Agenda of Planning Working Party

Planning Working Party item: 3.2

8 August 2018

TITLE:	Finalising draft regional swimming water quality targets
ID:	A1093092
From:	Justin Murfitt, Resource Management Planning and Policy Manager

Executive summary

Policy A6 of the National Policy Statement for Freshwater Management (NPS Freshwater) requires councils to set draft regional targets for swimming water quality by 31 March 2018 and to finalise these by 31 December 2018. Regional targets are to contribute to the government’s target to make New Zealand’s large rivers and lakes more swimmable. It is recommended that a round of consultation on swimming water quality is undertaken to inform the final regional targets.

Recommended actions

1. Prepare the consultation proposal in more detail for a workshop with council on 22 August 2018

2. Seek formal approval to proceed with consultation at the September council meeting.

Background

Policy A6 of the National Policy Statement for Freshwater Management (NPS Freshwater) requires councils to set draft regional targets for swimming water quality by 31 March 2018 and to finalise these by 31 December 2018. Regional targets are to contribute to the government’s target to make New Zealand’s large rivers and lakes more swimmable (80% ‘swimmable’ by 2030 and 90% by 2040^{^[1]}). The NPS Freshwater (Policy A5) also requires that councils identify measures and timeframes to improve ‘swimmability’ in regional plans.

Council set draft regional swimming water quality targets for rivers and lakes in March 2018 – see: https://www.nrc.govt.nz/contentassets/cf83c33cb5e14f4f95f7f870b3be6a57/draft-regional-swimming-water-quality-targets-for-northland-march-2018-final-website.pdf

It is recommended that a round of public consultation on swimming water quality is undertaken to inform the final regional targets. Rather than focus on solely on E. coli and cyanobacteria (as per the National targets) – which is technical, complex and just a small piece of Northland’s water quality puzzle – we have an opportunity to use this consultation to get better information from our communities to inform a much broader spectrum of our work.

It is proposed to run a map-based, online consultation with the Northland community, along the lines of Wellington’s ‘drop a pin where you swim’ project. This would enable people to identify areas they value for water based activity on a GIS based tool and provide some commentary on issues that affect their use of the waterbody. It is recommended that targeted consultation with tangata whenua and the six established priority catchment groups also be undertaken. This consultation would be supported by background information on council’s recreational bathing water quality monitoring and results. Given Northlander’s tend to value coastal recreation very highly, it is suggested the consultation not be limited to freshwater.

It is proposed that the consultation run around October – November at the start of the summer bathing period, with the aim of providing recommended regional swimming water quality targets to the 11 December council meeting. Staff intend to workshop this proposal with council on 22 August 2018 prior to seeking formal approval to proceed with consultation at the September council meeting.

The project provides an opportunity to better understand values associated with recreational use of fresh and coastal waters in Northland which will inform council’s operational and monitoring programmes. It will also assist in fulfilling the requirements of the NPS freshwater relating to regional targets and primary contact sites.

Authorised by Group Manager

Name:	Colin Dall
Title:	Group Manager - Regulatory Services
Date:	02 August 2018

Planning Working Party ITEM: 3.3

8 August 2018Attachment 1

Submission

To: Ministry for the Environment

By email: planningstandards@mfe.govt.nz

By: Northland Regional Council

On: Draft National Planning Standards June 2018

Introduction

1. The Northland Regional Council (council) is grateful for the opportunity to comment on the draft standards.

2. The submission focuses on implementation issues as we see them for the National Planning Standards (the standards), and aspects we would like retained. We have concerns about the merits of introducing the standards, but accept that this is beyond the scope of submissions (given the standards are a RMA requirement)

3. The key concern we have is the cost of implementing the standards and opening plan content to challenge. As currently proposed, our assessment is that implementing the standards is likely to require many consequential changes beyond those allowed by Section 58I, RMA, which means these changes would need to be made via a Schedule 1 process. This will result in costs to council to run the process and defend plan content – even though the we won’t be changing the effect of the content. We believe it’s a significant waste of ratepayer’s money to pay for a process that doesn’t change the effect of our RMA documents.

Submission

Timeframe for implementing

4. While we are heartened to see an extension from five years (as previously signalled) to seven years to implement the standards, we would prefer the timeframe to be the next 10-year review of the relevant planning document. Implementing the standards as part of the 10-year review will significantly reduce the costs of implementation (assuming there is a raft of consequential changes requiring a Schedule 1 process).

5. Our Regional Policy Statement (RPS) was made fully operative in May 2018. A seven-year deadline (2026) will be two years before the RPS is due its review.

6. The council notified the Proposed Regional Plan for Northland (a combined regional plan) in 2017 and council decisions are likely to be released early 2019. Assuming significant appeals, it’s likely the Proposed Regional Plan won’t be operative until 2021 at the earliest. This means it will only be five years old until the standards must be implemented.

7. If we are required to implement the standards before the 10-year review date of the RPS or regional plan, we’d likely piggyback onto another Schedule 1. This will reduce some of the costs of the Schedule 1 process for implementing the standard (particularly the costs of process), but there will still be potentially significant costs associated with the time and effort of defending challenges to content.

Flow on of changes from RPS

8. Something to be mindful of is that changes to the RPS (from implementing the standards) may have a flow on to local plans. The flow on effect is unlikely to be from the direct implementation of the standards - it will be from the potential changes to provisions that are opened to challenge resulting from the Schedule 1 process to deal with consequential changes.

9. The preference would be to amend the RPS first before territorial authorities amend their plans. According to the draft standard, all the Northland local territorial authorities will be required to amend their district plans within five years of gazettal. This would mean the RPS should be amended within 3-4 years. But as discussed, we would much prefer to wait until the RPS is due its 10-year review.

10. A solution would be for the implementation of the standards in territorial plans to be delayed until the conclusion of any Schedule 1 consequential amendments of the RPS.

Definitions and metrics

Schedule 1 vs Section 58I

11. In many instances, the inclusion of definitions and metrics will not be like for like. It means if councils want to include definitions but not change the effect of rule (in particular), changes will need to be made to rules.

12. For example, the draft standards have a definition for earthworks:

means any land disturbance that changes the existing ground contour or ground level

13. The draft standards also define land disturbance:

means the alteration to land, including by moving, cutting, placing, filling or excavation of soil, cleanfill, earth or substrate land

14. The Proposed Regional Plan for Northland defines earthworks as:

The mechanical disturbance of the surface of the land by excavation, cutting and filling, blading, ripping, contouring, or placing or replacing earth, but does not include:

1. the placement of cleanfill material, or

2. land preparation, or

3. construction, repair, alteration or maintenance of bores, or

4. the maintenance of walking and other recreational tracks, or

5. the placement of roading aggregates during road and track works, or

6. digging post holes, or

7. planting trees.

15. The notable difference between the two definitions is the list of excluded activities. If we didn’t want to change the effect of the rules for earthworks, we’d need to amend the earthworks rules to ensure they don’t capture the list of excluded activities. We don’t think it should be necessary to make this type of change using a Schedule 1 process but it’s not clear that such a change is anticipated by Section 58I(3)(d)^{^[2]}.

16. Section 58I(3)(d) requires “…any consequential amendments to any document as necessary to avoid duplication or conflict with the amendments”. Relating this back to the earthworks example, we think it would be a stretch to say that the rule changes “are necessary to avoid duplication or conflict” with the inclusion of the definition of earthworks. The wording of the rules for earthworks does not duplicate or conflict with the definition of earthworks.

17. As stated previously, we’d like to make these types of changes without using the Schedule 1 process. The solution is to amend Section 58I or to allow a longer timeframe to implement so changes can happen at the same as the RMA required 10-year review of plan and policy provisions.

Minimising the scope of the Schedule 1 process

18. Our prediction is that if making changes to plans to incorporate the definitions and metrics is likely to be a costly process for councils, and the relevant provisions are not due their 10-year review within the required timeframe to implement the standards, then they will look for ways to minimise the cost of the Schedule 1 process.

19. A significant driver of Schedule 1 costs is the scope of the changes and therefore the opportunity to challenge provisions. The greater the scope of the changes, the more likely people will challenge it and councils (and others) have to spend resources defending it. So, if we had to make the changes to the earthworks rules to address the exceptions, it would allow anyone with a concern with the rules to challenge any aspect of the rules – even though we have no intention of changing the scope of the rules.

20. If we were forced to undertake a Schedule 1 process to incorporate the definitions before the 10-year review then we would seriously consider doing it in a way that would avoid opening the rules to challenge. One way of doing this would be to do a plan change to change the word ‘earthworks’ in our regional plan to some other name e.g. ‘land modification’. There is still a risk that someone could argue that by changing the name in the rules, it opens the ability to challenge any part of the rules, but the risk is a lot less compared to changing the rules to address the exceptions.

21. The draft standards state the prescribed definitions apply to synonymns. The Oxford dictionary defines a synonym as:

A word or phrase that means the same as another word or phrase in the same language

22. We believe we could successfully argue that changing the word ‘earthworks’ to (e.g.) ‘land modification’ would mean our definition is not ‘the same’, given our definition excludes a list of activities. Perversely, this could result in a situation that there is even more variation in the terms used in plans to describe activities than there currently is (at least in the short term). The approach would be a stop gap measure until the 10-year review (or the relevant provisions are subject to a plan change for other reasons) at which time the definitions in the standards would be incorporated.

Timing of Schedule 1 process vs 58I process

23. Another issue we foresee is if the insertion of the definitions lead to changes in the way the rules effect activities, then the Schedule 1 changes to the rules will need to happen before the insertion of the new definitions. This is because the insertion of the definitions will be immediately operative, whereas any consequential changes requiring a Schedule 1 process wouldn’t be operative until any challenges are resolved.

24. Using the earthworks example, if the definitions were inserted before the Schedule 1 process concluded, then the earthworks rules would apply to the exceptions which may mean e.g. consent would be required for activities that are intended to be permitted or vice versa. A Schedule 1 process may take e.g. two years, which means it would need to start at least two years before the cut-off date for implementation to avoid this situation.

25. A solution would be to have a mechanism to exempt the insertion of a definition into an operative plan if a plan change is notified to address consequential changes resulting from the definition.

A full package of mandatory content

26. As highlighted with the earthworks example above, the goal of achieving consistency with the definitions may not be achieved and is likely to be costly for councils to implement. If the planning standards are to prescribe content, then we think it should be the whole package of content. So, using the earthworks example, the standards could prescribe the definitions and the suite of rules (and possibly policies and objectives) for all earthworks and land disturbance activities. Councils would then have two choices – either to adopt the content as prescribed without a Schedule 1 process, or to vary the standardised content via the Schedule 1 process. Accompanying the standardised content should be a section 32 evaluation. If councils want to vary the standardised content, they would do a s32AA evaluation i.e. the focus would only be on the variation and councils would have the section 32 to use as the reference for the s32AA evaluation.

Mandatory headings and matters addressed

27. The standards prescribe mandatory section headings and then set out the matters to be included in each section if the matters are addressed in the plan and/or policy statement. We therefore understand the direction to mean that if the plan includes a prescribed matter it must go into that section, and that the plan and/or policy statement doesn’t have to include the matter if it isn’t addressed in the document. We support this approach (assuming our understanding is correct).

28. We also assume councils may include additional matters into the prescribed sections. In other words, councils are not constrained to just the matters listed for the section. Again, we support this.

29. A minor point – it’s not clear what happens where the plan contains none of the matters listed. For example, there is a mandatory heading for “Evaluation and monitoring” but our proposed regional plan doesn’t contain any such content. Would the heading be included but with no content or because there is no content can we exclude the heading? If the heading must be included then our approach in this situation would be to include the text “Not included” or the like. We suggest it be made clear that the heading only need be included if there is content under it.

Themes

30. We are comfortable with the themes prescribed for RPS’s. The themes generally align with the themes of our current RPS.

31. We do however have some concerns with the themes for regional plans, particularly as they apply to rules. The themes generally make sense as they would apply to policies, but not for rules. Our view is that there should be an option for rules to be packaged by activity.

32. Most people interact with a plan via the rules with an activity in mind – not a theme. Also, rules are written for an activity – that’s what the RMA requires. The most efficient and effective way is to package them by activity.

33. Packaging rules by theme is going to result in a lot of cross referencing and a considerable amount of confusion about where best to locate rules and which sections to cross reference from. The draft guidance material states:

For example rules relating to protecting biodiversity in wetlands, can be in the water chapter, the ecosystem and indigenous biodiversity chapter and in the relevant catchment chapter. However best practice is that the rule should only be written once (to avoid confusion and possible typos) and cross-referenced as many times as needed.

34. The example could also include ‘the coastal environment’ and ‘landscape, landforms and natural character’ chapters. Each wetland rule would have four or five cross references. This is just one example – multiplying this across a plan, it will result in 100’s of cross references. And all of this is unnecessary if the rules were packaged by activity without the need to cross reference to the themes.

Electronic accessibility and functionality standard

35. Instruction 16 in Table 18 requires regional coastal plan provisions to be identified (Section 64, RMA). While it is a minor issue, we don’t support this because:

· It is not a legal requirement of the RMA

· We’re not aware of any benefit to plan users

· Identifying the coastal marine area provisions for the purposes of the Minister of Conservations sign off is an administrative issue and can be addressed outside the plan

36. If it’s to be retained, then the reference should be amended to “the parts that relate to the coastal marine area” to reflect the wording of Section 64(3), RMA).

37. Instruction 3 in Table 19 requires regional plans to be “…spatially integrated with GIS system, allowing click to drill through different map layers and specific rules that apply to particular properties or activities and infrastructure services.” While we do not envisage any major problem implementing this, we question the value of this functionality for users of regional plans. Unlike district plans, most of the regional plan rules have no geographic variation. It’d mean that for any one location most of the same plan rules will be applicable. It’s a bit different in the coastal marine area where there are zones and overlays, but as the vast majority is not in private title, we don’t envisage there would be much demand for this functionality.

Chapter form standard

38. Instruction 3 of the Chapter form standard, says:

“Chapters within Part 2 – Tangata Whenua, Part 3 – District-Wide Matters and Part 4 – Area-Specific Matters must use the order of headings below.”

39. We understand that the Part 2 – Tangata whenua is the only relevant part applicable in instruction 3 to a regional plan or regional policy statement. We understand this to mean that Part 2 – Tangata whenua must include all the headings as prescribed. However, it’s not clear whether content must be included under each heading as the requirement is only that we “must consider” the inclusion of the relevant content. We could be in a position where we have to have the heading but there is no content under it.

40. Instruction 4 says;

“Unless otherwise stated, regional policy statement chapters, regional plans chapters and combined plan chapters may contain headings in the order provided.”

41. We assume this means that unless otherwise stated (and we cannot find anywhere where it is stated) it is up to the council whether it chooses to include one or more of the headings. We support this.

42. Similarly, instruction 5, 6 and 7 (for example) say that “Local authorities must consider whether…”. We interpret this to mean that council can choose whether to include the relevant content – which we support. However, there doesn’t seem to be any direction as how we would demonstrate that we have considered whether the relevant content is to be included. Without any direction, our approach would likely be to provide advice to council and get a council resolution.

43. Table 26 “Rule table” requires setting out the activity status when compliance with the rule is not achieved. We have some concerns with this – which we’ll highlight using the following example of a rule from our Proposed Regional Plan:

44. Firstly, it’s not clear what a non-compliance is vs being beyond the scope of the rule. Referring to the example, clearly if the structure doesn’t comply with clauses 16-18 then it’s a non-compliance. But what about an existing structure that doesn’t come within the scope of clauses 1 – 15? Is a jetty more than 10m² (for example) considered to be a non-compliance?

45. Secondly, there could be many activity statuses depending on which rule requirement is not complied with, e.g. depending on what zone the structure is in, whether it’s in an area of outstanding natural character or not, and the type of structure.

46. Our preference would be to remove the requirement to set out the activity status when compliance with the rule is not achieved.

Mapping Standard

47. It’s not clear whether a symbology set will be provided to councils. We assume it will be (to ensure consistency), and in that case, it will need to be compatible with council systems (in our case ArcGIS).

Signed on behalf of the Northland Regional Council by:

Malcolm Nicolson (Chief Executive Officer) Dated: xxxxx 2018

Northland Regional Council
Private Bag 9021
Whangārei Mail Centre
WHANGĀREI 0148

[1] As measured by E. coli in fourth order and larger rivers and cyanobacteria in lakes with a perimeter greater than 1.5km

[2] We assume that such a change wouldn’t come under S58I(2)(b) as definitions and metrics are not a constraint or limit.

Councillor John Bain	Councillor Paul Dimery	Councillor Bill Shepherd (Ex-Officio)
Councillor Penny Smart	Non Elected Member from TTMAC

TITLE:	Record of actions – 4 April 2018
ID:	A1093041
From:	Evania Laybourn, Planning and Policy Team Admin/PA

Name:	Ben Lee
Title:	Policy Development Manager
Date:	01 August 2018

TITLE:	Submission on draft National Planning Standards
ID:	A1092710
From:	Ben Lee, Policy Development Manager