Submissions on the KCDC Proposed District Plan Some suggested “Dos” and “Don’ts” Some thoughts and queries
Joan Allin
Context • Not legal advice • Speaking as one affected owner to other affected owners • Still reading, considering proposed plan
Suggested “Dos” (1) Use the KCDC submission form or Form 5 of Resource Management (Forms, Fees, and Procedure) Regulations 2003 Put your submission in chronological order • make it easy for people coding it to see relevant provision and whether you support, oppose or seek amendment • if you raise something under eg a General heading at beginning, refer to it again for relevant provision or chapter so person coding submission (and people reading submission) will see it
Suggested “Dos” (2) Give the reasons in your own words • explain your concerns, stick to the facts • a standard form submission is better than nothing but not compelling State the decision you want Council to make • cannot just criticise • say what you want in the plan Also submit on what’s missing eg • enabling people to provide for their social, economic and cultural well-being (s 5 purpose of RMA) • efficient use and development of natural and physical resources (eg houses, coastal protection works s 7(b) RMA) • good provisions in the operative plan omitted?
Suggested “Dos” (3) Look at relevant Living Environment provisions, other relevant zone provisions • serious concerns re Residential, Beach Residential provisions Consider Objectives, Policies, Rules, Explanation, Definitions carefully • if rules say it’s permitted activity, no need for resource consent • if need resource consent, objectives and policies are important, especially for non-complying activity (s104D RMA) • Don’t just focus on Shand 2012 Update and lines on maps
Suggested “Dos” (4) Defined terms - italics • use of italics is random and inconsistent • be careful and check definitions • words not italicised that are defined terms (eg existing, risk, coastal hazards) • defined terms within definitions eg for “Alteration”, need definitions of “Addition” and “Minor work” (both defined terms, not italicised) for full meaning of “Alteration” • read the definitions carefully (pages 1-19 to 1-57) Concerns about alternatives, benefits, costs evaluation (s 32, 32A RMA) • can only be expressed in a submission (s 32A) • read the s 32 summary reports and background evaluation Land incapable of reasonable use (s 85 RMA) • unfair, unreasonable burden? • raise it in submission
Suggested “Dos” (5) Must refer to provision or matter in submission to be able to appeal • don’t leave anything out Also ask for “such other decision as would meet my concerns” or similar • provides scope for relief other than what you sought Say if you want to be heard and include all relevant information, in legible form, that the form requires Do a final proofread and double-check any quotes, crossreferences, etc • quotes and cross-references are often wrong
Suggested “Don’ts” Don’t attack Council staff or Councillors - deal with the issues Don’t “shout” at reader by excessive use of upper case or underlining • not persuasive • you look irrational
Don’t submit on things not relevant to the proposed district plan process • eg change wording of LIMs • shows you don’t understand the process
Different issues along the coast Southern eroding/northern accreting (prograding) ie opposite of erosion
NZCPS Policy 24 - identification of coastal hazards • (1) identify areas that are potentially affected, giving priority to identification of areas at high risk of being affected, having regard to: • (1)(b) short-term and long-term natural dynamic fluctuations of erosion and accretion • (1)(h) effects of climate change on various matters • taking into account national guidance and the best available information on the likely effects of climate change On western coasts (including Kapiti), an increase in sediment supply may occur due to climate change (2012 Update report, page 11) Northern part of coast, read “Summary of Peer Reviewer comments on the KCDC Open Coast Erosion Hazard Report” by Coastal Systems Limited (Feb 2007) link here; http://coastalratepayersunited.co.nz/wp-content/uploads/2012/11/Peer-Review-2006-2007.pdf
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preceding the 2008 report, modelled only 50 year period page 20 re conservative approach page 23 re why accretion set at 0 page 23 re effect of that approach
Precautionary approach vs purpose of RMA Coastal hazards emphasis - precautionary approach • is it too precautionary? Purpose of the RMA • most important • given adequate attention? Purpose of RMA (s 5(1)) • promote the sustainable management of natural and physical resources
Sustainable management (s 5(2)) & definition of environment Means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while • sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and • safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and • avoiding, remedying, or mitigating any adverse effects of activities on the environment. Where is enabling people and communities to provide for their social, economic and cultural well-being in coastal provisions? Environment (s 2 RMA) wide definition includes: • people and communities • natural and physical resources (all structures)
Purpose of the RMA - most important Purpose of the Act important for NZCPS, preparing proposed plans, and s 32 evaluation of alternatives, benefits and costs Purpose been given proper weight? New Zealand coastal policy statements (s 56) • to state policies “to achieve the purpose of this Act in relation to the coastal environment” Purpose of district plan (s 72) • preparation, implementation, administration to assist KCDC to carry out its functions “in order to achieve the purpose of this Act” Matters to be considered in preparing district plan (s 74) • prepare and change plan in accordance with ▫ functions under s 31 ▫ provisions of Part 2 (which includes s 5 purpose of the RMA) ▫ duty under s 32 (refers to purpose of RMA) Evaluation of alternatives, benefits, costs (s 32) • “In achieving the purpose of this Act”
Existing use rights (s 10 RMA) Undesirable to rely on existing use rights
Need to prove “lawfully established” before the use was restricted • for older property, various changes, can be difficult, time-consuming, potentially impossible • coastal protection works without consent? If discontinued for more than 12 months (eg house burns down and delay in rebuild), expect trouble (see s 10(2)) • McKinlay v Timaru District Council some help? Important that activities are permitted activities in district plan • don’t need to rely on existing use rights Definition of “existing” in some rules - problematic • eg additions to “existing” buildings in relocatable CHMA (rule 4A.1.1) • “existing” not italicised, but is defined term • refers to “lawfully in existence”
Proposed plan – disappointing (1) Difficult and confusing • inconsistent terminology • confusing, poorly-drafted rules • many issues and problems Odd non-sequitur - page 4-10, second para • Proposed RPS - avoid inappropriate development in “areas at high risk” from natural hazards • Proposed plan - gives effect by restricting activities in “areas at risk” from coastal erosion
Unclear link between Chapter 4 and other zone rules • alteration of buildings in relocatable CHMA not a permitted activity in Chapter 4 • alteration, removal of buildings in relocatable CHMA covered by ordinary zone provisions or Chapter 4? • effect of rule 4A.4.1 saying certain things are discretionary activities?
Proposed plan – disappointing (2) Prohibited activities • cannot seek resource consent • new building or coastal protection structure in no-build CHMA prohibited (rule 4A.6.1. Compare rule 4A.5.3 coastal protection structures in no build CHMA non-complying - existing ones?) Adaptation strategies (re minor additions in no-build CHMA) • Rules 4A.4.3 and 4A.5.2 • inconsistent terminology in rules and elsewhere • they don’t exist • use in rules legally valid? What Chapter 4 policies would help an applicant for resource consent? Words of the plan are important • if words not clear, do not rely on someone saying it’s intended to mean x