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Note: The reports contained within this agenda are for consideration and should not be construed as Council policyunless and until adopted. Should Members require further information relating to any reports, please contactthe relevant manager, Chairperson or Deputy Chairperson.

I hereby give notice that an ordinary meeting of the Auckland Plan Committee will be held on:

Date:Time:Meeting Room:Venue:

Monday, 25 February 201310.00 amReception Lounge Level 2Auckland Town Hall301-305 Queen StreetAuckland

Auckland Plan CommitteeOPEN AGENDA

MEMBERSHIP

Chairperson Deputy Mayor Penny HulseDeputy Chairperson Cr George Wood, CNZMCouncillors Cr Anae Arthur Anae Cr Des Morrison

Cr Cameron Brewer Cr Richard Northey, ONZMMayor Len Brown, J P Cr Calum Penrose

Cr Dr Cathy Casey Cr Dick QuaxCr Sandra Coney, QSO Cr Noelene Raffills, J PCr Alf Filipaina Cr Sharon Stewart, QSMCr Hon Chris Fletcher, QSO Member Glen TupuhiCr Michael Goudie Cr Sir J ohn Walker, KNZM, CBECr Ann Hartley, J P Cr Wayne WalkerCr Mike Lee Cr Penny WebsterMember Anahera Morehu

Independent MaoriStatutory BoardAl ternate

Chairperson IMSB, Mr David Taipari

(Quorum 12 members)

Crispian FranklinDemocracy Advisor

20 February 2013

Contact Telephone: (09) 373 6205Email: [email protected]: www.aucklandcouncil.govt.nz


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TERMS OF REFERENCE

The Auckland Plan Committee will have responsibility for:

The future and sustainable development of Auckland while promoting the social,economic environmental and cultural wellbeing of its citizens;

Preparing and making recommendations to Councils Governing Body in relation to theimplementation of the spatial plan for Auckland (the Auckland Plan);

Submissions on legislative changes and central government policy in relation to thedevelopment of Auckland, including infrastructure and amendments to the ResourceManagement Act;

The development and recommendation of the Unitary Plan; Adopt Area Spatial Plans; and

Oversight of City Transformation Projects.

Relevant Legislation includes but is not l imited to:

Local Government Act 2002;Resource Management Act 1991; andLocal Government (Auckland Council) Act 2009.


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Auckland Plan Commit tee

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ITEM TABLE OF CONTENTS PAGE

1 Apologies 5

2 Declaration of Interest 5

3 Confirmation of Minutes 5

4 Petitions 5

5 Public Input 5

6 Local Board Input 5

7 Extraordinary Business 5

8 Notices of Motion 6

9 Auckland Council's response to the Resource Management Act Reform

Bill 7

10 Auckland Unitary Plan Addendum Planning for Urban Growth over the

next 30 years 57

11 Consideration of Extraordinary Items


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1 Apologies

An apology from Councillor Anae Arthur Anae has been received.

2 Declaration of Interest

Members are reminded of the need to be vigilant to stand aside from decision makingwhen a conflict arises between their role as a member and any private or other externalinterest they might have.

3 Confirmation of Minutes

That the minutes of the Auckland Plan Committee held on Wednesday, 20 February 2013,be confirmed as a true and correct record.

4 Petitions

At the close of the agenda no requests for petitions had been received.

5 Public Input

Standing Order 3.21 provides for Public Input. Applications to speak must be made to theCommittee Secretary, in writing, no later than two (2) working days prior to the meetingand must include the subject matter. The meeting Chairperson has the discretion todecline any application that does not meet the requirements of Standing Orders. Amaximum of thirty (30) minutes is allocated to the period for public input with five (5)minutes speaking time for each speaker.

At the close of the agenda no requests for public input had been received.

6 Local Board Input

Standing Order 3.22 provides for Local Board Input. The Chairperson (or nominee of thatChairperson) is entitled to speak for up to five (5) minutes during this time. TheChairperson of the Local Board (or nominee of that Chairperson) shall wherever practical,give two (2) days notice of their wish to speak. The meeting Chairperson has thediscretion to decline any application that does not meet the requirements of StandingOrders.

This right is in addition to the right under Standing Order 3.9.14 to speak to matters on theagenda.

At the close of the agenda no requests for local board input had been received.

7 Extraordinary Business

Section 46A(7) of the Local Government Official Information and Meetings Act 1987 (asamended) states:

An item that is not on the agenda for a meeting may be dealt with at that meeting if -

(a) The local authority by resolution so decides; and

(b) The presiding member explains at the meeting, at a time when it is open to thepublic, -


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(i) The reason why the item is not on the agenda; and

(ii) The reason why the discussion of the item cannot be delayed until asubsequent meeting.

Section 46A(7A) of the Local Government Official Information and Meetings Act 1987 (as

amended) states:

Where an item is not on the agenda for a meeting, -

(a) That item may be discussed at that meeting if -

(i) That item is a minor matter relating to the general business of the localauthority; and

(ii) the presiding member explains at the beginning of the meeting, at a timewhen it is open to the public, that the item will be discussed at the meeting;but

(b) no resolution, decision or recommendation may be made in respect of that itemexcept to refer that item to a subsequent meeting of the local authority for furtherdiscussion.

8 Notices of Motion

At the close of the agenda no requests for notices of motion had been received.


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Auckland Council's response to the Resource Management Act Reform Bill Page 7

Auckland Council's response to the Resource Management Act ReformBill

File No.: CP2013/02436

Purpose1. This report seeks endorsement of the draft Auckland Council submission on the Resource

Management Act Reform Bill and agreement to delegate the Chair and Deputy Chair of theAuckland Plan Committee to work with officers to finalise and approve the submission inaccordance with the resolutions of this committee.

Execut ive Summary2. The Resource Management Act Reform Bill (the Bill) was introduced to the House on 5

December 2012 and had its first reading on 11 December. The Bill amends the ResourceManagement Act 1991 (the RMA), the Local Government (Auckland Transitional Provisions)

Act 2010, and the Local Government Official Information and Meetings Act 1987. The Billhas been referred to the Local Government and Environment Committee with submissionsdue on 28 February 2013.

3. The changes proposed in the Bill will have considerable impact on local government in NewZealand and Auckland in particular. The key changes of particular importance are:

Proposed amendments to the Local Government (Auckland Transitional Provisions)Act 2010 including the process for streamlining delivery of the first Aucklandcombined plan (the Unitary Plan). Issues of major concern to Council include:

When the Unitary Plan will take legal effect;

Process for the appointment of the Hearings Panel;The weight the Hearings Panel must give to the Auckland Plan when making its

decisions;Council being unable to promulgate any variations to the Plan until it becomes

operative, unless in response to a Hearings Panel recommendation.The recommendations of the Hearings Panel not being limited to the scope of

submissions;Timeframes for the preparation of the Councils section 32 report on the Unitary

Plan process; andTimeframes for the Council to consider the Hearings Panels report and make

its decision whether to accept or reject the Panels recommendations.

Proposed amendments to the Resource Management Act 1991 including changesto section 32; tree protection rules in district plans; and mandatory direct referral ofresource consent applications. Issues of major concern to Council include:

New section 32 requirements for preparing and publishing evaluation reportswith the potential to result in greater weight being given to effects that are ableto be quantified;

The need for any trees or groups of trees to be included in a schedule to adistrict plan and identified by street address or legal description, in order to beprotected;

The requirement to directly refer resource consent applications, when,requested by the applicant, to the Environment Court where their value ofinvestment meets the threshold set out in regulations; and

Timeframes for resource consent reports shortened where a further informationrequest is made during the consent process.


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4. Councils proposed response to the provisions contained in the Bill is set out in the draftsubmission (Attachment A).

RecommendationsThat the Auckland Plan Committee:

a) Agrees that Auckland Councils submission recommends that:

i) The Unitary Plan has immediate legal effect at notification and for greater legalweight than the current operative regional policy statement and district plans.

ii) The chairperson and other members of the Hearings Panel are jointly appointedby the Ministers (Minister for the Environment and Minister of Conservation) andAuckland Council after consulting with the Independent Maori Statutory Board.

iii) The Hearings Panel be required to ensure that its recommendations beconsistent with the Auckland Plan.

iv) Auckland Council is able to notify variations to the Unitary Plan under exceptionalcircumstances as long as the variation process has concluded the stage of

submissions and further submissions, prior to the hearings of the Unitary Plansubmissions.

v) The Hearings Panel and Auckland Council should remain limited in the scope oftheir recommendations and decisions to the Unitary Plan as notified and anysubmissions and further submissions received in respect of that plan.

vi) In respect of the section 32 analysis report of the Unitary Plan, the Council mustprovide this to the Ministry of the Environment 20 workingdays before the Plan isnotified (rather than the proposed 60).

vii) The amount of time the Council has to consider the Hearing Panels report andmake its decision whether to accept or reject its recommendations be set at 40working days and that the Minister be able to allow for an additional 20 workingdays where the Council so requests (rather than the proposed 20 with anadditional 20 if requested).

viii) Amendments to the proposed new subsections in section 76of the RMA to allowfor important groups of trees that traverse multiple sites such as significant areasof native vegetation on private properties in the Waitakere Ranges Heritage Areabe identified on district plan maps, without also having to specify street address orlegal descriptions;

and

Council seeks clarifications to the definition of groups of trees to confirm thatlarge tracts of native bush are groups of trees, and to confirm that significant

vegetations, such as coastal pohutukawa that may not always be contiguous are agroup of trees.

ix) Council seeks amendments to the proposed new section 32 to clarify that therequirement to quantify, if practicable, the benefits and costs of environmental,economic, social and cultural effects does not result in greater weight being givento those effects that are able to be quantified;

and

Council opposes the requirement in the proposed new section 32AA that a furtherevaluation report must be prepared for changes to the proposal made since theoriginal section 32 evaluation.

x) Council opposes direct referral of resource consent applications and notices ofrequirement to the Environment Court, where the value of the investment exceedsthe threshold set out in regulations, unless there are exceptional circumstances.


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xi.) Council opposes the Bills proposal that the processing clock only stops from thethird working day after the request for further information is made.

b) Agrees to delegate the Chair and Deputy Chair of the Auckland Plan Committee to workwith officers to draft and approve the submission in accordance with the resolutions of thisCommittee.

DiscussionBackground

5. The Resource Management Act Reform Bill was introduced to the House on 5 December2012 and had its first reading on 11 December. The Bill amends the Resource ManagementAct 1991, the Local Government (Auckland Transitional Provisions) Act 2010, and the LocalGovernment Official Information and Meetings Act 1987. The Bill has been referred to theLocal Government and Environment Committee with submissions due on 28 February 2013.

6. The Bill is the first of two bills on reform of the resource management system. The Billincludes provisions related to the delivery of the Unitary Plan as well as significantamendments to the RMA. The second Bill, which will be progressed in 2013, is expected to

be a much more comprehensive reform of the RMA.7. The changes proposed in the Bill will have considerable impact on local government in New

Zealand and Auckland in particular. Councils proposed response to the detailed proposalsin the Bill is set out in the attached draft submission. The following section outlines theissues of major concern to Council.

Unitary Plan Provisions (Part 4, Clause 125, P61-89)

8. The Bill includes the new process for the preparation of the Unitary Plan as an amendmentto the Local Government (Auckland Transitional Provisions) Act 2010.

9. When the Unitary Plan will take legal effect

Proposal: The Unitary Plan will become operative once Auckland Council accepts therecommendations of the Hearings Panel, but shall not automatically have legal effect fromnotification.

Discussion: If the Plan is not given legal effect from notification it means that the positiveoutcomes enabled by the Plan will take three years longer to be realised. This will haveimplications for the delivery of land supply for housing, economic growth, and environmentaland heritage protection. Under section 86B, rules with a focus on protecting naturalresources will have immediate legal effect but rules that have a focus on the builtenvironment (and have the potential to encourage development) will not. This results in animbalance as to which rules have legal effect and will inevitably create uncertainty for thepublic, business community, and other stakeholders. Amendments are sought to give theUnitary Plan greater weight from notification than existing plans, many of which are over 10years old. This will fast-track the positive outcomes noted above and avoid inconsistentjudgments about the relative weight of different plans being made in resource consent decisionsover the three years following notification of the Unitary Plan.

Recommendation: That the Unitary Plan has immediate legal effect at notification andgreater legal weight than the current operative regional policy statement and district plans.

10. Ministerial appointment of the Hearings Panel

Proposal: The Minister for Environment and Minister of Conservation will appoint theHearings Panel in consultation with the Auckland Council and Independent Maori Statutory

Board.


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Discussion:The Councils involvement in decision-making is critical given the Unitary Plancomprises a special set of planning provisions for Auckland and Aucklands success is vitallyimportant to New Zealands future. The Unitary Plan deals with inherently local issues whichrequire local knowledge. Council is best placed to identify potential members possessingthe necessary local knowledge. The Unitary Plan will ultimately be Auckland Councils plan,and decisions whether or not to accept the panel's recommendations will be made by the electedrepresentatives of Auckland Council. The Council should therefore be involved in the decision-

making around the membership of the Hearings Panel.

Recommendation: That the chairperson and other members of the Hearings Panel bejointly appointed by the Ministers (Minister for the Environment and Minister of Conservation)and Auckland Council after consulting with the Independent Maori Statutory Board.

11. Weight to be given to the Auck land Plan

Proposal: The Hearings Panel must have regard to the Auckland Plan when making itsdecision.

Discussion: Without greater legal weight in the Panels decision making, the Auckland Plan

will not achieve its purpose as set out in the Local Government (Auckland Council) Act 2009and positive outcomes from the Auckland Plan in relation to matters such as land supply andurban growth cannot be assured.

Recommendation: That the Hearings Panel be required to ensure that itsrecommendations be consistent with the Auckland Plan.

12. Moratorium on variations

Proposal: Auckland Council may not promulgate any variations to the Plan until it becomesoperative, unless in response to a Hearings Panel recommendation.

Discussion:The moratorium on variations is aimed at making as much of the Unitary Planas possible operative approximately three years after notification. There may be specialcircumstances, however, such as extensions of the rural urban boundary (RUB) or theimplementation of the national policy statement on freshwater management where variationswould be required within three years of the plan being notified.

Recommendation: That Auckland Council is able to notify variations to the Unitary Planunder exceptional circumstances as long as the variation process has concluded the stageof submissions and further submissions, prior to the hearings of the Unitary Plansubmissions.

13. Hearings Panel recommendations not l imited by submissions

Proposal: The Hearings Panels recommendations, and the Councils decisions on thoserecommendations, are not limited by the scope of submissions.

Discussion: This proposal is inconsistent with the principles of public participation thatunderlie planning processes, and could enable significant changes which could affect privateproperty and public interest without the requisite opportunity for public involvement.

Recommendation:That the Hearings Panel and Auckland Council should remain limited inthe scope of their recommendations and decisions to the Unitary Plan as notified and anysubmissions and further submissions received in respect of that plan.


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14. Timeframes for Section 32 analysis

Proposal: The Council must prepare a section 32 analysis report on the Unitary Planprocess and provide this to the Ministry for the Environment 60 working days before the Planis notified.

Discussion:The requirement to provide the section 32 analysis 60 working days before thePlan is notified will make it almost impossible for the Council to notify the Plan in its currentelectoral term, because analysis and decisions based on the feedback from publicengagement will not be completed by the end of J uly 2013.

Recommendation:That in respect of the section 32 analysis report of the Unitary Plan, theCouncil must provide this to the Ministry of the Environment 20 workingdays before the Planis notified.

15. Timeframes to consider the Hearings Panels report

Proposal: Council will have 20 working days to consider the Hearing Panels report and

make its decision whether to accept or reject its recommendations. The Minister would beable to extend this timeframe by an additional 20 days if requested by Council.

Discussion: Given the volume of decision-making required due to the scope of the UnitaryPlan it is unlikely that 20 days would be enough time for Council to fully consider therecommendations.

Recommendation:That the amount of time the Council has to consider the Hearing Panelsreport and make its decision whether to accept or reject its recommendations be set at 40working days and that the Minister be able to allow for an additional 20 working days wherethe Council so requests.

Amendments to the Resource Management Act 1991 (Part 1, P11-59)

16. The Bill amends the Resource Management Act 1991 and includes changes to treeprotection rules, section 32 requirements, and the consenting process and timeframes.

17. Tree protection rules in distr ict plans

Proposal:The existing section 76 (4A)(a) of the RMA will be replaced with a new provisionthat requires that any trees or groups of trees must be included in a schedule to a districtplan, and identified by street address or legal description, in order to be protected. All otherdistrict plan tree protection rules are to be revoked two years after the date that the bill

receives royal assent. Group of trees is defined in the Bill as a cluster, grove, or line oftrees that are located on the same or adjacent allotments.

Discussion:The Bill appears to specifically exclude the protection of coastal vegetation likeAucklands coastal pohutukawa, tracts of mature trees around the base of the citys volcaniccones, and urban stream/coastal riparian edges. The practicalities associated withidentifying each property would make it difficult to schedule all of these coastal and riparianareas and the changes are likely to bring uncertainty to landowners as to what trees are andare not protected.

Recommendation:That amendments to the proposed new subsections in section 76of theRMA to allow for important groups of trees that traverse multiple sites such as significant

areas of native vegetation on private properties in the Waitakere Ranges Heritage Area beidentified on district plan maps, without also having to specify street address or legaldescriptions;


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and

Council seeks clarifications to the definition of groups of trees to confirm that large tracts ofnative bush are groups of trees, and to confirm that significant vegetations, such as coastalpohutukawa that may not always be contiguous are a group of trees.

18. Changes to section 32Proposal: The new section 32 outlines the requirements for preparing and publishingevaluation reports (including the requirement to identify, assess and if practicable, quantify,the benefits and costs of the environmental, economic, social and cultural effects that areexpected from the implementation of the proposal). The new section 32AA sets outrequirements for undertaking and publishing further evaluations.

Discussion: The requirement to quantify, if practicable, the benefits and costs ofenvironmental, economic, social and cultural effects may result in greater weight being givento those effects that are able to be quantified. This risks upsetting the balance contained inthe definition of sustainable management in section 5 of the RMA. The addition of section32AA would introduce a requirement for further evaluation which must be done if there arechanges made to the proposal after the evaluation report is completed.

Recommendation: Council seeks amendments to the proposed new section 32 to clarifythat the requirement to quantify, if practicable, the benefits and costs of environmental,economic, social and cultural effects does not result in greater weight being given to thoseeffects that are able to be quantified;

and

Council opposes the requirement in the proposed new section 32AA that a further evaluationreport must be prepared for changes to the proposal made since the original section 32evaluation.

19. Mandatory direct referral of resource consent applications

Proposal: Consent authorities would be required to directly refer resource consentapplications, when requested by the applicant, to the Environment Court where their value ofinvestment meets the threshold set out in the regulations, unless there are exceptionalcircumstances.

Discussion:The RMA is based on the principle that most resource management decisionsare best made by communities affected by those decisions. The Bill suggests thatregulations will set thresholds for direct referral based on the value of the investmentrepresented by the proposal but the value of a proposal is often not a proxy for the

importance or complexity of a resource consent decision. Low value proposals, forexample, affecting natural resources may be highly significant, while high value proposalsin general conformity with plan provisions may be straightforward and uncontroversial.

Recommendation: Council opposes direct referral of resource consent applications andnotices of requirement to the Environment Court, where the value of the investment exceedsthe threshold set out in regulations, unless there are exceptional circumstances.

20. Timeframes where a further information request is made during the resource consentprocess

Proposal:The processing clock would only stop from the third working day after a request

for further information is made for any non-notified, limited notified or publicly notifiedapplication.


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Discussion: If further information is required but is still outstanding, Council would beunable to progress the application. This would mean that Council would have three daysless to write the report once the further information is received, due to the delays elapsed atthe beginning of the request.

Recommendation: Council opposes the Bills proposal that the processing clock only stopsfrom the third working day after the request for further information is made.

Consideration

Local Board Views

21. A summary of the Bill has been distributed to all local board members and a paper settingout the implications and recommendations on the provisions in the Bill has been sent to localboard chairs for feedback and guidance. Local board chairs were invited to a workshop withcouncillors on 12 February. Feedback from this meeting has been incorporated into thedraft submission. At the time of writing one local board has formally provided its views andthis is attached as Attachment B. Local boards who wish to provide any subsequent viewson the Bill or draft submission have been given the opportunity to append their views to the

final submission.

Maori Impact Statement

22. Auckland Council recognises the importance of developing long lasting relationships withMaori, as demonstrated through support for collective iwi forums and the continueddevelopment of co-management agreements. The changes to the consenting process andtimeframes proposed in the Resource Management Reform Bill may reduce the amount oftime for consultation with manawhenua and undermine Councils partnership arrangementswith Maori. Te Waka Angamua Maori Strategy and Relations officers have briefed theIndependent Maori Statutory Board on the Bill.

General23. A summary of the Bill and a memo setting out the likely implications has been distributed to

all advisory panels for feedback and guidance. Feedback from the Heritage Advisory Panelis attached as Attachment C.

Implementation Issues24. There are no implementation issues arising from this report.

Attachments

No. Title Page

A Attachment A - Draft Submission on the RMA Reform Bill 15

B Attachment B - Feedback from Papakura Local Board 53

C Attachment C - Feedback from Heritage Advisory Panel 55

Signatories

Authors Craig Glover - Principal Strategy Analyst, Strategic Advice Unit

Denise OShaughnessy - Manager, Strategic Advice Unit

Authorisers Ree Anderson - Manager, Auckland Strategy and Research

Roger Blakeley - Chief Planning Officer


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AttachmentA

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Draft

Submission to the

Local Government and Environment Committee

RESOURCE MANAGEMENT REFORM BILL


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28 February 2013

Auck land Counci l submiss ion on the Resource Management Reform Bil l

1. This is Auckland Councils submission on the Resource Management Reform Bill (Bill).

2. The address for service is Auckland Council, Private Bag 92300, Victoria Street West, Auckland1142.

3. Please direct any enquiries to Dr Roger Blakeley, Chief Planning Officer. Phone 09 307 6063 oremail [email protected]

4. Auckland Council wishes to appear before the Local Government and Environment Committee todiscuss this submission.

5. This submission has been approved by the Auckland Plan Committee of Auckland Council. Inaddition xx local boards have requested that their views on the Bill be included as appendices.

6. In view of Part 2 of the Bill relating specifically to the process for delivering the combined regionalpolicy statement, regional plan and district plan of Auckland Council (Auckland combined plan),the Council requests the opportunity to review Part 2 of the Bill before it is reported back from thecommittee.

7. The submission is set out as follows:

Section 1: IntroductionSection 2: Executive summarySection 3: Submissions on proposed amendments to the Local Government (Auckland

Transitional Provisions) Act 2010 (LGATPA)Section 4: Submissions on proposed amendments to the Resource Management Act 1991 (RMA)Section 5: Schedule of proposed drafting amendments

SECTION 1 INTRODUCTION

This section will set the context and cover issues such as the importance of the Unitary Plan forrealising the benefits of council amalgamation in Auckland as well as some of the key drivers such aspopulation, supply of land for housing, including affordable housing. Feedback will be sought from

Committee on 25 February.

SECTION 2 EXECUTIVE SUMMARY

Proposed amendments to the LGATPA: process for streamlining delivery of the first Aucklandcombined plan

The Council supports the overall approach taken in Part 2 of the Bill, which inserts new provisions intothe LGATPA designed to streamline the process for delivery of the first Auckland combined plan. Inparticular it supports key features of the proposed process including the audit of the Council's section32 analysis, hearing procedure before the hearing panel, provision for the Hearings Panel to makerecommendations to Auckland Council, and the availability of full rights of appeal to the Environment

Court where the Council rejects a recommendation of the Hearings Panel.


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However, it has concerns with the following issues as currently addressed in Part 2, which are listed inorder of importance to the Council.

When rules in the Auckland combined plan will have legal effect

The Council supports giving legal effect to the entire Auckland combined plan from the date on which itis publicly notified. As much of the plan (including many regional rules) will already have immediatelegal effect on notification under section 86B of the RMA, giving the entire plan immediate legal effectwill provide greater certainty to the public, business community and other stakeholders. Under section86B rules with a focus on protecting natural resources will have immediate legal effect but rules thathave a focus on the built environment (and have the potential to encourage development) will not haveimmediate legal effect. If the entire plan is not given legal effect from notification, positive outcomesenabled by the plan (including freeing up land for housing and commercial and industrial development)will take three years longer to be realised.

Weight to be given to Auckland combined plan

The Council also seeks amendments to the Bill to give the Auckland combined plan greater weight

from notification than existing plans, many of which are over 10 years old. This will fast-track thepositive outcomes under the Auckland combined plan noted earlier. It will also avoid inconsistentjudgments about the relative weight of different plans being made in resource consent decisions overthe three years following notification of the Auckland combined plan, and increase certainty for thepublic, business community and other stakeholders.

Ministerial appointment of the Hearings Panel

The Bill provides for Ministers to appoint the Hearings Panel in consultation with the Auckland Counciland the Independent Mori Statutory Board. Rather than consultation, the Council seeks a jointselection process prior to Ministerial announcement of the Hearings Panel. There are precedentswhere Council and Government have made joint appointments such as to the board of the Tamaki

Redevelopment Company Limited. This approach will better reflect the fact that the Auckland Councilis bearing the majority of the cost associated with the process.

Weight Hearings Panel must give to Auckland's spatial plan (Auckland Plan)

The Bill requires the Hearings Panel merely to have regard to" the Auckland Plan when making itsdecision. The Local Government (Auckland Council) Act 2009 (LGACA) required that the AucklandPlan be a comprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth anddevelopment, and provide a basis for aligning the Council's implementation plans, regulatory plans,and funding programmes. The Auckland Plan was adopted in March 2012, following comprehensiveengagement with community and stakeholders on the plan's content and direction. Given the highlevel of community buy-in to the Auckland Plan, the Council seeks that the Hearings Panel be requiredto ensure that its recommendations be consistent with the Auckland Plan. Without greater legalweight in the panel's decision-making, the Auckland Plan will not achieve its purposes as set out in theLGACA, and positive outcomes from the Auckland Plan in relation to matters such as land supply andurban growth cannot be assured.

Moratorium on variations

The Council understands the moratorium on variations to be aimed at making as much of the Aucklandcombined plan as possible operative approximately three years after notification. It supports that goalbut notes that special circumstances (such as defining the location of the rural urban boundary (RUB)around some rural town centres or the implementation of the national policy statement on freshwatermanagement) are likely to require variations within three years of the plan being notified. It is essentialthat the Council is able to promulgate variations for these purposes to ensure it is able to achieve the

purposes of the amalgamation and meet its other legislative requirements in a timely manner. TheCouncil therefore seeks to retain the ability to notify variations to address material changes in


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circumstances or significant information that has become available since notification of the plan, andthat the Hearings Panel should also have the power to direct the Council to prepare a variation toaddress matters raised in submissions or during the hearings process that are more appropriatelyaddressed through a separate Schedule 1 process. Such matters might include a site specificcomprehensive rezoning of a particular property or particular properties.

It is not possible under the First Schedule to the RMA for private plan changes to be lodged on aproposed plan. However given the resource implications associated with the Auckland combined plan,the Council suggests that there should be a moratorium on private plan changes to any operativedistrict or regional plans until such time as the Unitary Plan is operative. Those wishing to lodge aprivate change request would still have the 6 month period between the release of the draft Aucklandcombined plan for consultation in March 2013 and its public notification in September 2013 in which tolodge a private plan change request.

Timeframes

The Council generally supports the timeframes in the Bill aimed at streamlining the delivery of the firstAuckland combined plan. However two timeframes are unworkable and not supported. The first is the

requirement that the Councils s32 analysis report be provided to the Ministry for the Environment 60working days before the Auckland combined plan is notified. This requirement will make it almostimpossible for the Council to notify the plan in this current electoral term, because analysis anddecisions based on the feedback from public engagement in March to May 2013 will not be completeduntil the end of J uly. The second unworkable timeframe is 20 working days for the Council to considerthe Hearings Panel's report and make its decision whether to accept or reject its recommendations.This timeframe may be doubled by the Minister, at the Council's request. Given the volume ofdecision-making required due to the scope of the Auckland combined plan, and to ensure it can givefull consideration to the Hearings Panel's recommendations, the Council seeks 40 working days inwhich to make its decision on recommendations, and that the Minister be able to allow for an additional20 working days where the Council so requests.

Hearings Panel recommendations not limited by submissions

The Council opposes that the scope of the Hearings Panels recommendations, and the Councilsdecisions are not limited by the scope of submissions and further submissions lodged in respect of thenotified Auckland combined plan. This proposal is inconsistent with the policy of public participationthat underlies planning processes, and could enable significant changes which could affect privateproperty and public interest without the requisite opportunity for public involvement. No reason hasbeen given why the usual principles in relation to changes being within the scope of submissionsshould not apply. Accordingly, the Council submits that the Hearings Panel and Council should remainlimited in the scope of its recommendations and decisions to the Auckland combined plan as notifiedand any submissions and further submissions received in respect of that plan.

Proposed amendments to the RMA

The Council supports or is neutral on many of the proposed RMA amendments. Its main concerns inrelation to the proposed amendments are as follows.

Changes to section 32

The Council seeks amendments to the proposed new section 32 to clarify that the requirement toquantify, if practicable, the benefits and costs of environmental, economic, social and cultural effectsdoes not result in greater weight being given to those effects that are able to be quantified. Withoutsuch clarification, the proposed changes risk upsetting the balance contained in the definition ofsustainable management in section 5 of the RMA. The Council strongly supports the section 32evaluation containing a level of detail that corresponds with the level of anticipated environmental and

other effects, but seeks further clarification that the evaluation is to be undertaken across the proposal(such as a proposed plan) as a whole. However, the Council opposes the requirement in the proposednew section 32AA that a further evaluation report must be prepared for changes to the proposal made


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since the original section 32 evaluation. Decision reports under clause 10 of the RMA's First Schedulecan and do address the costs and benefits of any changes made to proposed plans and plan changesin response to submissions. There is no evidence that a separate further evaluation is required.

Timeframes where a further information request is made during the resource consent process

The Council opposes the Bill's proposal that the processing clock only stops from the third working dayafter a request for further information is made (with respect to any non-notified, limited notified orpublicly notified resource consent application). There is no clear rationale for this change. If furtherinformation is required but is still outstanding, a council is unable to progress the application. It isunfair to keep the clock running for three days during which the information is still outstanding.

Tree protection rules in district plans

The changes to section 76 of the RMA as currently drafted are onerous and unworkable. The Councilseeks amendments to the proposed new subsections in section 76 of the RMA, to allow for importantgroups of trees that traverse multiple sites such as significant areas of native vegetation on thousandsof private properties in the Waitakere Ranges Heritage Area to be identified on district plan maps,

without also having to specify street addresses or legal descriptions (which would be cumbersome andclutter up district plan schedules). The Council also seeks clarifications to the definition of "groups oftrees" to confirm that large tracts of native bush are groups of trees and to confirm that significantvegetation such as coastal pohutukawa, tracts of mature trees around the base of the citys volcaniccones, and urban stream/coastal riparian edges that may not always be physically contiguous is agroup of trees. The amendments sought would provide certainty to landowners as to what trees areand are not protected, while enabling the Council to continue to meet its statutory obligations tomanage and protect biodiversity, ecosystem services and amenity effects on behalf of all Aucklanders.

Mandatory direct referral

The Council opposes provisions in the Bill that would require direct referral of resource consent

applications and notices of requirement to the Environment Court, where the value of the investmentexceeds the threshold set out in regulations, unless there are exceptional circumstances. The RMA isbased on the principle that most resource management decisions are best made by communitiesaffected by those decisions. There is no evidence of a problem in relation to the consenting of highvalue proposals by local authorities. Nor is the value of a proposal a proxy for the importance orcomplexity of a resource consent decision: "low value" proposals affecting natural resources may behighly significant, while "high value" proposals in general conformity with plan provisions may bestraightforward and uncontroversial. Mandatory direct referral based on the value of the investment isalso unnecessary given the applicant's ability to seek direct referral, and ministerial call-in powers,under existing RMA provisions.


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SECTION 3 PROPOSED AMENDMENTS TO THE LOCAL GOVERNMENT (AUCKLANDTRANSITIONAL PROVISIONS) ACT 2010

The Council generally supports Part 2 of the Bill, which inserts new provisions into the LGATPAdesigned to streamline the process for delivery of the first Auckland combined plan. The Councilconsiders the proposed procedure to apply in place of the normal process for a proposed plan or policystatement under the First Schedule to the RMA to be necessary to deliver the Auckland combined planwithout undue delay, and thereby achieve one of the main benefits of Auckland's local governmentreorganisation. As noted in the regulatory impact statement for the Bill, the Auckland combined plan is"critical to achieving Auckland's proposed growth targets, as well as planning land-use, criticalinfrastructure and housing supply".

The Council wishes to comment on several aspects of the proposed procedure, as set out below. TheCouncil may be taken to support any provision in Part 2 on which it has not specifically commentedbelow.

The key concerns for the Council in Part 2 are:

The moratorium on variations under proposed section 121 of the LGATPA (the following references

to sections are to proposed sections of the LGATPA); The Hearings Panel not being limited to making recommendations within the scope of submissions

under proposed section 139;

The weight the Hearings Panel must give to the Auckland Plan when making recommendationsunder proposed section 140;

The 20 working day timeframe for the Council to consider the Hearings Panel's recommendationsunder proposed section 143;

What rules in the Auckland combined plan will have immediate legal effect under proposed section147, and the related question of what weight the plan is to have on and from notification; and

The appointment of members of the Hearings Panel under proposed section 155.

However, the Council addresses below all significant matters in Part 2 (whether supported or

opposed), in the order in which they appear in the Bill.

Clause 124 Transitional regulations

The Council supports this clause.

Discussion

The flexibility to make transitional regulations in addition to or in place of the new provisions in Part 4 ofthe LGATPA to be inserted, or to deal with matters not sufficiently provided for in Part 4, is important.The existing power to make transitional regulations in section 5 of the LGATPA has proved to be usefulin addressing anomalous situations that were not foreseen at the time the LGATPA was enacted.

- Recommendation

The Council seeks that Clause 124 is enacted in its current form.

Section 119 Auckland combined plan to combine regional and district documents

The council supports this section, subject to the comments and recommendation below.

Discussion

Section 119(1)(c) refers to the Auckland combined plan containing "a district plan for Auckland". The

Council does not, however, intend to include within the Auckland combined plan the district plan for theHauraki Gulf Islands, a second generation RMA plan most of which is now operative having beenthrough submissions and appeals over the past few years.


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- Recommendation

Rather than reopen the district plan for the Hauraki Gulf Islands to a further public process by includingit within the Auckland combined plan, the Council recommends that section 119(1)(c) be amended asfollows:

(c) a district plan for Auckland, excluding the area covered by the Hauraki Gulf Islands district plan untilsuch time as a variation or plan change is introduced to incorporate the Hauraki Gulf Islands into theAuckland combined plan.

Section 120 Initial preparation of Auckland combined plan

The Council supports this section.

Discussion

In particular the Council supports the modifications to the otherwise applicable timeframes under the

RMA's First Schedule, and the removal of the Council's power to extend timeframes or waive non-compliance with timeframes. The removal of this power is justifiable in light of the already expandedtimeframes for submissions on the Auckland combined plan, and the three year deadline (fromnotification) for the Hearings Panel to make recommendations to the Council under proposed section141. In any event the chairperson of the Hearings Panel has the power to accept a late submissionunder the proposed section 131.

- Recommendation

The Council seeks that clause 120 is enacted it its current form.

Section 121 Restrict ion on amendments or variations to Auckland combined plan

The Council opposes this section as currently drafted, and recommends amendments as discussedbelow.

Discussion

This section provides that the following RMA provisions do not apply to the Auckland combined planbefore it is operative:

(a) section 55 (requirement to amend the plan to recognise national policy statements);

(b) clauses 16 to 16B of the First Schedule (which include the power to correct minor errors and tomake variations to a proposed plan); and

(c) other provisions that allow an amendment or variation to be made.

The Council understands the moratorium on variations to be aimed at making as much of the Aucklandcombined plan as possible operative within three years of notification. It supports that goal, but notesthat special circumstances (such as defining the location of the rural urban boundary (RUB) or theimplementation of the national policy statement on freshwater management) will likely requirevariations to be promulgated three years of the plan being notified to enable the Council to achievesome of the key outcomes of amalgamation and to meet related statutory obligations.

The Council recommends that it retain the ability to notify variations to address material changes incircumstances, or significant information that has become available since notification of the plan. It

also recommends that the Hearings Panel should also have the power to direct the Council to preparea variation, to address matters for which it considers insufficient provision is made in the Auckland


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combined plan, which are raised in submissions, but which are more appropriately dealt with through aseparate First Schedule process. Examples might include submissions seeking comprehensive sitespecific rezoning of land. This would supplement its power to make recommendations under proposedsection 139, but significantly, could be exercised earlier in the Hearings Panel's decision-makingprocess. The Council would expect this power to direct variations to be used only in exceptionalcircumstances, as it is important that variations do not compromise the Hearings Panel making itsrecommendations 50 working days before the 3 years anniversary of the plan being notified (asrequired by section 141).

In addition, given the resource implications for the Council associated with the Auckland combinedplan, it suggests that there should be a moratorium on private plan changes to any operative district orregional plans until such time as the Unitary Plan is operative. Those wishing to lodge a private changerequest would still have the 6 month period between the release of the draft Auckland combined planfor consultation in March 2013 and its public notification in September 2013 in which to lodge a privateplan change request.

It is also unclear why the power to correct minor errors under clause 16(2) of the First Schedule isremoved until the Unitary Plan becomes operative. Case law and practice in relation to clause 16(2) is

clear that the power to correct minor errors under clause 16(2) should not affect substantive rights, andthere is no evidence of this power being abused. Retaining this power allows the Council to addresserrors quickly and efficiently, and thereby reduce uncertainty and confusion (both for those applying theAuckland combined plan during the resource consent process, and those making submissions on theplan). The Council therefore recommends that this power be retained.

- Recommendation

The Council recommends that proposed sections 121(1) and (2) be amended as follows:

(1) The following provisions of the RMA do not apply to the Auckland combined plan before it isoperative:

(a) section 55:(b) clauses 16 to 16B 16A of Schedule 1, unless a variation is necessary to address materialchanges in circumstances, or significant information that has become available, since theAuckland combined plan was publicly notified(c) any other provision. . .

(2) However, despite subsection (1) an amendment may be made -(a) under clause 4(10) of Schedule 1 of the RMA; or(b) at the direction of the Hearings Panel, or as a result of the Auckland Council's decisions onthe recommendations of the Hearings Panel.

The Council also recommends that a new section 121A be inserted as follows:

121A Restriction on requests fo r changes to policy statements or plans

Notwithstanding anything in Part 2 of Schedule 1 of the RMA, no person may request a change

to a policy statement, regional plan or district plan that applies in Auckland in the period

commencing on the date the Auckland combined plan is publicly notified and ending on the

date the Auckland combined plan is made operative.

Section 122 Audit of evaluation report on proposed Auckland combined plan

The Council supports this section, subject to the comments and recommendation below.

Discussion


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This section provides that the Council must provide the evaluation report prepared under section 32 tothe Ministry for the Environment for auditing no later than 60 working days before the proposed plan isto be notified.

The Council accepts the rationale for the Ministry to audit the Council's section 32 report, and notesthat this is likely to further enhance public and wider stakeholder confidence in the robustness of theCouncil's analysis underlying the Auckland combined plan. However, this requirement for the report tobe provided 60 working days before the proposed plan is to be notified will make it almost impossiblefor the Council to notify the plan in this current electoral term. This is because analysis and decisionsbased on the feedback from public engagement in March to May 2013 will not be completed until theend of J uly. The Council therefore supports reducing that requirement to 20 working days. TheCouncil notes that this reduction need not affect the Council's obligation to make the Ministry's auditreport publicly available, as under the proposed section 130(7) that report is to be made publiclyavailable "at the same time as, or as soon as practicable after, the proposed plan is publicly notified".

- Recommendation

The Council therefore recommends that section 122(3) be amended as follows:

(3) The Auckland Council must provide the reports to the Ministry as soon as practicable afterthey are prepared, but no later than 60 20 working days before the day on which the proposedplan is to be publicly notified.

Section 129(6) Conference of experts


Discussion

This subsection provides that the Council may attend a conference of experts under this section only ifauthorised to do so by the Hearings Panel. There does not appear to be any rationale for excludingthe Council from a conference of experts. The danger is that excluding the council or a representativeof the Council from a conference of experts could result in the rationale for the Council's position as setout in the proposed plan being overlooked, or the impact of possible changes to the proposed plan notbeing fully understood. Accordingly, the Council suggests redrafting subsection (6) to create apresumption of Council attendance at a conference of experts.

- Recommendation

The Council recommends subsection 129(6) be amended as follows:

(6)To avoid doubt, t The Council or an expert engaged by the Council may attend aconference under this section only if authorised to do so by unless the Hearings Panelspecifically directs otherwise.

Section 130 Alternative dispute resolution


Discussion


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The Council supports the overall intent of this section, but considers that similar wording to that used inproposed section 129(5) should be added as mediations or other processes are undertaken on awithout prejudice basis.

- Recommendation

The Council recommends that subsection (4) be amended as follows:

(4) The person who conducts the mediation or other process must report the outcome to theHearings Panel, but must not advise the Hearings Panel of any material communicated ormade available at the mediation or other process on a without prejudice basis.

Section 139(2) Hearings Panel recommendations not l imited by scope of submissions

The Council opposes this subsection.

Discussion

This subsection states that the Hearings Panel is not limited to making recommendations within thescope of submissions, and may make recommendations on any other matters relating to the proposedplan identified by the panel or any other person during the hearing.

This subsection is a substantial departure from the existing law. Under the RMA, a consent authority islimited by clause 10(1) of the First Schedule to giving a decision on the provisions and matters raisedin submissions. The established case law requires that any amendment to a proposed plan must be"fairly and reasonably raised" within the submissions filed.

Auckland Council is unsure as to the rationale for this provision. In particular, it is unclear why thenormal power to make recommendations on matters fairly and reasonably raised in submissions isseen as unreasonably constraining the Hearings Panel. Indeed, given the interest in the Auckland

combined plan and the range of views likely to be expressed in submissions, the Hearings Panel couldbe expected to have ample scope to make recommendations.

Section 139(2), on its face, gives the Hearings Panel an unfettered discretion to make anyrecommendation on any matter relating to the proposed plan. This raises two key concerns:

(a) First, submitters and the general public will have no opportunity to consider and address aHearings Panel recommendation on a matter that is outside the scope of existing submissions.A recommendation beyond the scope of submissions could have a significant impact onproperty rights and other interests, yet the affected parties would have no opportunity torespond to it: they could only hope that the Council refused to accept the Hearings Panel'srecommendation. The "right to be heard", which the subsection (2) offends, is one of the coreprinciples of natural justice.

(b) Second, the power to make recommendations beyond the scope of submissions blurs theboundary between adjudication (which is the proper role of the Hearings Panel) and planmaking (which is the proper role of Auckland Council as a democratically elected localauthority). To that extent, the power is contrary to the principle of separation of powers underwhich legislative (in the case of plan making) and judicial functions are kept separate.

Further, there would be no right of appeal in relation to any recommended changes to the proposedplan that go beyond submissions, as all appeal rights are limited to matters "that the person addressedin the submission" (see sections 150(1)(a) and 152(1)(a)).

The Council proposes that this subsection be amended to ensure that any changes recommended tothe proposed plan by the Hearings Panel are within the scope of submissions, unless they relate to the

Hearings Panel directing the Council to initiate a variation to the proposed plan, or they relate toalterations of minor effect or corrections of any minor errors.


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- Recommendation

The Council recommends that section 139(2) be deleted.

Section 140(3) Status of the spatial plan (Auckland Plan)

The Council supports the intent of this section, subject to the comments and recommendation below.

Discussion

This subsection requires the Hearings Panel to ensure that regard has been had to the Auckland Planwhen complying with subsection 1(f) in respect of section 66 of the RMA (which relates to thepreparation and changing of any regional plan). This is the only requirement for the Hearings Panel toconsider the Auckland Plan.

The Local Government (Auckland Council) Act 2009 (LGACA) required that the Auckland Plan be acomprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth and

development, and provide a basis for aligning the Council's implementation plans, regulatory plans,and funding programmes. Anticipating its links to RMA plans and strategies, the LGACA specificallyrequired the Auckland Plan to explicitly identify the existing and future location and mix of

(a) residential, business, rural production, and industrial activities within specific geographic areaswithin Auckland; and

(b) critical infrastructure, services, and investment within Auckland (including, for example,services relating to cultural and social infrastructure, transport, open space, water supply, wastewater,and stormwater, and services managed by network utility operators).

The primary means by which the Council, as a regulatory authority, can enable these outcomes is

through the Auckland combined plan.

The Auckland Plan was adopted in March 2012, following comprehensive engagement with communityand stakeholders on the plan's content and direction. In accordance with the LGACA's direction,central government, infrastructure providers (including network utility operators), the communities ofAuckland, the private sector, the rural sector, and other parties were involved throughout the plan'spreparation and development.

The Council seeks that the Hearings Panel be required to ensure that the Auckland combined plan beconsistent with the Auckland Plan given the high level of community buy-in to the Auckland Plan.Without greater legal weight in the panel's decision-making, the Auckland Plan will not achieve itspurposes as set out in the LGACA, and positive outcomes from the Auckland Plan in relation to matterssuch as land supply and urban growth cannot be assured.

- Recommendation

The Council recommends that section 140(3) be amended as follows:

(3) To avoid doubt, when When complying with subsection 1(f) in respect of section 66 of theRMA, the Hearings Panel must ensure that regard has been had to the its recommendationsare consistent with the spatial plan for Auckland prepared and adopted under section 79 of theLocal Government (Auckland Council) Act 2009.


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Section 143(3) Auckland Council may accept recommendations beyond the scope ofsubmissions

The Council opposes this subsection.

Discussion

For the reasons outlined above in relation to section 139(2), the Council opposes the Hearings Panelhaving the power to make recommendations beyond the scope of submissions. For the same reasonsthe Council should not have to power to accept recommendations beyond the scope of submissions.

- Recommendation

The Council recommends that this subsection be deleted.

Section 143(4) Auckland Council to no tify decisions within 20 work ing days


Discussion

This subsection requires the Council, no later than 20 working days after it is provided with theHearings Panel's report under section 141, to publicly notify its decisions. It must state, in respect ofeach recommendation of the Hearings Panel, whether it accepts or rejects the recommendation, and ifit rejects the recommendation, the reasons for doing so and its alternative solution.

The Council considers that 20 working days is insufficient for the Council to consider the report ofrecommendations of the Hearings Panel. The Auckland combined plan is a very broad rangingdocument, combining the regional policy statement, regional coastal plan, regional plan and districtplan for Auckland. The recommendations of the Hearings Panel will inevitably be extensive. A 20

working day time period, in reality, gives the Council little choice other than to accept the HearingsPanel's recommendation or reject it and stick with the proposed plan as notified. This is despitesection 139 specifically requiring the Council to give reasons for rejecting the Hearings Panelrecommendations, and to state an alternative solution (which may or may not include elements of theproposed plan and Hearings Panel recommendations). Put simply, 20 working days providesinsufficient time to give due consideration to the Hearings Panel's recommendations.

The Council therefore seeks 40 working days in which to make its decision on recommendations, and

that the Minister be able to extend that decision-making period where the Council so requests by an

additional 20 days.

- Recommendation

Accordingly, the Council proposes that subsection (4) be amended as follows:

(4) The Council must, no later than 20 40 working days after it is provided with the report undersection 141 . . .

Section 147 RMA provis ions relating to legal effect apply

The Council opposes this section as currently worded and seeks that it be amended.

Discussion

This subsection states that sections 86A to 86G of the RMA apply, with all necessary modifications, toa rule contained in the proposed plan.


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Section 86B(3) of the RMA provides that a rule in a proposed plan will have immediate legal effect ifthe rule -

(a) protects or relates to water, air, or soil (for soil conservation); or(b) protects areas of significant indigenous vegetation; or(c) protects areas of significant habitats of indigenous fauna; or(d) protects historic heritage; or(e) provides for or relates to aquaculture activities.

Under section 86B, therefore, many rules in the Auckland combined plan will have immediate legaleffect: that is effect from the date the plan is publicly notified. By contrast, other important rules in theproposed plan will only have legal effect after the Hearings Panel has made its recommendations, andthe Council made a decision on those recommendations. This period is, likely to be in the order ofthree years. This has the potential to significantly delay opportunities to take advantage of positiveoutcomes the Auckland combined plan is likely to enable on matters such as affordable housing,extensions of the RUB, and the availability of land for commercial and industrial development.

It may also be noted that while, under section 86B, rules with a focus on protecting natural resources

(and that have the potential to constrain development) will have immediate legal effects, rules thathave a focus on the built environment (and have the potential to encourage development) will not haveimmediate legal effect. Accordingly, there is likely to be an imbalance in what rules have legal effect,until such time as the Council notifies its decisions following the Hearings Panel recommendations.

The Council considers that section 147(1), as currently worded, is potentially inconsistent with theGovernments intention of simplifying planning processes, because the applicant will need to determinewhich rules in the combined Auckland plan do and do not have immediate legal effect. While that isthe case with any district or regional plan that is notified, the problem is exacerbated due to theAuckland combined plan containing both regional rules (many of which will have immediate effectunder section 86B but some of which will not) and district rules (most of which will not have immediatelegal effect under section 86B, but some of which will).

A particular reason for the first Auckland combined plan to have immediate legal effect is that there arecurrently 10 district plans, 4 regional plans and a regional policy statement in force in Auckland. Apartfrom the Rodney District Plan and Proposed Hauraki Gulf Islands plan, each of the district and regionalplans was made operative between 1999 and 2005, meaning they no longer reflect the present needsand aspirations of Auckland's communities. Statutory direction that the Auckland combined plan hasgreater weight than these documents would provide greater simplicity and certainty for the public andother stakeholders.

In addition, all of the Auckland combined plan other than rules (including objectives, policies andmethods) will have immediate legal effect from notification, and therefore will need to be considered byconsent authorities alongside relevant provisions in the existing, operative plans and regional policystatement. This raises the question of what weight consent authorities give to objectives, policies andrelevant other provisions in the Auckland combined plan, relative objectives, policies and other relevantprovisions in the existing operative plans. These judgements will need to be made by commissionershearing resource consent applications on a case by case basis, giving little certainty to applicants andother stakeholders in the resource consent process.

Giving the entire plan immediate legal effect will provide greater certainty to the public, businesscommunity and other stakeholders. Further, an amendment to the Bill stating that, from notification,greater weight is to be given to relevant provisions in the Auckland combined plan than to relevantprovisions in the operative regional policy statement and operative plans, will provide clarity to consentauthorities and greater certainty to applicants and other stakeholders in the resource consent process.It will also fast-track the positive outcomes under the Auckland combined plan noted earlier.

Auckland Council has considered the different ways in which rules in the Auckland combined plancould be made to have some legal effect from notification. The first, "status quo", option is that only


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those rules which fall within the scope of section 86B(3) of the RMA would have immediate legal effect.

As noted above, this is both confusing for the public and applicants, and undesirable in policy terms

because it postpones the development outcomes the Auckland combined plan will facilitate,

The second option is for Auckland Council to apply to the Environment Court for orders under section

86D of the RMA that particular rules in the Auckland combined plan (other than those already havingimmediate legal effect under section 86B(3)) have immediate legal effect. Apart from the inherent

uncertainty as to whether such applications would be granted, this option is impracticable because the

case would need to be made for each rule to have immediate legal effect. This would impose a huge

evidential burden on the Council and an enormous task on the Environment Court as the body

determining the application.

A third option is that the Auckland combined plan has the same immediate legal effect as all new plans

notified before the 2009 RMA amendments which inserted sections 86A to 86G of that Act. In other

words, the plan including all rules would have immediate legal effect, but very little weight compared to

the operative regional policy statement and operative regional and district plans, because it was only at

the start of the First Schedule process and hence had not been tested through submissions andappeals. Again, this option can be discounted for the reasons discussed above relating to uncertainty

and postponement of development outcomes facilitated by the Auckland combined plan.

Accordingly, the Auckland combined plan having immediate legal effect plus greater weight than the

operative regional policy statement and operative regional and district plans is considered to be the

most suitable option.

- Recommendation

The Council recommends that proposed section 147 be amended as follows:

147 RMA provisions relating to legal effect of rules do not apply

(1) Sections 86A to 86G of the RMA do not apply, with all necessary modifications, to a rulescontained in the proposed plan, all of which are to have immediate legal effect on and fromnotification of the proposed plan.

(2) Without limiting subsection (1), every reference to clause 10(4) of Schedule 1 must be readas a reference to section 143(4)(a).

It further recommends that a new section 147A be inserted as follows:

147A Weight to be given to proposed plan

When considering an application for resource consent under section 104 of the RMA, or arequirement under section 171 or section 191 of the RMA, a consent authority or a territorialauthority (as the case may be) must give greater weight to relevant provisions in the proposedplan than to relevant provisions in a regional policy statement or plan.

Section 149 Appeal rights


Discussion

This section provides that the only appeal rights available in respect of the Auckland combined planare the right of appeal to the Environment Court under section 150 and the right of appeal to the HighCourt under section 152. The Council considers it appropriate for appeal rights to be limited asprovided for in sections 150 and 152, given the significantly enhanced consultation process followed


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for the Auckland combined plan, and the enhanced hearing procedure before the Hearings Panelwhich the Bill provides. The enhanced procedure, akin to a board of inquiry process from which onlylimited rights of appeal are available under the RMA, will ensure robust decision-making at firstinstance, obviating the need for merits appeals to the Environment Court except where the Councilrejects a Hearings Panel recommendation.

- Recommendation

Section 149 is enacted in its current form.

Section 150 Right of appeal to Envi ronment Cour t


Discussion

Under this section a submitter can appeal to the Environment Court in respect of a provision or matterrelating to the proposed plan, that the submitter addressed in their submission and in relation to which

the Council rejected a recommendation of the Hearings Panel which resulted in a provision beingincluded in the proposed plan or a matter being excluded from the proposed plan.

The Council considers that the proposed hearings process will ensure all issues are robustlyconsidered. In situations where the Auckland Council makes an alternative decision (having rejectedthe recommendation of the Hearings Panel) without the benefit of hearing all the evidence, then theCouncil considers that the matter should be able to be appealed to the Environment Court.

- Recommendation


Section 152 Right of appeal to High Court on question o f law


Discussion

This section limits an appeal to the High Court to situations where a submitter addressed a provision ormatter in their submission, and the Council accepted a recommendation of the Hearings Panel whichresulted in a provision being included in the proposed plan or a matter being excluded from theproposed plan. Retaining a right of appeal on points of law is an important safeguard in the event ofthere being an error of law.

Equally, limiting the right of appeal points of law (except where the Council rejects a Hearings Panelrecommendation) is consistent with existing appeal rights under the RMA from boards of inquiry, whichthe process proposed for the Auckland combined plan closely resembles. Limiting rights of appeal topoints of law will prevent the merits of the Hearings Panel recommendations and Council's decisionsaccepting those recommendations being re-litigated, and the Auckland combined plan is madeoperative more quickly than would otherwise be the case.

- Recommendation


Section 155 Minister for Environment and Minister of Conservation to establish Hearings Panel


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Discussion

This section provides for the chairperson and other members of the Hearings Panel to be appointedjointly by the Ministers, following consultation with the Auckland Council and the Independent MaoriStatutory Board.

The Council considers that it should have more input, rather than merely being consulted with, in theappointment of the Hearings Panel. The Auckland combined plan deals with inherently local issueswhich require local knowledge. This is recognised to some extent in proposed section 155(4), whichrequires that panel members appointed collectively have knowledge of and expertise in relation to(amongst other matters) tikanga Mori as it applies in Tmaki Makaurau, and the manawhenua, andthe other people of Tmaki Makaurau. Equally, it suggests that Auckland Council should partner withcentral government in appointing the Hearings Panel, because it is best placed to identify who potentialmembers possessing the necessary local knowledge referred to in section 155(4)(d).

The Auckland combined plan will ultimately be Auckland Councils plan, and decisions whether or not

to accept the panel's recommendations will be made by the elected representatives of AucklandCouncil. Again, this suggests that the Council should be involved in the decision-making around themembership of the Hearings Panel.

Guidance can be drawn from the process for appointing directors to the Tamaki RedevelopmentCompany Limited. Of its five to seven directors, one is appointed by the Crown, one by the Council,the balance appointed by ordinary resolution of the shareholders (the Crown and Council), and thechairperson agreed by the Crown and the Council.

- Recommendation

The Council considers that section 155 should be amended as follows:

Section 155 Ministers and Auckland Council for Environment and Minis ter ofConservation to establish Hearings Panel

(3) The Hearings Panel must be appointed as follows:

(a) The Ministers have the right to appoint one member;(b) Auckland Council has the right to appoint one member;(c) The chairperson and other members must be appointed jointly by the Ministers after

consulting with and the Auckland Council after consulting the Independent Maori StatutoryBoard.

Consequential amendments should also be made to subsections (4), (7) and (8) by inserting the words"and the Council" after the word "Ministers".

Section 162 Funding of Hearings Panel and related activit ies


Discussion

This section provides for the Council to be responsible for all costs incurred by the Hearings Panel andfor the activities related to the performance or exercise of the Panel's functions and powers under thisPart. The cost implications of the Council being responsible for all costs incurred by the HearingsPanel are significant (likely to be several million dollars).

While the Council would normally be responsible for the costs incurred by Council hearing panels, inthe case of the Auckland combined plan, the hearing process will be significantly longer and more


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comprehensive. As noted above, the Hearings Panel's procedure will be more akin to a Board ofInquiry process.

The Council understands that generally the Governments approach is that responsibility for fundingshould follow responsibility for decision-making. The requirement that the Council be responsible forall costs incurred by the Hearings Panel runs counter to the government holding the final power ofappointment of the Chairperson and members on the Hearings Panel.

Furthermore, the significantly enhanced process before the Hearings Panel is, in many ways, the quidpro quo for the loss of a right to lodge merits appeals to the Environment Court where the Councilaccepts the Hearings Panel's recommendations. The government is responsible for the costs of theEnvironment Court, and accordingly stands to benefit from the reduction in Environment Court appeals.

The Council notes that the Hearings Panel has considerable scope to regulate its own procedure underproposed sections 124 to 138, including the power to require pre-hearing session meetings andconferences of experts, and to commission of reports. Under proposed section 159 the Chairpersonhas powers to decide how many members of the Hearings Panel are to be present at each hearingssession. The way these powers are exercised, in conjunction with the volume and complexity of

submissions on the proposed plan, are likely to have a significant impact on the overall costs to beborne by the Council under proposed section 165. Given these variables, it is not possible to estimate,in advance and with any degree of precision, of the overall costs of the hearings process. The Councildoes not oppose being responsible for costs incurred by the Hearings Panel, provided that Council andGovernment agree upon other aspects of the hearings process discussed in this submission.

- Recommendation

The Council recommends that, consistent with its earlier recommendation that it have a partnershipwith central government in appointing the Hearings Panel rather than simply a right to be consulted,section 162(3) should be amended as follows:

(3) For the purposes of subsection (1), each member of the Hearings Panel must be paid-

(a) remuneration by way of salary, fees, or allowances at a rate determined by agreed betweenthe Minister for the Environment after consultation with and the Council; and


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25 February 2013


SECTION 4 PROPOSED AMENDMENTS TO THE RESOURCE MANAGEMENT ACT 1991

The Council wishes to comment on several aspects of the proposed amendments to the RMA in Part 1of the Bill, as set out below. The Council also notes that it supports the intent of the Bill to introduce a6 month consent time frame for medium sized projects. However as the new provisions are complexthere is the potential for local authorities to interpret their requirement in different ways.

The key concerns for the Council in Part 1 are:

District plan tree protection provisions under clause 12;

Mandatory direct referral for resource consent applications under clauses 13, 33, 38 and 41;

Changes to section 32 evaluation reports, and new section 32AA further evaluation reportsunder clause 69; and

Changes to stopping the clock where a further information request is made during the resourceconsent process under clause 92.

However, the Council addresses below all significant matters in Part 1 (whether supported oropposed), in the order in which they appear in the Bill.

SUBPART 1 AMENDMENTS THAT COMMENCE DAY AFTER ROYAL ASSENT

Clause 7 Monitoring

The Council supports this clause subject to the comments and recommendations below.

Discussion

This clause enables regulation(s) to be made that will specify what a council should monitor and how itshould undertake that monitoring.

The Council considers that flexibility in the requirements imposed by regulations will be important

because some of the environmental issues and challenges, and consequently monitoring approaches,reflect local issues. Accordingly, the Council considers that a balance must be struck betweennational, regional and local requirements. As regulations will impose obligations and costs ontocouncils, their design needs to be done in collaboration with local government, including AucklandCouncil, and funding set aside to fund their implementation.

Clause 12 District plan tree protection provisions

The Council opposes this clause as currently drafted, and recommends amendments as discussedbelow.

Discussion

This change amends section 76(4A) of the RMA to clarify the extent to which a rule protecting a tree ora group of trees may be included in a district plan. A new definition of "groups of trees" is also pro

auckland plan committee feb agenda (1)

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