Meeting of the Regional Planning Committee
Date: Wednesday 11 December 2019
Time: 1.30pm
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Venue:
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Council Chamber
Hawke's Bay Regional Council
159 Dalton Street
NAPIER
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Agenda
Item Subject Page
1. Welcome/Notices/Apologies
2. Conflict
of Interest Declarations
3. Call for Minor
Items of Business Not on the Agenda 3
Decision Items
4. TANK
Plan Change 9 Options for Notification and Beyond 5
Information or Performance Monitoring
5. Resource
Management Policy Project December 2019 Update 33
6. Statutory
Advocacy December 2019 Update 37
7. Discussion
of Minor Items of Business Not on the Agenda 45
Parking
There will be named parking spaces for
Tangata Whenua Members in the HBRC car park – entry off Vautier Street.
Regional Planning Committee Members
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Name
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Represents
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Karauna Brown
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Te Kopere o
te Iwi Hineuru
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Tania Hopmans
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Maungaharuru-Tangitu
Trust
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Nicky
Kirikiri
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Te Toi Kura o
Waikaremoana
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Liz Munroe
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Heretaunga
Tamatea Settlement Trust
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Joinella
Maihi-Carroll
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Mana Ahuriri
Trust
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Apiata Tapine
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Tātau Tātau o Te Wairoa
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Mike Mohi
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Ngati
Tuwharetoa Hapu Forum
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Peter Paku
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Heretaunga
Tamatea Settlement Trust
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Toro Waaka
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Ngati
Pahauwera Development and Tiaki Trusts
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Rick Barker
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Hawkes Bay
Regional Council
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Will Foley
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Hawkes Bay
Regional Council
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Craig Foss
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Hawkes Bay
Regional Council
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Rex Graham
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Hawkes Bay
Regional Council
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Neil Kirton
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Hawkes Bay
Regional Council
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Charles
Lambert
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Hawkes Bay
Regional Council
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Hinewai
Ormsby
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Hawkes Bay
Regional Council
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Jerf van Beek
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Hawkes Bay
Regional Council
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Martin Williams
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Hawkes Bay
Regional Council
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Total number of
members = 18
Quorum and Voting Entitlements Under the Current Terms
of Reference
Quorum
(clause (i))
The Quorum for the Regional Planning Committee is 75%
of the members of the Committee
At the present time, the quorum is 14 members
(physically present in the room).
Voting Entitlement (clause (j))
Best endeavours will be made to achieve decisions on a
consensus basis, or failing consensus, the agreement of 80% of the Committee
members present and voting will be required. Where voting is required all
members of the Committee have full speaking rights and voting entitlements.
Number of Committee members present Number
required for 80% support
18 14
17 14
16 13
15 12
14 11
HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 11 December 2019
Subject: TANK Plan Change 9
Options for Notification and Beyond
Reason for Report
1. The principal
reason for this report is to revisit the issue of the notification pathways for
the TANK Plan Change (‘PC9’). To do this, the report builds
on earlier briefings presented to the Committee in September 2019. This
report also presents advice from Simpson Grierson solicitors on the following
two questions:
1.1. is the
Schedule 1 Part 1 process a default pathway for the notification and approval
of a plan under the RMA?
1.2. is the choice
of planning notification process a matter for the RPC to vote on or consider
given the current scope of the guiding legislation (the HB RPC Act) and the
Committee’s own Terms of Reference?
Discussion
2. This report is
in relation to the notification process for PC9. It intentionally
does not revisit the content of PC9. This is because at a
meeting on 18 September, the RPC had recommended that Council adopt the TANK
Plan Change for public notification and that recommendation was subsequently
accepted by the Council it is meeting on 25 September 2019. However the
RPC has not made a recommendation on a notification pathway for PC9.
3. In terms of
notification process options, several staff briefing papers have been presented
to the RPC on this matter over the past twelve months. In July, planning
staff had presented a preliminary report outlining two principal options for a
PC9 notification process. Then a further report was presented at an
extraordinary meeting of the RPC on 25 September. A copy of that September
staff report is published as Attachment 1. At that 25 September meeting,
the Committee could not agree on whether PC9 should be notified to:
3.1. apply to the
Minister for the Environment for a modified streamlined planning process
‘SPP’ (under Schedule 1 Part 5 of the RMA) or
3.2. follow a
traditional submission process (Schedule 1 Part 1 of the RMA).
4. Consequently,
the item has been left ‘lying on the table’ for the past ten
weeks. During that time, local body election results have returned three
councillors and six new councillors. Also during that time, advice from
Simpson Grierson solicitors has been sought on the two questions stated in
paragraph 1 of this report. A full copy of Simpson Grierson’s
written advice is set out in Attachment 2.
5. The opinion and
recommendation of senior planning staff remains as it was in September –
that a SPP with modifications as set out in that earlier staff report:
5.1. is entirely
appropriate for PC9
5.2. is preferable
when taking into account the overall resourcing implications of either option,
and
5.3. addresses the
need to provide planning and consenting certainty for the TANK catchment.
6. However, staff
acknowledge that for some members of the Committee, particularly some/all
tāngata whenua members, a modified streamlined planning process is not
attractive primarily because there is no opportunity for Environment Court
appeals and is highly unlikely to be supported by the required majority (80%)
of Committee members necessary to secure a recommendation to Council.
7. Based on the
legal advice received (and discussed shortly), staff believe that the best
approach is to revisit the decision tabled at the Committee’s
extraordinary meeting on 25 September 2019.
8. As noted above,
on the 25 September the Committee was asked to support an application to
Minister Parker to notify the adopted TANK plan change using a modified SPP
process (see Attachment 1) as opposed to the traditional pathway. In
doing so staff made two assumptions: first, that the introduction of
alternative notification pathways into the RMA represented a decision making
‘fork in the road’ that required a positive decision to adopt the
agreed pathway and, second, that the decision itself was a matter within the
RPC’s ‘jurisdiction’ and not a matter for Council to
determine alone.
Notification process pathways
(Question 1):
9. The advice from
Simpson Grierson concludes that:
“While it is clearly open to a
council to make a choice as between the different process options that are
available, in our view the preferable interpretation of the relevant
provisions, read together, is that the Schedule 1, Part 1 process is the
default plan-making process that would apply in the absence of such a choice.”
10. Simpson Grierson’s
advice highlights a number of the ambiguities arising from the RMA’s
amendments in 2017 which introduced multiple plan pathways.
11. Essentially, the advice
suggests that the correct approach would be to view the SPP (Part 5) path not
as a fork in the road, but rather an ‘off-ramp’ which requires a
decision for its use, and that in the absence of such a decision then the
traditional (Part 1) operates as a default requiring no further deliberation.
Role of RPC for procedural matters
(Question 2):
12. In responding to the
second question, Simpson Grierson concluded that:
“There is no express
requirement in the [Hawke’s Bay Regional Planning Committee Act 2015] or
the [terms of reference] for the Council to seek a recommendation from the RPC
as to the planning process that should be used in considering PC9, and the
Council could proceed to select a planning process without such a
recommendation.
13. But (and in the view of
senior planning staff, correctly) given the Committee’s recent history
together with the fact that this matter had already been in front of the RPC,
Simpson Grierson have qualified that conclusion with the following further
advice:
“However in our view, it
would be appropriate to make a further attempt to obtain a recommendation from
the RPC before doing so.”
14. At a theoretical level,
the implication of both parts of the advice is interesting. With the
benefit of the advice and hindsight, the appropriate approach may have been for
this question to have been a decision of Council, in which case it is likely
that the modified SPP would have been agreed by a simple majority of then
Councillors. The reality, however, is that staff’s recommendation
to pursue the modified SPP is unlikely to be supported by this Committee and
the decision would therefore automatically be made to use the traditional
pathway. Consequently, this paper is re-presenting the PC9 notification
pathways matter in an attempt to remove the double uncertainty and to formally
confirm the Committee’s position. Another reason for doing so is to
avoid a “no recommendation” outcome and to establish a clear
foundation for any refer-back situation, should one arise.
Update on Central Government
proposals:
15. In September, the
Government released two key proposals relating to freshwater planning under the
RMA:
15.1. “Action for
Healthy Waterways: A discussion document on national direction for our
essential freshwater” and
15.2. Resource Management
Amendment Bill 2019 (featuring the new freshwater planning process for regional
policy statements, regional plans and plan changes relating to freshwater).
16. The Regional Council made submissions
on both of these proposals. One of the key concerns covered in those
submissions was the capacity to deliver on the proposals and the associated
resourcing required to implement the proposals within stated timeframes.
Those concerns have been echoed across submissions from all other regional
councils and unitary authorities, plus several other organisations.
17. Currently, none of those
proposals are in legal effect. It would be entirely premature to presume
that the Bill and the Freshwater NPS proposals pass unaltered. The Second
and Third readings of the Bill are anticipated in the first half of 2020 before
it will pass into legislation. The Government intends that a new national
policy statement and new national environmental standards for freshwater will
be in force in mid-2020.
Alignment with Plan Change 7
(Outstanding waterbodies):
18. Plan Change 7 was publicly
notified on 31 August 2019 with the deadline for submissions being 28 February
2020. This long submission period exceeds the minimum 20 working day
period required by the RMA. Until the number and complexity of submissions
is better known, staff cannot yet confirm timing of PC7’s next milestones
(e.g. further submissions, pre-hearing discussions and hearing dates).
19. In early 2020, planning
staff will report back to the RPC with recommendations about formation of a
panel of hearing commissioners to hear submissions on PC7. Staff
currently anticipate that PC7 submissions would be heard in 2020 before a
hearing on PC9 submissions.
20. In light of the reasons
identified below, it would not be considered best practice to combine the
hearings:
20.1. PC7 is primarily a change to the Regional
Policy Statement, which provides high level
direction for the management of outstanding waterbodies across the whole
region, including coastal areas;
20.2. PC9 is a catchment-based change to the
regional plan parts of the Regional Resource Management Plan. PC9 relates to
only part of the region, and does not include coastal areas;
20.3. Regional policy statements are distinct
from regional plans, and the Regional Council’s duties are different when
preparing a RPS as opposed to a regional plan;
20.4. PC9 features a number of issues that
require specialised technical knowledge and expertise whereas PC7 is not about
rules, regulation, freshwater limits, but rather higher-level policy direction in
the RPS. As a consequence the make-up of the panel could be entirely
different.
Next Steps
21. If the RPC were to
recommend following a modified SPP pathway, then Council staff would begin
drafting an application to the Minister for the Environment and liaise with MFE
officials on the level of detail suitable for the application.
22. If the RPC didn’t
recommend a modified SPP pathway, then the path would ‘default’ to
the traditional Schedule 1 Part 1 process. That can be considered by the
Council (presumably at its meeting on 18 December). In that event, then
staff would need to adjust current and immediate workloads to mobilise
communications and various other logistics associated with the official public
notification of a plan change spanning the Greater Heretaunga and Ahuriri
catchment area. Those logistics are further complicated by the summer
holiday period. These are a matter of resourcing and judgement for the Council
to consider and would not require a decision from the RPC. In all
reality, public notification would occur mid-January at the very earliest and a
twenty working day submission period would follow.
Decision Making Process
23. 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:
23.1. The
decision does not significantly alter the service provision or affect a
strategic asset.
23.2. The use
of the special consultative procedure is not prescribed by legislation.
23.3. The
decision does not fall within the definition of Council’s policy on
significance.
23.4. 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 notification pathway may
be followed.
23.5. The
decision is not inconsistent with an existing policy or plan.
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Recommendations
That the Regional Planning Committee:
1.1. Receives
this report and notes the Appendices
1.2. 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.
2. That the Regional Planning Committee recommends that Hawke’s
Bay Regional Council:
2.1. 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)
2.2. 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:
2.2.1. a submission period of thirty working days
2.2.2. further submissions
2.2.3. hearing by panel of three to five suitably experienced and
accredited RMA hearings commissioners to provide a report and recommendations
back to Regional Planning Committee and Council
2.2.4. 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.
2.3. 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 2.2
above.
2.4. 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.
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Authored by:
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Gavin Ide
Principal Advisor Strategic Planning
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Ceri Edmonds
Manager Policy and Planning
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Approved by:
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Tom Skerman
Group Manager Strategic Planning
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Attachment/s
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⇩1
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25 September
2019 - TANK Plan Change 9 Options for Notification and Beyond
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⇩2
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Simpson
Grierson Solicitors written advice
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HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 11 December 2019
SUBJECT: Statutory Advocacy December 2019
Update
Reason for Report
1. To report on proposals forwarded to the Regional Council and
assessed by staff acting under delegated authority as part of the
Council’s Statutory Advocacy project since 14 August 2019.
2. The Statutory Advocacy project (Project 196) centres on local
resource management-related proposals upon which the Regional Council has an
opportunity to make comments or to lodge a submission. These include, but
are not limited to:
2.1. resource consent applications publicly notified by a territorial
authority,
2.2. district plan reviews or district plan changes released by a
territorial authority,
2.3. private plan change requests publicly notified by a territorial
authority,
2.4. notices of requirements for designations in district plans,
2.5. non-statutory strategies, structure plans, registrations, etc
prepared by territorial authorities, government ministries or other agencies
involved in resource management.
3. In all cases, the Regional Council is not the
decision-maker, applicant nor proponent. In the Statutory Advocacy project, the
Regional Council is purely an agency with an opportunity to make comments or
lodge submissions on others’ proposals. The Council’s position in
relation to such proposals is informed by the Council’s own Plans,
Policies and Strategies, plus its land ownership or asset management interests.
4. The summary outlines those proposals that the Council’s
Statutory Advocacy project is currently actively engaged in. This
period’s update report excludes the numerous Marine and Coastal Area Act
proceedings little has changed since the previous update.
Decision Making
Process
5. 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.
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Recommendation
That the Regional Planning Committee
receives and notes the “Statutory Advocacy November 2019
Update” staff report.
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Authored by:
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Ellen
Humphries
Policy Planner
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Dale Meredith
Senior Policy Planner
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Approved by:
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Tom Skerman
Group Manager Strategic Planning
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Attachment/s
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⇩1
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Statutory Advocacy December 2019 Update
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