The importance of good practice in rule writing
Under ss76(2) and 68(2), rules have the force and effect of a regulation (but are still subject to the Act). They must conform to common law principles and conventions regarding validity. Failure to conform could see the rule challenged: through submissions; during appeals against decisions on submissions; appeals on resource consents where the rule is the issue; declarations; or appeals against enforcement proceedings. Challenges to rules may be on one or more of the following grounds:
- being ultra vires (i.e. either, outside the scope of the RMA or outside the powers given to councils under the RMA)
- unlawful reservation of discretion
A poorly written rule could be declared void (in whole or in part) by a court, though it must be treated as valid until a decision is made that invalidates it.
Rules for land use and other resources require drafting from different standpoints
Rules for land use under s9 require drafting from a different standpoint to those for activities concerning the coast (s12), beds of lakes and rivers (s13), water (s14) and discharges (s15).
In general, s9 states that no person may use land (including the surface of water in any river or lake) in any manner that contravenes a rule in a district plan (s9(2)), or regional plan (s9(1)). The implication here is that if there is no rule in a plan, then there is no need for restriction on the activity under s9 or a need to obtain a resource consent.
Sections 12, 13, 14 and 15 adopt the opposite approach. These sections say that the resources concerned may not be used unless expressly allowed by a resource consent, or a national environmental standard, or a rule in a plan where the rule does not contravene a national environmental standard. So there has to be a national environmental standard or a rule in a plan that allows activities of the nature envisaged in ss12-15, to occur.
General good practice tips for writing rules
Rules should be worded clearly enough to enable the plan user to judge the meaning and effect of the rule at face value without having to resort to using explanations or seeking advice from those who wrote it.
It is considered good practice when writing rules to:
- be clear as to the activity status an activity will fall into should it not meet the requirements, conditions or permissions specified in the rule (i.e. the consequences of non-compliance). Using a cascade approach to organising provisions and rules can assist with this
- ensure that rules link clearly back to the objectives and policies of the plan in a way that can be easily traced (sometimes drafting rules alongside objectives and policies can assist in checking flow, wording, and consistency while a cascade approach to checking may also assist)
- ensure the terminology and choice of words is the same throughout the rule, and is the same wherever the rule recurs throughout the plan
- test the proposed rules to see how clear they are, whether they have the desired effect, or have unintended side effects, or loopholes. Think about how the rule would work from the point of view of:
- an applicant wanting to maximise development opportunities
- an affected party wanting to minimise effects or prevent development
- the person processing the consent (in terms of clearly understanding what is intended and required)
- a council officer trying to monitor or enforce the rule.
- use consent processing and enforcement officers to assist in drafting and testing provisions. Ask them to run through some scenarios or actual consents to see if they can find gaps, overlaps with other rules, or other implementation or interpretation problems. It is desirable to test a range of both commonplace and uncommon consent applications to see how the provisions would operate in everyday situations; and whether uncommon applications result in unintended or illogical outcomes
- ensure that any standards or conditions that determine whether a consent is required are defined within the plan, or else reference an external document or definition that is not likely to change or be revoked
- obtain a legal review of the rules once they have been drafted.
- rules that make the requirement for, or class of, a consent dependent on whether the approval of affected parties has been obtained
- rules that reserve discretion where none is intended or appropriate
- using bullet points in rules (if listing sub-clauses or other items, use numbers or letters to reduce the potential for misidentification)
- including requirements in rules for applicants to comply with other Acts or regulations
- repeating sections of the RMA verbatim in the plan (if those sections change, the plan may become inconsistent with the Act).
In the case of district plans, rules must apply to a defined area of a district (usually but not necessarily achieved by zoning). Common practice is for rules applying across a whole district or region to be contained in specific 'district or region-wide rules chapters ' or for the rule to state that this is what is intended. Rules applying only to certain zones are usually contained solely within chapters dealing with those zones.
Conditions, standards, and terms, requirements and permissions
Sections 77A and 87A describe the different types of activities that may be included in plans. These are:
- permitted activities
- controlled activities
- restricted discretionary activities
- discretionary activities
- non-complying activities
- prohibited activities.
Under s77A(1)(c), local authorities may specify conditions in a plan or proposed plan but only if the conditions relate to the matters described in s108 or s220. Under s2, 'conditions' in relation to plans and resource consents, includes terms, standards, restrictions and prohibitions. There are no definitions for 'standards' or 'terms' but in common usage, 'standards' are used to describe thresholds of acceptability (and are therefore measurable and often quantifiable) while terms describe pre-requisite obligations with which a proposal must comply (often taking the form of actions required).
Section 87A states that 'requirements, conditions, and permissions' that are specified in a plan (or in the RMA or regulations) shall be complied with in respect of all activity classes (except prohibited activities).
One note of caution is that the use of the word 'conditions' in policies and rules can sometimes result in confusion with resource consent conditions. If there is any doubt use 'resource consent conditions' where applicable, and 'requirements, conditions and permissions' elsewhere in the plan.
A permitted activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as permitted. A resource consent is not required for the activity if it complies with any requirements, conditions, and permissions specified for the permitted activity. It is therefore important that councils are confident that compliance with any requirements, conditions, and permissions will adequately manage the effects expected (including cumulative effects). Note that a plan cannot include a rule that describes an activity as 'permitted' if that activity will, or is likely to, have a significant effect on a protected customary right (s85A). Regional coastal plans cannot include aquaculture activities in the coastal marine as permitted activities (RMA s68A).
It is good practice in writing permitted activities to:
- consider carefully what the impact of the permitted baseline will be before deciding on permitted activity status and any requirements, conditions, and permissions that qualify an activity for permitted activity status
- be clear about what permitted activity status will apply to and where it will apply (is it clear whether it applies throughout the region or district or, if only a part, which part?)
- specify any requirements, conditions, and permissions that need to be complied with, to qualify for permitted activity status. If all requirements, conditions, and permissions need to be complied with, state this as a general rule (e.g. "... are permitted in the ZX Zone provided they comply with the following requirements, conditions and permissions: …")
- ensure any requirements, conditions, and permissions provide certainty to enable compliance to be objectively assessed.
Avoid writing permitted activities in such a way that their status:
- becomes subject to the fulfilment of resource-consent type conditions (such as the lodgement of a noise management plan)
- is dependent on the decision of a third party.
A controlled activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as a controlled activity. The RMA, regulations or plan must specify:
- any requirements, conditions, and permissions with which the activity must comply
- the matters over which the consent authority has reserved control.
An application for a controlled activity cannot be declined (except if s106 applies). Councils need to consider whether effects of a development up to the maximum permissible under the proposed activity could be adequately managed through the matters of control and resource conditions proposed. There are two reasons for this requirement:
- to identify the total cumulative effects that may occur from resource use and development occurring as controlled activities
- more importantly, it also refers to a need to consider whether the matters of control can be effectively addressed through resource consent conditions.
Controlled activity consent applications may be notified, although it is common for them to be non-notified. A rule in the plan can expressly provide that the resource consent application must be notified or must not be notified or limited notified (s77D). In writing controlled activity rules it is good practice to:
- write rules so that it is clear as to what activities are controlled (either by listing or through any requirements, conditions, and permissions) and where in the district or region the controlled activity status will apply
- clearly specify any requirements, conditions, and permissions an activity needs to comply with to be a controlled activity
- check whether the matters over which the council has reserved control, will adequately deal with the likely adverse effects of a development at the maximum limits of any requirements, conditions, and permissions
- clearly specify the matters over which the local authority has reserved control for assessment purposes and conditions for the consent (note these should be clearly differentiated from the standards and terms to be complied with)
- if the matters over which council has retained control are very narrow, would make minimal changes to an application, and could be written as requirements, conditions, and permissions - then consider whether it is more appropriate to make the activity 'permitted' subject to those requirements, conditions, and permissions
- consider whether the matters of control would unnecessarily 'skew' the decision-making process (for example, by unduly focusing on conservation values without allowing for alternatives or positive effects to be considered)
- consider whether the scope of the resource consent conditions that would be able to be imposed, could adequately address potential effects (e.g. conditions on height may be limited in their effectiveness)
- clearly state when applications for controlled activities are to be notified
- clearly state when applications for controlled activities are not to be notified or limited notified.
Restricted discretionary activities
A restricted discretionary activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as a restricted discretionary activity. An application for a restricted discretionary activity can be declined or granted (with or without conditions). The RMA, regulation or plan must specify both:
- any requirements, conditions, and permissions to be complied with for the activity to be a restricted discretionary activity
- the matters over which the council has restricted its discretion.
Note that in relation to the second point, the matters of discretion are those matters the council can consider when determining to either decline a resource consent, or to grant consent and impose conditions. A council can consider RMA Part 2 matters in granting a consent.
An application for a restricted discretionary activity can be notified or non-notified. A rule in a plan can expressly provide that the application must be notified, or must not be notified or limited notified (s77D).
Care needs to be taken in specifying the matters over which a council restricts its discretion. If the restriction is too narrow then the council may not be able to set conditions on consents that avoid or mitigate significant adverse effects (for example a restricted discretionary activity that limits discretion solely to visual amenity matters of a large development may not be able to manage effects associated with traffic generation). Conversely, if the discretion is too wide (e.g. "any effects" or "any matters in chapters A-Z of this plan") the restriction on discretion becomes meaningless.
In writing rules for restricted discretionary activities it is good practice to:
- state what activities are restricted discretionary and where in the district or region the restricted activity status will apply
- state clearly any restrictions, conditions and permissions that need to be complied with for the activity to be discretionary
- state clearly the matters over which the council has restricted its discretion (in a separate list or paragraph if necessary). It is often useful to state these in terms of effects (e.g. traffic, noise, odour, dust, turbidity)
- state clearly when applications will be notified
- state clearly when applications will not be notified or limited notified
- consider whether the discretion is so restricted as to 'skew' the decision-making process. (for example, they focus on conservation values without allowing for alternatives or positive effects to be considered).
- when writing matters of discretion for restricted discretionary activities (or matters of assessment in regard to associated policies) consider the positive effects or benefits that may accrue from granting consent as well as the adverse effects to be avoided, remedied or mitigated.
- making the matters over which discretion is restricted so wide as to make the restriction meaningless. Where the matters over which discretion is to be restricted are wide consider using the (unrestricted) 'discretionary' activity status instead
- using the restricted discretionary status for activities where the intent is to only grant consent in 'exceptional circumstances' (consider, for example, using the non-complying status with clear policy direction as to what 'exceptional circumstances' may be instead).
[Full] discretionary activities
A discretionary activity is one that is described in the RMA, regulations (including a national environmental standard), or a plan as a discretionary activity. An application for discretionary activity can be declined or granted (with or without conditions). Discretionary activities may:
- be identified by listing and naming them explicitly (including any restrictions, conditions and permissions that have to be met to qualify for discretionary status)
- be classified as such because of non-compliance with any restrictions, conditions and permissions for permitted, controlled, or restricted discretionary activities
- be discretionary by virtue of there being no plan, proposed plan, relevant rule or resource consent classification for the activity (ss87B(1)(a) and (b))
- be described in a proposed plan as prohibited but that rule is not yet operative (s87B(1)(c)).
An application for a discretionary activity can be notified or non-notified. A rule in a plan can expressly provide that the application must be notified, or must not be notified or limited notified (s77D).
Other 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 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.
In writing rules for discretionary activities it is good practice to:
- state what activities are discretionary and where in the district or region the activity status will apply
- state clearly any restrictions, conditions and permissions that need to be complied with for the activity to be discretionary
- state clearly when an application for a discretionary activity will be notified
- state clearly when an application will not be notified or limited notified
- if activities not explicitly mentioned by the plan are intended to be discretionary (i.e. they are used as the default activity class), the plan should state this explicitly to remove any confusion or doubt.
Non-complying activities are those that the RMA, regulations (including a national environmental standard), or a plan describes as non-complying. This activity status is often reserved for those activities where the potential adverse effects are great but do not necessarily warrant prohibition. An application for a non-complying activity can be declined or granted (with or without conditions). Councils can grant consent where an application can meet any of the following tests:
- the adverse effects on the environment will be minor (disregarding the adverse effects on those who have given their written permission, and exercising the discretion to disregard adverse effects of the type generated by activities the plan permits or is permitted by a national environmental standard (ss104(2) and 104(3)(a)(ii))
- the application is not contrary to the objectives and policies of the plan, the proposed plan, or both (as appropriate - s104D(1)(b))
- the activity can comply with any restrictions, conditions and permissions specified in the Act, regulations or plan (s87A(5)(b)).
The non-complying activity status can be useful for situations where it is intended that consents only be granted in exceptional circumstances (for example in managing cumulative adverse effects on a resource that is at, or close to, capacity). However, using the non-complying activity status in this way requires clear, strong, objectives and policies to be included in plans. Without such clear, strong, objectives and policies, there is a risk that the threshold to meet the second test above (that of s104D(1)(b)) may be set too low, inadvertently allowing consents to be granted where it may not otherwise have been desirable to do so.
In writing non-complying activities it is good practice to:
- state what activities are regarded as non-complying, and where in the district or region the non-complying activity status is to apply
- clearly state any restrictions, conditions and permissions that need to be complied with for the activity to be a non-complying activity
- state clearly when an application for a non-complying activity will be notified
- state clearly when an application will not be notified or limited notified
- ensure that objectives and policies provide clear, strong, guidance to guide decision-makers on the desired outcome and means to achieve that outcome when considering non-complying consent applications.
A prohibited activity is one that the RMA, regulations or a plan specifically describe as being prohibited. Prohibited activities must expressly prohibit an activity without exceptions.
A resource consent application cannot be made for a prohibited activity and a consent cannot be granted. The prohibited activity status is the most restrictive of any activity status and therefore must be used with care. The decision to use it should be backed with strong evidence of its necessity, including justification through objectives and policies.
While prohibited status would require a plan change to allow prohibited activities to take place, the plan change process should not be used as an alternative resource consent process.
In writing prohibited activity rules it is good practice to:
- specify what the prohibited activity status is to apply to and where the relevant activities will be prohibited from (do not rely on district or region-wide blanket prohibitions unless there is strong evidence that demonstrates the effects of the activity are unacceptable for the whole region or district)
- ensure that the activity or effect is easily identifiable and discrete (so as to avoid loopholes in interpretation or inadvertently including activities or effects that may otherwise be acceptable)
- consider including a note that no resource consent can be applied for or granted
- ensure that policy provides clear direction that supports and justifies the prohibited status (if not, consider a less restrictive status).
Rules relating to notification and non-notification
Section 77D allows plans to include rules that specify when a local authority:
- must publicly notify a resource consent application
- is precluded from publicly notifying a resource consent application
- is precluded from giving limited notification of a resource consent application
Tips for writing notification and non-notification rules follow.
- Before deciding whether to write a rule requiring notification or precluding notification, consider carefully what the likely effects on affected parties may be. Use the permitted baseline test. Note that this test also includes the effects of activities permitted by a national environmental standard.
- Be specific as to the circumstances or type of activities where notification will be required.
- Be specific as to the circumstances or type of activities that enable notification or limited notification to be dispensed with.
Sections 68(5) and 76(4)(e) state that a rule may "require a resource consent to be obtained for an activity causing, or likely to cause, adverse effects not covered by the plan". This effectively limits the range of activities that can be covered by a catch-all rule.
Check what effects are already managed by the plan against s87B(1)(a). Does the combination of the plan and s87B cover all the effects that may need to be managed? If not, then consider drafting a rule according to s68(5) or s76(4).