Summary of Decisions requested on proposed plans – the importance of getting it right

Many local authorities around the country are in the process of reviewing regional and district plans under the Resource Management Act (RMA), prior to public notification of proposed new versions of those documents. The RMA provides that interested persons will be able to lodge submissions on the proposed plans, seeking to support or oppose the provisions in those documents. Those submissions may also seek changes to the provisions in the proposed plans, such as zoning changes, or changes to the rules.

The local authority which has notified the proposed plan then produces a Summary of the Decisions Requested (“Summary”) in the submissions. For a number of reasons, it is very important that the Summary be a fair and accurate portrayal of the decisions requested. Councils and submitters need to ensure that the Summary correctly summarises the decisions requested in submissions.

The Summary enables those people who may wish to make a further submission to understand quickly whether an original submission is one which is of interest to them.

A further submission may be made in support of, or in opposition to, an original submission.

Having to read all of the submissions in full, in the short timeframe allowed for making a further submission, would be an onerous task. The Summary prepared by the council expedites the process of making further submissions, as it must fairly and accurately summarise the original submissions, so that it can safely be relied upon by interested parties.

If the Summary inaccurately summarises a submission, that will limit the ambit of the decision which may be made in relation to the submission. This was the finding of the Environment Court in Christchurch International Airport Limited and Canterbury Regional Council v Christchurch City Council C77/99, which was upheld on appeal by the High Court in Healthlink South Limited v Christchurch International Airport Limited and Canterbury Regional Council AP14/99.

In that case, the decision requested in a submission was to rezone land from “Rural” to “Living 1 (rural and other activities)”. The reference to “(rural and other activities)” was an error; it should have read “(residential and other activities)”. The Council’s Summary of Decisions Requested simply repeated what was said in the submission, that is, “Living 1 (rural and other activities)”.

The error became evident at the hearing, when the submitter sought to gain zoning which would enable it to establish residential and other activities on the land. Interested parties who opposed residential zoning on the land had not lodged submissions in opposition, relying upon the Summary for their understanding that the submitter was only seeking to establish rural and other activities upon the site, but not residential activities.

The Courts held that, when the submission was read as a whole, it was clear that the reference to “(rural and other activities)” was a mistake, and that the submitter was seeking to establish “residential and other activities” on the land. It was said by the Courts that the Council should have realised that there was a mistake in the decision requested in the Healthlink submission, and should have produced a Summary of the Decision Requested which made it clear that Healthlink was seeking to have a zoning which enabled residential activities on the land.

This is a very high standard to be expected from local authorities; they are effectively required to second-guess the submitter to correct errors in the submission. If that does not occur, then the submitter will not be able to obtain the decision which it really wants. The ambit of the submission will be limited to that which is expressed in the local authority’s Summary, even if the submission itself, when read as a whole, has a wider ambit.

Therefore it impacts upon both the original submitter and potential further submitters if the local authority fails to accurately summarise the decision sought. Potential further submitters may not realise the full extent of what is being sought in the submission, and thus fail to lodge a further submission to protect their interests. For an original submitter, an inaccurate summary of the decision requested may prevent the decision-maker from granting what is really sought in the submission.

Local authorities need to be thorough and accurate in summarising the decisions requested. It is generally a large and somewhat tedious task, but it is an important one. There is no statutory timeframe within which submissions must be summarised – although there is a requirement that decisions on submissions are made within two years of a proposed plan being notified.

Local authorities should ensure that their schedules and resourcing gives officers sufficient time to produce a fair and accurate Summary. Ideally, a draft Summary for each submission should be sent to the relevant submitter, so that it can be checked over by the submitter prior to being notified by the local authority. This practice will help avoid the unnecessary expense and delay which results when Summaries have to be corrected and re-notified, with additional time allowed for lodging further submissions.

It is very important for submitters to check the local authority’s Summary of decisions requested, to ensure that their submissions are fairly and accurately summarised. If the Summary is not accurate, the local authority should be alerted to the problem as soon as possible. If an incorrect Summary has been notified, then the Summary, or at least that part of it which is inaccurate, will need to be re-notified, and the time for filing further submissions in relation to the re-notified Summary extended.

As discussed in the article Auckland Combined Plan – What are the Implications of the Streamlined Hearing Process? (Law News, Issue 1, 15 February 2013), the Resource Management Reform Bill 2012, currently before Parliament, introduces a different hearing process for the Auckland Combined Plan. The process which is currently contained in the Bill specifically enables the Hearings Panel to make recommendations which are not within the ambit of submissions on the proposed Plan. If the Bill is enacted in its current form, then the legal constraints described in this article will not apply in relation to the Auckland Combined Plan.

Margo Perpick is a partner at Wynn Williams where she leads the Resource Management and Local Government team. She is the Convenor of the Environmental Law Committee of the NZLS, a member of the Environment and Resource Management Law Committee of the ADLS, and a Guest Lecturer for the University of Canterbury Resource Management Law paper.

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