the Court finds that the Council did not have sufficient information then it must decline the appeal under section 92A(5). This means that the applicant must lodge a new application if it wants to obtain resource consent. If the Court determines that the council did have sufficient information, then the Court will hear and decide on the entire application, including the question in the first instance of whether the application should have been notified.

Pre-hearing meetings and mediation

Who should attend or chair a pre-hearing meeting?*

The RMAA05 does not specify exactly who should attend or chair a pre-hearing meeting but clearly sets out who can be invited or required to attend and what grouping of people can be involved. A consent authority may invite or require an applicant, submitter and anyone else it considers appropriate to attend a pre-hearing meeting with the authority. If the consent authority is going to require any person to attend the meeting it must obtain the applicant’s consent. The consent authority officer or person who will decide the application can only attend if all persons who will attend the meeting agree. Note the chairperson may be selected by a council or by the persons at the hearing.

The number of parties who should attend a pre-hearing meeting and whether they should be required to attend is dependent on the specific scale and nature of the matter in question. And as a matter of good practice, note that it is appropriate to think broadly and actively involve all parties who may have an interest in the matter.

Please refer to the Guidance Note on pre-hearing meetings. While still relevant, this guidance note will soon be updated to incorporate RMAA05 changes.

When is it appropriate to hold a pre-hearing meeting?*

Section 99(2) states that the consent authority can only hold a pre-hearing meeting for the purpose of clarifying a matter or issue or facilitating a matter or issue. Therefore it is not the venue for determining an application. You should also consider the issue of whether parties will attend. If the applicant does not agree to parties being required to attend they can only be invited. The pre-hearing may not be successful if the invited parties do not turn up. Therefore it may not always be appropriate to hold a pre-hearing meeting (depending on the attitudes of the parties involved).

Disputes often involve a lack of understanding and a pre-hearing meeting may add value by clarifying issues and resolving disputes. Holding a pre-hearing may not entirely resolve disputes and a hearing may still be needed. Nonetheless, following a pre-hearing meeting it is possible to go into a hearing and focus on the key issues.

Are pre-hearing meeting reports public documents i.e. can they be obtained under the Official Information Act?*

The chairperson of the meeting must prepare a report and circulate it to all parties who attended the pre-hearing meeting, five working days before the hearing begins. The report must set out the issues that were agreed to and those that are outstanding and may include any other information. If you did not attend a pre-hearing meeting and would still like a copy of the report, pre-hearing meeting reports are public documents and can be obtained. Note there are limited exceptions provided under LGOIMA when it is considered appropriate to refuse information requests. Further note that if any information is presented at the pre-hearing on a ‘without prejudice’ basis that information will not be reported (and consequently will not be available).

Who pays for pre-hearing meetings? Can the costs of pre-hearing meetings be recouped by a council or does it fall on the applicant?*

Under section 36 of the RMA the applicant can be charged for pre-hearing meetings as it could be part of the charges payable for the carrying out by the local authority of its functions in relation to processing and granting resource consents. Whether applicants are charged part or all of the costs of pre-hearing meetings will depend on whether the local authority fixes a charge for pre-hearing meetings in accordance with the section 36 process.

When is mediation at the council level appropriate?*

Mediation on resource consents under section 99A requires the consent of the persons being referred to mediation. As the parties cannot be compelled to enter mediation, it will only be appropriate in circumstances in which they wish to participate. The parties don’t have to agree on the issues that will be discussed in mediation in order to go to mediation but have to agree to the mediation process occurring. This may be a useful tool for councils in the right circumstances. The purpose of the amendment for this mediation was to provide a statutory mechanism to formally enable mediation and provide for the processing clock to stop whilst mediation takes place.

Are Environment Court commissioners available for mediation?*

The consent authority must delegate the role of conducting the mediation to an employee, hearings commissioner or any other person considered appropriate. Where the council is the applicant then the authority must appoint a mediator.

Hearings

Do the new hearing powers apply to preparation of and changes to plans and policy statements?*

Yes. Under new section 41A the new provisions for conducting hearings apply to hearings in relation to a range of matters identified under s39(1), including proposed plans and policy statements and changes or variations to policy statements or plans.

How far does the amendment to allow councils to make minor amendments to resource consents under section 133A go?

Section 133A allows a consent authority to issue an amended consent within 15 working days to correct minor mistakes or defects in the consent. This is intended to allow minor errors to be corrected without the need for a new application or appeal. The types of errors that could be corrected in this way include incorrect plan references and spelling mistakes or typos that were made in error. Any changes made using this provision of the Act should not change the intention or meaning of the consent or its conditions. This provision does not extend to reviewing consent conditions.

What are minor corrections?*

The type of minor corrections that could be amended in an operative plan under clause 20A of the First Schedule includes spelling mistakes or typos that were made in error. What amounts to ‘minor’ is a question of fact. The likely effects of altering a public document (plan) without further formality should be considered. The correction of minor errors in an operative plan cannot change the effect of the provision being amended. If there are effects the correction is probably not minor. Note that there is also a provision for altering information of minor effect or correcting errors in proposed plans or policy statements under clause 16 of the First Schedule.

What is the process for making corrections?*

Minor errors in both operative and proposed policy statements and plans may be corrected without ‘further formality’ that is without having to prepare a plan change to amend the plan. As noted above it is appropriate for the council to consider the effect the minor corrections will have on the public to ascertain whether the correction is minor. If a council is proposing to make minor corrections to errors in a plan, the council should check its delegations to determine who (either a council staff member or the council itself) can make the minor corrections.

Can the correction of minor errors be delegated?*

Yes, under section 34A. Note that the approval of a policy statement or plan cannot be delegated or the decision on a resource consent but minor errors to a resource consent or plan are not an approval or decision.

Does an objection under section 357 to a decision made by the consent authority to strike out a submitter (e.g. for failing to attend a pre-hearing when required to do so) need to be dealt with before a hearing can be held?

There is nothing in section 357 that precludes a hearing being held or a decision made before an objection has been decided. If the decision on the application is made and the section 357 process runs in parallel, then if, on appeal, the Court overturns the council’s decision to strike someone out, then the decision on that application could be challenged by way of judicial review in the High Court. Other avenues may also be available to the struck out submitter, including seeking an injunction or damages.

Councils should use the powers to strike out submissions very carefully, and only if they have a high degree of confidence that the Court would uphold their decision to strike out the submitter.

The strike out powers cannot be used until two years after commencement of the Amendment Act. This is to allow training for hearings commissioners, and to align with the requirement that the majority of decision makers on hearings are accredited.

What is meant by "main findings of fact" in relation to section 113? *

In this context, the main findings of fact are the facts that the consent authority considers are important in reaching their decision on the application. This may include stating which facts are relied in the event of conflicting evidence.

Accreditation

Is there assistance available for iwi to participate in the Making Good Decisions Programme?*

Participation under the Programme by Māori who are practicing or aspirant hearing commissioners is welcomed by the Ministry, whether they are elected as councillors or perform the role as independents. The Ministry has improved the marketing to Māori of opportunities to participate in the Programme.

When will the next Making Good Decisions course be held?*

The Ministry works with the Programme licensee (the University of Auckland 's Centre for Continuing Education) to schedule rounds of training, as and when the need arises. To indicate an interest in certification, please contact Libby Passau at the Centre for Continuing Education, on (09) 373-7599 x88532 or l.passau@auckland.ac.nz For more information on the programme, read the Making Good Decisions page.

Council functions

Why was the regional council function for urban form that was in the original Bill, deleted?

The Local Government and Environment Select Committee, who considered the submissions on the Bill, recommended deleting the function for urban form and its definition. The Committee considered that the intention behind this function would be achieved regardless by a combination of the new function to integrate land use with infrastructure (new section 30(1)(gb)) and regional councils’ existing function in section 30(1)(a) to achieve integrated management of the natural and physical resources of the region.

Does the new regional council function for allocation of natural resources extend to allocation of land?

No. The allocation function does not extend to allocating land or crown minerals. New section 30(1)(fa) allows a regional council to allocate water takes and uses, heat or energy from water, heat or energy from material surrounding geothermal water, and the ability of air or water to assimilate a discharge (using rules in a regional plan). Allocation of open coastal water, and space in the coastal marine area can occur, if appropriate, in conjunction with the Minister of Conservation.

Plans and policy statements

When does a district or regional plan have to ‘give effect to’ a Regional Policy Statement?

A district or regional plan must comply with the new requirement to ‘give effect to’ a Regional Policy Statement (RPS) when that RPS is reviewed, changed or varied. This means that plans do not have to give effect to the current RPS, but will need to be changed to give effect to the RPS when:

that RPS is changed or varied and that change or variation made operative, or
that RPS is reviewed (as is required every 10 years) regardless of whether the decision following the review is to keep the RPS unchanged, or to change it.

When a change, replacement or variation to the RPS is made operative (or the RPS is reviewed and the decision made not to change it) plans must be changed to give effect to the RPS as soon as reasonably practicable, or within a timeframe that has been specified in the RPS. Careful consideration will need to be given to what this new requirement will mean in practice.

Regional and district councils will need to work closely together to make this new requirement work. To facilitate this, the RMA now provides for a consultation process to be used between councils in the event of a review or change to the RPS to be agreed between the councils as part of the triennial agreement made under the Local Government Act 2002.

Territorial authorities should consider the current status of relevant RPS prior to embarking on any significant changes to their district plan; it is better to time in with RPS, where possible.

If there is a plan change in process, does this need to ‘give effect’ to the RPS?

No. Plans (and plans changes in process) do not have to be altered to give effect to the current regional policy statement, but only when that policy statement is changed or reviewed (and made operative). The ‘trigger’ is the policy statement change or review rather than the plan.

Section 65(6) (regional plans) and section 73(4) (district plans) provide that a plan (including those in the process of those being amended by a plan change) must 'give effect' to regional policy statements when a regional policy statement is reviewed, changed or varied and made operative. The changes must be made either as soon as practicable or within a timeframe specified within the regional policy statement.

Note that the RMAA05 (refer transitional provision section 131 of the Amendment) does not apply to a policy statement, plan, change, or variation that, on or before the commencement of this Act, has been publicly notified but has not proceeded to the stage at which no further appeal is possible.

Why has the timeframe for making decisions on plans been set at 2 years?

Research carried out for the Ministry for the Environment in 2004, shows that a two year timeframe from notification of plans or plan changes, to reaching council decisions on plans will be more than adequate in most cases. To assist in meeting these timeframes a number of other changes have been made to the RMA to speed up the plan making process, which will make this 2 year timeframe even more achievable. These include: reducing the content of plans and potentially therefore the number of submission points; improved hearing procedures to enable speedier hearings; and allowing proposed plans to be made operative even when variations have been proposed (the variations automatically become plan changes).

Is there any sanction for councils not meeting the 2 year timeframe for making decisions on plans?

No, there is no formal sanction for not meeting this timeframe. However, the Minister for the Environment may use the new powers under section 24A to investigate a local authority’s performance and recommend action. Where that recommendation was being ignored the Minister could also use the existing power under section 25 of the RMA to appoint a commissioner to carry out that function in place of the local authority if this was deemed necessary.

Do the changes to content of plans in sections 67 and 75 of the Act affect plans that have been notified but decision on submissions have not been made? Does this mean that councils can disregard submissions on matters other than policies, objectives and rules in a proposed plan?

Changes to the Act to reduce the compulsory content of plans to objectives, policies and rules, apply to any proposed plan that was been notified before commencement of the amendments.

Plans may still include matters other than objectives, policies and rules so submissions on these other matters are still valid and must be considered. However matters other than objectives, policies and rules could be removed from the plan as a result of decisions on submissions.

Does reference to external material in district plans (material incorporated by reference) that a plan already references need to now go through the requirements of Part 3 of the First Schedule?

No, clause 31 of the First Schedule provides a transition. This allows that any material incorporated into a plan by reference before the Amendment is to be treated as if it had been incorporated under s30 of the First Schedule.

Can material (i.e. standards, design guidelines) incorporated into a plan by reference be challenged?*

In effect yes. Material proposed to be incorporated into a Plan by reference can be challenged. Part 3 of the 1st Schedule, which was introduced with the RMAA05, allows material to be incorporated into a Plan via a Plan change process. Consequently, in the same way as it is possible to challenge proposed plan changes, it is possible to challenge the material to be incorporated into a Plan by reference. Note that a challenge does not relate to the material per se. For example, the Wellington District Plan makes reference (by the way of a plan change) to NZS 6808:1998 (Acoustics- The Assessment and Measurement of Sound from Wind Turbine Generators). I t is not possible to directly challenge the NZS 6808. Strictly, the RMAA05 allows for a challenge in relation to the proposal to incorporate material. Note that many District Plans, including the Wellington District Plan referred to above, have made reference to material prior to the RMAA05 and that this has been challengeable. By codifying this practice the RMAA05 can be seen to clarify what has already been established as good practice.

Input into whether material should be incorporated by reference is also available at an earlier stage, before a council notifies a plan. Under Schedule 1, Part III, s 34 the council must before it notifies a plan, consult on the proposal to incorporate material by reference as part of the plan. Reasonable opportunity must be given to comment on the proposal to incorporate and comments must be considered by the council.

What is the difference between section 293 now, and how it was before the amendment?

The new section 293 provides more explicit direction as to the procedure to be followed when a plan or plan change is to be amended as a result of a decision in the Environment Court. The Court is restricted to directing the nature of the changes to be made, with the drafting of the actual amendments resting with the councils. (The Court may give directions about the change, and must give reasons for directing a change.)

The council then submits those amendments back to Court for confirmation. The process is simpler than before, in that councils are no longer required to notify changes as plan changes or variations before submitting them to the Court.

Do the amendments make any changes to plan monitoring provisions?*

There have been no amendments to plan monitoring provisions. A council is still required to monitor the efficiency and effectiveness of its plan as required under section 35 of the Act.

Will there be a ‘sunset’ clause for transitional plans?*

No. The RMAA05 introduces no changes in relation to transitional plans. Nonetheless, as part of the ongoing development and review of the Resource Management Act the Ministry may address the issue of transitional plans.

Environment Court

There doesn’t appear to be any significant change to the role of the Environment Court in the Amendment Act, does the Environment Court have other requirements?

As the Environment Court is managing its own practice and reducing delays effectively, (through case management and extra resourcing), there was no need to change the law significantly. The Environment Court will continue to hear appeals de novo when this is appropriate.

The major change to the Environment Courts practice is the new requirement for the Court to have regard to the decision of the council which is under appeal (section 290A). This is complemented by the more stringent requirements for detailed council decisions (section 113) as well as the new mandatory requirement for commissioner accreditation, which will progressively have more effect over the next two years.

The Court may accept evidence that was presented at the council hearing without consent of the parties. The Court may also commission evidence from an independent expert, and may direct how evidence is to be given in Court.

A Court Registrar may exercise any of the powers under section 281 (waiving requirements or timeframes) if the power is conferred by the Principal Environment Court Judge, and a Registrar may waive, reduce or postpone payment of fee.

The Environment Court will continue to manage their case load in accordance with its practice notes.

Notification decisions may be challengeable in the future to the Environment Court , rather than the High Court. However this is deferred until such time as the Environment Court has the capacity for the potential of an increased workload, and will be brought into force by an Order in Council.

What does the Environment Court take into account? Does the Court have to look at the full transcript from every planning hearing that is appealed?*

Under section 290A of the Act, the Environment Court must have regard to the local authority’s decision that is the subject of the appeal. The starting point for the Environment Court will be the Council’s notice of decision issued under section 113. Amendments have been made to section 113 to ensure that the council’s decision is sufficiently detailed to enable the Court to understand the Council’s decision.

The Court is able to receive any evidence that it considers appropriate, including any evidence submitted to the Council. The Court can also call for anything to be provided in evidence that it considers will assist it to make a decision. The Court therefore can receive or call for the transcript from a Council hearing if it thinks this will be helpful. This is up to the Court to determine.

The Act does not require consent authorities to record all hearings. A consent authority has a discretion under section 41C to direct that evidence or submissions be recorded.

National leadership

Does new section 43B(3) "a rule or a resource consent may not be more lenient than a national environmental standard" mean that where a plan is more lenient than the standard, it must amend its rules to comply with the standard?

There is no express requirement for plans to be amended to ensure compliance with a standard. The effect of the amendment is that where plans are more lenient than a relevant standard, those plans will no longer have effect – in short, they are overruled by the standard. The national environmental standard has effect regardless of what the plan says – it does not need the plan to reflect its wording to be implemented. As a matter of best practice, councils should when reviewing plans ensure that they are consistent with national environmental standards.

Does the amendment to section 55 that allows an NPS to have direct effect on regional and district plans also apply to the New Zealand Coastal Policy statement?

Yes, section 57(2) states that sections 53, 54 and 55 apply to a New Zealand coastal policy statement as if it were a national policy statement.

Can the Department of Conservation make a submission where the Minister of Conservation is responsible for call-in (CMA)?/As the Minister of Conservation has the final say in matters in the CMA, is the Department restricted to submitting on the application in question?*

Any person can make a submission to the Minister where the Minister has called-in an application, including the Department of Conservation.

Who will be the lead agency for Crown submissions?*

Under the RMA, where there is an application for resource consent, notice of requirement or request for a private plan change that relates to an area outside of the coastal marine area, the Minister for the Environment can make a submission on behalf of the Crown. If the Minister decides to make a submission on behalf of the Crown, it is likely that the Ministry for the Environment will co-ordinate the preparation of the submission on behalf of the Minister. However, another Department may take on this role if it has particular expertise in the relevant subject area or resources to deal with it.

Where the matter relates to the coastal marine area, the Minister of Conservation can make a submission on behalf of the Crown. It is likely that the Department of Conservation will co-ordinate the preparation of the submission. Again, the particular circumstances may mean that another department takes on the role of coordinating a response.

If the Minister directs a council to prepare a plan on a resource management issue, does funding accompany this direction?*

The Act does not require the Minister to provide funding to assist a Council in complying with a Ministerial direction under section 25A. The Minister may only direct a local authority to prepare a plan or plan change to address a resource management issue relating to the relevant council’s functions under the Act. The capacity of the Council to address the issue will be one of the matters considered by the Minister when determining whether to make a direction.

Consultation and joint management

How do the new consultation provisions relate to those in the Local Government Act?*

The new consultation provisions are aligned with the Local Government Act 2002. This effectively occurs in clause 3 of the First Schedule, which requires a local authority consulting during the preparation of a proposed policy statement or plan, to undertake the consultation in accordance with section 82 of the Local Government Act 2002.

Section 82 of the Local Government Act 2002 sets out principles of consultation, which in brief include providing easy-to-understand summaries of proposals and plan; identifying who will be affected by decisions and encouraging those parties to make their views known to the council (councils must also give reasons for their decisions); and finding out what all the practical options are for dealing with issues and carefully assessing them. ^{[Summary sourced from Local Government website.]}

In regard to policy statements, councils within a region must agree to a consultation process to be used between them for the review change, or variation of a policy statement (clause 3A of First Schedule). Agreement on the consultation process must form part of the triennial agreement entered into under section 15(1) of the Local Government Act 2002. The agreement is to be in place by the March following local authority elections. If the process cannot be agreed upon, the local authorities must notify the Minister for the Environment, and may submit to mediation. If the mediation is not successful the next step is either for the Minister to appoint a person to decide the process or for the Minister himself/ herself to decide the process.

Clause 3B of the First Schedule sets out the process for local authority consultation with those iwi authorities whose details are entered in the records kept under section 35A. This process is similar to that in section 81 of the Local Government Act ‘Contributions to decision making processes by Māori’.

Clause 3C of the First Schedule enables councils to use consultation carried out on policy statement or plan matters under other legislation (for example, the Local Government Act) to automatically meet the clause 3 requirement, as long as those consulted were informed that the consultation could apply to the RMA and that the consultation occurred within the last 12 months. This avoids duplication of consultation processes under the LGA or RMA where the issues are the same.

What is ‘Te Kāhui Māngai’?

Te Kāhui Māngai is a database created by Te Puni Kōkiri that provides a national list of representative iwi and Māori organisations including iwi authorities, and hapū groups representing hapū for the purposes of the RMA. Te Kāhui Māngai fulfils the requirements of section 35A(2) in terms of the information the Crown must provide to local authorities.

What limitations are there on the power of councils to enter into joint management agreements? What ability is there for the public to comment on these arrangements?

A council must satisfy itself of several factors before entering into the agreement. These are:

That each group that is party to the joint management agreement represents the relevant community interest
That the partner group has the technical or special capability or expertise to perform or exercise any function, power or duty jointly with the local authority
That a joint management agreement is an efficient method of performing or exercising that function, power or duty.

Whether there is an opportunity for the public to comment on the establishment of joint management agreements will depend on whether the local authority exercises the special consultative procedure outlined in section 87 of the LGA. There is no clear requirement for a special consultative procedure for a joint management agreement in every situation. In practice some joint management agreements may require a special consultative procedure and others may not.

A special consultative procedure could be triggered under the LGA if the joint management agreement involves an alteration in the mode by which a significant activity is undertaken. This will depend on what the significant activities are that have been identified by the council (as required under section 90 of the LGA), and whether the joint management agreement involves an alteration in mode. This alteration must relate to a change in delivery of the activity by council to delivery of the activity by another organisation or person. It would depend on the joint management agreement as to whether it involves the change in delivery of a significant activity to another public authority.

There is still option for the council to choose to use the special consultative procedure under section 87 for any joint management agreement, but it is not mandatory.

A special consultative procedure will be triggered under the RMA where a joint management agreement involves a transfer of powers (under section 33 of the RMA).

Allocation

What is the status of existing de facto allocation regimes in plans?*

There is an provision (section 134 of the RMAA05) that says the new provisions in the amendment for allocation (sections 30(1)(fa) and (fb) and 4) do not effect existing plans (at 10 August 2005). Therefore any existing regimes in plans for allocation still stand.

What happens if there is an over allocation of permits?*

Subject to Part 2 of the RMA, a plan can allocate resources amongst competing activities. However, it cannot include rules that reallocate a resource that is subject to existing resource consents. This does not affect a council’s powers to set minimum or maximum flows under section 68(7) of the Act. Plans are not required to allocate the relevant resource in the way that reflects existing consents and plans do not have to anticipate applications for new consents to replace expiring ones. Therefore, plans can set rules that provide for reallocation of the resource when existing consents expire.

An allocation plan can therefore allocate a resource in a manner that responds to the capacity of the resource. An allocation plan can in effect address over allocation when each and every permit expires.

Information sheets

Information sheets explaining the changes are available. Topics covered are:

Last updated: 5 May 2008