National is committed within the first 100 days to what Nick Smith has described as the "biggest reform" of the Resource Management Act since the RMA was introduced in 1991.
National has identified 20 specific amendments. A key theme of these is to provide a greater degree of central direction. Smith told the Environmental Defence Society in an extended interview during the election campaign that National considers that the current RMA framework is too devolved.
Chapman Tripp supports National's general reform thrust. In some areas we believe National's objectives could be achieved more effectively by taking a slightly different approach. We will make some suggestions for this in a Counsel "Directions for Reform of the RMA" which we will send you when completed.
The Environmental Protection Authority
Central to the reforms will be the establishment of a new Environmental Protection Authority (EPA). The EPA will have a presence in Auckland, Wellington and Christchurch. Smith wants it to have a strong underpinning of scientific expertise in-house. He is planning to recruit expert RMA staff from territorial authorities and regional councils.
The EPA is not intended to be an advocate for the environment but a neutral agency. It will absorb the functions of the Environmental Risk Management Authority and assume responsibilities for national policy statements (NPS) and national environmental standards (NES). Expect too that the EPA will become central to National's intended second stage reforms, for example in water allocation.
An EPA with responsibility for setting national environmental standards, as well as NPS, offers significant potential for improving the RMA's administration. In particular, effective NES could achieve sensible standardising in relation to issues like noise, discharges, contaminants and other environmental impacts and facilitate the maintenance or roll-out of linear infrastructure (broadband, electricity lines networks, gas pipelines etc.).
Key to this will be to ensure that the EPA has a properly grounded understanding of local issues. The indication that the EPA will have a presence in Auckland and Christchurch, as well as Wellington, signifies recognition of that.
National has also signalled associated reforms to the call-in procedures, particularly to better enable "direct referral" to the Environment Court for the priority consenting of national significance projects. The EPA would assume the role MfE presently has in relation to call-in. Currently, the RMA allows for two forms of call-in track; ad hoc Board of Inquiry, which has been the preferred track, and the direct referral track which has been used for only one project. There is room for a revamp of direct referral call-in.
An overall theme of the first 100 days' reform will be to reduce the bureaucratic costs, delays and uncertainties of the present RMA. In this category, changes signalled include reducing the number of consent categories, getting rid of the Minister of Conservation's veto in coastal consenting, and limiting vexatious and frivolous and trade-related objections.
Against a background of five sets of reforms to the RMA since its enactment, it should not be assumed that a "quick fix" will be effective in addressing the bureaucracy of the consenting processes. As Smith signalled, fixing the RMA "is a difficult and complex job" requiring "care and finesse".
In this regard, although we agree that the costs and delays of RMA planning and consenting processes (including through vexatious and trade competition objections) need to be addressed, we see some of National's intended "fixes" for this as problematic:
- limiting the definition of "environment" to natural and physical resources could have the unintended consequence of making it harder to justify major infrastructure projects. Often, these projects rely on the presently broad meaning of "environment" as this allows the national socio/economic benefits that such projects offer for people and communities to be argued in favour of consenting;
- reducing the number of consent categories under the RMA, in particular dropping the "non-complying activity" category, could undermine investment certainty in district plan/regional plan rules; and
- setting a nine-month turnaround for "call-in" decisions may well be a realistic goal, given the intentions to establish an EPA to coordinate call-in and to improve the "direct referral' call-in track. However, if this timeline were prescribed as a statutory deadline for "call-in" consenting, it could be adverse for the quality of the decision-making in complex cases, and create greater risk of High Court litigation about process issues.
As we see it, the central problem area in terms of the "bureaucracy" of the RMA is the "slop" that exists with variable quality of first instance decision-making and associated de novo appeal processes. There is simply far too much process, and the associated delay and uncertainty are fertile ground for vexatious and trade competition behaviour. Associated with this, the de novo appeal model (while needed to overcome poor first quality decision-making processes) can blur accountabilities for plan and consent decision-making. That does not assist to promote good environmental outcomes or effective public participation.
The 2005 Amendments tried to tackle this area, but the reforms were too timid. There is potential for greater improvements here, both in terms of better quality assurance of first instance plan and major consent hearings and the better focus of appeals. Measures such as provision for security for costs in appeals, and the clarification of the scope of further information requests could assist.
National has also signalled the possibility of inter-district plans, and combined regional plans. We think this is a worthwhile area for reform. In addition to greater use of national standards, encouraging councils to work together in making their plans would help avoid unnecessary duplication and differences in planning approaches. Examples such as the combined Wairarapa proposed district plans also show advantages such as having a single industrial hub for several districts and greater scope for integration between land use development and infrastructure provision. We suggest there could be other sensible reforms in this area, such as requiring councils to put their policy statement and plans on the internet in such a form that the Ministry for the Environment can provide a readily searchable, central and up-to-date database.
Where to from here?
National's reform prescription for the RMA will have big implications for business, especially in the utilities sector. Although National's plans are highly specific, there will still be the capacity for influence through the submission process so businesses should be turning their attention now to the outcomes they want to achieve out of the legislative review. Chapman Tripp will continue to monitor developments closely and will keep you informed of the debate as it unfolds.