Government announces process for the first Auckland Unitary Plan

Environment Minister Amy Adams today announced a one-off process to improve the development of Auckland Council’s first Unitary Plan, while ensuring that Aucklanders still have comprehensive input into the plan.

The Unitary Plan will be the largest and most complex planning exercise ever undertaken in New Zealand, and the logistical challenges of dealing with the more than 10,000 expected submitters will be demanding, Ms Adams says.

The Unitary Plan, which stipulates where and how development can occur, replaces the seven district plans inherited from the former councils.

Auckland Mayor Len Brown approached the Government late last year seeking a simplified process for the development of the Unitary Plan. Council’s proposal sought removal of merit appeals to the Environment Court, meaning that the decisions of the council panel on the council plan would have been largely final.

The council had also requested that the Unitary Plan, as notified, was granted immediate legal effect.

The Government has rejected this proposal as it considered it did not provide adequate recourse for Aucklanders to seek full and impartial review of the council plan.

“In my view, the council’s proposal did not provide sufficient safeguards and reviews on council decision-making or ensure that stakeholders and the community would be properly engaged in its development,” Ms Adams says. 

“I am, however, concerned that under the current process, the first Unitary Plan is estimated to take between six to 10 years to become operative. No-one benefits from long, drawn-out and expensive processes during which time Auckland’s development stagnates in a cloud of uncertainty.

“Auckland’s economy is too important to New Zealand to wait for up to a decade for the plan to be implemented.”

The Government has instead developed a one-off process where council hearings will be replaced with a comprehensive independent hearing process for the plan as notified.

Under the Government’s proposed process, it is estimated that most, if not all, of the plan provisions will be operative in three years.

This one-off process will increase certainty and reduce costs for communities and businesses, Ms Adams says.

“There will be positive, collaborative and early engagement with communities and stakeholders when developing the Unitary Plan.”

The Government proposal involves the Unitary Plan being developed and notified by the council.  It will then be referred to a hearings panel totally independent from the council, with the intention that it be chaired by a retired High Court or Environment Court judge.

The panel, similar to a Board of Inquiry, will be appointed by the Ministers for the Environment and Conservation.

The panel will have the power to direct robust mediation process, including caucusing of witnesses and grouping of issues, and will hear public submissions and evidence through a process which allows for cross-examination and careful testing of evidence.

After considering the plan, the panel will deliver its findings by way of recommendations to the council.  Where the council accepts the panel’s decision, these provisions will be immediately operative, subject only to appeals on points of law.

In respect of any recommendations the council does not accept, full appeal rights to the Environment Court will be available.

“This process uses the best elements of the Environment Court, including submissions, alternative dispute resolution processes, examination of evidence, public hearings and appeals to make sure all communities can contribute to a robust final plan.

“This will provide communities with the confidence that the proposals have been independently tested by an appropriately-skilled panel but without the process being unduly delayed.

“The process will complete the Government’s objectives for Auckland local government reorganisation, and help address the shortage of housing and business land needed for Auckland’s growth.”

The process for the Unitary Plan will be incorporated into the Resource Management Amendment Bill that will be introduced to the House by the end of the year. Public submissions will be invited as part of Select Committee consideration.

Question and Answers

What is the Auckland Unitary Plan?

The Auckland Unitary Plan is a combined resource management plan that will include the Auckland Council’s regional policy statement, regional plans (including the regional coastal plan) and district plan (excludes the Hauraki Gulf Islands District Plan). The Unitary Plan is the council’s main tool for achieving integrated management of the natural and physical resources of the region and provides rules for what you can do on your land and property.

Why do we need a streamlined process for the Auckland Unitary Plan?

The Auckland Council has inherited district and regional plans from the former councils that lack consistency.  Additionally, a number of the district plans are more than ten years old and contain outdated provisions and controls. As a result the existing planning framework is imposing unnecessary costs and uncertainty which is affecting Auckland’s economic and environmental performance.
Under the current plan development process (Schedule 1 of the Resource Management Act (RMA), the Auckland Council has estimated it could take up to ten years for the Unitary Plan to become operative.
While the plan is being made operative, Auckland will be subject to two different sets of rules which in-conjunction with the existing outdated and fragmented planning framework will result in even greater costs and delays. A streamlined plan development process will reduce this delay and the associated impacts.  

What is the timeframe for making decisions on the Unitary Plan?

The Auckland Council must approve those parts of the Unitary Plan in respect of which there are no appeals, variations or plan changes within three years of the date of notification. The timeframe for approving the Unitary Plan can be extended to four years from the date of notification, with the approval of the Minister for the Environment and the Minister of Conservation

How does the streamlined process affect existing appeal rights?

The hearings panel will make a recommendation to the council for its decision on submissions and other matters. If the council refuses to accept the hearings panel recommendation it may do so but must state its reasons.
Any changes made by the council to the hearings panel’s recommended decision are able to be appealed to the Environment Court on merit.
Where the council accepts the decision of the independent hearings panel, parties will only be able to appeal the decision on a point of law to the High Court.
How does the process address concerns arising from the limitations placed on appeals to the Environment Court?
The independent hearings panel will be highly skilled and will be granted additional powers including the ability to direct the council undertake mediation or other alternative dispute resolution to rebalance where effort goes into plan development and narrow issues prior to the commencement of the hearing.  The hearings panel will hear submissions and evidence through a robust single-hearing process that allows for cross examination and the careful testing of evidence.

How will the hearings panel be appointed?

The Minsters for the Environment and Conservation will jointly appoint the hearings panel in consultation with the Auckland Council and the Independent Maori Statutory Board. The Ministers will apply the same guidelines for making appointments to a Board of Inquiry which include a high degree of local knowledge, competency and understanding of Tikanga Maori.

What measures are proposed to ensure Auckland Council develops a good quality Unitary Plan? 

Auckland Council has agreed to intensive stakeholder and community engagement to assist in developing a quality Unitary Plan. Additionally the new process requires an independent audit of the Council’s evaluation of the costs and benefits of major policy changes (s.32 analysis). The independent audit will be co-ordinated by the Ministry for the Environment. The independent audit will be made publically available when the council notifies the plan and will help ensure that the council has used a robust process in developing the plan.

How is the process different from a Board of Inquiry?

The process proposed is similar to the Board of Inquiry however with some differences, including provision for the Auckland Council to have final decision-making powers, appropriate to its status as the duly-elected local authority.  The council rather than the EPA will be responsible for running the submissions process and providing administrative support to the hearings panel.

Are any changes proposed to the submissions process?

The submissions period has been extended to 60 working days, with the period for further submissions extended to 30 working days.  Any person will be able to make a submission on the Auckland Unitary Plan. The Ministry for the Environment will form a working group with Auckland Council to ensure a robust submissions process that takes account of the size and complexity of the Auckland Unitary Plan.

Does the streamlined process include any changes to the legal effect on the Unitary plan on notification?

No changes are proposed to the status quo which allows the council to seek an order from the Environment Court prior to notifying the plan for all rules to be given legal effect at notification.

How does the new process work compared to the current one?

One of the key changes to the process is the effort put into early consultation and involvement in the development of the plan by stakeholders and communities.  Enlisting communities earlier in its development aims to avoid the delays and costs of resolving issues through the appeals process in the Environment Court.
The council will still be responsible for engaging with its community and stakeholders to develop the plan, by running the submissions and further submissions process and by making the final decisions on the Plan. In the new process, there is more emphasis on the engagement and submissions process, with more time and energy being put into pre-notification drafts, supporting submitters and resolving issues.
An independent hearing panel, appointed by the Ministers of the Environment and Conservation, will be responsible for a fair and independent process for making decisions, and for making sure that their decisions are based on robust evidence and advice.  This will involve some of the key elements of the appeals process in the Environment Court such as formal mediation and disputes resolution. Lastly, the hearing panel will pass its recommendations to the council.  Only those recommendations not accepted by the council can be appealed to the Environment Court on merit. Effectively, the hearing panel process will be used to combine the existing council hearing and Environment Court hearing of appeals into a single hearing process.
The expectation is that under the new process almost all of the plan will be operative within three years from notification, instead of the seven to ten years likely under the current process, approximately half of which would be due to the time taken for the council to resolve appeals in the Environment Court.

How does the process affect designations and heritage orders?

The processes covering designations and heritage orders are not affected by this streamlined Auckland Unitary Plan process.

What will it cost to develop the Unitary Plan?

Auckland Council has estimated that developing the Unitary Plan under the current framework will cost the council between $14 million and $21 million. Environment Ministry estimates suggest that the cost for the council will be similar under the Government’s proposed one-off process.

How can I make a submission on the Bill?

Once the Bill has had its first reading, it will likely be referred to the Local Government and Environment Select Committee which will call for submissions as part of its consideration of the Bill.