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1. The plan making process

1.1 Introduction

The plan making process is an essential part of procedures under the RMA. It is through their plans that city, district and regional councils:

  • express their community’s aspirations as to how their city, district or region’s environment might best be managed

  • regulate activities (supposedly by reference to their effects) with a view to achieving the objects of the Act

  • provide for the local implementation of national policy statements and national environmental standards.

The official briefing paper prepared for our group identified the issue in the following terms:

“Repetitive and costly consultation processes, broad appeal rights, and the time consuming reporting requirements can add tens of thousands of dollars and years to plan preparation and to change processes. This prevents plans being an effective mechanism for addressing identified environmental issues while being responsive to emerging issues.”

A preceding report: “RMA Schedule 1 Processes – Preliminary Analysis of Options for Future Amendments” reported that in October 2008 a survey of data derived from the MfE database noted that:

  • after 17 years of the RMA five of our 85 local authorities still did not have an operative plan

  • only a similar number of local authorities had notified their second generation plans (these are required to be prepared at no greater than 10 year intervals)

  • on average it takes local authorities 2.5 years of research and drafting and consultation before a proposed plan is notified

  • on average it takes 3.3 years to resolve all appeals after a council has made its decision on submissions

  • the average time from start to finish of the plan process was 8.2 years

  • the average time from start to finish for plan changes was 3 years.

In our view this long timeframe is likely to mean that by the time the plan becomes operative:

  • it may fail in significant respects to properly reflect community needs or aspirations

  • environmental issues facing the council are different in form or emphasis from those which were current when preparation work started on the plan

  • there will be extended periods when costs are placed on local authorities, resource consent applicants and the community by their having to deal with parallel requirements of currently proposed plans and transitional plans

  • Councils may be deterred by cost and delay from promoting desirable changes to their plans.

The same report addressed the cost incurred by councils in producing plans. The first plans on average cost $1.9 million (taken over all of New Zealand’s local authorities, that is a total of $130 million). Ericksen et al1 have estimated that in addition, a further $30 million was expended by central government agencies in relation to plan making. Of the money expended by councils some 37% was spent prior to notification on consultation, researching and drafting, and 27% was incurred in resolving appeals.

The mean cost of plan changes (excluding appeals) was reported in one study of 20 changes as being $109,540.2

It was the TAG view that, by any measure, this data presented an unacceptable picture. One can only muse as to whether either the environment or society as a whole has been well served by this huge commitment of resources.

There is clearly a pressing need to address issues of both the costs and delays inherent to date in preparing and changing plans.

The costs come in many forms, and benefit no one. It is important to remember that the costs cited above are only those incurred by the councils preparing the documents. They do not include those costs incurred by other public agencies in their involvement in the process, nor those borne by landowners and resource users affected by the documents, nor those of community groups or individuals. To these direct costs must also be added the deadweight losses to the economy, and the higher prices paid by consumers of goods and services.

Self-evidently, reform is necessary.

The TAG was presented with a great number of suggestions as to improvements in the process. Many of these could not be sufficiently well developed in the time frame available, and arguably some should not be proceeded with without a degree of public debate and consultation greater than is afforded by the Select Committee process.

Nevertheless, we believe that there are some changes that can be made relatively easily, and without adversely impacting the rights of participants in the process.

1.2 The appeal process

Clearly the appeal process is a large contributor to both the costs and delays associated with the introduction of new plans and proposed plan changes.

The very concept of an appeal process as regards district and regional plans is to a considerable extent inconsistent with the devolved regime established by the RMA.

The preparation of plans is essentially a legislative function having similarities to the passage of legislation by Parliament, and to the making of by-laws by local government.

Legislative decisions are not generally appealable to the Courts, except to the extent that they may have exceeded the legislative jurisdiction conferred upon the law making body. Thus, appeals on points of law are entirely consistent with the council’s legislative role as regards plan making. Appeals on the merits of the policy direction of the plan are, however, a very different proposition. There is little precedent for Courts having conferred upon them responsibility for legislative functions, other than in the supervisory jurisdictional role alluded to above. The underlying constitutional reasons for this have their origins in the concept of the separation of powers which dates back as least as far as the 18th century French political philosopher Montesquieu. Those who make the laws should not enforce them or interpret them. Those who interpret the laws should not themselves be the law-makers. It is an underlying principle of a democracy that we elect those who govern us, who then make rules for our benefit. Those people we elect are then accountable to us, and we can remove them by the same means by which we chose to install them.

We do not, however, elect our Judges.

A democracy based upon the rule of law rarely provides for the election of Judges. Their role is to interpret and apply the laws passed by those accountable, to whom we have entrusted legislative functions.

That Judges are not directly accountable is a protection against their currying favour with the electorate. It is central to our democracy.

It is also inappropriate for Judges to exercise legislative functions because they are not accountable to the electorate for the decisions they make. Thus, it is the elected representatives who have the responsibility for revenue raising, allocating priorities for expenditure, and explaining their decisions to the people.

Our present system combines the role of elected legislator with an appeal on both the merits and the law to a judicial body, the Environment Court. On constitutional grounds alone, there is therefore much to be said for abolishing the right of appeal on the merits as regards the policy content of plans. Furthermore when taking into account the extent to which the system contributes to the cost and delays, we are satisfied that changes are required.

The TAG was conscious of the considerable extent to which the abolition of this right of appeal may be seen by many as a significant erosion of long held rights, and on balance took the view that consideration of such a reform was best left to Phase 2. There are some additional considerations. Because policy statements and plans provide the objectives and policies for decision-making on consents, their clarity focuses and influences both the scope of litigation, and costs and delay in the consenting process. Review by the Environment Court of plans has historically provided an important mechanism for quality control and protection of property rights, as well as a means of ensuring that plans do in fact reflect the matters which Parliament has listed as being of national importance.

We therefore recommend that the right of appeal on matters of law be maintained. We are, however, as part of Phase 1, attracted to a system in which the right of appeal to the Environment Court is limited by a requirement to seek the leave of the Court. We would suggest that the following criteria may appropriately limit appeals, namely that the proposed policy statement or plan:

  1. would have a significant impact on existing property rights

  2. would fail to give effect to matters provided in Part 2 of the Act

  3. is of unclear meaning and intent

  4. is manifestly unreasonable.

We are conscious that the majority of appeals on plans are made by landowners concerned with issues in (a) above. It was not possible in the time available for the TAG to assess how far the number of appeals on plans would actually be reduced by the proposed requirement to seek leave, nor to assess whether the benefits under this head would outweigh the additional time and cost of applications and hearings on applications for leave. For this reason, we are recommending further study of this issue in Phase 2 of the reform process.

1.3 Plan reviews

The Act requires that plans be reviewed every 10 years.

As has already been outlined, the TAG reached the view that this was both a time consuming and costly practice. The theory behind the requirement is no doubt to require local authorities to keep their plans up-to-date. Our view, however, was that it was counter-productive in this regard. The compulsory review is, unless a council decides to merely “roll over” its existing plan, consumptive of resources that could well in our view be better devoted to researching and preparing periodic plan changes.

We therefore recommend that in the case of city and district councils a requirement to produce a new plan every 10 years be replaced with a general duty to keep the plan up-to-date. As regional councils have no statutory obligation to prepare plans, (except a regional coastal plan), this recommendation applies to city and district councils only.

1.4 Effect of proposed plan changes

As previously indicated, the costs of delays in the plan preparation process are not borne entirely by the local government agency preparing the plan. Significant costs are borne by owners of property affected by the plan, in terms of the direct costs they incur in seeking to protect their interests. Similarly of course individuals and community groups seeking changes to the proposed plan also incur significant costs. Further costs are borne by the applicant, the councils and submitters by virtue of any proposed development or resource use having to be considered by reference to two documents, the existing plan and the proposed change or proposed review. In some cases, as the Select Committee noted in its 2005 report, some councils have many layers of plans, including transitional plans, proposed plans, proposed variations to plans, and proposed variations to proposed variations. This creates uncertainty and complexity, and increases the likelihood of time delays and appeals from all sides. It also results in additional costs for applicants, objectors and councils.

These latter costs are a direct consequence of all proposed plans and proposed plan changes having effect or force from the date of their public notification.

One can readily appreciate that in a few, limited circumstances, it is essential for the new planning instrument is to be immediately effective to, for example, preserve historic buildings or notable stands of trees, or set an allocation limit for water. If the rule did not have immediate effect, then the building or trees could be demolished or destroyed, or there could be a rush of applications to circumvent the new limits.

However, that does not apply in the bulk of cases. In those cases where the new rules are to be more restrictive of owners’ rights, or resource users’ opportunities, we recommend that the rules have no effect until after the council decision on submissions is released.

At least by that time, the council’s legislative intentions will have been tested by the submission and hearing process in similar fashion to that undergone by a Bill in its passage through its Parliamentary stages.

We see two benefits in this proposed reform. First, the burden in assessing a project against multiple sets of criteria will be lifted. This simplification will assist both councils and those participating in the application process. Secondly, this reform will provide an incentive for councils to proceed more quickly with the hearing of submissions on proposed plan changes.

In relation to those cases where immediate effect is important, we recommend a procedure whereby an application can be made to the Court or the Minister for an appropriate order.

1.5 Consultation

The initial plan preparation period accounts, as indicated, for a considerable part of the costs and delays associated with the plan making process. The effect of Clause 3C of Schedule 1 is that consultation which a council has already undertaken under another enactment has to be undertaken all over again, if that consultation took place more than 12 months preceding notification of the proposed policy statement or plan that the matter relates to. This is a contributor to these costs and delays. We recommend that this period be increased to 36 months.

1.6 General objections

The hearing of submissions and making of decisions is at present unnecessarily complicated by councils having to specifically address each and every point of submission and cross-submission in their decisions. We recommend that this part of the process be streamlined by allowing councils to make their decisions in terms of subject matter or content.

This difficulty is exacerbated on some occasions by submitters opposing the proposed plan in its entirety. In itself, that will be appropriate on occasion, but unnecessary costs and delays are brought to bear by appeals seeking similar relief. The Court has no power to order the withdrawal of an entire plan.

We recommend that this right of general challenge be curtailed in respect of plans, but be retained in respect of proposed plan changes. Clearly the latter will often be of very restricted compass, and a general right of objection need necessarily be retained.

1.7 Cross submissions

The cross-submission process clearly adds considerably to the cost, complexities and delays associated with the preparation of a proposed plan or plan change. It does, however, also provide an important, and some would say necessary protection for property owners whose land is affected by the submissions of those who seek alterations to the plan as notified. Similarly it provides an important/necessary avenue for involvement for those interest groups seeking to protect the environment.

The costs associated with the process include the preparation of a summary of submissions. (Although in our view much of this would be incurred by the council in any event, as it would be needed as part of the ordering of the hearing process). The complexity and costs are further added to by the need under the Act to issue decisions specifically referring to each individual submission and cross-submission. We recommend that this requirement be deleted.

The delays are further contributed to by the lengthy cross-submissions period of up to three months. We recommend that clause 8 of Schedule 1 set a 20 working day maximum.

A common complaint with the cross submission process is that people can "wake up one morning" and find that their range of permitted activities has been significantly eroded by way of a council decision on a submission of which they were completely unaware. We therefore suggest that a council decision may not limit an owner's land use rights more than was proposed in the proposed plan or plan change. If a council wishes to accede to a submission which would have that effect it is to do so by way of a plan change or variation. An exception to this could be made in respect of those submissions which impact upon only a limited number of properties, and of which the council has given notice to the affected owners.

Such a reform would both serve to address this genuine problem, and also have the almost certain effect of reducing the number of cross submissions, thereby contributing to savings.

We would however only propose this reform in respect of land use issues, not discharge or other resource use rights. The basis for this distinction is that the Act contains a presumption that owners should be able to do with their land as they wish, subject to the rules of a plan; whereas discharge and water take rights and the like are the subject of the reverse presumption, namely that they may be undertaken only in accordance with a rule in a plan.

1.8 Combined plans

Currently the Act provides for local authorities to produce combined plans; although it is unclear whether it allows the combining of regional policy statements into such a document.

It is disappointing that more use has not been made of this power.

One would have perhaps thought that, in areas such as the Waikato, where there are a number of territorial authorities facing very similar resource management issues, councils would have seen the cost benefits in combining to produce a single district plan. We are aware that local authorities in the Wairarapa have joined to produce a combined district plan, and that the Manawatu/Wanganui Regional Council has produced its “One Plan”. We think there is merit and much to be gained by more collaboration.

We recommend that as part of Phase 2 of the reform project, consideration be given to empowering the Minister to require councils to co-operate for this purpose.

1.9 Section 32 (and section 32A)

The intention behind section 32 was to ensure a high level of rigour and discipline in the Plan development and rule making process. Before making decisions, councils are required by this section to undertake a proper cost benefit analysis and fully consider any alternatives. The “section 32 report” would then be available to demonstrate that their planned proposals are justified. Publicly available reports would ensure that these considerations were open to scrutiny.

While the practice varies between councils (some perform well and others less so), advice to the TAG indicated that overall this section is not achieving its objective. As currently operated, s.32 is in all too many cases driving officials to produce voluminous reports that are not only costly, but also fail to make the expected contribution to ensuring the ongoing efficiency and effectiveness of the process.

There was a case recommending that section 32 be repealed completely; removing it would save time and cost. The TAG was not convinced of that however, for to do so would remove the key provision in the RMA intended to ensure ongoing rigour in planned development. The consensus of the TAG was that further work should be undertaken in Phase 2 so that the intent of section 32 is better achieved.

1.10 Consents for minor matters

Our analysis as part of this exercise, and our experience in the operation of the Act, has raised concern about the extent to which Plans so frequently require consents for minor matters. This pervasive presence of the RMA in matters of low level environmental significance is a cause of constant public criticism. In order to reduce the need for consents in such cases, the associated cost and effort, and to reduce inconsistencies in practice, while at the same time protecting the environment from harmful or adverse effects, there may be merit in the Government being able to define those activities which should not require consent, or which should have an “easier” pathway to approval.

The Building Act 2004 already establishes the principle; the First Schedule to this Act defines building work that is exempt from the requirement for building consent. There are also powers of regulation in the RMA in relation to discharges but they don’t go far enough. One model might be to amend section 360 to allow the Minister to make a permitted activity order.3 Such a facility would allow Government to take a leadership role, bring about national consistency (where appropriate), and remove the need for consent for activities it believes should be permitted. The effect of such an order would be to read the provision into any plan without the need for any change.

Another option for reducing the consent burden would be to give local authorities the ability to fast-track minor consents where there is a technical breach but where the environmental effects are of little consequence. Examples include minor encroachments of decks or balconies into side yards, gables encroaching into daylight angles and the removal of small quantities of gravel from riverbeds. The proposition would be to give a power of dispensation from the full process requirements. Our suggested changes to section 113 might help but more can be gained through further work in Phase 24.

A further circumstance that frustrates ordinary Kiwis in going about their business is where consents are often required from two separate authorities for the same item – a case in point is septic tanks in rural New Zealand – here a discharge to land consent is required from the regional council and a building consent is required from the territorial authority. More collaboration between councils could address this frustration. The TAG raises the issue here as notice of an area of crossover requiring attention both as the RMA reform process proceeds, and as the Government moves to reduce the impact of red tape on citizens.

However there is a more immediate change that should happen now. The Ministry advises us that approximately 4,500 consents are issued annually to allow the trimming, pruning and removal of non-scheduled trees in a relatively small number of urban Councils. This represents about 10% of the national total consent of applications for very little gain, as virtually all are, we understand, granted.

We consider that such an ill-targeted rule is inappropriate, and propose that councils should not be able to impose such rules. We therefore recommend that the Act be amended so as to set aside any such existing rules, and prevent the introduction of further similar rules. We appreciate that there may be a transitional issue involved, and for that reason recommend that this change to the Act not come into force until one year after the rest of the Amendment Act so that those councils which have these general controls have time to effect a plan change in consultation with affected land owners and the local community so as to afford protection to those trees which are of specific value. (Ironically, we are informed that Christchurch, the ”Garden City” has no such general rule. Its rules specifically list approximately 1500 “notable trees”.)

 


1 Planning for Sustainability: New Zealand Under the RMA , Ericksen, Berke, Crawford and Dixon, International Global Change Institute, University of Waikato, 2003

2 Advice from Ministry for the Environment ‘RMA Schedule One Processes’

3 Something similar already exists in regulations permitting election signs

4 A power of dispensation existed in the Town and Country Planning Act 1977 but what we are suggesting here is an ability to issue an approval with the minimum of fuss and bother