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Brief Counsel

Auckland Plan process – streamlined but not aerodynamic

30 October 2012

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The Government has agreed to a streamlined planning process to speed up the implementation of the Auckland Unitary Plan (Plan) but has rejected some of the more aerodynamic features sought by the Auckland Council.

The necessary changes to the Resource Management Act will be introduced before the end of the year.  There will be an opportunity to make submissions on the Bill.

What the Council asked for

The package of changes sought by the Council included:

  • removal of further (or cross) submissions
  • removal of the right to appeal a decision on its merits
  • establishment of a hearings panel made up of independent commissioners and councillors, and
  • for the Plan as notified to have immediate legal effect.

The Government’s response

Environment Minister Amy Adams considered that the Council’s proposal went too far in that it did not provide adequate safeguards for Aucklanders to obtain a robust and impartial review of the Plan.
However she accepted concerns that the Plan could take between six and ten years to become operative, commenting:

 “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 therefore developed a one-off, single hearing system for Auckland, replacing council hearings with a comprehensive independent hearing process.  This system would provide greater certainty, and although rights of appeal would be reduced, we consider that public input would be amply provided for. 

As a first step, the Council would complete an enhanced consultation process to develop the Plan.  The Council would then run the submission and further submission processes.  This is no small task, as there could be 10,000 submitters or more. 

The submission periods would be doubled in time, with the primary submission period extending to 60 working days, and the further submission period extending to 30 working days.

A hearings panel would be jointly appointed by the Ministers for the Environment and Conservation, after consultation with the Council and the Independent Māori Statutory Board. 

This panel would have similar powers to those used by the Environment Court in the appeals process, including directing mediation and expert conferencing to narrow the issues that proceed to hearing.  Evidence could be tested via cross-examination during hearing, which is currently not permitted in council level hearings.

Importantly, if the Council adopts the hearing panel’s recommendations, appeals would be limited to points of law.  Only if the Council departs from the panel’s recommendations, could an appeal on merit be lodged with the Environment Court.

The new process, which the Government expects would enable most, if not all, of the plan provisions to be operative within three years from the date of notification, is set out below.

Chapman Tripp comments

The Government’s proposed process would significantly advance the implementation framework for the Unitary Plan while allowing much greater opportunity for public input than under the Council’s proposal. 
Similarly the independent panel, judicial chair, and revised hearing procedures (mediation, expert conferencing and, in particular, cross examination) would enable a more robust hearing with more opportunities to test evidence and submissions than in the normal first instance Council hearing.  All of which should produce a better, more reasoned outcome, less likely to need appeal.
But the flipside is that submitters will need to front-end their effort – engaging with the Plan during the pre-notification consultation phase, and engaging experts at an earlier stage so they can make their case strongly at the panel hearing to take advantage of the panel’s power to require mediations and expert conferencing.
Lay submitters without legal representation may also find the cross examination and other procedures daunting.
The longer submission timeframe is sensible, reflecting the scale of the Plan, and the need to engage specialist expertise.
The Government’s decision not to have Councillors on the hearings panel is partly addressed by giving Auckland Council the sole power to reject the panel’s recommendations (akin to the power given to Requiring Authorities).  This power of rejection is reasonable as Council will need to own and administer the Plan.
Finally, the formal hearing process to be followed, whether set by legislation or (as is the case with Boards of Inquiry) by the panel itself, will be critical.

Next steps

We will alert you when the Resource Management Amendment Bill to legislate these changes passes its first reading. 

If you are interested in making a submission on the proposed legislation, please contact one of the lawyers featured.

Contacts