Plan Making in the Wake of King Salmon Environmental Defence Society “Wild Things” Conference Auckland 11-13 August 2015 Dave Serjeant
A RECAP ON KING SALMON - the hierarchy • The decision provided an overview of the RMA and policy and plan-making • Three tiered management system – a hierarchy: • Part 2 • NPS and • RPS (and regional and district plans)
A RECAP ON KING SALMON (cont.) - Part 2 of the RMA • The definition of sustainable management: • Section 5 to be read as an integrated whole, not in two parts separated by the word ‘while’ • ‘avoiding’ means ‘not allowing’, or ‘preventing the occurrence of’ • ‘protection’ and ‘avoiding’ contemplate that particular environments may need to be protected from adverse effects • Sections 6, 7 and 8 supplement section 5 by stating particular obligations in relation to the various matters therein
A RECAP ON KING SALMON (cont.) - the NZCPS • Decision applied these findings to the NZCPS and its application to the plan changes proposed in the Marlborough Sounds • To give effect to Policies 13 and 15 a regional council must: • Assess natural character/natural features/natural landscapes • Identify areas where these require preservation or protection • Ensure RPSs, and plans, include objectives, policies and rules which require such preservation and protection
A RECAP ON KING SALMON (cont.) - bypass Part 2? • Invalidity • Incomplete • Uncertain
A RECAP ON KING SALMON (cont.) - a bit more on ‘avoid’ and ‘inappropriate’ • Interpretation of ‘avoid’ different in bottom -line approach to overall judgment approach • ‘Inappropriate’ is assessed by reference to what is to be protected
DIRECTIVE POLICIES -NPS electricity transmission 2008 POLICY 10 • In achieving the purpose of the Act, decision-makers must to the extent reasonably possible manage activities to AVOID REVERSE SENSITIVITY EFFECTS on the electricity transmission network and to ensure that operation, maintenance, upgrading, and development of the electricity transmission network is not compromised. • PAUP - Managing adverse effects on significant infrastructure 7. Avoid, remedy or mitigate reverse sensitivity effects on significant infrastructure by requiring subdivision, use and development to not occur in a location or form that constrains the use, operation, maintenance and upgrading of existing and planned significant infrastructure.
DIRECTIVE POLICIES -NPS freshwater • A1b) establish methods (including rules) to avoid over- allocation. • PAUP – Policy 7 Freshwater and geothermal quantity, allocation and use: Manage the quantity of water taken from freshwater and geothermal systems by: (a) avoiding further over allocation of water and reducing any over- allocation • Wellington RPS – Policy 12: Management purposes for surface water bodies Regional plans shall include policies, rules and/or methods that: • (a) require that water quality, flows and water levels, and the aquatic habitat of surface water bodies are to be managed for the purpose of safeguarding aquatic ecosystems health ; …
RPS Example 1: Natural Hazards WRPS - Policy 29: Avoiding inappropriate subdivision and development in areas at high risk from natural hazards – district and regional plans Regional and district plans shall: (a) identify areas at high risk from natural hazards; and (b) include polices and rules to avoid inappropriate subdivision and development in those areas.
RPS Example 2: Water quality Objective WQUAL.1 – Water quality goals Water quality in the region: (a) safeguards the life-supporting capacity of water and related ecosystems; (b) safeguards the health of people and communities; (c) is maintained, or improved in accordance with freshwater objectives formulated under the National Policy Statement for Freshwater Management 2014; (d) is managed to meet the reasonably foreseeable social, economic and cultural needs of future generations.
A final note on King Salmon and the hierarchy • The top level (in the hierarchy) has been missing • Shortcomings in identification and measurement of public good values • But still good examples of policy at regional level
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