Consultation for plan development
Abstract
Consultation is a mandatory requirement in plan and policy development, review and change processes (collectively referred to in this guidance note as 'plan development ').
Consultation in plan development requires a commitment to: communicate effectively with a large community of individuals and groups with different values and concerns; and to take on board feedback. When undertaken effectively and early in plan development, consultation can increase community understanding of the plan and RMA processes, improve the quality and buy-in of the plan, and ideally result in fewer disputes and appeals to the plan in the long term.
This guidance note:
- sets out the statutory requirements to undertake consultation
- outlines general principles of consultation
- provides guidance on effective consultation processes, including consultation with tangata whenua.
The guidance note covers consultation for all plan development processes. For the purpose of this note, policy statements and plans are collectively referred to as 'plans '. See consultation for resource consents and facilitating consultation with tangata whenua for specific guidance on consultation for resource consents and consultation with tangata whenua.
Guidance note
Requirement to consult
Clauses 2 - 3C of the First Schedule of the Resource Management Act 1991(RMA) set out statutory requirements for consultation which must occur before the notification of any proposed plan. These requirements apply to developing new plans, undertaking plan reviews and making variations or changes to proposed or operative plans, including plan change requests made under Part 2 of the First Schedule. For more information on private plan change requests see the guidance note on private plan changes.
Clause 3A of the First Schedule specifically requires that a regional council, and every territorial authority whose district is wholly or partly within a region, enter into an agreement on consultation processes when a regional policy statement is reviewed; or when a change or variation is being prepared.
This agreement is required to comply with triennial agreements under section 15 of the Local Government Act 2002 (LGA). This agreement on consultation processes is particularly important, given that territorial authorities are required to give effect to any revised regional policy statement.
Clause 3C also provides the ability for councils to combine consultation exercises where appropriate, potentially helping to reduce consultation fatigue and make more efficient use of resources.
Understanding the principles of consultation
The Environment Court has 'synthesised ' a statement of principles for consultation from a number of court case decisions. These have been primarily developed through case law relating to resource consents and notices of requirement, yet they are equally applicable to the plan development processes and should be understood before embarking on any consultation process.
Plan development (particularly whole-plan reviews and major policy shifts) are also potentially subject to consultation processes under the LGA. A set of principles for consultation is contained in the LGA, as well as general provisions about when and how councils should consult people interested in or affected by a council decision. Some councils have a specific consultation policy that takes into account the requirements of the RMA and LGA. See Current challenges for more information on the relationship between the RMA and LGA.
Many councils are also using the International Association for Public Participation (IAP2) model to help define and inform public participation and consultation processes.
Developing a consultation plan
Developing a plan is the key to any good and effective consultation exercise. The consultation plan should include a communication plan that clearly sets out the purpose and desired outcome, objectives, issues, audience, key messages and strategy for communication throughout the consultation period.
When developing a consultation plan, consider:
- tailoring the consultation process to available resources and political expectations (time, expertise and budgets)
- involving people who are committed, who are effective at listening and communicating
- considering the relevance of any council LGA consultation policy
- proactively thinking about any potential cross-over with any consultation occurring around the same time - including under other legislation - and integrating with other consultation when appropriate
- following any agreed consultation process included in the triennial agreement when preparing, reviewing or changing a regional policy statement
- identifying and understanding your audience
- identifying and planning for consultation with tangata whenua, including an understanding of any additional or specific requirements under Treaty of Waitangi settlements. This should include a plan to identify who the relevant iwi authorities are and, once identified, should consider their capacity to be able to consult
- the form and type of feedback needed in responding to input from consultation
- being flexible and prepared to change the consultation approach as required, particularly as issues arise that need to be addressed more thoroughly
- having a strategy to manage media involvement in consultation
- considering what worked well and why in previous consultation exercises.
It is important to meet councillors overseeing the plan development process, to check that they are happy with the consultation and communication process. Clear messages from identified and well-informed spokespeople are essential when issues are raised by the community that may be controversial.
Click here to see best practice examples of consultation plans and policies.
Understanding the different stages in the plan development consultation process
While early consultation is important, councils should approach consultation as an ongoing iterative process through all stages of a plan development exercise. Make sure this is not a one-off event or series of disjointed encounters, and not perceived as a token effort.
The form of consultation undertaken may also differ through different stages of the plan development process. Such consultation can be broken into three general stages:
To enable effective and active participation in consultation throughout all stages of plan development, it is important that:
- participants are provided with clear information on the process from the outset. This should include how the plan development process works, what their opportunities are to participate at the various stages, and what consultation has occurred and is planned. The proposed timetable and methods for engaging in the statutory phases should be as clear as possible so that participants can see the opportunities to be involved
- feedback from all those involved in consultation can be provided, followed by a process which confirms to participants that their comments have been considered in shaping a plan. It is also important that a reasonable period is provided to participants in making comments: this may have to go beyond statutory minimums.
Stage 1: Before notification
Consultation during the period before notification may involve discussing:
- why the plan is being reviewed or needs to change
- the meaning of sustainable management for the particular region/district/topic area and audience
- monitoring information on the effectiveness of current plan provisions
- identification of key issues to include in the plan, and their reasons for inclusion
- objectives, policies and anticipated environmental outcomes that may be included in the plan
- implications of various options for particular areas, for example methods and spatial dimensions (mapping approach/zoning)
- process, stages and timeframes that the review will follow.
Different forms of consultation that can be used during this stage include workshops, open days and seminars (for the public and council), publicity campaigns, and the use of a draft plan.
Internal consultation with council staff and councillors is a critical part of the plan review and preparation process, which may involve education on the process and its objectives, and well as a programmed path of internal input into plan development.
At this stage, you should also consider how much of your developing plan to use and present as part of the consultation process: such as whether you circulate themes, issues and objectives; or a more substantiated draft plan as part of the consultation process. Local or regional politicians may have strong views on these types of decisions. Therefore, ensure that you have political endorsement for your approach, and have established a political reference group to go back to if issues arise. You may have to revise or revisit your consultation plan.
Early consultation can help identify areas of agreement on a number of issues, areas or the overall strategic approach. However, consultation may also identify where further understanding on certain issues may be required through further consultation.
Click here to see best practice examples of before notification consultation.
Return to Understanding the different stages
Stage 2: From notification until the plan is made operative
Consultation should continue after the plan has been notified, before and even during the hearings process. It can also occur while any subsequent appeals are being resolved, until the plan is made fully operative. However, consultation held during hearings or as part of appeal resolution has to be framed appropriately within the legal requirements and principles that direct these processes.
Good practice during this period is as follows:
Post-plan notification
- Immediately after notification, hold public meetings and workshops on the proposed plan to inform people of its implications, and consider using facilitated processes. For example, a well-trained facilitator may be better able to manage a sensitive issue where council may be perceived to already have a fixed position.
- Consider holding meetings and workshops educating people about the submission process, how to make a submission , and who can, prepare a further submission (see Submissions on a plan for details).
- Allow plenty of time for feedback from all people involved in the consultation process. Consider using more than the minimum statutory timeframes, especially where these may involved holiday periods such as Christmas and New Year (communities take longer breaks than 20 December - 10 January).
- When you notify the new plan / plan change, provide a summary of the feedback received during consultation before notification. Preferably provide the response to such feedback also, as people will want to see how you dealt with their input.
- Consider providing independently facilitated workshops on drafting submissions, as the process is much easier when submissions are well drafted and clear decisions are included.
- Provide for electronic submissions and provide summaries of submissions and copies of submissions on the website if possible: this provides the community with 24/7 access.
- Keep the website up to date.
- If particular issues arise from submissions (particularly unforeseen issues), consider entering informal or facilitated discussion with submitters on particular issues before finalising s42A reports.
- Inform submitters on progress on preparing for the hearings, particularly if there is a long period between close of submissions and the start of hearings.
During hearing(s)
- Provide information to submitters on the hearings process, and how they can best present their views/position.
- Allow for some flexibility in managing hearings, particularly if the use of 'off-line ' consultation processes during the hearings process (adjourning and reconvening hearings as needed) may be appropriate: this will allow for some frank discussion, and possible further research and evaluation of options.
- The officers ' reports should clearly explain how the matters raised by submitters have been addressed.
- Preferably, prepare a version of the plan with changes tracked, consolidating all recommended changes in the s42A reports. Make all hearing reports available on the web, as even those that do not want to attend the hearing(s) may want to see the report - and others may want to see what changes are being recommended.
- Keep the website up to date.
- Care should be taken in communicating with submitters, in a legal sense, and also because of the real risk of miscommunication at this stage of the process.
After decisions
- Make it easy to see the changes to the plan that result from submissions: a version with changes tracked 'as amended by decisions ' should be prepared and made available.
- Provide information on any appeals, their progress, the nominated contact person, and the status of the plan on the council website
- Keep the website up to date.
It is important for councils to continue to communicate with internal stakeholders throughout this period, to ensure:
- all council sections, staff, management and councillors have a common understanding and agreement on the purpose of consultation
- those parts of council who are likely 'applicants ' are aware of the new provisions and changes and potential implications for their projects
- those responsible for implementing the plan are kept up to speed with the changes and potential implications to assist in reviewing the interpretation of provisions and practicality of proposed rules. This will also help identify any new processes that need to be put in place (including training) to help implement the plan once it is notified. Refer to Making plans operative .
Click here to see Best Practice examples of post-notification consultation.
Return to Understanding the different stages
Stage 3: While the plan is being monitored and evaluated
Consultation during this stage will help assess how well the plan is working and help determine the need for further action, possible changes and improvements to plans. Different forms of consultation at this stage could involve: establishing focus groups and holding plan-effectiveness workshops; participants could be plan implementers, compliance staff and external users such as planners, commissioners or technical experts (for example traffic engineers and arborists). The Policy and plan effectiveness monitoring guidance note provides more guidance on consultation during this stage.
Return to Understanding the different stages
Integrating with other consultation (especially LGA consultation)
Clause 3C of Schedule 1 to the RMA provides that consultation on a plan or policy statement can be combined with consultation under another Act, provided:
- people know they are also being consulted for RMA purposes; and
- it is within 36 months of the proposed plan or policy statement being notified.
This provides an opportunity to integrate council consultation efforts and avoid duplication, especially in regards to RMA/LGA consultation. Key considerations when integrating consultation include:
- determining whether the information that may be obtained during the earlier consultation could be used for RMA purposes
- ensuring that those being consulted are notified of this fact at the time consultation takes place
- specifically whether to combine consultation for RMA plan development with developing or reviewing a Long Term Council Community Plan (LTCCP)
- Other opportunities such as for structure planning for specific areas where there are implications for the LTCCP as well as plan changes.
If it is not possible to integrate consultation under other Acts within the required timeframe, consider:
- using other documents that have been consulted on to inform your consultation processes
- describing how the resulting plan, policy or strategy will be implemented through RMA plan development processes
- outlining how the consultation that has already occurred will assist in any RMA plan development processes
- how to integrate outcomes of RMA consultation with other council planning and policy activities.
Click here to see best practice examples of integrating consultation.
Understanding the different roles in consultation processes
There are a number of important roles during consultation processes:
- facilitator of the process
- recorder of the views expressed during consultation
- participant in consultation as an involved party
- technical expert
- political representative.
A person may hold a combination of the above roles at different stages of the consultation process. For example, with the exception of political representation, RMA practitioners may fill any of these roles in any consultation process. Because of this, RMA practitioners should carefully consider and clearly define their role in consultation with regard to how the consultation will transfer into the development of the plan.
Councillors have an important role in consultation processes as the council is the primary decision-maker on any plan.
It is therefore important that councillors:
- have early awareness or buy-in to consultation processes
- if possible, complete consultation within one electoral cycle to avoid political change (provided this does not curtail sufficient time for effective and meaningful consultation)
- play a positive role in consultation; there is often value in having a champion (councillor or mayor) who secures resources and speaks with the community - so they get to know the parties and issues early on
- are kept up to date with the results of consultation.
Click here to see best practice examples of understanding the different roles in the consultation process.
The use of external RMA professionals experienced in plan development and consultation may also be useful to assist with consultation exercises. Although this option may be costly, it can promote community understanding and prove to be cost-effective in the long term.
Trained professionals, such as facilitators, can often have a useful and important role in consultation exercises. Consider using independent facilitators when:
- a neutral position is preferable
- council staff wish to listen and not appear to be leading the process
- council staff are otherwise busy or unable to attend consultation meetings
- council staff are required as technical experts during consultation
- there are difficulties in the relationship with those being consulted and/or other problems.
You might also consider seeking expert advice from communications specialists. They can assist with managing media, and possibly prepare information packs for the public and special interest groups.
Technical experts can also be useful in consultation exercises by:
- educating the community on technical matters and options
- offering potential solutions to problems (in many cases the solutions may sit outside the RMA)
- providing independent or alternative views
- identifying constraints to various approaches.
Identifying and understanding your audience
It is important to identify your key audiences and stakeholders as part of your consultation plan. Be aware that these may change through the plan development process. As part of identifying and understanding your audience, you should:
- clearly determine who they might be: residents ' associations, tangata whenua, government agencies, other local authorities, utility operators, industry / business, professional associations, environmental groups, local residents…
- be inclusive
- develop consultation objectives and actions for each audience or stakeholder group, assessing their different levels of understanding and needs and tailoring your objectives accordingly
- keep and maintain records of the contact details for any iwi authorities, any relevant planning documents (recognised by an iwi authority within your region / district) and areas of the region or district over which one or more iwi authorities exercise kaitiakitanga.
For more information, see Understanding the legal requirements to consult tangata whenua and identifying which tangata whenua group(s) to consult and the Facilitating consultation with tangata whenuaguidance note.
Once you have identified your audience, you should think about the values, views and agendas of various audiences and devise strategies to deal with this. Some options include:
- meeting iwi authorities, or other relevant tangata whenua groups, on a marae
- timing the meetings to suit audiences, which may involve evenings and weekends
- communicating appropriately to ensure consultation is tailored to the audience level of understanding and towards their interests
- holding facilitated meetings involving tangata whenua and other cultures
- being prepared to break into smaller groups to discuss specific topics or important values.
As part of your communication strategy, you should also consider providing options that meet people 's needs for involvement: for example, consultation that is area- or locality-specific, rather than the broader picture. Often it is useful to use relevant and real-world examples for the people being consulted. Local residents are generally interested in local matters that affect them directly, so deal with these first and then move to broader issues.
Different ways to get people involved in consultation include:
- developing a database of interested people and their desired level of involvement: some people will wish to actively participate in consultation whereas others will just want to be kept informed
- advertising in the newspaper (that is, providing more than the required statutory notice), in local publications, or council newsletters
- providing information about the plan development process and any proposed and current plan changes on the council website
- possibly using professional media (and/or marketing) to get the plan in an accessible and readable form; but manage any media input carefully
- focus groups on issues or areas, with a mix of representatives, interests or perspectives.
Click here to see best practice examples of identifying your audience.
At some stage in the consultation process, you should consider bringing together stakeholders with different, and sometimes conflicting, expectations about the plan, so that different views can be discussed. This allows various stakeholders to be educated about other people 's views and may help set realistic expectations. Bringing together different stakeholders may also provide for some negotiation on particular issues or proposed provisions, and enable some compromises to be agreed on.
Engaging tangata whenua in discussions with other stakeholders can act to improve people 's understanding of the issues that may affect tangata whenua. You could consider running focus groups on specific issues for tangata whenua and then integrating these discussions into the main consultation process.
Being clear about the purpose of your consultation
Before embarking on any consultation process, you should be clear on its purpose and communicate this to those being consulted. The purpose could include:
- communicating the process and key messages
- identifying issues and ways to resolve them
- ascertaining community views and opinions in order to achieve better results (see Striking a balance: a practice guide on consultation and communication for project advocates)
- meeting the statutory requirements for consultation which includes government agencies (for example promoting consistency among policies and plans), local authorities that may be affected (for example cross-boundary issues), and tangata whenua (through iwi authorities)
- addressing community concerns over particular plan policies.
You should also clearly communicate during consultation how the views and information gathered during consultation will feed into plan development. This will change depending on what stage of the plan development process you are up to. For example, consultation before plan notification is more likely to be an informal and two-way process in nature; but consultation after notification will generally be more formal and informative.
Consultation can also act to increase the awareness of the role of councils, plans and the RMA in general. Educating people being consulted can cause delays in achieving your purpose.
Communicating effectively
Effective communication is a key to effective consultation. Ways to ensure that you are communicating effectively include:
- being proactive and positive
- listening and acknowledging views: consultation is a two-way process
- being responsive; follow-up as needed
- avoiding jargon and acronyms
- communicating information at the appropriate level of your audience
- ensuring all written information is concise, in plain English and easy to read
- not overloading people with too much information at one time
- getting to know people and developing relationships
- respecting tikanga Maori.
- ensuring that you are accessible and responsive by following through on sending out any promised information, responding to phone calls, and giving people feedback on their comments if possible
- not raising unrealistic expectations about the level of influence that consultation may have on plan development and what a plan can achieve.
Several different approaches can be taken to consult and communicate effectively with different audiences. Some of these approaches could include:
- running interactive workshops or meetings that facilitate free and open discussions
- holding meetings of special-interest groups
- developing discussion documents, and asking people to comment on them
- holding meetings focussed on particular issues
- asking people simple questions to provoke responses such as "what do you like/not like", "what do you want to change"
- carrying out perception or satisfaction surveys
- using interactive websites or media
- using Participatory appraisal processes
Click here to see best practice examples of how to communicate effectively.
Evaluating your consultation
It is important to continually evaluate the effectiveness of your consultation plan throughout the plan development process. Methods could include:
- undertaking regular de-briefs during the process to identify where processes and methods could be improved, and what went well
- recording the levels of interest and attendance at workshops etc, and identifying how these could be improved if interest and attendance is lower than anticipated
- identifying how views and ideas generated through consultation were integrated into plan development.
For a best practice example, see Otago Regional Council's officer report which includes an evaluation of consultation processes.
Understanding the legal requirements to consult tangata whenua and with whom to consult
Understanding the legal requirements
The RMA contains specific requirements to undertake consultation with tangata whenua through iwi authorities as part of the plan development process.
- Clause 3(1)(d) of Schedule 1 of the RMA requires that councils consult with tangata whenua through iwi authorities before notifying any plan.
- Clause 3B sets out how a council should consult with an iwi authority if the council is to be treated as having consulted with iwi.
- Clause 2(2)(b) requires regional councils to consult with iwi authorities when preparing a regional coastal plan.
Undertaking consultation with tangata whenua is important for councils to be able to fulfil particular obligations to tangata whenua under the RMA.
In addition, new requirements for consultation with iwi authorities are beginning to emerge through Treaty of Waitangi settlements and Foreshore and Seabed agreements.
See the Facilitating consultation with tangata whenua guidance note for more information on the obligations for consultation with tangata whenua.
Determining who to consult
The RMA makes it clear that the legal obligation to consult with tangata whenua groups on plan development processes is at the iwi authority level. However, councils may also wish to consult with other tangata whenua groups such as at the hapu and whanau level as part of wider consultation. Before embarking on any consultation exercise it is important to understand the differences between different tangata whenua groups.
Identifying which tangata whenua group is to be consulted can sometimes be difficult, particularly in situations where multiple groups are claiming mana whenua or interest over the same area, feature, or resource. See the Facilitating Consultation with Tangata Whenuaguidance note for guidance on dealing with a situation where there are overlapping interests.
Tangata whenua groups may choose to respond to the council at an iwi, hapu or whanau level. Larger and more financially resourced iwi may employ a person or team trained in planning and resource management, to manage the consultation process for the iwi. Contacts for smaller hapu and whanau are often volunteers. The ability of groups to respond to requests for consultation will depend on their capacity and resourcing. Your consultation plan should identify and address these potential limitations. It is important that councils have strategies in place to consult with tangata whenua groups of different capacity. See the Facilitating consultation with tangata whenua guidance note for guidance on dealing with this issue.
Councils have a duty to keep and maintain records about each iwi authority and hapu within its region or district under section 35A of the RMA. This requirement includes holding contact details of: each iwi authority; the planning documents (most commonly referred to as Iwi Management Plans) that are recognised by each iwi authority and lodged with the council; and any area of the region or district over which one or more iwi or hapu exercise kaitiakitanga. The records may be dynamic and subject to change. Councils should also ensure that their records are up to date through ongoing communication with tangata whenua groups.
For more information, see the Facilitating consultation with tangata whenuaguidance note (on keeping and maintaining records) and Frequently asked questions on iwi management plans.
Understanding issues of concern to tangata whenua
Councils should establish what types of activity are likely to be of concern or interest to tangata whenua within their district/region. This knowledge should inform the Council's preparation of consultation programmes for plan changes and reviews. It is not necessarily the activities themselves that are the issue: rather, concerns usually focus on the potential impacts of those activities on those things valued by tangata whenua. Alternatively, their concerns may be focused on the way that either information is shared or their input is being considered or acted upon.
Iwi management plans, other iwi planning documents, and cultural impact assessments can assist both to identify the types of activities of interest to tangata whenua, and to develop databases that record these. See Frequently asked questions about cultural impact assessments, Frequently asked questions on iwi management plans and Whakamau ki nga kaupapa (Making the best of iwi management plans) for more information.
Undertaking constructive consultation with tangata whenua
Consulting constructively with tangata whenua includes:
- developing a good working relationships with tangata whenua
- consulting in an environment and manner which tangata whenua are comfortable with
- respecting and following tikanga Maori
- providing sufficient resourcing for tangata whenua input and as much support as possible
- listening and trying to understand the key issues
- informing tangata whenua of your ideas and resource management issues as early in the process as possible
- bearing in mind the potential to transfer powers under s33 and to develop a joint management agreement under s36B of the RMA, and using this when appropriate
- being flexible and respectful of cultural differences
- being consistent in approach: preferably develop a formal relationship agreement or protocol for consultation
- being aware of different timeframes for agreement/approval by tangata whenua and building these into your consultation process.
See the Facilitating consultation with tangata whenuaguidance note for more information.
Best practice
The following are best practice examples of different approaches and stages of the consultation process.
Consultation plans and policies, and triennial agreements
Different stages in the plan development consultation process
Integration with other consultation
Understanding the different roles in consultation processes
Identifying and understanding your audience
RMA provisions
Details of the following provisions can be accessed through the following link and relevant headings:
Section 6 - Matters of national importance
Section 7 - Other matters
Section 8 - Treaty of Waitangi
Section 33 - Transfer of powers
Section 35A - Duty to keep records about iwi and hapu
Section 36B - Power to make joint management agreement
Section 61 - Matters to be considered by regional council (policy statements)
Section 62 - Contents of regional policy statements
Section 66 - Matters to be considered by regional council
Section 74 - Matters to be considered by territorial authority
First Schedule:
Clause 2 - Preparation of proposed policy statement or plan
Clause 3 - Consultation
Clause 3A - Consultation in relation to policy statements
Clause 3B - Consultation with iwi authorities
Clause 3C - Previous consultation under other enactments
Local Government Act
The Local Government Act 2002 (LGA) defines the power and responsibilities of local authorities. Under the LGA, councils are expected to take a broad role in promoting the social, economic, environmental and cultural well-being of communities (now and in the future). This legislation codifies the principles of consultation, as set out in s82 of the LGA.
Case law
DG MacPherson and J E Stevens v Otorohanga District Council [2007] W25/07
This case relates to a resource consent application, but the Environment Court considered the need for consultation to assist in councils and experts learning and understanding particular issues of concern to members of the community and iwi. The Court stated:
apart from reading local histories, the only way that planners and landscape architects can learn what may be heritage landscapes consist of, is by talking to the members of the community and the iwi most closely affiliated with the areas. It means assessing the significance of those stories and factoring the result into their expert analysis. This can be difficult if the local community do not want to consult but there are ways to change such attitudes through methods such as mediation.
Ngararatunua Marae Committee v Whangarei District Council [2004] A045/04
This case related to a reference to the Proposed Whangarei District Plan. The appellant agreed to withdraw the appeal to the Proposed Whangarei District Plan, subject to the council subsequently promulgating a plan change to give effect to the appellant 's concerns about resource consent consultation. The Court noted that the council had certain explicit duties of consultation concerning the plan change and applications made to the council in the affected area while the plan change was being prepared.
G Milne v Northland Regional Council [2004]A86/04
The applicant sought an enforcement order against the Northland Regional Council alleging breaches of the procedure in promulgating a variation to the Proposed Regional Water and Soil Plan. The variation included provisions relating to earthworks on coastal margins. The applicant was concerned that a notice had not been sent to him as someone interested in coastal land and that the public notice was inadequate and misleading. The Court held that it was not reasonable to require the council to undertake direct notification of all owners and occupiers having some association with strips of land and water, as the provisions were wide and of general provision throughout the region. The Court also held that public notification requirements of clause 5 of the First Schedule are minimal, and substantive issues are not required to be set forth in public notices. The Court declined to make the orders.
Horahora Marae et al v The Minister of Corrections A085/2004
This case relates to a Notice of Requirement for a new prison. It contains significant guidance for those undertaking consultation, by providing a series of relative principles underlying consultation. See Principles of consultation in the Consultation for resource consent for more details.
Friends and Community of Ngawha Inc v The Minister of Corrections [2002] A110/02
This High Court case, challenging the decision of the Environment Court, relates to the proposed prison at Ngawha, in Northland. Five grounds of appeal were advanced, including:
- failure to recognise and provide for the relationship of Maori and their culture and traditions
- failure to have particular regard to kaitiakitanga
- inadequate consultation
- failure to have regard to mana, wairua and mauri.
The grounds relating to inadequate consultation did not succeed as they amounted to a challenge of the Environment Court 's factual findings based on the evidence it heard. As there was no evidence before the High Court, it could not determine whether the grounds raised any point of law. None of the grounds of appeal succeeded and the appeal was dismissed.
Wellington Airport Ltd v Air New Zealand [1993] 1 NZLR 671
This Court of Appeal case outlines the key elements of consultation. Consultation involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done.
Related guidance notes
The following guidance notes are relevant to consultation for plan development:
- Alternative dispute resolution
- Facilitating consultation with tangata whenua
- Frequently asked questions about cultural impact assessments
- Frequently asked questions on iwi management plans
- Private plan changes
- Relationship between the Local Government Act and the RMA
- Resource consent consultation
- Section 32 - Methods of implementation
- Submissions on a plan
- Making plans operative
Relevant publications
Good Practice Participate
This website has been designed to provide information, advice and tips to public servants on how to consult and engage with the community, voluntary, iwi and Maori organisations.
Consultation Conundrums
Author: Rachel Hornsby (Planning Quarterly)
Date: December 2004
This article outlines the steps the Greater Wellington Regional Council used to guarantee a good consultation process during the development of the Wairarapa Coastal Strategy.
Creating Great Places to Live + Work + Play: Liveable Urban Environments: Process, Strategy, Action
Author: Ministry for the Environment
Date: June 2002
This Urban Amenity Guide includes a summary document and CD-ROM with examples and templates that could assist with consultation processes with communities.
Agreements Between Maori and Local Authorities
Author: Grant Hewison [Indigenous Peoples and the Law]
Date: February 2000
Manukau City Council have written a useful article on what other councils have done in relation to dispute resolution.
Pre-Hearing Meetings: A Practical Guide for Councils
Date: March 1999
Pre-hearing meetings are a useful tool to clarify issues and resolve disputes in relation to resource consent applications. All councils need clear procedures for holding pre-hearing meetings, including criteria for deciding when to hold them. This guide for council staff and councillors will help in developing procedures for pre-hearing meetings.
Striking a Balance: A Practice Guide on Consultation and Communication for Project Advocates
Date: January 1999
A good practice guide for those who are trying to establish facilities that communities need but often don't want in their backyard - projects such as residential treatment facilities, meatworks, and road upgrades. It looks at best practice in consultation and techniques for addressing community concerns. A number of case studies explore the experiences of various agencies with consultation on 'not in my backyard (NIMBY) ' projects.
Public Participation from a Resource User 's Perspective (PDF 152 KB)
Author: Katie Mayes [Resource Management Law Association of New Zealand Inc]
Date: February 1997
Journal: Resource Management News
This article is a response by Katie Mayes, Environmental Resource Manager, Ernslaw One Ltd to KJ Grundy's article 'Empty Promise? Public Participation Under the RMA. '
When Should People be Paid to Participate in Planning Matters (PDF 161 KB)
Author: Rob Harris [Resource Management Law Association of New Zealand Inc]
Date: February 1996
Journal: Resource Management News
This article discusses how financial pressures affect community groups ' ability to participate in planning issues. It includes arguments for and against paying them to participate and gives guiding principles for determining whether a situation warrants payment.
Public Participation - Who Pays the Piper (PDF 2 MB)
Author: P Mitchell and K Hardy [Resource Management Law Association of New Zealand Inc]
Date: January 1996
This paper deals with four issues relating to consultation. Specifically, what is consultation, the benefits of consultation, the key success factors and the barriers to effective consultation. It concludes that consultation offers enormous opportunities to developers, regulatory authorities and the public.
Current challenges in practice
Using a 'Draft Plan ' in early consultation or not?
A 'draft plan ' approach involves preparing detailed provisions and policies to inform early consultation - before a plan is formally notified for consultation. Using this approach early can help to test the policy through a targeted consultation programme on how a plan will actually achieve its objectives, whereas a high-level consultation - about concepts and high-level matters - does not allow feedback on specific changes to improve a plan. Early consultation on the full suite of plan provisions also helps issues to be identified and resolved sooner in the plan development process, potentially reducing the number of submissions and the need for a hearing later in the process.
Use of 'draft plans ' needs to be carefully considered. The primary risk, particularly where a more restrictive approach is being indicated, is that people might advance development proposals before the new controls and requirements can have effect. Depending on the nature of the revision, it could also be seen that the issue and solutions are predetermined.
Despite showing more detail of a potential change, a draft plan may still not be sufficient to encourage members of the public to engage in consultation.
Getting people involved in consultation
Some practitioners have experienced difficulty in getting the public and interested parties involved in the plan development process. The public may not understand why they should be involved in plan development until it is too late, that is at the resource consent stage. Therefore, it is important to develop a consultation plan that uses methods to assist people understanding the importance of being involved in consultation through plan development processes. This is particularly so where it may affect their interests - for example, changes in policies for the coastal environment that could reduce development opportunities.
Links between RMA and LGA
The requirements of the RMA for consultation have been in place since the early 1990s. The requirements of the LGA 2002 are fairly new but significant in terms of consultation process. The interface between the RMA and LGA has potential to provide tension and challenges for practitioners. This is because the RMA focuses on promoting the sustainable management of natural and physical resources, whereas the LGA focuses on broader sustainability objectives. There are also differences in terms of requirements to consult with Maori (as referred to in the LGA) and tangata whenua (as referred to in the RMA). Increasingly, communities will have expectations about how they will be consulted in terms of plan development and how their input can be considered, based on their LGA experiences. Conveying to the public the differences between LGA and RMA, and when their requirements apply, is a critical element of any consultation plan. See Relationship between the RMA and LGA for more information.
Acknowledgements and editorial comments
This guidance note was prepared by Karen Bell of Enviro Solutions New Zealand Ltd, February 2002, and updated in August 2003. A further update was undertaken by Gina Sweetman of Sweetman Planning Services Ltd in August 2008 .
This guidance note was updated to reflect RMAA 2009 by Erica Sefton of The Project House Ltd in October 2009.
