Further interim guidance on the Regional Policy Statement (RPS) has been released by the Hearings Panel. The latest guidance covers the:
- role, definition and importance of infrastructure;
- overall structure of the RPS; and
- administrative provisions contained in Chapter G: General.
As with previous guidance, the Panel has been willing to move away from the notified provisions where it considers that to be more appropriate and supported by strong evidence. The most recent guidance continues to provide helpful clarification that will inform upcoming mediations and hearings on the lower order provisions.
A summary of the guidance is provided below and the guidance documents can be found here.
With a view to future interim guidance, the Hearings Panel has indicated that it can be expected as follows:
- Rural – by late March 2015 (comprising section 8.1 – Rural activities and section 8.2 – Land with high productive potential).
- Waitakere Ranges precinct – by mid-late March 2015.
- Other B2 matters including affordable housing – by 13 March 2015.
The Hearings Panel has reserved its position on other RPS matters at this stage.
The Panel has confirmed that there should be a separate section in the RPS specifically for infrastructure, on the basis that a crucial element of any development is the existence of sufficient infrastructure to support that development.
The Panel has indicated its interim support for an RMA based definition of infrastructure, supplemented with some related facilities, as follows:
Infrastructure has the same meaning as in section 2 RMA and also means:
- Bulk storage for wholesale or distribution purposes of natural or manufactured gas over 15 tonnes, or petroleum over 1 million litres;
- Storage and treatment facilities for a water supply distribution system;
- Storage, treatment and discharge facilities for a drainage or sewerage system;
- Class 1 solid waste landfills;
- National defence facilities;
- Facilities for air quality and meteorological services.
In respect of the focus on infrastructure in the RPS, the Panel has confirmed that there is no reason to limit this to “significant infrastructure”. Because all pieces of interconnected networks are important, all parts should be equally recognised.
The Panel has continued to suggest that the Plan should be streamlined and has indicated that, as social facilities (eg education, healthcare, recreation etc) are addressed in their own section of the RPS (B.2.7) and are activities in their own right, they should not be treated the same as infrastructure networks on which other activities are based.
Finally, the Panel commented that infrastructure may need to be located in sensitive areas (where it has a functional need to do so, or some other technical or operational need). Although infrastructure is to be enabled in such areas, a full assessment of effects will still be required, including whether there are reasonably practicable alternatives to such locations.
At a number of hearings on the RPS, submitters raised concerns with its overall structure, with submissions variously seeking that certain sections be split into sub-sections, or that separate chapters be included for specific issues. In response, the Panel has provided specific guidance on the overall structure of the RPS, and has clarified the relationship between objectives and policies.
Most importantly, the Panel has clarified that the RPS must be read as a whole. In doing so, all relevant provisions must be considered in a particular circumstance and applied “according to their terms”. There is no explicit hierarchy among the RPS objectives and policies based on the layout of the document. Instead, the Panel has indicated that whether one provision prevails over another, or whether a number of provisions must be applied together, must be determined according to the meaning of the provisions.
In terms of structure, the guidance suggests several amendments, including:
- re-ordering the RPS sections;
- splitting the section on significant infrastructure and energy into two sections titled “Infrastructure” and “Energy”;
- separating the section relating to historic heritage, special character and natural heritage into two distinct issues: B1.3 Historic heritage and B1.4 Landscape, features, amenity values and character;
- consequential amendments to the relevant section on historic heritage and natural heritage, including adding a new section on landscape, features, amenity values and character;
- combining all water sections, including coastal, freshwater and geothermal, into one section; and
- moving the sections on hazardous substances, contaminated land, genetically modified organisms and natural hazards to a new section titled “Environmental risks”.
A table setting out the Panel’s proposed structure of the RPS is contained at the end of the guidance document.
On the relationship between the objectives and policies, the guidance confirms that objectives should “describe a state to be achieved for a resource management purpose” and that objectives that fail to do so should not be included in the RPS. Policies should clearly relate to the objectives and should state the resource management approach to be taken to an activity, use, resource or value. In respect of resources or values, policies should:
- say how to identify a resource or value;
- set criteria or thresholds for the quality of the resource or value which is to be attained or protected; or
- say how to deal with a resource or value in terms of the threshold.
This clarification is important, particularly in light of issues raised at hearings as to how applicants were to be expected to address unidentified resources or values proposed to be protected by the notified RPS.
The notified RPS included some objectives and policies that were identified as part of the RPS, regional coastal plan, regional plan and district plan. The guidance confirms that the various levels of the Plan (ie RPS and the subordinate plan provisions) should be clearly distinguished.
Finally in this document, the Panel has confirmed that rules are to be provided in lower level plans, not the RPS. Accordingly, any RPS objectives or policies that are so prescriptive as to amount to rules should be excluded from the RPS, or redrafted to be “true” objectives or policies.
The Panel has provided some helpful clarification on six key administrative provisions contained in Chapter G of the Plan. The guidance relates to:
- bundling of resource consent applications;
- the method for determining activity status;
- status of activities not provided for;
- the assessment of activities that infringe controls;
- notification; and
- information requirements.
In respect of each matter, the Panel’s guidance has either moved away from the notified approach or has indicated that further consideration is required.
Regarding bundling (the practice of treating multiple consent applications as a single package and considering the application against the most restrictive activity status), the Panel has confirmed that the notified Plan’s process is not the most appropriate method. The notified Plan proposed a test of whether consent applications were “inextricably linked” and presumed that applications would be bundled. That approach was a departure from case law that has focused on the degree of the overlapping of effects between consents, and which carried no presumption in respect of bundling. In response to a number of submissions, including those which were the subject of joint planning evidence prepared on behalf of a number of Russell McVeagh clients, the guidance supports the latter approach, confirming that the nature and extent of effects should be considered, and the decision of whether or not to bundle should be determined on a case-by-case basis.
In determining activity status, the Plan provides a complicated process for determining activity status based on a consideration of the rules in the Auckland-wide provisions, zones, precincts and overlays. Due to the complicated relationship between those provisions, which are not always consistent (eg sometimes overlay rules trump precinct rules and vice versa), the Panel has not yet been able to advance this issue. Instead, the Panel has signalled to submitters that further consideration of this issue is required, particularly in respect of rules that propose to alter the “standard” process. The Panel also signalled that an explanation in the text of the Plan might be required in order to assist lay users.
Under the notified Plan, the “default activity status” for any activities not specifically provided for is non-complying, despite the difficult hurdle this status entails for consent applicants. The guidance supports the submissions made by a number of parties (including those addressed in the joint planning evidence) seeking that the “default activity status” be discretionary, reflective of section 87B(b) of the RMA. If certain overlays, zones or precincts mean that it is desirable for an unspecified activity to be treated as non-complying, then the guidance indicates that can be addressed through a specific rule in the overlay, zone or precinct.
In respect of activities that infringe development controls, the Panel has expressed concerns about the ability for restricted discretionary assessment criteria to address all possible infringements. On this issue, the Panel has again signalled to submitters that further consideration will be required, and that submitters may wish to consider the issue of how to deal with infringements of rules when making submissions in respect of those rules.
A similar position was reached in respect of the notification provisions. Those provisions specify that controlled and restricted discretionary activities will be considered without public or limited notification, unless otherwise specified. The Panel noted that it was not yet satisfied that the rule is appropriate, but cannot advance drafting before it considered how the provisions might work in light of the Plan’s rule framework. Again, it signalled to submitters that further consideration should be given to the notification provisions.
Finally, in respect of the Plan’s information requirements, which list a substantial amount of information that must be provided as part of resource consent applications, the Panel does not consider that the list should be included the Plan at all. The Panel explains in the guidance that the list is too detailed to be applicable to all applications, but is potentially not comprehensive enough for some specific types of consents. In addition, the Panel identified that the information requirements appear to be inconsistent with the purpose of the 2009 RMA amendments, which intended to simplify and streamline the consenting process.
We will continue to provide updates as further interim guidance is released.
Provisional hearing schedule updated
On 6 March 2015 the Hearings Panel updated its provisional hearing schedule of pre-hearing meetings, mediation, expert conferences and hearings.
A Panel conference has been scheduled for 24 March 2015 at 2pm to discuss a potential approach to site-specific (re-zoning and precinct) mediations and hearings. We will report on the outcome of that conference in our next update.
Other recent amendments relate to Topics 029 – Special Character, 030 – Pre-1944, 077 – Sustainable Design and 048 – Aquifers and Groundwater:
- An additional pre-hearing meeting date for Topics 029 – Special Character and 030 – Pre-1944 has been added on 24 March 2015, with additional mediation dates also being added on 13, 14 and 20 April 2015. As a consequence, the hearings for those topics have been moved from 13, 14, 20 and 21 April 2015 to 11, 12, 16 and 19 June 2015.
- Mediation has been rescheduled for Topics 077 – Sustainable Design and 048 – Aquifers and Groundwater from 11 and 12 June 2015 to 6 and 7 July 2015, and 11 and 12 June 2015 to 15 and 16 June 2015, respectively.
Hearing 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.
This month there are a range of pre-hearing meetings, mediations and hearings scheduled. There are also a number of corresponding RSVP deadlines, Auckland Council red-line due dates, and evidence deadlines.
The following pre-hearing meeting dates are currently scheduled for March:
- Topic 040 – Lighting, noise and vibration – 13 March
- Topic 042 – Infrastructure – 13 March
- Topic 023 – SEA and vegetation management – 16 March
- Topic 025 – Trees – 17 March
- Topic 032 – Historic heritage schedules – 18 March
- Topic 019 – Natural features, landscape and character – 19 March
- Topic 020 – Viewshafts – 20 March
- Topic 029 / 030 – Special Character and Pre-1944 – 24 March
The following mediation dates are currently scheduled for March:
- Topic 041 (Earthworks and Minerals) – 18 March
- Topic 031 (Historic Heritage) – 23 March
- Topic 039 (Hazardous Substances and ITA) – 25 March
The following hearing dates are currently scheduled for March:
- Topic 028 (Future Urban) – 13 March
- Topic 033/044 (Coastal Marine zones) – 25-27, 30-31 March & 1-2 April
BACK TO TOP
If you have any questions about the items in this newsletter, please contact any of the partners or authors of the articles as listed above.
The publication is intended only to provide a brief summary of the subjects covered. It does not constitute legal advice and should not be relied on as such without first obtaining specific professional advice based on your unique circumstances.
Russell McVeagh has New Zealand's longest established and most experienced environmental and resource management practice.