Afforestation Values in the RMA Context
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What’s the story about forestry and the RMA? Despite the substantial body of evidence that establishes the positive values of forestry, the forest industry is burdened with a substantial and, arguably, excessive level of regulation under the Resource Management Act 1991 (the RMA).
To date, the positive values of forestry have not be widely or adequately recognised in the RMA context and many district and regional plans impose a level of regulation that seems inconsistent with the economic, social and environmental benefits that plantation forests provide to the community.
This paper discusses the circumstances that have created this problem for the forest industry and explains how the industry can be more effective in getting the 'good news' story about the positive values of forestry into the RMA process to get better outcomes for the industry.
The RMA Planning Process and Forestry
The starting point for discussion about regulation of forestry related activities begins with the planning instruments developed by district and regional councils under the RMA.
District and regional plans are developed through the community consultation process provided by the First Schedule RMA. This process is designed to enable the community to participate, via submissions and hearings, and inform the content of RMA plans that manage New Zealand’s natural and physical resources.
The outcome of this process has not served the forestry sector particularly well. In many parts of New Zealand, both district and regional plans contain complex and quite onerous controls on plantation forest activities. The extent of these controls, and related compliance costs they impose on the forestry industry, has caused many within the industry to perceive the RMA as an excessive handbrake on replanting activities and the establishment of new forests.
This position is, not surprisingly, a source of considerable frustration for the plantation forest industry. There is a substantial body of research spanning several decades which demonstrates the substantial positive values, or benefits, of forestry across a wide range of indicators. The principal or higher order benefits of well managed forests are summarised in the following table grouped under headings that reflect the elements of sustainable management expressed in the RMA.
Given the above benefits, which are considerable and extend well beyond the financial bottom line of forest owners, it is reasonable to ask why are forestry-related activities so heavily regulated in some parts of New Zealand? And perhaps more importantly, what can be done to remedy this situation? These two important questions are discussed below.
Why so much regulation?
First, a disclaimer. The views that follow are not based on empirical research, but instead are drawn from the writer’s participation in various district and regional plan development processes within the Canterbury region. It’s important to acknowledge that RMA planning instruments play an important role in managing potential adverse forestry effects. However, some plans contain an inappropriate level of regulation. In my view, there are four principal reasons for the extent and complexity of forestry regulation.
First, the scale and complexity of effects, both positive and negative, generated by plantation forests. The introduction of the RMA was heralded as a move away from “wise use” philosophy under the Town and Country Planning Act 1977 to an “effects based” regime for management of natural and physical resources. The term “effects” is broadly defined in the RMA, which brings a wide range of forestry activities into consideration for potential control and management through RMA planning.
There are few other land use activities that possess an effects profile as complex as forestry. The range of potential negative effects is very broad and includes possible adverse impacts on the subjective issue of visual amenity, landscape, indigenous flora and fauna, transportation safety and networks, fire risk, noise, archaeological, waihi tapu and heritage sites, residential amenity, water quality and water yield.
Although many of these effects can be managed through appropriate standards or conditions of consent, the scale and complexity of potential effects caused by forestry activities presented a significant challenge to district and regional councils when “effects based” plans were first being developed in the 1990s.
Secondly, during this period the Department of Conservation and various environmental groups were significant participants in the First Schedule plan review process. My observation, based on the Canterbury experience, is that these organisations were highly effective in advancing the potential adverse effects of forestry as reasons for regulation of forestry related activities. The advocacy of these groups, combined with the effects profile of forestry, caused many Councils to adopt a ‘belts and braces’ approach to ensure that forestry related activities were managed through the resource consent process.
Thirdly, in some parts of New Zealand there is unnecessary duplication of rules affecting forestry in both district and regional plans. Within the Canterbury region, there are several instances of district plans containing rules regarding forestry related activities that should properly be addressed in regional plans. This results from a lack of rigour in application of the different management functions of regional councils and district councils under the RMA.
Fourthly, and most importantly, the positive values of forestry (or, in RMA terms, the positive effects) have not been widely or adequately recognised in the RMA context during the development of district and regional plans. Whilst these values are well understood by the forestry sector, they are less well known by local authority planners and decision-makers who are instrumental in shaping the content of RMA planning instruments. Without the benefit of this information, presented in a manner that can meaningfully inform the cost/benefit analysis required by the RMA to determine whether planning rules are appropriate, it has been relatively straightforward for the views of conservation-minded organisations to prevail in some parts of the country. This has resulted in circumstances where many RMA plans impose a level of regulation that seems inconsistent with the economic, social, cultural, and environmental benefits that plantation forests provide to the community.
Meeting the Challenges of RMA Regulation
There are two principal methods by which the plantation forest industry can meet the challenge presented by the current level of RMA regulation in some parts of New Zealand:
- Firstly, by pursuing initiatives to reduce the extent of RMA controls and,
- Secondly, by developing successful strategies for securing resource consents for forestry related activities.
Central to the success of these methods is using the beneficial values of forestry to positively influence RMA decision-makers.
Reducing the extent of RMA rules
RMA rules can be reduced through national planning initiatives, such as a National Environment Standard (NES), or by amendment to district and regional plans. NESs are significant because they sit at the top of the hierarchy of planning instruments. A proposed Forestry NES is being developed by the forest industry, the Ministry of Agriculture, and the Ministry for the Environment. I understand that the document may be ready for public consultation (subject to cabinet approval) in July or August 2010.
The Forestry NES is a national response that acknowledges both the regulatory issues discussed above and the benefits of forestry to the community. The Forestry NES, once operative, will provide a consistent national framework for managing many common forestry related activities. The intended purpose is to minimise inconsistencies and reduce the overall level of RMA regulation, thereby reducing compliance costs and encouraging greater investment in replanting and afforestation.
The RMA requires that a rule or resource consent cannot be more stringent than a NES unless the standard expressly says that this can occur. Note, however, that a rule or resource consent cannot be more lenient than a NES. In addition, activities that are currently permitted under a regional plan but which require resource consent under the NES will have six months to apply for a resource consent from the date the NES becomes operative.
Consequently, unless all forestry activities are permitted by the NES, there will be some 'unders' and 'overs' resulting from the Forestry NES. It will reduce RMA regulation in some parts of the country; whilst in others, where forestry activities are currently permitted there may be some increase in regulatory control. Overall, however, the industry is anticipated to benefit from greater consistency, less complexity, and generally less RMA regulation.
It is important to note that the Forestry NES will not treat all forestry alike. For example, it is likely that issues regarding outstanding landscapes, significant indigenous vegetation, and water yield catchments will sit outside the NES and be dealt with by local authorities as appropriate within their district or region. Also, it is reasonable to assume that the NES will adopt a more lenient approach to reforestation and more stringent controls will apply to afforestation of bare land.
The district and regional plan review process
The Forestry NES can be complemented by strategic participation by the plantation forest industry in the review of district and regional plans across New Zealand.
In this respect, particular attention is required regarding second generation RMA plan processes that have, or will soon, commence. These processes provide a fresh opportunity for the forest industry to influence RMA planning controls. In “A Forestry Sector Study” published by the Ministry of Agriculture and Forestry (April 2009) the authors state –
”It is vital that the forestry sector, especially the wood processing industry, participates in the 10-year reviews of district and regional plans...to ensure better regulatory outcomes.”
Recent amendments to the RMA have removed the requirement for local authorities to review RMA plans every 10 years and instead provide for rolling reviews. The current status of regional/unitary plans and territorial plans in New Zealand is illustrated below.
These tables show that non-statutory consultation regarding second generation RMA plans is being undertaken by 6 regional/unitary authorities and 28 territorial authorities. Five regional/unitary and 12 territorial authority plans are within the submission, hearing and decision phase of plan development. The majority of local authorities have yet to commence any form of second generation plan review process.
RMA rules of engagement
In order to influence outcomes within the RMA plan development process it is necessary to first understand 'the rules of engagement' so that the benefits of afforestation can register with local authorities and influence the content of district and regional plans.
The RMA requires local authorities to establish regional and territorial (district and city) plans to assist them in undertaking their functions in order to achieve the purpose of the Act. Territorial and regional councils have separate and distinct functions, although there are areas of overlap that contribute to the above-mentioned duplication of rules.
Local authorities are required to prepare planning instruments in accord with their respective functions, the provisions of Part 2 of the Act (which describes the purpose of the Act, matters of national importance, other matters of particular regard) and their duty under section 32. This duty requires that local authorities undertake a cost/benefit analysis of proposed provisions of their planning instrument, having regard to the efficiency and effectiveness of policies and rules, when determining whether such provisions are the most appropriate for achieving the purpose of the Act.
The overriding requirement of local authorities when determining the content of planning instruments is to ensure that their district or regional plans meet the purpose of the Act, which is to provide for the sustainable management of natural and physical resources. Section 5 defines “sustainable management” to mean:
“...managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being, and for their health and safety while –
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet their reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.”
In deciding the content of planning instruments, local authorities must consider the evidence and submissions to determine the “broader and ultimate issue” as to whether on balance the council is satisfied that implementing the proposed planning provisions will more fully serve the statutory purpose than cancelling them. Put another way, when faced with competing arguments regarding the content of their planning instrument, the council must decide which approach is better than others.
In broad terms, what this means for the forest industry is that it must engage and participate in the planning process to inform the cost/benefit analysis. At present, in my view, that analysis is often unduly weighted in favour of the potential adverse environmental effects of forestry activities and insufficient regard is had to the above-mentioned positive values of forestry. Consequently, the cost of the proposed regulation in terms of loss of environmental, economic and other benefits that result from properly managed forests are not fully acknowledged.
Relevant in this context is the significant delay in the return on investment for plantation forestry, which means the capital costs associated with resource consent processes are typically not recovered until sale of harvested timber, often between 27-35 years after grant of the forestry consent. This investment/return profile is quite distinct and exacerbates RMA compliance costs for the plantation forest industry. These circumstances should properly inform the section 32 assessment and the overall evaluation as to whether proposed regulation of plantation forestry is in fact consistent with the purpose of the Act.
Case-study: JFS and the Canterbury PNRRP
The Joint Forestry Submitters (JFS) opposed provisions of the Proposed Natural Resources Regional Plan (the PNRRP) promoted by Environment Canterbury (ECan). The PNRRP proposed stringent regulation of afforestation within catchments identified for the management of water yield (described as “flow-sensitive” catchments). Many of these catchments included areas of hill country that are highly suitable for afforestation. It’s not yet known whether JFS have been successful because the Commissioners’ appointed by ECan have yet to release their decision. However, the case presented by JFS illustrates how foresters can effectively participate in the development of planning instruments.
JFS identified the issues early, adopted a coordinated approach, and actively participated in both non-statutory and statutory consultation on the PNRRP. A range of independent experts presented evidence in opposition to the proposed regulation and promoted an alternative approach that JFS submitted better achieved the purpose of the RMA.
JFS’s strategy was to deal with the 'bad news' (i.e. answer the RMA issue regarding water yield) and promote the 'good news' by demonstrating the positive values of forestry. Consequently, there were essentially two parts to JFS’s case. First, detailed and thorough hydrological expert evidence was presented, which demonstrated that the impact of afforestation in the water-short catchments was substantially less than contended by ECan officers.
Secondly, JFS presented evidence from a suite of experts directed toward establishing the positive values of afforestation. Issues addressed included improved water quality, erosion control, enhanced biodiversity, economic benefits to hill country farmers, economic benefits to forestry companies and associated industries, carbon sequestration and an economic cost/benefit comparison of ECan versus JFS’s alternative rule. Finally, alternative plan provisions were proposed through planning evidence, which JFS argued were better than those contained in the PNRRP as notified.
The collective purpose of this evidence was to robustly inform the cost/benefit analysis so that the hearings panel had a full appreciation of the environmental, economic, and other costs created by the loss of opportunity to afforest the flow-sensitive catchments identified in the PNRRP.
There are several benefits arising from JFS’s participation in the PNNRP. First, it seems likely to reduce the extent of PNRRP regulation of flow-sensitive catchments. Secondly, the precedent (assuming a favourable outcome) can be used by foresters in other parts of the country. Finally, JFS’s case provides a useful model that can be replicated by foresters to address inappropriate or unduly complex regulation in other planning instruments.
Obtaining RMA Consents
There is renewed interest in plantation forestry due to firming export prices and statutory recognition that growing trees is part of the solution to improving New Zealand’s carbon emissions profile. The government has declared a target range for 2020 of a 10% - 20% reduction in carbon emissions from 1990 levels. Figures vary however the Government has stated that New Zealand will need to plant another 500,000ha of forest by 2020 to meet this reduction target, along with emissions reductions generally. This equates to a 28% increase above the 1.8 million hectares of plantation forest estate present in New Zealand in 2008. Achieving this outcome will require the application of successful strategies to navigate the RMA consent process.
Strategies for securing RMA consents
The first and most cost effective strategy is to avoid the RMA consent process altogether by careful site selection and design of the forestry proposal. Some parts of New Zealand are more enabling of forestry than others and careful RMA due diligence can substantially reduce consenting costs.
The NES, once operative, should reduce the overall level of consenting costs for replanting, and, to a lesser degree, afforestation of bare land. However, resource consents will be required for forestry proposals that do not meet the NES standards and afforestation in more sensitive environments outside the scope of the NES.
Where resource consent is required, the maxim “he who prepares best wins” is very apt. Successful navigation of the RMA consent process requires sound preparation irrespective of the scale of the proposal, albeit large complex proposals obviously deserve more attention than others.
The ingredients of good preparation are as follows:
- issue identification: understand the relevant plan controls and likely effects of the proposal;
- organisation: develop a realistic timeline for the consenting project;
- coordination: identify all the inputs required to prepare the application and make sure everyone understands the timeline;
- consultation: work with neighbours, the consent authority and others (e.g. local iwi) to discuss the proposal and understand their concerns;
- resolve concerns: address potential adverse effects of the proposal; and
- explain the benefits: highlight the positive values of forestry to inform the RMA decision-maker.
The overall assessment / value judgement
Each of the above steps should be directed to inform the critical evaluation required by RMA decision-makers as to whether the granting of consent will meet the purpose of sustainable management at section 5 RMA. This determination requires the consent authority to weigh each of the competing considerations, taking into account their scale and significance, to reach an overall assessment. In doing so, regard must be had to both positive and negative effects (after taking into account proposed consent conditions), relevant provisions of planning instruments, and the matters provided at Part 2 RMA.
In Ernslaw One Limited v Waikato Regional Council W9/2007, February 2007, the Environment Court had this to say regarding consent conditions regarding riparian margins:
“The question inherent in the s5 evaluation, and the ability of the evidence to help answer it, is summed up in this perceptive observation from Dr Davies-Colley:
“The choice of buffer width is perhaps not so much a scientific question as a value judgement centred on how much environmental certainty is demanded, or, conversely, how much environmental degradation can be tolerated. Science can provide information helpful in answering such questions, but cannot itself answer them”. (my emphasis)
The “value judgement” referred to above is not arbitrary, nor does it occur in a vacuum. Instead it is critically informed by material presented to the consent authority. In the context of forestry consent applications, the 'bad news' regarding potential adverse effects should be addressed by:
- careful design of the proposal
- appropriate conditions of consent, which may include reference to the Environmental Code of Practice (E-CoP), Forest Stewardship Certification requirements, and Site Management Plans.
The E-CoP is a valuable tool for foresters because it promotes reasoned, consistent, and credible environmental guidelines and provides evidence that the forestry sector takes environmental performance seriously. The E-CoP has multiple applications and is particularly helpful in defining appropriate conditions of forestry consents.
It is important that the “value judgement” is also informed by the 'good news' about afforestation, including reference to the beneficial values discussed above, with particular emphasis on carbon sequestration.
The benefits of carbon sequestration
In a world affected by climate change, the ability of forests to sequester carbon is increasingly important. This was recognised by the Labour Government when it released an engagement document entitled “Forestry in a New Zealand Emissions Trading Scheme”, which explained how the then Government intended to bring forestry into the proposed Emissions Trading Scheme (ETS).
The ministerial foreword contains express recognition by central Government of the importance of forestry in delivering environmental services to the community. It states:
"Forestry and forests are vital to New Zealand's economy, environment, and culture. They are also vital to how New Zealand responds to the challenges of climate change. Moreover, forest and forestry can help New Zealand to become a truly sustainable country."
The importance of forests to New Zealand’s strategic response to climate change has been confirmed by the current Government. Central government policy on climate change is significant in the context of forestry consent applications because it unequivocally affirms the argument that afforestation provides significant climate change benefits.
Consistent with the Government's policy is the requirement at section 7(i) RMA that decision-makers have particular regard to the effects of climate change. This provision has been discussed in a number of Environment Court decisions relating to wind farm consent applications. The decisions provide judicial notice of the significance of climate change and in the context of the RMA decisions.
In Unison Networks Ltd v Hastings District Council (W058/06), the Environment Court considered appeals against two wind farms in Hawkes Bay regarding adverse effects on heritage landscape character, skyline effects and earthworks. The Court discussed the possible effects of climate change and stated:
"The cost of doing nothing about climate change could be severe and the impacts on our environment, economy and society are likely to get steadily worse if greenhouse gas emissions are not significantly reduced over the coming decades".
It is noteworthy that the Court found there was a price to be paid for approving activities that help slow the rate of climate change, and acknowledged that the wind farm would compromise and impair the landscape and visual amenity within the surrounding area, and cause concern to Maori due to the presence of more man-made structures. While recognising all that the RMA and the District Plan had to say about the protection and recognition to be given to those values, the Court nonetheless found that:
"…in an overall balancing of the competing factors, the purpose of sustainable management, as set out in s5, will be best promoted by granting these consents".
In Meridian Energy Limited v Wellington City Council (EnvC W031/07) the Court referred to section 7(i) RMA and described climate change considerations as "very powerful" and representing "some key issues to be weighed against the adverse effects on the local environment".
In my view, the above dicta is equally relevant in the context of evaluating the merits of forestry consent applications. The benefits of carbon sequestration are significant, well understood and easily quantified. They provide a valid basis to counter-balance the adverse effects of afforestation when RMA decision-makers are forming an overall judgement about whether to grant consent.
At a general level, the concept of environmental compensation involves offsetting the adverse effects of an activity by providing a related environmental benefit. This concept has been applied and accepted by the Environment Court in a number of cases.
An example that relates to forestry is where, as part of a forestry operation, an area of native vegetation needs to be cleared. To offset this loss, the person carrying out the activity may volunteer to protect and enhance another area of native forest in a different part of the site. In this way, although there has been an initial loss of biodiversity, the long term result should be a net environmental benefit.
The story about forestry and the RMA appears likely to improve. The proposed Forestry NES, once operative, should effect an overall reduction in RMA regulation. The preparation of second generation plans presents the industry with good opportunities to seek improvements. Expert evidence and the JFS approach can be applied to inform RMA decision-makers about the positive values of forestry. Climate change, in particular, is now recognised as a powerful consideration. The benefits of carbon sequestration should form a significant part of the 'good news' story to assist the industry to get better outcomes under the RMA.
Achieving improvements cannot however occur in a vacuum. The industry will need to continue its efforts to bring a strategic, organised and coordinated approach to engagement in RMA processes. At the forefront of such engagement should be the positive values of forestry.
Posted on Tuesday 24th May, 2011 at 04:33 pm