Day One Session Three: Regional and district plan structure
Note: This session saw the main group split into two streams, with regional and unitary authority staff discussing regional plans, and TLA staff discussing district plans.
Discussion
Regional plans
Existing regional plan structures
Discussion opened with group members talking about the content and structure of their existing regional plans.
- Tami Woods described a topic or issue based on the Greater Wellington regional plan.
- Tony Quickfall described the Nelson plan as being a fully integrated plan incorporating regional, district and coastal plan components. The overall structure bears a resemblance to a hybrid district plan.
- Hans Versteegh noted that Marlborough District too took an integrated approach that saw regional, coastal and district plans combined. The ‘Sounds’ plan is similar to the Nelson plan in taking what is essentially a hybrid approach.
- Martin Butler said that the Bay of Plenty has a number of separate regional plans covering distinct topic areas or resources.
Principles for writing regional plans
Discussion then moved on to guiding principles that could be applied in writing regional plans. Comment was made that it was important to consider who the plan was being written for. Plans needed to written with the end user in mind.
When writing rules, a number of features were considered to be worthwhile:
- Provide a clear trigger as to when a consent is needed;
- Group rules according to activities or effects;
- Have a summary table that can be used as a guide or ‘road map’ to activity rules throughout the plan;
- Provide clear linkages to and identification of, the relevant policies and objectives that relate to a rule (possibly in electronic hyperlink or database form).
It was noted that there were also a number of problems that were encountered with the first generation of regional plans, and that these included:
- A structure than made it difficult to understand where specific provisions were to be found;
- Subjective wording that ‘muddied’ thresholds for rules;
- Complex structures and layouts that did not provide clear linkages between provisions;
- Uncertainty in rules as to the standards that were to apply;
- Reluctance to use the permitted activity status;
- Uncertainty over the areas over which discretion was reserved.
Some of the confusion and uncertainty in regard to rule drafting appeared to arise out of the use of ‘assessment criteria’ alongside rules in some plans, whereas other plans assessed rules against policies. Comment was made that assessment criteria were useful in helping to assess controlled and discretionary activities. However, the matters over which control or discretion was to be reserved needed to be clearly identified and distinguished from standards or thresholds. Assessment criteria could be more specifically identified and worded as policies.
Drafting of issues in regional plans
Discussion moved briefly onto drafting issues in regional plans. Tony Quickfall suggested that plans needed to look beyond the current issues that might effect the regions environment and think ahead five, ten, or fifteen years time. Objectives and policies in plans needed to be written with these horizons in mind. It may also be helpful to identify overarching or higher priority objectives which provide the context and further guidance to activity-based objectives, policies and rules that follow.
Plans containing mandatory content only –v- Plans with all provisions allowed under s.67
The group was asked to comment on the prospect of reducing the content of plans to the minimum allowed by the Resource Management Amendment Act 2005.
The main points from the resulting discussion were:
- Issues are the basis from which rules originate and should remain in plans so as to maintain clear linkages.
- The ‘stripped out’ plan will require a higher level of detail and analysis to be included in the RMA section 32 report. This may simplify the content of the RMA plan, but may inadvertently result in outcomes that were not sought.
- Ultimately the content of a plan will depend on the preferences of individual councils and the political willingness [or otherwise] to adopt a particular style.
- As a guide, what the Environment Court finds most useful in interpreting plans are the objectives and policies and, to a lesser extent, the explanations. It would however be good practice to develop objectives and policies that can stand on their own without explanations (while acknowledging that this could be a challenge).
Other suggestions as to how to improve the structure and user-friendliness of regional plans included:
- Using summary tables of rules at the front of the plan that outline the rule, activity status and links to relevant controls.
- Including overarching and region-wide provisions at the front end of plans before moving to geographic area, or activity specific provisions (with a cascade of objectives policies and rules).
- Producing (ideally) one plan could improve linkages and integration.
Comment was made that the next regional plans would not be starting from scratch; they are likely to be based in some way on plans that exist now. While some councils may choose to radically restructure their plans, others may decide to make only minor alterations.
District plans
Good and not so good features of district plans
Based on his own experience Duncan Laing was asked to comment on what he considered were good features of existing plans, and what sorts of things needed to be improved upon.
Duncan began by saying that ‘effects-based plans’ were probably truer to the original intent of the Resource Management Act 1991 than alternative approaches, but they did not work well in situations where there was strong growth pressure. Standards in the effects-based plans he had seen tended to be too loose and subjective, with the plans resulting in outcomes the community probably didn’t intend.
Aspects of plan drafting that he considered to important were:
- Getting the linkages right (ie. clear connections between rules, policies and objectives and cross referencing);
- Eliminating, as far as possible, words that introduce subjective thresholds;
- Using plain English wording, but not where such words will reduce certainty or differ from terms used in the Resource Management Act 1991;
- Identifying and confirming that the relationships between land use and subdivision are clear and correct.
Duncan also observed that there were a number of features in plans he had seen that needed to be improved upon;
- The wording (or in some cases lack of it) concerning circumstances over which a council was reserving discretion or control was confusing, too open, or in some cases, absent;
- The threshold standards for changes in activity status were sometimes unclear or subjective;
- The wording of plan provisions that required a consent to be notified were not well worded.
What is ‘The Plan’ and who is the audience?
Discussion then turned briefly to two questions, what is the ‘plan’?, and who is the plan written for? Karen Bell asked if the plan was an electronic document or a hard copy document. It was noted that lawyers who had been asked to comment on this in the past had split opinions, with some believing that there had to be a physical document, and others believing an electronic copy would meet the intent of the law. Duncan Laing said that there was nothing in the Resource Management Act 1991 itself that required a district plan to be in hard copy format. The National Library Act does however require New Zealand publications to be provided to the National Library in printed form, and if it is electronic, in electronic format also. It was also suggested that given the expectations when the Resource Management Act 1991 came into force that district plans were to replace district schemes, it was probably assumed at that time that plans would be hard copy in format. The question was left open pending further investigation.
The question as to who the plan is written for emerged from a comment by Patrick McHardy. Patrick noted that, in his experience, regular plan users are almost all resource management professionals. This generated some debate. While professionals were likely to be the most common users of present plans, the question was asked if this was because businesses and the general public find them too confusing and rely on qualified professionals to assist with interpretation. It was possible that having greater consistency in plan structure nationwide could reduce some of the confusion people had in understanding planning documents.
There were also other considerations raised concerning the development of a more standardised structure:
- It could assist new staff to become more quickly acquainted with the plan (reducing down time and leading to more efficient service). This could be useful given that surveys have shown that planning staff, on average, spend less than four years in any one job or place.
- It could make it easier for consultants who are working on large projects that require consideration of many plans, to understand what is required and where important information can be found. This could have flow-on effects in regard to the quality of applications, time spent on application preparation and interpretation, and the cost to the applicant.
Comment was also made that some councils may favour having a standardised approach to plan formats as it could save further time-consuming argument over how to put a plan together, thereby allowing more time to be spent on formulating appropriate responses to issues.
The material being assembled by the Ministry for the Environment is in the nature of guidance and there is no intent to force councils to follow it at present.
Plans containing mandatory content only –v- Plans with all provisions allowed under s.75
The group moved on to discussions about what policy framework components should be contained in a district plan, given that the Resource Management Act 1991 only specified objectives, policies and rules as being mandatory. Duncan Laing said that issues probably needed to be kept in plans. Though the Environment Court looks at policies and explanations, issues and methods do not receive much attention.
While there was general agreement that reasons could be contained in a Section 32 report, there was uncertainty about how much this would shorten a plan, particularly where explanations were already written succinctly. In some cases it may only shorten a plan by a few pages, but in others much larger savings could be made.
Explanations were also something that had the potential to be transferred into some sort of external document, although there was not unanimous support for this. In some cases explanations play an important role in explaining complicated provisions, apparent discrepancies, or the relationship between provisions. Duncan Laing made the comment that explanations should not be a substitute for poor drafting and noted that additional wording could undermine what a provision was trying to achieve by creating interpretive uncertainty.
Debate over whether reducing the content of plans to cover only those matters that were now mandatory requirements raised the question as to how many councils would change their plans in future.
- Andy Ralph - Tauranga would probably retain the hybrid format but reduce the content by removing things such as explanations, reasons, and anticipated environmental results.
- Patrick McHardy – Manawatu District would keep their hybrid approach but may reduce the content.
- Pam Gare – the Invercargill Plan is different, and is more like a topic or issue based plan. Unsure what changes would be made at this time.
- Andrew Feierabend – Hurunui would probably continue with a hybrid plan, pooling issues into a single section (rather than having them spread throughout the plan) but retaining methods.
- Karen Bell – Auckland may stay with a hybrid plan style.
If councils were to adopt a plan with reduced content, the workshop participants felt it was important to strengthen the links to, and bolster the content of, external documentation so that the information was still available if and when required.
Should plans be reduced to containing objectives, policies and rules only, it is likely that external documents may become larger (for instance containing issues, explanations, methods and outcomes) as practitioners look for ways to explain:
- the content of the plan
- the context in which it sits
- the origin and intent behind some provisions
- the full suite of methods proposed for managing an issue.
Such additional components and commentary could be included in a modified section 32 report. A question was asked whether including components in a section 32 report would open them up to challenge. Duncan Laing said they probably wouldn’t be, as challenges to section 32 reports are based around non-compliance with the section (a challenge to the process as it was carried out rather than the content of the report). In regard to the weighting or attention the Environment Court may give provisions that are removed from the plan, Duncan Laing noted that court appeared to be most interested in objectives, policies and rules. Explanations and reasons were rarely considered.
It was also noted that section 104(1)(c) provided a potential means through which matters in a section 32 report could be considered in decisions on resource consent applications. This is not given heavy weight in the Resource Management Act 1991, and the degree to which a section 32 report could be used as a matter to be considered has not been thoroughly tested.
Key points
- Plan users consist of multiple audiences (the public, courts, resource management professionals, council staff [both present and future]). All would benefit from a plan structure that is logical, clear, and simple.
- There is general [but not unanimous] agreement that plans should contain as a minimum, issues, objectives, policies and rules. Explanations and methods are at the discretion of the council to include.
- Removing matters such as principle reasons, other methods, anticipated environmental results, cross boundary issues and monitoring procedures from plans increases the importance of this material being covered in s.32 and s.35 (plan monitoring) reports.
Regional plans specific
- Summary ‘rules tables’ at the start of the relevant chapters are useful
- Regional plans should commence with ‘generic’ region-wide provisions followed by the less generic provisions that only apply to particular topics/issues or particular geographic areas within the region.
- Methods seen as being at the discretion of individual councils.
- Assessment criteria need to be more specifically drafted as policies, rather than ‘matters to be considered’ as part of rules.
District plans specific
- Hybrid district plans are the preferred model (generic district-wide provisions, complemented by zoned or management area orientated provisions).
- Explanations can be reduced or used only when needed. Keeping methods in the plan is useful to provide the picture to staff, but not essential, and can be left to the discretion of the council. They could be replaced by short explanatory notes in some cases.
Questions for possible follow up in guidance note
- Who is the key plan audience? Who is the plan being written for?
- What is “the plan” – a hard copy document, an electronic document, or both?
- What are the pros and cons associated with having a series of regional plans based around a series of topics or issues verses the combined ‘omnibus’ plan approach?
- What is the recommended format to deal with the relationship between issues, objectives, policies and rules (i.e. should each be grouped so that all issues are together, all objectives together etc, or should there be a flow from issue to rules)?
- What is important to include for the benefit of the courts, verses wider audiences?
- How are issues raised through external processes (e.g. Local Government Act community outcomes processes) to be incorporated into plans with sufficient robustness, relevance and precision?
Last updated: 26 October 2007
