22 March 2012 - Part 2 analysis

Part 2 in the RMA
- a purpose section is new in statutes from around this era ie 1991. Quite commonly used in statutes – including environmental statutes - now.
- a purpose section is deliberately broad and invites an interpretation exercise
- every key decision and outcome under the Act needs to meet the purpose eg preparing district (s76) and regional plans (s??) and deciding whether to issue resource consents (s104 “subject to Part 2”).
- looked at Simon Upton discussion about what he intended with the Act. Ie no need to discuss the “need” for developments – the market decides that – regulators just have to look at their effects on biophysical bottom lines.
- examined how and whether section 5(2) meets his ‘environmental bottom lines’ approach
- s5(2)(a) future generations – note how ‘backed off’ that provision is – it is, not surprisingly, not much referred to or argued in case law.
- s5(2)(b) safeguarding air water soil. This is perhaps the purest of the biophysical bottom lines. See it reflected I provisions such as s15(1) – tight control.
- s5(2)(c) avoid remedy mitigate adverse effects. Note that you can simply seek to mitigate. No need to discuss whether you could avoid. Taranaki Thermal Power Station No 1 call in discussed that issue. See discussion in Brooker annotated RMA.
- note definitions of ‘effects’ and ‘environment’ – very broad, includes ‘amenity’ which is also defined – this means that much more than biophysical matters are involved.
- examined use of word ‘while’ and how that affects interpretation. Can be read to say that both the need for the project and its effects can be considered. Case law generally suggests that the more adverse effects an activity has the more “need” or positive effects will be examined and relevant in the final decision. Is there a 3rd way to read s5(2) – ie a development that meets the “biophysical bottom lines” of (a) (b) and (c) yet fails to, for example, provide for safety and health? Is that possible? What about a cigarette factory development selling into the NZ market?

Had a brief look at the ‘default’ provisions in Part 3
S9 for land use planning
S10, 10A etc governing existing uses, and also activities on surface of non-coastal waterbodies
S11 subdivision is the exception – and the reasons why

READING FOR NEXT LECTURE: Wellington City District Plan – residential rules section

15 March 2012 - Structure of the RMA

Analysis of the structure of the RMA 1991: The planning regime; local government changes; s9 and categories of activities; formation of plans.

Sources of RMA law on the internet

http://www.rmaguide.org.nz/ – this RMA guide is very good for finding your way around

http://www.qualityplanning.org.nz/ - Quality Planning website – this is the level of understanding I expect you to have at the end of the course

Mfe.govt.nz

Brookers database on VUW library website – use both annotations to the RMA and also searches of relevant case law – you will need the latter for your research essay.

Went through the outline of the Act looking briefly at all key parts we will be covering. Discussed provisions such as s15 and how you need to read the detail carefully.

Looked at lgnz.govt.nz website:

- noted the difference between territorial authorities (district and city councils) and regional councils

- examined a couple of examples of plans. Looked at planning map from the Wellington plan. Note how different councils take different approaches. Looked at Wgtn regional coastal plan by contrast with land use plans by district and city councils.

READING FOR NEXT LECTURE: Simon Upton on Part 2

8 March 2012 - Background to the passing of the RMA 1991

Introduction to the course: Administrative matters.
Background to the passing of the RMA 1991: Sustainable management and development. Different legal traditions within the legislation

Background to the passing of the RMA
Town and Country Planning Act 1977 - wise use - prescriptive
Resource Management Law Reform see: http://en.wikipedia.org/wiki/Resource_Management_Act_1991
Completed by National government - Upton
RMA - effects based eg of Shirley Primary School case. NZTA opening submission on Transmission Gully - you do not need to be concerned with the benefits of the proposal since the adverse effects have been fully mitigated.

Who runs the RMA - district and city councils, regional council - under the Local Government Act 2002. Fr
http://en.wikipedia.org/wiki/Territorial_authorities_of_New_Zealand

www.epa.govt.nz
What goes in to the making of a large project under the RMA. Applicant prepares:
Technical reports and management plans on all matters where there might be effects on the environment
Assessment of Environmental Effects
Evidence from key experts
Rebuttal evidence from key experts