First published in the Resource Management Journal, November 2010.
The first of November 2010 signals a new era for the City of Auckland. The transition from 7 territorial authorities (TAs) and one regional authority into one entity has been a much discussed topic over the last few months and shortly the new Auckland Council will take on its new role of unitary authority for the entire Auckland region. Now that the political appointments have more or less been finalised, the next issue will be the practical implications of an Auckland "Super" City.
In the forefront of many resource management practitioners' minds is surely how will the vast number of planning instruments be incorporated, amalgamated and otherwise "merged"? It has been well publicised that the Auckland Council will embark on the creation of a spatial plan. However, the legal status of this document is unclear.
This paper will consider how promulgation of a spatial plan might draw on existing planning instruments to ensure that the hard work and effort put into these documents over the last few years has is not lost.
This is particularly so in the area of transport. It was only in 2004 when the Local Government (Auckland) Amendment Act (LGAAA) was enacted with the purpose of addressing the transportation issues in the Auckland region by requiring the integration of transport and land use planning throughout the region. Under the LGAAA, the Auckland Regional Transport Authority (ARTA) was established to assist the Auckland Regional Council (ARC) to discharge this responsibility. The Auckland's Regional Growth Strategy (RGS) provides the basis upon which ARTA has to date sought to plan and develop Auckland's regional land transport system.
One of the other main purposes of the LGAAA was to require the ARC and the Auckland territorial authorities to amend their regional policy statement and district plans respectively, under the Resource Management Act 1991 (RMA) in order to integrate land transport and land use provisions consistent with the RGS (Local Government (Auckland) Amendment Act 2004, s 39). The respective TAs were given a statutory deadline to give effect to the integration purposes of the new legislation, and there followed the raft of plan changes, which in varying degrees, promoted those objectives. However, before those plan changes could become operative, or the numerous appeals to the Environment Court fully take their course, the rules of the game were to change again.
The energy and efforts of all the local authorities in Auckland in implementing the directives of the LGAAA need to be acknowledged. It is indicative of this co-operative process that to date a large number of appeals have been resolved by consent order, and there has only been one appeal heard by the Environment Court on plan changes to the Regional Policy Statement. A further set of appeals on plan changes to the Waitakere District Plan is due to be heard in November 2010. The combined efforts of all parties to achieve a negotiated outcome to meet the purposes of the LGAAA have facilitated these results.
Auckland Local Government Reform
The Royal Commission on Auckland Governance (the Commission) was established by the Government in October 2007 to respond to growing concerns about the workability of local government arrangements in Auckland. The Government's response to the Commissioner's Report in March 2009 resulted in the reorganisation of local government in Auckland. This was promoted by the Local Government (Auckland Reform) Bill 2009 which led to three separate acts (Local Government (Tamaki Makaurau) Amendment Act 2010; Local Government (Auckland Council) Amendment Act 2009; and Local Government (Auckland Transitional Provisions) Act 2010), which amended the LGAAA (the Auckland legislation).
These Acts provide, among other things, for the establishment of the new regional transport authority, Auckland Transport (AT). The transport responsibilities of Auckland, currently held by nine separate local authorities, will be consolidated under the Auckland Council and AT. The Auckland Council will set the strategic direction for transport through Auckland's Regional Land Transport Strategy and the regional funding it makes available to AT. AT will be responsible for delivering transport services across the region including local roading and public transport.
While the new legislation deems the new Auckland Council to have adopted the Growth Strategy, the relevant sections only apply until the new Council adopts a spatial plan (Local Government (Auckland Transitional Provisions) Act 2010, s 80).
What is the spatial plan?
There has been much speculation and discussion about what the spatial plan will include and, importantly from a resource management law perspective, how the spatial plan will sit within the overall hierarchy of plans under the RMA.
These questions have been addressed in part by statute. The new section 79 Local Government (Auckland City) Act 2009, which will be inserted from 1 st November 2010 by Local Government (Auckland Council) Amendment Act 2010, states that the purpose of the spatial plan is to contribute to Auckland's social, economic, environmental, and cultural well-being through a comprehensive and effective long-term (20- to 30-year) strategy for Auckland's growth and development.
To this end the spatial plan will:
set a strategic direction for Auckland and its communities that integrates social, economic, environmental, and cultural objectives; and
outline a high-level development strategy that will achieve that direction and those objectives; and
enable coherent and co-ordinated decision making by the Auckland Council (as the spatial planning agency) and other parties to determine the future location and timing of critical infrastructure, services, and investment within Auckland in accordance with the strategy; and
provide a basis for aligning the implementation plans, regulatory plans, and funding programmes of the Auckland Council.
The provisions further state that the spatial plan must–
recognise and describe Auckland's role in New Zealand; and
visually illustrate how Auckland may develop in the future, including how growth may be sequenced and how infrastructure may be provided; and
provide an evidential base to support decision making for Auckland, including evidence of trends, opportunities, and constraints within Auckland; and
identify the existing and future location and mix of residential, business, rural production, and industrial activities within specific geographic areas within Auckland; and critical infrastructure, services, and investment within Auckland; and
identify nationally and regionally significant recreational area, open-space areas, ecological areas, environmental constraints on development (for example, flood-prone or unstable land), landscapes, areas of historic heritage value, and natural features within Auckland; and
identify policies, priorities, land allocations, and programmes and investments to implement the strategic direction and specify how resources will be provided to implement the strategic direction.
Section 80 goes on to deal with the development, adoption and implementation of the spatial plan, in particular:
(5) The Auckland Council must endeavour to secure and maintain the support and co-operation of central government, infrastructure providers (including network utility operators), the communities of Auckland, the private sector, the rural sector, and other parties (as appropriate) in the implementation of the spatial plan.
The content of the spatial plan was more recently discussed by the new Auckland Council Manager of Regional Strategy, Community and Cultural Policy Ree Anderson (Ree Anderson "The First Auckland Spatial Plan", Seminar presented at Bell Gully Offices, Shortland Street, Auckland, 24 September 2010). According to Ree Anderson the first spatial plan is expected to be in force by December 2011 and will include two to three top priorities which will focus on some of Auckland's significant land marks and strategic areas (examples include city centre the southern gateway northern gateway, the Hauraki Gulf Islands and the Harbour and Hills) as well as several cross cutting and complementary priorities (examples include future transportation, broadband, clean green international city image, role of rural areas as well as the Tamaki transformation project, the Hobsonville NORSGA development and Silverdale North).
Ree Anderson indicated the intention that this spatial plan will be co-produced with stakeholders through public collaboration and of course be highly influenced by the (then) yet to be elected incoming Mayor. Given this recent election result, and position of the new Mayor and the majority of Councillors, transport will no doubt be a high priority.
Status of the spatial plan?
There is no statutory guidance as to the status of the spatial plan. The status of the spatial plan was discussed in the Minister for the Environment's (the Minister) Cabinet Paper (Nick Smith, Minister of the Environment, Cabinet Paper "Spatial Planning Options for Auckland" AGR Min (09) 10/1. This was approved by CAB Min (09) 34.8) (the Paper) which recognised the problem of no legislative link. In particular the Paper stated that:
"In order for a spatial plan to give direction and guidance to other plans, it needs to have influence. Further analysis is required on the appropriate statutory basis for providing a consistent and clear legal relationship (legislative linkages) between plans prepared under different statutes, to enable the direction from the spatial plan to feed through other plans, and decision making." (at para 57)
However, the Paper proposes as an interim option that the spatial plan have no additional or strengthened legislative linkages to other planning Acts, in particular the RMA, the Local Government Act 2002 and the Land Transport Management Act 2003.
In the medium term, the Paper proposes that the issues of whether or not a spatial plan should replace other existing strategic plans, legislative links among plans, appeal rights, and consultative procedures would be considered through Phase 2 of the resource management reform process (urban work stream). The Paper states that "this staged approach provides for proper consideration of how a spatial plan could further simplify and make the planning framework more effective in both the Auckland and national context" (at para 8).
To this extent the Paper proposes two long-term options. The preferred option is statutory spatial plan that replaces existing strategic plans under the RMA and Land Transport Management Act 2003 (LTMA) under the Auckland legislation. The alternative long-term option is a statutory spatial plan with strengthened legislative linkages to effectively influence other planning, under the Auckland legislation.
In a recent speech (Nick Smith, Minister for the Environment, "The Government's expectation for the Spatial Plan" (New Zealand Planning Institute, Auckland Spatial Plan Conference, Auckland, September 2010)) the Minister spoke of moving away from the "dispute and adversarial procedures" which the RMA has promoted toward a "Bluegreen" approach which this Government considers to be "a more collaborative approach to resource management". To achieve this, he proposes mechanisms at the highest level of planning that integrates land use, transport, economic and environmental decisions. He states that the RMA is not well designed to deal with urban issues and that the Phase 2 reform will address this by reforming New Zealand's system of infrastructure and urban planning to give more emphasis on the built environment in RMA decision making. Further, he indicated that the complex legislative system at a local government level will be addressed and the number of plans required reduced.
Turning to Spatial Planning the Minister commented that this is about "getting those main decision-makers involved in the development of a regional, collaborating to achieve a long term vision. This will necessitate negotiation and agreement between central and local government, the private sector and other key stakeholders on what we are all trying to achieve." This is intended to allow a shift from the adversarial approach. However, the Minister was still looking at how to ensure the spatial plan is delivered through lower level plans and decision making.
The Technical Advisory Group (TAG) on Infrastructure (Technical Advisory Group on Infrastructure "Providing National Guidance on Infrastructure to the Resource Management Act 199" prepared for Ministry of Economic Development and Ministry for the Environment, September 2012) (the Report) suggests that the spatial plan could come within section 30(1)(gb) which enables regional councils to manage infrastructure resources strategically in conjunction with broader land use through policies, objectives and methods. However, the Report recognises that this section is underused. Further, infrastructure under section 30 of the RMA is limited by the section 2 definition and the spatial plan as envisaged by the Auckland legislation goes beyond this definition.
In the Ministry's latest discussion document following two the TAGs' review on policy about urban design and infrastructure (Ministry for the Environment. "Building competitive cities: Reform of the urban and infrastructure planning system. A discussion document" (Wellington, Ministry for the Environment, October 2010)) (the Discussion Document) the Minister has indicated that:
"The Government is also keen to reduce the number of planning documents whilst avoiding a cumbersome, overly prescriptive process. Ensuring this occurs will require careful consideration of how the Auckland spatial plan fits in with, and relates to, New Zealand's broader planning and infrastructure investment framework."
The Minister has taken clearly taken on board the comments of the TAG group, as well as the Ministry's own comments in the paper in setting out matters that require future consideration including:
whether the spatial plan should supplement or replace existing regional strategic planning instruments (such as the RLTS and Regional Policy Statement) to simplify the planning system;
the strength of the relationship between the spatial plan and other regulatory instruments (such as district plans) to make it more effective;
the relationship between the spatial plan and national-level planning and strategic documents (such as the National Infrastructure Plan (NIP), Transport Government Policy Statement (GPS), and national policy statements under the RMA) to provide clearer direction;
the role that central government will play in developing and implementing the spatial plan in Auckland to improve co-ordination between central and local government;
appeal rights on the spatial plan to reduce costly litigation and drawn out processes;
the applicability of spatial planning to other areas of New Zealand.
So it would appear that clear and relatively pragmatic objectives of the LGAAA in focusing on land use and transport integration have been overtaken as Auckland moves toward the consent of a "spatial plan". However, the difficulty is that despite the extensive discussion and commentary over how such a plan may work, and what it could contain, there are no extensive examples of such a plan in place in New Zealand, and overseas examples are limited.
The discussion document goes further in promoting the concept by identifying seven options to enhance spatial planning in Auckland, including streamlining and simplifying the planning system:
Retaining the current spatial planning legislation, which provides flexibility for the Auckland Council in developing and implementing the spatial plan.
Simplify the planning framework for Auckland by:
using the Auckland spatial plan to incorporate either the:
the Regional Land Transport Strategy and Auckland Regional Policy Statement or
the Regional Land Transport Strategy
replacing RMA plans (i.e., regional policy statement, regional and district plans for Auckland with a requirement for a single unitary plan.
Improve the effectiveness of the Auckland Spatial Plan by giving it an appropriate level of statutory influence on regional and local RMA, LGA and LTMA plans by requiring these to either:
'give effect to' the Auckland spatial plan or
'be consistent with' the Auckland spatial plan or
'having regard for' the Auckland spatial plan or
consider the Auckland spatial plan on a voluntary basis.
The Discussion Document recognises that:
"the final decisions on the strength of influence that the spatial plan has on other plans and decisions will need to be taken into account in considering how to implement these options...The strength of the legislative influence of the spatial plan on other plans and decisions is a core consideration for these safeguard options."
The Minister clearly recognises the lack of legislative link as being key, and the fact that uncertainty remains as to how it would fit into the overall RMA hierarchy of plans. The issue of public participation and as well as opportunities to challenge such a proposal also arise. To this extent the discussion document identifies the following options:
Reduce litigation and improve the certainty of decisions, while providing safeguards during development of the spatial plan by either:
providing for full appeal rights on the spatial plan or limiting appeal rights to points of law, and/or
and/or providing for a statutorily prescribed consultation process instead of the Special Consultative Procedure under the LGA, and/or
during the development of the spatial plan, requiring an independent specialist review of the spatial plan to test its evidence base, robustness, affordability and coherence, and provide recommendations to the Auckland Council. The Auckland Council to publicly report its response to the recommendations of the review before it adopts the spatial plan.
Provide for review of the spatial plan by:
amending the Local Government (Auckland Council) Act to require the spatial plan to be reviewed every three years, with defined responsibilities for the Government and the Auckland Council in the review process. Neither party can force a review in between the three-year period.
amending the Local Government (Auckland Council) Act to require statutory linkage with the LTCCP and require the spatial plan to be adopted at the same time or up to 1 year prior to adoption of the LTCCP.
The Discussion Document also discusses the recommendations by the Urban Design TAG that central government should be much clearer about Auckland's role within the national and international context and what central government's specific interests are. Specific options to address this recommendation include:
Mechanisms for central government to influence the Auckland spatial plan by a GPS that sets out the Crown (or national) objectives for Auckland and/or ministerial certification that the Auckland spatial plan complies with all GPSs, before final adoption by the Auckland Council and/or existing mechanisms to express Government priorities and direction, including NPSs and NESs and National Infrastructure Plan and/or use the spatial plan as the mechanism for engagement between central government and the Auckland Council.
Central government using suitable and appropriate mechanisms to direct its entities, agencies and departments, and funding agencies to give effect to a GPS for Auckland and/or be consistent with the adopted Auckland spatial plan in decision-making and/or have regard to the adopted Auckland spatial plan in decision-making and/or reflect central government's priorities and objectives for Auckland in their statements of intent.
The current ministerial thinking about what is best for Auckland has gone beyond that proposed in the LGAAA, and arguably takes a more holistic approach in introducing the concept of spatial planning. However the difficulty appears to be that despite much discussion and commentary on the advantages and opportunities of such an approach there is little in the way of practical and workable examples to develop how such planning might contribute towards better results than those that have been achieved under the existing regional policy statement framework.
The purpose of the LGAAA was to facilitate a mindset change in Auckland in promoting land use and transport integration, while there was always the risk that that process in itself could be hijacked by ulterior motives of various parties, the spatial planning option potentially provides as much a risk as it does an opportunity. Aside from promoting a clear focus on more strategic thinking that looks at all aspects of planning unlike the LGAAA it does not provide the mechanisms to facilitate that change and, unless that impetus is included, the result may be opportunity lost.
It is important moving forward that the new Auckland Council learn from the LGAAA experiences – namely that a co-ordinated and co-operative response across the region can facilitate change in planning instruments. Whether this can stand the test of time and develop into physical examples to show a modal shift remains to be seen. Under the LGAAA, Central Government provided the impetus for change and left it to the region to implement. However, the current Minister's proposals for spatial planning make it clear that all is not in the hands of the region, and that the Central Government may still have something to say – presumably that influence may depend on the outcome.