Section 32 - Methods of implementation

Abstract

Under section 32 of the Resource Management Act 1991 (RMA), any proposed regional and district plan, plan change (including any private plan change), variation, national environmental standard (NES) and national policy statement (NPS) must be accompanied by an evaluation that assesses both:

the extent to which each objective is the most appropriate way to achieve the purpose of the RMA
whether the proposed policies and methods are the most appropriate way in which to achieve the objectives in terms of their efficiency and effectiveness.

Such an evaluation must take into account:

the benefits and costs of the policies, rules or other methods
the risk of acting or not acting if there is uncertain or insufficient information.

The s32 evaluation should be articulated in a s32 report that accompanies the proposed plan, policy statement, plan change, variation, NES or NPS.

Undertaking a s32 evaluation assists in determining why changes to existing plan provisions may be needed and formalises a process for working out how best to deal with resource management issues. Section 32A provides for challenges to an objective, policy, rule or other method in the form of a submission on the grounds that the requirements of s32 have not been complied with. For the purpose of this note, the term "plan development" is used to encompass the development of proposed policy statements, plans, plan change, plan variations, NES and NPS.

Guidance Note

Introduction

�Broadly, a s32 evaluation involves the following steps:

identifying the resource management issue
evaluating the extent to which any objective is the most appropriate way to achieve the purpose of the RMA
identifying alternative policies and methods of achieving the objective
assessing the effectiveness of alternative policies and methods
assessing the benefits and costs of the proposed and alternative policies, rules, or other methods
examining the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods (meaning the nature and extent of the issue and the appropriateness of the objective)
deciding which method or methods are the most appropriate given their likely effectiveness and their likely cost, relative to the benefit that would likely deliver
carrying out the evaluation outlined above before the provisions being adopted and summarising the evaluation in a report.

This guidance note provides guidance to RMA practitioners on undertaking these steps through an s32 evaluation process.

Key terms

The following are key terms in the application of s32 of the RMA:

Appropriateness - means the suitability of the plan provision to its proposed purpose. It has two related meanings:

In the context of s32(3)(a) (evaluation of appropriateness of objectives) its meaning may (depending on the circumstances) include:
In the context of s32(3)(b) (appropriateness of policies, rules or other methods) it includes the extent to which the provisions will be:
- effective
- efficient

Effectiveness - means how successful a particular option is/will be in achieving the stated objective. How successful an option is can be measured in terms of not just whether an objective will be achieved outright; but it may alternatively relate to the extent to which progress will be made even if the objective won 't be met in full. The speed at which progress is made may also be a relevant consideration.

Efficiency - means where the benefits will outweigh the costs, either immediately or over time. The most efficient policy or method will achieve the stated objective with the greatest benefit and at the least cost (costs and benefits may be quantitative, semi-quantitative and/or qualitative). Efficiency is not to be confused with the terms 'net benefit ' or 'net present value ' (a measure that implies that all benefits and costs can be converted to a common 'currency ' and netted off against one another to generate a single measure).

The value of section 32 analysis

A transparent and well documented s32 evaluation will help to ensure that:

decision-makers have sound policy analysis on which to base their decisions about resource management issues
good resource management outcomes are achieved, at the lowest practicable cost to individuals and the community
plan provisions are targeted at achieving the purpose of the RMA by the most appropriate methods
a sound basis is provided for re-assessing (through subsequent evaluation) whether expectations and assumptions made during the policy development stage have proven to be correct. This will be apparent if the plan provisions are shown, on the basis of observed environmental outcomes (and other costs and benefits) to be effective and efficient.

Undertaking a thorough s32 evaluation may:

result in less opposition to proposed provisions, and fewer opposing submissions and appeals to the Environment Court
ensure greater success and less additional work in defending proposed provisions at the Environment Court
improve the chances of the council adopting or approving a private plan change request.

Documenting s32 considerations can assist in satisfying obligations under the Local Government Act 2002 (LGA). Acknowledging that the council has turned its mind to the requirements of s76 of the LGA in an s32 evaluation reduces scope for potential challenge under the LGA.

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The section 32 evaluation process

1) Identify the resource management issue

An issue is an existing or potential problem that must be resolved to promote the purpose of the RMA. For guidance on how to identify RMA issues, see Writing Issues and Testing issues for RMA plans from the Writing Provisions for Regional and District Plans Guidance Note. This guidance is equally applicable for issues in regional policy statements.

2) Evaluate whether the objective is the most appropriate

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. For guidance, see Writing Objectives from the Writing Provisions for Regional and District Plans Guidance Note.

The appropriateness of an objective has a number of dimensions. The relevancy and usefulness of an objective can, and should, be assessed before policies and methods are being identified. Other dimensions such as the reasonableness and achievability of the objective can only be assessed after policies and methods have been identified. If later analysis shows that the costs of pursuing the objective are too large in relation to the benefits, the appropriateness of the objective should be reviewed, and possibly revised or discarded.

Key questions when evaluating the appropriateness of objectives may include:

Is it relevant?

Will it address the issue in a way that achieves the purpose of the RMA?
Does it relate directly to the issue, and address a significant aspect of the issue?
Would achieving the objective make a substantial difference, in terms of addressing the issue and the purpose of the RMA?

Is it fit for purpose?

What would happen without it?
How will it guide decision-making?
How might it otherwise add value?
Does it comply with sound principles for writing objectives?
How will it impact on other issues and their objectives?

Is it achievable?

Does the council have the functions and powers and policy tools to ensure that this outcome can be achieved?
Can the council realistically expect to influence other parties to contribute sufficiently to this outcome?
What are the adverse consequences or inequities of setting an unachievable objective?

The checklist for issues, objectives, policies and methods and checklists for RMA plan writers provide tools for the assessment and analysis of proposed objectives.

3) Identify alternative policies and methods

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). An objective will commonly have several associated policies. See Writing Good Policies from the Writing Provisions for Regional and District Plans Guidance Note for more information on policies.

Methods are the means by which policies are implemented. While methods may be seen to be similar to a specifically worded policy, the purpose of a method is explanatory. Methods can be regulatory or non regulatory.

Regulatory methods will normally include rules in plans and conditions on resource consents, heritage protection orders, NES, enforcement and similar tools provided for within the RMA. Regulatory tools provided for in other statutes (such as the Biosecurity Act 1993, LGA, etc) will also be relevant. A rule is the only method required to be identified in a district plan.

Non-regulatory methods to achieve each objective include: research, monitoring, education, information and training, council services, incentives, voluntary agreements, land purchase, levying charges, and rules. These are not required to be included in a plan.

See Writing effective and enforceable rules, Methods (other than Rules) from the Writing Provisions for Regional and District Plans Guidance Note for more information on methods.

Section 32 does not explicitly require the consideration of alternative means. However, it does require that the evaluation shows that, having regard to effectiveness and efficiency, the proposed policies, rules, or other methods are the 'most appropriate '. This implies that some consideration of the effectiveness and efficiency of alternative provisions is required.

The first step in determining whether the proposed provisions are the "most appropriate" is to review a range of realistic alternatives. While it will generally not be possible or reasonable for all possible alternatives be identified, a range of obvious alternatives should be given due consideration.

Typically, the best approach is to assess a package of policies and methods together rather than as individual provisions. Section 32 calls for an evaluation of viable alternative approaches, and does not require a consideration of alternative ways of expressing the same general policy direction.

As a minimum, alternatives should include:

the provisions that the proposed policies and methods are designed to replace
the provisions/approach that any neighbouring authorities have already adopted
alternatives identified through any public consultation or submission process
any other provisions seriously considered during the plan development process (eg, alternatives included in any issues and options discussion document).

When identifying and considering alternative policies and methods you should:

be open-minded about the range of policies/methods. While not explicitly required, consider a wide range of alternatives to demonstrate that you are thinking 'outside the square '
start by identifying different types of methods, rather than approaches within each method
consider non-RMA methods
ensure any associated consultation asks for alternatives and risks to be identified.

The checklist for issues, objectives, policies and methods and Checklists for RMA plan writers provides tools for the assessment and analysis of proposed policies and methods.

4) Assess the effectiveness of the alternative policies and methods

Determining the 'most appropriate ' policies and methods requires a comparison of the effectiveness of alternatives.

Evaluating the effectiveness of policies and methods means asking which approach will best achieve the objective; or if multiple approaches would achieve the outcome, would do so most quickly or with most certainty, and at least cost with most benefits.

This requires an understanding of:

how the policies/methods will take effect
what needs to be done by whom and when
what the risks are
what factors might intercede to mean that the objective is not achieved.

Intervention logic (also known as programme logic) can be used as a principal means of undertaking such analysis, particularly in planning and evaluating programmes or other interventions. It is often described as a policy 's 'theory of action ' and provides a step-by-step description of how a policy intervention is intended to work to deliver the policy objective. Using intervention logic ensures the explicit disclosure of all the assumptions that are being made and all the intermediary steps needed for the policy to be effective.

Assessing the relative effectiveness may be undertaken by a combination of:

setting out the intervention logic of each alternative
determining which logic chain is most likely to deliver as expected
determining which has the greatest number of assumptions, risks and uncertainties.

This regional council example demonstrates how intervention logic can be used.

Once this has been done, it is often clear which alternative is most likely to be effective and which alternative has the greatest risks associated with it. The following checklist should also assist in determining the relative effectiveness of alternatives:

ask which of the approaches:

has the most realistic assumptions
has the least significant risks
is likely to have the best level of compliance and enforceability (for regulatory methods)
best and most directly targets the ultimate outcome

reject policies and methods that are not appropriate or identify circumstances when they are not appropriate
review the objective if no policy or method is appropriate.

For further discussion on intervention logic, see the regional council and unitary authority publication Evaluating Regional Policy Statements and Plans.

5) Assess the costs and benefits of the alternative policies and methods - efficiency

The most efficient policy / method will achieve either of the following objectives:

the greatest benefit with the least cost
the greatest 'amount of benefit ' (eg, highest level of amenity) relative to the level of cost, where the objective is not expressed as a fixed amount.

Analysing efficiency means:

identifying the various environmental costs and benefits of each alternative
identify the various social and economic costs and benefits of each alternative
identifying who/what will face the cost, or experience the benefit of each alternative
assessing the relative size of the costs and benefits of each alternative
identifying all assumptions and uncertainties clearly. (If there is uncertainty, state how critical it is, what has caused it, and what further information might reduce it.)

This analysis can be undertaken for each policy and method or, more feasibly, for particular 'packages ' of policies and methods that relate to a single objective. The latter can assist to keep the scale of the evaluation manageable. However, it is important to ensure that the evaluation does go beyond the consideration of an overall approach (such as zoning) to examine specific rules - particularly where these rules have the potential for significant costs and benefits.

Understanding costs and benefits

The cost and benefit analysis required as part of a s32 evaluation needs to be broad. It should not be limited to just those that fall on councils, and should include resource users, the community and the environment, and any other relevant parties. Normally a combination of social, economic and environmental costs, include:

Benefits will normally include:

environmental benefits
social and economic benefits
other incidental environmental benefits.

The characterisations of costs and benefits differ for regional and district plan rules:

A regional rule that provides for an activity that would not otherwise be permitted may provide an economic benefit of some description (and potentially some level of environmental cost).
A district plan rule that provides for an activity often does so with the express or implied consequence of excluding other activities not so permitted. Such a rule therefore imposes an economic cost when compared to having no such rule and consequently, that all activities would be permitted. (This may not be the case when the effect of the rule is compared with the existing plan rule.)

The presumptions of s10-15 of the RMA need to be considered when determining what costs flow from regulation. The baseline for determining whether a cost or benefit arises also needs to be clearly set. In most cases, an existing rule will be the appropriate baseline where a new provision is proposed to replace it.

Assessing costs and benefits and establishing efficiency

Section 32 requires that the appropriateness of policies and methods be assessed having regard to their efficiency, rather than a more formal and prescribed Cost and Benefit Analysis (CBA).

It is often difficult to establish a monetary value for many environmental and social costs and benefits (such as effects on amenity and intrinsic values, landscape and heritage). It is theoretically possible to determine a monetary value for difficult-to-measure costs and benefits (using a variety of valuation techniques); but in practical terms such an approach is likely to be feasible for only a small number of interventions and/or a limited number of costs and benefits.

The disadvantages of undertaking a comprehensive monetisation of costs and benefits include that:

the cost to a council would be high
it would take too long given the size and nature of plans and
because of the limitations of many valuation methodologies, the results could add to uncertainty and may not form a robust basis for decision-making.

Therefore, a robust evaluation of efficiency should not be regarded as requiring the full and comprehensive monetisation of every cost and every benefit. An evaluation should include a comprehensive and transparent disclosure of the full range and likely scale of costs and benefits that are quantified where possible, though not necessarily monetised. For example, the size of the benefits (eg, the extent of wetland to be protected) should be given even if a dollar value cannot be placed on the value of that wetland. Where quantification is not possible, qualitative and subjective assessment of the scale of the cost and benefit should be provided.

In determining the level of costs, you should:

assess costs on an individual basis if they fall unevenly on individuals
estimate individual costs based on the number of properties affected if costs are shared
always identify the cost to each individual, and the total of those individual costs
not include costs related to regulation outside of the RMA (as can happen when there are multiple regulatory regimes applying to a particular issue)
count each cost once only - for example if you identify a cost for resource users, do not include it in council or community costs
include costs that are flow-on effects. For example, a cost to a resource user of lost production might have the flow-on effect to the community where the loss of production will have a multiplier effect through the local economy.

There are a range of non-monetary techniques for assessing costs and benefits, ranging from simple ranking through to complex scoring and weighting.

One way to measure a cost or benefit in non-monetary terms is to apply value in accordance with a simple rating scale such as, for example, -5 to +5. Consultation with resource users and the community may aid in determining the 'score ' given to different costs and benefits. Alternatively, the highly subjective nature of many of the costs and benefits can be acknowledged by simply rating them on a narrative 'low, medium, high and very high ' spectrum.

Having some costs and benefits monetised and some not is an acceptable approach. In such cases, the monetised values should provide a benchmark for the qualitative and subjective assessments also included. Such an evaluation needs to disclose how it would rate the monetised values, which then needs to be used to 'calibrate ' the subjective assessment.

As a general rule, potentially high economic and social costs will require in-depth analysis of the method 's impact, possibly using a detailed, and more highly monetised cost-benefit analysis. When the costs are likely to be high, the community will also expect a clear explanation - and quantification - of the method 's environmental benefits. The depth of analysis required will also be influenced by the issue 's importance, complexity, and degree of 'newness '. The depth of analysis should be commensurate with the scale of the proposal.

A matrix or table can be a useful approach to demonstrate and compare costs and benefits.

Use the checklist for issues, objectives, policies and methods and the checklist of methods for achieving the purpose of the RMA as tools for assessment and analysis.

6) Identify the risks of acting or not acting

The nature and scale of issues faced by councils will generally be clear. Previous experience and/or research and monitoring data could demonstrate that the issue to be addressed is real, and that its size and significance warrants the attention of proposed plan provisions.

However, in some cases the information will be conflicting, uncertain or simply inadequate to categorically demonstrate the scale and nature of the 'problem ' to be addressed. This may lead to debate about whether councils should do anything or adopt a 'wait and see ' approach.

In these situations the s32 evaluation must consider the risks of acting or not acting, or the 'symmetry ' of risk. For example, if there is low risk associated with acting but high risk associated with not acting, then taking action is clearly the sensible thing to do. The converse applies, which is known as 'asymmetric ' risk.

The concept of risk has two dimensions:

the probability of something adverse occurring
the consequence of it occurring.

Risk is usually expressed as 'probability times consequence ' and associated with a cost - usually a severe economic, social or environmental cost. Assessing the risk of acting or not acting means assessing the probability of a cost occurring and the size of that potential cost.

Given that by this stage there should be information on actual and potential costs, risk evaluation should involve:

determining just how certain and sufficient the information about each issue really is
identifying those provisions which relate to any issues about which there is uncertain or insufficient information
identifying the costs of the policies and methods proposed in relation to those issues
identifying the costs associated with the 'do nothing ' or 'status quo ' option
assessing the likelihood of those costs occurring with the provisions proposed and (separately) without the provisions proposed (ie, the cost of the 'do nothing ' option)
determining the symmetry of the risk.

The RMA requires that the symmetry of risk is taken into account rather than undertaking a highly quantified risk assessment. A simple methodology such as demonstrated in this example will normally be sufficient to demonstrate compliance with s32(4)(b) of the RMA.

7) Deciding which policies and methods are the most appropriate

Choosing the most appropriate policies and methods to achieve the objective requires an overall assessment of their efficiency and effectiveness.

Methods for this overall assessment can include:

creating a matrix that records the effectiveness and efficiency of the policy and method or package of provisions as appropriate
undertaking a relative ranking of the effectiveness and efficiency of each policy and method where a number of policies and methods have been identified as being potentially suitable
using rating scores from 1 to 10 or ratings of high, medium or low.

Choosing the appropriate policy and method will be straightforward if:

one stands out as both highly efficient and highly effective
all of the policies and methods are similarly ranked, except that one obtains a higher ranking in one particular area, such as providing higher environmental benefits.

In less straightforward cases, the right balance between effectiveness and efficiency will depend on:

the significance of the desired environmental outcome
the level of risk
the amount of information available or its degree of uncertainty
the likelihood of the method achieving the desired results.

Effectiveness will have more weight than efficiency if:

the level of risk to the environment, due to failure, is high
the policy or method is uncertain
there is a lack of information.

Efficiency will have more weight than effectiveness if the level of risk is low.

8) Review the objectives

After completing the analysis of the costs and benefits of the proposed policies and methods you should:

return to the objectives to ensure that they are the most appropriate way to achieve the purpose of the RMA, using information gained from the analysis of policies and methods
review any objectives that are no longer appropriate
ensure the policies and methods still achieve any revised or new objective.

Applying section 32 throughout the plan development process

Section 32 applies to the entire policy and plan development and change process from issue identification to decision release. Therefore, s32 is applicable:

when objectives are identified and assessed
when examining policies, rules, or other methods
after the draft plan or provision is prepared
when the decision is made to notify
in the officer 's report on submissions
during deliberations by the council hearings committee
before the final decision being released.

A section 32 evaluation should be an iterative process, requiring a regular review of earlier steps and conclusions when necessary.

Applying section 32 at notification

Before deciding to notify proposed provisions, councils must be satisfied that the requirements of s32 have been met. The s32 record (report) must also be publicly available at the time of notification.

Applying section 32 after submissions are received

The officer 's report on submissions must state whether the submissions:

contain any credible challenges to the provisions
suggest new policies and methods
provide additional information on the appropriateness of proposed provisions, including effectiveness.

The officer 's report must also:

include a record of any additional work done by the council after submissions were received
provide reasons for recommended amendments to proposed plan provisions
explain why other submissions did not lead to changes.

The Council's written decisions on submissions must state the issues discussed, and cover the evaluation of alternatives.

Applying section 32 at a hearing and in the decision

Irrespective of whether a hearing is held on a proposed policy statement or plan, the council has an obligation to make a further evaluation under s32(2)(a) as part of the decision-making process. This evaluation should include:

the reasons for accepting or rejecting any submissions
any consequential alterations arising from submissions
any other relevant matters raised in submissions.

In its decision, the council must satisfy itself that the most appropriate methods are being used, after having heard the evidence at the hearing. Most councils will produce s32 material to support any plan appeals to the Environment Court.

Challenge to the section 32 process

Section 32A provides that any challenges to compliance with the requirements of s32 and to an objective, policy, rule or other method must be made within the context of a submission/further submission on a proposed plan.

Monitoring and post-implementation evaluation

The s32 analysis should be designed for and provide the basis upon which subsequent (post implementation) evaluation is undertaken.

Using intervention logic in a s32 evaluation can assist to set out:

how policy makers expect policies and methods to be implemented
what costs and benefits are projected
the assumptions upon which the evaluation conclusions were reached.

This information is critical for subsequently determining whether provisions have been effective and efficient. The evaluator will want to ask questions such as:

Have the assumptions held true?
Have the costs and benefits been as anticipated?
Did we get it right or not?

For more information on monitoring, refer to the policy and plan effectiveness monitoring guidance note.

The importance of consultation

Schedule 1 of the RMA outlines the requirements for consultation in the plan development process. Consultation is important to a s32 analysis as it assists to:

identify and assess issues, objectives, policies, and methods
gather information from, and, understand the needs of resource users
test the s32 analysis against community views and aspirations.

The views of stakeholders should be sought to assist in determining the appropriateness, costs and benefits of proposed provisions.

You should consult early on in the process and consult widely with the relevant stakeholders and wider community. This could include:

raising key s32 questions, such as the costs and benefits of alternative methods
including a 'relevance to s32' section in each consultation record. For example annotate which part(s) of the s32 record that each individual or group 's comments/views relate to in a consultation database
inviting comment on draft plan provisions before notifying them, either through public or invited comment
testing the s32 analysis against the community feedback.

Consultation should help establish a mandate for the final plan provisions. For more information on consultation, refer to the consultation process guidance note.

Managing the section 32 process

The s32 process must be managed so that it is coordinated with each stage of the plan or policy statement review or change process. For full plan or policy statement reviews or larger plan changes, it is useful to think of the s32 analysis process as a project that runs parallel to and integral to plan preparation.

A website can assist to keep the public informed of the s32 process. However, it must be well maintained, with relevant documents easily accessible and must be kept up to date. It may be useful to have one person responsible for keeping the website current and user friendly, so that it can be used as an effective communicative tool.

Determining roles and responsibilities

Those responsible for making decisions on the plan provisions are also responsible for ensuring that the Council's duties under s32 are properly discharged. They must be satisfied that s32 requirements have been met when they decide to notify, and when they decide on plan provisions. The decision itself must be made part of the overall s32 process. They are also responsible for ensuring that a s32 record is publicly available when provisions are notified.

Council staff are responsible for managing the s32 process, drafting provisions after consultation and analysis, and providing information and quality policy advice to decision-makers. As part of their responsibilities to decision-makers, council staff should consider:

running training or refresher courses for councillors to ensure they remain well informed about s32 requirements
running joint councillor/staff workshops to deal with important matters such as identifying and assessing issues, objectives, policies, and methods
ensuring that councillors approve issues and objectives early, and remain well informed during the rest of analysis.

Appoint a section 32 champion

It can be useful to appoint a s32 champion to lead and monitor the s32 process for a full plan or policy statements review. The key skill they should demonstrate is rigorous thinking. They should ensure that:

financial and staff resources are available for the process
work loads are prioritised
councillors and senior managers are briefed regularly
outputs are achieved within budget and on time
there is full and open communication among project team members
provisions are confirmed and drafted after the s32 process.

Create a 'project brief '

A good project brief for the s32 process will:

scope the project first
identify the s32 'champion '
identify who is responsible for specific tasks such as recording and managing information, carrying out the analysis and assessment of methods, and producing the s32 report
establish the project brief and individual work briefs at an initial team meeting
treat the s32 process as a project that runs parallel with plan development
state the s32 process objectives, reflecting RMA requirements
identify key stakeholders and consultation requirements
identify when checks must be made to ensure that s32 requirements have been met
decide early what information will be recorded, and how
use progress reports to ensure timeframes and objectives are met.

The section 32 report

A s32 report summarises the process of a s32 analysis from issue identification to notification. An effective s32 report should:

identify all parties involved
summarise the evaluation
demonstrate the evaluation undertaken in a simple and clear manner, such as through the use of assessment matrices
cross-reference to more detailed background papers and evaluations
give reasons for the evaluation
encourage more focused submissions
for a private plan change, be effective so that the council adopts the plan change
assist in later monitoring for appropriateness.

The scale of the s32 report should be relative to the scale and significance of the proposed provisions. Ultimately, the report must answer the question: "Why is this provision in the plan?"

Some key ways to producing a good s32 report include:

compiling information throughout the s32 process
creating a specific set of s32 files and an identification system for documents
making sure reasons for the information kept are included
making one person responsible for collecting and filing s32 information
making one person responsible for keeping a diary of critical stages in the process
making sure the summary report is available when provisions are notified
keeping and maintaining records of all discussion and policy papers meetings and consultation summaries of submissions, officers' reports, and council decisions and reasons
producing the report in several volumes if many issues are involved.

Best practice examples

The following examples illustrate best practice in particular aspects of s32 evaluation, as described in the guidance note.

Determining necessity

The s32 report for proposed plan change 56 to the Wellington City District Plan, Managing infill housing development, provides a good example of: how to present the resource management issue within broader planning and policy issues in order to determine the necessity for the proposed provisions.

While presenting this broader context, the report has successfully summarised the s32 process undertaken by the council by purposefully focusing on the pivotal changes to resolve the issue being addressed. This approach, particularly the evaluation matrix which clearly outlines the preferred option, means that the effects of the proposed plan change are easily linked to the wider issue, enabling the public to be aware of the issues as well as the potential costs and benefits.

Consultation

The s32 report for proposed plan change 56 to the Wellington City District Plan, Managing infill housing development, illustrates good practice with regard to the integration of consultation into a s32 report. The summary report lists documents and consultation records that provide more detail on the consultation process used in Council's s32 considerations. As this consultation was undertaken as part of the initial broader process, it effectively determined the extent of the resource management issue and allowed feedback on the costs associated with alternatives and their appropriateness, in particular, those costs associated with maintaining the status quo.

Alternative methods and appropriateness

The s32 report for proposed plan change 13 to the Manukau Operative District Plan, Wairoa River Maritime Village, illustrates good practice when evaluating planning methods to achieve the proposed outcome. The report provides a summary discussion of the three broad alternative methods considered (ie, doing nothing, implementing an existing residential zone and creating a new specialised zone). It then proceeds to consider these methods in terms of their benefits and costs in relation to environmental and social outcomes.

The report subsequently includes an evaluation of the appropriateness of each of the proposed objectives, policies and methods. The report includes an assessment of each objective and its appropriateness; it also sets out how each policy has been considered in terms of the benefits and costs in relation to the relevant objectives while having regard to their overall efficiency and effectiveness.

The objectives and policies have been broken into various subsections as they relate to the broad resource management issues. These are:

social, economic and cultural wellbeing, health and safety
maintenance and enhancement of amenity values
managing adverse effects.

In using this approach the analysis provides a reasonable level of detail and complexity in a simple and understandable manner. The report clearly sets out how the approach is considered the most appropriate and linked this to how the plan change will be appropriate in achieving the purpose of the RMA.

Appropriateness

The s32 report for Variation 1 to Environment Canterbury 's Proposed Natural Resources Regional Plan Chapter 6, Beds and Margins of Lakes and Rivers [KA1] [KA1], is a best practice example of how to evaluate whether the objectives are the most appropriate to achieve the purpose of the RMA at a regional level.

The report includes two matrices used to assist in evaluating the appropriateness of both proposed policy options and the methods to implement the policies. The first matrix provides a summary of the matters considered in Council's s32 assessment. The second uses a ranking approach of low, moderate or high to subsequently evaluate the related appropriateness of each option. This means that the appropriateness of options can be easily ascertained in terms of where there are high levels of effectiveness, efficiency and benefits versus the costs and uncertainty relative to the other options considered.

Determining the issue

The s32 report for the Air Quality Chapter of the Proposed Canterbury Natural Resources Regional Plan provides a good example of how Issue 2 (winter ambient air quality) was determined. This issue relates to the contribution of domestic fires and older wood burners on air pollution and the degree to which they should be controlled, which was contentious within the community. To assist in determining the issue, the council:

investigated the national air quality guidelines
identified the different emissions and their effect on community health (ie, suspended particulate, nitrogen dioxide, carbon dioxide, sulphur dioxide, ozone and other hazardous pollutants)
analysed monitoring data
considered the relative contribution of emissions from different sectors (domestic heating, transportation, industry)
considered the costs to the community for domestic heating.

This detailed analysis was considered necessary given the potential economic and social costs to Christchurch City. It also enabled submitters to better scrutinise the assumptions behind the objective and policy alternatives.

Cost-benefit analysis

The s32 report for the Air Quality Chapter of the Proposed Canterbury Natural Resources Regional Plan includes a good example of a cost-benefit analysis for a controversial issue. The economic costs and benefits to the community could be quantified for some of the alternative methods. For example, the report states that there is a net economic benefit, in the long term, in banning open fires because of their poor heat output for the amount of fuel used. However, it also identifies that there is an overall net economic cost to the community in upgrading old wood burners and banning new wood burners in new houses. The environmental costs and benefits are qualitative, due to the difficulty in quantifying health and amenity benefits costs generally.

The s32 analysis combines the qualitative and quantitative parts of the cost-benefit analysis to give an overall qualitative efficiency rating (low, moderate, high). The cost and benefits are easily identified in a table with the more feasible methods being highlighted.

Risk of acting or not acting

The s32 report for Proposed District Plan Change 3 to the Dunedin City District Plan, Dunedin Airport, provides an example of how the costs and benefits of the proposed policies and methods should be assessed together with the risk of acting or not acting if there is uncertain or insufficient information.

The report includes a matrix table that sets out an assessment of the rules as a package and then also provides a more detailed examination of specific rules. Both the process and analysis are easy to understand and effective, as a clear link is provided between the costs and benefits and the social, environmental and economic risks associated with each provision or package of provisions. The matrix includes specific columns that summarise the considerations of the risk of acting or not acting.

This approach means that the s32 report can easily be interpreted by the public, while effectively conveying the necessity of the proposed new provisions including the risks of acting or not acting.

Applying s32 in the council decision

Waipa District Council's decision on proposed private plan change 53 to the Waipa District Plan, Bilimag Re-zoning, is a good example of a council meeting its obligations under s32(2) to undertake a further evaluation before making its decision on a plan change. The decision sets out the decision-makers robust consideration of how the proposed objectives, policies and methods will support the purpose of the RMA. The decision also provides a comprehensive assessment of how the proposed policies and methods (in this case zoning) would efficiently and effectively achieve the objectives by providing a tiered activity status for specific zoning rules.

Like many s32 reports, in considering the appropriateness of the proposed policy and methods, the assessment utilises a matrix that includes columns related to effectiveness, efficiency, benefits, costs and uncertainty.

RMA provisions

The following are sections of the RMA that are relevant to s32:

Part 2: Purpose and principles
Section 9: Restrictions on use of land
Section 12: Restrictions on use of coastal marine area
Section 12A: Restrictions on aquaculture activities in coastal marine area and on other activities in aquaculture management areas
Section 12B: Continuation of coastal permit for aquaculture activities if aquaculture management area ceases to exist
Section 13: Restriction on certain uses of beds or lakes and rivers
Section 14: Restrictions relating to water
Section 15: Discharge of contaminants into environment
Section 30: Functions of regional councils under the Act
Section 31: Functions of territorial authorities under the Act
Section 32: Consideration of alternatives, benefits, and costs
Section 32A: Failure to carry out evaluation
Section 35: Duty to gather information, monitor, and keep records
Section 68: Regional rules
Section 74: Matters to be considered by territorial authority
Section 76: District rules
Section 85: Compensation not payable in respect to controls on land
Schedule 1: Preparation, change and review of policy statements and plans.

Local Government Act 2002

Section 76: Decision making

Section 79: Compliance with procedures in relation to decisions

Case law

The following cases contain discussion of s32-related matters:

Contact Energy Ltd v Waikato RC CIV 2006-404-007655: This decision discusses the appropriateness of adopting a s32 analysis based on a wider exercise of judgement than that based on economic cost-benefit analysis, and the relevance of adopting a more broad-based and holistic approach.

Scanlan v Whangarei DC A016/07: This appeal deals with a challenge to an inadequate s32 analysis that was not made in the context of any submission or further submission.

Gunbie v Rodney DC A143/06 and Bay of Islands Coastal Watchdog Inc v Far North DC A106/06: These decisions discuss the most appropriate way to achieve the purpose of the Act and the most appropriate way to achieve the objectives of the Plan.

Geotherm Group Ltd v Waikato RC EnvC A047/06: This decision discusses the relevant matters to be considered by a regional council in proposing a change to its policy statement or proposing a variation to its proposed plan.

Waitemata Infrastructure Ltd v Auckland CC EnvC A055/05
This decision addresses the consideration of alternatives in the context of a privately promoted plan change.

Gisborne DC v Eldamos Investments Ltd EnvC W047/05
This decision addresses the change from 'necessity ' to the 'most appropriate test ' and provides a useful summary of the approach to determination of proposed policy provisions. See also Progressive Enterprises Ltd v Palmerston North CC EnvC W089/07 and Abraham Holdings Ltd v North Shore CC EnvC A069/07 for the implementation of the Eldamos methodology.

Infinity Group v Queenstown Lakes DC EnvC C010/05
In this decision, the Court found that the appellant was not entitled to contend that council had failed to comply with its duties under s32, because it had not been raised through the submission process.

Plain Sense v Dunedin CC EnvC C176/04: This appeal discusses the distinction between 'most appropriate ' and the previously stated test of 'better '.

Naturally Best New Zealand Ltd and Shotover Park Ltd v Queenstown Lakes DC C49/2004: This appeal relates to a s32 report for a variation to a plan and the scope of a submission on that variation which was not included in the s32 report.

Omokoroa Ratepayers Association Inc v Western Bay of Plenty DC EnvC A019/04: In this decision, the Court found that the intent of a submission did not mention s32 and was therefore insufficient to challenge the Council's responsibility under s32.

Fish and Game NZ (Central South Island Region) v Otago RC C79/2002: This decision addresses the various tests under s32 relating to s5 of the RMA.

Kirkland v Dunedin CC C138/00 [2001] NZRMA 129, AP194/00 [2001] NZRMA 97, CA78/01 6 NZED 723 and CA121/01 6 NZED 725 [2002]: These decisions deal with the role of s32 and the scope of submissions raising inadequacy of s32 as a ground.

Countdown Properties (Northlands) Ltd v Dunedin CC AP214/93 1994 NZRMA 145 (HC): This decision provides an analysis of the content and procedure of s32 analysis and when 'adopting ' plans or plan changes applies. It also addresses who can make submissions in relation to s32 matters and when these can be made.

Related guidance notes

The following guidance notes are related:

Consultation process
Non-residential activities in residential areas
Policy and plan effectiveness monitoring
Policy framework
Private plan changes
Writing provisions for regional and district plans
Structuring and organising regional and district plans

Relevant publications

Evaluating regional policy statements and plans: a guide for regional councils and unitary authorities
Author: Gerard Willis (Enfocus Ltd)
Date: August 2008
This guideline was prepared by regional councils and unitary authorities with the assistance of Enfocus Ltd. It provides guidance on best practice means of meeting obligations under section 35(2)(b) and (2A) of the RMA to evaluate the effectiveness and efficiency of regional policy statements and plans. It provides detailed advice on various evaluation techniques.

Think piece two: improving implementation of the Resource Management Act at the local level can produce better outcomes Author: Owen McShane (Federated Farmers)
Date: August 2003
Commissioned by and written from the perspective of the Federated Farmers of New Zealand (Northland), this report was prepared by Owen McShane. Its main focus is the implementation of the RMA at local and regional levels, as compared to the central government focus of the original 'Think Piece ' written by Owen McShane for Simon Upton in 1996. The report focuses on transaction costs and offers practical solutions to improve the implementation of the RMA at local and regional levels.

Section 32 - A process or an afterthought
Author: Panu Raea
Date: December 1993
This article outlines the Foodstuffs case in Dunedin where the first decision by the Planning Tribunal relating to section 32 of the RMA was delivered.

Current challenges in practice

The following are current challenges that are being experienced by practitioners undertaking s32 analysis:

Determining the level of detail

Determining what is a sufficient level of s32 analysis can be difficult. The general rules is that level of detail included should be relative to the proposed scale, significance and complexity of the change being proposed. Therefore, a tiered approach to s32 involving different levels of detail depending on the provision may be appropriate. A detailed evaluation might be appropriate where:

a preliminary evaluation identifies potential for significant costs
there is potential high public interest in a provision
the provision is new or innovative.

A less detailed analysis may be appropriate where:

the provisions repeat past approaches that are well accepted by the community
there are patently few, if any, viable alternatives
the provisions would be low cost.

It should also be remembered that there are matters that do not lend themselves to monetary or even quantified evaluation. It is often not possible (or only possible at very high cost) to assign monetary values in relation to benefits and costs arising from RMA interventions. While quantitative analysis is preferable, we often do not have the analytical tools to do this cost-effectively. Attempts to undertake a quantitative analysis using less-than-rigorous means can be counter-productive and potentially lead distorted decision-making.

Full (monetised) cost/benefit analyses are likely to only be necessary where the initial evaluation of benefits and costs identifies the risks that the community, or part thereof, will experience significant cost.

Recording and reporting section 32 analysis

Keeping clear and concise records of an s32 analysis is a critical component of the implementation process. It helps to make plan development transparent. A s32 report that summarises the evaluation and gives reasons for that evaluation must be available for public inspection at the time of public notification of the provision. Deciding on how to present and store information on s32 analysis can be a difficult task, especially when dealing with large quantities of information and significant and/or particularly contentious issues. The financial costs associated with this can also be significant and councils can find it challenging to finance.

Section 32 records and/or reports should be constantly readdressed throughout the planning process to ensure that any changes or decisions are appropriately recorded and reasoned. This can be difficult to achieve when there are tight time constraints and limited finances available.

Recording and reporting s32 analysis is also critical where a considerable amount of information held within a council may be institutional knowledge that is not already documented. This important information may be lost when key staff leave and there has been no record of their knowledge held.

Choosing suitable methods

It can be difficult to decide what methods, particularly non-regulatory ones, are suitable to address an issue when they have not been previously tested. Section 32 does not require the use of regulatory methods only to address environmental issues. However, councils may find regulatory methods easier to use, as their effectiveness can be better measured through previous implementation. Non-regulatory methods tend to be monitored to a lesser extent even though they may be a more plausible option for dealing with some issues.

What is the right amount and type of consultation?

Consultation assists in undertaking a sound and transparent s32 evaluation. However, it can be difficult to determine what type and how extensive the consultation should be. The extent and type of consultation should be relative to the nature and scale of the issue and proposed changes to be implemented as well as the foreseeable level of public interest. Wide-ranging consultation does not necessarily equate to any less potential for any new provisions to be challenged. Any consultation should be meaningful and provide sufficient and clear information to interested parties, giving them a reasonable opportunity to state their views and provide feedback.

Using monitoring information in section 32 analysis

Monitoring existing activities that are subject to resource consents, and also state of the environment monitoring can be useful in determining resource management issues; they can also help in assessing the effectiveness of existing plan provisions. Sound monitoring can be a key mechanism in determining the need for future plan revisions. Inadequate monitoring and recording results can be detrimental to the entire process and could lead to the development of inappropriate methods for dealing with an issue. See the Monitoring and Reporting One-Stop-Shop for more information.

Risk of acting versus not acting

Assessing the risk of acting against not acting can be challenging. In some cases, the risk of implementing a method, even if the information is uncertain or insufficient, may outweigh the risk of not implementing a method. If the decision to introduce the method is appealed, the parties may undertake more extensive research.

Subsequent research may change the position of whether to implement a particular method. Changes at this late stage can create unnecessary delays and costs to all parties. Therefore, it is preferable that such information forms part of the initial evaluation.

It can be many years before a plan change becomes operative. In the meantime, one of the main risks of not acting on the basis of the information to hand is that the environment could be degraded. The risks of acting include:

the possibility that it is not effective and, in the long term, may not prevent the environment from being degraded
that it is inefficient (the cost of the method proves to outweighs the benefit).

The decision on whether to act on the basis of the information known at the time may at times be finely balanced. However, remember that the analysis of risk is just another means to consider costs and benefits and that there is very often uncertainty about the nature and scale of those costs and benefits.

Evaluation of private plan change assessments

As with resource consent auditing, the challenge in reviewing an s32 report for a private plan change is not to duplicate the assessment, but to identify errors or omissions in the analysis. The council should carefully consider the s32 report in the wider context of the existing plan provisions or other mechanisms that may sit outside the plan to achieve the resource management issue or objective.

Linkages between the LGA and the RMA

There is a challenge of how to link LGA and RMA obligations. Section 23 of RMA does not absolve a council of its obligations for compliance with other legislation, such as those contained in s76 of the LGA. These decision-making obligations are similar in nature to what is needed for a s32 report. To address this, councils should consider cross-referencing to the LGA considerations as a part of the s32 report, to reduce the risk of challenge to this aspect of a Council's decision-making.

The use of financial and development contributions and the relationship between the two Acts is another challenge for practitioners. Turvey Co Ltd v Rodney DC A195/03 illustrates that the link between a Council's financial management responsibilities under the LGA should be viewed in conjunction with the related enabling framework of the RMA. More specifically, this case refers to the promotion of financial and development contributions in relation to rural roading as directed to the purpose and principles of the RMA, which is linked to a Council's powers and duties under the local government legislation.

Acknowledgements and editorial comments

This guidance note has been prepared by Sarah Dawson, Carey Barnett and Andrew Purves from Boffa Miskell. It is based on guidance published in July 2000 by the Ministry for the Environment.

The note was subsequently updated by Tania Richmond from Richmond Planning Limited (2004) and by Incite (2005) to reflect the Resource Management Amendment Act 2005.

The note has been further updated by Bianca Hurrell and Richard Peterson of Harrison Grierson Consultants Ltd in July 2008. It was finalised by Gerard Willis of Enfocus Ltd, Gina Sweetman of Sweetman Planning Services Ltd and Matt Hickman from the Ministry for the Environment in December 2008.

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