Auckland Combined Plan - what are the implications of the streamlined process?

The recently introduced Resource Management Reform Bill creates a streamlined hearing process for the Auckland Combined Plan. Submitters on the plan need to understand the new hearing process, which is significantly different from other plan hearing processes under the RMA. Given the limited appeal rights, it will be especially important for persons affected by the plan to take a proactive approach and engage with the Council at an early stage.

What is the Combined Plan?

The Combined Plan will be an omnibus instrument, combining the regional policy statement, the regional plan (including the regional coastal plan), and the district plan for Auckland City. Geographically, it will apply over most of what was formerly the Auckland region. It will contain objectives, policies and rules which will affect all business, development, residential, farming, mining, coastal and other operations. The Combined Plan will have wide-ranging effects.

Until now, land uses have generally been controlled by District Council plans, while Regional Council plans have dealt with water, air, discharges and the coastal marine area. The Regional Policy Statement has been a separate, overarching document which has been implemented through the plans which sit below it in the planning hierarchy.

In devising the Combined Plan, the Council will not simply be able to roll out the same old provisions contained in existing plans and the policy statement. The Combined Plan will need to regulate all of the activities which have traditionally been controlled by district, regional and coastal plans, including land use activities, water takes and uses, discharges to air and water, and coastal activities. It will need to make a step change to utilise 21st century environmental knowledge and values, and enable modern business practices, residential requirements, and other activities.

How do resource management plans affect our clients’ property or business?

Resource management plans have significant implications for the value of property and business. Rules that are relevant to our clients could include the location of urban limits, height limits, traffic generation limits, designations, parking rules, limits on the size and location of office or retail space, boundary setbacks or noise limits. The Combined Plan provisions should also govern industrial and quarrying activities, discharges of contaminants to air, water and land, and activities occurring in the rural zones.

Property and business owners can proactively influence the Plan to their advantage. For example, if the activities which a business needs to carry out are permitted activities under the Plan, that will reduce the time and money which the business needs to spend on consenting and compliance matters.

How will the streamlined process work?

Under current RMA hearing processes, when Councils decide to accept or reject submissions on their planning documents there is a full right of appeal to the Environment Court against those decisions.

That is, the traditional planning processes provide for two tiers of full hearings: first, the Council hears and decides on the submissions, then when appeals against those decisions have been lodged, an entirely new hearing process takes place in the Environment Court. Because of that two-tier hearing process, many submitters have forsaken the opportunity to present a persuasive and professional case to the Council hearing panel, regarding the Environment Court as the hearing forum that really matters.

Under the RM Reform Bill, the ordinary right of appeal will be scrapped for the Combined Plan process. The only appeal from Council decisions on submissions on the Combined Plan (provided the Council follows the recommendations of the Hearing Panel) will be to the High Court, and only on an error of law.

So, there will be only one substantive hearing on the Plan, by an independent Hearing Panel appointed by the Minister for the Environment and the Minister of Conservation. The Council hearing of submissions will be the only chance which property owners have to present their case. There will not be a second chance to “get it right” in the Environment Court. Submitters will need to present their best case to the Council’s hearing panel, including legal submissions and professionally prepared expert evidence. Early and thorough preparation for these hearings will be essential.

What are the implications of the streamlined process?

The streamlined process will demand a much more proactive approach than has traditionally been taken. Clients who will be affected by the Plan need to engage early and effectively with the Council hearing process.

Even before the proposed plan is notified, they will need to engage with the Council during the consultation period, to ensure that the Council is aware of their concerns and requirements. When this occurs, the proposed plan is more likely to reflect a favourable starting point for those persons.

For example, if the current zoning of a property is creating an onerous requirement for the landowner or occupier in obtaining resource consents, it may be appropriate to work with the Council to change the zoning in the new Combined Plan. This is likely to be a more cost-effective solution for the landowner or occupier than applying for a private plan change, or continuing with the current zoning.

The informal consultation period for the Combined Plan is currently scheduled to take place from March to May 2013. After that consultation period, the proposed plan will be formally notified. Notification is currently scheduled for September 2013. People affected by the proposed plan will have a short time in which to lodge written submissions with the Council. Those submissions will need to be comprehensive, and based on a thorough understanding of resource management law and the proposed plan.

Now is a good time to think about how the Plan could be tailored to your clients’ needs. By reviewing their current zoning and relevant rules, you and your clients can assess what parts of the current plans are not working for them. It is also important for your clients to assess what their future needs might be, and how the Plan could best accommodate those goals. Your clients, together with their professional advisers, can then sit down with the Council, with the aim of having those changes included in the draft Plan before it is formally notified.

Is there a precedent for this?

Although this streamlined process is a departure from traditional plan hearings processed under the RMA, it’s not without precedent. A very similar hearing process has applied to the planning documents of the Canterbury Regional Council since 2010, under the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act.

The “ECan” Act notoriously replaced the elected councillors of Environment Canterbury with government-appointed commissioners. In addition, it removed rights of appeal to the Environment Court on ECan planning documents, for the duration of the commissioners’ tenure.

Since the Act came into force in 2010, submissions on the Canterbury Regional Policy Statement and other regional planning documents have been conducted by independent hearing panels. Appeals from the Council’s decisions, which have been made in accordance with the panels’ recommendations, have only been available on errors of law to the High Court.

The dynamics of council planning hearing processes have altered considerably, as a result of the alternative regime. There is a much greater onus on submitters and the Council to present an “Environment Court” standard case at the Council hearing.

Statements of evidence from expert witnesses are generally required to be provided to the Council prior to the hearing, and are prepared in accordance with the Environment Court’s Code of Conduct for Expert Witnesses. Expert witness conferencing may occur prior to or during the hearing. At the hearings, “questions of clarification through the chair” often bear a close resemblance to cross-examination.

These processes will undoubtedly be a feature of the Auckland Combined Plan hearings. The RM Reform Bill provisions specifically enable witness conferencing. They also make provision for pre-hearing meetings and allow the Council to disregard submissions from submitters who have not attended such meetings.

Because the only right of appeal on the decisions of Council made in accordance with the recommendations of the Hearing Panel is an appeal on an error of law, it is important that the legal submissions presented for a submitter identify and cogently argue all of the issues of law which are raised by the submission. A decision on submissions which rests solely on the facts of the case will leave the submitter with no effective right of appeal.

Plan of Action

In summary, it is important for your clients to: 
• assess the current planning rules and how they affect their land and / or operations; 
• become actively involved in the consultation process to try to ensure that the new Combined Plan allows the activities that your clients want to carry out; 
• lodge full written submissions prepared with expert resource management law advice; 
• present a comprehensive, professional case in support of their submission to the Council, when hearings are held.

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, and a recently elected member of the ADLS Environment and Resource Management Committee. Margo presented the seminar “RMA for Commercial and Property Lawyers” for the NZLS in 2011, and is a Guest Lecturer for the University of Canterbury Resource Management Law paper.

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