Plans and plan provisions have evolved significantly since the first generation of plans under the RMA were notified. Submissions, case law, and experience in plan administration have assisted in improving the robustness of provisions and the workability of plans, though sometimes at a significant cost. The first generation of plans resulted in variable format and wording as councils explored ways to the meet RMA requirements. This guidance note builds on the lessons learned during the preparation and implementation of first-generation RMA plans and reduces the need for practitioners to revisit lessons of the past, while also moving towards a more consistent style of plan provision drafting.
A degree of commonality and consistency in how plan provisions are written is considered important to:
- assist those complying with, or implementing, plans in understanding how significant case law may impact on any given plan
- allow councils and consultants to more readily share and adapt provisions for use in other plans
- allow staff transferring from one council to another to quickly adapt to interpret the plan of their new employer
- allow similarities and differences between plans to be quickly identified and evaluated by those preparing, using or monitoring plans
- reduce interpretation issues from plan to plan
- make it easier for central government to prepare national policy statements and national environmental standards that better align with the content and provision writing style of regional and district plans.
Before starting: Some overarching principles
Be aware of the bigger picture: The relationship of RMA plans with Long Term Plans provides new inputs, influences and opportunities. Similarly the requirement to enforce the observance of national environmental standards, 'give effect to' national policy statements and regional policy statements, take into account relevant iwi planning documents, statutory acknowledgements, and consider combined plans (in certain circumstances) and other documents, including non-RMA documents; requires a high level of awareness and cooperation between regional and territorial authorities.
Draft 'top down' but remember implementation is 'bottom up': It is important to consider both top-down and bottom-up approaches in drafting provisions, so as to demonstrate a logical flow showing how issues have been dealt with while maintaining clear linkages from the rules to policies and objectives. Issues need to be identified and decisions need to be made about desired management outcomes before solutions are identified. The top-down approach to drafting and bottom-up approach to interpretation are also inherent in cascades used in the drafting and structuring of plan rules, and in checking linkages between plan provisions.
Plain English drafting: While the principal purpose of a plan is to assist local authorities in carrying out their functions, people from many differing backgrounds will read and use it. Adherence to 'plain English' drafting greatly assists all plan users in interpreting, administering, implementing, and complying with plan provisions. The plain English drafting style has also been adopted as the recommended standard for New Zealand legislation.
Internal consistency: There may be changes to drafting personnel over the period plans are written and amended. As each person has their own writing style, there is a risk of plans becoming internally inconsistent, with provisions using different terms, phrases, standards, or expressions. Plans may also be altered as a result of decisions on submissions or the resolution of appeals leading to a number of 'one-off' provisions. Both situations can lead to problems of interpretation, implementation and, ultimately, decreased plan efficiency and effectiveness. A combination of reviews, drafting protocols, and style champions can assist, depending on the resources available. For more information on approaches see promoting internal consistency in plans and the example drafting checklist.
Have regard to monitoring and enforcement: There are both legal and useful practical reasons for considering how plan provisions will be monitored and enforced at the time those provisions are drafted. Developing the monitoring strategy (or monitoring indicators) alongside the plan provisions can:
- assist in improving the clarity and enforceability of provisions (e.g. how will the council know when provisions are being complied with)
- weed out draft provisions (or possible monitoring indicators) that may be unnecessary or impractical
- better align s35(2A) (plan effectiveness) reports with plans
- inform plan users of environmental results expected
- ensure that the monitoring strategy aligns to the plan so that there is an information base available as to how well provisions are working to inform the next change or review of the plan.
Deciding what provisions go into a plan
Although not required including issues in plans can help inform and justify objectives, policies and rules that follow. Including methods other than rules and explanations in plans also has some merit. Matters such as principal reasons, procedures for monitoring, information requirements, and processes for dealing with cross-boundary issues are generally explanatory or procedural in nature. While these matters contribute important information to the RMA planning cycle, they could be included in other documents such as guides to plans, monitoring reports, triennial agreements, or internal policies.
This guidance note primarily concerns itself with issues, objectives, policies and rules, but for completeness key policy framework elements are included (e.g. methods other than rules, principal reasons and explanations, environmental results expected, planning maps).