Provide councils with an option to request a Streamlined Planning Process for developing or amending a particular plan

Problem

160. Plan making as prescribed by Schedule 1 of the RMA is too slow. Plans take too long to become operative, around six years on average, with some taking over ten years. This means they are not able to be responsive to urgent issues. A significant amount of the time taken for plans to become operative can be spent resolving appeals in the Environment Court. Schedule 1 of the RMA has no flexibility to provide for plan making processes that are proportional to the scale and nature of the issuesinvolved.

161. As a result, special legislation or regulations have been developed to provide for timely plan making process where there are urgent issues, for example the Auckland Unitary Plan or the Order in Council providing for the Christchurch Replacement DistrictPlan.

Proposal

162. The proposal is for the creation of a new Streamlined Planning Process that councils can request to develop or amend a particular plan or policystatement.

163. Under this proposal, councils will be able to request, directly from the Minister, a process to address matters suchas:

· the implementation of nationaldirection

· a significant community need (orurgency)

· the unintended consequences of aplan

· where councils wish to develop combinedplans.

164. Any Streamlined Planning Process directed by the Minister must, as a minimum, providefor:

· consultation with affected parties (includingiwi)

· an opportunity for written submissions and report showing how those submissions have been considered

· an assessment of costs andbenefits.

However, the Minister can add additional process steps (such as technical review, if the matter is highly technical innature).

165. Once agreed, the council must follow the Streamlined Planning Process as set out in the Minister’s direction, and not Schedule 1, and send its draft decision on the proposed plan or plan change to the Minister for approval. This step acts as a check on the quality of the council’s decision, as it is proposed that there will be no appeal rights on decisions made under a Streamlined Planning Process except judicialreview.

166. Councils, when making a request, must provide information including the implications of a Streamlined Planning Process for iwi participation legislation or iwi participation arrangements. Any Streamlined Planning Process directed by the Minister must not result in any inconsistencies with the obligations set out in any relevant iwi participation legislation or iwi participationarrangement.

167. The proposal will provide for more flexibility in planning processes and timeframes and allow these to be tailored to specific issues and circumstances. This will enable, for example, a faster planning process for urgent issues, or where there is a community need, as well as faster implementation of national direction. This flexibility in the choice of process will avoid the need for special legislation and provide greater certainty within the system compared with developing ad hoc speciallegislation.

168. A streamlined process that guarantees, as a minimum, consultation with iwi and affected parties will provide some certainty for councils and stakeholders. The ability for the Minister to add further process steps will provide for the ability to tailor the Streamlined Planning Process to specific issues. This will help address concerns about secondary legislation being used to provide an alternative process for urgent matters. Removal of appeals provides scope for significant time saving and will align plan making under a streamlined processwith

the process for making NESs and regulations, which does not provide for a hearing or a right of appeal. Access to the Court will be maintained by way of judicialreview.

169. The costs of the proposal include that it may add to overall complexity within the planning system by adding another specialised planning track. There is also some uncertainty involved in the process and no guarantee of a hearing or further submissions in contrast to plan making under Schedule 1. This may mean the streamlined process is regarded as less rigorous in terms of policydevelopment.

170. Public concerns around reduced opportunities for participation loss of appeal rights may mean that councils will not request a streamlined process, or that their decision to request it may be judicially reviewed. The process will be very resource intensive for the Ministry for the Environment and workload will be difficult to predict given that the process is triggered by council request. Councils may also be less willing to make a request if they have to seek the Minister’s approval of their draft decision on the proposed plan or planchange.

171. Risks can be mitigated to some extent by additional features being included to specify the purpose and criteria around the use of the power. We consider that it is appropriate that there are constraints on a power that will modify rights that are set out in a primary statute. The ability to reduce public participation opportunities and appeals rights should not be an unfettered discretion. The objective is to ensure that the power is reasonably flexible but also operates in a transparent manner and there is certainty. It is also important that the interests of the Crown and iwi participation are not compromised through theprocess.

Alternativeoptions

A streamlined process with council decision and a right of appeal to the High Court on a point of law

172. This proposal would be similar to the one outlined above, but the council would make its draft decision on its plan and there would be an opportunity for appeals to the High Court on points oflaw.

173. Providing an avenue for appeals will reduce some concerns about access to justice and participation, and reduce risk of judicial review on natural justice grounds. However, time taken to resolve appeals could substantially delay the plan becoming operative and negate many of the benefits ofstreamlining.

A power to make regulations to provide for a streamlined process asrequired

174. This option would involve a specific regulation making power which would enable the Minister to recommend to the Governor General that a regulation provide for a streamlined planning process, which must be used by a council instead of the First Schedule for a specific planning matter. The regulation could require consultation with councils as a pre requisite to recommending regulations are made. The legislation could also set out the circumstances in which regulations could be considered, which would serve the same purpose as entry criteria forcouncils.

175. The regulation making process includes consultation and additional checks and balances to test the rigour of the proposed process. However, regulations are time-consuming, taking six to nine months to develop, and involve substantial workload increases for the Ministry. We consider that this option would reduce the effectiveness and responsiveness of a streamlined process.

A Joint Council PlanningProcess

176. This option would require two or more councils to plan together, undertake early engagement with affected parties, and appoint a majority independent hearing panel which would make recommendations to the council (the final decision maker), with limited appeals. This option was part of the original set of proposal that was consulted on in 2013. Following feedback on the proposal through the submissions process, the proposal was amended. We consider that theobjectivesofajointcouncilplanningtrackcanbemetthroughtheoptionofcouncils

jointly making a request for a streamlined process (provided it is available for any combined planning matter) and provides betterflexibility.

Conclusions

177. A streamlined process with the minimum steps prescribed in legislation, the Minister’s approval of the council’s decision on a proposed plan or plan change, and no appeal rights is preferred over the other options outlined. This is because it will enable flexible and timely plan making processes under the RMA and thereby reduce the need for special legislation. The Minister’s approval of the draft decision on the proposed plan or plan change provides a check on the quality of the council’s decisions in the absence of anyappeal.

178. The removal of appeal rights is necessary to reduce risk of delay and ensure the objectives of the streamlined process are not undermined. It also reinforces the role of elected decision- makers. It will also realign RMA plan making (in certain circumstances) with the process for developing a national environmental standard, which provides for comments on the proposal but does not have any rights ofappeal.

179. We consider that this proposal will have a significant impact on achieving the objective of increased flexibility and adaptability for plan makingprocesses.