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Appendix 2: Opinion of Professor Miller

Notes to assist the Resource Management Act 1991 Review Committee

Non-Complying Activities

The Town and Country Planning Act 1953 (TCPA) was the first planning legislation in New Zealand which defined categories of planning consents. It identified two very distinct categories. Conditional uses were land uses which were deemed generally suitable in every zone but not appropriate for every site. As such the assessment of such applications revolved around the effects of the activity and the nature and character of the site, neighbourhood and environment in which the activity was to take place. The second category was the specified departure, applications for which were originally made directly to the Town and Country Planning Appeal Board, though for a relatively short time. These were applications to undertake land uses that were not provided for either in that zone or in that District Scheme and which might be expected to offend the provisions of a District Schemes. As such assessment of them involved an examination of the application in relation to the District Scheme as a whole and led to it being assessed against the policy part of the District Scheme, eth Scheme Statement with its objectives etc. In short the TCPA 1953 and its successor the Town and Country Planning Act 1977 (TCPA77) created two distinct categories of activity/land use in conditional uses and specified departures which had no overlap. This also meant that District Schemes could provide for land uses as Predominant and Conditional Uses but could not render a specific land use a Specified Departure. In essence the Specified departure was default category for any zone and the Scheme.

When the Resource Management Act 1991 (RMA) was written this distinction in the different categories of activities seemed to have got a little lost. The new act provided for a range of application categories including discretionary activities. The transition provisions of the act now deemed all conditional uses to be discretionary activities. However, the RMA now allowed all types of activities to be deemed to be permitted, controlled, discretionary (and eventually restricted discretionary), prohibited and non-complying activities, in a District or Regional Plan. It is interesting to note here that the wording used to describe the assessment required of non-complying activities was taken essentially word for word from the TCPA77. Most importantly however the RMA provided specific evaluative directions for the assessment of both discretionary and non-complying activities. With discretionary activities a quite logical assessment checklist was provided by s104 but this now included consideration of the policies and objectives of the Plan. With non-complying activities various sections (now S104D) required exactly the same assessment to be undertaken for a non-complying activity as is done for a discretionary activity. The only difference lay in the wording. Thus if the assessment of a non-complying activity led to it being approved or declined then the same outcome would be achieved if the assessment had been done as a discretionary activity. I would claim from the perspective of a planning historian and former practitioner that the two categories exist in the RMA only as the result of a relatively thoughtless transition from the TCPA77 rather than because logic supports the continued existence of the two different categories.

However, now that non-complying activities exist as a category of activity that can be provided for in a plan they have taken on a sort of ‘super discretionary activity’ status which encourages poor plan writing and consent assessment. Plan writers and politicians can use them as a ‘too hard’ category when writing plans and when they are in plans they can and are viewed as being unlikely to be granted in the way specified departures were. This however is wrong as the assessment of both categories requires consideration of all essentially the same elements both plan based i.e. objectives and policies and site based i.e. effects on the environment. As such there is no long any logical reason to have both categories and there has not been so since 1991.

A Specific Review Body for the Policy Parts of Plans

Again historically the RMA introduced a plan structure which stressed the policy aspects of the plan replacing the modest Scheme Statement with issues, objectives, policies etc. This was reflective of the times when policy was emerging as a specific undertaking and planning tended to be viewed a sub-set of policy. However, because the policy parts of a plan can be altered by submission and appeal, what ends up in a plan may no longer form a coherent statement from which the rules can logically be seen to have been derived. This has been made worse by the objectives and policies being frequently mangled by legal consideration which tend to create much narrower bands within which to construct provisions. Thinking of it logically only planners have the policy aspects of their plans held up to public scrutiny and alteration and this is presumably why many plans have no internal consistency. Equally the policy aspects of plans can be contested but they should not be subject to legal attack as they are statements of what may result, what it is hoped will result and the interpretations of the world on which those desired outcomes are based. This is in contrast to rules which essentially allow someone to do something, stop them from doing it or modify the way in which the do it. These are legally contestable in a way the policy aspects are not, because the do affect the basic property right and how we exercise our ‘right’ to use resources.

Thus if you follow this interpretation of what plan is then the policy aspects of a plan should not be subject to legal appeal but rather should go through a mediated process which tries to create as close to an agreed position as is possible. Given the consultation and hearings associated with plan writing then you might regard that as being what the process has done. The fact it does not please everyone is perhaps more reflective of human nature than anything else. If we could please everyone then wouldn’t we live in a utopia? Again if you accept this position then the policy parts of a plan should not be open to legal challenge and at most should go through a higher level mediation. That would leave rules to be fought over by the lawyers, the planners and the courts but might leave the policy aspects of the plan with more of a logical and coherent structure. This would however be a quite revolutionary proposition, requiring both planners and lawyers to change their outlook. Historically we have not always had a judicially based review and appeal system. Under the Town-planning Act 1926 the Town Planning Board was an expert board and ran a relatively successful system from 1927 to 1953.

Dr Caroline Miller
Massey University
26 January 2008