Ask most New Zealanders for their opinion on the Resource Management Act 1991 (“RMA”) and many won’t be backward in coming forward. As far as statutes go, the RMA is perhaps one of the more maligned parliamentary inventions in recent history. Myths and legends about how unfair its requirements are and how it suffocates economic development abound, and it has been subject to more than the usual amount of political tinkering as a result.
One of the requirements the RMA imposes on city or district councils (as distinct from regional councils) is the obligation to produce district plans. The purpose of these plans is to assist councils to carry out their functions to achieve the purpose of the RMA, being the sustainable management of the natural and physical resources of their respective territories. Consequently, district plans have a profound effect on how resources – like land – can be used.
In a nutshell, district plans comprise a few basic ingredients. Firstly, they identify the significant resource management issues that apply to the territory over which they relate. Flowing from those issues come objectives and policies, or broad statements about the outcomes the plan intends delivering. At the bleeding edge of all of these “blue sky” statements are the rules, which can sometimes delve into excruciating detail (like how “permeable” your fence needs to be or the colours you can paint your home).
When you come to use a resource, it’s normally the rules that you’ll come up against first. But complaining about an objective, policy or rule at the time it is operative is too late; if you want to do something that isn’t provided for in a plan as a permitted activity, you’ll need a resource consent. Councils are obliged to review their plans regularly to make sure they are still achieving the RMA’s purpose, and it’s during these reviews that people and organisations can influence the plan development process.
Hamilton City Council (along with Waipa District Council) is currently undertaking that development process, having notified its proposed district plan in December 2012. Since then, submissions (and further submissions) have been received, hearings have been held, decisions released, and appeals to the Environment Court have been filed. While not fully operative, the proposed district plan has considerable legal weighting and isn’t far from replacing the incumbent Operative District Plan.
Although a long process, our firm has represented a number of people and organisations – from private land owners to property development companies – and our clients have secured a number of beneficial changes. Some of those changes have been site-specific while others have been applied to entire zones, but the point, of course, is that none would have happened were it not for our clients’ involvement in the plan development process from an early stage.
This process begins when a council first notifies its proposed district plan. Having done so, it will call for submissions. As painful as poring through a proposed district plan may be, working out how the new objectives, policies and rules will affect land you own or have an interest in is critical, and submitting is the only way to have your voice heard at this early stage. Indeed, by failing to submit on a plan you effectively exclude yourself from any and all future discussions on it.
Once the council-led submissions process has concluded, decisions on submissions will be notified. This stage effectively sees the relevant council draw a line in the sand. Further changes will require appeals to be filed with the Environment Court. This need not be an intimidating process, as appeal documents can be filed without huge expense. An even more affordable way of becoming involved is by joining an existing appeal – by supporting or opposing the relief sought – as a section 274 party.
At the start of an appeal process, the Environment Court will usually direct, as a first measure, that the parties sit around a table and attempt to mediate their differences. More often than not, this process is successful, with councils agreeing to changes they otherwise wouldn’t have made had appeals not been lodged.
Mediation tends to be effective because it is facilitated by a court-appointed mediator with experience in resource management issues and is undertaken on a “without prejudice” (i.e., “off the record”) basis, giving parties the flexibility to be full and frank during negotiations. While councils can’t be expected to compromise on key policy directions at this point, the appeal process can often bring to light inconsistencies in the new plan’s provisions and can offer opportunities for solutions that are a ‘win-win’ for all parties.
Matters that aren’t resolved in mediation inevitably head to a hearing, where the Court is required to make a decision. It’s at this point in the process that the issue of costs becomes live. For some parties, attending a hearing is worth the associated legal and expert witness costs because the provisions of the relevant proposed plan will be detrimental to their interests.
Our experience from the Hamilton City Council process, having represented both appellants and section 274 parties, is that engaging with council in mediation, facilitated by the court, is an effective way of getting some provisions changed to provide greater flexibility and/or certainty of outcome.
When a proposed plan is first notified, the most effective thing to do is speak with professional advisers early on and then get involved in the submissions process to preserve your right of taking matters further should the need arise.
If you have questions about a resource management issue, drop one of our experienced team members a line today to discuss your options.
Published: 20 January 2020