HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 25 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.
|
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 25 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
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2 May 2018
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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.
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20 June 2018
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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).”
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31
Oct 2018
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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.”
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12
Dec 2018
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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.”
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3
July 2019
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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.”
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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 above).
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.
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Recommendations
That the
Regional Planning Committee:
1. Receives and notes the “Hawke’s Bay Regional
Planning Committee Terms of Reference” 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 and persons likely
to be affected by or to have an interest in the decision.
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.
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Authored by:
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Gavin Ide
Principal Advisor Strategic Planning
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Amy Minster
Senior Advisor Maori Partnerships
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Approved by:
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Tom Skerman
Group Manager Strategic Planning
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Pieri
Munro
Te Pou Whakarae
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Attachment/s
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⇩1
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Revised draft
RPC Terms of Reference as at September 2019
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⇩2
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Revised draft
RPC TOR with Tracked Changes
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