The Permitted Baseline Test

Commentary, Owen McShane, Role of Government, Taxation

Several of you have responded asking why the Permitted Baseline Test is so important,� or have asked for more information as to what it is and how it works.

It seems to me that the permitted baseline test provides a useful “litmus” test as to whether a planning department, or a council as a whole. is committed to “effects based” implementation of the RMA or remains committed to the role of direction and control of land use as labelled activities.

Those who think instinctively of the need to “direct and control” the location of activities find it difficult to properly interpret and administer this test because they simply ask “Is this a permitted activity” and if it is not, they conclude the permitted baseline test is irrelevant.

If they do proceed to work through the test they frequently find that it severely curtails their power to shape the world the way they would like it to be and hence chose to “exercise their discretion”.

All too often the test turns up “inappropriate” outcomes according to their view of the world.
In desperation they then turn to “cumulative effects of the decision”, or “the integrity of the plan” or “precedent effects” or other mythological spooks which are not to be found in the RMA but have emerged as central planners grapple with ways of justifying their rigid zones within the RMA which never even mentions them. It never mentions planning either.

Anyhow, a recent decision by Judge Thompson’s Environment Court works through the logic splendidly and provides a template for its proper implementation. The case is A149/2006, Bax vs Rodney District Council.

It is attached as a pdf file which is quite large, (484kb) and hence I have limited this “Digest” to the one item.

I believe everyone involved in RMA decision-making, and especially Councillors who serve on Hearings Committees etc should familiarise themselves with this decision and make sure their staff come to terms with it as well. It seems to me to provide the “baseline” for implementation of the “permitted baseline test” from now on.

It certainly makes me more confident of the Centre’s present appeal.

The decision demonstrates how the test is intended to be applied to each relevant detail of the effects of an application not crudely applied to a label of activity.

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