Testing issues for RMA Plans

Why test issues?

Not all issues that come to a local authority’s attention need to be addressed through RMA plans, and not all issues will require a regulatory response. Regional and district plans are part of a much larger suite of tools that are available to address matters.

Incorporating issues into plans without first testing them can result in plans that are unnecessarily complex or lengthy, or that tend to over-regulate. This could add costs to the community and the council through the extra effort needed to research and write provisions for the plan, and additional consent applications subsequently needing to be lodged.

There is no need to list everything that appears to be an issue in a plan. Issues need to be tested to determine if it really is an issue, and whether it warrants inclusion in the plan. To do this a series of questions can be asked in relation to each potential issue.

Is there really an issue?

Before even thinking about resolving an issue there is a need to be clear that it does in fact exist. Questions that can assist in testing this include:

• What factual evidence supports that the issue exists and that it is causing or is likely to cause effects? For example are there:

• independent, credible, witnesses?
• observable evidence?
• technical reports relevant to the district or region that identify the issue?

• Are the effects generated positive or negative?

• if the effects are positive – do you want, or need, to manage it?
• are there side effects or consequential effects that need to be managed?

• If the issue has not yet occurred, is there a realistic chance of it occurring within the lifetime of the plan? In the case of issues or effects that are cumulative or may not manifest themselves for some years a supplementary question could be “would managing the issue now avoid or mitigate the effects in future?” To assist in answering this question consider:

• Are there relevant precedents that can be drawn on?
• What credible evidence exists, indicating the probability of the issue causing effects in the lifetime of the plan?
• What evidence is there to indicate that intervention through an RMA plan will be effective in avoiding or mitigating effects in the long term?

• Is the issue related to an opportunity? (for example a change to enhance amenity or biodiversity). If so:

• Does the council need to actively manage the opportunity of will it occur without council involvement?
• Will council involvement add value or improve the quality of the outcome?
• Is the opportunity best managed through an RMA plan or would some form of cooperation, action, or agreement outside the plan be more effective?

Symptom or cause?

Sometimes what is being presented as being an issue is the symptom rather than the issue itself. It is important not to take things at face value and look further into the circumstances around the issue:

• Why is there an issue?
• What events led to this becoming an issue?
• Are there matters beyond the immediate site or area that are contributing to the issue? If so, how did these matters come about?

Answering these questions helps to identify whether there is an issue and how to address it. Notably, reverse sensitivity situations often give rise to complaints that present the symptoms but not the real cause. For example repeated complaints regarding noise from farming operations may not be the result of increasingly noisy machinery, but the fact that recent residential development has introduced into an area more people sensitive to the noise of existing operations.

There are several techniques that can assist in revealing the underlying issue such as:

• ‘Five whys’: Start with what appears to be the issue, and ask why has it occurred (or why it would occur). Take the answer to your first question, and ask why did those circumstances in the answer you gave, occur? Repeat the exercise (usually up to five times) until you have a revealing answer or have found it impossible to answer ‘why’ again.
• ‘De Bono’s Hats’: Approach the issue from several angles in terms of the key parties. What might be motives for each party? What are they trying to promote or avoid? Whose motives conflict and why?
• Consultative processes (eg, focus groups). Triangulation in consultation (ie, actively seeking the views of parties on both sides of the issue, and independent observers) can assist the plan writer verifying the legitimacy (or otherwise) of an issue and possible causes.

How significant is the issue?

Once the real issue has been identified, the next step is gauge how significant the issue is. If the issue is insignificant, it may be an inefficient use of resources to deal with it through a regional or district plan.

At present there are no formal guidelines that objectively distinguish what issues are significant to a region or district. Consultation either through the RMA or LGA processes can assist in determining what is important to a community generally. However the community may not be aware of all issues that are significant, or may miss the significance of issues that do not receive media coverage or publicity.

Asking the following questions may assist practitioners in determining the significance of an issue:

• Does the issue specifically relate to any of the matters contained in sections 6–8 of the RMA?
• Does the issue threaten or undermine a heritage order or water conservation order?
• Is the issue derived from, or aligned to, a community outcome under s.91 of the Local Government Act; or will it impact on these outcomes to the extent they may be compromised? (Or does an opportunity exist to make significant progress in achieving them?)
• Has there been widespread public concern expressed in relation to the issue? (Have there been many, repeated, complaints or submissions in regard it, or just a few?)
• Is the resource or feature to which the issue relates an icon for the district or region?
• What is the nature of the resource that is being affected? (For example an issue could be significant if it affects a rare or endangered resource, or a resource that is highly valued by the community and which can not be replaced once gone.)
• Does the issue concern a resource or feature that plays a crucial role in enabling people in the region or district to provide for their social, economic and cultural wellbeing?
• Has the issue been identified in a technical report or other expert advice as being significant? (For example, has a report identified a particular area prone to major flooding?)
• What is the scale or level of risk of the effects associated with the activity (an issue affecting one pine tree is not likely to be as significant as one affecting many hectares of endangered forest?)
• What is the extent of the activity? (Think geographically or in terms of the number of people affected.)

In addition, regional councils may also consider whether the issue crosses one or more district boundaries (thereby indicating the need for a document such as the Regional Policy Statement to play a coordination role).

Whose issue is it?

Having identified that an issue exists and that it is of significance to require action, a logical next question in determining whether it should be included in an RMA plan is to check who has responsibility for the issue. A vast range of issues are dealt with by authorities or agencies other than councils. Examples of other agencies include:

• Civil Aviation Authority
• Department of Conservation
• Department of Labour
• Health Boards
• Land Transport New Zealand
• Maritime Safety Authority
• Ministry of Agriculture and Forestry
• Ministry of Economic Development
• Ministry of Fisheries
• Ministry of Health
• New Zealand Police
• Transit New Zealand
• Another tier of local government.

Questions that could help guide thinking in terms of deciding whose issue it is include:

• Is the issue within the functions given to the council under s.30 or s.31 of the RMA? (If not, then it should not be controlled through an RMA plan.)
• What other legislation may be the primary statute for managing the issue, and who is responsible for administering that legislation?
• Are the existing legislative provisions and authorities sufficient to manage the issue? (If not, then consider whether there is an overlap or gap and whether the RMA plan has a role in managing the overlap or gap.)

What ways are there to manage the issue?

Having established that the issue is one that needs to be managed, and is the responsibility of the council, the final question asks if there are other means available to the council, so that dealing with it through a RMA plan is not necessary. Such other means could include:

• annual plan projects (the funding allocated could advance or delay an infrastructure project, for example)
• reserve management plans or acquisition of land for reserves.
• covenants
• asset management plans
• financial incentives (such as rates relief)
• delegation of functions or transfer of powers (s.33 and s.34A)
• education programmes
• memoranda of understanding, or agreements
• engineering standards and Codes of Practice
• liquor licensing
• bylaws.

Note that the list above is not mutually exclusive: more than one means (including plan provisions) may be employed to deal with different aspects of the same issue.