Old plan, new plan?
The issue of how to weight differing operative and proposed plan provisions is a complex but important issue under the RMA. To assist, each local authority should establish criteria that staff can follow when evaluating consent applications and considering enforcement action, during the period in which two (or more) plans apply. See the good practice examples for further information.
The terms commonly used to refer to plans at different stages are 'transitional plan', 'operative plan' and 'proposed plan'.
The proposed plan will only be 'operative' when the plan is made operative under clause 20 of Schedule 1 of the RMA. This means it has gone through the full plan preparation process including:
- public notification of the proposed plan
- submissions and further submissions
- council decision
- resolution of any appeals to the Environment Court
- resolution, if necessary, appeals to the High Court.
A council is required to publicly notify the fact that the plan has been made operative. For further information refer to the Making Plans Operative guidance note.
Weighting between operative and proposed plans
Weighting in terms of case law applies only to the evaluation of applications for resource consent. Weighting might, however, also be used as a guide in prioritising enforcement action. The duty to enforce a plan under s84 only applies to operative plans.
The weighting of operative and proposed plans under the RMA was considered early by the Planning Tribunal in Hanton v Auckland City Council  A10/94. In this case, the Court held the following:
(a) The RMA does not distinguish between the weight to be accorded to an operative plan and to a proposed plan (though this is only an issue where the provisions of the operative plan are inconsistent with the provisions being proposed).
(b) The requirements of s104 for having regard to various matters are related to the exercise of discretions. Rather than have a general rule about the cases where a proposed plan is to prevail over inconsistent provisions of an operative plan, or vice versa, each case should be decided individually according to its own circumstances. Relevant factors include:
- the extent to which the proposed measure has been exposed to independent decision-making
- possible injustice
- the extent to which a new measure may implement a coherent pattern of objectives and policies in a plan.
The Environment Court's discretion as to weight was approved by the High Court in TV3 Network Services Ltd v Waikato DC  NZLR 360. The weighting approach expressed in Hanton has been followed in a number of cases and confirmed by the Court of Appeal in Bayley v Manukau CC  1 NZLR 56.
However, in recent cases, where there has been a significant shift in council policy and the new provisions are in accordance with Part 2, the Environment Court has indicated that it may be appropriate to give more weight to the proposed plan. For example, in Mapara Valley Preservation Society Inc v Taupo District Council EnvC (A083/07) the Court placed substantial weight on recently notified plan changes relating to growth management and rural land use. See also Auckland Regional Council v Waitakere Council (A065/08).
When Rules Have Legal Effect
The RMA was amended in 2009 to change when rules have legal effect and plan weighting by way of the introduction of ss86B-G. These provisions mean that a rule in a proposed plan now only has legal effect after decisions on submissions have been made. However, there are a number of exceptions where rules have immediate effect earlier, as follows:
- if an Environment Court order gives a rule in a plan legal effect on a different date; or
- if the rule protects or relates to water, air, soil (for soil conservation purposes); or
- if the rule protects areas of significant indigenous vegetation, significant habitats of indigenous fauna or historic heritage; or
- if the rule provides for or relates to aquaculture activities.
Also note that a local authority may resolve that a plan rule will have no legal effect until it becomes operative.
When Rules Must be Treated as if they were Operative
As noted above, rules in proposed plans do not normally have legal effect until after decisions have been made on submissions. Section 86F of the RMA provides for a rule to be treated as operative if no submissions or appeals have been lodged, or if all submissions or appeals have been withdrawn or finally determined. Section 86F states:
A rule in a proposed plan must be treated as operative (and any previous rule as inoperative) if the time for making submissions or lodging appeals on the rule has expired and, in relation to the rule, -
- no submissions in opposition have been made or appeals have been lodged; or
- all submissions in opposition and appeals have been determined; or
- all submissions in opposition have been withdrawn and all appeals withdrawn or dismissed.
Where a general submission challenges an entire proposed plan, but does not state the change that is required if relief was granted, it cannot be applied to a specific provision. However, if such a submission were made with reasonable specificity, the submission could mean that s86F would not apply to the rules in the plan. The High Court commented that, if a serious challenge to a plan is made, the council should seek a declaratory judgment from the High Court or apply to the Environment Court for a declaration to clarify this issue.