Making decisions on a plan

Abstract

Making decisions on proposed plans (including plan changes) entails making complex assessments and applying statutory and policy evaluations against a background of competing requests, variable information, time and resource pressures, and issue 'overload.' It is important to engage decision-makers in what can be a technocratic, politicised, time-consuming and lengthy process.

Preparing decision-makers

While hearings are guided by the Local Government Official Information and Meetings Act 1982, as well as the Local Government Act 1974, the Commissions of Inquiry Act 1908, and the NZ Bill of Rights Act 1987, the RMA imposes its own analytical and statutory requirements on decision-making that differentiates the process from others - thus, decision-makers should be well prepared for hearing submitters and making decisions on plans (refer to Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991).
Decision-makers should have a clear understanding of their role and responsibilities: at the least, training may be required (even experienced persons may need refreshing and updating). Above all, the common law principles of natural justice should prevail.
Decision-makers must understand they need to attend all meetings and hear all submitters relevant to the matter at hand - for example, they cannot leave a hearing, even briefly. When decision-makers do have to leave unexpectedly (for example, sickness, bereavements etc) they cannot deliberate on the issue/s they have missed hearing submissions on.
The appropriate use of independent commissioners should be identified at an early stage: for example, in matters of perceived conflicts of interest, such as Council designations. However, the delegation of decision-making powers in relation to plans is subject to the restrictions under section 34 of the Act.
Provide appropriate background information to the decision-makers in advance of hearing, particularly if there are technical issues at stake or of relevance. If a meeting or mediation is held on any matter relating to a proposed policy statement or plan, then the meeting 's chairperson must prepare a report to be given to the local authority no later than 5 working days before the hearing. The report, which must be prepared as soon as practicable after the meeting, must identify matters that were agreed between the local authority and the submitters and those that were not. The report may also identify the nature of the evidence, the order in which the evidence shall be heard, and a proposed hearings timetable. When making their decision, the local authority must have regard to the report under clause 10 of the Act. (Clause 8AA)
A local authority may require the preparation of a report on any matter relating to a hearing on a proposed policy statement, plan, or change or variation to a policy statement or plan (s42(A)).

Section 32 rigour

The decision-making process is part of the plan development process, and must follow the analytical rigour established by section 32 of the RMA (which requires a robust analysis in preparing Plans) comparing alternative methods for achieving the same objectives and policies. There is no single recipe to achieving section 32 compliance in a cost and time-effective manner. However, there are some good practice techniques:
- The requirements of section 32 must be fully integrated with the process of making decisions on submissions - this requires careful and considered planning, particularly as to how to record the process.
- Preparation is essential: as well as having decision-makers read all relevant material, briefing sessions before hearings are another good method for defining and analysing issues.
- A clear analysis of issues and options should be available to assist a focused and rigorous debate, particularly with the larger, controversial or more complex issues (a function usually served by reports).
- Minimise the time between hearings and decision-making.
- Some documentation of the decision-making process needs to be made, particularly over areas of controversy and/or disagreement with report recommendations. This could be achieved as minutes and/or as part of the written decision.
- Debate should be managed well, under a Chair who can impose some rigour on the direction of debate and analysis

The perennial triennial problem

Making decisions on a plan typically spans more than one electoral cycle (sometimes several), with the resultant loss of experienced councillors with knowledge of the process and earlier decisions. There are some techniques used to address this problem:
- When developing the framework for the preparation of a plan, recognise the triennial election cycle in programming the decision-making cycle.
- Retain experienced councillors as hearing commissioners once they leave the council, especially to continue partly heard or undecided issues.
- Analytical rigour and councillor training should help balance any lack of continuity over time. Commit some resources toward the training of councillors involved in the process, with refresher training as needed. It is particularly important councillors understand their governance role, including that of collective responsibility, as well as their quasi-judicial role.
- Establish a protocol for hearing submissions and making decisions that can endure the time of the process and any changes in Committees and staff

Hearings powers

The 2005 RMA Amendment clarified the powers for decision makers when conducting hearings (sections 41A - 41C). These powers can be exercised if the scale and significance of the hearing makes the exercise of the power appropriate. These powers include directing submitters and applicants to provide their evidence within time limits (at least 5 working days before a hearing for a submitter; at least 10 working days for an applicant).
Section 41C provides the decision making authority with powers to give directions and make requests before or at hearings. Directions can be given regarding the order of business and how evidence is presented. The authority can also direct the applicant or a submitter to present evidence within certain timeframes and submissions can be struck out. Further information can be provided via a commissioned report.

The balance of time

A local authority must make its decision on a proposed policy statement or plan within 2 years of publicly notifying the statement or plan. It is anticipated that this timeframe (as amended by RMAA 2005) will be a challenge for local authorities to meet.
It is important to keep staff and councillors refreshed:
- Spread the hearing process out - it is better to avoid cramming too many hearings together (although note the hearings process must be completed within two years of notification).
- Ensure that the decision-makers reconvene as soon as possible as after hearing the submissions - preferably set a time straight afterwards.
- Find ways of maintaining 'team spirit' (for example, hold social events for the committee and/or some event to recognise achievement).
- Use discussion sessions to focus on some issues and to clarify thinking.

Making decisions

Broader issues should be addressed first, prior to making more decisions on specific points.
Allow for some iteration in decision-making for complex and contested issues: a hearing does not have to be a one-time only. Other possible methods for resolving issues include the issuing of interim/draft decisions, or preparing further reports to Council after the hearing. Both of these should allow opportunity for all interested submitters to comment by reconvening the hearing.
It is usually preferable to release decisions at one time, rather than stage them over time, as the provisions of a plan are usually not readily separated from each other. While a single decision release date may cause frustration if the decisions are released a long time after the original hearings of submissions (for example, a problem with a rule cannot be amended until the decision to correct it is released), the approach allows all decisions to be reviewed and amended for consistency. Partly, how decisions are released will depend on the structure of the plan, and whether its constituent parts are severable.
If the sections of a plan are independent from each other, a sequenced series of decisions may be appropriate. However, this approach may still cause difficulties if there are common provisions (for example, hazardous substances rules) that require changing as a result of a later decision on one section of the plan.
Providing clear decisions is critical to reduce misunderstanding and possible appeals. In particular, accepting or rejecting decisions in part needs careful explanation, with the reasons set out logically to clarify what is being accepted or rejected and why.
It is best practice to create 'changes-highlighted' versions of proposed plans as the decision-making process proceeds, and, in particular, in conjunction with the release of decisions. This technique can help in ensuring decisions are consistent, as well as helping submitters understand the effect of the decisions. It also helps those trying to apply the District Plan on a day-to-day basis. While it can add to the costs, it is relatively simple to issue sections of the plans with changes highlighted to relevant groups of submitters.
Clauses 9-13 of Part 1 of the First Schedule directs the process of making and releasing decisions on plans, whilst Clauses 14-16 directs appeals to the Environment Court (link to these clauses).

Appeals to the Environment Court

Never underestimate how much time is involved with resolving appeals.
Be proactive in attempting to resolve appeals - never rely on the apellant (or their advisors) as it may not be in their interest to resolve the matter speedily.
Establish a process to manage appeals right from the beginning. This should include:
- Defining the types of appeals, and identifying the likely path of resolution and the priorities (note: sometimes apparently intransigent cases may actually be mediated to a solution - don't write anything off!);
- Using a case manager approach, particularly for dealing with multiple submissions. A case manager can act for the council in dealing with the appellant and associated parties in resolving their allocated appeals, as well as being part of the plan project team and working with other case managers. Case managers must be good at organising and chasing up (Christchurch City Council adopted this approach);
- Establishing a database to monitor progress (either a separate "purpose-built" database, or, as some local authorities have done, adapting the submissions database to deal with appeals as well); and
- Establishing a delegated authority process (for example, a small council subcommittee) to monitor progress and make decisions as required.
It is not always easy to predetermine which appeals may be mediated to a resolution and which are irreconcilable and will end up before the Environment Court. Regular re-assessments may therefore be needed to review which route to pursue - mediation or hearing. At some point, a Council may reach a "policy threshold", beyond which it is not willing to change any further. However, assessing the other parties' thresholds is not always possible. Such policy thresholds may also change over time: for example, a Council may agree to a resolution that it initially refused, so that it may get a plan operative.
Work closely with the Environment Court in managing appeals - a good working relationship should be established from the beginning in organising and progressing appeals.
Ensure that correct and adequate mandates have been sorted out early - i.e., who is responsible for negotiation and who has the mandate to make decisions on behalf of Council (noting the restrictions on the ability to delegating decision-making powers under section 34 of RMA). If the two roles are separate, ensure regular liaison so that negotiated resolutions do not run the risk of being rejected by the decision-makers.
If there are difficulties in maintaining progress on resolving appeals, sometimes direct communication with the appellant rather than their advisors can assist.
Mediation is often the preferable way to resolve appeals rather than through Environment Court hearings. Court-appointed Commissioners (drawn from the Court) are usually used to help mediate appeals.
While council officers (and their advisors) normally have the authority to deal with the parties involved with appeals, it is often useful to involve councillors in the resolution of appeals, particularly the more significant ones with important policy implications. The final agreement on a resolution, however, should always rest with the council (or some delegated authority thereof) before it goes before the Environment Court.
If the Court considers that an appealed provision needs amending, the 2005 amendments enable the Court (under s. 293) to direct a local authority to redraft the provision. The council must redraft the provision in consultation with other parties, and then submit the final draft to the Court for confirmation. Occasionally, the resolution of an issue by the Court may have implications for other parts of the plan as well. For this reason, it is important the Court is fully aware of the wider policy context of some appeals, and the cross-linkages with other provisions and matters of consistency.

Best practice example

The following example illustrates best practice in a particular aspect of plan preparation, as described in the guidance note.

Making decisions on a plan-Christchurch City Council

Christchurch City Council has developed its Access database for managing submissions on its District Plan to also track progress on resolving appeals.

Christchurch City Council has developed its Access database for managing submissions on its District Plan to also track progress on resolving appeals. Reports can be produced according to a range of categories, including appeal numbers, to Plan clause numbers (to check whether a provision is beyond challenge), to Council Officer (who act as case managers for groups of appeals), or to s271A or s274 parties (link to examples).

Contact Anita Hansbury, City Plan, Christchurch City Council; Tel: 03 3711 631, or Anita.Hansbury@ccc.govt.nz.

RMA provisions

Sections 32, 42A; Sections 51, 52, (National Policy Statements); Sections 57, 60, 64, 73, 293 (Regional Policy Statements, Regional and District Plans); First Schedule, Part 1 (particularly Clauses 8AA, 8B, 9, 10, 13, 15).

Case law

Ambit of decisions: Following from Romily Properties Ltd v Auckland City Council (A095/96 2 NZED 34), decisions have to be made in terms of the relief sought, or where the broader submission was couched in terms that sought a Council decision: 'The test is whether the relief goes beyond what is reasonably and fairly raised in submissions, usually a question of degree to be judged by the terms of the proposed instrument in the content of submissions...' (Atkinson v Wellington Regional Council, W013/99, paragraph 76/77; cited in New Zealand Historic Places Trust v Hutt City Council, w025/01, p.3)

As part of the ultimate question as to whether an amendment to a proposed plan is fairly and reasonably within the submissions filed, the local authority must consider whether interested parties would reasonably have appreciated that such an amendment could have resulted from the decisions sought by the submitter (Christchurch International Airport Ltd v Christchurch City Council, C077/99 4 NZED 579). Where the validity of a appeal was challenged, that the test is, 'does the submission as a whole fairly and reasonably raise some relief, expressly or by reasonable implication, about an identified issue' (Campbell VM v Christchurch City Council, C040/02, 7 NZED 408). An amendment to a Plan should not go beyond what was reasonably and fairly raised in submissions lodged in relation that Plan (Countdown Properties (Northland) Limited v Dunedin City Council (1994) NZRMA 145).

Appeals: As well as being a hearing de novo, under Clause 15, a appeal to the Environment Court on a proposed plan is in the nature of a public inquiry (refer Minister of Conservation v Northland Regional Council, A045/2002). Such inquiry looks at the merits of the matter, and not whether the Council's decision was correct (refer Leith v Auckland City Council, A034/94) The Court has wide ambit to make changes to a plan, and may direct the local authority to modify, delete or insert any provision that is referred to it. Customarily, the Court will issue a general directive back to the local authority (by way of an interim decision), which has to then formulate details. However, the Court may be more specific in its directive (refer Wakatipu Environmental Society Inc and Ors v Queenstown Lakes District Council, C180/99).

Related guidance notes

The following guidance notes are related:

Relevant publications

Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
Published by Ministry for the Environment - July 2001
Outlines various issues associated with hearings and discusses order of proceedings, speaking rights and techniques for asking questions and listening to answers.

To Recommend or Not to Recommend? (PDF 133 KB)
Published by New Zealand Planning Institute - January 2001
This article looks at the planner's role in the judicial process, and whether planners should give a clear recommendation at the end of planning evidence. The author refers to Environment Judge Smiths' comments that recommendations from witnesses are inappropriate.

Roles and Responsibilities Under the RMA 1991 (PDF 90 KB)
Published by New Zealand Planning Institute - October 1998
This is a guide that forms part of a professional development programme, prepared for local government politicians on their roles and responsibilities under the requirements of the RMA. This guide aims to identify councils' functions under the RMA, introduce councillors to the overall philosophy, requirements and procedures of the RMA, and provide an appeal document for councillors.

Regulatory v Non Regulatory Methods (PDF 1 MB)
Published by Resource Management Law Association of New Zealand Inc - January 1998
This paper provides a brief overview of the issues surrounding the debate of regulatory verses non-regulatory methods. It presents two case studies from the Auckland region.

Current challenges in practice

How many decision-makers are enough?

One problem is whether to use a special hearings committee comprising some councillors, or to use all of the council. A committee may be more efficient but can result in a lack of buy-in from the other councillors and consequent problems. Having the full council involved can ensure total understanding and buy-in, but at some cost in time, money and efficiency. A Committee structure should ensure that regular updates and report-backs to the full council are undertaken. Sometimes, two separate Committees may be feasible to hear submitters, if the issues can be readily severed.

Engaging decision-makers

Given the time involved and the complexity of many issues, an ongoing challenge is to ensure that councillors are continually engaged in the process, providing a consistent and focused effort on policies. While there are techniques used by councils in engaging decision-makers throughout the process, this will remain an ongoing challenge for plan preparation.

Resolving appeals

An ongoing challenge is the resolution of appeals on plans, which can take up considerable time and money (for everyone involved). Delays to making plans operative because of unresolved appeals often cause enormous frustration, costs and confusion. Sometimes reaching resolutions outside the Court (through mediation and informal means) may lead to compromises which do not fit well with the plan (for example, agreeing to changes simply to avoid the cost of disputing them), or which may require further changes to the plan. Another issue is the difficulty often encountered in making progress in resolving appeals, with slow responses from and changes in advisers to referrers. The Environment Court, working with local authorities and interested organisations, is looking into methods for improving the process.

Involvement of other parties to appeals

Section 274 lists the persons who may be a party to any proceedings before the Environment Court. If a person made a submission in the previous proceedings on the same matter, or has an interest in the proceedings greater than the public generally, or who is representing a relevant aspect of the public interest, then they can become a party to the appeal if they give notice to the Court and other parties within 30 working days.

Getting section 32 right

Since the Act came into effect, a lot of experience has been established in addressing the requirements of section 32 in plan preparation. However, there is still a lot of room for improving methods of recording the plan preparation process, in terms of fulfilling and/or demonstrating compliance with section 32.

Challenge of changing plans

An ongoing issue for not only councils but for every user or submitter on a plan is its changing provisions. Once the first submissions are received, and different provisions are challenged in different ways, the effect of those provisions begins to differ, as does the weight that is required to be given to operative and proposed plans. The bigger and more complex the plan, the greater the number of submissions, the more complicated the issue becomes. Ideally, annotated amended plans should get released at various key stages, but such amendments are complex costly processes, with room for error. There is no simple solution, but online versions of plans offer a real solution to the problem.

A related issue is deciding when to make a plan operative. Plans may be made operative if its provisions can be readily severed - unfortunately the complexity of RMA plans often makes this impracticable.

Acknowledgements and editorial comments

This guidance note was prepared by Robert Schofield from Boffa Miskell Limited.

This guidance note was prepared in February 2004, and updated in March 2006 by Incite.

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