Designations under the RMA
17/03/2015
*
Presented by Matthew Casey QC & Asher Davidson
* * A planning tool under the RMA. * Allows the construction/operation of a project without
the need for a land use consent under the District Plan.
* Restricts use of other land, water, subsoil or airspace for the functioning/operation of a public work.
* Gives a clear indication of the intended use of land in the future.
* Confers rights on the landowner.
1
17/03/2015
* * Crown, any local authority and approved ‘network utility operators’.
* Network utility operators provide important
infrastructure – i.e. distribution/transmission of gas, petroleum, biofuel, electricity, water etc.
* A designation often precedes the taking of required land for a public work although not strictly necessary.
* Regional consents, district consents not covered by the District Plan and non-RMA approvals still need to be sought.
* * A notice of requirement (NoR) is given to the territorial authority
* The territorial authority * can seek further information; * decide whether to notify the NoR – if notified, there will be a period for submissions.
* A hearing is held. * The NoR can be ‘called in’ by the MfE. * Territorial authority assesses NoR under s 171 RMA.
2
17/03/2015
* A recommendation to confirm, modify or withdraw the NoR is made.
* The requiring authority decides whether or not to accept the recommendation.
* The requiring authority’s decision is notified by the territorial authority.
* If appealed, the Environment Court can cancel, confirm or modify the NoR and impose conditions.
* Limited right of appeal: * High Court – questions of law only * Court of Appeal/Supreme Court – on grounds of public importance
* Once NoR is confirmed, it must be included in operative and proposed district plan.
* The outline plan process provides for assessment of detailed design later.
* The outline plan should show: * Height, shape/bulk of work, location on site, finished contour, provisions for parking, landscaping
* The outline plan process can be waived.
3
17/03/2015
* * Environmental effects. * Relevant statutory planning instruments. * Adequate consideration of alternative sites, routes or methods of undertaking work.
* Whether the work/designation is reasonably necessary. * Other matters reasonably necessary to determine the application.
* Whether the designation will give effect to the
sustainable management purpose of the RMA – refer Part 2 RMA.
* * The decision-maker must have ‘particular regard’ to alternatives if:
* the requiring authority does not adequate interest in the land
* there significant adverse environmental effects (see s 171(1)(b) RMA)
4
17/03/2015
* Upper North island Grid Upgrade by Transpower
* The focus is on the process and not the outcome. * The question is not whether the best route, site or method has been chosen.
* May be routes, sites or methods which may be
considered by some to be more suitable is irrelevant.
* Executive responsibility for selecting the site remains with the requiring authority.
* Requiring authority is not required to eliminate
speculative alternatives or suppositious options.
5
17/03/2015
* *Requiring authorities
need to give careful consideration to using land they already have control over instead of jumping straight to using private land “… where private land will be affected by a designation, adequate consideration of alternative sites not involving private land must be undertaken by the requiring authority”
* “… the same logic must apply to the extent of the Project’s adverse effects. The measure of adequacy of the consideration of alternatives will depend on the impact on the environment of adverse effects.”
6
17/03/2015
* Meeting the alternatives considerastion test: * Any alternatives considered should be carefully recorded. * Criteria applied should be consistent or reasons recorded if a different approach is taken.
* Alternatives identified by the community and/or affected landowners should be taken seriously.
* Proper engagement with community/landowners is key.
* * Decision-maker must have regard to whether work and designation are reasonably necessary for achieving objectives.
* Objectives should be clearly articulated early in the process.
7
17/03/2015
* * The Court found the designation of land was not
reasonably necessary to give effect to the Council’s objectives.
* * Provided the Council had given adequate consideration to both reasonably available sites, it was its decision (and not the Court’s) which to select.
8
17/03/2015
* * Be aware of the requiring authority’s objectives and what it needs to demonstrate in terms of process.
* Key part of the alternatives consideration process. * Your advice is likely to be used by other experts to assess effects on the environment (i.e. visual, noise, vibration effects etc).
* Liaising with Council staff who are charged with processing the NoR.
* Be familiar with the Environment Court’s latest code of conduct for expert witnesses (came into effect on 1 December 2014).
9
*
Presented by Matthew Casey QC & Asher Davidson
* * A planning tool under the RMA. * Allows the construction/operation of a project without
the need for a land use consent under the District Plan.
* Restricts use of other land, water, subsoil or airspace for the functioning/operation of a public work.
* Gives a clear indication of the intended use of land in the future.
* Confers rights on the landowner.
1
17/03/2015
* * Crown, any local authority and approved ‘network utility operators’.
* Network utility operators provide important
infrastructure – i.e. distribution/transmission of gas, petroleum, biofuel, electricity, water etc.
* A designation often precedes the taking of required land for a public work although not strictly necessary.
* Regional consents, district consents not covered by the District Plan and non-RMA approvals still need to be sought.
* * A notice of requirement (NoR) is given to the territorial authority
* The territorial authority * can seek further information; * decide whether to notify the NoR – if notified, there will be a period for submissions.
* A hearing is held. * The NoR can be ‘called in’ by the MfE. * Territorial authority assesses NoR under s 171 RMA.
2
17/03/2015
* A recommendation to confirm, modify or withdraw the NoR is made.
* The requiring authority decides whether or not to accept the recommendation.
* The requiring authority’s decision is notified by the territorial authority.
* If appealed, the Environment Court can cancel, confirm or modify the NoR and impose conditions.
* Limited right of appeal: * High Court – questions of law only * Court of Appeal/Supreme Court – on grounds of public importance
* Once NoR is confirmed, it must be included in operative and proposed district plan.
* The outline plan process provides for assessment of detailed design later.
* The outline plan should show: * Height, shape/bulk of work, location on site, finished contour, provisions for parking, landscaping
* The outline plan process can be waived.
3
17/03/2015
* * Environmental effects. * Relevant statutory planning instruments. * Adequate consideration of alternative sites, routes or methods of undertaking work.
* Whether the work/designation is reasonably necessary. * Other matters reasonably necessary to determine the application.
* Whether the designation will give effect to the
sustainable management purpose of the RMA – refer Part 2 RMA.
* * The decision-maker must have ‘particular regard’ to alternatives if:
* the requiring authority does not adequate interest in the land
* there significant adverse environmental effects (see s 171(1)(b) RMA)
4
17/03/2015
* Upper North island Grid Upgrade by Transpower
* The focus is on the process and not the outcome. * The question is not whether the best route, site or method has been chosen.
* May be routes, sites or methods which may be
considered by some to be more suitable is irrelevant.
* Executive responsibility for selecting the site remains with the requiring authority.
* Requiring authority is not required to eliminate
speculative alternatives or suppositious options.
5
17/03/2015
* *Requiring authorities
need to give careful consideration to using land they already have control over instead of jumping straight to using private land “… where private land will be affected by a designation, adequate consideration of alternative sites not involving private land must be undertaken by the requiring authority”
* “… the same logic must apply to the extent of the Project’s adverse effects. The measure of adequacy of the consideration of alternatives will depend on the impact on the environment of adverse effects.”
6
17/03/2015
* Meeting the alternatives considerastion test: * Any alternatives considered should be carefully recorded. * Criteria applied should be consistent or reasons recorded if a different approach is taken.
* Alternatives identified by the community and/or affected landowners should be taken seriously.
* Proper engagement with community/landowners is key.
* * Decision-maker must have regard to whether work and designation are reasonably necessary for achieving objectives.
* Objectives should be clearly articulated early in the process.
7
17/03/2015
* * The Court found the designation of land was not
reasonably necessary to give effect to the Council’s objectives.
* * Provided the Council had given adequate consideration to both reasonably available sites, it was its decision (and not the Court’s) which to select.
8
17/03/2015
* * Be aware of the requiring authority’s objectives and what it needs to demonstrate in terms of process.
* Key part of the alternatives consideration process. * Your advice is likely to be used by other experts to assess effects on the environment (i.e. visual, noise, vibration effects etc).
* Liaising with Council staff who are charged with processing the NoR.
* Be familiar with the Environment Court’s latest code of conduct for expert witnesses (came into effect on 1 December 2014).
9
