Designations in proposed district plans
Abstract
Reviewing designations in a District Plan is a necessary part of an overall plan review. The First Schedule of the RMA sets out a process for councils to review existing designations, and to recommend or decide which existing or new designations should be included in the proposed plan, and whether conditions are appropriate. This Guidance Note is aimed at local authorities that are preparing a proposed district plan, and following the procedures to include notices of requirement at that time.
A requiring authority must lodge a notice of requirement for each designation it wants included in the proposed plan. Including these notices of requirement in the proposed plan is often treated as an 'add-on' activity within councils, and the process loses significance amidst the pressures of plan review and notification. In some cases, this results in procedural errors that can require lengthy corrective processes.
Proper planning and adequate timeframes can help councils avoid the problems of:
Guidance note
Context
A designation in a District Plan identifies an area of land for use for public works or projects. These works and projects often involve large-scale activities that will have more than minor environmental effects, and may be contrary to the objectives and policies of the District Plan.
A District Plan can contain three types of designation: new designations, rollover designations, and modified designations. A rollover designation is an existing designation that is carried over into a proposed plan without changes. A modified designation is an existing designation that is carried over into a proposed plan with some changes. There are slightly different processes to be followed for each type of designation.
A requiring authority - a Minister of the Crown, an approved network utility operator, or a council - must lodge a notice of requirement for a rollover, modified, or new designation within a timeframe set down by the territorial authority. A notice of requirement is essentially an application for a designation, and is included in the proposed District Plan at notification.
A designation has two main purposes, as set out in section 176 of the RMA.
Firstly, a designation gives the requiring authority rights to undertake activities on land it has designated. These rights essentially give primacy to the designation over the district plan, or proposed district plan, meaning that for works within the scope of the designation, the requiring authority does not need to get resource consents.
Secondly, a designation 'protects' the designated land, in favour of the requiring authority. Any person who wishes to do anything on designated land, that may prevent or hinder the designated work, must first get written consent from the requiring authority. The inclusion of designations into the district plan further 'protects' the designated land, as it is a form of explicit public notification of the requiring authority's interest in the land.
Plan early for including notices of requirement
Including notices of requirement in proposed plans is no more complex than any other process under the RMA. However, early and thorough planning is necessary, to avoid an overload of work and an increased chance of procedural errors. Don't underestimate the time required.
Establish timeframes and responsibilities
Establish mapping and scheduling requirements
Designations in a proposed plan are usually included in a schedule, with the designated area shown on the planning maps. Clear formatting and layout is essential to aid understanding by the public, and to ensure that the council meets its obligations under the First Schedule. See Best Practice for examples of good mapping and scheduling practice.
Although not specifically required by the RMA, a schedule of designations should include the following information in respect of each designation as a minimum:
To improve understanding by the public and for ease of plan administration, councils should consider adding to the schedule of designations:
Designation maps must be very precise. Requiring authorities ought to be encouraged to provide adequate and compatible mapping. This will prevent mapping errors and save problems that can be created by inadequate or incompatible electronic and hard copies. Councils should utilise a combination of education, early warnings, and relationship building to get good quality mapping from requiring authorities.
Calling for notices of requirement
The minimum timeframes set out in the RMA for calling for notices of requirement do not provide a realistic timeframe to achieve quality results. They don't give the requiring authorities sufficient time to prepare an adequate notice of requirement, and they can result in the council dealing with a flood of notices of requirement at the last minute.
The minimum timeframes in the RMA are as follows:
Councils should:
Identify the relevant requiring authorities and designations
Clause 4(1) of the First Schedule requires councils to give written notice to all requiring authorities with a designation in the operative plan that has not lapsed.
Some existing designations may have lapsed. The council cannot call for a notice of requirement for the rollover or modification of a lapsed designation.
Working with the council as a requiring authority
The council itself will often lodge a large number of the notices of requirement. A great many difficulties can be caused through the sheer number of notices received from within council. These difficulties can include inter-departmental friction, and natural justice concerns about council making decisions on its own notices of requirement.
The best approach is to treat council departments like any other requiring authority, and to expect and deliver the same standards of communication and cooperation. Councils need to ensure that the distinction between council as a designator and council as decision maker is clear to all parties. See Best Practice for discussion and examples.
Assess the need for council designations
The period of plan review can be a good time to assess the council's need to use designations to protect its assets. The key issue is to determine the appropriate balance between council's rights as a requiring authority, and the potential impact of designations on the community.
Following such an assessment, Wellington City Council reduced the number of council designations, especially for longer-term projects such as road widening. Waimakariri District Council now has no council designations.
- Take the opportunity to assess the justification and appropriateness of council designations.
- Consider protecting council assets through District Plan rules if this assessment results in fewer designations. However, this option is not without its own issues.
Assessing notices of requirement
Notices of requirement received at the time of plan review tend to get a lower standard of review and assessment than notices received at other times. This is purely because of the flood of notices received during plan review.
Receiving adequate information from the requiring authority is necessary for robust review and assessment. The public needs good information on which to base submissions, and the council or commissioner needs good information on which to base a recommendation.
Notifying the proposed plan
Until this point, including notices of requirement should have run as a separate process to the overall plan review. The two processes integrate when the notices of requirement are put into the proposed plan for public notification.
Councils must also individually notify landowners and occupiers that are 'directly affected' by the designation. Some councils have mistakenly omitted this step altogether, creating delays and frustration, and possibly jeopardising the proposed District Plan process.
The term 'directly affected' is used for notification of resource consents as well as notices of requirement. It implies more than just those persons who own or occupy the land underlying the designated area.
However, the meaning of 'directly affected' has not been formally defined, and councils have taken a different approach to who should be individually notified. Some councils have notified all adjoining landowners and occupiers, while some have only notified adjoining landowners and occupiers for modified or new designations. An assessment of the level of effects of each designation may be required, particularly for new designations. The Ministry for the Environment / Local Government NZ Template for Quality Processing of Resource Consents, contains a section 'To notify or not to notify? - That is the question!' that provides useful assistance.
Use a broad approach to who is 'directly affected,' and individually notify all 'directly affected' landowners and occupiers.
Making recommendations and decisions
At this stage, there is an important difference in process between the notices of requirement received from council itself, and the notices of requirement received from other requiring authorities. In simple terms, after receiving submissions and holding a hearing, the council makes a decision on each notice of requirement that the council itself has lodged. However, the council makes a recommendation on each notice of requirement that other requiring authorities have lodged, and the requiring authority itself then makes the decision.
Define the council's role in a hearing on notices of requirement lodged by other requiring authorities. Some councils treat these hearings in the same way as any hearing on the proposed plan. Others take a lesser role, with abbreviated reporting and a 'back seat' at the hearing.
Skip the recommendation or decision in specific cases
Clause 9 of the First Schedule allows councils to skip the recommendation or decision step when:
This abbreviated process is optional, and several councils have chosen not to make a recommendation or decision in these circumstances. The requiring authority needs to be advised that the council has adopted this abbreviated process for specific notices of requirement.
Inform the requiring authority when the council decides not to make a recommendation or decision.
Recommend conditions if appropriate
The council can also make recommendations about conditions on a designation. While designation conditions are often a little different to resource consent conditions (the outline plan process can be relevant to the detail required in conditions), useful general guidance about conditions is available in the Ministry for the Environment's Guide 'Effective and Enforceable Consent Conditions.'
If possible, list conditions in the schedule of designations, and format the schedule for maximum usability. See Best Practice for examples.
Many councils choose not to recommend conditions. However, there have been a few examples where councils have sought to impose conditions such as bulk and location' rules to protect neighbour's amenity. For example, several designations in Dunedin City have conditions that help define when an outline plan under s176A of the RMA will be waived (for example, minor additions to many existing structures don't require outline plans). This type of condition can aid plan administration over subsequent years.
Notifying and referring the recommendation and decision
For council's own notices of requirement, the council issues decisions.
For other requiring authorities, the council issues a recommendation, the requiring authority notifies the council of its decision, and the council issues the requiring authority's decision.
Develop a timeline for notification of decisions on all designations that makes allowance for the time lapse while the requiring authority makes its decision. Notify the requiring authority of the council's recommendation as soon as practicable so that the requiring authority decisions and the council decisions can be issued at the same time if possible.
The council must inform all submitters and directly affected landowners and occupiers about a council's or other requiring authority's decision.
The following parties have the right to refer a decision (of either the council as a requiring authority, or another requiring authority) to the Environment Court:
References to the Environment Court tend to happen over a fragmented period of time, because of the different timing of decisions made on the plan as a whole and decisions made on notices of requirement. Requiring authorities may also issue decisions to the council at different times.
Including the designations in the plan
After the council has made decisions on the plan as a whole, the proposed plan is typically updated and reprinted. Although the First Schedule specifies that decisions must be received from requiring authorities within 30 working days, most councils have experienced significant delays.
The timing of the requiring authority decision-making process often creates difficulties. Therefore, it is generally impossible to include all the decisions on designations at the time of reprinting the plan. Further rounds of updating the plan may be required, as decisions on requirements are received from requiring authorities
Best practice examples
The following examples illustrate best practice in particular aspects of plan preparation, as described in the guidance note.
Waimakariri District Council appointed an independent commissioner to hear all notices of requirement, even though there were no council notices of requirement. The Council recognised that an experienced and independent commissioner may provide a more efficient process, as councillors did not have to up-skill in this technical area.
Designations - Providing clear mapping and scheduling [Reveal/Hide]
The Wellington City Plan, the Porirua City Plan, the proposed New Plymouth District Plan, and the Dunedin City Plan all have an excellent schedule of designations.
The Wellington City Plan has a well-formatted and easy-to-understand schedule of designations. The full text of the designated purpose is included, along with all other relevant site information. Appendices to the schedule contain designations with a number of conditions, with a cross-reference in the schedule.
The Porirua City Plan has divided the schedule up by reference to the different requiring authorities, and has included information about the basis for the requiring approval, for example:
Requiring Authority: New Zealand Police - The Minister of Police is a requiring authority under Section 166 of the Resource Management Act 1991.
Requiring Authority: Trans Power New Zealand Ltd - Trans Power New Zealand Limited was granted requiring authority status by the Minister for the Environment under the Resource Management Act 1991 on 29 July 1993.
The proposed New Plymouth District Plan has a comprehensive schedule, listing a reference number, the requiring authority name, designation name, location, legal description, designated purpose, whether it is a new, modified or rolled over designation, the underlying zoning, and a planning map reference.
The proposed Dunedin City Plan also has an excellent schedule of designations. Most designations in Dunedin City have conditions of some type. The schedule notes whether this is the case, and states that the conditions may be inspected at the council offices. Dunedin City also has clearly depicted designations on the planning maps, and has separate maps for the Dunedin Airport designation, including a 3D representation of the approach slopes.
Many of these plans are available for inspection on the internet, through the relevant council websites. Sites include include www.pcc.govt.nz, www.wcc.govt.nz, and www.newplymouthnz.com.
Designations - Working with other council departments [Reveal/Hide]
Wellington City Council and Waimakariri District Council held meetings early in the plan preparation process, at senior management level, with council departments that held designations.
Wellington City planners sought clear justification for any designations to be included in the proposed plan, including Annual Plan budgeting for land purchase or physical works. The Council took the view that council departments should abide by the same rules as any other person, and the number of council designations was reduced.
The Waimakariri District Council's planning department also engaged a planning consultant to provide independent advice to other council departments.
This early planning and working together ensured a standard of rigour and justification that represents best practice for any council acting as a requiring authority.
RMA provisions
Clauses 4-9, 11, 13-16 of the First Schedule and sections 168-172 of Part VIII
Case law
No case law has yet been developed that is especially relevant to the First Schedule process. However, there is a significant quantity of case law that is relevant to new designations, parts of which will be applicable to all designation processes. These cases include:
Estate of PA Moran v Transit NZ W55/99 and Quay Property Management Ltd v Transit NZ EnvC W28/2000 provide important clarification about the required content of a notice of requirement, and its importance as the 'building block' on which the remainder of the process is based.
Bungalo Holdings Ltd v North Shore CC A052/01 and Beadle v Minister of Corrections A074/2002 clearly set out the matters that councils must have regard to in making a recommendation (or decision in the case of council's own notices of requirement)
See Waimairi CC v Hogan [1978] 2 NZLR 587, Olsen v Minister of Social Welfare W32/95, and Ngataringa Bay 2000 Inc v Minister of Defence (3) (1992) 2 NZRMA 318 for clarification on the required level of precision and certainty for the 'designated purpose'
Related guidance notes
The following guidance notes are related:
Relevant publications
Keeping it fair: a guide to the conduct of hearings under the Resource Management Act 1991
Published by Ministry for the Environment - July 2001
Outlines various issues associated with hearings and discusses order of proceedings, speaking rights and techniques for asking questions and listening to answers.
Current challenges in practice
Differing views about the role of designations
The traditional view of designations is that they are an essential mechanism to ensure the operation of infrastructure assets and networks. The alternative view is that designations are an historical quirk, with no place in modern resource management practice.
The legislative framework for designations has moved from the Town and Country Planning Act 1953, through the 1977 Act, and then to the RMA Act 1991 and later amendments. The current framework gives most of the decision-making power to requiring authorities. Some councils consider that the risks of requiring authorities having decision-making power outweigh the potential benefits.
Some councils prefer a rules-based approach over designations, and impose upon requiring authorities a high standard of justification for designations. They particularly require justification about why the rules of the plan don't provide an adequate framework. However, this rules-based approach fulfils only one part of the purpose of a designation. It does not protect land for the requiring authority, and it does not give ultimate decision-making and management power to the requiring authority. Many requiring authorities are unwilling to give up these statutory rights, and, at the end of the day, a council is obliged to include designations. This philosophical debate may have particular application to decisions on the council's own designations.
Rectifying procedural errors
Procedural errors can occur through inaccurate notification of the notices of requirement, omitting notification to 'directly affected' people, errors in mapping and scheduling, omitting notifying relevant requiring authorities before the proposed plan is notified, or a combination of all of these.
Recovery from procedural errors must focus on:
Most recovery strategies will involve repeating some part of the procedure. Early and regular communication with the requiring authority is essential. Good legal advice and consultation with other planners will clarify whether the error has happened before, and what the options are for correcting it.
As this note has stressed, it is far more efficient to plan well, use the right people and resources, and get it right the first time.
Differing views within council
Council departments often have differing views on how the District Plan should provide for council activities. These differing views can become very apparent when council notices of requirement are lodged. Council officers need to clearly distinguish between the council as a requiring authority and the council as the recommender or decision-maker on designations.
Decisions need to be made at a senior management level early in the process. Council notices of requirement should also be prepared by the relevant department or by an outside contractor, rather than be prepared by the planning department.
Using commissioners
Using commissioners - understandably, questions of natural justice can arise when a council is making a decision on its own notice of requirement. The Ministry for the Environment's publication 'Keeping it Fair: Conducting Hearings Under the Resource Management Act 1991' states that the commissioner must be perceived as independent by all parties.
The guide states: 'Perceptions can be as important as reality both in the selection of an impartial hearing panel and in the process used. The applicant and submitters should feel confident that the case is being heard without any predetermination or bias, for this is critical for confidence in the outcome and can do much to deter appeals. Councils should avoid any appointment that might give rise, either before or after the hearing, to any perception of bias.'
Changes to designations after notification
Many requiring authorities regularly alter their designations. State highway realignments and alterations, for example, regularly create the need for Transit New Zealand to alter its designations. An alteration can either be processed through a new notice of requirement, or through a 'non-notification' procedure under s181 if specific criteria are met.
Difficulties can arise when an existing designation is altered after notification of a rollover designation in a proposed plan. A proposed plan usually becomes operative eight to ten years after it has been notified, and alterations to an existing designation mean that the final designation isn't the same as the one in the proposed plan.
If the right procedures have been followed to alter the designation, this isn't a legal issue. It does, however, mean that there is a conflict between the transitional and the proposed plans.
Currently, there is no process under Part VIII or the First Schedule to alter the notice of requirement, as shown in the proposed plan, to ensure it corresponds to the transitional plan designation. This is proposed to be changed in the Resource Management Amendment Act 2003, but may leave some historical difficulties.
Acknowledgements and editorial comments
This guidance note was prepared by Matthew McCallum-Clark of Incite.
This guidance note was prepared in July 2003.
