Following a conference, and after obtaining independent legal advice on the issue, the Auckland Unitary Plan Independent Hearings Panel has decided to publish interim guidance on the principal issues arising from its consideration of submissions on the RPS sections of the Proposed Auckland Unitary Plan, or PAUP. To date, interim guidance has been released on rural subdivision, and urban growth.
The decision to release interim guidance was made following requests by numerous parties, including Auckland Council, to consider whether the Panel should proceed to hear and determine submissions on the (regional and district) plan provisions within the PAUP in advance of determining the RPS provisions. An issue was identified whether the RMA (and the Local Government (Auckland Transitional Provisions) Act 2010, or LGATPA) required the PAUP and regional and district plan provisions to “give effect to” the Operative RPS, or the proposed RPS provisions of the PAUP. Questions were also raised whether the Panel could (and should) release recommendations (or interim recommendations) on RPS issues in advance of hearings submissions on the remainder of the PAUP. These matters would all have significant timing implications for hearings on the remainder of the PAUP.
The Panel sought guidance from MfE policy advisors on the issue prior to making its decision. It received a response from the Office of Hon Dr Nick Smith[1] advising that “a legislative response is not necessary”, and that the Panel already has “the broad powers it needs to regulate proceedings, including the ability to issue interim guidance on their likely recommendations, to ensure an efficient and fair process.”
The Panel also sought legal advice, and released an opinion from Dr Royden Somerville QC. That advice found that the LGATPA does not provide for interim recommendations at this stage. It also concluded that there are strong reasons to interpret the LGATPA as requiring the Panel’s recommendations on the proposed plan provisions to give effect to the proposed RPS provisions, not those of the Operative RPS.
After hearing submissions on the issue, the Panel concluded[2] that:
It would publish interim guidance on the principal issues arising from its consideration of submissions on the RPS. The Panel was careful to note that such guidance would not amount to a recommendation pursuant to the LGATPA, and would not require any decision from the Council. It was also careful to note that the Panel would not be bound by that interim guidance when it came to make recommendations to Council.
The Panel is to hear submissions and make recommendation on the PAUP as a combined document pursuant to the RMA and LGATPA. This means that the Panel’s recommendations on the proposed (regional and district) plan provisions will give effect to the proposed RPS provisions, and not those of the Operative RPS.
The Panel’s interim guidance issued to date can be viewed on its website, here.
[1] Letter to Judge David Kirkpatrick, AUPIHP, dated 29 January 2015.
[2] AUP IHP Conference Minute, dated 9 February 2015.