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Brief Counsel

Phase 2 reforms – boot camp for the Resource Management Act?

07 March 2013

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​The changes the Government is proposing in its Phase 2 reform of the Resource Management Act (RMA) are more radical than anything in the RMA’s turbulent 21 year history.

They are designed to reduce delays and costs in the system, remove “roadblocks to more effective resource management” and give central government new levers to exert influence and control.   

The implications for business are large and largely positive but will require significant adjustment and adaptation.

Submissions on the discussion document are due by Tuesday, 2 April 2013.

Greater national consistency and guidance

Sections 6 and 7 of the RMA

As recommended by the Principles Technical Advisory Group (TAG), it is proposed that sections 6 and 7 RMA be combined into a single section listing the matters that decision-makers must “recognise and provide for” with the availability of land for urban development, significant infrastructure and natural hazard management added to that list. 

However, contrary to the TAG’s advice, the directive wording “preserve” and “protect” will generally be retained. 

There would be “no internal hierarchy” among the principles.  An associated set of resource management “methods” is proposed as a new section 7.

Proposed new section 6(1) principles

(a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development

(b) the protection of specified outstanding natural features and landscapes from inappropriate subdivision, use and development

(c) the protection of specified areas of significant indigenous vegetation and significant habitats of indigenous fauna

(d) the value of public access to and along, the coastal marine area, wetlands, lakes and rivers

(e) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, taonga species and other taonga including kaitiakitanga

(f) the protection of protected customary rights

(g) the benefits of the efficient use and development of natural and physical resources

(h) the importance and value of historic heritage

(i) the impacts of climate change

(j) the benefits of efficient energy use and renewable energy generation

(k) the effective functioning of the built environment including the availability of land for urban expansion, use and development

(l) the risk and impacts of natural hazards

(m) the efficient provision of infrastructure

(n) areas of significant aquatic habitats, including trout and salmon.

Chapman Tripp comment: these proposals will be centre-stage in debates on the reforms – with some seeing them as a sell out on environmental principles and others, a balanced re-calibration in light of present priorities. 

We say the proposals reflect the balance of use, development and protection which the Courts have consistently read the RMA’s purpose as intending.  But there is certainly room for refinement in their detail.  Concepts of “specified” in (b) and (c) are presumably tied to an intention that plans will direct and specify these things.  By contrast, the principle relating to the “natural character of the coastal environment” has been left very broad, where a sharper focus may have been useful.

There are also a number of drafting glitches: the tautology in (f) “protection of protected” and the omission in (n) of the words “habitats of” in regard to “trout and salmon”.  As to the proposed directive in section 7 to achieve “an appropriate balance between private and public interests in the use of land”, that could be supported by Left and Right alike – depending on what it means.   

Central government responses to issues of national importance

Central government already has a number of mechanisms to exert direction: NPS, NES, “call in” and the power to direct councils to prepare a change to a plan.  The discussion document suggests that guidelines be developed to clarify when and how these tools can be better used. 

A range of interventions is planned through amendments to section 25A allowing:

  • the Minister to identify an issue in a council plan and to invite the relevant authority to set out how this has been addressed
  • the Minister to direct a plan change, including matters to be considered and/or outcomes to be achieved, and 
  • if both (or either) of the above approaches fails - the Minister to directly amend an existing operative plan.  This power would be similar to regulation-making powers and would be statutorily limited to more urgent national or regional issues.

Chapman Tripp comment: these proposals have attracted a storm of criticism from environmentalists, much of it overblown.  Ironically, one of the strongest critics has, as part of the Land and Water Forum, called for a centrally directed National Water Quality Objectives Framework to manage freshwater effectively and to repair the damage created by decades of failure at the local level. 

There are already extensive powers of central government intervention and the criticisms seem to be at odds with past complaints as to central government reluctance and timidity about using them.  Put into perspective, the reforms provide for moderate enhancement of what central government can do, and in a stepped approach that would allow for decisions to be taken locally first. 

It is only if this opportunity is not taken that the proposed new powers to change plans would come into play, and the exercise of them would be limited by statute to matters of urgent national or regional importance.

Making NPSs and NESs more efficient and effective

The Government would develop a non-statutory agenda, approved by Cabinet and reviewed three-yearly, to indicate which matters it would consider for NPSs or NESs and in which order. 

The proposal is also to improve the flexibility of these instruments by:

  • establishing a combined NPS and NES process so that guidance can be given on all components of a plan at one time
  • clarifying that NPSs and NESs can be targeted to a specific region or locality, and
  • further streamlining the processes for developing NPSs and NESs.

Chapman Tripp comment: these changes should help to enhance the clarity, quality and effectiveness of central government direction and accountabilities.  The ability to develop a combined NPS/NES would also allow for greater precision of purpose in central intervention and help achieve some of the Land and Water Forum’s recommendations, specifically the proposed National Water Quality Objectives Framework.  

Fewer and better resource management plans

Proposals to reduce the number and improve the quality of management plans include:

  • requiring all councils to have a single plan in place within five years (per district, or broader by agreement of the councils in the area).  Regional and district councils would develop their plans as now (using Schedule 1) and insert their sections into the new single plan template developed by central government 
  • encouraging a ‘future-focused’ approach to planning.  This would be achieved through a range of legislative and non-legislative means.  They include specifying that managing for positive effects is a core council function (under sections 30 and 31 RMA) and requiring councils to ensure adequate land supply to accommodate at least 10 years projected residential growth, and
  • allowing regional and district councils to group together and jointly prepare a single integrated plan.  A streamlined plan process, with limited rights of appeal would be available, providing:
    • there are one set of rules per area
    • effective catchment management is enabled, and
    • there are material efficiency/cost gains.
  • regional and local councils would retain separate functions and accountabilities and would sign off separately on the relevant parts of the plan.

Key features of the new plan-making process would be:

  • a planned partnership agreement to bind the councils to collaborate on the development, implementation, monitoring and review of the plan
  • greater emphasis on pre-notification engagement and collaboration through reconciling regional and district issues, objectives and policies
  • an independent hearings panel to oversee the formal consultation and submissions process
  • narrowed appeals to the Environment Court, limited to where the council deviates from the recommendation of the independent hearings panel.  These would be ‘re-hearings’, not de novo appeals.  The right to appeal to the High Court on points of law would be available where the council accepted the hearings panel decision.

Chapman Tripp comment: the ideas of a single integrated plan for each region, and more positive forward planning are very promising.  The critical question is whether they will be achievable unless the government is prepared to more actively promote local government amalgamation.  Leaving councils to decide among themselves is likely to see too many preferring to stay within their parochial fences.  That does not imply anything as radical as the Auckland solution.  More limited forms of Ministerial direction and structure around proposed “partnering arrangements” might suffice. 

This is an area that would be worth taking further in submissions, given the real benefits on offer. 

As for the aspiration for more positive forward planning, a potential inhibiter lies in the “off limits” purpose of the RMA itself.  The emphasis in section 5(2)(c) on avoiding, remedying and mitigating effects draws councils into minutiae and works against their ability to pursue a strategic sustainable management policy.

Faster Environment Court proceedings

Three changes are proposed to speed up Environment Court decision-making:

  • expanding the Court’s power to enforce timetables
  • strengthening the provisions requiring parties to undertake alternative dispute resolution options, and
  • amending the RMA to realise the full benefits of electronic case management.

Chapman Tripp comment: these are all worth pursuing, particularly the third which has the capacity to produce a real improvement in the Court’s throughput.  We make a plea also for the Court to be consistently equipped with decent electronic transcribing services.

More efficient and effective consenting

A 10 day limit for straightforward consents

To qualify for the 10-day timeframe, applications would have to meet certain requirements, which would be specified in regulations.  These might include:
  • clear and complete application documents
  • all necessary written approvals provided with the application, and
  • agreement in a pre-application meeting with council staff that the application meets all criteria.

“Approved exemption” for minor rule breaches

Councils would have a small degree of tolerance to decide on a case-by-case basis that a full consent is not needed where (for example) the rule breach is very minor, neighbours and the environment are unaffected, the policies and objectives are not breached, and no other consent permissions are required.  Such thresholds could be defined in the RMA or by regulation.

Specifying non-notified applications

Sections 95A(3)(a) and 95B(2) could be extended by allowing non notification on the basis of forms of regulations, in addition to the current plan, and outside of any NES.

Limiting consent conditions

Revising the RMA provisions setting the types of conditions that can be put on the different classes of consents could include a requirement that a condition only be imposed where it directly relates to:

  • the provision of the plan which has been breached
  • the adverse environmental effects, or
  • content agreed by the applicant.

Chapman Tripp comment: much of what is offered has promise subject, of course, to the detail.  In particular, the 10 day time limits ought to be achievable and will incentivise councils to set up the necessary systems.  And there is a persuasive logic to the principle of approved exemptions.  Of course, judgement calls will be needed but council staff can (or should) be trained and experienced enough to make them (and the Courts can always temper this with direction if need be). 

But, we sound a note of caution on the proposal to limit consent conditions.  This could have perverse consequences so will need some discretion as – for example – mitigation of one effect could create other effects elsewhere.  There is also the possibility of this leading to even more complex plans.  Again, we think that part of the underlying problem is located in section 5(2)(c).  Solutions to deal with this could be an issue for submissions.

Limiting participation in submissions and appeals

The discussion document proposes limiting the scope of submissions and appeals to the reasons the application was notified, and the effects related to those reasons.  This would require the council to clearly identify why the application is being notified.

Amendments could also be made where an affected neighbour does not give written approval.  Councils could invite comment by a particular date on those aspects of the proposal that would affect the neighbour.  Other matters would be out of scope, and not grounds for objection.

Chapman Tripp comment: this is an embryonic proposal, which is potentially dangerous.  It appears to ignore the fact that council notifications are often not fully accurate and do not provide a full description of the purpose or effect of the application and that applications often change and evolve during the consents process.  If pursued in its current form, it would be a recipe for more litigation.

Appeals by way of re-hearing – not de novo

The proposal to limit appeals on plan changes to re-hearing, instead of de novo, could be applied to consent decisions as well.  Consideration is also being given to a lower cost tribunal-style resolution process for minor matters.  The goal is to have an efficient and transparent independent check on consenting authorities, and to reduce the time and cost of consenting processes.

Chapman Tripp comment: Narrowing appeals will work, and will be politically durable, only if the quality of first instance hearings is high and if there is proper recording of oral evidence.  These are both big ‘ifs’ and would require a substantial improvement on existing practice by many authorities. A new tribunal-style resolution process smacks of double-bureaucracy.

Improving transparency of consent fees

Councils could be required:

  • to set fixed charges for certain types of resource consent or, where additional charges apply, to give estimates in advance of what these will be before the application is processed, and
  • to publish memorandum accounts specifically for their consenting activities to assess whether they are delivering value for money.

Chapman Tripp comment: this is a good idea which will provide more certainty to applicants and create a discipline on councils.

A Crown body to process some consents

Call-in provisions could be expanded, or new legislation developed, to allow the Minister to designate nationally important issues (such as land or housing) to be eligible for an alternative consenting process.  A dedicated board of inquiry, or Crown body would process applications within a three or four month timeframe.

Chapman Tripp comment: this would create more process flexibility, which is to be welcomed.  The Environmental Protection Authority (EPA) may have a role here.

Preventing land banking

Consenting authorities would be able to set conditions, when approving survey plans under section 223, to require construction work to be completed in less time than the current default three years – or the survey plan will lapse.  This should encourage earlier development of subdivisions.

Reducing the costs of board of inquiry process

Proposals to reduce the costs associated with the board of inquiry process include:

  • making the content of public notices for proposals of national significance more useful and relevant, and reducing the cost to applicants (for example, by providing for a summary of the Minister’s reasons and description of the proposal to be notified, with full information on the EPA website)
  • requiring boards of inquiry to have regard to cost-effective processes when determining procedures
  • using electronic documents in the first instance
  • removing the draft decision stage or reducing the comment period from 20 to 10 days
  • clarifying that the EPA can provide planning advice to the board if requested, and
  • amending the RMA to provide that the consent process be stopped if associated charges have not been paid in full.

Chapman Tripp comment: EPA board of inquiry processes are delivering a significantly faster track for the hearing of major national significance cases and there is no current evidence that this is at the expense of fair and meaningful participation.  However, there are questions about the cost relative to direct referral and the traditional “two step” process so it is worth exploring whether these costs can be reduced. 

Much of what is proposed reflects current practice, as the EPA has refined its approach over time.  But we question whether removing or reducing the draft decision stage would have much merit (if any) as a means of cost saving.  If anything, it could have the opposite consequence. 

Rather than having to change the RMA to achieve substantial cost savings, we suspect there is more potential for gain through administrative refinements – in particular, to the “completeness checking” processes prior to public notification.

Better natural hazard management

It is proposed that this be achieved by adding natural hazards as a matter in the principles of the RMA (section 7), and amending section 106 to ensure all natural hazards are appropriately considered in both subdivision and land-use consent decisions.

The proposed tool for Ministerial direction could also help planning for some natural hazards.

Effective and meaningful iwi/Māori participation

Councils would be required to give local iwi the opportunity to have input during plan development.  This advice would have statutory weight under the RMA.  At least one member of any independent hearing panel charged with developing a single resource management plan would be required to understand tikanga Māori and the perspectives of local Māori.

Other changes would:

  • require consultation with iwi on NESs
  • improve the ease of use of existing tools for participation, and
  • improve awareness of and accessibility to iwi management plans.

Working with councils to improve practice

To provide local authorities with greater clarity on what they are expected to achieve, a number of measures are proposed (that align with the performance measures in the Better Local Government work programme).

These include:

  • developing an expectations system in collaboration with councils which would specify key performance indicators (such as customer delivery measures, and environmental measures), and
  • monitoring service delivery through the national monitoring system.

In addition, the RMA may be amended to:

  • require performance information to be publicly available
  • enable the government, the community and councils to set clear expectations, and
  • enable the Minister to specify how expectations are to be reported.

Some odd silences?

Given that this is such a comprehensive review, we are surprised that it does not include proposals to better plan for critical coastal infrastructure.  In our view, the inability to exercise designation-type powers in the planning of our ports and airports is an anomaly overdue for remedy.  While not all designation powers may be appropriate in the coastal marine area, some certainly are and could easily be adapted for this purpose.

Conclusion 

Taken in the whole, this is a highly promising package in terms of its potential to deliver truly enhanced RMA processes.  We think it can free up the RMA to achieve much more strategic and targeted outcomes and that it will better promote the RMA’s use, development and protection priorities. 

Of course there are some areas that need some rethinking and refinement but the Government has provided opportunity for this through the submissions process.  It is to be hoped that the intemperate initial reactions of some of the thought leaders in resource management will give way to more considered and constructive input from now. 

For further information or for help preparing a submission, please contact the lawyers featured.

Contacts