More Streamlining of RMA Processes - A review of the Canterbury Earthquake (Christchurch Replacement District Plan) Order

On 7 July 2014, the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014 was released. This is the latest in a long list of changes to the law than have been made in the name of earthquake recovery.
The Order modifies the RMA and provides a streamlined process for the review of the existing Christchurch District Plans. The article provides a review of some of the key features of the Order and the implications for anyone interested in the District Plan review.

Submission process 

The Order confirms a two stage process similar to that previously indicated by the Council. The key features and timeline for this process are set out the flow chart attached to this article.

Stage 1 will relate to the ‘matters of priority’, which are needed more urgently for the rebuilding and recovery of the district. This includes new objectives, policies, and rules governing a wide range of matters, including contaminated land, transport, natural hazards, and large parts of the chapters for industrial, commercial, and residential activities.

Draft versions of these chapters were released for comment earlier this year. They have since been revised taking into account feedback received and are currently with the Minister for Canterbury Earthquake Recovery and the Minister for the Environment for their comments prior to notification.

The Stage 1 chapters with be publically notified on 27 August 2014. You will have 30 working days to make a submission, with submissions closing on 8 October 2014. Council will then publish these submissions and invite further submissions by 6 November 2014. Hearings on Stage 1 are likely to occur in between November 2014 and January 2015. The Order requires that decisions on these matters of priority must be released by no later than 28 February 2015. This is a significantly constrained time period to hear and decide a large number of important issues for the district.

Stage 2 will follow the same process during 2015 and relate to all other parts of the District Plan not covered by Stage 1. Decisions on Stage 2 must be released by no later than 9 March 2016.

Formality of hearings

Although the submission phase will be similar to the standard RMA process, the actual hearing of submissions will be quite different from a typical council hearing.

A significant feature of the Order is that it removes rights of appeal to the Environment Court. There are two key implications of this:

  • The upcoming hearings will be the only effective opportunity to debate the merits of the proposed changes to the plan. 
  • The hearing process itself will be more formal to ensure that the merits of proposed changes are properly tested.

The submissions will be heard by an independent panel chaired by former High Court Judge Sir John Hansen. This panel has the discretion to determine the process that is followed at the hearings, which may include pre-circulation of evidence, expert conferencing, alternative dispute resolution, and cross-examination of expert witnesses.

We expect that most (if not all) of these powers will be utilised by the Panel, resulting in a process that is similar to a Board of Enquiry hearing. Although this should hopefully lead to a more robust decision, it also has the potential to make the hearings more intimidating and challenging for the average person to attend.

Statement of expectations

In a standard plan review process, the Council would be free to notify any changes to the plan that it considered appropriate. However, this discretion is somewhat fettered under the Order by reference to the “statement of expectations”.

The statement of expectations sets out the expectations of the relevant Ministers in relation to the new plan. Both the Council and the hearing panel must have regard to this before notifying the plan and making decisions. Whether the plan adequately addresses the statement of expectations is one of the key issues that the Ministers will be considering when reviewing the draft chapters prior to notification.

The statement of expectations is an important feature of the Order that provides the Ministers with a level of influence that does not exist under the usual RMA process. Although some of the stated expectations are associated with earthquake recovery, such as providing additional housing and setting a clear direction for natural hazards, others seem to be more directed towards achieving the government’s agenda for RMA reform.

For example, the statement of expectations requires that the new plan must significantly reduce reliance on resource consent processes, the extent of development controls, and the requirements for notification and written approval. These outcomes are consistent with those promoted through various reform proposals for the RMA, some of which are yet to be introduced. However, whether these changes are genuinely for the purpose of earthquake recovery may be open to debate.

Regardless of the underlying motivation, incorporating these expectations into the Order is likely to result in a plan that is much more directive about which activities are appropriate in specific locations. Once confirmed, there will be limited ability to depart from the plan provisions or to oppose others that are acting in accordance with them. This makes it all the more important for people to participate in the plan review process.

Conclusion

The District Plan review is a significant process that will determine the land use rules that apply within Christchurch for the foreseeable future. The likely content of the review was foreshadowed through the release of draft chapters earlier this year. Now with the release of the Order, the nature of the process and the timing when this will occur are more clearly understood.

It will be interesting to see whether the chapters that are notified in late August contain significant change from the earlier drafts and whether there is any obvious intervention from the relevant Ministers. Whatever the notified content may be, it is important that anyone with an interest in the plan comes up to speed quickly as the process will move at pace.

What would usually take place over several years will now occur in a matter of months. In addition, the nature of the process will require a higher level of participation and preparation, as there will be no second chance to contest the plan provisions through appeals to the Environment Court.

 

Posted on Thursday 17th July, 2014 at 04:55 pm