Day Two Session Two: Writing objectives and policies
Discussion
Some guiding principles
Discussion opened with the proposition that in writing objectives and policies second generation plans will not be starting from scratch, there will be existing objectives and policies to review this time around, something to adapt and improve upon. Added to this is a growing body of case law containing useful directives to assist future objective and policy drafting.
Bill Loutit noted that there was a lot of room for improvement over the first generation plan objectives and policies. Many were so non-specific that they gave little guidance as to what the plan was trying to achieve. It was important that objectives and policies were:
- clear and certain, defining terms, what the course of action is to be, and what outcome is desired and where
- defensible and based on sound analysis.
Key guiding questions that assist the drafting process include:
- What is the resource or geographic area that the objective or policy applies to?
- What are the values connected with the resource or area that require management?
- What is the outcome being sought? Ask, what is to be achieved? – as a way of taking the issue further towards resolution.
Comment was also made that checking and rechecking of provisions and how they relate to each other needs to be carried out throughout the hearing process. Care needed to be taken to ensure that plan provisions were not diluted by constant revisions to the extent that they no longer met the objectives or managed the issues for which they were written. This, in turn, may require more directive advice to council hearings committees.
Objectives
General principles
Objectives should state what is to be achieved and where. Other points noted were:
- Objectives should do more than restate the issue or parrot the Resource Management Act 1991 – they need to state what is needed to be achieved to meet the purpose of the Act and to resolve issues (regionally or locally).
- There could be a hierarchy of objectives, with objectives to give effect to regional policies at or near the top.
- There is a move away from very short (e.g. 3-6 word) objectives towards ones that provide more specificity and certainty. The idea that an objective should be in the form of a sentence that was a clear, well defined statement of intent seemed to have broad support.
- Specialist advice may need to be brought in to help define terms used in the objectives, or to incorporate greater specificity (such as to what needs to be achieved and where) into objectives.
When reviewing objectives, Tony Quickfall noted that it was important to check them against resource consents that had been issued:
- Are the objectives being met?
- What problems have been encountered with them?
- How could the problems be addressed?
Others in the group noted that such questions were useful in reviewing current plan provisions generally, and should be part of plan effectiveness monitoring. It was important that plan provisions were able to reflect information gained through an effective monitoring programme to ensure that they were defensible and based on sound reasoning.
It was useful to check objectives and policies with consent planners in the drafting stage so that a quick and relatively objective assessment can be made as to how well they might work in practice.
In assisting planners to draft better second generation plans it was felt that new Ministry for the Environment guidance should address how broad objectives could be refined to be more descriptive and specific. Guidance was requested to assist resource management practitioners in the thought processes behind identifying issues, and the ways objectives could be worded to meet the issues in a more specific manner.
It was suggested by some of the participants that providing more specific objectives and policies may reduce the need for the lists of assessment criteria some plans contained. Transferring assessment criteria into policies could overcome some of the confusion that is experienced in implementation, as it would clarify what consents were being assessed against, and what matters of assessment were of importance.
Policies
General principles and concepts regarding policy
The Ministry guidance note on plan provision writing, and the Oxford dictionary, described a policy as “a general course of action to implement an objective”. It was felt that given the directive nature that some policies could now take, the word “general” should be dropped from future guidance. It was also felt that policies should identify who they apply to (or who is to implement them), as well as specifying the direction or course of action to be followed.
While earlier discussion had mentioned the “5 whys” as a possible technique to get to the heart of issues, it was suggested that the “5 Ws” could be used in similar way to think about drafting policies. “Where, why, what, when and who” could be questions that may help guide the writing of policies:
- Where does the policy apply to?
- What course of action is proposed for when?
- (What circumstances) and who is to implement the policy or who does it apply to?
- The ‘why’ may relate to circumstances under which the policy is to be applied or used by some councils in an explanatory capacity.
Directiveness and the use of ‘Should’ –v- ‘Shall’
Mention was made of past Ministry for the Environment guidance which said that all objectives should commence with the word “to” and that policies should contain the word “should”. The question was asked as to whether recent changes to the Resource Management Act had meant this guidance was out of date. “Should” did not appear to provide clarity and certainty and conveyed an element of discretion.
In discussion it was suggested that the advent of directive regional policy statements and court decisions such as the Auckland Regional Council –v- North Shore City (1995) [NZLR 18] case meant that policies could be directive, and the term “shall” could be inserted, replacing “should”. In some cases however it may be appropriate that discretion is exercised in the application of policies, such as in complex consent applications where some policies may conflict with, but be of lower importance than other policies. This suggested that there could in fact be a hierarchy of policies, those which were paramount and were to take precedence over others that use the directive term “shall,” and those which in the normal course of events should be considered, but would ‘give way’ to the directive policies if there was any conflict – ie: less directive, using the word “should” to convey an element of discretion. It was then of paramount importance that the plan was checked to ensure that directive policies did not conflict or create a situation where regardless of outcome, one of the conflicting directive policies could not be complied with.
There remains the question as to how directive a policy can be before it actually becomes a rule. The group were unable to come up with any specific measures as to how the two could be differentiated, other than the idea that rules were often very specific and were often associated with standards and terms. The Auckland Regional Council –v- North Shore City (1995) [NZLR 18] case may provide some principles that could be written up.
Key points
- Policies and objectives need to be clear, certain.
- Objectives should state what needs to be achieved, and where it is to be achieved.
- Policies could be guided by asking “how” an objective is to be achieved, “where” the policy applies, what course of action is to be taken and when, and possibly “who” is to comply with the policy.
- “Shall” could be used where policies are intended to be directive (e.g. in a regional policy statement), while “should” could be used where some discretion in the application of a policy is intended.
- Use of “shall” allows little discretion so its application requires careful and judicious consideration. Policies using “shall” will need to be carefully checked to ensure that they do not conflict with each other.
- Using consent processing staff to assist in drafting and testing provisions is recommended. Areas where they can assist include:
- identifying issues;
- checking the practicality of provisions and their implementation, clarity, certainty;
- checking that linkages between issues, objectives, policies and rules are clear;
- finding possible gaps and overlaps in policies and rules.
Questions for possible follow up in guidance note
- How do you refit existing objectives and policies to bring them up-to-date / in line with good practice? Guiding questions and tips?
- How do you refine broad objectives to enable them to become more specific in plans (with particular reference to LTCCP outcomes and refining existing objectives)?
- Would a ‘policy development checklist’ assist with writing clearer, robust policy?
- How directive can a policy be before it becomes a rule? Is it a matter of explicitly identifying something as a policy rather than a rule?
Last updated: 26 October 2007
