auckland council - submission on resource management act reform bill

7/28/2019 Auckland Council - Submission on Resource Management Act Reform Bill

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1 Greys Avenue | Private Bag 92300, Auckland 1142 | aucklandcouncil.govt.nz | Ph 09 301 0101

28 February 2013

Committee Secretariat

Local Government and Environment

Parliament Buildings

WELLINGTON

Dear Sir / Madam

Please find attached Auckland Councils submission in response to the Resource Management ActReform Bill. We would like to appear before the Committee and elaborate on our views during thehearing process.

The views of Manurewa, Orakei and Waitakere Ranges Local Boards are appended to thissubmission. Please give independent consideration to each of them.

If you require any clarification on the submission please contact Dr Roger Blakeley, Chief PlanningOfficer on 09 307 6063, or by email at [email protected]

Yours sincerely

PENNY HULSE

DEPUTY MAYOR

AUCKLAND COUNCIL

Encl.


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Submission to the

Local Government and Environment Committee

RESOURCE MANAGEMENT REFORM BILL

28 February 2013


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Auckland Council submission on the Resource ManagementReform Bill

1. This is Auckland Councils submission on the Resource Management Reform Bill (Bill).

2. The address for service is Auckland Council, Private Bag 92300, Victoria Street West,Auckland 1142.

3. Please direct any enquiries to Dr Roger Blakeley, Chief Planning Officer. Phone 09 3076063 or email [email protected]

4. Auckland Council wishes to appear before the Local Government and EnvironmentCommittee to discuss this submission.

5. This submission has been approved by the Auckland Plan Committee of AucklandCouncil. In addition three local boards have requested that their views on the Bill beincluded as appendices.

6. In view of Part 2 of the Bill relating specifically to the process for delivering thecombined regional policy statement, regional plan and district plan of Auckland Council(Auckland combined plan), the Council requests the opportunity to review Part 2 ofthe Bill before it is reported back from the committee.

7. The submission is set out as follows:

Section 1: IntroductionSection 2: Executive summary

Section 3: Submissions on proposed amendments to the Local Government (AucklandTransitional Provisions) Act 2010 (LGATPA)Section 4: Submissions on proposed amendments to the Resource Management Act

1991 (RMA)

Section 5: Schedule of proposed drafting amendments

Appendix 1: Local Board Submissions

SECTION 1: INTRODUCTION

8. Auckland Council was established with a mandate to promote integrated decisionmaking in New Zealands biggest city to bring about a step change in Aucklandsperformance that will improve quality of life for all Aucklanders and, ultimately, all NewZealanders. Central to the fulfilment of this mandate is the ability to plan holistically forAucklands future. This has been enabled through the development of two criticalstrategic documents. The first is the spatial plan (the Auckland Plan) which wasadopted in March 2012 and the second is the combined regional policy statement,regional coastal plan, regional plan and district plan (the Unitary Plan). Effectivedelivery of these plans requires partnership with central government, the private sector,communities and other stakeholders.

9. The Auckland Plan sets the Councils high-level strategic directions and the UnitaryPlan is a key tool to implement those directions within the resource managementarena. It will be the planning rule-book that will protect what is unique and special


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about Auckland while enabling housing choice, economic growth and the strengtheningof communities.

10. Auckland Council has committed to developing the Unitary Plan in a different way fromthe past. Importantly, the focus has been on early engagement with key stakeholdersto test ideas and draft rules. These stakeholders include community groups, centralgovernment agencies, NGOs, sector groups, developers, iwi, and electedrepresentatives. The purpose of this extensive consultation is to develop the bestUnitary Plan possible as well as to ensure that the key issues are identified andunderstood as early as possible in the process.

11. As part of this new approach, the Council will release the Unitary Plan in draft form andoffer Aucklanders the opportunity to give feedback on the plan prior to its formalnotification.

12. In time and cost terms, this enhanced process places greater emphasis on, andattention to, engagement and issue resolution during the pre-notification and

notification phases. The Council considers that the focus at the pre-notification stagewill deliver a better quality proposed Unitary Plan and should result in a significantnarrowing of issues that require resolution at the hearings stage.

13. Auckland Council notes that this Bill forms the first of two stages of ResourceManagement Act reforms. This Bill proposes a process for the delivery of the firstUnitary Plan for Auckland. Auckland Council supports a process that will help tofacilitate integrated planning for Auckland and provide certainty of outcomes forAucklanders but has significant concerns with how the provisions in the Bill arecurrently drafted. The key concerns are outlined in the Executive Summary anddetailed in full in the main body of the submission.

14. In summary Auckland Council submits that:

the Unitary Plan must take legal effect from notification in order for the benefits ofAucklands amalgamation to be fully realised

greater legal weight must be given to the Unitary Plan relative to existing plans,many of which are now over 10 years old

the Councils ability to jointly appoint members to the Hearings Panel is crucialand will help to ensure panel members have appropriate local knowledge andunderstanding of local issues

rather than place a blanket moratorium on all variations to the Unitary Plan, thereis recognition of special circumstances (such as defining the location of the ruralurban boundary) that may make limited variations desirable

timeframes must be workable, including that for the section 32 analysis that mustbe provided to the Ministry for the Environment before the Unitary Plan is notified;and the timeframe for the Council to consider the Hearings Panels report andmake its decisions

the scope of the Hearings Panels recommendations and the Councils decisionsshould be limited by the scope of the submissions in line with the usual principlesof public participation.


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15. The Bill also proposes a number of substantive changes to the Resource ManagementAct. In relation to these proposed changes Auckland Council submits that:

any changes to the existing section 32 requirements should not risk upsetting thebalance contained in the definition of sustainable management in Section 5 of theRMA

the proposed requirements under the new section 32AA would add to thecompliance costs incurred by Council during the First Schedule process withoutany benefit to the public or stakeholders in that process

there is no clear rationale for the changes which would only stop the processingclock from the third working day after a request for further information is made(with respect to any non-notified, limited notified or publicly notified resourceconsent applications).

the changes to tree protection provisions (section 76 of the RMA), as currently

drafted, are onerous and unworkable. Amendments are sought to enableidentification on district plan maps and clarification of the definition of group oftrees

resource management decisions are best made by communities affected bythose decisions. The approach to making direct referral mandatory for high valueapplications is unnecessary and represents an erosion of local decision-makingpowers.

16. Please note that throughout this submission reference is made to the Unitary Planrather than the Auckland combined plan as this is the name that has been usedthroughout the engagement process with the community and other stakeholders.

SECTION 2: EXECUTIVE SUMMARY

Proposed amendments to the Local Government (Auckland TransitionalProvisions) Act 2010 (LGATPA): process for s treamlin ing delivery of thefirs t Unitary Plan

17. While the Council supports the Bill providing a specific, tailored process for the deliveryof the first Unitary Plan, it has significant concerns with how the provisions of the Billare currently drafted. Changes, as set out in the text of this submission, are required inorder to achieve the benefits associated with the Auckland reorganisation.

18. The Councils main concerns with Part 2 of the Bill are set out below, generally in orderof importance to the Council, although the Council considers all of these issues to be ofcritical importance.

When rules in the Unitary Plan wi ll have legal effect

19. In order that Auckland can start to realise the benefits of amalgamation, and to providecertainty to the public, business community and other stakeholders, it is crucial that theUnitary Plan takes legal effect from the date it is publicly notified. Much of the plan

(including many regional rules) will already have immediate legal effect on notificationunder section 86B of the RMA, including rules with a focus on protecting naturalresources but not rules that have a focus on the built environment (and have the


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potential to encourage development). If the entire plan is not given legal effect fromnotification, positive outcomes enabled by the plan (including freeing up land forhousing and commercial and industrial development) will take three years longer to berealised.

Weight to be given to the Unitary Plan

20. Furthermore, the Bill must ensure that the Unitary Plan is given greater weight fromnotification than existing plans, many of which are over 10 years old. This wouldreflect the high level of public engagement in the development of the Auckland Plan,and the subsequent public engagement that will follow the public release of the draftUnitary Plan in March 2013 and that will be taken into account by the Council in thenotified Unitary Plan that is released at the end of this year. Greater legal weight forthe Unitary Plan will fast-track the positive outcomes it seeks to achieve as notedabove. It will also avoid inconsistent judgments about the relative weight of differentplans being made in resource consent decisions over the three years followingnotification of the Unitary Plan, and increase certainty for the public, business

community and other stakeholders.

Ministerial appointment of the Hearings Panel

21. The Unitary Plan is a document that primarily affects Auckland and Aucklanders, whilehaving wider benefits to the country as a whole, particularly economically. Given that,it is essential that the Council has a greater role in the appointment of members of theHearings Panel. Currently, the Bill provides for Ministers to appoint the Hearings Panelin consultation with the Auckland Council and the Independent Mori Statutory Board.The Council believes that all appointments should be made by the Council inconsultation with Ministers and the Independent Mori Statutory Board. However, asan alternative the Council suggests that a joint selection process is undertaken prior to

Ministerial announcement of the Hearings Panel. There are precedents where Counciland Government have made joint appointments such as to the board of the TamakiRedevelopment Company Limited. This approach will better reflect the fact that theAuckland Council is bearing the majority of the cost associated with the process.

Weight Hearings Panel must give to Auckland's spatial plan (Auckland Plan)

22. The Auckland Plan should have greater statutory influence on the Unitary Plan processthan currently provided for in the Bill. The Bill requires the Hearings Panel merely tohave regard to" the Auckland Plan when making its decision. The Local Government(Auckland Council) Act 2009 (LGACA) required that the Auckland Plan be acomprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth

and development, and provide a basis for aligning the Council's implementation plans,regulatory plans, and funding programmes. The Council adopted the Auckland Plan inMarch 2012, following comprehensive engagement with community and stakeholderson the plan's content and direction. Given the high level of community input into theAuckland Plan, the Hearings Panel should be required to ensure that itsrecommendations be consistent with the Auckland Plan. Without greater legal weightin the panel's decision-making, the Auckland Plan will not achieve its purposes as setout in the LGACA, and positive outcomes from the Auckland Plan in relation to matterssuch as land supply and urban growth will not be achieved in a timely manner.

Moratorium on variations

23. While there are good reasons to limit variations to the Unitary Plan, particularly in orderto ensure that the Council can make the Unitary Plan operative as soon as possible,


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the current drafting of the Bill is too blunt an instrument. There may be specialcircumstances (such as defining the location of the rural urban boundary (RUB) aroundsome rural towns or the implementation of the national policy statement on freshwatermanagement) that require variations within three years of the plan being notified. It isessential that the Council is able to promulgate variations for these purposes to ensureit is able to achieve the objectives of the amalgamation and meet its other legislativerequirements in a timely manner. The Bill should be amended to retain the ability tonotify variations to address material changes in circumstances or significantinformation that has become available since notification of the plan. However, toensure that any variation does not slow down the hearing of submissions on theUnitary Plan, and that in accordance with clause 16B of the First Schedule thevariation can merge with the proposed Unitary Plan once it reaches the sameprocedural stage, the Council should only be able to notify variations until the closingdate for further submissions on the Unitary Plan. An exception to that approach needsto enable site-specific additions to historic heritage schedules in the Unitary Plan whichwould not impact upon other substantive parts of the Unitary Plan, and therefore willnot hold up the Unitary Plan hearings process but is necessary to ensure that buildings

identified for scheduling can be protected as and when such identification is made orthey may be at risk of demolition or destruction pending completion of the schedulingprocess.

24. The Hearings Panel should also have the power to direct the Council to prepare avariation to address matters raised in submissions or during the hearings process thatare more appropriately addressed through a separate Schedule 1 process. Suchmatters might include a site specific comprehensive rezoning of a particular property orparticular properties.

25. It is not possible under the First Schedule to the RMA for private plan changes to belodged on a proposed plan. However given the resource implications associated with

the Unitary Plan, the Council further suggests that there should be a moratorium onprivate plan changes to any operative district or regional plans until such time as theUnitary Plan is operative. Those wishing to lodge a private change request would stillhave the six month period between the release of the draft Unitary Plan forconsultation in March 2013 and when the Unitary Plan is ready for public notification inSeptember 2013 in which to lodge a private plan change request.

Timeframes

26. Subject to the above, the Bills provisions generally achieve a streamlining of thedelivery of the first Unitary Plan. However two timeframes are unworkable and aretherefore opposed. The first is the requirement that the Councils section 32 analysis

report be provided to the Ministry for the Environment 60 working days before theUnitary Plan is notified. This requirement will make it almost impossible for the Councilto notify the plan in this current electoral term, because analysis and decisions basedon the feedback from public engagement in March to May 2013 will not be completeduntil the end of July 2013. The second unworkable timeframe is 20 working days forthe Council to consider the Hearings Panel's report and make its decision whether toaccept or reject its recommendations. This timeframe may be doubled by the Minister,at the Council's request. Given the volume of decision-making required due to thescope of the Unitary Plan, and to ensure it can give full consideration to the HearingsPanel's recommendations, the Council seeks 40 working days in which to make itsdecision on recommendations, and that the Minister be able to allow for an additional20 working days where the Council so requests.


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Hearings Panel recommendations not limited by submissions

27. The Council opposes the Bills proposal that the scope of the Hearings Panelsrecommendations, and the Councils decisions, are not limited by the scope ofsubmissions and further submissions lodged in respect of the notified Unitary Plan.This proposal is inconsistent with the principle of public participation that underliesplanning processes, and could enable significant changes which could affect privateproperty and public interest without the requisite opportunity for public involvement. Noreason has been given why the usual principles in relation to changes being within thescope of submissions should not apply. Accordingly, the Council submits that theHearings Panel and Council should remain limited in the scope of its recommendationsand decisions to the Unitary Plan as notified and any submissions and furthersubmissions received in respect of that plan.

Proposed amendments to the RMA

28. Council also has concerns and seeks clarification in relation to a number of the

proposed RMA amendments.

Changes to section 32

29. The Council seeks amendments to the proposed new section 32 to clarify that therequirement to quantify, if practicable, the benefits and costs of environmental,economic, social and cultural effects does not result in greater weight being given tothose effects that are able to be quantified. Without such clarification, the proposedchanges risk upsetting the balance contained in the definition of sustainablemanagement in section 5 of the RMA. The Council strongly supports the section 32evaluation containing a level of detail that corresponds with the level of anticipatedenvironmental and other effects, but seeks further clarification that the evaluation is to

be undertaken across the proposal (such as a proposed plan) as a whole. However,the Council opposes the requirement in the proposed new section 32AA that a furtherevaluation report must be prepared for changes to the proposal made since theoriginal section 32 evaluation. Decision reports under clause 10 of the RMA's FirstSchedule can and do address the costs and benefits of any changes made toproposed plans and plan changes in response to submissions. There is no evidencethat a separate further evaluation is required.

Timeframes where a further information request is made during the resource consentprocess

30. The Council opposes the Bill's proposal that the processing clock only stops from the

third working day after a request for further information is made (with respect to anynon-notified, limited notified or publicly notified resource consent application). There isno clear rationale for this change. If further information is required but is stilloutstanding, a council is unable to progress the application. It is unfair to keep theclock running for three days during which the information is still outstanding.

Tree protection rules in distr ict plans

31. The changes to section 76 of the RMA as currently drafted are onerous andunworkable. The Council seeks amendments to the proposed new subsections insection 76 of the RMA, to allow for important groups of trees that traverse multiple sitessuch as significant areas of native vegetation on thousands of private properties in theWaitakere Ranges Heritage Area to be identified on district plan maps, without alsohaving to specify street addresses or legal descriptions (which would be cumbersome


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and clutter up district plan schedules). The Council also seeks clarifications to thedefinition of "groups of trees" to confirm that large tracts of native bush are groups oftrees and to confirm that significant vegetation such as coastal pohutukawa, tracts ofmature trees around the base of the citys volcanic cones, and urban stream/coastalriparian edges that may not always be physically contiguous is a group of trees. Theamendments sought would provide certainty to landowners as to what trees are andare not protected, while enabling the Council to continue to meet its statutoryobligations to manage and protect biodiversity, ecosystem services and amenityeffects on behalf of all Aucklanders.

Mandatory direct referral

32. The Council opposes provisions in the Bill that would require direct referral of resourceconsent applications and notices of requirement to the Environment Court, where thevalue of the investment exceeds the threshold set out in regulations, unless there areexceptional circumstances. The RMA is based on the principle that most resourcemanagement decisions are best made by communities affected by those decisions.

There is no evidence of a problem in relation to the consenting of high value proposalsby local authorities. Nor is the value of a proposal a proxy for the importance orcomplexity of a resource consent decision: "low value" proposals affecting naturalresources may be highly significant, while "high value" proposals in general conformitywith plan provisions may be straightforward and uncontroversial. Mandatory directreferral based on the value of the investment is also unnecessary given the applicant'sability to seek direct referral, and ministerial call-in powers, under existing RMAprovisions.

SECTION 3: PROPOSED AMENDMENTS TO THE LOCAL

GOVERNMENT (AUCKLAND TRANSITIONALPROVISIONS) ACT 2010

33. The Council considers that a new plan process is necessary to deliver the Unitary Planwithout undue delay, and achieve one of the main benefits of Auckland's localgovernment reorganisation. As noted in the regulatory impact statement for the Bill,the Unitary Plan is "critical to achieving Auckland's proposed growth targets, as well asplanning land-use, critical infrastructure and housing supply".

34. The Council has concerns with, and wishes to comment on, several aspects of theproposed procedure, as set out below. The Council may be taken to support any

provision in Part 2 on which it has not specifically commented below.

35. The key concerns for the Council in Part 2 are:

The moratorium on variations under proposed section 121 of the LGATPA (thefollowing references to sections are to proposed sections of the LGATPA);

The Hearings Panel not being limited to making recommendations within thescope of submissions under proposed section 139;

The weight the Hearings Panel must give to the Auckland Plan when makingrecommendations under proposed section 140;


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The 20 working day timeframe for the Council to consider the Hearings Panel'srecommendations under proposed section 143;

What rules in the Unitary Plan will have immediate legal effect under proposedsection 147, and the related question of what weight the plan is to have on and

from notification; and

The appointment of members of the Hearings Panel under proposed section155.

36. However, the Council addresses below all significant matters in Part 2 (whethersupported or opposed), in the order in which they appear in the Bill.

Clause 124 Transitional regulations

37. The Council supports this clause.

Discussion

38. The flexibility to make transitional regulations in addition to or in place of the newprovisions in Part 4 of the LGATPA to be inserted, or to deal with matters notsufficiently provided for in Part 4, is important. The existing power to make transitionalregulations in section 5 of the LGATPA has proved to be useful in addressinganomalous situations that were not foreseen at the time the LGATPA was enacted.

Recommendation39. The Council seeks that Clause 124 is enacted in its current form.

Section 119 Auckland combined plan to combine regional and distr ictdocuments

40. The council supports this section, subject to the comments and recommendationbelow.

Discussion

41. Section 119(1)(c) refers to the Unitary Plan containing "a district plan for Auckland".

The Council does not, however, intend to include within the Unitary Plan the districtplan for the Hauraki Gulf Islands, a second generation RMA plan most of which is nowoperative having been through submissions and appeals over the past few years.

Recommendation

42. Rather than reopen the district plan for the Hauraki Gulf Islands to a further publicprocess by including it within the Unitary Plan, the Council recommends that section119(1)(c) be amended as follows:

(c) a district plan for Auckland, excluding the area covered by the Hauraki GulfIslands district plan until such time as a variation or plan change is introduced to

incorporate the Hauraki Gulf Islands into the Auckland combined plan.


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Section 120 Initial preparation of Auckland combined plan

43. The Council supports this section.

Discussion

44. In particular the Council supports the modifications to the otherwise applicabletimeframes under the RMA's First Schedule, and the removal of the Council's power toextend timeframes or waive non-compliance with timeframes. The removal of thispower is justifiable in light of the already expanded timeframes for submissions on theUnitary Plan, and the three year deadline (from notification) for the Hearings Panel tomake recommendations to the Council under proposed section 141. In any event thechairperson of the Hearings Panel has the power to accept a late submission under theproposed section 131.

Recommendation

45. The Council seeks that clause 120 is enacted it its current form.

Section 121 Restriction on amendments or variations to Auckland combinedplan

46. The Council opposes this section as currently drafted, and recommends amendmentsas discussed below.

Discussion

47. This section provides that the following RMA provisions do not apply to the UnitaryPlan before it is operative:

(a) section 55 (requirement to amend the plan to recognise national policystatements);

(b) clauses 16 to 16B of the First Schedule (which include the power to correct minorerrors and to make variations to a proposed plan); and

(c) other provisions that allow an amendment or variation to be made.

48. The Council understands the moratorium on variations to be aimed at making as muchof the Unitary Plan as possible operative within three years of notification. It supportsthat goal, but notes that special circumstances (such as defining the location of therural urban boundary (RUB) or the implementation of the national policy statement onfreshwater management) will likely require variations to be promulgated within threeyears of the plan being notified. These variations will allow the Council to achievesome of the key outcomes of amalgamation and to meet related statutory obligations.

49. The Council recommends that it retain the ability to notify variations to address materialchanges in circumstances, or significant information that has become available sincenotification of the plan. However, to ensure that any variation does not slow down thehearing of submissions on the Unitary Plan, and that in accordance with clause 16B ofthe First Schedule the variation can merge with the proposed Unitary Plan once itreaches the same procedural stage, the Council should only be able to notify variations

until the closing date for further submissions on the Unitary Plan. The exceptionwould be for site-specific additions to historic heritage schedules in the Unitary Plan,


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which would not impact upon other substantive parts of the Unitary Plan and thereforewould not hold up the Unitary Plan hearings process but is necessary to ensure thatbuildings identified for scheduling can be protected as and when identification is madepending completion of the scheduling process. Without this exception, the protection ofsignificant heritage buildings warranting scheduling could be frustrated, as an ownercould lawfully demolish the building (assuming there were no controls in the relevantoperative plan) before the Council was able to notify a variation on the expiry of themoratorium.

50. It also recommends that the Hearings Panel should also have the power to direct theCouncil to prepare a variation, to address matters for which it considers insufficientprovision is made in the Unitary Plan, which are raised in submissions, but which aremore appropriately dealt with through a separate First Schedule process. Examplesmight include submissions seeking comprehensive site specific rezoning of land. Thiswould supplement its power to make recommendations under proposed section 139,but significantly, could be exercised earlier in the Hearings Panel's decision-makingprocess. The Council would expect this power to direct variations to be used only in

exceptional circumstances, as it is important that variations do not compromise theHearings Panel making its recommendations 50 working days before the 3 yearsanniversary of the plan being notified (as required by section 141).

51. In addition, given the resource implications for the Council associated with the UnitaryPlan, it suggests that there should be a moratorium on private plan changes to anyoperative district or regional plans until such time as the Unitary Plan is operative.Those wishing to lodge a private change request would still have the six month periodbetween the release of the draft Unitary Plan for consultation in March 2013 and itspublic notification in September 2013 in which to lodge a private plan change request.

52. It is also unclear why the power to correct minor errors under clause 16(2) of the First

Schedule is removed until the Unitary Plan becomes operative. Case law and practicein relation to clause 16(2) is clear that the power to correct minor errors under clause16(2) should not affect substantive rights, and there is no evidence of this power beingabused. Retaining this power allows the Council to address errors quickly andefficiently, and thereby reduce uncertainty and confusion (both for those applying theUnitary Plan during the resource consent process, and those making submissions onthe plan). The Council therefore recommends that this power be retained.

Recommendation

53. The Council recommends that proposed sections 121(1) and (2) be amended asfollows:

Restriction on variations to Auckland combined plan

(1) The following provisions of the RMA do not apply to the Auckland combined planbefore it is operative:(a) section 55:(b) clauses 16 to 16B 16A of Schedule 1:(c) any other provision. . .

(1) Auckland Council may notify a variation to the Auckland combined plan underclause 16A of Schedule 1 only if one or more of the circumstances in subsection (2)applies.


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(2) However, despite subsection (1) an amendment may be made A variation mayonly be notified-(a) before the closing date for further submissions referred to in section 120(7) ofthis Act, unless paragraph (b) or paragraph (c) applies; or(b) if the variation concerns a site-specific addition to a historic heritage schedule tothe Auckland combined plan; under clause 4(10) of Schedule 1 of the RMA; or(c) at the direction of the Hearings Panel, or as a result of the Auckland Council'sdecisions on the recommendations of the Hearings Panel.

54. The Council also recommends that a new section 121A be inserted as follows:

121A Restriction on requests for changes to policy statements or p lans

Notwithstanding anything in Part 2 of Schedule 1 of the RMA, no person may request

a change to a policy statement, regional plan or district plan that applies in Auckland

in the period commencing on the date the Auckland combined plan is publicly notified

and ending on the date the Auckland combined plan is made operative.

Section 122 Audit of evaluation report on proposed Auckland combined plan

55. The Council supports this section, subject to the comments and recommendationbelow.

Discussion

56. This section provides that the Council must provide the evaluation report preparedunder section 32 to the Ministry for the Environment for auditing no later than 60working days before the proposed plan is to be notified.

57. The Council accepts the rationale for the Ministry to audit the Council's section 32report, and notes that this is likely to further enhance public and wider stakeholderconfidence in the robustness of the Council's analysis underlying the Unitary Plan.However, this requirement for the report to be provided 60 working days before theproposed plan is to be notified will make it almost impossible for the Council to notifythe plan in this current electoral term. This is because analysis and decisions basedon the feedback from public engagement in March to May 2013 will not be completeduntil the end of July. In addition, the Council recognises that the section 32 report willbe an important document that will require adequate preparation time to complete. TheCouncil therefore supports reducing that requirement to 20 working days before the

proposed plan is notified. The Council notes that this reduction need not affect theCouncil's obligation to make the Ministry's audit report publicly available, as under theproposed section 130(7) that report is to be made publicly available "at the same timeas, or as soon as practicable after, the proposed plan is publicly notified".

Recommendation

58. The Council therefore recommends that section 122(3) be amended as follows:

(3) The Auckland Council must provide the reports to the Ministry as soon aspracticable after they are prepared, but no later than 60 20 working days before theday on which the proposed plan is to be publicly notified.


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Section 129(6) Conference of experts


Discussion

60. This subsection provides that the Council may attend a conference of experts underthis section only if authorised to do so by the Hearings Panel. There does not appearto be any rationale for excluding the Council from a conference of experts. The dangeris that excluding the Council or a representative of the Council from a conference ofexperts could result in the rationale for the Council's position as set out in the proposedplan being overlooked, or the impact of possible changes to the proposed plan notbeing fully understood. Accordingly, the Council suggests redrafting subsection (6) tocreate a presumption of Council attendance at a conference of experts.

Recommendation

61. The Council recommends subsection 129(6) be amended as follows:

(6)To avoid doubt, t The Council or an expert engaged by the Council may attend aconference under this section only if authorised to do so by unless the HearingsPanel specifically directs otherwise.

Section 130 Alternative dispute resolution


Discussion

63. The Council supports the overall intent of this section, but considers that similarwording to that used in proposed section 129(5) should be added as mediations orother processes are undertaken on a without prejudice basis.

Recommendation

64. The Council recommends that subsection (4) be amended as follows:

(4) The person who conducts the mediation or other process must report theoutcome to the Hearings Panel, but must not advise the Hearings Panel of anymaterial communicated or made available at the mediation or other process on awithout prejudice basis.

Section 132(3)(b) Hearing Procedure cross examination

65. The Council supports this subsection subject to the comments and recommendationbelow.

Discussion

66. This subsection provides for the Hearings Panel to permit cross examination. Given

the nature of the hearings process this is appropriate and supported.


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67. However, Council considers that cross examination should be limited to experts onlyand not include lay persons. Cross examination will be most valuable for the HearingsPanel when it is between experts. It is important that lay persons feel confident toparticipate in the hearing process and are not subjected to unnecessary formality orlegal process. The hearings panel will still be able to test the evidence of lay witnessesthrough its own questions.

Recommendation

68. The Council recommends that subsection (3) be amended as follows:

(a) subject to paragraph (b), may permit a party to question any other party orwitness; and(b) may permit cross-examination of experts, but not of lay witnesses; and

Section 139(2) Hearings Panel recommendations not limited by scope ofsubmissions

69. The Council opposes this subsection.

Discussion

70. This subsection states that the Hearings Panel is not limited to makingrecommendations within the scope of submissions, and may make recommendationson any other matters relating to the proposed plan identified by the panel or any otherperson during the hearing.

71. This subsection is a substantial departure from the existing law. Under the RMA, aconsent authority is limited by clause 10(1) of the First Schedule to giving a decision on

the provisions and matters raised in submissions. The established case law requiresthat any amendment to a proposed plan must be "fairly and reasonably raised" withinthe submissions filed.

72. Auckland Council is unsure as to the rationale for this provision. In particular, it isunclear why the normal power to make recommendations on matters fairly andreasonably raised in submissions is seen as unreasonably constraining the HearingsPanel. Indeed, given the interest in the Unitary Plan and the range of views likely to beexpressed in submissions, the Hearings Panel could be expected to have ample scopeto make recommendations.

73. Section 139(2), on its face, gives the Hearings Panel an unfettered discretion to makeany recommendation on any matter relating to the proposed plan. This raises two keyconcerns:

(a) First, submitters and the general public will have no opportunity to consider andaddress a Hearings Panel recommendation on a matter that is outside the scopeof existing submissions. A recommendation beyond the scope of submissionscould have a significant impact on property rights and other interests, yet theaffected parties would have no opportunity to respond to it: they could only hopethat the Council refused to accept the Hearings Panel's recommendation. The"right to be heard", which the subsection (2) offends, is one of the core principlesof natural justice.


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(b) Second, the power to make recommendations beyond the scope of submissionsblurs the boundary between adjudication (which is the proper role of the HearingsPanel) and plan making (which is the proper role of Auckland Council as ademocratically elected local authority). To that extent, the power is contrary tothe principle of separation of powers under which legislative (in the case of planmaking) and judicial functions are kept separate.

74. Further, there would be no right of appeal in relation to any recommended changes tothe proposed plan that go beyond submissions, as all appeal rights are limited tomatters "that the person addressed in the submission" (see sections 150(1)(a) and152(1)(a)).

75. The Council proposes that this subsection be amended to ensure that any changesrecommended to the proposed plan by the Hearings Panel are within the scope ofsubmissions, unless they relate to the Hearings Panel directing the Council to initiate avariation to the proposed plan, or they relate to alterations of minor effect or correctionsof any minor errors.

Recommendation

76. The Council recommends that section 139(2) be deleted.

Section 140(3) Status of the spatial p lan (Auckland Plan)

77. The Council supports the intent of this section, subject to the comments andrecommendation below.

Discussion

78. This subsection requires the Hearings Panel to ensure that regard has been had to theAuckland Plan when complying with subsection 1(f) in respect of section 66 of theRMA (which relates to the preparation and changing of any regional plan). This is theonly requirement for the Hearings Panel to consider the Auckland Plan.

79. The Local Government (Auckland Council) Act 2009 (LGACA) required that theAuckland Plan be a comprehensive and effective long-term (20- to 30-year) strategyfor Auckland's growth and development, and provide a basis for aligning the Council'simplementation plans, regulatory plans, and funding programmes. Anticipating its linksto RMA plans and strategies, the LGACA specifically required the Auckland Plan toexplicitly identify the existing and future location and mix of

(a) residential, business, rural production, and industrial activities within specificgeographic areas within Auckland; and

(b) critical infrastructure, services, and investment within Auckland (including, forexample, services relating to cultural and social infrastructure, transport, openspace, water supply, wastewater, and stormwater, and services managed bynetwork utility operators).

80. The primary means by which the Council, as a regulatory authority, can enable theseoutcomes is through the Unitary Plan.

81. The Auckland Plan was adopted in March 2012, following comprehensive engagementwith community and stakeholders on the plan's content and direction. In accordancewith the LGACA's direction, central government, infrastructure providers (including


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network utility operators), the communities of Auckland, the private sector, the ruralsector, and other parties were involved throughout the plan's preparation anddevelopment.

82. The Council seeks that the Hearings Panel be required to ensure that the Unitary Planbe consistent with the Auckland Plan given the high level of community buy-in to theAuckland Plan. Without greater legal weight in the panel's decision-making, theAuckland Plan will not achieve its purposes as set out in the LGACA, and positiveoutcomes from the Auckland Plan in relation to matters such as land supply and urbangrowth cannot be achieved in a timely manner.

Recommendation

83. The Council recommends that section 140(3) be amended as follows:

(3) To avoid doubt, when When complying with subsection 1(f) in respect of section66 of the RMA, the Hearings Panel must ensure that regard has been had to the its

recommendations are consistent with the spatial plan for Auckland prepared andadopted under section 79 of the Local Government (Auckland Council) Act 2009.

Section 143(3) Auckland Council may accept recommendations beyond thescope of submissions

84. The Council opposes this subsection.

Discussion

85. For the reasons outlined above in relation to section 139(2), the Council opposes theHearings Panel having the power to make recommendations beyond the scope of

submissions. For the same reasons the Council should not have to power to acceptrecommendations beyond the scope of submissions.

Recommendation

86. The Council recommends that this subsection be deleted.

Section 143(4) Auckland Council to not ify decisions within 20 working days


Discussion

88. This subsection requires the Council, no later than 20 working days after it is providedwith the Hearings Panel's report under section 141, to publicly notify its decisions. Itmust state, in respect of each recommendation of the Hearings Panel, whether itaccepts or rejects the recommendation, and if it rejects the recommendation, thereasons for doing so and its alternative solution.

89. The Council considers that 20 working days is insufficient for the Council to considerthe report of recommendations of the Hearings Panel. The Unitary Plan is a verybroad ranging document, combining the regional policy statement, regional coastal

plan, regional plan and district plan for Auckland. The recommendations of theHearings Panel will inevitably be extensive. A 20 working day time period, in reality,


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gives the Council little choice other than to accept the Hearings Panel'srecommendation or reject it and stick with the proposed plan as notified. This isdespite section 139 specifically requiring the Council to give reasons for rejecting theHearings Panel recommendations, and to state an alternative solution (which may ormay not include elements of the proposed plan and Hearings Panelrecommendations). Put simply, 20 working days provides insufficient time to give dueconsideration to the Hearings Panel's recommendations.

90. The Council therefore seeks 40 working days in which to make its decision on

recommendations, and that the Minister be able to extend that decision-making period

where the Council so requests by an additional 20 days.

Recommendation

91. Accordingly, the Council proposes that subsection (4) be amended as follows:

(4) The Council must, no later than 20 40 working days after it is provided with the

report under section 141 . . .

Section 147 RMA provisions relating to legal effect apply

92. The Council opposes this section as currently worded and seeks that it be amended.

Discussion

93. This subsection states that sections 86A to 86G of the RMA apply, with all necessarymodifications, to a rule contained in the proposed plan.

94. Section 86B(3) of the RMA provides that a rule in a proposed plan will have immediate

legal effect if the rule -

(a) protects or relates to water, air, or soil (for soil conservation); or(b) protects areas of significant indigenous vegetation; or(c) protects areas of significant habitats of indigenous fauna; or(d) protects historic heritage; or(e) provides for or relates to aquaculture activities.

95. Under section 86B, therefore, many rules in the Unitary Plan will have immediate legaleffect: that is effect from the date the plan is publicly notified. By contrast, otherimportant rules in the proposed plan will only have legal effect after the Hearings Panel

has made its recommendations, and the Council made a decision on thoserecommendations. This period is likely to be in the order of three years. This has thepotential to significantly delay opportunities to take advantage of positive outcomes theUnitary Plan will enable on matters such as affordable housing, extensions of the RuralUrban Boundary, and the availability of land for commercial and industrialdevelopment.

96. It is noted that while, under section 86B, rules with a focus on protecting naturalresources (and that have the potential to constrain development) will have immediatelegal effects, rules that have a focus on the built environment (and have the potential toencourage housing development) will not have immediate legal effect. Accordingly,there is an imbalance in what rules have legal effect, until such time as the Council

notifies its decisions following the Hearings Panel recommendations.


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97. The Council considers that section 147(1), as currently worded, is potentiallyinconsistent with the Governments intention of simplifying planning processes,because the applicant will need to determine which rules in the combined Aucklandplan do and do not have immediate legal effect. While that is the case with any districtor regional plan that is notified, the problem is exacerbated due to the Unitary Plancontaining both regional rules (many of which will have immediate effect under section86B but some of which will not) and district rules (most of which will not haveimmediate legal effect under section 86B, but some of which will).

98. A particular reason for the first Unitary Plan to have immediate legal effect is that thereare currently 10 district plans, 4 regional plans and a regional policy statement in forcein Auckland. Apart from the Rodney District Plan and Proposed Hauraki Gulf Islandsplan, each of the district and regional plans was made operative between 1999 and2005, meaning they no longer reflect the present needs and aspirations of Auckland'scommunities. Statutory direction that the Unitary Plan has greater weight than thesedocuments would provide greater simplicity and certainty for the public and otherstakeholders.

99. In addition, apart from the rules all of the Unitary Plan (including objectives, policiesand methods) will have immediate legal effect from notification, and therefore will needto be considered by consent authorities alongside relevant provisions in the existing,operative plans and regional policy statement. This raises the question of what weightconsent authorities give to objectives, policies and relevant other provisions in theUnitary Plan, relative objectives, policies and other relevant provisions in the existingoperative plans. These judgements will need to be made by commissioners hearingresource consent applications on a case by case basis, giving little certainty toapplicants and other stakeholders in the resource consent process.

100. Giving the entire plan immediate legal effect will provide greater certainty to the public,

business community and other stakeholders and will greatly simplify the currentcomplex range of plans in operation in Auckland and avoid confusion. Further, anamendment to the Bill stating that, from notification, greater weight is to be given torelevant provisions in the Unitary Plan than to relevant provisions in the operativeregional policy statement and operative plans, will provide clarity to consent authoritiesand greater certainty to applicants and other stakeholders in the resource consentprocess. It will also fast-track the positive outcomes under the Unitary Plan notedearlier.

101. Auckland Council has considered the different ways in which rules in the Unitary Plan

could be made to have some legal effect from notification. The first, "status quo",

option is that only those rules which fall within the scope of section 86B(3) of the RMA

would have immediate legal effect. As noted above, this is both confusing for the

public and applicants, and undesirable in policy terms because it postpones the

development outcomes the Unitary Plan will facilitate.

102. The second option is for Auckland Council to apply to the Environment Court for orders

under section 86D of the RMA that particular rules in the Unitary Plan (other than those

already having immediate legal effect under section 86B(3)) have immediate legal

effect. Apart from the inherent uncertainty as to whether such applications would be

granted, this option is impracticable because the case would need to be made for each

rule to have immediate legal effect. This would impose a huge evidential burden on

the Council and an enormous task on the Environment Court as the body determiningthe application.


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103. A third option is that the Unitary Plan has the same immediate legal effect as all new

plans notified before the 2009 RMA amendments which inserted sections 86A to 86G

of that Act. In other words, the plan including all rules would have immediate legal

effect, but very little weight compared to the operative regional policy statement and

operative regional and district plans, because it was only at the start of the First

Schedule process and hence had not been tested through submissions and appeals.Again, this option can be discounted for the reasons discussed above relating to

uncertainty and postponement of development outcomes facilitated by the Unitary

Plan.

104. Accordingly, the Unitary Plan having immediate legal effect plus greater weight than

the operative regional policy statement and operative regional and district plans is

considered to be the most suitable option.

Recommendation

105. The Council recommends that proposed section 147 be amended as follows:

147 RMA provis ions relating to legal effect of rules do not apply

(1) Sections 86A to 86G of the RMA do not apply, with all necessary modifications,to a rules contained in the proposed plan, all of which are to have immediatelegal effect on and from notification of the proposed plan.

(2) Without limiting subsection (1), every reference to clause 10(4) of Schedule 1must be read as a reference to section 143(4)(a).

106. It further recommends that a new section 147A be inserted as follows:

147A Weight to be given to proposed plan

When considering an application for resource consent under section 104 of the RMA,or a requirement under section 171 or section 191 of the RMA, a consent authority ora territorial authority (as the case may be) must give greater weight to relevantprovisions in the proposed plan than to relevant provisions in a regional policystatement or plan.

Section 149 Appeal rights

107. The Council supports this section.

Discussion

108 This section provides that the only appeal rights available in respect of the Unitary Planare the right of appeal to the Environment Court under section 150 and the right ofappeal to the High Court under section 152. The Council considers it appropriate forappeal rights to be limited as provided for in sections 150 and 152, given thesignificantly enhanced consultation process followed for the Unitary Plan, and theenhanced hearing procedure before the Hearings Panel which the Bill provides. Theenhanced procedure, similar to a board of inquiry process from which only limitedrights of appeal are available under the RMA, will ensure robust decision-making atfirst instance, obviating the need for merits appeals to the Environment Court except

where the Council rejects a Hearings Panel recommendation.


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Recommendation

109. Section 149 is enacted in its current form.

Section 150 Right of appeal to Environment Court

110. The Council supports the intent of this section, but recommends that it be reworded forgreater clarity.

Discussion

111. Under this section a submitter can appeal to the Environment Court in respect of aprovision or matter relating to the proposed plan, that the submitter addressed in theirsubmission and in relation to which the Council rejected a recommendation of theHearings Panel which resulted in a provision being included in the proposed plan or amatter being excluded from the proposed plan.

112. The Council considers that the proposed hearings process will ensure all issues arerobustly considered. In situations where the Auckland Council makes an alternativedecision (having rejected the recommendation of the Hearings Panel) without thebenefit of hearing all the evidence, then the Council considers that the matter shouldbe able to be appealed to the Environment Court.

113. While the Council supports this policy position, section 150 as presently worded doesnot make it clear that there is a right of appeal to the Environment Court where theCouncil amends a provision recommended by the hearings panel (as opposed tosimply including a provision or excluding a matter). At present this is only implicit, asamending a provision will involve including a "provision" in the proposed plan (i.e. theamended provision), excluding a "matter" from the plan (i.e. elements of the panel's

recommended wording), or possibly both.

114. The scope of any statutory right of appeal should be clear and unambiguous.Accordingly, the Council recommends that section 150 be reworded to make it clearthat a submitter can appeal a Council decision to reject a Hearings Panelrecommendation by including a provision in the proposed plan, excluding a matter fromthe proposed plan or amending a provision recommended by the Hearings Panel.

Recommendation

115. Section 150 is amended as follows:

150 Right of appeal to Environment Court

(1) A person who made a submission on the proposed plan may appeal to theEnvironment Court in respect of a provision or matter relating to the proposedplan-

(a) that the person addressed in the submission; and

(b) in relation to which the Council rejected a recommendation of theHearings Panel, which resulted in by-

(i) including a provision being included in the proposed plan; or

(ii) excluding a matter being excluded from the proposed plan; or


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(iii) amending a provision recommended by the Hearings Panel.

Section 152 Right of appeal to High Court on question of law

116. The Council supports the intent of this section, but recommends that it be reworded forgreater clarity and consistency with proposed section 150.

Discussion

117. This section limits an appeal to the High Court to situations where a submitteraddressed a provision or matter in their submission, and the Council accepted arecommendation of the Hearings Panel which resulted in a provision being included inthe proposed plan or a matter being excluded from the proposed plan. Retaining aright of appeal on points of law is an important safeguard in the event of there being anerror of law.

118. Equally, limiting the right of appeal points of law (except where the Council rejects aHearings Panel recommendation) is consistent with existing appeal rights under theRMA from boards of inquiry, which the process proposed for the Unitary Plan closelyresembles. Limiting rights of appeal to points of law will prevent the merits of theHearings Panel recommendations and Council's decisions accepting thoserecommendations being re-litigated, and the Unitary Plan is made operative morequickly than would otherwise be the case.

119. The Council recommends, however, minor changes to the wording of section 152 tosimplify it and to make it consistent with the wording of section 150 as amended above.

Recommendation

120. Section 152 is amended as follows:

152 Right of appeal to High Court on question of law

(1) A person who made a submission on the proposed plan may appeal to the High

Court in respect of a provision or matter relating to the proposed plan-

(a) that the person addressed in the submission; and

(b) in relation to which the Council accepted a recommendation of the Hearings

Panel, which resulted in by-

(i) including a provision being included in the proposed plan; or

(ii) excluding a matter being excluded from the proposed plan.

(iii) amending a provision recommended by the Hearings Panel.

Section 155 Minister for Environment and Minister of Conservation to establishHearings Panel

121. The Council opposes this section as currently drafted and recommends amendmentsas discussed below.


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Discussion

122. This section provides for the chairperson and other members of the Hearings Panel tobe appointed jointly by the Ministers, following consultation with the Auckland Counciland the Independent Mori Statutory Board.

123. The Unitary Plan is a document that primarily affects Auckland and Aucklanders. Thefact that it deals with inherently local issues which require local knowledge isrecognised to some extent in proposed section 155(4), which requires that panelmembers appointed collectively have knowledge of and expertise in relation to(amongst other matters) tikanga Mori as it applies in Tmaki Makaurau, and themanawhenua, and the other people of Tmaki Makaurau. The text suggests thatAuckland Council should partner with central government in appointing the HearingsPanel, because it is best placed to identify who the potential members possessing thenecessary local knowledge are. The Council considers that it should have decision-making powers, rather than merely being consulted with, in the appointment of theHearings Panel. The Unitary Plan will ultimately be Auckland Councils plan, and

decisions whether or not to accept the panel's recommendations will be made by theelected representatives of Auckland Council. Again, this suggests that the Councilshould be involved in the decision-making around the membership of the HearingsPanel.

124. While the Council believes that all appointments should be made by the Council inconsultation with Ministers and the Independent Mori Statutory Board, Councilsuggests that guidance can be drawn from the process for appointing directors to theTamaki Redevelopment Company Limited. Of its five to seven directors, one isappointed by the Crown, one by the Council, the balance appointed by ordinaryresolution of the shareholders (the Crown and Council), and the chairperson agreed bythe Crown and the Council. A joint selection process prior to Ministerial announcement

will also better reflect the fact that Auckland Council is bearing the majority of the costassociated with the process. Given that the Independent Mori Statutory Board wasestablished by legislation to assist the Auckland Council make decisions, performfunctions and exercise powers by promoting issues of significance to Mori and torecognise the close working relationship of the Board and Council it is recommendedthat Auckland Council takes the primary role in consulting with the Board over the

appointment of the Hearings Panel members.

Recommendation

125. The Council considers that section 155 should be amended as follows:

Section 155 Ministers and Auckland Council for Environment and Minister ofConservation to establish Hearings Panel(3) The Hearings Panel must be appointed as follows:

(a) The Ministers have the right to appoint one member;(b) Auckland Council has the right to appoint one member;(c) The chairperson and other members must be appointed jointly by the

Ministers after consulting with and the Auckland Council after AucklandCouncil has consulted with the Independent Mori Statutory Board.

126. Consequential amendments should also be made to subsections (4), (7) and (8) by

inserting the words "and the Council" after the word "Ministers".


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Section 157 When member ceases to hold office


Discussion

128. This section provides a process for the Minister for the Environment and Minister ofConservation to remove a member of the Hearings Panel at any time for just cause.Given that Auckland Council believes that all appointments to the Hearings Panelshould be made jointly by the Crown and Auckland Council, Councils position is thatHearings Panel members can only be removed in a manner consistent with thesuggested amendments to Section 155.

Recommendation

129. The Council considers that section 157 should be amended as follows:

Section 157 When member ceases to hold of fice

(2) The Minister for the Environment and, the Minister of Conservation and theAuckland Council may jointly, at any time for just cause, remove a member bywritten notice to the member (with a copy to the Hearings Panel).

Section 162 Funding of Hearings Panel and related activ ities


Discussion

131. This section provides for the Council to be responsible for all costs incurred by theHearings Panel and for the activities related to the performance or exercise of thePanel's functions and powers under this Part. The cost implications of the Councilbeing responsible for all costs incurred by the Hearings Panel are significant (likely tobe several million dollars).

132. While the Council would normally be responsible for the costs incurred by Councilhearings panels, in the case of the Unitary Plan, the hearing process will besignificantly longer and more comprehensive. As noted above, the Hearings Panel'sprocedure will be more akin to a Board of Inquiry process.

133. The Council understands that generally the Governments approach is thatresponsibility for funding should follow responsibility for decision-making. Therequirement that the Council be responsible for all costs incurred by the HearingsPanel runs counter to the government holding the final power of appointment of theChairperson and members on the Hearings Panel.

134. Furthermore, the significantly enhanced engagement process before the HearingsPanel is, in many ways, the quid pro quo for the loss of a right to lodge merits appealsto the Environment Court where the Council accepts the Hearings Panel'srecommendations. The government is responsible for the costs of the Environment

Court, and accordingly stands to benefit from the reduction in Environment Courtappeals.


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135. The Council notes that the Hearings Panel has considerable scope to regulate its ownprocedure under proposed sections 124 to 138, including the power to require pre-hearing session meetings and conferences of experts, and to commission of reports.Under proposed section 159 the Chairperson has powers to decide how manymembers of the Hearings Panel are to be present at each hearings session. The waythese powers are exercised, in conjunction with the volume and complexity ofsubmissions on the proposed plan, are likely to have a significant impact on the overallcosts to be borne by the Council under proposed section 165. Given these variables, itis not possible to estimate, in advance and with any degree of precision, of the overallcosts of the hearings process. The Council does not oppose being responsible forcosts incurred by the Hearings Panel, provided that Council and Government agreeupon other aspects of the hearings process discussed in this submission.

Recommendation

136. The Council recommends that, consistent with its earlier recommendation that it have apartnership with central government in appointing the Hearings Panel rather than

simply a right to be consulted, section 162(3) should be amended as follows:

(3) For the purposes of subsection (1), each member of the Hearings Panel mustbe paid-

(a) remuneration by way of salary, fees, or allowances at a rate determined byagreed between the Minister for the Environment after consultation with and theCouncil; and

SECTION 4: PROPOSED AMENDMENTS TO THE RESOURCEMANAGEMENT ACT 1991

137. The Council wishes to comment on several aspects of the proposed amendments tothe RMA in Part 1 of the Bill, as set out below. The Council also notes that it supportsthe intent of the Bill to introduce a 6 month consent time frame for medium sizedprojects. However as the new provisions are complex there is the potential for localauthorities to interpret their requirement in different ways.

138. The key concerns for the Council in Part 1 are:

District plan tree protection provisions under clause 12;

Mandatory direct referral for resource consent applications under clauses 13, 33,38 and 41;

Changes to section 32 evaluation reports, and new section 32AA furtherevaluation reports under clause 69; and

Changes to stopping the clock where a further information request is made duringthe resource consent process under clause 92.

139. However, the Council addresses below all significant matters in Part 1 (whethersupported or opposed), in the order in which they appear in the Bill.


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SUBPART 1 AMENDMENTS THAT COMMENCE DAY AFTER ROYAL ASSENT

Clause 7 Monitoring

140. The Council supports this clause subject to the comments and recommendations

below.

Discussion

141. This clause enables regulation(s) to be made that will specify what a council shouldmonitor and how it should undertake that monitoring.

142. The Council considers that flexibility in the requirements imposed by regulations will beimportant because some of the environmental issues and challenges, andconsequently monitoring approaches, reflect local issues. Accordingly, the Councilconsiders that a balance must be struck between national, regional and localrequirements. As regulations will impose obligations and costs onto councils, their

design needs to be done in collaboration with local government, including AucklandCouncil, and funding set aside to fund their implementation.

Clause 12 District plan tree protection provisions

143. The Council opposes this clause as currently drafted, and recommends amendmentsas discussed below.

Discussion

144. This change amends section 76(4A) of the RMA to clarify the extent to which a ruleprotecting a tree or a group of trees may be included in a district plan. A new definition

of "groups of trees" is also provided in section 76(4B).

145. Section 76(4A) requires the tree or group of trees to be specifically identified in aschedule to the plan by street address or legal description of the land, or both. In thecase of a group of trees it must satisfy the new definition in section 76(4B) to be a"cluster, grove, or line of trees that are located on the same or adjacent allotments."The new provisions apply to tree protection rules in the "urban environment" (alsodefined in section 76(4B)).

146. The initial amendments to section 76 of the RMA were introduced by the ResourceManagement (Simplifying and Streamlining) Amendment Act 2009 and were intendedto prevent "blanket" tree protection rules in district plans. As a result of the way in

which the 2009 amendments have been interpreted, the Council understands thatfurther amendments to section 76 are now considered necessary to clarify its intent.

147. The Council opposes the proposed amendments as currently drafted. Of particularconcern to the Council are the large tracts of forest ecosystems on privately ownedland in the foothills of the Waitakere Ranges. Many of these sites in places such asTitirangi and Laingholm would meet the definition of urban environment. Much of thisarea is within the Waitakere Ranges Heritage Area established by the WaitakereRanges Heritage Area Act 2008 which recognises its national, regional and localsignificance.

148. The requirement for groups of trees to be identified by street address or legaldescription of the land on a schedule creates practical difficulties when thousands ofproperties are involved (approximately 10,000 privately owned properties in the case of


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the Waitakere Ranges). It would require significant Council resources to schedulethese sites and the process would result in a very large district plan schedule.Therefore the mapping of this tree resource is more sensible.

149. In addition, it is unclear whether trees in such a large forest ecosystem would fall withinthe proposed definition of group of trees. The terms "cluster" and "grove" and "line oftrees" create new uncertainties and could be narrowly interpreted to apply to onlycontiguous and small groups of trees. In the absence of a definition of tree, it is alsonot clear whether those expressions would apply to both the understory and canopytrees of a forest ecosystem.

150. Similar issues arise with Auckland's coastal pohutukawa resource, tracts of maturetrees around the base of the Auckland's volcanic cones, urban stream/coastal riparianedges, places identified as significant ecological areas and native bush in otherlocations. Trees in these locations may provide important ecosystem services andmake a significant contribution to Auckland's landscape character. Aside from thepracticalities of scheduling a large number of properties, it is not clear whether coastal

pohutukawa along cliffs and riparian vegetation that is not always physically contiguousis a "line of trees" or could be considered a "cluster" or "grove."

151. The existing rules that protect these tree resources are not the type of blanket treeprotection rules that the 2009 amendments to the RMA were intended to prevent. Inthis respect, Property Council New Zealand Incorporated advised the Council and theEnvironment Court in 2012 that many of the rules in the Auckland Council's districtplans that currently protect such resources were not subject to substantive challenge inits application for declarations about the interpretation of the 2009 tree protection ruleamendments. The proposed amendments to section 76 could therefore unintentionallyresult in important tree resources in the Auckland region being unable to be protectedin the future through district plan rules.

152. To achieve its obligation to recognise and provide for the protection of areas ofsignificant indigenous vegetation (section 6(c)) and its other duties under the RMA, thismay leave the Council with the only option of protecting important tree resources in theAuckland urban environment through its functions as a regional council by the use ofregional plan rules, rather than district plan rules.

153. The proposed amendments also do not address issues concerning the interpretationand scope of the definition of "urban environment" in section 76(4B). The currentdefinition excludes non-reticulated allotments greater than 4000m2. In practice this hasresulted in interpretative issues in urban areas about whether tree protection rulesapply. An example is where parent lots greater than 4000m2 are subject to cross-

leases. Also in locations such as Whangaparaoa some dwellings have reticulatedwater supply and sewerage systems and others rely on tank water which has led toconfusion from members of the public about whether tree protection rules apply.

Recommendation

154. The Council recommends that clause 12 be amended as follows:

(1) Replace section 76(4A)(a) with:

(a) specifically identified in a schedule to the plan by street address or legal

description of the land, or both, regardless of whether the tree or group oftrees is also identified on any map in the plan, unless the scheduling relatesto trees on 100 or more contiguous allotments, or where the scheduling


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relates to trees that are within areas of significant indigenous vegetation orsignificant habitats of indigenous fauna, (in which case identification on anymap in the plan is sufficient); . . .or

(2) Replace section 76(4B) with:

(4B) In subsection (4A),group of trees means a cluster, grove, or line or other group of trees with sharedcharacteristics (such as coastal pohutukawa) that are located on the same oradjacent allotments and includes contiguous native vegetation irrespective of area

urban environment means an allotment, other than an allotment in the WaitakereRanges Heritage Area established under section 5 of the Waitakere Ranges HeritageArea Act 2008, no greater than 4,000 m. . .

Clauses 13, 33, 38 and 41 Mandatory di rect referral for resource consent applications,coastal permit applications and requirements for designations and heritage orders

155. The Council opposes these clauses.

Discussion

156. These changes would make it mandatory for the Council to refer applications to theEnvironment Court, when requested by the applicant if the application meets orexceeds an investment threshold (yet to be determined in regulations), unlessexceptional circumstances (yet to be identified in regulations) exist.

157. The Council does not consider that there is any justification for the proposedamendments. Since the previous amendments were enacted, only 3-4 requests for

direct referral have been made in the Auckland area. The Council has made aconsidered decision to either support or decline the request in each case.

158. The RMA is based on the principle that most resource management decisions are bestmade by communities affected by those decisions. The approach of making directreferral mandatory for high value applications represents an erosion of local decision-making powers.

159. The proposed changes suggest that regulations will set thresholds for direct referralsbased on the value of the investment represented by the proposal. This is a relativelyblunt measure. In practice, there is no direct relationship between the investmentrepresented by a proposal and the effects and/or level of controversy it raises. The

value of a proposal is not a safe proxy for the importance or complexity of a resourceconsent decision: "low value" proposals affecting natural resources may be highlysignificant, while "high value" proposals in general conformity with plan provisions maybe straightforward and uncontroversial. Mandatory direct referral in these instancescould lead to increased costs for the Council, and increased costs and an intimidatingatmosphere for third parties including lay people in particular.

160. Mandatory direct referral based on the value of the investment is also unnecessarygiven the applicant's ability to seek direct referral, and ministerial call-in powers, underexisting RMA provisions.

161. The suggestion that local authorities would be able to defer direct referral only inexceptional circumstances necessitates the exercise of discretion and arguablycreates further uncertainty, despite the prospect of regulations (under section 360)


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providing some guidance on the matters to which an authority is required to haveregard to in determining whether exceptional circumstances exist.

162. The Environment Court is not under the same statutory time constraints as the Council,so this could arguably give rise to a longer processing period for these types ofconsents (particularly when other changes to impose timeframes for the processing ofcomplex applications by local authorities are considered).

Recommendation

163. The Council proposes that clauses 13, 33, 38 and 41 be deleted in their entirety.

Clauses 14, 39 and 42 Consent authori ty report requirements for direct referral

164. The Council supports these clauses, provided that the changes proposed to section285 in clause 47 are also made.

Discussion

165. The changes proposed to sections 87F, 198D, and 198J clearly identify the mattersthat a consent authority must address in its report on a resource consent application ora requirement relating to a designation or a heritage order that has been directlyreferred. The proposed changes require that a consent authority's report must

(a) address issues that are set out in sections 104 to 112 or sections 171-191 or,sections 168A(3) or 189A(10) as relevant;

(b) suggest conditions that it considers should be imposed if the Environment Courtgrants the application; and

(c) provide a summary of submissions received.

166. The existing RMA provisions give the consent authority a discretion to address matters(a) and (b) in its report. They also do not require a consent authority to provide asummary of the submissions received.

167. The proposed changes also include a new subclause (6) which requires a consentauthority to ensure that it provides reasonable assistance to the Environment Court inrelation to any matters raised in the authority's report.

168. The Council supports clauses 14, 39 & 42, provided that the changes proposed tosection 285(7) and (8) in clause 47 are also made. Those changes enable the

Environment Court to order an applicant to pay the costs and expenses that a consentauthority or a territorial authority incurred in assisting the Court in relation to a reportprovided by the authority. The Court must apply a presumption that such costs are tobe ordered against the applicant (section 285(8)).

169. The changes will likely result in increased costs being incurred by the Council.However, if these costs can then be passed on to the applicant by order of theEnvironment Court under the changes proposed to section 285(7) of the RMA, theCouncil does not oppose them.

Recommendation

170. Enact clauses 14, 39 and 42 and the changes to section 285(7) and (8) in clause 47 intheir current form.


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Clause 19Correcting minor mistakes/defects in a resource consent


Discussion

172. This change provides the Council (as a consent authority) with an additional 5 workingdays (from 15 working days to 20 working days) from the date the consent was grantedto issue an amended consent that corrects minor mistakes or defects in the consent.

Recommendation

173. Enact clause 19 in its current form.

Clause 20 Local authority to be noti fied of call in request


Discussion

175. The change will require an applicant to serve the Council (where it is the localauthority) with notice of the request to the Minister to call in a matter. This change willensure that the Council is made aware of all call in applications.

Recommendation

176. Enact clause 20 in its current form.

Clause 47 Court can order applicants to pay costs relating to direct referral report

177. The Council supports this clause, for the reasons outlined in the discussion of clauses14, 39 and 42 above.

Clause 61 Making of regulations

178. The Council supports this clause as it relates to (hk) and (hl), but opposes this clauseas it relates to (hm).

Discussion

179. These changes enable the making of regulations for specifying indicators or other

matters by reference to which a local authority must monitor the state of theenvironment of its region or district, and various related matters. The Council supportsmost of the proposed changes, but would expect to be significantly involved in anylegislative development that had operational consequences for environmentalmonitoring.

180. However, the Council opposes the regulation making power in paragraph (hm), whichprovides for the setting of threshold amounts and matters to which an authority isrequired to have regard to in determining whether exceptional circumstances exist (inthe context of mandatory direct referral). The reasons for the Council's opposition arediscussed in relation to clauses 13, 33, 38 and 41.


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Recommendation

181. The Council proposes that paragraph (hm) be deleted.

Clause 67 Transitional provisions that apply to amendments made on or after 1January 2013

182. The Council supports the intent of this clause, but seeks amendments to clause 2 inthe new Schedule 12 to the RMA contained in Schedule 2 of the Bill.

Discussion

183. Schedule 2 inserts a new Schedule 12 to the RMA, which contains the transitionalprovisions relating to the Bill's amendments to the RMA.

184. Clause 2 sets out the transitional provisions for the existing section 32 to apply tocertain proposed policy statements and plans based on their state of advancement

through the First Schedule process. As presently worded, however, it would notexempt the first Unitary Plan from having to comply with the new sections 32 and32AA.

185. The Council has been preparing the Unitary Plan over the past two years inaccordance with the existing section 32 provisions. The Unitary Plan is a significantdocument, which is to be notified in 2013. The Council considers that a requirementfor the Council to undertake further evaluation reports in accordance with the proposedamendments to section 32 has the potential to cause significant delays to thenotification of the Unitary Plan.

Recommendation

186. The Council's opposition to further evaluations under section 32AA is discussed below.However, should the committee decide that section 32AA (contrary to the Council'ssubmission) be retained, the Council recommends that a new clause 2A be added asfollows:

2A Existing section 32 applies to fi rst Auckland combined plan

The evaluation report under section 32, and further evaluation required undersection 32AA in relation to the first Auckland combined plan (as defined in section116 of the Local Government (Auckland Transitional Provisions) Act 2010), must beundertaken as if subpart 2 had not come into force.

SUBPART 2 AMENDMENTS THAT COMMENCE 3 MONTHS AFTER ROYAL ASSENT

(OR DAY AFTER ROYAL ASSENT FOR CERTAIN PURPOSES)

Clause 69 Section 32 evaluation reports and section 32AA further evaluation reports


Discussion

188. The changes would replace the existing section 32 with two new sections section 32(which sets out the requirements for preparing and publishing evaluation reports) and


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section 32AA (which sets out the requirements for undertaking and publishing furtherevaluations).

189. In addition to existing requirements, the changes outlined in the new section 32 wouldrequire that an evaluation report:

auckland council - submission on resource management act reform bill

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