Day One Session One: How directive should a regional policy statement be?
Discussion
The role of the RPS and ‘directiveness’
Discussion commenced with Hans Versteegh (Marlborough DC) describing the role of the regional policy statement in Marlborough. The regional policy statement provides the overall direction for two regional plans based on geographic areas (“Sounds” and “Waiau-Awatere”). The regional policy statement assists in setting the context for the plans (providing a description of the issues and how it is intended to deal with them), and is often relied upon in Environment Court cases. The view was put forward that the regional policy statement should be quite directive, given that it sets the overall direction for the region / district, ensures consistency of policy and assists in integrated management.
Duncan Laing was invited to make comments on regional policy statements under the Resource Management Act amendments. He noted:
- The starting point for the regional policy statement is s.62 of the Resource Management Act. This section sets out that regional policy statements should contain issues, objectives, policies and methods (excluding rules).
- The regional policy statement can have a mandatory type influence, but only within the objectives, policy, and methods framework. Provision that must be given effect to can only be written as a policy or a method.
- A tension now exists concerning what “give effect to” will actually mean. “Not be inconsistent with” is virtually the same as “give effect to” where policies are directive (see Auckland Regional Council v North Shore City 1995). However “give effect to” does not provide any leeway as it is a higher threshold. Councils will need to work smarter to achieve better alignment.
Greg Hill added the point that the more directive nature of “give effect to” may mean the vaguer “shall encourage” wording found in some plans may need to be replaced.
There appeared to be general agreement that the next generation of regional policy statements will need to be more directive than those of the early 1990s. The regional policy statement was also expected to have a much greater influence on the content of regional and district plans than they do now. There seemed to be a view that the regional policy statement was often considered to be a “regional council document” and that it should instead be seen as a ‘regional document’ for both regions and districts.
Changes in regional council functions and the relationships between councils and council planning documents means that regional policy statements need to, and have more scope to, move beyond biophysical bottom lines and into land-use planning issues as well. This will require an increased level of cooperation between regional councils and territorial authorities, something already envisaged by the Resource Management Amendment Act 2005. Territorial authorities have the expertise to assist regional councils in developing land-use strategies, but some in the group felt that care was needed to ensure that contributing authorities were able to work towards agreed regional outcomes, rather than reflecting the diverse political views that may be held by their elected representatives.
Martin Butler (EBOP) advised that councils in the Western Bay of Plenty were already working together in a cooperative manner as part of the SmartGrowth project. In implementing SmartGrowth (an urban growth management framework), the regional policy statement has the appearance of being a rule without actually being one (a regional policy statement can not contain rules under the Resource Management Act).
Tony Quickfall (Nelson City) noted that it was more than just the provision of direction that mattered, the regional policy statement also needs to provide clear connection between provisions and clarity as to what the intent of those provisions are. Explanations and reasons are still required to be part of the regional policy statement.
Clarity and directiveness become particularly important when there are many councils with different issues and interests within a region. Karen Bell (Auckland City) gave an example of the Auckland situation which raised questions as to whether the differences between TLAs should be dealt with in a manner that is wide ranging and in great detail, or whether policies in the regional policy statement should be left to be more general so as to provide for flexibility. A further challenge was presented by the fact that many district plans were prepared and notified before the regional policy statement came into force. This in turn limited the ability of the regional policy statement to provide integration. It is a challenge that will continue into the second generation of planning documents as they come up for review. Greater attention will be required to the sequencing of plans and the whole plan development process (including consultation) not just notification. Such sequencing will require a higher level of cooperation between regional and territorial authorities than what existed during the development of first generation plans.
Issues in the RPS
Comments about inconsistencies in regional policy statement interpretation by the Environment Court led to discussion on the vagueness of wording seen in first generation regional policy statements. That vagueness was seen by some as a risk avoidance technique, or the result of trying to accommodate the wishes of many parties in such a way that did not result in there being losers elsewhere. In other cases, the regional policy statement became a de facto strategic planning document incorporating material not really suitable for the regional policy statement, or the wooliness was attributed to no one having had experience in writing such a document before. Duncan Laing made point that whatever the origin, the wooliness meant that the regional policy statement became all things to all people and provided little in the way of strong direction. The key was to identify the significant resource management issues of the region and to write objectives and policies around them.
The suggestion was made that the first generation of regional policy statements had insufficient rigour applied to enable the significant issues to be properly identified. Good consultation and a robust collaborative process that sees regional and territorial local government working more closely together may assist in better identifying issues and possible responses. Triennial agreements under the LGA require a more collaborative process for regional policy statements, and provide a possible means around which collaborative relationships can be built. Karen Bell noted that the challenge will be to get councillors operating and engaged in collaboration between regional councils and TLAs, and this could become quite political. A regional policy statement that is directive may not get unanimous approval from TLAs regardless of how collaborative the process is.
Key points
- The starting point for deciding on the content of a Regional Policy Statement is still s.62 Resource Management Act 1991. The mandatory imperative of “give effect to” will be expressed through policies and methods.
- The Resource Management Amendment Act 2005 confirms a top-down hierarchy with the regional policy statement giving direction to plans. This has increased the expectation or requirement for a regional policy statement to be more directive than before.
- Some policies and methods in a regional policy statement may take on a directiveness similar to, but not the same as, rules.
- The requirement to ‘give effect to’ a regional policy statement through a regional plan or district plan is an active duty that replaces the more passive requirement to ‘not be inconsistent with’.
- The more directive nature of the regional policy statement will require a greater level of justification via s.32 than that which existed before.
- The regional policy statement is a document for the region, not a regional council document. The Resource Management Amendment Act 2005 strengthens this and anticipates a collaborative approach between regional councils and territorial authorities in the development of the regional policy statement.
- The triennial agreement under the Local Government Act 2002 is a key means to foster collaboration as well as consultation. Collaboration will be very important in preparing the next RPSs, and could be seen as the precursor to “giving effect to” a regional policy statement.
- Sequencing the development of the regional policy statement in relation to plans will be critical to ensure that the regional policy statement is ready in advance of plans (so that plans do not need to be subsequently changed again). Sequencing needs to be looked at not only in terms of notification, but for other elements (such as consultation).
Last updated: 26 October 2007
