Unitary Plan - Status of the Proposed Plan
By Iain McManus
We've had enquiries from a number of clients regarding the legal status of the Proposed Unitary Plan. Hopefully, this blog will provide some clarification.
The objectives and policies of the Proposed Unitary Plan have immediate legal effect, however, the situation with the rules is a little more complex.
Section 86B of the RMA provides that a rule in a proposed plan has legal effect only once a decision on submissions relating to the rule is made and publicly notified unless:
1. The rule:
- protects or relates to water, air, or soil (for soil conservation); or
- protects areas of significant indigenous vegetation; or
- protects areas of significant habitats of indigenous fauna; or
- protects historic heritage; or
- provides for or relates to aquaculture activities.
2. The Environment Court orders the rule to have legal effect from a different date (being the date specified in the court order); or
3. The local authority resolves that the rule has legal effect only once the proposed plan becomes operative in accordance with clause of Schedule 1.
In this case, the Council has not sought any orders from the Environment Court or passed any resolutions to give the rules later effect, so clause 1 is the key provision.
The Unitary Plan identifies the rules that the Council considers have immediate legal effect under clause 1 above. It will be interesting to see if anyone challenges Council’s interpretation of section 86B.
Weight to be Given to the Unitary Plan
For Unitary Plan provisions that have legal effect from notification, the Council must determine how much “weight” should be given to those provisions relative to the operative plan provisions.
There is potential for that weighting exercise to be a source of contention, as it requires a judgement call based on a number of factors including:
- The extent (if any) to which the proposed provision has been exposed to testing and independent decision making;
- The extent to which the new provision, or absence of one, might implement a coherent pattern of objectives and policies in a plan; and
- Circumstances of injustice.
As a general rule, we would expect more weight to be given to the operative plan provisions than the Unitary Plan provisions until decisions on submissions on the Unitary Plan are released, but there is scope for a different approach on some provisions.
What does this mean for you as an applicant or prospective applicant? In practical terms, this means that:
- All applications must now refer to the operative plans (regional and/or district, depending on the application) and the Proposed Unitary Plan.
- Applicants will need to be careful to correctly identify those parts of the Unitary Plan that should be referred to and to ensure that the Council does the same, to reduce the risk of rejection at lodgement and avoid unnecessary assessment and expense.
- Where reference is made to the Proposed Unitary Plan, applicants and Council will need to address the weight to be given to those parts of the plan.
Status of Applications Lodged Prior to Notification of the Unitary Plan
Under section 88A of the RMA, the Council cannot change the activity status of applications accepted for lodgement prior to notification of the Proposed Unitary Plan, but must have regard to the Unitary Plan when deciding whether to grant the consent. In doing so, the Council must consider the weight to be given to the Unitary Plan provisions.
We suspect the Council will start issuing requests for further information for applications already in the system, asking applicants to provide an assessment against the relevant parts of the Proposed Unitary Plan.