Plans are made operative under section 83 of the RMA on the basis that they have been prepared and approved in accordance with Schedule 1 of the RMA. Once operative, regional councils, territorial authorities and any other consent authorities are required to observe and enforce the provisions of any plan that applies to them.
Clause 17 of Schedule 1 of the RMA allows a council to:
- approve all or part of a plan (excluding a regional coastal plan) when it is beyond challenge by submission or appeal. Under this clause it is not necessary to wait until a variation has been merged with, or withdrawn from, a proposed plan before making it operative
- make a variation become a plan change if it has not already been merged with the plan when the plan is made operative; this means that a variation does not need to be withdrawn.
However, a council can only approve a plan or part of a plan (excluding a regional coastal plan) under clause 17 after it has made amendments or variations, if any, to give effect to any national environmental standard or national policy statement.
When considering making a plan operative, it is important to consider the following options.
- How much of the plan or plan change is beyond challenge?
- How important is it to get part of the plan operative?
- Should you wait for all matters to be finalised?
- Does the plan give effect to any relevant NPS provisions?
- What are the implications for the community or the council if you move to make part of the plan operative?
Whether to make the plan fully operative
Ideally, a council would make the plan fully operative once all appeals and legal proceedings are complete. However, there could be delays associated with resolving any appeals, so seek legal advice first. It may be difficult to estimate a date when council could make a proposed plan fully operative.
Whether to make the plan operative in part
In a case where a proposed plan is largely "untouched" by remaining appeals, it may be appropriate to consider making the plan operative in part. There are risks associated with administering a plan where significant parts of the plan remain subject to appeal, as full weight cannot be given to the provisions of that part of the plan.
Making the plan "operative in part" formalises procedural requirements in relation to section 83 of the RMA.
Remember to review the provisions of the RMA related to transitional plans, as there are important processes triggered if the plan being made operative is a "first generation"' document. For example, with regional water plans there may be some bylaws or notices under the Water and Soil Conservation Act 1967 that may still be in use and which will have to be withdrawn when the plan is made operative.
There may be pressure to have the plan made either "operative" or "operative in part" to enable private plan change requests to be considered and processed.
Councils need to bear in mind that, while they are required to consider private plan change requests, they can reject them on grounds set out in clause 25 (4) (e) of Schedule 1 of the RMA. This includes the ability to reject a request where matters have been considered, rejected or given effect by the council or Environment Court within the last two years. Rejecting a request can mean less work pressure on a council and its staff.
However, it may be appropriate, as part of the consideration of making the plan operative in part, for the council to consider developing its own policy or guidance on the circumstances in which private plan change requests are likely to be favourably considered (or not) during the two-year period. This guidance may be useful to manage the expectations of those who are about to request plan changes.