External Documents and Appendices

External documents

The types of external documents that can be incorporated into a plan via reference are set out in clause 30(1) of schedule 1 of the RMA and include:

1. standards, requirements, or recommended practices of international or national organisations; or
2. standards, requirements, or recommended practices prescribed in any country or jurisdiction; or
3. any other written material that deals with relevant technical matters.

External documents can be incorporated into plans and proposed plans in one of two ways:

1. copying the relevant text (and diagrams, if applicable) from the external document and incorporating the key concepts (or words) from that document into the plan when the plan is being reviewed or going through a plan change
2. incorporating the document (in whole or in part) through a reference to it at the time the plan is being reviewed or going through a plan change.

The first way is useful when there is only a small section of the document that is relevant to the plan (a definition for example) and those drafting the plan want to exclude the remainder. The second way (for example reference to an entire standard or methodology), may be useful when the whole document (or a substantial part of it) is relevant to the plan but is too large to be practicably incorporated into the text or would interrupt the flow of the plan.

As material incorporated by reference in a plan or proposed plan has legal effect as part of the plan, the same degree of care should be taken in regard to its consideration as any other plan provision.

Part 3 to schedule 1 sets out the legal grounds for, and requirements surrounding, the incorporation of external documents into plans via reference. Important aspects of part 3 of schedule 1 are:

• the local authority is expected to retain a copy of material incorporated by reference that is certified as being correct
• a local authority must make copies of the material to be incorporated by reference available (including for purchase) at its offices before it notifies a proposed plan, plan change or variation that includes that material
• the local authority must give public notice under clause 34(2)(c) of the availability of the externally referenced material before it notifies a proposed plan, plan change or variation.
• a local authority must, before notifying a proposed plan, plan change or variation incorporating material by reference, allow persons a reasonable opportunity to comment on that material and consider any comments made
• expired or revoked material continues to have effect as part of the plan unless a variation that has merged to become part of the plan, or a plan change approved under part 1 of schedule 1, states the material ceases to have effect.

In addition to the above aspects, when referencing external documents in plans it is also good practice to:

• identify the document in a clear and precise manner. The full name of the document should be cited along with its date of publication or version number (for example: NZS 6808:1998 Acoustics - The Assessment and Measurement of Sound from Wind Turbine Generators)
• before referencing an external document in its entirety in a rule, check the content to ensure that it does not inadvertently import provisions that are ultra vires, or provide thecouncil with discretion where none is appropriate (this is particularly important when rules relate to permitted activity requirements, conditions, or permissions).

Avoid:

• the use of words such as "or any replacement standard" or "or any subsequent corresponding successor"after the reference to the document. Clause 31 of schedule 1 requires that there has to be a variation or plan change for an amendment to an externally referenced document to have effect through the plan.

Appendices

An appendix is additional, subsidiary, material added at the end of a book or document. Some plans refer to an appendix as an 'annex' or 'schedule'. Appendices in RMA plans are typically used for containing technical, explanatory or other supplementary information that supports plan provisions (but is too large or cumbersome to include within the main text of the plan without distracting from the flow of objectives, policies or rules). Examples of material often contained plan appendices include:

• large diagrams or tables referenced in more than one policy or rule
• protocols, or requirements that support plan rules (such as liaison protocols in support of a rule requiring a noise management plan to be produced)
• memoranda of understanding relevant to the implementation of the plan
• design guides
• lists or schedules of sites (such as designations, or sites with high heritage or biodiversity values).

When including appendices in plans is it good practice to:

• place appendices at the back of the plan and keep them together . This follows normal publishing conventions, ensuring readers are easily able to predict where to find such information
• ensure appendices are included in the table of contents at the start of the plan (include the appendix number and name in the same way you would list information for a plan chapter)
• number appendices consecutively. For clarity, the New Zealand Legislation Style Guide (1996) suggests the use of Arabic numerals (for example, Appendix 1, Appendix 2) rather than roman numerals or words
• use a similar numbering system within appendices to that used for plan provisions (for ease of reference), particularly if a plan provision uses the content of an appendix for requirements, conditions, permissions, or matters of assessment
• check that the material included in the appendix does not convey a discretion to the consent authority where no discretion is appropriate (particularly if an appendix contains material critical to a plan rule that determines the status of an activity or making a decision on a resource consent)
• if an appendix relates to a discrete plan provision, consider a reference back to that plan provision under the appendix heading, for example:

Avoid:

• writing provisions in appendices that act as stand-alone rules or policies. An appendix is subsidiary to the provisions of the plan and should not be a substitute for provisions in the main text of the plan. An appendix may support or be part of a plan provision, such as a rule, by being referred to in that provision but may cause confusion if used as a plan provision in its own right
• including material that is not essential to the implementation of the plan (international environmental charters that are not otherwise included into the plan through specific provisions for example).