Conference on interim guidance on the Proposed Regional Policy Statement
Having completed the majority of hearings on the Unitary Plan’s Regional Policy Statement provisions, the question for those engaged in the next phase of mediations and hearings on regional and district provisions is: how can a submitter or expert witness confirm that a regional or district plan provision gives effect to the PAUP’s RPS, without knowing what that RPS says?
In December 2014 a request from Russell McVeagh highlighted the need for an interim recommendation from the Hearings Panel on the Regional Policy Statement, in order that submitters could consider that interim guidance in subsequent mediations and evidence relating to the regional and district provisions.
A number of practitioners and submitters subsequently joined the debate and, while there was some variation on the extent of guidance sought from the Panel, all parties other than the Council agreed that interim guidance would be very useful to inform the remainder of the Plan development process.
The Hearings Panel convened a conference on 27 January to hear from interested parties, both in respect of the substantive question of whether the Panel should provide an interim (or final) recommendation on the Regional Policy Statement, and the technical question of whether that could be achieved in accordance with the Hearings Panel's legislative powers.
The various memoranda lodged in advance of the conference, including the Council response to Russell McVeagh’s original request, and a memorandum from Guy Beatson on behalf of the Ministry for the Environment, can be found under the link titled “Conference on Interim Recommendations – 27 January 2015” here. The Hearings Panel has also commissioned its own independent legal advice in respect of the issue, which will be available on the website once finalised.
It was evident after hearing from the parties in attendance that:
- There was general agreement that the provisions of the Unitary Plan do not need to give effect to the currently operative Regional Policy Statement and, as confirmed by the Ministry for the Environment, that was not the intent of the legislation establishing the Unitary Plan process.
- At present, the number of possible versions of the Regional Policy Statement (notified version, mediated version, Council evidence version, expert conference version, etc) that may need to be considered in evidence will create inefficiencies and delays for subsequent mediations and hearings.
- There are some practical considerations, including in respect of the current Hearing Schedule, but all parties other than the Council consider that some type of interim guidance from the Hearings Panel is desirable.
- Almost all parties in attendance considered that the Hearings Panel would be equipped to deal with any natural justice concerns by reserving sufficient flexibility to consider necessary changes to the Regional Policy Statement after hearing from submitters on the regional and district plan provisions.
- An interim recommendation will be particularly useful for those who have elected to limit their participation to zone provisions, site-specific controls or precincts. Those submitters – many of whom have chosen not to appear to date because of limited resources – are likely to be largely unaware of the changes to the RPS proposed through mediation and at hearing and, in the absence of an interim recommendation, will inevitably produce evidence at future hearings that reflects the outcomes included in the notified RPS.
Variously, the parties in attendance requested high-level guidance or indications from the Panel; an indicative red-line version of the Regional Policy Statement; or a final recommendation. Judge Kirkpatrick indicated at the outset of the conference that, while the Panel had not yet decided how to proceed, he considers that some matters may lend themselves to an interim red-line version of the text, while others may be better suited to high level narrative guidance (using the example of the Rural Urban Boundary). This was coined the “mix and match” approach, and universally found favour amongst those who addressed the Panel on options.
The Hearings Panel confirmed that it would consider the matters raised and issue a minute containing its directions in respect of the request for interim recommendations by Thursday 5 February.
Provisional hearing schedule updated, new admin schedule added
On 23 January the Hearings Panel updated its provisional hearing schedule of pre-hearing meetings, mediation, expert conferences and hearings through to November 2015. Amendments that have occurred in the New Year are detailed below.
- Topic 041 (Earthworks and Minerals) hearing will now commence a day later on 19 May, and a reserve day of 28 May has been added.
- Following the pre-hearing meeting, an additional mediation date for Topic 050 (City Centre) has been set down for 9 March and additional hearing days have been added on 11 and 13 May. Mediation will first cover the City Centre zone, before addressing each of the numerous precincts.
- A number of additional mediation dates have been added for Topics 003 (Chapter A – Introduction), 028 (Future Urban) and 038 (Contaminated land).
- Expert conferencing days have now been allocated to mediation for Topics 038 (Contaminated Land), 056 (Rural objectives and policies) and 057 (Rural activities and controls), with the ability for expert conferencing to occur as part of mediation if the mediator considers it appropriate.
In addition to the provisional hearing schedule, the Hearings Panel has created and updated a provisional schedule of administrative tasks. That schedule details the various dates and deadlines for administrative tasks, including RSVPs, evidence exchange, notices of cross examination, will-say statements, expert joint statements, mediation reports and marked-up versions of provisions. A large number of changes have recently occurred to a number of evidence exchange dates, with sequential exchange becoming the norm following an update to Procedural Minute 9 (discussed below).
The hearing and admin dates continue to change frequently and we will keep you updated as to the most significant revisions to the schedules in future Unitary Plan Updates.
Examples of well-prepared evidence and legal submissions
In response to requests from submitters for guidance on how best to prepare evidence and legal submissions, the Hearings Panel has provided the some examples of well-prepared evidence and legal submissions here, under the link “Supporting Documents – Examples of Well-Prepared Evidence and Legal Submissions”.
The examples given include evidence and legal submissions prepared by Russell McVeagh on behalf of a number of submitters to jointly record outstanding submission points following mediation or engagement with Council. The Panel has commented a number of times on the helpfulness of that approach, and the recent examples provided on the website reinforce the value placed by the Panel on efforts being made by parties to work collectively within the statutory constraints to assist the Panel to produce a robust Plan.
Amendment to Procedural Minute 9 – sequential evidence exchange
Procedural Minute 9 was updated on 14 January 2015. The original minute set out that all primary evidence (both from Auckland Council and other submitters) would be due 15 working days prior to the hearing.
The presumption for contemporaneous exchange has now been replaced with a sequential evidence exchange programme. Auckland Council must provide its primary evidence at least 25 working days prior to the hearing to which the evidence relates. All other submitters’ evidence is due 15 working days prior to the hearing. This allows other submitters to respond to Auckland Council's evidence and prevents repetition, particularly where a submitter holds the same position as Auckland Council. Rebuttal evidence remains due 5 working days prior to the hearing.
Environment Court Scheduling
On 1 December Principal Environment Judge Newhook wrote to Judge Kirkpatrick regarding concerns raised over scheduling conflicts between appearances before the Hearings Panel and before the Environment Court.
The Judges have agreed that, in general, Environment Court work should take precedence over involvement in the Unitary Plan hearings process. However, the two bodies will work together to provide as much notice as possible when scheduling hearings and other events. Where there are significant scheduling conflicts, both Judges will explore options together to come to a suitable solution.
In light of the agreement reached, those appearing before both bodies should be diligent and inform both the Environment Court and the Hearings Panel of potential clashes when they become known. Given the wide range of Unitary Plan topics, participants will inevitably be better placed to identify potential clashes than the Environment Court or Hearings Panel support personnel.
Procedural Minute 11
In response to a conference convened by the Hearings Panel on 3 October 2014, Procedural Minute 11 was published on 28 October 2014. This minute addresses a range of issues regarding procedural matters highlighted by lawyers and planners.
While concerns were raised about the tight deadlines, the Hearings Panel considered it premature to apply to extend its deadline for issuing recommendations on the Unitary Plan under s146 of the Local Government (Auckland Transitional Provisions) Act 2010. Its preferred solution was to apply more efficient procedures.
The key outcomes of the conference were:
Streamlining of the pre-hearing meeting process
- Witness lists, requests for additional hearing time and requests for re-coding or reallocating submission points may be provided by email prior to the pre-hearing meeting.
- Attendance at pre-hearing meetings is no longer required if all requisite information is provided prior to the pre-hearing meeting.
Amendments to evidence deadlines and process
- A general guide for evidence exchange was set out, which emphasised the need for Auckland Council’s position to be circulated early and for parties to understand each others’ position through the expert conferencing and mediation processes.
- Auckland Council’s position is to be stated as early as possible and, wherever possible, an amended version of the relevant part of the Unitary Plan is to be provided.
- The evidence deadline of midday was removed and evidence is now due “on the day specified”. Despite this, several topics (eg 050 (City Centre) and 031 (Historic Heritage)) still require evidence to be lodged by 12pm on the due date. To be certain of evidence deadlines, submitters should check the pre-hearing meeting record for the relevant topic.
- A Hearing Portal on the AUPIHP website now allows documents such as evidence and legal submissions to be filed directly on the website and is considered a means of service.
- Parties are encouraged to pre-circulate legal submissions in advance of the hearing.
Overall, the Hearings Panel was receptive to the concerns raised and indicated that it was willing to continue to receive feedback and adapt processes as necessary.
Only one hearing is set down for February (013 – RPS Urban Growth on 4 and 5 February), with the month otherwise dominated by mediation dates. That said there are a number of RSVP deadlines, Auckland Council red-line due dates, and evidence deadlines. Please refer to the provisional schedule of administrative tasks for further details.
The following mediation dates are current scheduled for February:
- Topic 003 (Chapter A – Introduction) – 3 February
- Topic 050 (City Centre) – 5 & 26-27 February and 2-3 & 9 March
- Topic 028 (Future Urban) – 9-10 February
- Topic 031 (Historic Heritage) – 11-13 February
- Topic 045 (Airport) – 16-17 & 24-25 February
- Topic 041 (Earthworks and Minerals) – 16-17 February and 4-5, 11-12 & 18 March
- Topic 022 (Natural Hazards and Flooding) – 18-19 & 24-25 February
- Topic 027 (Artworks, Signs and Temporary Activities) – 20 February
- Topics 029/030 (Special Character and Pre-1944 Building Demolition Overlay) – 26-27 February and 6 March
- Topic 018 (RPS – General) – 27 February and 2-3 March
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