HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 19 September 2012
SUBJECT: Regional Policy Statement - Change 5
Reason for Report
1. This
paper presents a revised draft version of Change 5 and associated section 32
evaluation summary report to the Regional Planning
Committee and for the Committee to consider recommending it to Council for
adoption and public notification as a ‘proposed’ Change in October.
Background
2. Change
5 is a bundle of amendments to the Regional Policy Statement (RPS) parts of the
Regional Resource Management Plan (RRMP) and relates to
‘land use and freshwater management.’ Change 5 incorporates relevant elements
of the Hawke’s Bay Land and Water Strategy to set the regional context for
values associated with the region’s freshwater resources.
3. A
draft RPS Change was presented to Council in July 2012 following several
workshops with committee members. Public feedback was invited during
July/August on a draft version of Change 5. An overview of the public feedback
was presented to a workshop and Committee meeting on 5 September. At that
meeting, the Committee provided staff with direction on what further revisions
ought to be made to Change 5 and brought back to the Committee at this meeting
for consideration.
4. Like
its earlier draft form, Change 5 is effectively a ‘bundle’ of amendments
covering a focussed range of themes. Primarily, it will insert new policies
into the RPS, plus amend a number of the RPS’s existing provisions relating to
management of the region’s freshwater resources. It does not insert or amend
any rules in the RRMP or Regional Coastal Environment Plan.
5. In
Hawke’s Bay, the issues and pressures on land and water resources vary
throughout the region. Consequently, urgency for clarity around water
allocation and to maintain or improve water quality also varies across
catchments. These catchment differences have influenced the Council’s decision
to prioritise catchments where the issues and pressures are most pressing.
Accordingly, the Council has already prioritised its regional plan change work
programmes to catchments based on known and foreseeable pressures and drivers
for enhanced freshwater management and regulation.
6. The
Council has several catchment-based regional plan changes currently in
preparation, namely Tukituki and Mohaka, with Greater Heretaunga/Ahuriri[1]
now underway. The Council had previously agreed to prepare a Change to the RPS
which would provide a ‘bigger picture’ overview for these individual
catchment-based plan changes.
7. Change
5 does not start with a blank canvas – the existing RPS already contains
provisions relating to matters such as surface and ground water quality,
surface and groundwater quantity and matters of significance to iwi/hapu.
8. The
Committee has previously given careful consideration to the potential scope of
this particular RPS Change. There are four principal reasons for Change 5’s
preparation:
8.1. amendments are required as an action
arising from Hawke's Bay Land and Water Management Strategy (LAWMS);
8.2. to fulfil legal requirements to
implement, in a timely manner, relevant provisions of the National Policy
Statement for Freshwater Management (NPSFM);
8.3. to provide an ‘overview’ of regional and
sub-regional values for land and water management in Hawke's Bay and to
identify priorities in those catchments where significant conflicting
value-sets exist; and
8.4. the Regional Council’s own initiatives to
continually improve its plans regarding water resources in the region.
9.
Change 5 is not intended to comprehensively implement
the NPSFM, that will largely be done through a series of changes to regional
plans - as distinct from a RPS change. The Council’s NPSFM Implementation
Programme will assist in highlighting the other work streams identified to
fully implement the NPSFM.
Key features of Change 5
10. Change
5 will provide enhanced guidance and direction to decision-makers about how
future integrated land use and water management decisions will be made. To do
this, Change 5:
10.1. proposes clearer guidance and
direction regarding how conflicting values and uses of fresh water resources
will be managed
10.2. states an overall objective for how
land use and water will be managed (OBJ LW1)
10.3. outlines what catchment-based
regional plan changes will need to consider (POL LW1)
10.4. in relation to the Heretaunga /
Ahuriri, Mohaka and Tukituki catchment areas, proposes primary values and uses
that are to be given more emphasis than secondary values and uses (POL LW2)
10.5. outlines the broad approach to be
taken in relating to managing leaching of nitrogen, faecal coliform bacteria
and phosphorus from the use of production land (POL LW3)
10.6. indicates a range of non-regulatory
methods that would be used to achieve improved management of land use and fresh
water in Hawke's Bay (POL LW4)
10.7. proposes a clearer policy regarding
land-based disposal of wastewater, solid waste and other waste products (POL
47A)
Outstanding fresh water bodies
11. At
the workshop and Committee meeting held on 5 September, the Committee discussed
at length the issue of Change 5 addressing the assessment, identification and
management of ‘outstanding fresh water bodies.’ Since that meeting, staff have
reassessed this matter and circulated a memo to Committee members outlining
three options which were:
11.1. Option A - retain provisions
as in Draft RPS Change 5 (ie: POL LW1 which includes specifying criteria used
to assess outstanding-ness of fresh water bodies in the HB region; plus listing
the resulting water bodies that are ‘outstanding’ as warranting the water
quality of those water bodies to be protected); or
11.2. Option B - revising Change 5
by removing the list of outstanding water bodies (ie: POL LW1.2), but retain
provisions specifying criteria to be used to assess and identify outstanding
water bodies in separate process(es); or
11.3. Option C - revising Change 5
by removing POL LW1, plus the associated criteria in Appendix 1 entirely.
OBJ LW1.1 would still be retained as setting out the RPS’s sights on a key part
of the overall management objective, but the actual ‘doing’ (ie: assessment,
identification and management response) of things to protect water quality of
outstanding water bodies in the region would follow later as a separate
project.
12. Following
staff discussions with MfE officials and revisiting an opinion from a
well-respected resource management barrister[2] on this
matter, staff recommend that the process for developing the criteria and
identifying the regionally outstanding fresh water bodies in Hawke's Bay should
be done properly at a regional level in a collaborative process (ie: Option C).
13. In
short, this would mean:
13.1. removing from Change 5 policies and
criteria relating to outstanding water bodies.
13.2. undertaking a separate RPS change
process to identify outstanding freshwater bodies. (NB, this has already been
noted in the NPSFM Implementation Programme presented to the Corporate and
Strategic Committee on Wednesday 12 September).
14. The
version of Change 5 attached to this report (Attachment 1) is based on Option
C.
Effect of RPS Change
15. For
the avoidance of doubt, from the time it is notified, the objectives and
policies in Change 5 will be matters that decision-makers[3] may take into
account (eg: when assessing resource consent applications). However, any
consideration would need to be mindful that Change 5 still needs to run its
course through the submissions > hearing > decisions > appeal process
in Schedule 1 of the RMA.
16. Change
5 does not include any amendments to existing rules or introduction of new
rules. Consequently, s86B of RMA is irrelevant so the Council does not need to
contemplate when rules will have legal effect.
17. Being
a change to the RPS, territorial authorities will have to give effect to the
amended RPS through their respective district plans. Consent authorities will
also have to have regard to the amended RPS when considering resource consent
applications and the like.
Options considered and Section 32 of RMA
18. In
preparing a plan change, local authorities have a duty under s32 of the RMA to
evaluate a number of matters:
(3) An evaluation must examine —
(a) the extent to which each objective is
the most appropriate way to achieve the purpose of this Act; and
(b) whether, having regard to their
efficiency and effectiveness, the policies, rules, or other methods are the
most appropriate for achieving the objectives.
(3A) This subsection applies to a rule that
imposes a greater prohibition or restriction on an activity to which a national
environmental standard applies than any prohibition or restriction in the
standard. The evaluation of such a rule must examine whether the prohibition or
restriction it imposes is justified in the circumstances of the region or
district.
(4) For the purposes of the examinations
referred to in subsections (3) and (3A), an evaluation must take into account —
(a) the benefits and costs of policies, rules, or
other methods; and
(b) the risk of acting or not acting if
there is uncertain or insufficient information about the subject matter of the
policies, rules, or other methods.
19. The
RMA also requires that a report be prepared that summarises the
evaluation and gives reasons for that evaluation. That report must be made
available for public inspection at the same time as the change is
publicly notified (under s32(6) RMA).
20. Staff
have prepared a s32 evaluation summary report which is set out in Attachment
2. That report summarises the evaluation undertaken, Council discussions,
stakeholder discussions and assessments undertaken in the course of preparing
Change 5 and preceding documents such as LAWMS. The summary report is not part
of the plan change itself, but a ‘companion’ document.
21. Council
needs to consider whether it should adopt the ‘Section 32 Evaluation Summary
Report’ (Attachment 2) and make it publicly available at the same time as
Change 5 is publicly notified.
Next steps
22. Assuming
Council agrees to adopt Change 5 and publicly notifies on or about October 3rd,
the RMA’s formal submission, hearing and decision-making process will follow.
23. Figure 1 identifies
indicative dates for Change 5’s key milestones. Timeframes in Figure 1 are
based upon a very focussed project scope which is critical to the Change being
delivered within timeframes necessary to inform separate, yet related,
catchment-based regional plan changes. These include regional plan changes for
Mohaka and Tukituki catchments.
24. This RPS Change is not
intended to comprehensively implement the National Policy Statement for
Freshwater Management. That will largely be done though a series of changes to
regional plans – as distinct from a RPS Change.
Figure
1: Indicative dates of key milestones for Change 5
|
Date
|
Milestone / Event
|
|
2012
|
|
19 Sept
|
Regional Planning Committee meeting to consider final
draft Change 5 and s32 report
|
|
26 Sept
|
Regional Council meeting to adopt Change 5 and
associated s32 summary report
|
|
Wed 3 Oct
|
Change 5 publicly notified, submissions invited
|
|
Mon 5 Nov
|
Submission period deadline (20 working days)
|
|
Nov
|
Staff summarise submissions lodged (if submissions are clear and issues
raised not too complex)
|
|
5 Dec
|
Submission Summary notified and further submissions
invited
|
|
20 Dec
|
Further submission period deadline (10 working days)
|
|
2013
|
|
Jan / Feb / Mar
|
Staff drafting reports and recommendations on
submitters’ requests
|
|
mid March
|
Staff reports on submissions published and
distributed
|
|
Apr – May
|
Hearings by Panel, deliberations and decision-making
|
|
22 May
|
Council meeting (if required to adopt Hearing Panel’s
recommendations)
|
|
31 May
|
Decisions on submissions issued
|
|
June
|
Period for lodging appeals to Environment Court
|
|
July onwards
|
Resolution of appeals (if any)
|
25. Hearings could be held
as early as April 2013. For the avoidance of doubt, any submissions on Change
5 will be heard in the first instance by a panel appointed by the Council – not
the Environment Court or via the Environmental Protection Agency. The Regional
Planning Committee’s responsibilities include recommending to Council
the membership of hearing panels to hear and decide upon submissions on
proposed Changes to plans and policy statements. The Panel members must be
appropriately trained and eligible (accredited) commissioners, which may
include members of the Regional Planning Committee.
Financial and Resource Implications
26. Preparation
of Change 5 and progressing Change 5 through the submission and hearings phases
is provided for in Project 192 (‘Strategy and Planning’). No additional
external expenditure budget is needed at this time. Internal staff time is
also already catered for within existing budgets.
Decision Making Process
27. Council
is required to make a decision in accordance with the requirements of the Local
Government Act 2002 (the Act). Staff have assessed the requirements contained
in Part 6 Sub Part 1 of the Act in relation to this item and have concluded the
following:
27.1. The decision does not significantly alter the service provision or
affect a strategic asset.
27.2. The use of the special consultative procedure is not prescribed by
legislation.
27.3. The decision does not fall within the definition of Council’s policy
on significance.
27.4. The persons affected by this decision are all those persons with an
interest in the region’s management of natural and physical resources under the
RMA, but nevertheless, they will have opportunities to make submissions when
Change 5 is publicly notified.
27.5. Options that have been considered are detailed in the attached
section 32 evaluation summary report (Attachment 2).
27.6. The decision is not inconsistent with an existing policy or plan.
27.7. 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 because the Resource Management Act allows
people to have an opportunity to submit on Change 5 following a decision by
Council to publicly notify it.
|
RECOMMENDATIONS
That the
Regional Planning Committee:
1. Agrees that the decisions to be made
are not significant under the criteria contained in Council’s adopted policy
on significance and that Council can exercise its discretion under Sections
79(1)(a) and 82(3) of the Local Government Act 2002 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 because the Resource Management Act
allows people to have an opportunity to submit on Change 5 following a
decision by Council to publicly notify it.
2. Adopts Change 5 to the Regional
Resource Management Plan (Attachment 1) for public notification in early
October 2012.
3. Adopts the “Section 32 Evaluation Summary: Change 5 –
Land use and freshwater management” (Attachment 2) and make it available
for public inspection.
|
|
Gavin Ide
Team
Leader Policy
|
Helen Codlin
Group
Manager
Strategic
Development
|
Attachment/s
|
1
|
RPS Change 5
|
|
Under
Separate Cover
|
|
2
|
RPS Change 5
S32 Summary Report
|
|
Under
Separate Cover
|
