Agenda of Regional Planning Committee

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 18 September 2019

Subject: Proposed TANK Plan Change 9 Adoption for Notification

Reason for Report

1. This item seeks the Committee’s decisions to enable notification of proposed TANK Plan Change 9.

Background

2. The RPC considered a series of recommendations in respect of the TANK Plan Change at their meeting on 3 July 2019. Some of the recommendations were in respect of matters considered at the RPC meeting on 15 May and carried over to the July meeting.

3. The Committee did not make any decisions and instead directed a sub-group of RPC members, technical advisers, representatives from TToH and NKII and HBRS staff to consider and make recommendations on the issues identified by RPC tangata whenua representatives as still outstanding.

4. The RPC sub-group and advisors met twice (25 July and 1 August) and reported findings to the RPC meeting on 14 August. That RPC meeting did not proceed, however, feedback from the tangata whenua representatives on the TANK Plan Change draft V9.2 was provided and this led to a further meeting of the RPC subgroup on 22 August.

5. This report accounts for the findings of the sub-group, including recommendations for further amendments.

6. This item also encompasses all additions and amendments to Version 9 of the Plan as reported on at the 3 July meeting but for which a decision is still to be made. These amendments are provided still as tracked changes in Version 9.3 in attachment 1.

7. The supporting Section 32 report for these changes is provided as attachment 2 (electronically only). Decisions made in respect of this item are integrally linked to the Section 32 report which remains in draft as its content may be amended as a result of this report. Note that a peer review is currently being undertaken and advice from the peer reviewer will be tabled at the meeting.

8. Note also that the Implementation Plan (not attached to this report) is also a critical component of the TANK Plan Change. It provides further direction about how the proposed policies and rules are to be implemented, including commitments by various stakeholder organisations and mana whenua that reflect a collaborative approach to the ongoing TANK Plan Change process.

9. The topics described in more detail in this report as a result of directions by the RPC and discussions with the RPC sub-group are as follows.

9.1. Heretaunga Plains groundwater allocation limit

9.2. Policy direction for stream flow maintenance

9.3. Assessment of TANK Plan Change in relation to Outstanding Waterbodies PC7.

Allocation Limits and Stream Flow Management

10. The RPC considered alternatives to the allocation limit included in PC9 V9.1 for the Heretaunga Plains at their meeting on 3 July 2019. The discussion arose in relation to concerns about the potential effectiveness of the stream flow maintenance scheme that has been included to manage effects groundwater abstraction on stream flow and options for further reducing groundwater abstraction to address that concern.

11. Members of the RPC also expressed a view that the combined management provisions did not adequately provide for the range of instream values held for the Heretaunga Plains water bodies and there would be an adverse impact on tikanga Māori as a result of the stream flow maintenance scheme.

12. The draft plan contains a number of measures in relation to the management of water abstraction from the Heretaunga Plains water bodies. These measures are summarised in Table 1 in attachment 3.

13. The policy direction includes management of the Heretaunga Plains aquifers as if it was over-allocated as it prevents further allocation and re-allocation of water pending further information about and review of the:

13.1. actual water use

13.2. total allocated amount following review and replacement of all existing water permits

13.3. stream flow information

13.4. degree of success of the proposed stream flow management regime

13.5. effectiveness of other ecosystem improvements, and

13.6. appropriateness of the interim allocation limit in light of this review.

14. One component for water management is the establishment of an allocation limit. The draft included 90 M m³/year as an ‘interim’ allocation limit. It is substantially less than the currently allocated amount of around 140-160 M m³/year.

15. The interim 90 M m³/year limit, in combination with Policies 38 and 45 was intended to ensure that no new water can be allocated until the plan review is undertaken, even if water becomes available within allocation limits (a minor exception is currently provided for re-allocation to urban or community use but see further discussion below about Policy 45).

16. Although not expressed as such, the policies provide for a ‘sinking lid’ approach to water allocation until a review occurs following implementation of this Plan. This is made more apparent by suggested amendments listed in Table 1: List of issues and amendments.

17. Protection of surface water bodies is generally provided by specified minimum flows. These previously acted as cease take triggers for surface and groundwater takes that had been classed as stream depleting by virtue of their proximity to a stream.

18. The Heretaunga Plains Groundwater model shows all groundwater takes are stream depleting to a greater or lesser degree. The Plan proposes that existing groundwater takes that have a similar effect to a surface take will continue to be subject to a minimum flow cease take. The cumulative effect of all the remaining groundwater takes is now going to be subject to a management trigger flow that requires action to protect the stream flow and its associated ecosystem health. This is a new provision that directly addresses the stream depletion effect.

19. The management approach in the draft plan includes offsetting or mitigating the stream depletion effects of groundwater takes by maintaining stream flow through pumping groundwater or stored water into the stream. It enables water users to avoid a cease take restriction if water is pumped into streams to offset their depletion effect when flows fall below the specified trigger. Note however, that in one part of the Plains (the Paritua/Karewarewa area), the lack of certainty about groundwater and surface water connections and management opportunities is reflected in specific policy direction for further investigation, data collection and development of alternative management measures.

20. The draft Plan envisages that not all adverse effects associated with water abstraction in the Heretaunga Plains will be avoided, but that the management solutions included in the plan will remedy or offset adverse effects on ecosystems and instream values while still providing for the economic and social values of the abstracted water.

21. Tangata whenua sought further information about reductions in water allocation and use than were indicated by the modelling based on the 2012-13 drought year. Attachment 3 provides modelling information about the extent to which water use would need to be reduced in order to significantly reduce stream depletion.

22. The terminology of ‘interim’ is creating some confusion about the nature and role of this allocation limit. The 90 M m³/year reflects modelled use during the 2012-13 year. New permits issued subject to this plan will therefore only be provided where there is an existing permit due for expiry and each permit will be subject to an actual and reasonable assessment of water use that results in a defined annual or seasonal amount. Permits not expiring will also be called in and reviewed within ten years. For irrigators, this is based not only on use in the ten years up to 2017, it is also further subject to specified reliability of supply, modelled crop water demand and efficiency standards.

23. Industrial and commercial water abstraction will also be subject to this actual and reasonable assessment including demonstration of efficient water use. An exception for actual and reasonable is provided for urban water supply who must meet demands of urban growth through savings made in existing networks. This is further discussed in attachment 3.

24. The allocation limit was therefore considered interim because:

24.1. there is uncertainty about the current levels of water allocation and water use

24.2. it is not known whether the existing level of use (based on 2012-13) in combination with all the other management measures will adequately address adverse stream depletion effects

24.3. the resulting amount allocated following the expiry and review of existing consents is not yet known

24.4. it is unknown what, if any, measures would be needed to reduce allocation further to some other limit, and what the associated costs of further reduction might be

24.5. in making decisions about further reductions in water allocation and use, information about costs and benefits of any reduction will need to be determined

24.6. any further reduction in the allocation limit and any changes to the way water is allocated can only be done through a plan change process.

25. Other Plan provisions and ongoing information gathering, including more precise water and land use data and water quality information, will also impact on how the sustainable limit is to be more definitively determined upon review. In particular, the success of the stream flow maintenance and habitat enhancement schemes will be assessed in relation to their effectiveness in meeting ecosystem health and water quality objectives alongside the allocation limit and actual water use. While there is already a successful example of this sort of scheme in operation at Twyford, and the Heretaunga Plains groundwater model supports this solution for other streams, there is still a lack of confidence in its effectiveness that still needs to be assessed. The Plan sets up a staged management process that enables this to occur.

26. It was previously suggested that ‘interim’ be deleted because review Policy 39 already indicates it is subject to review. However, stronger direction about the interim and staged management nature of the plan provisions was sought by tangata whenua. This would better reflect their concerns about the effectiveness of the stream flow maintenance scheme in adequately protecting ecosystem health in the lowland streams and its role in the longer term.

27. Inclusion of ‘interim’ in respect of the allocation limit is therefore suggested as it reflects the intent of the review policy and the more staged approach towards more sustainable management. As a result of concerns, it is suggested that use of the term ‘interim’ is helpful although a further option to delete reference to a specific allocation limit is also included for consideration following.

RPC Sub-group feedback

28. As noted above, the numerical value of the allocation limit became an issue for mana whenua and for water users in relation to:

28.1. its origin (as modelled water use in a drought year)

28.2. whether it provides for the water body values in connected waterbodies

28.3. whether it reflected sustainable groundwater allocation

28.4. what future impact it might have on existing users including current and foreseeable municipal supply.

29. The Heretaunga Plains Groundwater model shows that if it does not increase any further, current water abstraction is not leading to ‘mining’ nor does it represent unsustainable rates of groundwater abstraction – however, further abstraction will cause increased levels of adverse effect, including on flows in connected waterbodies and access to groundwater if levels drop further.

30. The current level of abstraction has a cumulative stream depletion effect on connected waterbodies. The ‘current level of abstraction’ is not yet able to be definitively calculated and modelling was used to understand what it might be. A drought year was used as a worst case to enable various scenarios to be modelled and compared. Water use varies from year to year and in an average year will be less than the amount modelled for the drought year 2012-13.

31. The water use in this drought year was modelled at 90Mm³/year, but note that this amount does not necessarily reflect the new allocation regime. This is because the amount to be re-allocated (following review or replacement of existing permits) will be less than the amount modelled as re-allocation, particularly for irrigation, is on the basis of a limited volume that provides for slightly less than the amount needed at all times. Uniform application of the IRRICALC water demand model and efficiency of use standards that did not previously apply will be applied.

32. Furthermore, given the likelihood of further adverse effect if abstraction was to increase, the plan establishes new policy and rules to prevent new abstractions of groundwater and adopts a sinking lid approach that ensures any ‘returned’ water is not re-allocated. This occurs whether any numerical limit is established or not.

33. An alternative allocation limit of 80Mm³/year has been suggested but little evidence is available to support it, other than it is less than 90Mm³/year and may assist in reducing stream depletion effects. However, stream depletion management solutions are already an integral component of the draft plan. It remains to be confirmed (through the review policy direction) whether this management solution along with the new allocation regime is a sustainable option in comparison with further allocation reductions.

34. Given the debate about specification of a numerical allocation limit, further options for managing groundwater allocation have now been advanced. In order to avoid unhelpful debate about whether 80 or 90Mm³/year is the more appropriate limit, the draft proposed plan now includes provisions that:

34.1. Limit any allocation of water to existing actual and reasonable use, (Policy 34B and 35 and refer also to Policy 47, TANK Rule 7 and glossary)

34.2. Ensure no new allocation of water by establishing a prohibited activity for new takes, (Policy 34B and Rules TANK 7, 9 and 10a and Schedule 6)

34.3. If any water is returned through any permit review or reduction, it is not made available for re-allocation (sinking lid Policy 34B and 35)

34.4. Ensure transfers of water do not result in any new or increased water use (policy 43)

34.5. Review the success of these measures as per existing policy 39.

Prohibited activity for new water takes

35. Of the measures listed above, apart from not having a numerical limit, a new element to consider is the inclusion of a prohibited activity for any new water take. A resource consent application cannot be made for a prohibited activity and a consent cannot be granted. The prohibited activity status is the most restrictive of any activity status and therefore must be used with care. The prohibited activity status is only used when the activity in question cannot be contemplated in any circumstances. The decision to use it should be backed with strong evidence of its necessity, including justification through objectives and policies.

36. The Plan already provides objectives and policies that seek the sustainable use of the groundwater resource of the Heretaunga Plains. Its value for the needs of people and communities as well as its contribution to economic and social well-being is recognised, while also seeking to provide for the maintenance of groundwater levels and contribution of flows to connected waterbodies. The policy framework introduces restrictions and limits to enable objectives to be met.

37. One of the biggest challenges being managed by the plan is the cumulative effect of groundwater abstraction on connected waterbodies, including not just from consented activities but also in relation to permitted activities.

38. The policy direction is clearly aimed at both limiting any new allocation, while also reducing water use. This regime will apply until more data and information about water use and mitigation measures is available. This includes for permitted activity takes which are provided for, but at a significantly reduced level compared with what is currently authorised.

39. A prohibited activity is not inconsistent with, and may arguably better support this policy approach. While a prohibited activity poses a risk in relation to the level of certainty about whether a water take should not be contemplated in any circumstances, a water take allocation limit does by its very nature establish that a limit has been reached and no water should be allocated beyond it. A prohibited activity status avoids the potential for assessing a single activity as no more than minor while not fully accounting for cumulative effects of many such activities.

40. A new water use under this regime can still be established provided it is through a site to site transfer of an existing water use, or where water that is already allocated is shared with new users.

41. While tangata whenua sought a prohibited activity to protect water resource values, they consider that it would essentially confirm ‘grand-parenting’ for existing users and represents a ‘bitter pill’ in relation to their aspirations for access to the water resource. While there are opportunities still available through transfer or water storage this plan should however, also be seen as a staged approach to better management and allocation. Understanding current demand and use and establishing appropriate allocation limits is a first step to better allocation and management regimes. The next iteration of this plan may take the opportunity to re-consider how water is allocated in the future, including whether there are any other approaches available to address iwi rights and interests. By then, there may also be more national direction to assist in managing this challenging issue.

Non-complying water takes

42. If new takes were to continue as non-complying, the Act directs that councils can grant consent where an application can meet the following tests:

42.1. the adverse effects on the environment will be minor or

42.2. the application is not contrary to the objectives and policies of the plan.

43. The fact that either of the tests need to be met, but not both, means there is a risk that applications for new water use may be granted where they have minor effect, but this adds to the cumulative water take that is already causing adverse effects. The strong policy direction limiting new water use would, however, enable Council to decline such applications other than in exceptional circumstances.

44. A non-complying activity status would be appropriate if Council wished to enable contemplation of a water use proposal in exceptional circumstances. It could be that new resource information, such as from the proposed Skytem survey for example, indicates new or different understanding about the groundwater resource. Non-complying status would reflect the staged management approach of the plan provisions and the identified need for further data and information.

45. The arguments for and against prohibited are finely balanced – particularly given that it is decisions to prohibit water use application, an essential component of human health and well-being, that are being considered.

46. However, given:

46.1. the role of water allocation limits in preventing on-going degradation of water ecosystems from the effects of cumulative abstraction

46.2. existing concerns about the adverse environmental effects resulting from the current level of allocation

46.3. the options for site to site water transfers or sharing and water storage or augmentation to meet new demand

a prohibited activity status for takes beyond specified allocation limits is included in the Plan.

Springs and connected water bodies

47. The protection of spring flow and lowland stream ecosystems is of particular concern to tangata whenua and they note a range of uncertainties and issues with the scheme and in relation to the modelled management scenarios.

48. The lack of certainty that the Plan provisions will actually improve current poor state of some lowland tributaries remains a concern for tangata whenua. For example, it is known that not all streams affected by depletion can be managed in this way. For some, losses to groundwater will exceed any flow maintenance pumping (such as for the Karewarewa). In other circumstances, small tributary waterways may be too far from a cost effective pumping scheme solution.

49. The required detail for each scheme cannot be provided for at a Plan level as each scheme will depend on a range of local and site specific issues including identifying relevant water permits, abstraction and pumping options, and any other measures that a water user collective might develop to ensure stream flows are maintained, such as by rostering or changing points of take. Opportunities and constraints for stream flow maintenance solutions will need to be addressed in more detail through subsequent resource consent processes.

50. In order to address concerns about the stream flow maintenance scheme in a more transparent way, and to ensure scheme design and operation takes adequate account of the uncertainties and risks, new plan provisions have been developed that more clearly direct the management of stream flow maintenance and habitat enhancement.

51. Existing policy direction has been further strengthened and more detailed guidance provided for the outcomes expected from such schemes. The cumulative effects and consequent need for collective solutions has also been more clearly reflected in a new Schedule 11. The Schedule is modelled on the Farm Plan and Catchment Collective approach (as provided in Schedule 5) and allows for water users to pool resources and develop solutions to meet the objectives set in the plan. The key driver for these collectives is provided through the resource consent requirements for stream depletion management and the alternative solution that requires water takes to cease when flow triggers are reached.

52. The amendments are as described in Table 1 following.

Table 1: List of issues and amendments

	Issue	Amendments	Risk and Opportunities
1	The stream flow maintenance scheme does not fully remedy impacts on mauri or reflect tikanga or matauranga Māori.	Adverse effects of groundwater abstraction on mātauranga Māori and tikanga clearly acknowledged in Policy 34 as over-riding concern. Section 32 report to reflect nature of these concerns	Tangata whenua concerns may not be fully addressed by the Plan – but plan review process will enable reassessment about the extent to which adverse effects are to be further avoided or remedied and mitigated
2	Staged (or interim) approach to management	Policy 34 amended to describe components of staged management approach and new Policy 34 B describes allocation regime. Policy 39 for review remains with amendments to clarify what is being assessed.	Policy 34 more clearly describes the steps being used to develop sustainable groundwater allocation management for Heretaunga Plains groundwater.
3	The re-allocation of water based on the defined ‘actual and reasonable’ assessment.	Allocation for new water use is avoided as re-allocation is only in respect of existing permits and defined ‘actual and reasonable’ assessment. An exception for urban takes who have to meet planned urban development (HPUDS) within existing allocations. Policy 34B and 35 and 45	Existing investment is provided for, although is more constrained than previously to drive more efficient water use and management systems.
4	Any water that is unallocated, even if the total allocation is less than the specified limit, would not be re-allocated to any use until a review had been carried out- a sinking lid approach	If there is unallocated water it is left unused to provide additional protection for ecosystem values. Policy 43 deleted. Policy 34B and 47	Policy 45 previously allowed for re-allocation to urban use. Urban use must meet future demand within existing limits and through efficiency gains. Avoids further investment into water that might need to be clawed back if the allocation limit is further reduced
Either a limit 5a	Either: 1. An interim allocation limit be set at 80 M m³/year or 2. An interim allocation limit be set at 90 M m³/year.	The 90Mm³/year reflects the worst case modelled amount for a significant drought. Average use is estimated at 78 M m³/year 80 M m³/year is an intermediate number that reflects an intention to reduce allocations further Policy 34B, Rule TANK 10, Schedule 6.	The Plan currently provides for management of adverse stream depletion effects through stream flow maintenance provisions. The current groundwater levels are at an equilibrium if abstraction is not increased further. The review directions require all of the plan components to be assessed for effectiveness. This includes in relation to more accurate water use data.
Or no numerical limit 5b	No specific allocation limit be included but the combination of actions relied on to prevent new allocations and reduce current allocations	Combination of other provisions means limit is provided by preventing any new allocation of water to actual and reasonable and otherwise managing the HPs aquifer as over-allocated until review of plan provisions carried out	This more accurately reflects the uncertainties about the sustainable allocation limit and the impacts on water abstraction resulting from any changes beyond those already modelled. This also reflects the strong commitment for review of all aspects of water management for the aquifer because of the nature of the uncertainties and the significant potential costs and benefits associated with this decision.
6	Prohibited activity for new water uses	Non-complying rule now made prohibited and no consent can be applied for.	Prohibited provides greater level of control and better reflects concerns about the current level of allocation. Enables further over-allocation to be prevented. Avoids risk of allowing additional minor takes to add to the cumulative effects of all water takes. New water uses will rely on transfer of existing allocated water (subject to some limitations on site to site transfers). Risk that a future water use that might be contemplated in exceptional circumstances cannot be applied for.
7	The outcomes from stream flow maintenance and habitat enhancement scheme development and operation are more clearly provided for	Provides more clarity about obligations and expectations in respect of the design and operation of such schemes Policy 36 and new Schedule 11	Enables both flexibility and innovation while establishing minimum requirements.
8	Further direction included about how success of the stream flow maintenance and habitat enhancement scheme would be assessed.	Assessment criteria included in the policy and reflected in monitoring requirements for the schemes New Policy 37 and Schedule 11	Provides more clarity in relation to expectations and performance.
9	Concern that new clauses about constraints for developing large infrastructure over time creates a loophole for new use. (V9.1; Policy 34 Clause (h)(v).	The clause has been removed. More targeted amendment to Rule TANK 7.	The provision was not intended allow new development but to protect existing authorised commitments to water use. It has very limited application.
10	The development of the stream maintenance schemes needs to be in advance of water permit expiry	The implementation plan needs to be more explicit about council’s role in making sure the schemes are able to be developed and rolled out as consents expire and new applications are made.	Provides more clarity for consent applicants.

Amendments

53. As a result of further input and discussion by the RPC sub-group, a number of amendments to the Heretaunga Plains policies and rules, including a new schedule, have been developed to reflect the direction in Table 1 including associated amendments to the Implementation Plan. Amendments are shown in tracked changes in the attached Version 9.3 of the TANK Plan Change (attachment 1) and include Option 5b.

Outstanding Waterbodies in TANK Catchments

54. The RPC has made decisions on a change to the RPS for outstanding water bodies. An assessment of the TANK plan change for these water bodies is provided below. Since the last meeting of the RPC, the Special Tribunal has also released its (draft) decision in respect of the Water Conservation Order application for the Ngaruroro and Clive Rivers. The implications of the Draft Order are also described following.

55. The outstanding water bodies in the TANK catchments as listed in Proposed Plan Change 7 are:

55.1. Wetlands and lakes

55.2. Kaweka Lakes

55.3. Lake Poukawa and Pekapeka Swamp

55.4. Ngamatea East Swamp

55.5. Ngaruroro River

55.6. Tūtaekurī River

55.7. Taruarau River

55.8. Karamu River

55.9. Heretaunga Aquifer.

56. The Ahuriri Estuary is also identified as an Outstanding Water Body. The TANK Plan Change provides land and water management provisions in respect of freshwater bodies. The Plan must also ensure an integrated approach with respect to inputs to coastal waters and to that extent the TANK Plan Change addresses freshwater inputs to the Ahuriri Estuary and potential impacts on estuary values.

Requirements for Outstanding Waterbodies

57. The National Policy Statement for Freshwater Management (NPSFM) Objectives A2 and B4 require the protection of the significant values of Outstanding Waterbodies (OWB) while water quality is maintained or improved and that water is not over-allocated. The NPSFM objectives do not require improvement beyond the current state to enable a water body to become (more) outstanding.

58. Protection does not necessarily mean no further use or development. Guidance from the Ministry for the Environment states;

58.1. “The NPSFM objectives do not require that every aspect of the water body is fully protected, unless that is necessary to protect the outstanding characteristics. For example a water body may be outstanding because it is the habitat for an endemic freshwater fish, but protecting that fish may be possible even if some water takes and discharges are authorised.”

59. The RPS objectives requires protection of outstanding and significant values and includes several policies in relation to the preparation of regional plans and the consideration of resource consents.

60. Table 1 in attachment 4 shows how TANK refers to the water bodies and what provisions are included to protect identified values. A summary of the Plan provisions for the values identified in PC7 is provided as follows.

TANK Plan provisions for wetlands

61. Wetlands and lakes are assigned high levels of protection already, both as a result of existing RRMP rules that require no adverse effects as a result of specified activities, and further within the TANK catchments as all wetlands in the TANK catchments are recognised for their high natural, ecological and cultural values. With the exception of Lake Poukawa, the specific wetland/lake water bodies (Listed above) are not however, separately mentioned in PC9.

TANK Plan provisions for the Ngaruroro and Tūtaekurī Rivers

62. The indigenous species, ecosystem health, recreational activities and particularly natural character, instream values and hydrological functioning values of the mainstem of the Tūtaekurī and Ngaruroro rivers and four of their tributaries are protected and improved, particularly in relation to:

62.1. the establishment of freshwater quality objectives

62.2. prohibition on damming

62.3. high flow allocations

62.4. flow triggers for water abstraction at high and low flows

62.5. riparian land management.

63. The improvement to the values provided for by this range of measures will improve the mauri of the water bodies and is therefore intended to also improve cultural and spiritual values.

64. The provisions of the TANK plan go beyond the ‘protection’ of these existing values to improvement of them.

TANK Plan provisions for water quality

65. Water quality is subject to new TANK Plan Change objectives for the maintenance or improvement of freshwater quality. Freshwater quality state objectives are specified for a large range of water quality attributes. Attribute states are set in relation to the most critical or sensitive value for that attribute (e.g. E. coli levels represent maintenance and improvement of water quality for swimming, while clarity protects water quality for fish that rely on visual clarity for feeding).

66. The TANK Plan specifies that ‘maintain’ means ensuring the state of the attribute does not decline below its present state if it is already above the specified state, and must be improved if it is below the specified state. It does not allow for movement to a lower quality within an NPSFM band for that attribute.

67. Both the values identified in the TANK Plan Change and the significant values listed in the OWB plan change are therefore being protected and improved.

TANK Plan provisions for water quantity

68. PC9 introduces new allocation limits and flow triggers for both high and low flow abstraction, and includes a new limit for total abstraction from the Heretaunga Plains aquifer.

69. In particular, damming is prohibited to protect the natural character, instream values and hydrological functioning both for the Ngaruroro and Tūtaekurī Rivers and four of their tributaries. This serves to protect values such as jet boating and the braided reaches which are essential habitat for some bird species.

70. New allocation limits are also specified for both the Ngaruroro and Tūtaekurī Rivers at low flows. The allocation limits have been substantially reduced to reduce impacts of abstraction on instream values. Further, the Plan seeks to increase the minimum flow for the Tūtaekurī.

71. The TANK Plan Change recognises and manages a wider range of values in relation to water quantity in addition to the instream and intrinsic values and also addresses the needs of people and communities for water.

72. Both the values identified in the TANK Plan Change and the significant values listed in the OWB plan change are therefore being protected and improved.

TANK Plan provisions for ecosystem health

73. A key factor for improving water quality and ecosystem health is linked to good riparian land management. PC9 focuses on improved riparian management and includes milestones for both stock exclusion and riparian planting to provide shade. These provisions will improve natural character, instream values and water quality and habitat for indigenous species.

74. Both the values identified in the TANK Plan Change and the significant values listed in the OWB plan change are therefore being protected and improved.

RPS Policies for Outstanding Waterbodies (PC7)

75. New and amended objective and policy has been introduced into the RPS to identify and direct management of outstanding waterbodies as per the direction of the NPSFM. The RPS objectives requires protection of outstanding and significant values and includes several policies in relation to the preparation of regional plans and the consideration of resource consents

76. Table 2 in attachment 4 provides an assessment of the specific new policies introduced by PC7 in relation to the provisions of the TANK plan Change.

77. The overall assessment is that the TANK Plan Change does give effect to the RPS provisions for outstanding water bodies in the TANK catchments. However a couple of amendments are suggested to ensure the appropriate connections are made.

Ammendments

78. Objective 2- Amend clause (e) to read:

“The significant values of the outstanding water bodies in schedule 25 and the values in the plan objectives are appropriately protected and provided for.

79. Objective 15

Insert new clause “(f) the protection of the outstanding values of the Kaweka Lakes, Lake Poukawa and Pekapeka Swamp and the Ngamatea East Swamp”.

Water Conservation Order

80. The Special Tribunal found that a WCO should be made over the upper Ngaruroro River in respect of the following values or characteristics:

80.1. habitat for rainbow trout

80.2. rainbow trout fishery

80.3. angling amenity and recreation

80.4. white water kayaking and rafting amenity and recreation

80.5. wild, scenic and other natural characteristics.

81. The Tribunal did not find that an order should be made for the lower river(s).

82. The TANK plan change objectives acknowledge most of these values but some are not specifically mentioned such as ‘wild and scenic’. PC9 identifies the need to protect natural character and instream values generally. PC9 also refers to boating generically, including jet boating on braided reaches, although it does not mention kayaking or rafting in the upper river specifically.

83. Further, the Plan does not provide protection of the upper reaches separately; it is the natural character and all instream values of the entire river that are being protected by damming prohibitions for example. The water quality objectives are however differentiated between the upper and lower, with higher standards established for the upper, particularly reflecting their current high quality state. The water quality schedules in both documents are largely similar although there may be some technical amendments that may yet be made to the Order for clarity.

84. The TANK Plan establishes new allocation limits for the surface and groundwaters of the Ngaruroro catchment. No further groundwater can be abstracted and surface water abstractions are limited by new allocation limits that have resulted in the Ngaruroro River being considered over-allocated and subject to new policies and rules to manage this over-allocation.

85. Attachment 5 provides further assessment of the TANK Plan Change in relation to the draft order. However, no recommendations for changes to ensure PC9 is consistent with the Order are being made at this time. We suggest that the Council delays making amendments until the Order has progressed through all of its stages. A submission to the Council’s own plan can then be made, if timing permits or a variation to the Plan Change lodged when appropriate.

Other Issues

86. It is recommended that suggested amendments reported in respect of the 3 July report to the RPC are also incorporated into the Tank Plan Change for notification. A number of additional minor corrections and amendments have also been made to previous versions and are shown as tracked changes in Version 9.3 (attachment 1).

87. The accompanying Section 32 report that fulfils the requirements of the Act to evaluate appropriateness of the provisions, examine options and assess the efficiency and effectiveness of the measures as well as identify the costs and benefits and the risks of acting or not acting has been prepared and is attachment 2 (provided electronically only). It is still in draft and subject to decisions of this committee. The options for the notification process are being reported on separately to this meeting of the committee.

Consideration of Tangata Whenua

88. The TANK Plan Change when it is notified will have considerable potential impact on tangata whenua and the values they hold for water. This report arises in relation to their feedback on the pre-notification draft of the Plan Change and demonstrates that particular regard is being given to the advice received from iwi authorities.

89. The section 32 report describes how the TANK Plan change and the process of its development involved iwi and reflects iwi values.

Consideration of Climate Change

90. The Plan Change contains an objective that any decisions made in respect of activities and actions in the TANK catchment about land and water use take into account effects of climate change. The Plan considers long term impacts of decision making and incorporates the need for developing community resilience by making land use decisions that address multiple objectives and provides for the development of longer term water supply and demand strategies.

Strategic Fit

91. The Plan Change delivers on several of the Council’s strategic goals especially in relation to sustainable land and water use and efficient infrastructure.

Financial and Resource Implications

92. The Plan preparation process is incorporated in existing Council budgets. The implementation of the Plan will have significant impact on Council staff and other resources that have yet to be fully assessed.

Decision Making Process

93. Council is required to make a decision in accordance with the requirements of the Local Government Act 2002 (LGA). In this case, the decision about content is prior to the next step of making a decisions about notification as prescribed by the Resource Management Act and which will be subject to process steps prescribed by Schedule 1 of the RMA. Staff have assessed the requirements contained in Part 6 Sub Part 1 of the LGA in relation to this item and have concluded:

93.1. The decision about the content of the Proposed Plan Change 9 (TANK) does not significantly alter the service provision or affect a strategic asset

93.2. The persons affected by this decision are the Hawke’s Bay regional community

93.3. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make this specific decision about the content of the Proposed Plan Change 9 (TANK) without consulting directly with the community or others having an interest in the decision.

Recommendations

1. That the Regional Planning Committee:

1.1. Receives and considers the “Proposed TANK Plan Change 9 – Agree Amendments for Notification” staff report.

1.2. Agrees to the amendments described in this report being incorporated into the proposed TANK Plan Change 9 as proposed, as Draft Plan Change version 9.3 and incorporated into the Section 32 report.

1.3. Requests that staff prepare Proposed Plan Change 9 and complete the Section 32 report according to the amendments as noted in 1.2 above and subject to amendments identified by the Section 32 peer reviewer.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

2.1. Adopts the draft TANK Plan Change 9, as amended, as Proposed Plan Change 9 to the Regional Resource Management Plan for notification at the meeting on 25 September 2019.

2.2. Makes the Section 32 report available for public inspection when the Proposed Plan Change 9 is notified.

Authored by:

Mary-Anne Baker

Senior Planner

Ceri Edmonds

Manager Policy and Planning

Approved by:

Tom Skerman

Group Manager
Strategic Planning

Attachment/s

⇨1	Draft Plan Change 9 Version 9.3	Under Separate Cover
⇨2	TANK PC9 Section 32 Report *(electronic format only)*	Under Separate Cover
⇨3	Management Options and Modelling	Under Separate Cover
⇨4	OWB RPC Report 18 September 2019	Under Separate Cover
⇨5	Comparing TANK 9.3 and the Draft Water Conservation Order	Under Separate Cover

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 18 September 2019

Subject: TANK Plan Change 9 Options for Notification and Beyond

Reason for Report

1. A version of this report was originally published for the Committee’s meeting on 3 July 2019, but deferred. This report builds on that earlier report.

2. This item asks the Committee for its support for the medium track. If there is support from the Committee for the medium track (or indeed even the ‘fast track’) then staff will hold further discussions with Ministry for the Environment officials to seek the Environment Minister’s approval for a ‘streamlined planning process’ on the proposed TANK Plan Change 9.

Background

3. While drafting of the TANK Plan Change 9 continues to evolve and near completion, senior planning staff have considered a number of options for the process which the plan change may follow from public notification. Essentially there are three principal ‘speed-settings’:

3.1. Slow

3.2. Medium

3.3. Fast.

4. Previously, the Committee has received agenda items from staff on pathways to draft TANK Plan Change adoption (31 October 2018), TANK Plan Change pre-notification planning pathway (12 December 2018) and most recently (3 July 2019) this same item was deferred to this 18 September meeting. Since that July meeting, senior planning staff have had preliminary conversations with Ministry for the Environment who oversee SPP applications to the Minister. Staff have yet to draft an SPP application as that commitment will rely on whether or not the RPC opts to follow some type of SPP pathway.

Relevance of this item to Committee’s Terms of Reference

5. The purpose of the Regional Planning Committee as stated in section 9(1) of the Hawke’s Bay Regional Planning Committee Act 2015 is:

“to oversee the development and review of the RMA documents [i.e. the Regional Policy Statement and regional plans] prepared in accordance with the Resource Management Act 1991 for the [Hawke’s Bay] region.”

6. More specifically, clauses 4.5 and 4.6 of the current Terms of Reference state:

“4.5 To oversee consultation on any draft … plan change… (prior to notification).

4.6 To recommend to Council for public notification any … plan changes…”

7. Consequently, this report is presented to the Committee for a recommendation to be made to the Council for public notification of the TANK Plan Change and a process to be used for the notification and post-notification stage of that plan change.

Discussion

8. The ‘Slow’ (Standard) track is the RMA’s standard process. The Standard process features a number of mandatory milestones that a council must complete, but room exists for additional steps at the Council’s own discretion. Appeals can be made against the Council’s decisions and those appeals are heard ‘de-novo’ (anew) in the Environment Court. The Environment Court’s decisions can be challenged on points of law in High Court proceedings.

9. The ‘Fast’ track would use the minimum mandatory milestones and features that are now available in the RMA using a ‘streamlined planning process.’ The optional ‘Streamlined Planning Process’ (SPP) was introduced into the RMA by amendments in 2017. More detail about the SPP is outlined in paragraphs 13 to 22 of this report.

10. A ‘Medium’ track would use the minimum mandatory SPP milestones, plus some optional extra steps and features tailored for the TANK Plan Change’s own circumstances.

Standard Schedule 1 process

11. The purpose of the standard process is to provide analysis and transparent process for the development and change of RPSs, regional plans and district plans. This process provides extensive formal pubic involvement throughout the process and broad possibilities for appeal. The Standard process has been used since the RMA came into force in 1991. It is relatively well understood and there is a lot of good practice guidance available.

12. However, it can be a lengthy process due to a number of process steps and potential appeals. Under the standard process it can take years to develop and finalise a regional policy statement, regional plan or district plan. It can often take several years or more to complete a plan change and resolve any appeals^{^[1]}, depending on the issues, as speed of appeal proceedings largely rests with the Courts.

Overview of the Streamlined Planning Process (generally)

13. Recognising that the standard Schedule 1 timeframes are too long for plans to be able to respond to urgent issues, the Government amended the RMA in 2017 to enable councils^{^[2]} to make a request to the Minister to use a SPP proportional to the issues being addressed, instead of the standard planning process. The intent of that amendment is to enable a council to use a tailored plan making process under particular circumstances.

14. The SPP is an alternative to the standard Part 1 Schedule 1 process. Previously the RMA had only one statutory process (the standard process) and timeframe to prepare and change policy statements or plans, no matter how simple or complex the proposal. The purpose of the SPP is to give an “expeditious planning process that is proportionate to the complexity and significance of the planning issues being considered” (s80B(1) RMA).

15. If a council wishes to use a SPP, it must make a request to the Minister for the Environment (or the Minister of Conservation, if the process is for a plan or plan change concerning the coastal marine area). Before a council can make a request for a SPP, it must be satisfied that the proposed policy statement, plan, or change meets at least one of the following ‘entry’ criteria:

15.1. will implement national direction

15.2. is urgent as a matter of public policy

15.3. is required to meet a significant community need

15.4. deals with an unintended consequence of a policy statement or plan

15.5. will combine several policy statements or plans

15.6. requires an expeditious process for a reason comparable to those listed above.

16. A council cannot request the SPP if the proposed policy statement, plan, or plan change has already been publicly notified.

17. Any request to the Minister for a SPP from a council must contain:

17.1. a description of the planning issues and how the entry criteria are met

17.2. an explanation of why a streamlined planning process is appropriate instead of the standard planning process

17.3. a description of the process and timeframes the council proposes for a SPP

17.4. the persons the council considers are likely to be affected by the proposed policy statement, plan, change or variation

17.5. a summary of the consultation planned or undertaken on the proposed policy statement, plan, or plan change, including with iwi authorities

17.6. the implications of the proposed SPP for any relevant iwi participation legislation or Mana Whakahono a Rohe: Iwi participation arrangements (Mana Whakahono).^{^[3]}

18. The Minister must either:

18.1. grant the request, and issue a ‘Direction’ that sets out the streamlined planning process to be followed (i.e. a written instruction that a SPP applies)^{^[4]} or

18.2. decline the request, providing reasons for decisions.

19. A Direction from the Minister for a SPP must as a minimum include:

19.1. consultation with affected parties, including iwi authorities, if not already undertaken

19.2. public notification (or limited notification)

19.3. an opportunity for written submissions

19.4. a report showing how submissions have been considered, and any changes made to the proposed policy statement, plan or plan change

19.5. a section 32 and 32AA report, as relevant

19.6. the time period in which the SPP must be completed

19.7. a statement of expectations from the Minister that the council must consider during the plan-making process.

20. A Direction from the Minister may also include the following, but none are mandatory:

20.1. additional process steps (e.g. further submissions and/or a hearing)

20.2. any other timeframes

20.3. reporting or other planning process requirements.

21. The council must submit its proposed plan or plan change to the Minister(s) for approval before it can become operative. Only after approval by the Minister(s) can the plan change be made operative. The council must complete any reporting requirements specified in the Minister’s Direction and must have regard to the Minister’s Statement of Expectations.

22. There are no rights of appeal on plans or plan changes in a SPP. However like the Standard Process, council’s decisions can be subject to judicial review proceedings in the higher courts.

TABLE 1: Side by side comparison of standard process and SPP

Core elements	Standard RMA Part 1 Schedule 1	Streamlined Planning Process
Key phases	· Pre-notification consultation · Notification (full or limited) · Submissions, further submissions and hearing · Local authority decisions on submissions · Appeals · Made operative by the local authority.	· Application to Minister to use SPP · Ministerial Direction to local authority providing a tailored planning process · Pre-notification consultation (if not done already) · Notification (full or limited) · Submissions · Additional steps if required by the Direction · Local authority submits recommended plan change to Minister within specified timeframe · Minister approves/declines/requests reconsideration · Notified and made operative by the local authority.
Eligibility criteria	· No set criteria. Council can develop plan change at any time.	· Set entry criteria (refer paragraph 15). · Must be appropriate in the circumstances
Process	· Procedural steps and timeframes set of Part 1 of Schedule 1 in RMA.	· Can be tailored so it is proportional to nature of planning issues involved.
Timeframe	· No timeframe for pre-notification preparation phase · Statutory limit of two years between notification to issuing final decision of local authority · If appeals, can take several more years (no statutory limit on duration of appeal proceedings).	· Timeframes to be prescribed in Minister’s Direction. · Time required to liaise with Ministry officials and for Minister to issue his/her Direction before proposal is publicly notified. · Can provide faster process overall than other processes. · No plan appeals (merit or points of law) will reduce timeframes.
Costs	· Costs for pre-notification consultation · Costs for pre-notification preparation · Costs to publicly notify and process submissions · Costs of hearings and issuing decisions · Costs of Court appeal proceedings / litigation.	· Potential to develop a more cost-effective process, subject to the process as set out in Minister’s Direction. As a minimum, costs will include: o costs for pre-notification consultation o costs for pre-notification preparation o costs to publicly notify and process submissions and decision o reduced costs of litigation.
Involvement of tāngata whenua	· Consultation with tāngata whenua during drafting of plan change through iwi authorities · Seek views of iwi authorities on draft proposal · Provision of proposal to iwi authorities prior to notification · Consultation with tāngata whenua on appropriateness of appointing a hearings commissioner with understanding of tikanga Maori and of the perspectives of local iwi or hapu. · Can submit on proposal.	· Implications of process on existing iwi settlement legislation or Mana Whakahono a Rohe arrangements to be considered by the local authority when preparing request to Minister · Consultation with tāngata whenua via iwi authorities during drafting of plan change (if not done already) · Seek views of iwi authorities on draft plan change (if not done already) · Minister’s Direction must not be inconsistent with iwi participation legislation or Mana Whakahono a Rohe arrangements. · Can submit on proposal.

Core elements	Standard RMA Part 1 Schedule 1	Streamlined Planning Process
Final decision made by	Local authority	Local authority but must be approved by Environment Minister (who may decline or recommend changes to the local authority).
Appeal possibilities	· Available to any person who has made a submission or further submission · Merit (de-novo) appeals to Environment Court · Further appeals to higher courts on points of law · Judicial review of council’s decisions available.	· Judicial review of council’s and Minister’s decisions · No merit (de novo) appeals to Environment Court available · No appeals on points of law available.

Core elements

Standard RMA Part 1 Schedule 1

Streamlined Planning Process

Final decision made by

Local authority

Local authority but must be approved by Environment Minister (who may decline or recommend changes to the local authority).

Appeal possibilities

· Available to any person who has made a submission or further submission

· Merit (de-novo) appeals to Environment Court

· Further appeals to higher courts on points of law

· Judicial review of council’s decisions available.

· Judicial review of council’s and Minister’s decisions

· No merit (de novo) appeals to Environment Court available

· No appeals on points of law available.

Is the TANK Plan Change eligible for a SPP?

23. Yes. Given the entry criteria set out in paragraph 15, planning staff consider that the TANK Plan Change would easily pass at least the first ‘entry’ criterion and also some of the others (noting only one is required to be eligible).

24. Notwithstanding that there is some time to be invested at the front end of the process to enter into a SPP^{^[5]} before notification of the proposed plan change, that relatively small amount of time can readily be compensated by a vastly streamlined submission phase (with or without a hearing) through to a final decision - the merits of which cannot be appealed to the Environment Court or High Court.

Would a SPP for the TANK Plan Change be proportionate to the complexity and significance of the planning issues being considered?

25. Maybe. Planning staff do consider it to be entirely valid and legal for a tailored post-notification process to be followed rather than presuming the standard Schedule 1 process is the only viable option. However, the degree of ‘streamlining’ needs to be commensurate with the complexity and significance of the issues being addressed in the TANK Plan Change and the process thus far in preparing PC9.

26. The Committee will be well aware of the TANK Plan Change’s origins, evolutions and extensive drafting involved in the TANK Plan Change over the past six years, particularly the past two years’ of far greater intensity of effort. Preparation of the TANK Plan Change with a collaborative group and also evaluation by the RPC’s co-governance arrangements has been a journey never experienced by this council before in RMA plan making. The details of the plan change content and its process thus far are not repeated in this paper as that has been well documented in recent presentations to the RPC.

27. While the TANK Plan Change addresses a number of complex science and social issues, the long lead-in time and high level of community and stakeholder involvement in the preparation of the plan change has meant relevant parties are familiar with the complexity and issues and a medium-paced streamlining being recommended reflects this.

28. Senior planning staff leading the TANK Plan Change project consider that a ‘fast’ or ‘medium’ SPP would deliver an operative plan change far sooner than the Standard Schedule 1 ‘Slow’ process. Nonetheless, senior planning staff do not consider that a SPP with only the minimum legal steps (i.e. the ‘fast’ speed) would be proportionate to the TANK Plan Change’s significance and complexity. That ‘bare minimum’ option is not being recommended.

29. The speed of progressing the TANK Plan Change to an operative state (through whatever pathway) still of course ought to be balanced with a need to ensure the plan provisions are robust; public feedback on the proposed plan change is suitably considered; and the Council ticks all relevant legislative requirements along the way.

30. Inevitably some parties may feel aggrieved that by using the SPP, the rights to Environment Court appeals are unavailable. It is true that there are no Environment Court appeals in a SPP because that is what the RMA was amended to do in 2017. Nevertheless there are other opportunities for parties to get involved in influencing the TANK Plan Change after it is publicly notified. Indeed, in the ‘medium’ SPP speed-setting being recommended by planning staff, there are added opportunities for public participation than just the bare minimum SPP.

31. For the TANK Plan Change, planning staff recommend a SPP with the minimum legal requirements, plus several discretionary extras. Those ‘extras’ being:

31.1. an extended submission period

31.2. a period for lodging further submissions

31.3. a hearing of submissions by panel of three to five experienced commissioners, and

31.4. Council having an opportunity to provide feedback on hearing Panel’s draft report).

Submission period

32. A period for making submissions is a mandatory requirement of a SPP, but the RMA does not prescribe the duration of that period. By comparison, the RMA does specify a minimum twenty working day submission period on proposed plan changes. The Council (or Minister’s SPP direction) could specify an extended period (say, thirty working days) to enable would-be submitters more time to review the TANK Plan Change’s proposals and then prepare a well-considered clear submission.

33. It is also worth noting that draft versions of the TANK Plan Change have been publicly available for viewing since January 2019 so much of its content will not appear as a surprise to affected parties upon its release. The TANK Plan Change project thus far has featured an extraordinary degree of publicity and public profile before it has even been publicly notified as a proposed plan change.

Further submissions

34. Further submissions are part of the Standard (‘slow-setting’) Schedule 1 process. The RMA specifies a fixed ten working day period for lodging further submissions. Further submissions can only be made in support or opposition to a submission lodged in the original submission period. People who make further submissions have the same ability as an original submitter to participate in subsequent hearing processes if a hearing is held.

35. A round of further submissions in a SPP for the TANK Plan Change could add a degree of rigour to assessing the merits of requests made in the original submissions. Equally, the RPC might choose to not include the further submissions phase as it is a discretionary extra in a SPP process.

Hearings Panel

36. Another degree of rigour over and above the minimum mandatory SPP features could be added by Council appointing a three to five person panel of suitably experienced and accredited RMA hearings commissioners to hear and test merits of matters raised in submissions. Commissioner hearings panels are typical features of the standard Schedule 1 process.

37. Incorporating a hearings process (as well as further submissions) into the SPP might offer some comfort and familiarity of process to people who might otherwise regularly make submissions on proposed RMA plans/plan changes, while still keeping a relative degree of streamlined process in place.

38. Incorporating a hearings phase will also motivate parties to put their respective best case forward in submissions and at the hearing. In a SPP, there is no scope for parties to behave in a way that ‘keeps their powder dry’ for another day pending an Environment Court hearing.

39. Sections 39-42 of the RMA relate to powers and duties in relation to hearings. This is typically done by directions from Chair of the Panel. For example, the Panel may choose to direct a timetable for the preparation and exchange of parties’ evidence (in a similar fashion commonly employed by the Environment Court); directions for pre-hearings meetings and/or expert conferences; protocols for the presenting of submissions at the hearings; how and who has the right to ask questions at the hearing, etc. Planning staff consider it is more appropriate that the Panel exercises its discretion and judgement on those sorts of matters nearer the hearing rather than attempt to prescribe them in the process before the process has commenced. The Panel will have the benefit of exercising their discretion after submissions have closed and viewing the scale, character and complexity of matters arising in those submissions.

40. For avoidance of doubt, the RPC’s terms of reference do provide for accredited and experienced members of the committee to be eligible for hearings panel selection. They are not excluded just because they are a member of the RPC, but often there are a range of factors that influence selection of panel members.

HBRC feedback on Hearing Panel’s draft report

41. Planning staff also suggest there is a great deal of merit in the Council having an explicit opportunity to review the hearings panel’s draft report before being finalised. This is considered an important tailored step so that any amended provisions being suggested by the Panel can be checked for their coherency, clarity, technical accuracy and importantly the TANK plan change’s ‘implement-ability.’ This check-in step was missing from the Board of Inquiry process for Plan Change 6 (Tukituki River catchment) and subsequent implementation of PC6 has not been without its challenges.

42. To be clear, this feedback loop is not intended to give the Council an opportunity to re-litigate the merits of the Panel’s recommendations. Rather, it is a quality control check on the implementablility of the Panel’s recommendations with the HBRC being the principal agent carrying responsibility for implementation of the TANK Plan Change.

NPS-FM Implementation Programme and consequential timeframes

43. Committee members will recall that the Council is currently obliged to fully implement the NPS-FM into the RPS and regional plans by 31 December 2025 (or 2030 in limited circumstances). However, on 5 September, the Government released proposals that the 2030 extension would be revoked in rewritten NPS-FM slated to come into force in 2020.

44. There is a very real risk that the longer it takes for the TANK Plan Change to reach an operative state, then the timeframes to commence and complete NPS-FM planning in all the remaining catchments (e.g. Wairoa, Mohaka, Esk, Aropaoanui, southern coast and Porangahau) will become ever increasingly compressed.

Applying TANK Plan Change limits to existing activities

45. A proposed plan change does not have an immediate effect on existing resource consents nor on existing lawfully established activities. Consequently, those activities may continue under the existing terms and conditions until the TANK Plan Change is made operative.

46. After the TANK plan change becomes operative, then notably:

46.1. the six month timeframe for expiry of existing use rights commences if those existing uses would no longer comply with the new rules (refer s20A of RMA)

46.2. generally, the Council can initiate reviews of existing consent conditions so they are better aligned with relevant provisions arising from the operative TANK Plan Change

46.3. commence to implement new rules for production land activities.

47. So in short, the sooner the TANK Plan Change reaches its operative milestone, then the sooner Council may instigate actions to adjust operating parameters for existing activities.

Action for health waterways – a discussion document on national direction for our essential freshwater

48. On 5 September 2019, the Government released a discussion document proposing new national direction on our essential freshwater. The proposals include introducing a new freshwater planning process, a rewritten new national policy statement for freshwater, national standards for freshwater, and national regulations for excluding stock from waterways. The Government’s intention is that these proposals pass through their respective processes to come into effect in mid-2020. Until then, the proposals remain proposals without any legal effect.

49. As noted in paragraph 42, the proposals include compressing timeframes for plans and policy statements to fully implement the [new 2020] NPS so that decisions on submissions released before 31 Dec 2025 (and by inference plans publicly notified for submissions two years prior to that, i.e. 2023).^{^[6]} To achieve this highly compressed timeframe, Government is proposing amending the RMA to introduce a new mandatory plan-making pathway for freshwater-related plans and plan changes. Notably, the proposed mandatory process would:

49.1. not apply to any plan or plan change that has been publicly notified (i.e. not able to apply retrospectively)

49.2. feature submissions hearings by panel of Commissioners and decisions by the Council and

49.3. restrict Environment Court appeal rights to specific limited circumstances.

50. Realistically, the RMA amendments required to establish this new mandatory process are unlikely to be in force until mid-2020 at the earliest.

Considerations of Tangata Whenua

51. Tāngata whenua have special cultural, spiritual, historical and traditional associations with freshwater. For Māori, water is a taonga of paramount importance.

52. Mana whenua and iwi have been involved throughout the TANK Plan Change process with the TANK Group itself and through recent pre-notification consultation as discussed in a separate staff report for the RPC meeting on 3 July 2019. That consultation report provides particular attention to issues raised by tāngata whenua and the Council must have particular regard to this advice.

53. There will be an opportunity for iwi authorities, tāngata whenua (and any other person) to make a submission on the proposed TANK Plan Change after it is publicly notified – irrespective of whichever slow, medium or fast track may be chosen.

54. When considering an application for a SPP, the Minister will be required to consider any relevant obligations set out in iwi participation legislation, mana whakahono ā rohe, or any other matters the Minister considers relevant, as well as the statutory purpose of SPP. The Environment Minister must also consult with any other relevant Ministers of the Crown (e.g. Minister of Conservation, or Minister of Crown/Maori Relations etc).

Financial and Resource Implications

55. Preparation of the TANK Plan Change, including the post-notification phase is provided for within the existing budgets. Staff consider that overall, the costs of a SPP would be less than potential costs of a Standard process and the likely litigation of council’s decisions after submissions and hearings.

Conclusion

56. With the SPP option now available in the RMA, planning staff do not recommend using the traditional Standard process for the TANK Plan Change. Rather, staff do recommend applying for the Environment Minister’s approval to use a SPP for the TANK Plan Change.

57. Given the unique pathway of the TANK Plan Change’s development to this point, planning staff consider it is entirely appropriate and commensurate that the TANK Plan Change’s post-notification stage is a tailored form of SPP that includes (subject to Minister’s approval):

57.1. the minimum mandatory features (refer paragraph 19)

57.2. the following optional extra features:

57.2.1. an extended submission period of thirty working days

57.2.2. a further submission period of ten working days

57.2.3. a hearing by a panel of three to five suitably experienced and accredited RMA hearings commissioners to provide a report and recommendations back to the RPC and Council. HBRC would select and appoint the commissioners.

57.2.4. a directive that the hearings panel seek feedback from HBRC on its draft report prior to the panel finalising that report and recommendations.

58. On this basis, planning staff consider that an overall timeframe of 12 to 18 months from notification of the TANK Plan Change to an operative plan is realistic. By comparison, a ‘fast track’ SPP would be slightly shorter while the standard (slow-setting) Schedule 1 process is likely to be significantly longer, perhaps by several years.

59. While the Government has recently released a package of proposals for improving national direction on freshwater management, those proposals remain just proposals. The freshwater planning process is reliant on legislative amendments before it becomes real. The SPP is already a legitimate process in legislation. The medium-paced SPP from submissions to hearings and decisions is not too dissimilar to the Government’s recent proposals.

60. To further streamline any such SPP process, it is likely that a number of operational matters and decision-points which can be efficiently actioned if the Chief Executive and/or Group Manager Strategic Planning held the appropriate delegations. Delegations relating to the Standard process have been in place for many years now, but a separate paper needs to be prepared in the coming months outlining what those delegations might be if a SPP is accepted by the Minister.

Decision Making Process

61. Council is required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

61.1. The decision does not significantly alter the service provision or affect a strategic asset.

61.2. The use of the special consultative procedure is not prescribed by legislation.

61.3. The decision does not fall within the definition of Council’s policy on significance.

61.4. The persons affected by this decision are any person with an interest in management of the region’s land and water resources. In any event, those persons will have an opportunity to make a submission on the proposed TANK Plan Change after it is publicly notified – irrespective of whichever slow, medium or fast track may be chosen.

61.5. The decision is not inconsistent with an existing policy or plan.

Recommendations

That the Regional Planning Committee:

1. Receives and considers the “TANK Plan Change 9 Options for Notification and Beyond” staff report.

2. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion and make decisions on this issue without conferring directly with the community.

3. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

3.1. subject to Minister’s approval, agrees that a streamlined planning process be used for notification and post-notification stages of the proposed TANK Plan Change (Plan Change 9)

3.2. subject to Minister’s approval, agrees that the streamlined planning process be at least the mandatory steps, plus the following additional steps tailored for the TANK Plan Change’s circumstances:

3.2.1. a submission period of thirty working days

3.2.2. further submissions

3.2.3. hearing by panel of three to five suitably experienced and accredited RMA hearings commissioners to provide report and recommendations back to Regional Planning Committee and Council

3.2.4. requirement for the panel to seek feedback from the Council on its draft report and recommendations prior to the panel finalising that report and recommendations.

3.3. instructs the Chief Executive to prepare and lodge an application to the Minister for the Environment for the TANK Plan Change to follow a streamlined planning process featuring those matters in recommendation 3.2 above.

3.4. notes that a Streamlined Planning Process will likely require some operational activities to be delegated to the Chief Executive and/or Group Manager Strategic Planning to further streamline new operational steps and milestones associated with the process tailored for the TANK Plan Change 9. Details of those will be in separate briefing to Council in near future.

Authored by:

Gavin Ide

Principal Advisor
Strategic Planning

Approved by:

Tom Skerman

Group Manager
Strategic Planning

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 18 September 2019

Subject: Hawke's Bay Regional Planning Committee Terms of Reference

Reason for Report

1. This item provides an annotated version of revised Terms of Reference (TOR) for consideration by the Committee, which incorporates relatively minor amendments to align the TOR with the Hawke’s Bay Regional Planning Committee Act 2015 (HBRPCA). The version presented is deliberately an interim one, whilst the RPC continues to work through several other matters relating to the committee’s performance, scope and relationships. Therefore, the revised TOR presented in this item does not attempt to fully and finally settle all content.

2. This item recommends that the Committee endorses an interim revised version of TOR for referral to the Appointers for their agreement. This would mean the more substantial or contentious matters remain unsettled, pending further work by members of the Committee.

Brief Background

3. The RPC operated as a joint committee of Council with interim TOR for several years prior to the HBRPCA passing into legislation in August 2015. The interim TOR were provided for in the HBRPCA, and adopted by Council on 26 February 2014 with minor editorial corrections. These are the current TOR for RPC.

4. Earlier stages of the TOR review were overseen by the RPC Co-Chairs and Deputy Co-Chairs. Some legal advice was sought to inform earlier TOR drafting and alignment with the HBRPCA. A number of staff reports and revised TOR have been prepared and considered by the RPC through the 2016-18 period. A summary of the TOR review history was presented to the RPC meeting on 21 March 2018, so is not repeated here. However, Table 1 does present a brief sequence of meetings and minutes since March 2018.

Table 1 – Summary of RPC meetings and minutes March 2018 to 3 July 2019

2 May 2018	Staff report (Item #3) presented to RPC a marked up TOR for approval of amendments that were not matters^{^[7]} being considered as part of the [then concurrent] first statutory review of the RPC”s performance. Minutes record that the item was left to lie on the table for referral of a version with minor technical amendments agreed by the Co-Chairs and Deputy Co-Chairs to a workshop session for all committee members to attend.
20 June 2018	Follow-up item recording that TOR workshop for RPC members is scheduled to follow 20 June RPC meeting. At meeting, quorum not established so RPC meeting immediately lapsed. Minutes record that: a) Quorum was not established so RPC meeting immediately lapsed at 9:05am. b) Discussions continued following meeting lapsing and record that “The Co-Chairs and Co-Deputy Chairs agreed the content of the TOR with the inclusion of the purpose of the Committee from the Act (noting some substantial amendments to TOR previously agreed by the Committee to be set-aside pending the RPC performance review process).”
31 Oct 2018	Staff report (Item #6) presented to RPC to “To report on and conclude the Appointers’ statutory obligation to undertake a review of the performance of the RPC.” Staff recommended RPC receives and notes the staff report. Minutes record that: “RPC considered that insufficient feedback was received from Treaty Settlement partners, and therefore this item is deferred until such time as the Te Pou Whakarae has met with the entities and formulated their feedback.”
12 Dec 2018	Staff report (Item #5) recommended RPC resolve that the HBRPCA Section 10(2)(a) review of the performance of the RPC has been completed. Minutes record that [RPC55/18] motion to accept the staff recommendation was LOST. “As the resolution was lost, staff sought feedback on how to proceed, however were not provided with any guidance or direction on how, or whether, to draw the statutory review to a close.”
3 July 2019	Follow-up item (from 2 May 2018 meeting) recorded action as “this version accepted by PSGEs to be considered and discussed by the Co-Chairs and Deputy Co-Chairs prior to being brought back to RPC as ‘recommended’ by them for adoption.” Status comment from staff responsible was “In progress.” Minutes record that “In relation to the Committee’s Terms of Reference it was agreed that the next meeting of the Co-Chairs and Co-Deputy Chairs would pick this up again and progress it as agreed 2 May 2018 that “this version as accepted by PSGEs - to be considered and discussed by the Co-Chairs and Deputy Co-Chairs prior to being brought back to RPC as ‘recommended’ by them for adoption.”

5. Despite work over several years, a revised TOR has not yet been agreed upon. That leaves the RPC operating under both the HBRPCA and TOR adopted in February 2014 (prior to the HBRPCA coming into effect). The HBRPCA requires terms of reference to specify a number of matters that are not addressed in the current 2014 TOR.

Who approves amendments to the Terms of Reference?

6. Section 12(2) of the HBRPCA says that the TOR may be amended by the written unanimous agreement of the Appointers. That is, any review and amendment of the TOR is not mandatory but is at the discretion of the Appointers.^{^[8]}

7. While all RPC members have committed to the review process, the ultimate decision to agree upon amendments to the TOR sits with the Appointers. However, it is acknowledged that acceptance by the RPC in the first instance is highly desirable before seeking the Appointer’s approval of amended TOR.

8. Figure 1 illustrates the basic sequential steps to approval of revised TOR.

Figure 1 – overview of sequential steps to approving revised RPC terms of reference

Options Assessment

9. There are three main options for the Committee, being:

9.1. Do nothing (not recommended)

9.2. Seek agreement to a fully revised TOR (ideal, but not recommended)

9.3. Seek agreement to partially revised TOR as an interim working solution (recommended).

Option 1: Do nothing / Status quo

10. The current TOR and HBRPCA need to be read and applied side-by-side because a portion of the HBRPCA provisions are not adequately captured or reflected in the TOR. Doing nothing would leave in place the 2014 TOR, which does not best align with the HBRPCA. This is a sub-optimal approach with limited longevity and therefore, is not recommended.

Option 2: Seek agreement to a fully revised TOR

11. RPC members have discussed a range of matters informing the TOR review at some length during 2017-18. A package of relatively uncontentious (a.k.a. vanilla) amendments was presented to the RPC in May 2018 with a proposal to set aside a number of other matters that were being considered within scope of the [then concurrent] RPC Performance Review (refer footnote 1 above).

12. Members of the RPC are working through a number of issues regarding improving the performance, functioning and effectiveness of the RPC model – some of which are necessary matters to include in a revised TOR. However, until those issues are resolved, more contentious matters in TOR amendments ought to remain set aside.

Option 3: Seek agreement to a partially revised TOR to apply as an interim approach

13. Option 3 involves progressing the relatively minor amendments so that the current 2014 TOR is somewhat better aligned with the HBRPCA. In this way, it would be an interim solution that uses the current 2014 TOR as a base, then:

13.1. incorporates those minor corrections, editorial improvements, and other amendments that improve alignment with the HBRPCA; meanwhile

13.2. setting aside those matters which were within scope of the first statutory review of performance of the RPC (refer Footnote 1).

14. Attachment 1 is the proposed (clean) version of the draft TOR resulting from the interim approach. Attachment 2 is the same document but with all tracked changes visible. Note, as above, this is sub-optimal but is considered better than the status quo/do nothing option (1). Option 3 also yields necessary and immediate results, which Option 2 cannot since the latter is subject to further discussions, which may not be resolved for some time.

15. Notwithstanding that there are several matters still for Committee members to resolve (i.e. as identified in Footnote 1 from RPC meetings in early 2018), the interim amendments would enable clearer administration and operation of the RPC and immediately improve consistency between the HBRPCA and the current TOR. This option is therefore recommended.

Alignment with the Hawke’s Bay Regional Planning Committee Act 2015

16. The principal matter that remains missing from the TOR in Attachment 1 but is required by the HBRPCA, is specification of a process for resolving disputes. Section 12(1)(c) of the HBRPCA says that the TOR must provide for “the procedures relating to … dispute resolution…” In the draft TOR presented to the RPC in May 2018, the then draft disputes resolution clauses were set aside in to the bundle of substantive amendments warranting further work by committee members. For ease of reference, the wording presented in May 2018 was:

“15.Dispute resolution

15.1 Clauses 15.2 to 15.6 of these Terms of Reference shall apply if:

15.1.1. there is a dispute between:

15.1.1.1. Members of the RPC; or

15.1.1.2. the RPC and the Council; or

15.1.2. the Independents appointed under clause 12.2 of these Terms of Reference cannot reach agreement on the level of remuneration for Tāngata Whenua Members.

15.2. The parties to the dispute or the Independents (as the case may be) will use their best endeavours and act in good faith to settle the dispute or reach agreement by negotiation and discussion.

15.3. If within 20 working days the dispute is not settled or the Independents have not reached agreement, the matter will be submitted for mediation by a single mediator agreed to by both parties.

15.4. The mediator will determine the procedure and timetable for mediation.

15.5. Both parties will endeavour to reach an outcome that is acceptable to the other.

15.6. Neither party can represent the other or speak on the other’s behalf in any statements about the dispute or matter of disagreement.

15.7. The fees and expenses of the mediator will be met by the Council.”

17. If the RPC members were to agree that the above (or something similar) disputes resolution procedure be incorporated into the TOR, then the TOR would be far better aligned with the HBRPCA than the current terms of reference.

Strategic Fit

18. The RPC is a standing joint committee of the Hawke’s Bay Regional Council and is integral to assisting the Council to achieve its strategic goals insofar as the RPC’s role relates to the preparation, review and changes to the HB Regional Resource Management Plan and the HB Regional Coastal Environment Plan. Practical and workable terms of reference for the RPC are necessary for clearer, effective operation of the RPC now and into the future.

Considerations of Tāngata Whenua

19. Tāngata whenua members of RPC and some of the tāngata whenua Appointers have been involved to varying degrees throughout the TOR review process. Improving the operations of the RPC should positively impact on the participation of all members, including tāngata whenua. There are no identified negative impacts on tāngata whenua, subject to the consideration that members need to do further work on those matters set aside within scope of the [then] RPC Performance Review.

20. The decision for the RPC to agree and refer revised TOR to the Appointers does not require additional consideration of iwi planning documents, or Treaty settlement legislation. The required legislative considerations have been outlined in this item and earlier staff briefing papers, including the HBRPCA, the LGA and the RMA.

Financial and Resource Implications

21. The act of agreeing to revised terms of reference has little direct immediate impact on the Council’s resourcing and financing. The degree of financial and resourcing implications will largely depend upon what the agreed revisions may specify. If an interim revised TOR is agreed (as recommended in this item), then the financial and resource implications are modest.

Decision Making Process

22. Council is required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

22.1. The decision does not significantly alter the service provision or affect a strategic asset.

22.2. The use of the special consultative procedure is not prescribed by legislation.

22.3. The decision does not fall within the definition of Council’s policy on significance.

22.4. The persons affected by this decision are all persons with an interest in the region’s management of natural and physical resources under the RMA.

22.5. The decision is not inconsistent with an existing policy or plan.

22.6. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendations

That the Regional Planning Committee:

1. Receives and notes the “Hawke’s Bay Regional Planning Committee Terms of Reference” staff report.

3. Agrees that the preferred approach is to agree on amendments to the RPC’s February 2014 version of Terms of Reference that:

3.1. incorporates minor corrections, editorial improvements, and various other uncontentious amendments that improve alignment with the Hawke’s Bay Regional Planning Committee Act 2015

3.2. sets aside the following matters (which were within scope of the first statutory review of performance of the RPC):

3.2.1 Voting and Quorum:

3.2.1.1 The process by which the number of Council members eligible for voting will be reduced to ensure equal numbers of appointed tāngata whenua representatives

3.2.1.2 The setting of the Quorum

3.2.1.3 Consensus decision making and the 80% voting threshold.

3.2.2 The presumption that the current Standing Orders of Council apply to the operation of the committee unless amended by the committee.

3.2.3 Confirmation of functions and powers of the committee (noting the legal advice that the broader scope in draft terms of reference is not inconsistent with the specified legislation).

3.2.4 Refer back provisions and clarification of the options available to Council in the event that no recommendation is received from the Committee. This issue relates in particular to section 12(4) of the Act which provides that “In the event of an inconsistency between the obligations of Council under the terms of reference and its obligations under the specified legislation, the specified legislation prevails.

4. Agrees to use best endeavours to seek resolution and agreement on those matters in recommendation 3.2 above, and then when agreement has been reached, thereafter agree that the RPC’s terms of Reference be approved and referred to the Appointers (or their nominated delegate) for their written agreement.

5. Recommends that Hawke’s Bay Regional Council:

5.1. writes to each of the RPC Appointers inviting them to consider and agree to the amended Terms of Reference for the RPC as proposed; and

5.2. as an Appointer itself, Council agrees to the amended Terms of Reference for the RPC as proposed.

Authored by:

Gavin Ide

Principal Advisor
Strategic Planning

Amy Minster

Senior Advisor MĀori Partnerships

Approved by:

Pieri Munro

Te Pou Whakarae

Tom Skerman

Group Manager
Strategic Planning

Attachment/s

⇩1	Revised draft RPC Terms of Reference as at September 2019
⇩2	Revised draft RPC TOR with Tracked Changes

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 18 September 2019

Subject: Tangata Whenua Remuneration Review

Reason for Report

1. This item presents the Strategic Pay report on the findings of their review of tangata whenua representatives’ remuneration for participation on the Regional Planning Committee. A copy of the final report by Strategic Pay with their findings is attached.

Background

2. Tāngata whenua representatives’ remuneration was previously reviewed in 2017-18, with effect 1 July 2018.

3. At its meeting on 12 December 2018, the Regional Planning Committee (RPC) considered a response to a request from the tāngata whenua Co-Chair and Deputy Co-Chair that the remuneration for tāngata whenua representatives on the RPC be reconsidered due to concerns about workload and inequity with councillor remuneration.

4. After consideration and considerable debate, the RPC resolved:

4.1. instructs the Chief Executive to work collaboratively with the Regional Planning Committee Co-chairs to commission an independent review of the remuneration of RPC tāngata whenua members in accordance with the Regional Planning Committee Terms of Reference, as adopted by Hawke’s Bay Regional Council 26 February 2014, for agreement by the Committee prior to any appointment(s) being made.

5. Clause 13.2 in the 2014 Terms of Reference for the Regional Planning Committee states:

5.1. The Tāngata Whenua Representatives and the Tāngata Whenua Co-Chair shall be remunerated for their services by the Council. The level of remuneration shall be determined promptly following each triennial election of Councillors by two independent persons (Appointees), one of which is appointed by the Council Co-Chair, and the other by the Tāngata Whenua Co-Chair. The Appointees must have regard to:

5.1.1. the need to minimise the potential for certain types of remuneration to distort the behaviour of the Tāngata Whenua Representatives and the Tāngata Whenua Co-Chair in relation to their respective positions on the Committee

5.1.2. the need to achieve and maintain fair relativity with the levels of remuneration received by elected representatives in RMA policy development roles, and

5.1.3. the need to be fair both:

5.1.3.1 to the persons whose remuneration is being determined; and

5.1.3.2 to ratepayers; and

5.1.3.3 the need to attract and retain competent persons.

6. Subsequent to the 12 December 2018 meeting, the Chief Executive approached two independent providers seeking their proposals to undertake a review. Both parties have responded and these proposals were provided to the co-Chairs for their feedback. The co-Chairs agreed on the one preferred provider (Strategic Pay) be appointed to carry out the remuneration review.

7. The terms of reference for the remuneration review were:

7.1. confirm current composition of Council and its committees

7.2. confirm current Regional Planning Committee (RPC) fees paid: base annual fees, separate committee fees; governance pool from when RPC fees were last reviewed

7.3. examination of Council and committee meeting schedule, and consider the time commitment for Tangata Whenua representatives on the RPC

7.4. examination of any projects or challenges of note confronting the RPC at this time

7.5. acknowledgement of any particular board skills or expertise that need to be considered e.g. “Making Good Decisions” training with respect to the Resource Management Act

7.6. reference to the Remuneration Authority for the setting of Councillor fee levels and fee structure

7.7. reference to current arrangements for the salary setting arrangements for Tangata Whenua representatives of the Regional Planning Committee

7.8. provide remuneration advice which is consistent with similar organisations throughout New Zealand to determine appropriate Committee fee levels for the RPC Tangata Whenua representatives

7.9. provide “scoring” of governance roles and positions on an independent, objective basis which is consistent with the State Services Commission’s Cabinet Fees Framework 2012

7.10. evaluate the RPC governance roles and size these against fees paid in the NZ market for comparably sized roles

7.11. provide a final report within four weeks from project approval and delivery of all requested background materials which covers the following information

7.11.1. background information and the context identified above

7.11.2. recommendation summary

7.11.3. application of SSC’s Cabinet Fees Framework to governance roles of tangata whenua members

7.11.4. results of Director evaluation methodology.

Financial and Resource Implications

8. The fee estimate for the independent review is $8,900.00 excluding GST.

Key findings

9. The final report from Strategic Pay has been shared in draft form with the Co-Chairs. The key findings of the report proposes a salary range of $12,000 - $15,000 per annum for a committee member. Currently the salary payment to tangata whenua committee members is $12,000 per annum.

10. The Co-Chair salary is presently $24,000 and also sits within the recommended range which is $24,000 to $30,000. The Deputy Co-Chair has a current remuneration of $18,000 and the proposed range is $18,000 to $22,500.

11. Although Strategic Pay felt the current remuneration arrangements are appropriate with no immediate need for an increase, staff would appreciate the Committee’s feedback as to whether a modest increase to $13,000 per annum for a tangata whenua committee member, $19,000 per annum for the RPC Deputy Co-Chair and $26,000 per annum for the RPC Co-Chair would be acceptable.

12. With regard to travel, Strategic Pay do recommend a consistent arrangement with councillors whereby an hourly payment of $37.50 per hour (after the first hour of eligible travel) is added.

13. Full details can be found on page 8 of the attached report.

14. Feedback from the Regional Planning Committee members is encouraged so this can be fed through to the Council for their meeting on 25 September for final decision-making.

Remuneration Review cycle

15. The Terms of Reference for the RPC require that tangata whenua remuneration is set promptly following each triennial election. Due to the timing of the completion of this latest review falling only weeks before the start of the next triennium, staff are seeking the agreement of the Committee to accept that the next tangata whenua remuneration review will not be undertaken until immediately following the 2022 local body elections.

Decision Making Process

16. Council and its committees are required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

16.1. The decision does not significantly alter the service provision or affect a strategic asset.

16.2. The use of the special consultative procedure is not prescribed by legislation.

16.3. The decision does not fall within the definition of Council’s policy on significance.

16.4. The persons affected by this decision are the tangata whenua representatives appointed to the Regional Planning Committee.

16.5. The decision is not inconsistent with an existing policy or plan.

16.6. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, Council can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendations

1. That the Regional Planning Committee:

1.1. Receives and considers the “Tangata Whenua Remuneration Review” staff report, providing discussions and feedback to inform Council decision making.

1.2. Agrees that this most recent Remuneration Review meets the Terms of Reference requirement that “the level of remuneration shall be determined promptly following the triennial election” and that the next time that remuneration for tangata whenau representatives is set will be immediately following the 2022 local body elections.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional Council:

2.1. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that Council can exercise its discretion and make decisions on this issue without conferring directly with the community and persons likely to be affected by or to have an interest in the decision.

2.2. Sets the remuneration for tangata whenua representatives appointed to the Regional Planning Committee in accordance with the findings of the Strategic Pay report, for effect from 1 July 2019, at:

2.2.1. $13,000 per annum for a tangata whenua committee member

2.2.2. $19,000 per annum for the RPC Deputy Co-Chair

2.2.3. $26,000 per annum for the RPC Co-Chair

2.2.4. A payment of $37.50 per hour (after the first hour of eligible travel) to be paid upon submission of an approved Travel Claim form.

Authored by:

Joanne Lawrence

Group Manager Office of the Chief Executive and Chair

Approved by:

James Palmer

Chief Executive

Attachment/s

⇩1

2019 Strategic Pay RPC Remuneration Report

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 18 September 2019

Subject: TANK Decision Making Under the RMA - s32

Reason for Report

1. “Decision Making Under Part 2 of the Resource Management Act’ was provided within the agenda for the Regional Planning Committee 14 August. The report provided the committee with an overview of their obligations as Resource Management Act 1991 (RMA or the Act) decision-makers in the context of reviewing and amending regional plans and the Regional Policy Statements.

2. Prior to the scheduled RPC meeting a public excluded workshop was held for the Committee to discuss the paper titled “RMA Decision Making and Māori Interests: Obligations Under Part 2 and the NPSFM” which was appended to the Decision Making Papers. A Senior Associate from Simpson Grierson was in attendance to answer any queries in relation to the content of the paper and the legal interpretation.

3. At the workshop concern was expressed from tāngata whenua representatives with regards to the extent of the assessment provided within the paper. As a consequence of this meeting tāngata whenua sought further information in particular with regards to what decision makers should do in respect of Sections 5, 6, 7 and 8 of the Act. A scope outlining a brief to define what was required within this additional piece of work was to be provided. A scope was circulated to the RPC and staff received from the Technical Advisors (attachment 1) on the 22 August 2019.

4. This report provides an update since the RPC 14 August in response to the Technical Advisors brief. A separate table (attachment 2), prepared by Mitchell Daysh Limited (a consultancy) provides a quick reference guide for the Committee to cross reference the relevant parts of the draft s32 report which responds to the items raised within the brief.

Background

5. As noted above this report has been updated since it was first reported to the RPC on the 14 August, this has been in response to requests from the tangata whenua representatives for further information to be provided to them as decision makers. In particular this was to expand on how they must consider and apply the Part 2 purpose and principles of the RMA (specifically sections 5, 6, 7 and 8), and more generally enable a higher level of understanding as to how the Part 2 provisions have been applied to the draft TANK plan change.

6. The brief provided by the Technical Advisors suggested that rather than seeking further generic legal advice on the Part 2 paper what was required was the provision of further explanation and articulation on six key points which have been summarised as follows.

6.1. Item 1. How has the Council informed itself of tangata whenua values. What are the values and how have they been provided for in the TANK plan.

6.2. Item 2. If engagement has been adequate, what values have tangata whenua articulated?

6.3. Item 3. How does the TANK plan ‘demonstrably aspire to protect water quality from further degradation and to improve it over time’. Recognition of the values in the policies and rules, articulate how these have been given effect to.

6.4. Item 4. Treaty Principles – Has the plan attempted to work out the issues, has there been compromise from both sides (mainstream parties and tangata whenua). Principle of mutual benefit and duty of active protection – how are the interests of tangata whenua protected and what is the mutual benefit?

6.5. Item 5. How has the TANK plan considered and recognised Te Mana o te Wai, particularly in the policies, rules and limits.

6.6. Item 6. How have the Part 2 matters been considered and/or provided for through the plan provisions.

7. It should be noted that further correspondence was received from Tania Hopmans (2 September) reiterating the scope for this paper and the s32 evaluation, and provided further clarification on the details sought. It was also requested that a new sub-section be developed and added to Chapter 4 ‘Community Engagement Process’ of the s32 to detail the engagement undertaken with tangata whenua, marae, hapū and iwi, and that a new theme be included to evaluate how relevant policies and methods will achieve the relevant objectives in respect of providing for the values articulated by tangata whenua.

8. Many of the items presented within the brief have been considered within the s32 evaluation report. The attached table has been provided to assist the Committee in locating these pertinent references. This report does not provide further explanation to these points as it is considered that these have been adequately and appropriately addressed within the s32 evaluation report.

Section 32 Evaluation Report

9. As reported to the RPC in October 2018 the Council are required to provide an analysis of the TANK plan change to evaluate the extent to which the objectives of the proposal are the most appropriate way to achieve the purpose of the Act. Mitchell Daysh were appointed to undertake the s32 on behalf of the Council and have since that time provided a couple of draft iterations to the RPC for information purposes.

10. The Section 32 report remains in draft until such time that the RPC makes final decisions on the content of the plan and is subject to amendment as a consequence of these decisions.

11. The evaluation of the TANK plan has been informed by numerous reports and documents prepared by staff and consultants; meeting records and minutes from a range of meetings including those of the TANK Group, RPC, TANK Working Groups, Mana whenua hui, Farmer Reference Group etc.; as well as PowerPoint presentations, memos, press releases, Think TANK publications etc.

12. The s32 Evaluation will determine whether the provisions of the TANK plan are the most appropriate. S32 case law has interpreted ‘most appropriate’ to mean “suitable, but not necessarily superior” National Transport Soc. Inc. v New Zealand Transport Agency HC Wellington CIV-2001-485-2259, 15 December 2011. The most appropriate option does not need to be the most optimal or best option, but demonstrate that it will meet the objectives in an efficient and effective way.

13. Particular regard should be given to the s32 evaluation by the RPC and Council when deciding to proceed with the proposal i.e. if the TANK plan is publicly notified. To have “particular regard’ requires matters to be considered, but doesn’t set absolute standards or requirements. The analysis of whether the objectives and provisions are most appropriate is a matter decision makers must actively consider. They cannot simply ignore it.

S32 and the Planning Process

14. The previous memo to RPC noted those things which the s32 evaluation report does not do, namely:

14.1. Commission new of additional reports and/or workstreams – but rather consolidates the reporting done to date

14.2. Provide alternatives or solutions

14.3. Provide recommendations for decision making

14.4. Evaluate reports or information which is not within the scope of the plan change

14.5. Require an analysis of the issues which have been identified.

15. Section 32 (1)(c) requires the evaluation undertaken of any proposed plan change must ‘contain a level of detail that corresponds to the scale and significance of the environmental, economic, social, and cultural effects that are anticipated from the implementation of the proposal’. The s32 report collates the results of a lengthy collaborative process that traversed a range of complex issues over a number of years. Issues, options and management choices were developed over this time and it has meant the lengthy and comprehensive paper trail to be synthesised into this s32 report.

16. Section 32 of the RMA requires an evaluation of the proposed objectives, whether they are the most appropriate and requires an evaluation of the proposed provisions and whether they are the most appropriate to achieve the objectives. The RMA does not require an evaluation of the planning process in itself. As such the s32 report does not provide an evaluation of the TANK collaborative process. However, the NPSFM has explicit requirements to involve iwi and hapū to ensure tangata whenua values and interests are identified and reflected and to that extent, the s32 report assesses how that was addressed.

17. Whilst the s32 does not provide a new independent ‘theme’ to evaluate how the relevant policies and methods will achieve the relevant objectives in respect of providing for the values articulated by tangata whenua, it is considered an appropriate evaluation has been undertaken. Given that the TANK plan does not have objectives and policies which consider Maori values in isolation of all other values it is not appropriate to have a separate theme within the s32 report. Maori values are considered throughout the TANK plan and have been evaluated and referred to within the s32 according to the topics which have been identified, namely: Production Land Use Activities; Riparian Management; Land Drainage & Wetland Management; High Flow Takes, Damming & Storage; Stormwater; Water Takes; Transfer of Permits and Source Protection Zones.

18. In order to highlight where in the s32 report this evaluation has been made the attached table has been provided by Mitchell Daysh provide a simple reference guide.

Tangata Whenua Values and the S32

19. The previous version of the s32 report presented to the RPC was draft as befitting the ongoing development of the plan at the Committee’s direction. A number of sections have been further developed to ensure that it is reflects the evolution of the plan and the feedback of this committee as to form and content. In particular the report (attached to item 6) now includes further information and evaluation specific to tangata whenua values (as requested within the brief) and greater clarification has been incorporated in regards to the following (note this list is not exhaustive).

19.1. a specific section titled ‘Consideration of tangata whenua values’

19.2. articulation of the concerns raised by tangata whenua in respect of water quality and quantity

19.3. further detail provided with regards to the breadth of engagement with tangata whenua in the TANK plan development process (Chapter 4)

19.4. reference to the Ngaruroro Values and Attributes report (October 2016) which was recently lodged by NKII (2 July 2019) as an Iwi Hapū Management Plan, titled “Tangata whenua values and attributes and management priorities for the Ngaruroro River”

19.5. reference to section D of the NPSFM in Table 1 listing the NPSFM objectives and further reference and detail provided in respect of Objective D1 throughout the report

19.6. inclusion of the summary of iwi feedback received from the pre-notification consultation

19.7. elaboration and evaluation of the iwi feedback within the various provisions of the report.

20. As noted in 18.3 above the s32 report has provided for further expansion of Chapter 4 to provide greater detail with regards to the extent of engagement with tangata whenua during the collaborative process. It notes that there has been extensive engagement and support for tangata whenua members of the TANK Group and subsequently much wider engagement with tangata whenua generally. The s32 report touches on the support from the council in respect of resourcing (of engagement, research, consultants etc.) and highlights a number of reports which were commissioned by both HBRC and tangata whenua to comprehensively articulate Maori values to inform the TANK plan.

21. Equally of importance to understanding the extent to which the TANK plan provides for Maori values was the work undertaken by Joella Brown. The purpose of the report ‘Cultural Values alignment with the TANK draft plan report’ authored by Ms Brown was to determine how the cultural values expressed by tāngata whenua in the TANK plan change process have been translated into the TANK plan, and to measure how the plan recognises and provides for the relationship of Māori with freshwater and to determine whether the plan supports or has implied actions that are consistent with or uphold cultural values. The report concluded that there was evidence that there was alignment of tāngata whenua values with the plan but that this was not evidence of ‘tikanga’. Recommendations were made to seek further input from tāngata whenua. The report conclusions and recommendations were presented to the RPC tāngata whenua representatives at a pre-RPC meeting hui, and a separate hui was held (March 2018) where the report was presented to both the mana whenua working group and RPC tāngata whenua representatives. No decisions were made in response to the recommendations, however despite no further progress being made in respect of this report it has been a valuable tool for staff and has been used to inform the progression of the TANK Plan.

Decision Making Process

22. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Regional Planning Committee receives and considers the “TANK Decision Making Under the RMA – S32” staff report.

Authored by:

Ceri Edmonds

Manager Policy and Planning

Mary-Anne Baker

Senior Planner

Approved by:

Tom Skerman

Group Manager
Strategic Planning

Attachment/s

⇩1	TANK Part 2 Whakaaro
⇩2	S32 cross reference table

[1] For example, four appeals raising over 150 points were lodged against HBRC’s decisions on Plan Change 5. Council’s decisions were issued on 5 June 2013 and the last remaining points of appeal were determined by an Environment Court decision issued on 7 June 2019 – some six years on.

[2] Only local authorities can apply to the Minister to use the streamlined planning process. Applications cannot be made by any other person.

[3] There are currently no relevant Mana Whakahono a Rohe arrangements in place. Relevant ‘iwi participation legislation’ would include the Hawke’s Bay Regional Planning Committee Act 2015.

[4] Only two Directions have been issued by the Minister since the SPP option became available in late 2017. One Direction (in February 2018) was to Hastings District Council for the ‘Iona Rezoning Variation’ to its proposed district plan.

[5] For example, preparation of the application to the Minister, awaiting the Minister’s decision and Direction.

[6] “Final decisions [on submissions] on changes to policy statements and [regional] plans that are necessary to give effect to this national policy statement must be publicly notified no later than 31 December 2025.” The 31 December 2025 timeframe does not include time required to settle any appeals lodged in the Environment Court or High Court, but does include time between public notification of proposed plans/changes, submission periods and hearing phase.

[7] Those matters being:

“2.1 Voting and Quorum:

2.1.1 The process by which the number of Council members eligible for voting will be reduced to ensure equal numbers of appointed tāngata whenua representatives

2.1.2 The setting of the Quorum

2.1.3 Consensus decision making and the 80% voting threshold.

2.2 The presumption that the current Standing Orders of Council apply to the operation of the committee unless amended by the committee.

2.3 Confirmation of functions and powers of the committee (noting the legal advice that the broader scope in draft terms of reference is not inconsistent with the specified legislation).

2.4 Refer back provisions and clarification of the options available to Council in the event that no recommendation is received from the Committee. This issue relates in particular to section 12(4) of the Act which provides that “In the event of an inconsistency between the obligations of Council under the terms of reference and its obligations under the specified legislation, the specified legislation prevails.”

[8] Appointers may choose to delegate that authority to their respective RPC Member but not all Appointers have chosen to do so at this time,

Name	Represents
Karauna Brown	Te Kopere o te Iwi Hineuru
Tania Hopmans	Maungaharuru-Tangitu Trust
Nicky Kirikiri	Te Toi Kura o Waikaremoana
Liz Munroe	Heretaunga Tamatea Settlement Trust
Joinella Maihi-Carroll	Mana Ahuriri Trust
Apiata Tapine	Tātau Tātau o Te Wairoa
Mike Mohi	Ngati Tuwharetoa Hapu Forum
Peter Paku	Heretaunga Tamatea Settlement Trust
Toro Waaka	Ngati Pahauwera Development and Tiaki Trusts
Paul Bailey	Hawkes Bay Regional Council
Rick Barker	Hawkes Bay Regional Council
Peter Beaven	Hawkes Bay Regional Council
Tom Belford	Hawkes Bay Regional Council
Alan Dick	Hawkes Bay Regional Council
Rex Graham	Hawkes Bay Regional Council
Debbie Hewitt	Hawkes Bay Regional Council
Neil Kirton	Hawkes Bay Regional Council
Fenton Wilson	Hawkes Bay Regional Council

Item	Topic	Raised by
1.
2.
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