|Digest 6th November 2009 - When Rules have Legal Effect|
|Library Archive - Centre Digests|
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Sadly one of the reforms we promoted has ended up setting us back. The Centre supported a clause requiring that rules in a proposed plan would have no legal effect until the whole plan became operative.
This proposal generated a strong backlash at the Select Committee, from conservation groups and some planners, who argued that this would allow “a gold rush” as landowners wreaked havoc on the environment while the ‘protection’ rules worked through the system. The original proposal provided for Councils to seek for a special ruling from the Environment Court if this was a genuine threat. Prior to the Amendments, proposed plans generally had no weight on notification, but the parts of the plan gained weight as they worked through the system, until finally the whole of the plan – or what had survived – became fully operative.
But the sections 86a – 86G allow councils to prevent the mythical gold rush by resolving that certain rules relating to the protection of significant indigenous vegetation, significant habitats of indigenous fauna, or historic heritage have immediate legal effect. Of course these are normally the very rules that compromise landowners’ rights in their property, almost always without compensation.
Kaipara District Council has recently notified the first proposed plan resulting from a Review under the new Act. The Council has stretched this interpretation to the limit by deciding that all objectives and policies have weight from the date of notification even though section 86 says no such thing. The CEO has reported to the Council as follows:
We now know that from the beginning of October the Resource Management Act now requires a local authority to have regard to the objectives and policies of a proposed plan once it is notified, but not its rules, although with a significant number of exceptions. Among other things where the rules in the proposed plan relate to the protection of significant indigenous vegetation, significant habitats of indigenous fauna, or historic heritage sites, then they also need to be given consideration alongside the operative plan provisions (see subsection 86A-86G Resource Management Act).
The implications of this for our planners processing resource consents for Council are that from the time of notification of the proposed plan in late October, they will be obliged to include in their assessment all the relevant objectives and policies of the proposed plan (and possibly some of the rules, depending on the subject matter) along with the operative plan provisions. They will then need to apportion the weight or emphasis which should be given to the respective plan provisions in each case. Our planners advise that the implications of this extra assessment will be most closely felt in relation to smaller scale subdivisions, so that is where the greatest adjustment needs to be made.
Sadly, this early example suggests the first clear outcome of these amendments to the Act is to increase compliance costs generally, and for those small scale applications typically filed by those who can afford them least. The Amended Act requires new plans to be prepared to comply with the amended Act so we can presume these will become the norm across the country.
The Centre has also learned that Council’s consultants are immediately applying the proposed Engineering Standards (contained in a new 99 page document outside the actual Proposed Plan) to two major applications filed prior to the plan notification, and which fully complied with the Engineering Standards currently embodied in the Operative Plan. The new standards apply high design speed standards to private roads winding up some steep slopes and are hugely destructive of the environment and threaten the viability of the development.
This is a timely reminder that well intended proposals for reform are no guarantee of positive outcomes. Actions generate reactions, in policy as in physics.
|Last Updated ( Friday, 06 November 2009 15:39 )|