RMA provisions
Details of the following relevant provisions can be found under the RMA:
Case law
General
Eldamos Investments Ltd v Gisborne District Council [2005] W047/05. "
An objective in a district plan is to be evaluated by the extent to which
- It is the most appropriate way to achieve the purpose of the Act; and
- It assists the territorial authority to carry out its functions in order to achieve the purpose of the act; and
- It is in accordance with the provisions of Part 2.
A policy, rule or other method in a district plan is to be evaluated by whether
- It is the most appropriate way to achieve the objectives of the plan; and
- it assists the territorial authority to carry out its functions in order to achieve the purpose of the Act; and
- It is in accordance with the provisions of Part 2; and
- (if a rule) it achieves the objectives and policies of the plan."
Minister of Conservation v Western Bay of Plenty District Council [2001] A71/2001. A case looking at what 'significance ' could mean in the context of s6(c).
Minister for the Environment v Otago Regional Council [1996] C076/96. The court expressed reservations about quoting sections of the RMA in plans. Amendments made to those sections of the Act would require a plan change to avoid the plan becoming inconsistent with the Act.
Sandstad v Cheyne Developments Ltd [1986] 11 NZTPA 250. The rules in the plan, and provisions of the plan in general, must be clear and precise, so that those who administer the plan or are affected by it can identify without difficulty the provisions that apply to their properties.
In Powell v Dunedin City Council [2004] 3 NZLR 721, [2005] NZRMA 174, the Court of Appeal endorsed a 'top down ' rather than a 'bottom up ' approach. The Court stated in the interpretation of planning documents: "it is appropriate to seek the plain meaning of a rule from the words themselves, but it is not appropriate to undertake that exercise in a vacuum. As the Court made it clear in J Rattray and Sons Limited v Christchurch City Council [1984] 10 NZPTA 59, regard must be had to the immediate context and, where obscurity or ambiguity arises it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgement of this Court in Rattray or with the requirements of the Interpretation Act 1999."
Yachting New Zealand v Tasman District Council [2003] W078/03. Section 67 does not require objectives and policies to be validated by a plan rule. The Court found that the words "including rules if any" anticipate that rules, as a method of implementation of policies may be optional.
Assessment criteria and explanations
Application by Christchurch City Council [1995]. The Planning Tribunal held that:
- Assessment Criteria may not be included in a plan as rules. Rules may prohibit, regulate, or allow activities; and they may state the matters to which a territorial authority restricts the exercise of its discretion; but they may not provide criteria to be applied by the consent authority in the exercise of its discretionary judgement when considering an application for a resource consent.
- There is ample scope within the statutory framework to enable provision to be made for assessment criteria or matters for assessment in ways that would still require the consent authority to have regard to them; for example, objectives, policies, or an 'other method '.
- Although assessment criteria are not rules, they are nevertheless matters which must be taken into account under s104(1)(d).
Wakatipu Environmental Society v Queenstown Lakes District Council [2001] C075/2001. The Court considered that assessment criteria for discretionary activities in district plans may be tests (involving a subjective decision by the consent authority as to whether the standard is met) or guidelines, though neither approach was correct as a matter of law. Where assessment criteria were intended to be tests they use an introductory formula like "the council must be satisfied that…"; whereas the criteria intended as guidelines tend to be worded, "the council shall take into account whether, and if so, the extent…". Neither approach is automatically correct as a matter of law.
Fish and Game Council v Otago Regional Council [2002] C079/02. The status of an appendix (purporting to explain water allocation policies) was unclear. It appeared that the Council was relying on some clauses as if they were rules, thus altering policies and rules in the main body of the Water Plan. To the extent that it went beyond explanations of policies and rules, the appendix was of no effect and was merely confusing. To the extent that it was explanatory of policies and rules, it should have been included within them (s.67).
Definitions
Lakes District Rural Landowners Society v Wakatipu Environmental Society [2001] C75/2001. It is neither necessary nor appropriate to define 'discretionary activity ' in a way different to the definition in the RMA. Rather than defining a 'special discretionary activity ' category, the Court considered that the definition of 'discretionary activity ' should be left as it is in the RMA. The reasons for classifying activities to be categorised as discretionary were to be complemented by the addition of other reasons for the status.
Discretionary activities
Lakes District Rural Landowners Society v Wakatipu Environmental Society [2001] C75/ 2001. The Court outlined four reasons that may give rise to an activity being classed as discretionary in a plan:
- where it is not suitable in all locations in a zone
- where the effects of the activity are so variable that it is not possible to prescribe the standards to control them in advance
- where an activity defaults to discretionary because it cannot meet all the standards for a permitted activity
- where activities are not suitable in most locations in a zone or part of a zone but may be suitable in a few locations.
External documents
Note: These cases pre-date the 2005 Amendment to the RMA which introduced a new part 3 to schedule 1.
Telecom v Christchurch City Council [2003] NZRMA 280. Reference to the [New Zealand] Standard must be clear and precise. The plan can not include a provision citing the standard and then state "or any replacement New Zealand Standard".
Te Aro Heritage Trust v Historic Places Trust of New Zealand [2003] W52/03. Neither the ICOMOS Charter or UNESCO recommendations have been incorporated into domestic law in any form that would make them obligatory. The principles in the instruments cannot be elevated over and above the legislative framework but were recognised by the Court as being able to provide guidance.
Ngataringa Bay 2000 Inc. v Attorney General [1994] A16/94. District rules commonly provide that noise levels are to be measured and assessed in accordance with the New Zealand Standards 6801: 1991 and 6802: 1991 or their predecessors. Those standards provide for some response to be made for local conditions and particular characteristics of the noise emission. A council can however impose a stricter duty on the occupier of land in regard to noise generated through the adoption of the 'best practicable option '.
Remarkables Park Ltd V Queenstown Lakes DC [2003] C161/03. In this case the Court said that in its view, a reference in a district plan to an external document is generally undesirable. However if an objective or policy is involved it is not illegal. The position may be different for a rule, since rules require greater certainty. Since a person can, in effect [fn24 Section 338 of the RMA in combination with sections 9, 11, 12, 13, 14 and 15 of the Act], be prosecuted for not complying with a rule, it is important that a rule should not be able to be set or changed without the notification and participatory processes of the RMA being followed.
Permitted baseline
See a summary of cases regarding the permitted baseline.
Plans - relationship with regional policy statements
Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18; CA29/95. A declaration by the Court of Appeal concerning the directive nature of the Auckland Regional Policy Statement. The Court declared that a regional council has the power to include provisions in its regional policy statement that permits urban development to occur only within defined areas, require territorial authorities to impose urban growth limits and limit non-rural activities in rural areas (including requiring territorial authorities to give effect to the objectives and policies in the RPS concerning the management of rural areas).
Prohibited activities
Application by Trolove [1995] C75/95. A rule creating a prohibited activity has to expressly prohibit the activity, and describe the activity as one for which no resource consent shall be granted (ss68(3) and 76(3)). The Court stated that "to create a prohibited activity the rule must expressly prohibit the activity without exceptions".
Ngatiwai Trust Board v Whangarei District Council [2004] A057/04. In concluding that it had no jurisdiction to classify any activity involving genetic engineering as a prohibited activity, the Court held there was no link between the proposed rules and the objectives and policies of the proposed plan to which the proposed rule related. Therefore it was contrary to the requirements of Section 76(1) which provides that rules may be included in a district plan "which prohibit, regulate or allow activities, where they are for the purpose of achieving the objects and policies of the plan".
Coromandel Watchdog of Hauraki Incorporated v Chief Executive of the Ministry of Economic Development CA285/05; [2007]NZCA 473. A Court of Appeal decision related to the use of the prohibited activity status in a district plan to prohibit mining. The Court of Appeal found that the High Court had erred in holding the prohibited activity status can only be used when a planning authority is satisfied that, within the time span of the Plan, the activity in question should in no circumstances ever be allowed in the area under consideration. The Court found that prohibited activity status simply means an activity for which no resource consent is available and further elaboration was not necessary. The definition adopted by the High Court may have unduly limited the circumstances in which the prohibited activity status may be applied. The Court of Appeal also said that if a consent authority decided to use prohibited activity status, it needs to show that it is the most appropriate option to achieve the objective of the plan. The prohibited activity class should not be used to defer an evaluation of a particular activity until such time as a plan change is lodged to allow undertaking the activity in question.
Restricted Discretionary Activities
Auckland City Council v John Woolley Trust and SJ Christmas [2008] CIV-2004-404-3787. Case in which the High Court considered that it was permissible to take into account part 2 of the RMA in deciding to grant a resource consent, but that part 2 could not be relied on to decline consent or impose conditions. In para 50 of the decision, the Court observed that the case would have been unlikely to have caused difficulties if the Council had specified a broader range of considerations in the District Plan. The almost total focus on tree protection to the exclusion of human factors such wellbeing, health and safety, led to the difficulties. The Court also noted that had part 2 not been able to be considered it would have led to the ironic situation of the consent being declined as a restricted discretionary activity, and yet would have been able to have been approved if it had been a [full] discretionary activity.
Rules (general)
McLeod Holdings Ltd v Countdown Properties Ltd [1990] 14 NZTPA 362. Rules must be certain and if a council retains a subjective discretion within a rule then that rule may be void for uncertainty.
Brownlee v Christchurch City Council [2001] C102/2001. Rules must implement and achieve the objectives and policies of a plan. (This case distinguishes the approach set out by the High Court in Beach Road Preservation Society v Whangarei District Council [2000] CP27/00).
MacLean v Thames-Coromandel District Council [2003] A046/2003. Qualifying criteria for permitted activities should be clearly specified and capable of objective obtainment, without being dependent for classification purposes on the identification of a person or persons affected, and the subjective response of such person or persons.
Beach Road Preservation Society v Whangarei District Council [2000] CP27/00. A territorial authority is not permitted to include in its district plan rules inconsistent with the plan 's objectives and policies. The Interpretation Act 1999 is applicable to the interpretation of rules included in district plan; as such the meaning of a rule is to be ascertained from its text and in light of its purpose (the purpose being: the objectives and policies).
Western Bay of Plenty District Council v Muir [2000] NZRMA 353. A rule may apply for stated periods or seasons but it cannot have the purpose of postponing the consideration of an activity under a plan. (Note that s86B(1)(c) of the RMA provides that councils can also delay rules from having effect until a plan is operative by resolution and the inclusion of that resolution in the public notice when a plan is notified).
Wilkinson v Hurunui District Council [2000] C50/00. Lines defining zones on planning maps are usually seen as a policy or methods rather than a rule. A rule must apply to a defined area of a district (usually defined by zoning). Zones based on landscape may be appropriate in some localities, but in working landscapes, zoning based on more practical conservation-directed purposes might be more useful.
Zoning
Fore World Developments Ltd v Napier City Council [2006] W29/06. While land may not be capable of supporting an economically viable farming activity, that does not automatically mean that some sort of residential zoning would become a 'reasonable use '. The Court noted that "the choice of an appropriate zoning is driven by a matrix of factors in which such things as location, servicing ability, and the nature of the surrounding area may be as influential as the quality of the land itself".
RE: An Application By Christchurch City Council [1995] C123/94. A declaration concerning effects-based plans where the Court found it was lawful for a district plan to contain a rule for permitted activities having the following form: "Any activity which complies with the standards specified for the zones", where the standards specified go to the effects which activities have on the environment rather than to their purpose.
Capital Coast Health Ltd v Wellington City Council [1998] W101/98. Private land should not be zoned for reserve purposes except under certain circumstances, and these should be achieved through a designation or acquisition.
Current challenges in practice
Use of te reo Māori terms in plans
While the RMA itself contains a number of Māori words (kaitiaki , taonga raranga for example) and many plans contain a sprinkling of Māori words and concepts the definition and use of some Māori words is not always consistent from one area of the country to the other. In part this has come about through localised variations in the use of some words or concepts with Māoridom itself, and in other cases, from attempts to try and find a 'best fit ' definition for concepts that do not neatly align with the particular language and structure of particular RMA plans. While resource such as The Reed Dictionary of Modern Māori is a common reference, it cannot replace consultation as a way of obtaining a fuller understanding of words, terms, and concepts used in the local context. Ideally the use of words, concepts and terms to be used in plans should be discussed before a plan is notified, rather than left to being refined through the submission process.
In regard to the use to Māori terms in legislation and regulations the Law Commission, in Legislation Manual: Structure and Style (1996), made the following suggestions:
- in using te reo, consult in the appropriate quarters (such as with the Māori Language Commission) if there is a need to create new terms in Māori; and
- be consistent in the way te reo is used throughout the document.
For more information about using te reo in publications refer to the Māori Language Commission website.
