Submissions on a plan

Abstract

A proposed plan may receive as many as thousands of submissions (including further submissions), addressing numerous issues and parts of a proposed plan. The management of submissions is a critical part of the proposed plan preparation process - good practice can facilitate the decision-making process, as well as making it easier for everyone involved.

Guidance note

Making submissions on a proposed plan or policy statement
Making further submissions on a proposed plan or policy statement
Receiving submissions
Quality control
Accessible database
Analysing submissions
Resolution of disputes
Reporting to decision-makers
Hearing submitters
Other tips

Making submissions on a proposed plan or policy statement

When a council has prepared a proposed policy statement, plan, plan change or variation, it must be publicly notified under clause 5 of Schedule 1. Councils must provide the public with at least 40 working days to submit on a proposed policy statement or plan, and at least 20 working days to submit on a proposed change or variation.
Anyone can make a submission provided that submission does not seek to gain an advantage in trade competition. Where a person is a trade competitor their right to make a submission is limited to where they are directly affected by an effect of a proposed policy statement or plan that;

adversely effects the environment; and
does not relate to trade competition or the effects of trade competition (see clause 6 of Schedule 1).

Clauses 6-8A of Schedule 1 provide further details on the processes and requirements for making submissions.

Making further submissions on a proposed plan or policy statement

Once the initial submission period has closed, the council must summarise and publicly notify the decisions requested by submitters. Following the notification of the summary of submissions, there is an opportunity to make further submissions. The further submission period is no longer than 10 working days from the date the summary of submissions was notified.
When notifying the summary of decisions requested on submissions, a council only has to serve a copy of the public notice on submitters (and requiring authorities), rather than the summary itself. However, if a submitter requests the summary, a council must provide it within three working days.
A further submission is limited to a matter in support of, or opposition to, an original submission. Under clause 8 of Schedule 1, further submissions can only be made by:

persons who are representing a relevant aspect of the public interest
persons who have an interest in the proposed policy statement or plan that is greater than the interest the general public has
the council itself.

The same trade competition limits that apply to submissions also apply to further submissions.

See clauses 8-8A of Schedule 1 for further details on the processes and requirements for making further submissions.

Receiving submissions

The system for receiving, processing and evaluating electronic and paper submissions should be set up well in advance of receiving the first submission. The system should be designed with the end in view - ie, it should facilitate the decision-making process. Ideally, therefore, there should be a strong relationship between the structure of the proposed plan and that used in processing submissions. A well-numbered and structured proposed plan greatly assists in the referencing process - for example, Far North and Rodney District Plans (refer to the Policy framework guidance note).
The system should also be able to deal with potential problems, such as submissions arriving at different places (service centres, libraries etc). One way of dealing with this is to ensure each service centre or library date stamps or records the date the submission arrived and have them forward submissions received to a central point (such as council records, or the planner overseeing the plan) at the end of each day.
Implement a good referencing system: number submissions, code submission points, and file them correctly. Note: the submission referencing system will need to be considered from the outset - however, coding of submission points should occur after all submissions have been received, when the structure of the issues' analysis is able to be confirmed.
It is often helpful to use distinct codes to differentiate between submissions and further submissions to avoid confusion (such as when a submitter had also lodged a further submission that cross refences their original submission).
The submission process can be improved if people are given some guidance in writing them - for example, if there is a logical structure to the submission, and if the relief sought is quite specific and clearly differentiated from dicussion points or reasons. The process is hindered by submissions that are difficult to read, express the relief sought in very general or unclear terms (or do not specify any at all), seek relief outside the ambit of the RMA, or the relief sought is not able to be easily identified within a vast rambling text.
There is varying practice about dealing with late submissions. It is good practice to waive the time limit for submissions received only a day or two out of time. Accepting submissions beyond that period will depend upon whether such waivers would unduly prejudice anyone (see s.37) - the principles of participation must be balanced with the principles of natural justice.
It is good practice to ensure that all submitters have provided full and current contact details, and to follow up as early as possible if there are gaps - standardised submission forms should also give explicit direction to provide full details.
Submissions may be in written or electronic form. When submissions on proposed plans and policy statements are lodged electronically, they do not require a signature. Ideally systems should be designed so that an electronic submission lodged through a submission form on a council website goes directly into the appropriate database. Receiving submissions electronically can have time-saving benefits for RMA practitioners such as:
- automatic date stamping and the ability to receive submissions at any time without staff necessarily having to be on duty at that time
- being able to cut and paste when summarising submissions;
- mandatory fields on the submission forms would ensure that all boxes are filled in
- less copying and sending out of paper submission forms
- easier entry of submission points into a database
- never losing submissions in the mail.

Quality control

Set up a quality control system to check that submissions have been coded, copied, acknowledged and filed. Use at least a simple quality assurance checklist - for example, the New Plymouth District Council set up a very simple checklist for managing submissions.
While preferably one person should manage the submission handling process (to provide an overview of quality control and consistency), there should be a strong formalised audit procedure in place so the departure of that person does not jeopardize the entire process.
In processing submissions, quality is always better than speed.

Accessible database

Using computer software, local authorities can now index and code submissions. They can also use databases for correspondence, submission analysis and report preparation, and decision-making. Many local authorities have successfully developed and used databases using Microsoft Access© software throughout the entire process (from notification through to Environment Court references). However, a database is only as good as:

the analysis, coding and data entry of submissions;
the software support; and
the people using it.

The tracking and analysis process should be kept relatively simple (for example, analyse submissions according to all of the rules say on waahi tapu or setback requirements, not according to each individual rule that may apply throughout a Plan to waahi tapu or setback requirements). Tracking submissions according to Plan page numbers is also a good technique.
Using a computer database requires the assistance of a technical support person throughout the process. Technical support staff should understand the present and future requirements for the database; be able to think laterally; and be involved in defining the coding process. For example, the system should be able to deal with changes in addresses for service, names of contacts, or submitters' names (such as company name changes), preferably avoiding the need for multiple data entry. A method for tracking submissions that have been withdrawn or not pursued needs to be considered.
Database users - planners and administration support - should be familiar with the database, rather than learning by experience. Prepare a manual to support use of the database over time by different people, and to ensure consistency in input and output over time.

Analysing submissions

How submissions are analysed is generally linked to the scheduling of hearings for submissions (ie, how and when submissions are heard). Therefore, it is useful to establish the schedule (and the logic behind the schedule) at an early stage as part of determining how submissions are to be analysed.
There are two approaches to analysing submissions:

By submission: where each submission is analysed and decided on as a whole, no matter how wide the range of issues and provisions it covers. This approach is more submitter-friendly, allowing submitters to present their case only once before the hearing committee. This approach may be appropriate when there are small numbers of submissions involved.
By issue: where submissions are broken up and analysed according to the issues/provisions they address. This is the more common approach, and is usually best practice, as it provides a more logical evaluative approach and consistency in analysis and decision-making.

The by-issue approach can result in the 'disintegration of submissions '. This is where the break-up of submissions for analysis, hearing and decision-making purposes creates a complex and potentially inconsistent process. Methods to overcome the problems that this approach creates for submitters include the following:

Group the issues sensibly and logically (this links back to the original coding of submissions).
Ensure that submitters have been assigned time to speak to all points raised in their submissions - it can be easy to miss points;
Index all reports/decisions, so submitters can readily find all references to their submission - see for example, New Plymouth District Council, Nelson City Council;
Use pre-hearing techniques to resolve concerns before hearings, and allow submitters to focus on areas of unresolved dispute (for example, submitters may send in statements in response to reports).
Work with the submitters, to ensure that they are all assigned a reasonable amount of time to speak to their submission (and record accurately in the database when they were heard).
Be flexible and not captured by the process; if appropriate, allow submitters to cover their entire submission at once, especially if they have travelled far and/or do not need much time: for example, Hurunui District Council provided submitters with this flexibility, as many local people had to travel some distance to get to the hearings. (Note that some submitters may be happy to come back and speak several times, as they may think multiple appearances would be better received). However, it is important that the hearing process is managed well; this may include issuing clear directions about appearances and time limits.

When preparing reports on submissions, balance specificity with practicality. Council's decisions do not have to address each submission individually (clause 10 of Schedule 1). Analyse submissions according to themes or issues, so overlaps and interrelationships are managed as a whole. Cover generic issues at one time, and refer back to the generic analysis as required when analysing individual submissions. When reporting on specific submissions, include enough analysis to make the reasoning logical and transparent, even on relatively minor or seemingly trivial points. However, avoid 'overloading ' reports and thereby submitters and decision-makers as well.
KISS: 'keep it simple stupid ' is a critical principle in analysing submissions. Don 't break down the analysis process too much but keep it at the highest level possible. For example, it is preferable that submissions on the rules on heritage should be analysed together, and not according to each specific rule on heritage.
Use peer review for quality control in analysing submissions, to ensure consistency and thoroughness in evaluation.
Submission evaluation and report preparation is a real skill. Experience is valuable, as are training courses in report writing. Someone skilled in good report writing should manage the process. For example, such a person could set up templates for reports and have a role in quality control.
Some local authorities send out draft reports, particularly to major submitters and/or on complex submissions/ issues. These may help resolve technical matters, raise consequential matters that were not thought of, or obtain buy-in for methods for resolving concerns. Pre-hearing meetings can also assist in this process, as can direct enquiries with submitters or their advisors. However, care must be taken that such approaches are not used as opportunities for submitters or council staff to change the original submissions.

Resolution of disputes - pre hearing meetings

Clause 8AA of Schedule 1 sets out the pre-hearing process that can be used by a local authority to clarify or resolve disputes or matters that arise out of submissions on a proposed policy statement or plan. This may be undertaken on request from a submitter or be initiated by the Council. Councils can also, with the consent of the parties, refer issues (that were raised by submitters) to mediation. Attendance is not compulsory, although if a pre-hearing meeting is held, a report must be prepared before the hearing. The mediations must be conducted by an independent mediator. See Alternative dispute resolution for further information.

Reporting to decision-makers

It is good practice to have submissions analysed by resource management professionals, with the results prepared as reports with recommendations for decision-makers. Very few local authorities have left it to decision-makers to hear and consider all submissions in the absence of reports. This approach may work where the decision-makers have been fully immersed in the issues and the proposed policies. However, there are good reasons to have submissions evaluated before hearings:

valuative reports can form a crucial role in meeting s32 requirements
such reports can sort out many minor issues before a hearing, and help submitters to know which issues to focus on
reports can address any technical matters that might be raised by submitters before a hearing (for example, traffic or noise management) reports assist decision-makers in evaluating issues
reports can form the basis for preparing decisions
reports provide a background for matters that go to the Environment Court, especially if there are staff changes.

Any s42A report must be provided to submitters wishing to be heard at least five working days before the hearing. The council must also notify submitters who did not wish to be heard, of the report, and where it can be viewed. However, getting reports out earlier is good practice, although time and resource constraints may make it difficult to do so. For cost-efficiency, most local authorities have reports issued at the time the notices of hearing are sent out to submitters. For example, Hutt City issued reports to submitters six weeks before the hearings began. Even getting reports out two weeks before a hearing will help ensure sufficient time to sort out the hearing schedule, after submitters determine if they still wish to be heard.

Hearing submitters

All aspects of the hearing process need to be planned carefully, and well in advance: scheduling, venues, timeframes, responsibilities, recording, reporting, and resourcing.
The appropriate use of independent commissioners should be identified at an early stage - for example in matters of perceived conflicts of interest, such as council designations. However, the delegation of decision-making powers in relation to plans is subject to the restrictions under s34 of the RMA. See the guidance note Use of commissioners for further information.
Sections 41A-41C of the RMA clarifies the powers for decision-makers when conducting hearings. These powers can be exercised if the scale and significance of the hearing makes the exercise of the power appropriate. These powers include directing submitters and applicants to provide their evidence within time limits (at least 5 working days before a hearing for a submitter; at least 10 working days for an applicant).
Section 41C provides the decision-making authority with powers to give directions and make requests before or at hearings. Directions can be given regarding the order of business and how evidence is presented. The authority can also direct the applicant or a submitter to present evidence within certain timeframes and submissions can be struck out. Further information can be provided via a commissioned report.
The hearing forum can be unfriendly and intimidating for submitters, many of whom may be unfamiliar with the process. Make it as least intimidating as possible, for instance by:
- providing a level 'roundtable' environment;
- providing refreshments;
- having someone meet and greet submitters, a friendly face who can answer questions and provide direction on the process; and
- sending submitters leaflets prior to the hearing, outlining the process.
Everyone with responsibilities in hearings should have a clear understanding of their role - Councillors, Commissioners, planners, other reporting officers, and committee clerks. The Chairpersons should outline the procedures and process before each hearing: for example, role of reporting officers versus decision-makers.
As with all hearings, decision-makers must be, and must be seen to be, impartial. For example, to avoid perceptions of, or opportunities for, informal persuasion or influence, decision-makers usually need to be kept separate from submitters during hearings (for example, during morning tea). Separation between Hearing Panels and reporting officers is also preferable. The level of separation, however, will need to be judged on a case-by-case basis.
Organising hearings is a time consuming process. For large numbers of submissions, it is preferable to organise hearings in stages. Confirm the schedule close to the date, so submitters can finalise their attendance and indicate how much time they require. Phone submitters just prior to the hearing, either to ensure attendance or to reschedule as required. Also identify available resources to help them present their submission. Have someone available to contact submitters during hearings, if need be. Tip: Have submitters' contact numbers at the hearing to facilitate follow-up if there are delays in the hearing.
For the hearing programme, group submitters with short time requirements in 'blocks' rather than individually, so if a submitter does not turn up, the committee can hear the next one immediately and not have to wait 20 minutes.
Keeping records of hearings is an important part of section 32 obligations. Section 41C(b)(i) allows the authorities to direct that evidence and submissions be recorded. Some local authorities tape all hearings, but only transcribe tapes if needed. Best practice is to ensure that a record is kept of the written submissions and that a written record of any associated verbal dialogue is prepared - for example, interpolation of submissions and responses to questions.

Other tips

All submissions should be coded and copied/scanned, with the originals archived somewhere safe. Only mark up copies.
Mark up submissions as to how each point has been coded - i.e., part of submission, coded according to reference number (for example, 70/23 - submission number 70, point 23 (only identify points that need a separate decision)). Have these available for submitters to see if necessary.
Planners need to work closely with committee organisers throughout the process, and should be closely involved with setting up the system of hearing and making decisions. The committee organiser needs the right qualities for the position, including the patience of a saint, and the mind of an accountant.
Ensure council staff do not assist people in preparing submissions (which can later create difficulties for the council). Their assistance should be confined to providing verbal advice about the provisions of the proposed plan/proposed plan change. Refer people to resource management professionals if they are unable to write their own submission.
Encourage submitters to advise changes of address or other contact details.
Send courtesy letters on receipt of submissions, and also advising on progress and timeframes.

Best practice examples

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

Submissions on a plan - Christchurch City Council

Christchurch City Council has developed its Access database for managing submissions on its District Plan through the entire process, including to track progress on resolving references.

Contact Anita Hansbury, City Plan, Christchurch City Council, (03) 371-1631, or Anita.Hansbury@ccc.govt.nz

RMA provisions

Provisions of the RMA relevant to making submissions include:

Section 41 - 41C, Provisions relating to hearings
Section 42A, Reports to local authorities
First Schedule, Part 1, Clauses 6, 8-11.

Case law

In terms of the scope of decisions on submissions, refer to the Making decisions on a plan guidance note

Related guidance notes

The following guidance notes are related:

Relevant publications

Scope of Submissions
Author: Christina Robertson and Sarah Rutherford [New Zealand Planning Institute]
Date: 2003/06
Journal: Planning Quarterly
This article discusses the Auckland City Council's approach to dealing with submissions on a Proposed Plan Change that seeks relief outside the scope of the Plan Change.

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.

Making the Process Transparent (PDF 111 KB)
Published by New Zealand Planning Institute - September 2000
Following a letter from the Parliamentary Commissioner for the Environment expressing concern about consultation safeguards, the Ministry for the Environment commissioned a report to investigate weaknesses in the plan making process. This paper describes the resulting report which addresses in particular problems associated with significant changes undertaken in response to submissions without appropriate further consultation.

Proposed Plan Submission Analysis
Published by Ministry for the Environment - May 2000
This report aims to assess the perceived weaknesses of the district and regional plan process when analysing submissions with significant environmental effects. It also aims to provide guidance as to how local authorities should manage submissions giving consideration to initiating a variation or plan change under the Resource Management Act.

Making a Submission on a Proposed Plan, Plan Change or Variation
Published by Ministry for the Environment - November 2009
A guide about how to make good written submissions to your local council about a proposed plan, plan change or variation.

Participation for Whom? (PDF 206 KB)
Published by New Zealand Planning Institute - September 1997
This paper presents research undertaken to assess the barriers to participation in the preparation of regional policy statements. The paper suggests that while the RMA removes legal barriers, effective participation still requires money, time and expertise.

Current challenges in practice

Databases

Local authorities around New Zealand have created a variety of databases to manage submissions. A few have 'borrowed' and adapted databases from other councils. During the second generation of plans, it will be a challenge for councils to retain and build on the knowledge developed when using the databases, rather than creating new systems.

Logistics

The logistics of organising the hearing of submitters is an ongoing challenge for local authorities - for example, timetabling submitters, determining how much time is required, and following up submitters. When the scale of hearings is enormous (for example, hearing 4500 submissions), such logistics can be a colossal task. There is no easy solution, as the approach will depend on the circumstances of each local authority. Some councils employ the dual hearings panel approach: two committees dedicated to hearing submissions on a Plan, plus some commissioners. Ensuring consistency between decisions is an ongoing challenge under such an approach.

Further submissions

New plans can have major impacts on people's lives, particular in terms of property development. A continuing challenge for practitioners is the problems that occur when submissions seek major changes to a proposed plan that can impact on many people (for example, a request for a rezoning). Notifying for further submissions is unlikely to inform everyone affected by such significant changes to the plan, and there is no requirement to notify 'affected' persons (for example, properties surrounding the land that a submitter wants re-zoned).

'Disintegration of submissions'

A particular challenge for proposed plans attracting a large number of submissions is what has been called the 'disintegration of submissions' syndrome. This occurs where submissions are analysed, heard and decided upon in parts, as they may cover different issues, different Plan provisions or different areas. The problem is compounded where there are relationships between different parts to a submission (for example, relating to noise control), or where decisions on submissions are made separately over time. Reducing the timeframes for hearing and deciding on submissions can reduce the likelihood of this phenomenon. However, this raises logistical and other issues.

Acknowledgements and editorial comments

This guidance note was prepared by Robert Schofield from Boffa Miskell Limited in February 2003, and updated in March 2006 by Incite. It was further updated to reflect the RMAA 2009, by Kirsty Austin of Corydon Consultants in December 2009.

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