Hawke's Bay as a brand

David McGregor, Senior Partner | Wednesday 8 April 2009

First published in The Bin Ends of Viticultural Law, New Zealand WineGrower, April/May 2009.

At a recent hearing of the Hastings District Council in respect of a change that proposed a reduction in the size of wineries as permitted activities in the Rural Plains zone from 2,500m² to 100m², a Councillor enquired why viticulture and wine production should take precedence over other forms of agricultural production undertaken within the zone.

The question arose, as earlier in the day, the Committee had heard submissions from other submitters representing other sectors, who claimed that viticulture and wine production were enjoying a privileged position tantamount to having been picked as a winner in the context of the District Plan provisions.

Historically this issue was the subject of a consent order between New Zealand Winegrowers and the Hastings District Council back in 2000 where a policy framework that enabled such preferential treatment was settled. This enabled Council to distinguish why it was not, in effect picking winners.

One of the Councillors present at this recent hearing also asked the question as to whether or not the Council should be making planning provision for a particular crop (i.e. viticulture) or whether it should concentrate on protecting soils. The answer to this is contained in Part 2 of the Resource Management Act which requires a balancing exercise between preserving the physical resources to meet reasonably foreseeable needs of future generations, including safeguarding life supporting capacity of the elements (soil being one), and providing for the development of those resources that enables peoples and communities to provide for their social, economic and cultural wellbeing.

The policy framework that was established in 2000 was around both individual brands and their reputation domiciled in Hawkes Bay, and Hawkes Bay as a region. What was established then and reconfirmed at the hearing, was that the association of wine with Hawkes Bay is a vanguard to the brand 'Hawkes Bay' and the other attributes of that area.

The outcome of submissions in respect of the Plan Change will be known shortly. It is hoped that the status quo of providing for wineries of 2,500m² as a permitted activity in the Plain Zone is retained, subject to there being some preconditions that enable the exclusion of such wineries from the application of the permitted baseline test. The permitted baseline is essentially that Councils are to ignore effects that are generated by activities permitted within a zone This enables consideration of any other activities permitted within that zone as constituting the permitted baseline.

Part 2 remains an essential part of the Resource Management Act setting out its principles and purpose. Recently Parliament has introduced an amendment to the Resource Management Act entitled 'Resource Management (Simplifying & Streamlining) Amendment Bill 2009'.

The RMA has been perceived as a barrier to investment in infrastructure – delaying the decision-making process and creating uncertainty for all of those persons in contact with it. How many more apocryphal stories will we have to endure during this Act?

A brief commentary on the key changes proposed by the Bill are:

Removing anti-competitive and frivolous objections

The amendments propose to address this by allowing the Environment Court to award security for costs, raising the filing fee from $55 to $500 for the lodgement of appeals and allowing applicants to potentially recover all the damages associated with an appeal brought by a trade competitor. However, the key question is – how will the court determine an anti-competitive or frivolous objector? Will there be specific criteria? To date, trade competitors have not been denied the opportunity to participate if they raise a "legitimate" RMA issue.

Streamlining consenting processes

The core objective of this round of reform is to make it easier to undertake infrastructure projects of national significance. The new range of options available for consent processing is a welcome opportunity for applicants to select the one that best suits their project and requirements. Some of the key changes proposed include:

• Provision to make applications directly to the Environmental Protection Authority (EPA), which is to be established in a shadow form in this round of reforms and fully implemented in stage two. The new regime has an additional criterion to the existing "call in" powers that is based on the operational infrastructure needs of a nationwide network utility operator. A new time-limit of nine months is introduced for a final decision on an application for a major project, unless the Minister extends the timeframe. While the details of how the EPA will be appointed and operate are still unclear, the infrastructure sector will welcome the chance for direct referral.
• Providing applicants or submitters with a right to choose that local authority-level decisions on notified applications are considered by an independent commissioner(s), selected by the local authority from people in the "Making Good Decisions" programme database. This is likely to meet the objective of reducing the influence of local politics on decision-making, however the requestor is liable for any costs.
• Applicants for resource consent and notices of requirement may request that their application be determined by the Environment Court without the need to go through the local authority consenting process, provided that the local authority has agreed. Given that history has shown that sometimes local authorities are reluctant to concede control of processing applications, it is hoped that commonsense prevails.

Reducing delays in introducing plans and plan changes

Amendments to reduce delays in the introduction of new regional and district plans and plan changes should refine the submission process. This includes removing the ability for appellants to make general challenges or ones that seek the withdrawal of entire proposed policy statements and plans. However, it is unclear whether removing the non-complying activity category will improve matters. How will councils consider the status of activities that have not been specifically considered or provided for? It is possible that we will simply see the development of two de-facto categories of discretionary activity – those expressly provided for and those arrived at by default.

Preparing plans

A number of proposals will improve the efficiency of all territorial authorities to produce plans, these include:

• enabling the regional council and all territorial authorities of a region to combine to produce a single RMA planning document;
• enabling national policy statements to direct that a local authority must change the objectives and policies of policy statements and plans without the need for further local planning processes;
• removing the requirement for territorial authorities to review their plans every 10 years; and
• establishing that rules in proposed plans will have no legal effect until the decisions made on submissions have been notified.

Limiting appeals to questions of law

The proposal to limit appeals on proposed policy statements and plans to questions of law, except in cases where the appellant has sought leave of the Environment Court, is concerning as it places undue reliance on the quality of decision-making by territorial authorities.

Further submissions

Removing the right to make further submissions on planning documents will require careful consequential management of the scope of jurisdiction and ability of parties to meaningfully participate in issues raised by other planning participants and to raise alternative solutions.

Other amendments

Other more minor amendments seek to improve the overall planning framework and consent processing by:

• removing the ability for blanket tree protection rules to be imposed in urban areas;
• limiting the ability of consent authorities to make repeated requests for further information;
• providing the Minister for the Environment and the Minister of Conservation with powers to cancel, postpone and restart a national policy statement development process that has already commenced at any time before it is gazetted. This effectively clarifies that a new government is not obligated to proceed with processes started by a prior government;
• amending the penalties able to be imposed under the RMA will give the courts wider powers particularly to allow the court to have the power to require a review of a resource consent held by an offender, and raising the maximum fine for offences under the RMA to $600,000 for corporate offenders, and up to $300,000 for private individuals. Although, in reality, the maximum fines have rarely been imposed;
• allowing enforcement actions to be taken against the Crown by local authorities; and
• requiring all councils to develop a discount policy for the late processing of consent applications will be an incentive to speed-up consent processing. Councils must also have a complaints process, and where the local authority is at fault, the applicant will receive a discount on the application processing fees and charges.

The next phase

The second phase of reform later this year is to include:

• establishing the structure of the Environmental Protection Authority;
• issues relating to aquaculture;
• improving fresh water allocation and management; and
• encouraging greater collaboration in city development and urban design.

Submissions on the Bill close on the 3rd of April.

New Zealand Winegrowers is making a submission on the Bill.