This note has been updated for 2017 and 2020 legislative amendments but are not updated for best practice.
Making decisions on proposed plans (including plan changes) entails making complex assessments and applying statutory and policy evaluations against a background of competing requests, variable information/evidence, time and resource pressures, and issue 'overload.' It is important to engage decision-makers in what can be a technocratic, politicised, time-consuming and lengthy process.Decisions on plans need to be consistent with a range of higher order instruments, such as the first set of national planning standards (planning standards) which came into effect on 3 May 2019. The planning standards are relevant to the scope of decision-making powers on policy statements and plans. Under section 58I of the RMA, when amendments to policy statements and plans that are:
- Required by a mandatory direction within a planning standard they must be made without using a RMA Schedule 1 process, unless part of a full plan review. If mandatory direction is implemented through a full plan review, those matters determined by mandatory directions cannot be changed through the decision-making process.
- Selected through a ‘discretionary direction’ within a planning standard they must be applied to the local circumstances using a RMA Schedule 1 process.
Adopting the standards may also require changes to existing provisions to avoid duplication or conflict – so the provisions maintain their effect and the plan remains coherent after the standards have been applied. These ‘consequential amendments’ also must be made without a RMA Schedule 1 process. For more information on consequential amendments please see the Guidance on consequential amendments to policy statements and plans on the Ministry for the Environment’s website.
Submitters will need to be made aware that changes cannot be made through the submissions process to the format and provisions required by mandatory directions in planning standards (e.g. chapter and section layout, zone names and some definitions). The plan content unable to be amended could be distinguished from the other plan content through the use of different coloured text or other techniques. However, it is very likely that submissions will request changes that cannot be made. Council officers will need to address these submissions in their reports and may also need to address these at hearings.
Special provisions apply to hearings and decision-making when councils are using either a streamlined planning process or a freshwater planning process.
Decision-making under a Streamlined Planning Process (Part 5 of Schedule 1)
- In the case of a streamlined planning process requested by a local authority, the process steps are set out in a direction issued by the Minister. These steps must be followed and the council must submit its proposed planning instrument to the Minister for approval. The Minister is able to refer the proposed planning instrument back to the local authority with approval and the local authority notifies the Ministers decision and the date on which the planning instrument becomes operative. The Minister can also refer it back to the local authority for further consideration, with or without recommended changes or can decline. In this case the local authority must reconsider it, in light of the Ministers reasons and recommended changes and make any changes it thinks are needed and resubmit it to the Minister for approval. The Minister is also able to decline to approve the proposed planning instrument in which case the local authority must not proceed with it any further under this process. Appeals are available only on decisions on the requiring authority or heritage protection authority.
Further guidance on the Freshwater planning process [MfE website]
Decision-making under a Freshwater Planning Process (Part 4 of Schedule 1)
A regional council or unitary authority must use a freshwater planning process for all proposed regional policy statement, regional plans, changes or variations that gives effect to the national policy statement for freshwater management or that relates to freshwater that are notified after the date of Royal Assent of the Resource Management Amendment Act 2020. However, if the variation relates to freshwater planning instruments that was notified before the date of Royal Assent of the Resource Management Amendment Act 2020 then it proceeds through the standard first schedule process. The freshwater planning process requires the appointment of a freshwater hearing panel, with specified membership and hearing powers, to hear submissions and make recommendations to the local authority. Council then decides whether to accept or reject the recommendations. Where recommendations are rejected the council can substitute its own decisions. Appeals rights are different depending on whether recommendations were accepted or rejected by the local authority.
Further guidance on the streamline planning process [MfE website]
Decision making under an Intensification Streamlined Planning Process (Part 6 of Schedule 1)
The Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 specifies that certain territorial authorities must use the Intensification Streamlined Planning Process (ISPP) to incorporate the medium density residential standards (MDRS) and the National Policy Statement on Urban Development intensification policies 3, 4 or 5 (as relevant to the specified territorial authority) into their district plans. This is done through the creation of an Intensification Planning Instrument (IPI).
The ISPP is based on the existing streamlined planning process (SPP) under the RMA, and is designed to enable faster intensification across Aotearoa New Zealand’s main urban areas compared to the standard Resource Management Act 1991 (RMA) processes.
The schedule sets out which of the standard plan making Part 1 Schedule 1 processes applies, including in terms of Mana Whakahono a Rohe, iwi participation legislation, preparation of the IPI, pre notification consultation requirements, notification and receipt of submissions. The specified territorial authority must establish an independent hearing panel to conduct a hearing of the submissions and make recommendations to the territorial authority on the IPI.
The specified territorial authority must decide whether to accept or reject the recommendations and may provide an alternative recommendation to any recommendations it has rejected. Any rejected recommendation must be provided to the Minister with reasons for the rejection and alternative recommendations. The specified territorial authority then publicly notifies the decision. The Minister makes the decision on any rejected or alternative recommendations put to the Minister and notifies the territorial authority in writing. These decisions are publicly notified. If the specified territorial authority accepts all the recommendations on notification the decisions are notified and recommendations are incorporated into the district plan that has been subject to the ISPP. Those provisions then become operative.
There are no appeal rights on the decisions of the Minister or of the specified territorial authority.
