Provide councils with an option to use a Collaborative Planning Process for preparing or changing a policy statement orplan
160. Plan making as prescribed by Schedule 1 of the RMA is litigious, costly, and frequently does not produce high quality or durable regional policy statements or plans. Decision-making institutions and incentives are not suited to making difficult decisions about complex problems where different values are at play, there is increasing pressure on resources and trade-offs are required. The lack of front-end engagement by councils on the full range of interests and values in the community, including iwi/Māori, has led to an adversarial approach toplanning.
161. The existence of de novo appeal rights and the ability of the Environment Court to replace decisions of council do not encourage full engagement of stakeholders in the first-instance decision, and have led to greater conflict in decision-making and a greater role for appeals. There are considerable time delays and costs during the appeals processes. Furthermore, the Environment Court processes take a legalistic approach, with no requirement to consider alternatives, benefits and costs, or the full range of local values. The lack of recognition of the full range of interests and values in plans has added costs to the resource consent stage, where issues are re-litigated consent-by-consent. This creates significant investment uncertainty and compliancecosts.
162. Central government currently provides guidance and support to councils carrying out collaborative processes under Schedule 1 for freshwater planning. There is nothing restricting a council to extend this approach to all resource management matters for a planning process. However, the de novo appeal rights in Schedule 1 processes do not incentivise early, good faith engagement in a planning process (with the exception of Canterbury where special legislation limits appeal rights). Decisions made by current collaborative processes could be undermined later throughlitigation.
163. In 2013, Cabinet agreed to a mandatory Collaborative Planning Process (CPP) for freshwater planning only [Cab min (13) 8/18 refers]. This proposal is a revised version of the 2013 proposal with two key differences. First, the proposal is now for CPP to be optional for all planning matters. Secondly, there are changes to appeal rights (as outlined below). Before deciding to use this track, the local authority must first consider if the CPP is the best planning approach for this particular resource management issue. Complex planning issues where significant trade-offs are required are suited to the CPP as a full range of views will be represented and deliberated on at an early stage. Once a commitment is made to a CPP the council is required to follow itthrough.
164. The local authority must appoint a group whose membership, collectively, reflects a balanced range of the community’s interests and values, and investments in relation to the relevant resource management issue. This includes at least one iwi representative if nominated. Terms of reference must be set for the collaborative group which include requirements for a report with recommendations, a process for engaging with the broader community, and arrangements for resourcing and supporting a group to enable them to reach informed consensusrecommendations.
165. The local authority publicly notifies the collaborative group report then, as soon as is reasonably practical, prepares a proposed plan or policy statement which gives effect to the consensus position reached by the collaborative group. It may also include provisions on matters where the collaborative group did not reach consensus or as necessary to comply with legislation. Unless otherwise provided for in an iwi participation agreement, iwi are invited to provide comment on the pre-notified plan to the local authority. The proposed plan or policy statement is subsequently publically notified and submissionsinvited.
166. A majority-independent review panel considers the collaborative group’s report, iwi/Māori advice,submissionsassummarisedbythelocalauthorityandthedraftnotifiedplan.The
panel’s report to the local authority can only recommend changes to the notified policy statement or plan if it is satisfied that the change is neededto:
· ensure consistency with the consensus of the collaborativegroup
· ensure compliance with legislativerequirements
· address matters raised in submissions that were not, or not fully, considered by the collaborative group or local authority in preparing the notified policy statement orplan.
167. The local authority must accept or reject the recommendations of the review panel report. If a recommendation is rejected the local authority must propose an alternative. The decisions of the local authority must be publically notified. Where the local authority accepts the recommendation of the review panel appeals will be limited to points of law only. Where it rejects the review panel’s recommendations, there can still be appeals on merit to the EnvironmentCourt.
168. The second main difference from the 2013 proposal is that appeals based on merit by way of rehearing were initially restricted to where the council’s final decisions on the plan were not consistent with the consensus of the collaborative group [42.38 and 42.39 of CAB Min (13) 18/8].
169. Other agencies, particularly Treasury, considered that this approach whilst creating strong incentives for up-front collaboration, unduly weighed the outcome toward the consensus position of the collaborative group and away from the broader perspective of the review panel following public submissions. Subsequently, the proposal has been changed to reflect that appeals based on merit be tied to instances where the final council decision deviates from the recommendations of the review panel (as opposed to the consensus position for the collaborative group) [CAB Min (15)5/11].
170. It is acknowledged that this may reduce the incentives on the group to collaborate and reach consensus, but significant incentives would still exist such as the requirement for the council to ‘give effect’ to any consensus position of the collaborative group and the requirement for the review panel to presume in favour of the consensus position when making its recommendations.
171. There are likely to be increased costs to local authorities as well as iwi, community members and stakeholders at the front-end of the process. However, it is expected that this cost will be outweighed by the significant reduction in costs of litigation at the end of the plan making process. The collaborative planning process can be voluntarily adopted. This gives councils greater flexibility to use the plan process most applicable to their needs and cost considerations. Where there is a risk that the capacity and capability of iwi/Māori and/or the wider community is insufficient to fully undertake a collaborative process, the standard Schedule 1 process can beused.
172. There will be low-medium costs to central government to develop direction, guidance and provide support to councils. In the case of freshwater planning, the Ministry is already providing support to councils undertaking a collaborative process under Schedule1.
173. The incentives for the community to meaningfully participate in the CPP include the council’s requirement to give effect to the consensus position of the collaborative group and the limited appeal rights on the final plan or policy statement. The main impacts expected to result from the CPPare:
· greater representation of community views incorporated early in the planning process, leading to robust and durable plans and policystatements
· medium cost savings to local authorities and submitters through reduced appeals, due to early, and wide community representation and engagement in developing plancontent
· the values and interests of iwi/Māori being captured through being involved in the collaborative group and in direct relationships to the localauthority
Mandatory CPP for freshwater planningonly
174. An alternative option is to introduce a CPP for freshwater, as agreed by Cabinet in 2013. Under this option (as recommended by Land and Water Forum in their second report in 2012), the CPP would be the required process for freshwater planning only. This option would also require the council to assess the sufficiency of the collaborative group's consensus and provide an opportunity for the community to submit to the Minister for the Environment, who, if required, would appoint a commissioner to reconsider the council decision. Finally, proposals surrounding appeal rights would be restrictedto:
· points of law where the council's final decisions on the plan are consistent with the consensus of the collaborativegroup
· on merit by way of rehearing where the council's final decisions on the plan are not consistent with the consensus of the collaborative group [42.38 and 42.39 of CAB Min (13)18/8].
175. More information about this option is set out in the December 2012 RIS: Freshwater Reform: Governance; and the May 2013 RIS: Freshwater Reform 2013 – legislation [CAB (13) 305 refers].
176. The proposed optional collaborative planning track is preferred over the alternative options outlined in 2013as:
· The CPP could be beneficial for wider contentious planning matters than just freshwater, where resource scarcity requires and/or trade-offs need to be made between different values in the community. However, many planning matters are simple or minor, and would not need the level of investment that a collaborative process would require. It is therefore better to make its use optional forcouncils.
· The removal of de novo appeal rights is necessary to emphasise the importance placed on the consensus of the collaborative group and to incentivise the community to participate meaningfully thereby ensuring the full range of values isrepresented.
177. This proposal will enable robust plan making under the RMA, taking into account community values and interests early on in the planning process, and thereby reduce litigation costs and lengthy delays at the end of the plan makingprocess.
178. We consider that this proposal will have a significant impact on encouraging higher value participation and engagement in resource management processes by those affected, leading to more robust and durable planningdecisions.