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This part
contains the following sections:-
The Resource Management Act 1991 heralds a new direction for the management of resources. The philosophy of directing and controlling activities evident in the former Town and Country Planning Act has now given way to the promotion of the ‘sustainable management’ concept which is to be achieved through limiting the adverse environmental effects of using and developing the natural and physical resources of the District.
The historical techniques of planning, where the emphasis was placed on the control of activities, have been replaced by a requirement under the new legislation to manage the “effects of an activity” rather than the activity itself.
This approach, together with greater emphasis on accountability, transparency and performance in local government, and in resource management in particular, offers Council the opportunity for greater flexibility and innovation to set and achieve goals to secure a high standard of environmental quality throughout the District.
The District Plan introduces a new era in the approach being taken towards the management of the natural and physical resources of the Clutha District.
1.1.2. THE RESOURCE MANAGEMENT ACT
The Resource Management Act 1991 is the statutory framework for the preparation of District Plans. This Act replaced or amended the majority of the statutes affecting resource law. Of particular significance to planning was the replacement of the Town and Country Planning Act 1977, and significant amendments to the Local Government Act 1974.
The over-arching philosophy behind the new legislation is contained in four very important sections.
The PURPOSE of the Act is “to promote the sustainable management of natural and physical resources”. (See Sec 5 RMA)
The PRINCIPLES of the Act are - to recognise and provide for specified matters of National Importance. (See Sec 6 RMA) - to have regard to Kaitiakitanga, cultural and heritage values, the efficient use and development of natural and physical resources, and the enhancement of the environment and ecosystems. (See Sec 7 RMA) - take into account the Principles of the Treaty of Waitangi. (See Sec 8 RMA. Note: for a commentary on the principles of the Treaty of Waitangi see “Environmental Management and the Principles of Treaty of Waitangi” (1988) Parliamentary Commissioner for the Environment)
For a full quotation of Sections 5 to 8 of the Resource Management Act 1991, see Schedule 6.7 page 305.
(ii) Functions of Council Under the Resource Management Act
Council’s functions for the purposes of giving effect to the Act in its District, are established by Section 31, which sets out to achieve.
· integrated management of the effects of the use, development, or protection of land and associated natural and physical resources · control of any actual or potential effects of the use, development, or protection of land · avoidance or mitigation of natural hazards · prevention and mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances: · control of subdivision · control of the emission of noise · control of any actual or potential effects of activities in relation to the surface of water · other functions specified in the Act.
(iii) Purpose of the District Plan
The general purpose of the District Plan is to assist territorial authorities in carrying out their functions to achieve the purpose of the Act.
The District Plan must be read in conjunction with the Resource Management Act 1991. No attempt has been made in the Plan to set out large parts of the Act or to discuss the philosophies and purposes it contains.
The District Plan is a mandatory requirement and there is to be a District Plan in place at all times. The District Plan interprets the requirements for sustainable management of natural and physical resources at a District level.
It should be noted that the District Plan cannot be used as a vehicle for the promotion and encouragement of development in the District. These issues are more appropriately addressed through Council’s Strategic and Annual planning process.
The District Plan is concerned with the “effects” of development and activities, not the actual development or activity itself.
The management of effects can include effects on:
(iv) Preparation Process and Section 32 Analysis
This District Plan has been prepared by Council’s Planning and Environmental Committee after extensive consultation with individual organisations and the general public. Council has met with numerous affected parties and has released a series of discussion papers aimed at identifying the resource management issues facing the Clutha District and the most appropriate options available to deal with those issues.
These consultations and discussion papers form the basis of Council’s consideration of the Plan’s contents in terms of Section 32 of the Act. Section 32 imposes a duty on Council to consider the alternatives, assess the costs and benefits, and determine the necessity of a chosen action in terms of the Act’s purpose, before adopting objectives, policies or methods in the Plan.
This process has resulted in the District Plan being prepared as follows;
Volume One: The District Plan, which embodies.
- the background to the resources of the District - the issues affecting the resources of the District - the objectives, policies and rules in respect of those issues.
Volume Two: The Planning Maps,
- which diagrammatically illustrate various issues addressed in the plan; - identifies the hazards affecting various localities
Resource Material: which is not in document form but which contains all background reports and the submissions received and the changes which occurred as a result.
Resource Material is the background part of the Plan formulation process and contains a wide range of information which is available in Council’s office for inspection. The reasons and explanation which accompany the chosen objectives, policies and methods reflects the essence of that process.
(v) Resource Management Hierarchy
The Resource Management Act establishes a hierarchy of Policy Statements and Plans to help achieve the sustainable management purpose of the Act.
That hierarchy can be summarised as follows -
(i) The Resource Management Act itself, particularly Part II, and the specific sections with which Plans and Policy Statements must comply. (ii) Regulations to be known as “National Environmental Standards” (Section 43). (iii) National Policy Statements and New Zealand Coastal Policy Statements. (iv) Water Conservation Orders. (v) Regional Policy Statements. (vi) Regional Plans. (vii) District Plans
This hierarchy is not sequential, but it does establish an order of priority within which the various Plans and Statements cannot be inconsistent with those of higher priority. For example, a District Plan can be developed before a Regional Policy Statement but cannot be inconsistent with the Regional Policy Statement, once it is operative. If the District Plan is found to be inconsistent with the Regional Policy Statement a District Plan change may be necessary.
The structure of the hierarchy can be summarised as follows:
Regulations - “National Environmental Standards”
These provide for the development of National Environmental Standards (in the form of regulations) describing technical standards (as well as methods to implement those standards), relating to the use, development and protection of natural and physical resources. Those standards may relate to noise, contaminants, water quality, level or flow, air quality, and soil quality in relation to the discharge of contaminants. Before such regulations are produced however the Minister of the Environment must .... .... establish a process which gives the public the opportunity to comment and requires a publicly notified report and recommendation on the subject matter of the proposed regulations. (Secs 43 and 44 RMA)
National Policy Statements
The Minister for the Environment has the power to recommend the issue of a National Policy Statement. The purpose of such National Policy Statements is to state policies on matters of national significance that are relevant to achieve the purpose of the Resource Management Act. (Sec 24 RMA)
New Zealand Coastal Policy Statements
While National Policy Statements are not mandatory, New Zealand Coastal Policy Statements are, and at all times there must be at least one New Zealand Coastal Policy Statement prepared and recommended by the Minister of Conservation. The purpose of the New Zealand Coastal Policy Statement as established by Section 56 is to:
“. . . state policies in order to achieve the purpose of the Resource Management Act 1991 in relation to the coastal environment of New Zealand.”
Water Conservation Order
The purpose of Water Conservation Orders (Section 199 RMA) is to recognise and sustain:-
“a. Outstanding amenity or intrinsic value which are afforded by waters in their natural state; b. Where waters are no longer in their natural state, the amenity or intrinsic value of those waters which in themselves warrant protection because they are considered outstanding.”
Regional Policy Statements
The purpose of the Regional Policy Statement (Section 59 RMA) is:-
“ . . .to achieve the purpose of the Act by providing an overview of the resource management issues of the region and policies and methods to achieve integrated management of the natural and physical resources of the whole region.”
A “Regional Policy Statement” shall not be inconsistent with:-
The Otago Regional Policy Statement was notified at the date of notification of this Plan and is the relevant regional policy statement for Clutha District. The Clutha District Plan is generally consistent with the Otago Regional Policy Statement.
Regional Coastal Plans
The purpose of the Regional Coastal Plan (Section 63 of RMA) is;
‘to assist a Regional Council, in conjunction with the Minister of Conservation, to achieve the purpose of this Act in relation to the coastal marine area of that region.’
A Regional Coastal Plan is a mandatory requirement and shall not be inconsistent with any national policy statement the New Zealand Coastal Policy Statement any water conservation order
The Otago Regional Coast Plan was notified at the date of notification of this Plan and adjoins the Clutha District at mean high water springs. and at mutually agreed positions across river mouths as shown on the Planning Maps.
Regional Plans
The purpose of Regional Plans (Sec 63 RMA) is:
“. . . to assist the Regional Council to carry out any of its functions in order to achieve the purpose of the Act.”
A Regional Plan shall not be inconsistent with: · any National Policy Statement or New Zealand Coastal Policy Statement · any Water Conservation Order · the Regional Policy Statement.
A Regional Plan is not a mandatory requirement.
(vi) The District Plans Relationship with other Legislation and Plans
The District Plan must not be inconsistent with any of the following:-
· any National Policy Statement · any New Zealand Coastal Policy Statement · any Water Conservation Order · the Regional Policy Statement or Regional Plan in regard to any matter of regional significance or for which the regional council has primary responsibility for.
If any inconsistency is found a change to the District Plan may be necessary.
Where there is a dispute about the consistency between Policy Statements and Plans (as outlined above), the issue may be referred to the Environment Court for a decision resolving the matter (S.82). If the Court considers there is inconsistency, it shall order the authority responsible for the Policy Statement or Plan to initiate a change to it unless the Environment Court considers it is of minor significance that does not affect the general intent and purpose of the document concerned, in which case it may allow that inconsistency to remain.
The Environment Court may also hear disputes about whether it is necessary to change any Regional Policy Statement or any Plan to address issues and objectives of a National Policy or New Zealand Coastal Policy Statements.
Section 74 requires that Council must also have regard (to the extent to which they have a bearing on resource management issues) to the following when preparing or changing a District Plan.
(a) Any Management Plans and Strategies Prepared Under Other Legislation
* Reserves Act 1977 - Management Plans * Conservation Act 1987 - Conservation Management Strategies and Plans - Freshwater Fisheries Management Plans - Sports Fish & Game Management Plans * The National Parks Act 1980 - Park Management Plans * Local Government Act 1974 - Annual Plans - Strategic Plans - By-laws * Historic Places Act 1993 - Conservation Plans - Register of Historic Places * Civil Defence Act 1983 - Civil Defence Plans
(b) Relevant Planning Documents Recognised by Iwi Authorities
* Kai Tahu ki Otago Natural Resource Management Plan
(c) Regulations Relating to the Conservation or Management of Taiapure or Fisheries
Consideration must also be given to neighbouring district plans to ascertain the issues over which there may need to be consistency.
Along with the legislation listed under (a) above, the following Acts also impact on resource use:
* Crown Minerals Act 1991 - establishes the process by which permits for prospecting, exploration and mining of Crown owned minerals are obtained. * New Zealand Walkways Act 1990 - provides for the establishment of a system of walking tracks throughout New Zealand * Forestry Amendment Act 1993 - controls the export and use of the indigenous timber resource * Building Act 1991 - establishes a regulatory framework for the control of building works in respect of public health, safety and amenity. * Biosecurities Act 1993 - provides for the exclusion, eradication and management of pests and unwanted organisms, and defines the functions of local authorities in respect of these issues. * Health Act 1956 - together with by-laws, controls health and safety matters, including the operation of commercial and industrial activities. * Transit New Zealand Act 1989 - establishes the role of Transit NZ in promoting and allocating resources to achieve a safe and efficient land transport system. * Soil Conservation and Rivers Control Act 1941 - promotes soil conservation for the prevention and mitigation of soil erosion, the prevention of damage by floods and the utilisation of land to achieve these ends.
There are a number of other bodies that have resource management responsibilities in terms of the Resource Management Act 1991. These are summarised below:
· Ministry for the Environment
The Ministry for the Environment’s role is generally an overview and monitoring one, although there are some areas of direct resource management responsibility.
· Department of Conservation
The Department of Conservation was established by the Conservation Act 1987, and is given the role of managing the Crown’s conservation estate and other natural and historic resources entrusted to it. Within the context of the Clutha District this comprises an area of 94,445 hectares. The Department also has an advocacy role for conservation values over areas for which it does not have a managerial role.
The Department has duties and functions in terms of several other Acts as follows:- * Wildlife Act 1953 * Marine Animals Protection Act 1978 * Fisheries Act 1983 * New Zealand Walkway Act 1990 * Reserves Act 1977 * Wild Animal Control Act 1977 * National Park Act 1980
The Minister of Conservation has responsibilities in the coastal environment in terms of the RMA.
· Otago Regional Council
The functions of the Otago Regional Council are set out in section 30 of the Resource Management Act which is attached as Schedule 6.8 (page 307)
While the Otago Regional Council is the principal authority in respect of controlling the use of land for the purpose of soil conservation and the maintenance and enhancement of the quality and quantity of water in the Clutha District, the Clutha District Council also has a role in controlling the effects that using, developing, and/or protecting land may have on these issues. This Council’s role in respect of these issues will complement the Regional Council’s functions while ensuring duplication of controls is avoided.
Both the Otago Regional Council and the Clutha District Council also have roles to play in respect of the avoidance or mitigation of natural hazards and the prevention or mitigation of any adverse effects of the storage, use, disposal or transportation of hazardous substances. Again these functions will be undertaken in a complementary matter that ensures duplication of controls is avoided.
· Fish and Game Council
The Otago Fish and Game Council is the statutory agent for the management of sports fish (trout and salmon) and gamebirds (water fowl and upland game) in the Clutha District. The Conservation Act assigns the following function to the Fish and Game Council;
* Assessing and monitoring sports fish and game populations, and the condition of ecosystems * Maintaining and improving access to the sports fish and game resource * Undertaking such works as may be necessary to maintain and enhance the habitat of sports fish and game * Promoting and educating on sports fish and game matters * Preparing and maintaining sports fish and game management plans * Representing the interests and aspirations of anglers and hunters in the statutory planning process.
· Historic Places Trust and Maori Heritage Council
Both the Historic Places Trust and the Maori Heritage Council have roles to play in terms of the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand. The Trust is required to compile and maintain a register of historic places, areas, waahi tapu, and waahi tapu areas, and is to supply this to Council to assist in protection of these areas under the Resource Management Act 1991.
The Trust also has an advocacy role in respect of heritage issues, and may give Council notice of a requirement for a heritage order where it considers appropriate.
1.2.1 STRUCTURE OF THE DISTRICT PLAN
District Plans are required to complete an integrated statement to assist Council to achieve the sustainable management of the natural and physical resources of the Clutha District.
This District Plan comprises six main parts.
Section 1: Establishes the background to the District Plan and identifies the statutory process of which the District Plan is but a part. Section 2: Sets out a brief summary of the resources of the District upon which the provisions of this District Plan are based. Section 3: Sets out the procedures necessary to obtain resource consent for the various types of activities identified in the Plan. It also deals with the resource management issues which have application over the whole of the District and sets out the Objectives, Policies, Rules or Methods to control effects of activities. Section 4: Identifies the resource management issues for the specific RESOURCE AREAS which are identified in the Plan and provides Objectives, Policies, Rules or Methods to address these issues. Section 5: Contains the definition section which explains some of the words which are used consistently throughout the District Plan. Section 6: Contains the Schedules which contain information relating to the designations, reserves and facilities shown on the Planning Maps.
1.2.2. COMPLIANCE WITH THE DISTRICT PLAN
The Act requires that no person may use any land in a manner which contravenes a rule in the District Plan. There are however, exceptions for uses which existed before this Plan was made operative. The provisions of Sections 9 and 10 and 10A of the Act deal with these exceptions.
The Council as part of its duties is required to gather information, monitor, and maintain records on resource management matters. In particular the Council will monitor compliance with resource consents and be vigilant in investigating reports and complaints of activities which have started without a consent which should have been obtained and/or are creating adverse effects on the environment.
Activities are classified into five groups. These are:
PERMITTED which do not require a resource consent but may be subject to conditions in the Plan.
CONTROLLED DISCRETIONARY } which require a resource consent NON-COMPLYING }
PROHIBITED for which no application for resource consent can be made
(a) PERMITTED ACTIVITIES
PERMITTED ACTIVITIES ARE THOSE WHICH CAN PROCEED AS OF RIGHT, BUT MUST COMPLY IN ALL RESPECTS WITH ALL THE RULES FOR SITE PERFORMANCE SPECIFIED IN THE PLAN.
Both Section 3 and the specific RESOURCE AREAS of Section 4 specify performance standards with which an activity must comply e.g. minimum site areas for particular land uses, building heights and set-backs from boundaries, noise restrictions, parking requirements, and access to sites.
An activity which does not comply with one or more of the relevant rules for site performance may be considered as a controlled, discretionary or non-complying activity in respect of that standard as may be specified in that Rule.
Some activities are permitted activities throughout the District subject to the specific rules of the RESOURCE AREA in which they are located
(b) CONTROLLED ACTIVITY
A CONTROLLED ACTIVITY WILL REQUIRE A RESOURCE CONSENT.
Council will grant consent subject to conditions over matters referred to in the Rules. This process is to avoid, remedy or mitigate any adverse effects of the activity on the environment.
(c) DISCRETIONARY ACTIVITIES
DISCRETIONARY ACTIVITIES REQUIRE A RESOURCE CONSENT.
Some activities are listed as discretionary activities because their scale, intensity or operational characteristics require particular assessment to determine whether they are suitable or under what circumstances they may be suitable in certain areas in order to avoid adverse effects on the environment.
For some activities Council has restricted the exercise of its discretion to only certain elements of any activity. These activities, in this District Plan are called restricted discretionary activities.
Discretionary activities can be granted or refused and can have conditions attached provided that for restricted discretionary activities conditions can only be imposed on the basis of the restrictions imposed by this Plan.
(d) NON-COMPLYING ACTIVITIES
A NON-COMPLYING ACTIVITY REQUIRES A RESOURCE CONSENT.
A non-complying activity is an activity which does not comply with the rules and performance standards of the Plan, and has not been provided for as a controlled or discretionary activity, and is not a prohibited activity.
(e) PROHIBITED ACTIVITY
NO RESOURCE CONSENT APPLICATION CAN BE MADE FOR A PROHIBITED ACTIVITY
1.2.4 GENERAL DUTIES UNDER THE Resource Management Act
(a) Section 16 - Duty to Avoid Unreasonable Noise Section 16 of the Act imposes a duty on every occupier of land (including any premises and any coastal marine area), and every person carrying out an activity in, on or under a water body or the coastal marine area to avoid unreasonable noise by adopting the best practicable option (as defined in the Act) to ensure that the emission of noise from that land or water does not exceed a reasonable level.
Where a complaint has been received by Council that excessive noise is being emitted from any place, and upon investigation, Council is of the opinion that the noise is excessive, Council may direct the occupier of the place from which the sound is being emitted, or any other person who appears to be responsible for causing the excessive noise, to immediately reduce the noise to a reasonable level. (See sections 326 to 328.) This power is in addition to the powers to issue abatement notices (sections 322 to 325) and to seek enforcement orders (see section 316).
(b) Section 17 - Duty to Avoid, Remedy or Mitigate Adverse Effects Section 17 of the Act imposes a duty on every person to avoid, remedy or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan, a resource consent, or is an existing use pursuant to section 10, section 10A or section 20.
Pursuant to Part XII of the Act a person may be required to stop doing, anything that, in the opinion of the Environment Court or an enforcement officer, is or is likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adver |
