Ideas for providing certainty in plan rules

Why do rules have to be precise and certain?

Rules have the force and effect of regulations (RMA ss68(2) and 76(2)). In that regard rules must be complied with and are enforceable. The general public and applicants need to have certainty over whether a proposal complies with rules in a plan and that those rules will be applied in a consistent manner. Considerable cost and time can be spent on establishing compliance and pursuing enforcement action when rules lack certainty.

Rules that contain words or phrases of uncertain or ambiguous meaning run the risk of being voided as ultra vires on the grounds of uncertainty (see New Plymouth District Council v Baker [1994] W101/94 or McLeod Holdings Ltd v Countdown Properties [1990] 14 NZTPA 362 (CA)).

Making rules precise and certain does not mean that there cannot be some flexibility. However, where flexibility is too great problems can arise. In AR & MC McLeod Holdings Ltd v Countdown Properties [1990] 14 NZTPA 362, the Tribunal said that:

it can be quite sufficient for planning purposes to establish and regulate general proportions, accepting borderline grey areas. In some situations, approximations may be unavoidable, and must suffice as a matter of realism. This question must always be whether it is sufficiently certain to be understandable and functional. [emphasis added]

The following tips and ideas are designed to help improved certainty in plan rules.

Some quick tests that could be applied

If the rules prepared match one or more of the following points then an amendment may be required.

• The rule creates uncertainty as to when or where it is to be applied (For example if the word 'there ' is used, is it clear where 'there ' is?).
• It is unclear as to what activities or effects the rule applies to.
• The rule conveys an element of discretion where none is intended.
• The rule is a standard, a threshold, or triggers another consent or activity class, and there is the potential for doubt as to what exactly the threshold or trigger point is, or how it is to be measured.
• The rule gives powers of determination (such as whether an activity will be classified as permitted or not) to a third party such as a neighbour.
• In regard to controlled or restricted discretionary activities, it is unclear or is there ambiguity over which matters the council has retained control or discretion.

Words and phrases to avoid in rules

Some words and phrases convey more flexibility and discretion than others. The following words do not allow for clear measurable tests or thresholds and may result in difficulties in assessing compliance or enforcement of the plan (unless they have been clearly defined in the definitions chapter of the plan or another associated rule):

• reasonable (eg, "a reasonable amount of vegetation should be retained on-site")
• appropriate (eg, "colours shall be those appropriate to")
• approximate (eg, "shall be approximately 10 metres from")
• inappropriate (eg, "inappropriate stream crossing by livestock shall")
• should (eg, "the materials used should match those of the surrounding…")
• significant (eg, "should be set back a significant distance from…")
• might (eg, "any activity that might detract from")
• existing (eg, "shall be measured according to the existing water levels for the lake") - it is better to have a reference to a particular point in time (or referenced water level) than to use 'existing ' due to the variable nature of the environment.

The following phrases are inappropriate for permitted activities or rules which trigger a new consent / activity class as they convey an element of subjectivity or discretion:

• "at the discretion of the [council, manager of planning, engineer etc]"
• "to the satisfaction of the [council, manager of planning, engineer etc]"
• "avoid, remedy or mitigate" (eg "earthworks shall avoid, remedy or mitigate adverse effects on the archaeological sites")
• "as it sees fit"
• "where practicable" (eg, "earthworks shall, where practicable, avoid sediment")
• "best practicable option"
• "and/or" (use one but not both).

Use of 'not withstanding '

Some plans use the words 'not withstanding ' to indicate that where provisions conflict, one rule is to prevail over the other. While this can be useful when possible conflicts can not be foreseen, it can create difficulties when the phrase is used often. Where a possible conflict is known, consider using something similar to:

"Where compliance with rule 13.4.2 would contravene rule 14.6.4, then the requirements of rule 13.4.2 shall prevail".

This then removes the possibility (for example) that a 'not withstanding ' statement for rule 13.4.2 will come into conflict with another 'not withstanding ' rule, or is inadvertently used as a way of getting around another rule that needs to be applied.

May - Must - Shall

'May ' should be used where a power, duty, permission, benefit or privilege given to some person may, but need not be, exercised (ie, the exercise of the duty, or permission is discretionary).

"…in considering an application under rule 13.4.5 the council may consider…"

'Must ' should be used where a duty is imposed which must be performed.

"…a filter system complying with the standards contained in rule 15.3.2 must be fitted to the outlet…"

'Shall ' is used to impose a duty or a prohibition, but can also be used to indicate the future tense. This can lead to confusion. 'Shall ' can be replaced by 'must ' where confusion may occur.