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Day Two Session Three: Writing methods and rules

Discussion

Methods

Should methods still be included in plans?

Discussion opened by noting that the inclusion of methods in a regional policy statement was still required, but was discretionary in regard to regional and district plans. Rules could not be included in a regional policy statement, but this did not mean that methods could not be worded in a directive way.

Some participants suggested that it was still useful to have all methods listed in plans. This would assist consent staff to become aware of the bigger picture of how the plan is being implemented, assist budgeting and internal planning, and provide evidence of a “carrot and stick” being applied within a single document. A question was raised concerning how often “other methods” were really used. A straw poll from around the group suggested it was variable, possibly due in part to the differing levels of council commitment to using them (or allocating budget), the additional amount of administration that was involved, or vague and general wording.

While others felt that s.32 documents and other plans could play an equally valid role in coordinating and listing methods, note was made of the higher ‘faith’ the public had that methods in the Resource Management Act 1991 plans would be implemented.

Further discussion concerning retention of methods is summarised in the following table:

Removing methods from plans Keeping methods in plans
  • Non-regulatory methods are rarely used and often have costs that councils (present and future) may not be prepared to fund.
  • Lengthy lists of methods add to the bulk of a plan.
  • The LTCCP can be used to list / describe ‘other methods’ and more effectively coordinate funding through financial strategies and the Annual Plan.
  • Having methods outside the plan makes them less visible and gives the perception they are not important
  • Plans are more than regulatory documents
  • Non-regulatory methods assist in achieving the purpose of the RMA
  • Having methods in s.32 reports are not beneficial as once the plan is operative the s.32 is forgotten.
  • Inclusion of non-regulatory methods promotes integration and overall planning across council departments (including budget planning)

One possible solution was to divide the plan into two parts. The first part would consist of the mandatory plan provisions. The second part of the plan would contain the wider context-type information including options and non-regulatory methods. A danger with this approach is that the second part of the plan could be seen as less important and over time ignored. It was noted that some first generation plans with multiple volumes had already experienced this in regard to their policy or issues identification volumes. A question was raised as to whether the issue was really about managing perceptions of non-regulatory methods, or was it that regulatory staff do not have the time to set up or implement non-regulatory solutions? The group noted that there may be element of both but no real investigation had been done to confirm this.

The group suggested a set of consideration for assisting in deciding whether and what (if any) methods should be included in plans.

  • Who is the intended audience for the plan?
  • What will the community accept?
  • What sort of information is being looked for by plan users?
  • What methods are better included in the LTCCP or other plans?

The group also made observations to the effect that if the intent was to only have rules, then there was no need to have lists of methods in plans (ie, the method is regulatory or rules only). However, section 32 still required the assessment of other means to achieve the objectives of the plan – not just rules.

RMA plans and the LTCCP

In looking at how a plan was implemented it was important to look at the wider picture. There are plans outside of a district or regional plan (such as the LTCCP or asset management plans) that need to be recognised and linked to. Resource Management Act 1991 plans are a tool through which the environmental outcomes of an LTCCP can be implemented, but equally the LTCCP and other plans present an opportunity through which some of the non-regulatory Resource Management Act 1991 methods can be implemented. The LTCCP itself presents a good opportunity to coordinate finances for non-regulatory methods

It was acknowledged that many LTCCPs have not really been developed, or were developed in a way that synergies between plans were looked at or refined this time around. The suggestion was made that councils should, and may be better able to, refine and coordinate the relationships between the plans next time. It was suggested the Ministry for the Environment could provide a map/diagram or comment on the timing of regional policy statement and plan reviews in relation to LTCCPs. Andy Ralph said that they already have a similar sort of model that was necessitated in part by the SmarthGrowth BOP project.

Greg Hill noted that given the more directive nature of the regional policy statement, methods in that document will need to be more specific, directive and clearly worded.

Rules

Changes in legislation

Jan Crawford opened the discussion on rules by noting that there was a shift from what existed before, as rules were now mandatory and that no explanations of those rules are now required to be in the plan. Karen Bell noted that while explanations were not required in every case, there is still an important role for definitions to be included in a plan, and that an increased level of consistency between regional councils and their territorial authorities in using common definitions is needed (to avoid gaps or overlaps in the way some issues are managed). It was generally acknowledged that there should be greater consistency in definitions, but that individual circumstances somehow needed to be taken into account. A central “New Zealand set” of definitions may help, but they should be a reference point rather than mandatory. The Ministry for the Environment seemed to be the logical organisation to produce such a set.

Jan Crawford also noted that another change that had occurred since the first generation of plans had been prepared was the more explicit use of the permitted baseline concept. Bill Loutit noted that the permitted baseline only really applied to permitted activities under the Resource Management Act 1991. In further discussion the group noted that factoring the permitted baseline into rules required careful analysis of what was actually permitted by the rules – and looking closely to see if there were unintended effects. This could be done through running a series of hypothetical development proposals through the rules before they are notified, to see what may or may not be allowed. It was noted that this was in some ways similar to what previous case law had proposed, in that the permitted baseline was essentially related to what was hypothetically possible provided it was ‘not fanciful’.

General principles in rule writing – updating guidance

The group was then asked to go through the existing Ministry guidance on writing rules and suggest changes that needed to be made or improvements. In general, the group appeared to be in agreement that the existing guidance made a useful starting point which essentially needed to be updated with more examples included. It was felt that guidance should also mention that explanations accompanying rules were not now required.

Jan Crawford then asked the group to identify what other things needed to be considered when writing rules:

  • When writing plans the cascade of rules should start with permitted activities.
  • Rules should probably be grouped according to activities, or in some cases geographic areas.
  • Permitted activities should not be written in such a matter that makes them subject to conditions (including financial contributions).
  • It is important to remove subjectivity or unintended discretion through the use of words such ‘should’, ‘approximate’, or ‘appropriate’.
  • The use of bullet points in rules should be avoided. For referencing sake, use of roman numerals or some other form of numbering should be used in regard to lists.
  • Where appendices are crossed referenced from the body of the plan it is helpful for the appendix itself to refer back to the plan provisions from which it was derived. It was suggested the explicit guidance be provided by the Ministry for the Environment on the use of appendices.

Prohibited activities

There was a short discussion around the future of prohibited activities based around the decision from Coromandel Watchdog Group and Thames Coromandel DC v Ministry of Economic Development and the New Zealand Minerals Association CIV 2004-485-1838. It was noted that what appeared to concern the Court was the unjustified manner in which a blanket prohibited activity was being used, along with the inference that “prohibited activities” could be used like another resource consent class, by suggesting to the applicant that a plan change would be required to undertake certain activities.

It was suggested that in relation to prohibited activities:

  • The activity status only be used where there is clear justification based on effects and information gathered about the activity.
  • The activity status needed to be linked strongly to policies and objectives to help reinforce, justify and clarify why the prohibited status is in place.
  • The activity status should not be applied in a blanket manner, but probably sparingly according to the geographic areas where such activities should not be allowed regardless of potential mitigation or remedial measures that may be put forward.
  • While the law theoretically allowed the prohibited activity status to be altered to a more permissive status via a plan change, it was not advisable to include reference to this in a plan.

Examples of prohibited activities in plans that seem to be working including airport noise restrictions (NZS 6805 provisions), some of those drafted for Aquaculture Management Areas and height limits near Mauao (Mount Mauganui).

‘Catch all’ provisions

Discussion turned briefly to the use of “catch all” rules. It was noted that there had been a change in the Resource Management Act 1991 that meant that the effects of activities not listed in plans were now discretionary rather than non-complying. Comment was also made that “catch all” rules do not need to be supported by policy, as authority for their position comes from the Resource Management Act 1991 itself. It was suggested that future guidance should provide more information on “catch all” rules, such as when they should be used and under what circumstances. It was also noted that section 68(5) provides a possible basis for “catch all” provisions in a regional plan, by referring to rules that require a consent for an activity causing, or likely to cause an adverse effect.

Notification clauses

Guidance was also requested on notification provisions for plans. In particular, there was interest as to who should be notified and what type of notification should be applied. It was noted that those required to be notified were those ‘adversely affected’ by a proposal. ‘Adversely affected’ people were identified by the courts to include those with a proprietary interest, or those whose interest was greater than the general public. The type of notification required is set out by law in regard to the two tests under s.93;

  1. are effects more than minor? (if yes, then full notification is required); and
  2. if the answer to ‘1’ is no, has the written approval of all affected parties been obtained? (if no, then limited notification is required, if yes, the consent need not be notified).

However, the Resource Management Act 1991 also allows the plan to specify when notification may be waived or required, regardless of the two tests (for example s.94D(3)). Guidance was requested as to what circumstances waiving or explicitly requiring notification could be required. As a starting point, it may be possible for councils to review their own consents to see if there were any circumstances where it was consistently shown that an activity had minor effects that did not require notification, or, that when notified, there were never any submissions that altered the final decision in any way.

Assessment criteria and policies

Discussion briefly returned to the use of assessment criteria in plans. As they operated currently in the plans that have them, assessment criteria is designed to provide guidance to consent officers when they are exercising their discretion. In some cases, this can come at the expense of policies being ignored in favour of these criteria. It was put that assessment criteria may not actually be needed if objectives and policies are specific enough to give sufficient direction and guidance. For example, there could be specific assessment policies to provide guidance as to what is important in considering consent applications. It was suggested that the Ministry provide guidance on how to incorporate assessment criteria into plans. It was also noted that:

  • Assessment criteria in policies would need to be definitive (possibly in terms of being clear as to what was being assessed, where, and to what extent).
  • It is important that assessment criteria are seen in, and given, sufficient context.

Using tables

The final point of discussion referred to the use of tables in plans. It was felt that tables could serve as a useful road map to rules and other provisions, but care was needed to avoid their overuse. To work well, tables needed to clear and self explanatory. Careful consideration was also needed as to how they will work on-line or in electronic formats where wide tables do not fit easily on computer screens and are cumbersome to move around.

Key points

  • The present Ministry for the Environment Guidance still serves as a useful basis but needs to be further developed and updated with more and better examples.
  • There needs to be greater consistency in the use of definitions. The same definitions need to be used throughout the plan (i.e. the same ones used in policies as in rules), and where possible across the regional policy statement and plans (to assist in “giving effect to” and consistent administration).
  • Rules should be grouped according to activity class in a logical cascade.
  • Summary tables at the start of chapters work well.
  • Permitted activities should have clearly measurable thresholds
  • Reviewing existing [granted] resource consents can inform rule drafting for second generation plans (such as assisting to determine when notification will not be required, or in making changes to activity class by modifying standard consent conditions for use as permitted activity standards).
  • Assessment criteria and rules:
    • permitted activity rules should stand on their own
    • matters over which a council retains its discretion should be clearly stated as such
    • assessment criteria should be based on the matters identified in the relevant policies and be couched as policies.
  • Prohibited activities should only be used where they can be clearly justified. They should not be used as a blanket-type provision and should not be used if it is anticipated and deemed acceptable for applicants to get around prohibited activity status through a plan change.
  • The relationship between standards that form an appendix in a plan, and the rule to which they relate needs to be made clear. Cross references between the two (going both ways) need to be explicit so that it can be seen when they are part of a rule and not just information.

Questions for possible follow up in guidance note

  • What is the permitted baseline? How do you apply it in the drafting of rules? How is “cumulative effect” incorporated into rules to avoid unintended consequences?
  • When should ‘catch all’ provisions be used? Under what circumstances should they be applied?
  • How do you write limited notification clauses into plans? Under what circumstances should notification be made mandatory by a plan or waived?
  • If ‘information requirements’ are taken out of plans, where should they be located?
  • Ministry for the Environment Guidance would be helpful on the following topics:
    • Notification clauses in plans
    • Writing directive policies and methods in the regional policy statement
    • Assessment criteria / policies
    • ‘Catch all’ provisions in plans
    • How to incorporate the permitted baseline into rules.
    • A national set of definitions for inclusion in plans to promote consistenc

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Last updated: 26 October 2007