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RMA reform good for NZ

12 January 2009

One of the biggest bills on the parliamentary agenda at the start of this year will be a bill to amend the Resource Management Act. The Government is planning two rounds of RMA reform – one in February and a further one later in the year, probably September.

The second bill will establish the proposed new Environmental Protection Authority (EPA) and will also deal with the vexed issue of water allocation. The February bill will usher in a series of changes many of which will be relatively minor but which, in aggregate, should reduce some of the time wastage identified with the existing RMA framework.

Environment Minister Nick Smith has said the February bill will seek to:

  • streamline and simplify (consenting) procedures
  • provide priority (90-day) consenting of major projects
  • reduce costs and delays
  • speed up plan-making processes. and
  • restrict (anti) trade competition, vexatious and frivolous objections.

Business will welcome any improvements which can be delivered in these areas as they have long been a source of frustration to developers and to infrastructure providers.

The minister has appointed an RMA Technical Advisory Group chaired by barrister Alan Dormer and comprising environmental, legal, local authority, planning and business representatives to provide independent perspectives and analysis of the reform proposals and to act as a sounding board for any recommendations made by officials.

Hopefully this scrutiny will produce a targeted bill which does not have to be fixed by select committee.

Access to contestable advice will increase the chance of the reforms being well considered and achieving the Government's policy objectives because the RMA is a notoriously difficult piece of legislation to get right. There have been five rounds of reform already – one by every government since the Act's introduction in 1991.

National considers that the present RMA structure is too devolved, so a principal theme of the planned changes will be to provide more central control.

The EPA will be an important delivery mechanism for providing this.

It will absorb the functions of the Environmental Risk Management Authority and will assume responsibility for the existing instruments of central government direction – national policy statements (NPS), national environmental standards (NES) and the ability to "call-in" or fast-track projects of national significance.

It is important that the Government keeps the momentum going during the legislative reform process by continuing to issue national policy statements and national environmental standards. A persistent risk with any reform is that progress comes to a standstill until the new system is in place and New Zealand simply cannot afford that at this stage in our history.

New Zealand's infrastructural deficit in the energy sector is such that Transpower has calculated we need 150MW to 200MW on average of new electricity generation every year between now and 2025 to keep pace with demand.

But the primary focus of the first reform package will be to deal to the RMA "process slop" and related costs, delays and uncertainties. Much of this can be sheeted to the variable quality of local authority first-instance decision-making and to unrestricted rights of appeal to the Environment Court.

These features together create an incentive for people to go through the motions at the first-instance hearing and to hold their fire for the appeal. Although the call-in provides for a single quality hearing on the merits with appeals confined to questions of law, use of this tool is restricted to nationally significant matters.

In my view, there would be value in applying a "quality assured" hearing track to other major regional and district plan and resource consent hearings, as determined by the relevant council or elected by the applicant.

Appeals to the Environment Court would still be available under this option but the Court would be limited to determining whether the first-instance decision was correct in legal and policy terms rather than – as now – starting from scratch with the jurisdiction to overturn value judgments for which there is no "right" or "wrong" answer.

Expanding the use of the "quality assured" hearing in this way would require:

The appointment of sufficient accredited independent commissioners, possibly selected from a regional pool created by the minister.

Provision for proper testing of the evidence in the first hearing, including cross-examination of experts.

A full record of hearings. This would incur some additional expense but the cost implications should be manageable and would be more than offset by savings in appeal costs.

Other measures to improve RMA hearings processes would include provision for security for costs in appeals and placing limits on the scope of further information requests.

It is critical that we get these reforms right and get some policy stability in the RMA area. Our ability to attract the levels of infrastructure investment we need within the timeframes we need and to raise the productive capacity of the economy depends upon it.

To get the best possible result, businesses need to engage actively in the submission and policymaking process.

This article first appeared in the New Zealand Herald on the 9th January 2009. John Hassan is a partner in Chapman Tripp specialising in resource management.