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Brief Counsel

RM Bill better for select committee make-over

21 August 2009

The improvements made to the Resource Management (Simplifying and Streamlining) Amendment Bill (the Bill) provide a useful reminder of how much can be achieved through solid engagement in the select committee submissions process.

The Local Government and Environment Committee has reversed some of the headline proposals in the Bill (especially concerning plan appeals, “non-complying activities” and designations) and made it a more modest and considered piece of legislation.  Even so, it delivers a substantial shake-up to the Resource Management Act (RMA) regime and we expect more change from the Phase Two reforms. 

This Brief Counsel looks at the Bill as it has emerged from the Committee.  The Bill could become law as early as next week and should be in place at least by September.

Greater clarity and certainty in notification processes

The refinements the Bill offers here, although small, are significant and apply to both resource consent applications and to notices of requirement.

They will give Councils greater confidence and safety in opting for limited as opposed to full public notification in circumstances where the effect of the development will be confined to an identifiable catchment of people – even when those people will be significantly affected.

They should also discourage costly challenges in the Courts against the sensible use of this discretion and should increase the incentives on project developers and requiring authorities to seek to resolve issues through early and direct negotiation with the persons affected where the effects are confined to particular catchments.

As you were, for now

The Committee has reversed or deferred for further consideration three important policy initiatives in the Bill.

Proposed limits to plan submissions and appeals knocked back

Proposals to limit plan submissions to one round and to limit plan appeals to points of law, unless the Court granted leave, have been wisely dropped.  Rather than fix planning process delays, they would have aggravated them by opening up new avenues for legal challenge. 

We need the protection of full merit appeals on plans for two reasons:

  • Council planning decisions impact significantly on public and private property rights and expectations concerning resources, and
  • Council plan hearing processes fail basic quality assurance standards.

Repeal of the non-complying activity knocked back

The Committee’s decision not to proceed with the proposed repeal of the “non-complying activity” category should also be generally welcomed.  The category has a very important role in protecting investment in quality plans and can be an important shield for major infrastructure or industrial activities against the risk of more sensitive uses establishing near them (known as the “reverse sensitivity” risk).

Changes to infrastructure designations knocked back

The Committee has knocked back radical changes in the Bill in relation to designations.  Key among these were proposals to:

  • Transfer the power to confirm a designation requirement from utility operators to Councils, much as applies for resource consent applications, and
  • Allow Councils to insist upon changes to “outline plans” in regard to the construction of works under a designation authority.

Concerns as to abuse of the designation process appear more theoretical than real.  Yes, post-corporatisation and privatisation, it has been opened up to private sector and SOE infrastructure providers.  But not without checks and balances.  The Environment Court has a supervisory role in deciding appeals and the Minister can deny requiring authority status or remove it from unsuitable operators. 

In essence, the reforms appeared to be a “solution” in search of a problem.  Worse, they would have seriously confused accountabilities and fitted expensive new brakes on New Zealand’s infrastructure planning and development at a time when the economic imperative is acceleration. 

A more considered review of infrastructure planning tools, not only under the RMA but also under the Public Works Act, is on the agenda for Phase 2.  More information on the Phase 2 policy programme is available here.

Plan processes

The Select Committee recommends some useful refinements to planning processes:

  • There will be new scope for combined regional policy statements and/or plans which should encourage greater consistency and quality in plan making
  • Whole of plan reviews will be replaced by 10 yearly rolling plan provision reviews.  Provided Councils apply the “cost/benefit” disciplines intended by section 32 of the RMA, we see this as a helpful change, and
  • The two year time limit for Councils to issue their decisions on plan submissions and the ban on “whole of plan” appeals should speed decision-making – even if, in reality, there will be little sanction on laggard Councils or determined litigants who frame their appeals to cover “almost all” the plan.

Overall, however, the Bill will not fix the very significant costs and delays associated with planning processes.  These are the biggest headache of the RMA, especially in regard to issues of regional resource allocation and management where many Councils are hopelessly behind.  Typically, even modest plan reviews are taking a decade or more to complete.  Put this against the planned ten-yearly review cycle and plans will be outdated even before they become operative.

That is not to say real streamlining reform in the planning process area is not possible.  But the problem is multi-faceted and not open to a quick or even a single solution.  We suggest the following questions need to be explored:

  • Is the present single planning model sensible for all resource issues?  Should other mechanisms be applied, perhaps in conjunction with plans, such as market models for aspects of resource allocation?
  • Do we need to look again at the respective regulatory roles of National Environment Standards (NES) and local plan rules?  They can cover much the same ground, yet NES are made with very little public process by contrast to plan-making.  Is there some useful middle ground between these extremes for the making and administration of NES and certain kinds of plan, especially given the agency of the EPA?
  • Is our present planning model unnecessarily adversarial?  Our reliance on an adversarial contest derives from the fact that Councils are largely free to prepare proposed plans and changes "in house".  But is it realistic to expect that Councils have the necessary peripheral vision for this?  Is there a case for a much more structured strategic engagement with other stakeholders (such as network utility operators), before plan notification?  Is the adversarial system at the cost of delivering efficient, properly led, and strategic solutions?  Is it resulting in process dominating outcomes?
  • Is there a place to allow Councils to elect quality assured hearing tracks, akin to call in, for some plan-making?  Clearly, that would not be the best course in all circumstances, but could it be a useful option?

Phase 2 now provides opportunity to take a more rounded look at planning process inefficiencies, and their causes, in order to identify truly effective solutions.

Resource consent process reforms

The Bill includes a raft of streamlining reforms to RMA resource consent processes, many of which will also ease processes for seeking designations.  They include:

  • Clarification of the further information regime
  • As of right access to hearings by independent commissioners, for applicants and submitters, and
  • Time limits for concluding hearings, to address the growing practice of tactical “adjournments” to avoid the RMA’s hearing timetable expectations.

National significance reforms

The Select Committee has endorsed the Environmental Protection Authority’s role in administering priority consenting for national significance projects.  Most of the other refinements to fast track “call in” have also been carried forward, including changes to enable smaller projects to be called in when they form part of a greater network.

There are some significant amendments to the National Environmental Standards (NES) provisions, although unfortunately these continue to be very complex and difficult to apply.  That complexity is an impediment to the potential NES could offer in standardising regulation, especially in relation to national infrastructure rollouts.  Perhaps this will be addressed again at Phase 2.

Some areas of concern

When proposed plan rules take effect

Plan rules determine whether resource consent is needed, define resource consent activity categories, set up expectations for notification and non-notification, and set up performance standards for informing resource consent conditions.  In essence, they are fundamental to ensuring that the RMA functions at all.

The Bill as introduced would have replaced what is a simple and generally understood regime for when rules take legal effect with a highly confused one.  Although the Select Committee has ironed out many of those problems, some confusion remains.Currently, proposed plan rules have immediate legal effect for most purposes from the time the proposed plan is notified unless the Council specifically makes a resolution to the contrary.

Under the Bill, they will generally not take legal effect until the Council issues its decision on submissions, except for rules that “protect” various categories of value (eg “significant indigenous vegetation”, “significant habitats of indigenous fauna”, or “historic heritage”).  “Protect” is not defined, yet rules that “protect” will have immediate legal effect.   

In some cases, it will be reasonably clear that a rule “protects”.  An example is a rule which applies only to classified heritage buildings and requires consent for their modification.  However, there are many scenarios where the position will be far from certain.  Take a Council imposing rules on tree harvesting.  If the rule applies to both exotic and indigenous vegetation, will it have immediate effect or not? 

Ending the “supermarket circus” or opening a side show?

The radical trade competition sanctions have survived largely intact.  These are intended to purge the RMA of the negative leveraging behaviour evident in high profile examples such as Wairau Park Pak ‘n Save. 

Trade competitors will be ineligible to make submissions, appeal or participate in appeals unless tight entry criteria are satisfied.  Associated with this are constraints on using “surrogates” and powers for the High Court to award punitive damages for breaches as may be declared by the Environment Court.

Given these very significant penalties, it is surprising that the Select Committee has preferred not to define “trade competition”, leaving it to the Courts.  This is particularly so as the case law does not define a bright line of judicial interpretation.  How the Courts will navigate this regime remains to be seen.  Ultimately, a sensible way through may be found but, we suspect, not without cost and uncertainty. 

Environment Court direct referral

Environment Court direct referral could provide a very useful fast track option for major or controversial projects which do not make the cut for national significance call in.  However, the Select Committee has essentially retained the model as one where applicants can instigate call in and the Council, not the Court, is gatekeeper.  That poses some risk that Councils may load cases on to the Court as a way of transferring the costs from their own budgets to the Court’s budget – or from ratepayers to taxpayers.

Conclusion

Overall, the Select Committee has turned an ambitious, in places over-reaching, first reform into a much more refined and capable Bill.  That said, the Bill should be regarded only as a first step.  The urban planning and infrastructure work streams now underway in Phase 2 allow for much more thorough scrutiny of the process problems of the RMA and much greater strides towards addressing these.

For further information, either on the Bill or on the Phase 2 work programme, please contact John Hassan, Suzanne Janissen, Catherine Somerville or Jo Appleyard.

Our thanks to John Hassan and Barbara Dean for writing this edition of Brief Counsel.

John Hassan was a member of a four person expert panel who assisted the Select Committee in reviewing the drafting of the Bill.  If you wish to receive a copy of the expert panel report please contact him.

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