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Writing provisions for regional and district plans

Abstract

The way in which RMA plans are written can greatly affect their efficiency, effectiveness, and ease of administration and enforcement. Writing an effective, enforceable and user-friendly plan requires robust processes to be followed, skill, and attention to detail. This guidance note is a companion guidance note to 'Structuring and Organising Regional and District Plans ' and provides a starting point for those writing provisions for plans covering:

In addition to the main content of the guidance note, hyperlinks are provided that contain further guidance on:

A checklist is provided for practitioners involved in writing plan provisions. The example checklist is designed to be adapted by individual local authorities to meet their particular drafting requirements and practices and could form part of an internal plan drafting guideline or protocol.

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Guidance note

Introduction

Plans and plan provisions have evolved significantly since the first generation of plans under the RMA were notified. Submissions, case law, and experience in plan administration have assisted in improving the robustness of provisions and the workability of plans, though sometimes at a significant cost. The first generation of plans resulted in variable format and wording as councils explored ways to the meet RMA requirements. This guidance note builds on the lessons learned during the preparation and implementation of first-generation RMA plans and reduces the need for practitioners to revisit lessons of the past, while also moving towards a more consistent style of plan provision drafting.

A degree of commonality and consistency in how plan provisions are written is considered important to:

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Before starting: Some overarching principles

Be aware of the bigger picture: The relationship of RMA plans with Long Term Council Community Plans provides new inputs, influences and opportunities. Similarly the requirement to enforce the observance of national environmental standards, 'give effect to ' national policy statements and regional policy statements, take into account relevant iwi planning documents and consider combined plans (in certain circumstances) and other documents, including non-RMA documents; requires a high level of awareness and cooperation between regional and territorial authorities. The following links provide further ideas and commentary relating to the bigger picture:

Draft 'top down ' but remember implementation is 'bottom up ': It is important to consider both top-down and bottom-up approaches in drafting provisions, so as to demonstrate a logical flow showing how issues have been dealt with while maintaining clear linkages from the rules to policies and objectives. Issues need to be identified and decisions need to be made about desired management outcomes before solutions are identified. This 'top-down ' approach was taken by the Courts in Beach Road Preservation Society v Whangarei District Council [2001] ELRNZ 7 for example and endorsed by the Court of Appeal in Powell v Dunedin City Council [2004] 3 NZLR 721, [2005] NZRMA 174. However, use of plans for making decisions on consent applications usually starts with plan users looking at rules before seeking guidance from policies and objectives (the 'bottom-up ' approach in MacKenzie District Council v Glacier and Southern Lakes Helicopters [1997] C083/97). The top-down approach to drafting and bottom-up approach to interpretation are also inherent in cascades used in the drafting and structuring of plan rules, and in checking linkages between plan provisions.

Plain English drafting: While the principal purpose of a plan is to assist local authorities in carrying out their functions, people from many differing backgrounds will read and use it. Adherence to 'plain English ' drafting greatly assists all plan users in interpreting, administering, implementing, and complying with plan provisions. The plain English drafting style has also been adopted as the recommended standard for New Zealand legislation.

Internal consistency: There may be changes to drafting personnel over the period plans are written and amended. As each person has their own writing style, there is a risk of plans becoming internally inconsistent, with provisions using different terms, phrases, standards, or expressions. Plans may also be altered as a result of decisions on submissions or the resolution of appeals leading to a number of 'one-off ' provisions. Both situations can lead to problems of interpretation, implementation and, ultimately, decreased plan efficiency and effectiveness. A combination of reviews, drafting protocols, and style champions can assist, depending on the resources available. For more information on approaches see promoting internal consistency in plans and the example drafting checklist.

Have regard to monitoring and enforcement: There are both legal and useful practical reasons for considering how plan provisions will be monitored and enforced at the time those provisions are drafted. Developing the monitoring strategy (or monitoring indicators) alongside the plan provisions can:

Deciding what provisions go into a plan

The Ministry of the Environment hosted a workshop in 2005 that discussed what the second generation of plans under the RMA should look like. Participants felt that there was a role for 'issues ' in plans as they helped inform and justify the objectives, policies and rules that followed. It was considered that including 'methods (other than rules) ' and 'explanations ' in plans had some merit.

Matters such as principal reasons, procedures for monitoring, information requirements, and processes for dealing with cross-boundary issues were considered to be explanatory or procedural in nature. While these matters contribute important information to the RMA planning cycle, they could be included in other documents such as guides to plans, monitoring reports, triennial agreements, or internal policies.

This guidance note primarily concerns itself with issues, objectives, policies and rules, but for completeness, links to the other key policy framework elements are:

Writing issues

What is an issue?

An issue is an existing or potential problem that must be resolved to promote the purpose of the RMA. However issues can also be positive opportunities that if taken advantage of, can assist in promoting the purpose of the RMA.

Environmental issues usually concern conflicts between users of resources, allocation of resources, or effects on the environment. Such issues may represent an existing problem, or a potential problem arising from likely future resource use. An issue could relate to the cumulative effects of many resource uses or from a series of individual proposals. An issue could also relate to the need to take positive action to correct the absence of policy or policy failures, or to promote positive effects (for example enhancement or restorative projects).

Issues need to be derived from evidence and facts, and in regard to those concerning values (such as amenity): by consultation. Potential issues should be tested to see if they need to be included in, and managed through, the plan.

Tips for writing issues

The expression of issues in plans should:

Avoid:

See examples of how issues could be written.

Writing good objectives

An objective is a statement of what is to be achieved through the resolution of a particular issue. Objectives clearly state what is aimed for in overcoming the issue or promoting a positive outcome, or what the community has expressed as being desirable in resolving an issue. Objectives tend to be positively worded and need to be clear enough to provide targets that policies should seek to achieve.

Where plan drafters choose not to include issues in their plans the objective should be worded in such a way that the issue that gave rise to the objective is evident. Alternatively, if the issue is clearly stated in another document, a clear reference could be made to the issue and the document where it can be found. This is important in promoting common understanding and implementation of the plan.

In writing objectives is it good practice to:

Avoid:

For an example of what objectives could look like, see the objectives in example plan provisions.

Writing good policies

Policies are the course of action to be pursued to achieve or implement the objective (ie, the path to be followed to achieve a certain, specified, environmental outcome). 'Policy ' has been defined by the Court of Appeal as being 'a course of action ' which could be either flexible or inflexible, broad or narrow (see Auckland Regional Council v North Shore City Council [1995] CA29/95).

Policies of a directive nature, where little discretion is intended to be exercised, include words such as 'shall ' or 'must '. For policies where it is intended to provide some flexibility discretion, use words like 'should ' or 'may '.

Policies are implemented through methods (often plan rules) so policies need to be worded to provide clear direction to those making decisions on rules and those implementing methods. Because of the tests set out in s104D(1), the need to provide clear, strong, objectives and policies is particularly important when it is envisaged that the non-complying activity status will need to be used to manage a particular issue where consents should only be granted in exceptional circumstances. Ambiguity, or lack of strong direction, could risk setting the s104D(1)(b) test threshold too low, resulting in consents having to be granted where it would otherwise have been undesirable, or detrimental, to do so.

In writing policies it is good practice to:

Avoid:

For an example of what policies could look like, see the policies in example plan provisions.

Writing effective and enforceable rules

The importance of good practice in rule writing

Under ss76(2) and 68(2), rules have the force and effect of a regulation (but are still subject to the principal Act). They must conform to common law principles and conventions regarding validity. Failure to conform could see the rule challenged: through submissions; during appeals against decisions on submissions; appeals on resource consents where the rule is the issue; declarations; or appeals against enforcement proceedings. Challenges to rules may be on one or more of the following grounds:

A poorly written rule could be declared void (in whole or in part) by a court, though it must be treated as valid until a decision is made that invalidates it.

Rules for land use and other resources require drafting from different standpoints

Rules for land use under s9 require drafting from a different standpoint to those for activities concerning the coast (s12), beds of lakes and rivers (s13), water (s14) and discharges (s15).

In general, section 9 states that no person may use land (including the surface of water in any river or lake) in any manner that contravenes a rule in a district plan (s9(2)), or regional plan (s9(1)). The implication here is that if there is no rule in a plan, then there is no need for restriction on the activity under s9 or a need to obtain a resource consent.

Sections 12, 13, 14 and 15 adopt the opposite approach. These sections say that the resources concerned may not be used unless expressly allowed by a resource consent, or a national environmental standard, or a rule in a plan where the rule does not contravene a national environmental standard. So there has to be a national environmental standard or a rule in a plan that allows activities of the nature envisaged in ss12-15, to occur.

General good practice tips for writing rules

Rules should be worded clearly enough to enable the plan user to judge the meaning and effect of the rule at face value without having to resort to using explanations or seeking advice from those who wrote it (see MacKenzie District Council v Glacier and Southern Lakes Helicopters [1997] C083/97).

It is considered good practice when writing rules to:

Avoid:

In Wilkinson v Hurunui District Council [2000] C50/00 the Environment Court stated that, in the case of district plans, rules must apply to a defined area of a district (usually but not necessarily achieved by zoning). Common practice is for rules applying across a whole district or region to be contained in specific 'district or region-wide rules chapters ' or for the rule to state that this is what is intended. Rules applying only to certain zones are usually contained solely within chapters dealing with those zones.

Conditions, standards, and terms, requirements and permissions

Sections 77A and 87A describe the different types of activities that may be included in plans. These are:

Under s77A(1)(c), local authorities may specify conditions in a plan or proposed plan but only if the conditions relate to the matters described in s108 or s220. Under s2, 'conditions ' in relation to plans and resource consents, includes terms, standards, restrictions and prohibitions. There are no definitions for 'standards ' or 'terms ' but in common usage, 'standards ' are used to describe thresholds of acceptability (and are therefore measurable and often quantifiable) while terms describe pre-requisite obligations with which a proposal must comply (often taking the form of actions required).

Section 87A states that 'requirements, conditions, and permissions ' that are specified in a plan (or in the RMA or regulations) shall be complied with in respect of all activity classes (except prohibited activities).

One note of caution is that the use of the word 'conditions ' in policies and rules can sometimes result in confusion with resource consent conditions. If there is any doubt use 'resource consent conditions ' where applicable, and 'requirements, conditions and permissions ' elsewhere in the plan.

Permitted activities

A permitted activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as permitted. A resource consent is not required for the activity if it complies with any requirements, conditions, and permissions specified for the permitted activity. It is therefore important that councils are confident that compliance with any requirements, conditions, and permissions will adequately manage the effects expected (including cumulative effects). Note that a plan cannot include a rule that describes an activity as 'permitted ' if that activity will, or is likely to, have a significant effect on a recognised customary activity (RMA s85A).

It is good practice in writing permitted activities to:

Avoid writing permitted activities in such a way that their status:

For examples see:

Controlled activities

A controlled activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as a controlled activity. The RMA, regulations or plan must specify:

An application for a controlled activity cannot be declined (except if s106 applies). Councils need to consider whether effects of a development up to the maximum permissible under the proposed activity could be adequately managed through the matters of control and resource conditions proposed. There are two reasons for this requirement:

  1. to identify the total cumulative effects that may occur from resource use and development occurring as controlled activities
  2. more importantly, it also refers to a need to consider whether the matters of control can be effectively addressed through resource consent conditions.

Controlled activity consent applications may be notified, although it is common for them to be non-notified. A rule in the plan can expressly provide that the resource consent application must be notified or must not be notified or limited notified (s77D). See also Rules for exceptions and special circumstances).

In writing controlled activity rules it is good practice to:

For examples see:

Restricted discretionary activities

A restricted discretionary activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as a restricted discretionary activity. An application for a restricted discretionary activity can be declined or granted (with or without conditions). The RMA, regulation or plan must specify both:

Note that in relation to the second point, the matters of discretion are those matters the council can consider when determining to either decline a resource consent, or to grant consent and impose conditions. A council can consider RMA Part 2 matters in granting a consent.

An application for a restricted discretionary activity can be notified or non-notified. A rule in a plan can expressly provide that the application must be notified, or must not be notified or limited notified (s77D).  

Care needs to be taken in specifying the matters over which a council restricts its discretion. If the restriction is too narrow then the council may not be able to set conditions on consents that avoid or mitigate significant adverse effects (for example a restricted discretionary activity that limits discretion solely to visual amenity matters of a large development may not be able to manage effects associated with traffic generation). Conversely, if the discretion is too wide (eg, "any effects" or "any matters in chapters A-Z of this plan") the restriction on discretion becomes meaningless.

In Auckland City Council v The John Woolley Trust and SJ Christmas [2008] CIV-2004-404-3787, the High Court noted that restricted discretionary activities should be confined to relatively minor matters.

In writing rules for restricted discretionary activities it is good practice to:

Avoid:

For examples see:

[Full] discretionary activities

A discretionary activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as a discretionary activity. An application for discretionary activity can be declined or granted (with or without conditions). Discretionary activities may:

  1. be identified by listing and naming them explicitly (including any restrictions, conditions and permissions that have to be met to qualify for discretionary status)
  2. be classified as such because of non-compliance with any restrictions, conditions and permissions for permitted, controlled, or restricted discretionary activities
  3. be discretionary by virtue of there being no plan, proposed plan, relevant rule or resource consent classification for the activity (ss87B(1)(a) and (b) of the RMA)
  4. be described in a proposed plan as prohibited but that rule is not yet operative (s87B(1)(c) of the RMA).

An application for a discretionary activity can be notified or non-notified. A rule in a plan can expressly provide that the application must be notified, or must not be notified or limited notified (s77D of the RMA).

In Lakes District Rural Landowners Society v Wakatipu Environmental Society [2001] C75/2001, the Environment Court outlined four reasons that may give rise to an activity being classed as discretionary in a plan:

  1. where it is not suitable in all locations in a zone
  2. where the effects of the activity are so variable that it is not possible to prescribe standards to control them in advance
  3. where an activity defaults to discretionary because it cannot meet all the standards for a permitted activity
  4. where activities are not suitable in most locations in a zone or part of a zone but may be suitable in a few locations.

In writing rules for discretionary activities it is good practice to:

For examples see:

Non-complying activities

Non-complying activities are those that the RMA, regulations (including a national environmental standard), or a plan describes as non-complying. This activity status is often reserved for those activities where the potential adverse effects are great but do not necessarily warrant prohibition. An application for a non-complying activity can be declined or granted (with or without conditions). Councils can grant consent where an application can meet any of the following tests:

  1. the adverse effects on the environment will be minor (disregarding the adverse effects on those who have given their written permission, and exercising the discretion to disregard adverse effects of the type generated by activities the plan permits or is permitted by a national environmental standard (see ss104(2) and 104(3)(a)(ii))
  2. the application is not contrary to the objectives and policies of the plan, the proposed plan, or both (as appropriate - see s104D(1)(b))
  3. the activity can comply with any restrictions, conditions and permissions specified in the Act, regulations or plan (see s87A(5)(b)).

The non-complying activity status can be useful for situations where it is intended that consents only be granted in exceptional circumstances (for example in managing cumulative adverse effects on a resource that is at, or close to, capacity). However, using the non-complying activity status in this way requires clear, strong, objectives and policies to be included in plans. Without such clear, strong, objectives and policies, there is a risk that the threshold to meet the second test above (that of s104D(1)(b)) may be set too low, inadvertently allowing consents to be granted where it may not otherwise have been desirable to do so (further discussion on this aspect is contained in When is Enough, Enough? Dealing with Cumulative Effects Under the Resource Management Act (PDF 229KB)) .

In writing non-complying activities it is good practice to:

For examples see:

Prohibited activities

A prohibited activity is one that the RMA, regulations or a plan specifically describe as being prohibited. Prohibited activities must expressly prohibit an activity without exceptions (see Application by Trolove [1995] C75/95).

A resource consent application cannot be made for a prohibited activity and a consent cannot be granted. The prohibited activity status is the most restrictive of any activity status and therefore must be used with care. The decision to use it should be backed with strong evidence of its necessity, including justification through objectives and policies (see for example Ngatiwai Trust Board v Whangarei District Council [2004] A057/04).

While prohibited status would require a plan change to allow prohibited activities to take place, the plan change process should not be used as an alternative resource consent process.

In writing prohibited activity rules it is good practice to:

For examples see:

Rules for exceptions and special circumstances

Section 77D allows plans to include rules that specify when a local authority:

Tips for writing notification and non-notification rules follow.

Catch-all rules

Sections 68(5) and 76(4)(e) of the RMA state that a rule may "require a resource consent to be obtained for an activity causing, or likely to cause, adverse effects not covered by the plan". This effectively limits the range of activities that can be covered by a catch-all rule.

Check what effects are already managed by the plan against s87B(1)(a). Does the combination of the plan and s87B cover all the effects that may need to be managed? If not, then consider drafting a rule according to s68(5) or s76(4).

Assessment criteria

Some RMA plans contain assessment criteria in their rules to guide or direct users towards considering specified environmental effects or issues. In some cases such criteria would be better incorporated into the objectives and policies of plans, but there may be circumstances (such as when considering full discretionary activities) where the criteria may be of such detail that their incorporation into policy could result in overly long, complex, policies. If assessment criteria are used, care should be taken to ensure that they are directly related to the relevant objectives and policies, and do not provide any additional matters for consideration or leave gaps.

Cross-referencing

Plans that deal with a multitude of issues and topics (such as district plans, combined planning documents, or regional plans that deal with more than one topic) are of such complexity that cross-referencing is usually necessary to avoid excessive repetition. Cross-referencing can take a number of forms, though summary tables and italicised references next to plan provisions (side notes) are increasingly becoming common methods.

When cross-referencing consider:

Avoid:

Definitions

Definitions are used to give a standard meaning to words or phrases that occur frequently throughout a plan. The use of definitions avoids repetition and promotes consistency in interpretation. As the defined terms are usually part of, and crucial to, policies and rules, the same level of care should be taken in their drafting.

In writing definitions it is good practice to:

Avoid:

See examples of definitions styles.

External documents and appendices

External documents

The types of external documents that can be incorporated into a plan via reference are set out in clause 30(1) of schedule 1 of the RMA and include:

  1. standards, requirements, or recommended practices of international or national organisations; or
  2. standards, requirements, or recommended practices prescribed in any country or jurisdiction; or
  3. any other written material that deals with relevant technical matters.

External documents can be incorporated into plans and proposed plans in one of two ways:

  1. copying the relevant text (and diagrams, if applicable) from the external document and incorporating the key concepts (or words) from that document into the plan when the plan is being reviewed or going through a plan change
  2. incorporating the document (in whole or in part) through a reference to it at the time the plan is being reviewed or going through a plan change.

The first way is useful when there is only a small section of the document that is relevant to the plan (a definition for example) and those drafting the plan want to exclude the remainder. The second way (for example reference to an entire standard or methodology), may be useful when the whole document (or a substantial part of it) is relevant to the plan but is too large to be practicably incorporated into the text or would interrupt the flow of the plan.

As material incorporated by reference in a plan or proposed plan has legal effect as part of the plan, the same degree of care should be taken in regard to its consideration as any other plan provision.

Part 3 to schedule 1 sets out the legal grounds for, and requirements surrounding, the incorporation of external documents into plans via reference. Important aspects of part 3 of schedule 1 are:

In addition to the above aspects, when referencing external documents in plans it is also good practice to:

Avoid:

Appendices

An appendix is additional, subsidiary, material added at the end of a book or document. Some plans refer to an appendix as an 'annex ' or 'schedule '. Appendices in RMA plans are typically used for containing technical, explanatory or other supplementary information that supports plan provisions (but is too large or cumbersome to include within the main text of the plan without distracting from the flow of objectives, policies or rules). Examples of material often contained plan appendices include:

When including appendices in plans is it good practice to:

Appendix 5

Stock Truck Effluent Disposal Sites
(see rule 14.5.5.4)

Avoid:

National Policy Statements (NPSs) and National Environmental Standards (NESs)

Introduction

National Policy Statements (NPSs) and National Environmental Standards (NESs) differ in how they influence the wording of plan provisions. NPSs have the purpose of stating objectives and policies for matters of national significance, while NESs prescribe technical standards, methods or requirements.

Under s43A of the RMA, an NES may:

Including NPSs and NESs in plans

Sections 55(2A) to (2D) set out the process for changing plans to give effect to an NPS.

A council must amend its plan or policy statement to include specific objectives and policies or to give effect to specific objectives and policies if an NPS so directs. Where a direction is made under s55(2), councils must directly insert any objectives and policies without using the schedule 1 process, but must publicly notify the changes within five working days of making them. Any further changes required must be done through the schedule 1 process (such as changing rules to give effect).

Where there has been no direction under s55(2), councils must amend their plans or policy statements to give effect to the NPS using the schedule 1 process. The amendments must be made as soon as practicable, unless the NPS specifies a timeframe.

Section 44A sets out the process for changing plans to give effect to NESs. An NES takes immediate effect and may be absolute, effectively overriding affected rules of a plan. Local authorities cannot have plan rules that are more lenient than the NES (s44A(2)(b)), and may only include more stringent controls through rules if the NES provides for this (s44A(2)(a)). Any rules that duplicate or conflict with the provisions of a NES must be removed from a plan. This must be done as soon as practicable after the NES comes into effect without using the Schedule 1 process.

A council must enforce the observance of national environmental standards to the extent to which their powers enable them to do so.

It is good practice to:

Best practice examples

Note: The best practice examples for methods, environmental results expected, explanations, and cross-referencing can be found in the hyperlinked documents associated with those topics.

Regional Plans

The Auckland Regional Policy Statement provides examples of policies written in a directive manner.

The Regional Fresh Water Plan for the Taranaki Region (2001) provides examples of objectives, policies and methods that are written in a clear and relatively concise manner.

The Hawkes Bay Regional Resource Management Plan (2006) provides examples of rules and associated conditions, standards and terms that are written in a succinct, specific manner.

Chapter 10 of the Horizons Regional Council OnePlan (2006) (PDF 154KB) provides examples of some well-written objectives and policies. It also contains an alternative, detailed way of writing methods.

District plans

The Rural Areas chapter of the Manukau District Plan (2002) (PDF 1.9MB) provides examples of succinctly worded issues and objectives that meet many of the good practice criteria.

Invercargill City Council District Plan: Maps covering rural areas show a range of information without being cluttered. Invercargill City also has good natural hazard maps.

Drafting guidelines

 

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RMA provisions

Details of the following relevant provisions can be found under the RMA:

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Case law

General

Eldamos Investments Ltd v Gisborne District Council [2005] W047/05. "

An objective in a district plan is to be evaluated by the extent to which

  1. It is the most appropriate way to achieve the purpose of the Act; and
  2. It assists the territorial authority to carry out its functions in order to achieve the purpose of the act; and
  3. It is in accordance with the provisions of Part 2.

A policy, rule or other method in a district plan is to be evaluated by whether

  1. It is the most appropriate way to achieve the objectives of the plan; and
  2. it assists the territorial authority to carry out its functions in order to achieve the purpose of the Act; and
  3. It is in accordance with the provisions of Part 2; and
  4. (if a rule) it achieves the objectives and policies of the plan."

Minister of Conservation v Western Bay of Plenty District Council [2001] A71/2001. A case looking at what 'significance ' could mean in the context of s6(c).

Minister for the Environment v Otago Regional Council [1996] C076/96. The court expressed reservations about quoting sections of the RMA in plans. Amendments made to those sections of the Act would require a plan change to avoid the plan becoming inconsistent with the Act.

Sandstad v Cheyne Developments Ltd [1986] 11 NZTPA 250. The rules in the plan, and provisions of the plan in general, must be clear and precise, so that those who administer the plan or are affected by it can identify without difficulty the provisions that apply to their properties.

In Powell v Dunedin City Council [2004] 3 NZLR 721, [2005] NZRMA 174, the Court of Appeal endorsed a 'top down ' rather than a 'bottom up ' approach. The Court stated in the interpretation of planning documents: "it is appropriate to seek the plain meaning of a rule from the words themselves, but it is not appropriate to undertake that exercise in a vacuum. As the Court made it clear in J Rattray and Sons Limited v Christchurch City Council [1984] 10 NZPTA 59, regard must be had to the immediate context and, where obscurity or ambiguity arises it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgement of this Court in Rattray or with the requirements of the Interpretation Act 1999."

Yachting New Zealand v Tasman District Council [2003] W078/03. Section 67 does not require objectives and policies to be validated by a plan rule. The Court found that the words "including rules if any" anticipate that rules, as a method of implementation of policies may be optional.

Assessment criteria and explanations

Application by Christchurch City Council [1995]. The Planning Tribunal held that:

Wakatipu Environmental Society v Queenstown Lakes District Council [2001] C075/2001. The Court considered that assessment criteria for discretionary activities in district plans may be tests (involving a subjective decision by the consent authority as to whether the standard is met) or guidelines, though neither approach was correct as a matter of law. Where assessment criteria were intended to be tests they use an introductory formula like "the council must be satisfied that…"; whereas the criteria intended as guidelines tend to be worded, "the council shall take into account whether, and if so, the extent…". Neither approach is automatically correct as a matter of law.

Fish and Game Council v Otago Regional Council [2002] C079/02. The status of an appendix (purporting to explain water allocation policies) was unclear. It appeared that the Council was relying on some clauses as if they were rules, thus altering policies and rules in the main body of the Water Plan. To the extent that it went beyond explanations of policies and rules, the appendix was of no effect and was merely confusing. To the extent that it was explanatory of policies and rules, it should have been included within them (s.67).

Definitions

Lakes District Rural Landowners Society v Wakatipu Environmental Society [2001] C75/2001. It is neither necessary nor appropriate to define 'discretionary activity ' in a way different to the definition in the RMA. Rather than defining a 'special discretionary activity ' category, the Court considered that the definition of 'discretionary activity ' should be left as it is in the RMA. The reasons for classifying activities to be categorised as discretionary were to be complemented by the addition of other reasons for the status.

Discretionary activities

Lakes District Rural Landowners Society v Wakatipu Environmental Society [2001] C75/ 2001. The Court outlined four reasons that may give rise to an activity being classed as discretionary in a plan:

  1. where it is not suitable in all locations in a zone
  2. where the effects of the activity are so variable that it is not possible to prescribe the standards to control them in advance
  3. where an activity defaults to discretionary because it cannot meet all the standards for a permitted activity
  4. where activities are not suitable in most locations in a zone or part of a zone but may be suitable in a few locations.

External documents

Note: These cases pre-date the 2005 Amendment to the RMA which introduced a new part 3 to schedule 1.

Telecom v Christchurch City Council [2003] NZRMA 280. Reference to the [New Zealand] Standard must be clear and precise. The plan can not include a provision citing the standard and then state "or any replacement New Zealand Standard".

Te Aro Heritage Trust v Historic Places Trust of New Zealand [2003] W52/03. Neither the ICOMOS Charter or UNESCO recommendations have been incorporated into domestic law in any form that would make them obligatory. The principles in the instruments cannot be elevated over and above the legislative framework but were recognised by the Court as being able to provide guidance.

Ngataringa Bay 2000 Inc. v Attorney General [1994] A16/94. District rules commonly provide that noise levels are to be measured and assessed in accordance with the New Zealand Standards 6801: 1991 and 6802: 1991 or their predecessors. Those standards provide for some response to be made for local conditions and particular characteristics of the noise emission. A council can however impose a stricter duty on the occupier of land in regard to noise generated through the adoption of the 'best practicable option '.

Remarkables Park Ltd V Queenstown Lakes DC [2003] C161/03. In this case the Court said that in its view, a reference in a district plan to an external document is generally undesirable. However if an objective or policy is involved it is not illegal. The position may be different for a rule, since rules require greater certainty. Since a person can, in effect [fn24 Section 338 of the RMA in combination with sections 9, 11, 12, 13, 14 and 15 of the Act], be prosecuted for not complying with a rule, it is important that a rule should not be able to be set or changed without the notification and participatory processes of the RMA being followed.

Permitted baseline

See a summary of cases regarding the permitted baseline.

Plans - relationship with regional policy statements

Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18; CA29/95. A declaration by the Court of Appeal concerning the directive nature of the Auckland Regional Policy Statement. The Court declared that a regional council has the power to include provisions in its regional policy statement that permits urban development to occur only within defined areas, require territorial authorities to impose urban growth limits and limit non-rural activities in rural areas (including requiring territorial authorities to give effect to the objectives and policies in the RPS concerning the management of rural areas).

Prohibited activities

Application by Trolove [1995] C75/95. A rule creating a prohibited activity has to expressly prohibit the activity, and describe the activity as one for which no resource consent shall be granted (ss68(3) and 76(3)). The Court stated that "to create a prohibited activity the rule must expressly prohibit the activity without exceptions".

Ngatiwai Trust Board v Whangarei District Council [2004] A057/04. In concluding that it had no jurisdiction to classify any activity involving genetic engineering as a prohibited activity, the Court held there was no link between the proposed rules and the objectives and policies of the proposed plan to which the proposed rule related. Therefore it was contrary to the requirements of Section 76(1) which provides that rules may be included in a district plan "which prohibit, regulate or allow activities, where they are for the purpose of achieving the objects and policies of the plan".

Coromandel Watchdog of Hauraki Incorporated v Chief Executive of the Ministry of Economic Development CA285/05; [2007]NZCA 473. A Court of Appeal decision related to the use of the prohibited activity status in a district plan to prohibit mining. The Court of Appeal found that the High Court had erred in holding the prohibited activity status can only be used when a planning authority is satisfied that, within the time span of the Plan, the activity in question should in no circumstances ever be allowed in the area under consideration. The Court found that prohibited activity status simply means an activity for which no resource consent is available and further elaboration was not necessary. The definition adopted by the High Court may have unduly limited the circumstances in which the prohibited activity status may be applied. The Court of Appeal also said that if a consent authority decided to use prohibited activity status, it needs to show that it is the most appropriate option to achieve the objective of the plan. The prohibited activity class should not be used to defer an evaluation of a particular activity until such time as a plan change is lodged to allow undertaking the activity in question.

Restricted Discretionary Activities

Auckland City Council v John Woolley Trust and SJ Christmas [2008] CIV-2004-404-3787. Case in which the High Court considered that it was permissible to take into account part 2 of the RMA in deciding to grant a resource consent, but that part 2 could not be relied on to decline consent or impose conditions. In para 50 of the decision, the Court observed that the case would have been unlikely to have caused difficulties if the Council had specified a broader range of considerations in the District Plan. The almost total focus on tree protection to the exclusion of human factors such wellbeing, health and safety, led to the difficulties. The Court also noted that had part 2 not been able to be considered it would have led to the ironic situation of the consent being declined as a restricted discretionary activity, and yet would have been able to have been approved if it had been a [full] discretionary activity.

Rules (general)

McLeod Holdings Ltd v Countdown Properties Ltd [1990] 14 NZTPA 362. Rules must be certain and if a council retains a subjective discretion within a rule then that rule may be void for uncertainty.

Brownlee v Christchurch City Council [2001] C102/2001. Rules must implement and achieve the objectives and policies of a plan. (This case distinguishes the approach set out by the High Court in Beach Road Preservation Society v Whangarei District Council [2000] CP27/00).

MacLean v Thames-Coromandel District Council [2003] A046/2003. Qualifying criteria for permitted activities should be clearly specified and capable of objective obtainment, without being dependent for classification purposes on the identification of a person or persons affected, and the subjective response of such person or persons.

Beach Road Preservation Society v Whangarei District Council [2000] CP27/00. A territorial authority is not permitted to include in its district plan rules inconsistent with the plan 's objectives and policies. The Interpretation Act 1999 is applicable to the interpretation of rules included in district plan; as such the meaning of a rule is to be ascertained from its text and in light of its purpose (the purpose being: the objectives and policies).

Western Bay of Plenty District Council v Muir [2000] NZRMA 353. A rule may apply for stated periods or seasons but it cannot have the purpose of postponing the consideration of an activity under a plan. (Note that s86B(1)(c) of the RMA provides that councils can also delay rules from having effect until a plan is operative by resolution and the inclusion of that resolution in the public notice when a plan is notified).

Wilkinson v Hurunui District Council [2000] C50/00. Lines defining zones on planning maps are usually seen as a policy or methods rather than a rule. A rule must apply to a defined area of a district (usually defined by zoning). Zones based on landscape may be appropriate in some localities, but in working landscapes, zoning based on more practical conservation-directed purposes might be more useful.

Zoning

Fore World Developments Ltd v Napier City Council [2006] W29/06. While land may not be capable of supporting an economically viable farming activity, that does not automatically mean that some sort of residential zoning would become a 'reasonable use '. The Court noted that "the choice of an appropriate zoning is driven by a matrix of factors in which such things as location, servicing ability, and the nature of the surrounding area may be as influential as the quality of the land itself".

RE: An Application By Christchurch City Council [1995] C123/94. A declaration concerning effects-based plans where the Court found it was lawful for a district plan to contain a rule for permitted activities having the following form: "Any activity which complies with the standards specified for the zones", where the standards specified go to the effects which activities have on the environment rather than to their purpose.

Capital Coast Health Ltd v Wellington City Council [1998] W101/98. Private land should not be zoned for reserve purposes except under certain circumstances, and these should be achieved through a designation or acquisition.

 

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Related guidance notes

The following guidance notes are related:

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Relevant publications

Edmonds K (1995) Making Rules Without Loopholes: NZPI Seminar Series, Works Consultancy http://www.qp.org.nz/pubs/3664.pdf)

Milne P (1994) Validity of Rules in Regional Plans: A Seminar for Wellington Regional Council Officers. Simpson Grierson, Wellington.

Milne. P (2008) When is Enough, Enough? Dealing with Cumulative Effects Under the Resource Management Act

New Zealand Law Commission (1993) The Format of Legislation, NZLC R27, part of the Format of Legislation Project, New Zealand Law Commission, Wellington.

New Zealand Law Commission (1996) Legislation Manual: Structure and Style, NZLC R35, New Zealand Law Commission, Wellington.

Wiltshire J J M (1997) Drafting Rules to Truly Reflect Objective and Policies, A paper presented to the New Planning Institute Conference in 1997.

 

Current challenges in practice

Use of te reo Māori terms in plans

While the RMA itself contains a number of Māori words (kaitiaki , taonga raranga for example) and many plans contain a sprinkling of Māori words and concepts the definition and use of some Māori words is not always consistent from one area of the country to the other. In part this has come about through localised variations in the use of some words or concepts with Māoridom itself, and in other cases, from attempts to try and find a 'best fit ' definition for concepts that do not neatly align with the particular language and structure of particular RMA plans. While resource such as The Reed Dictionary of Modern Māori is a common reference, it cannot replace consultation as a way of obtaining a fuller understanding of words, terms, and concepts used in the local context. Ideally the use of words, concepts and terms to be used in plans should be discussed before a plan is notified, rather than left to being refined through the submission process.

In regard to the use to Māori terms in legislation and regulations the Law Commission, in Legislation Manual: Structure and Style (1996), made the following suggestions:

For more information about using te reo in publications refer to the Māori Language Commission website.

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Acknowledgements and editorial comments

This guidance note was prepared by Richard Hills of the Ministry for the Environment using Gerard Willis 's work in Drafting Issues, Objectives, Policies and Methods in Regional Policy Statements and District Plans (2003) and the former guidance note Writing rules as a starting point. This note was reviewed by Anderson Lloyd lawyers in 2007.

The Ministry for the Environment acknowledges the following people for their assistance in the development of this guidance note:

Karen Bell (formerly of Auckland City Council), Martin Butler (Environment Bay of Plenty), Jan Crawford (Planning Consultants Ltd), Andrew Feierabend (Hurunui District Council), Pamela Gare (Invercargill City Council), Andrew Guerin (formerly Kapiti Coast District Council), Greg Hill (Auckland Regional Council), Patrick McHardy (formerly Manawatu District Council), Fraser McRae (Otago Regional Council), Phillip Martelli (Western Bay Of Plenty District Council), Tony Quickfall (Quickfall Associates - formerly of Nelson City Council), Andy Ralph (Tauranga City Council), Robert Schofield (Boffa Miskell), Nicola Shorten (Greater Wellington Regional Council), Gina Sweetman (Sweetman Planning Services), Hans Versteegh (Marlborough District Council), Tami Woods (Greater Wellington Regional Council).

This guidance note was updated to reflect the RMAA 2009, by Erica Sefton of The Project House Ltd in December 2009.