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‘...Give effect to...’ a discussion

What the RMA says

The Resource Management Amendment Act 2005 changed the wording of section 67(3) (previously 67(2)) and s75(3) (previously 75(2)) so that the requirement that plans ‘not be inconsistent with’ national and regional policy statements is replaced with the more directive and proactive ‘must give effect to’.

Background

The requirement for plans to ‘give effect’ to regional policy statements is designed to give regional policy statements more influence over local policy. It is important that local policy reflects the priorities of the region and is proactive in helping support the integrated management of natural and physical resources of the whole region. Similarly, the requirement to give effect to national policy statements ensures a nationally consistent approach on relevant issues. ‘Not be inconsistent with’ was considered to be too neutral and meant that plans had potential to fail to address, or even could undermine, what the regional policy statement was trying to achieve.

The change to sections 67 and 75 essentially codifies case law (in particular the Court of Appeal decision in Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18, and Minister of Conservation v Otago Regional Council C71/2002) that essentially said district plans needed to give effect to (or implement) regional policy statements if those policy statements were framed in a directive way.

A possible meaning of ‘give effect to’

The Act does not provide any direct guidance as to meaning or requirements of what ‘give effect to’ is intended to mean and there is an absence of case law to test the exact meaning. However, the following discussion offers thoughts and suggestions based on reports and similar wording contained in law and case law.

The Local Government and Select Committee report back to Parliament at the time the Resource Management Amendment Bill 2005 was being considered, suggests a strong theme that plans should actively implement the regional policy statement (the policies, the methods, or both, as applicable). The words ‘give effect to’ are intended to convey this meaning.

Possible steps in determining if a plan that is being prepared ‘gives effect to’ a regional policy statement include: Check –

1. what parts of the national or regional policy statement have direct relevance to the plan (are there similarities in topics covered, issues, or objectives and policies that relate to the same area that is covered by the plan?)
2. whether the national or regional policy statement contains specific sections, formatting or wording that shows the objectives, policies, or methods, that must be given effect to through the plan being prepared.
3. to see if the national or regional policy statement expresses objectives and policies in a way that suggests that their implementation is mandatory (for instance using words like “shall” , “all councils must”)
4. if the plan being prepared reflects the mandatory provisions contained in the national or regional policy statement (through expressing the same or similar wording or intent in objectives, policies or both)
5. if the plan being prepared contains rules, or provides a recognisable framework for other methods that implement the objectives and policies of the regional policy statement.

Possible implications of ‘give effect to’

1. National and regional policy statements will need to contain clear wording which: either identifies which objectives, policies and methods are to be given effect to; or alternatively, those objectives and policies where it is not mandatory to give effect to (or discretion is allowed).
2. Provisions in the regional policy statement that are to be given effect to may need to be worded in a substantially more directive manner than in the first generation of regional policy statements. For example:

“District Plans will include provisions for the setting aside of esplanade reserves or esplanade strips for the purposes of protecting the water quality and biodiversity of the Wharemata River”.

3. Regional councils and territorial authorities will need to work more closely in the development of the regional policy statement to ensure there is a degree of understanding and agreement as to what RPS objectives, policies or methods the territorial authority plans are to give effect to and how. The process and mechanism to enable this is set out in clause 3A, Schedule 1 of the RMA. The same can be said of involvement in the preparation of national policy statements.
4. Those preparing and writing plans will need to carefully check and be prepared to incorporate issues, and possibly objectives and policies from the national or regional policy statement into their plans.
5. Section 32 reports will need to identify whether or not parts of the national regional policy statement relevant to the plan have been given effect to in the plan and how. Where parts of the national or regional policy statement that are relevant to the plan are not given effect to, the section 32 report may need to set out the reasons why not.

Case law for consideration

Blair v Auckland City Council [1993] A067/93

Policies and objectives do not have legislative effect unless implemented by ordinances or rules, and only rules are enforceable under the RMA.