Revising the Principles of the RMA
A review of the recommended amendments to sections 6 and 7 of the RMA
As part the Government’s phase II reforms of the RMA, a Technical Advisory Group (TAG) was established to review and recommend changes to sections 6 and 7 of the RMA. The TAG Report was made available on 6 July 2012.
The aim of the TAG was to provide independent advice to the Ministry for the Environment (MfE) on any changes needed to sections 6 and 7 of the RMA to improve the functioning of the Act. Particular emphasis was placed on managing issues of natural hazards, as well as other measures which could improve the environmental and economic outcomes of the RMA.
Outline of the changes
Sections 6 of the Act contains matters “of national importance” which decision makers must “recognise and provide for”, whilst section 7 contains other matters which decision makers must “have regard to”.
The TAG report proposes that section 6 and 7 be re-drafted into a suite of “sustainable management principles” that decision makers must recognise and provide for when making an overall broad judgement, to achieve the purpose of the Act.
The proposed provisions re-word the current section 6 matters and incorporate most of the provisions that were contained in section 7. However, there are also some notable additions to the matters decision makers should recognise and provide for, including:
The significant benefits to be derived from the use and development of natural and physical resources;
Managing the significant risks associated with natural hazards;
The planning, design and functioning of the built environment, including the reasonably foreseeable availability of land for urban expansion, use and development;
The planning, design, and functioning of significant infrastructure.
The TAG noted that there is no significant reference to the social, economic, cultural and health and safety issues which are referred to in section 5 of the RMA, within the existing provisions of section 6 and 7. As such, the TAG views the proposed amendments as better reflecting the purpose of the Act by incorporating such issues.
Another significant proposal of the TAG report is a new section 7 which outlines sustainable management methods. These provisions seem to continue previous reforms under the RMA (Simplifying and Streamlining) Act 2009, which had a focus on reducing cost and delay in decision making processes.
The changes are likely to receive mixed support. It is no surprise that managing risks associated with natural hazards has been added as a matter to be recognised and provided for, given the devastating Christchurch earthquakes, and subsequent claims that consents for subdivisions had been granted without proper consideration of the risks posed by liquefaction.
In addition, the need to recognise and provide for matters relating to the built environment and planning of significant infrastructure will be welcomed by local authorities and network utility providers, as the proposed changes recognise that sound urban planning and long term infrastructure is a necessary feature of sustainable development.
A somewhat more contentious proposal is paragraph (h), which relates to the “significant benefits to be derived from the use and development of natural and physical resources”. This will likely be viewed by some as being at odds with protection of the environment, which some people view as being the primary purpose of the RMA.
In reality, however, there is rarely one single matter under section 6 or 7 which trumps another when decision makers are exercising their powers under the RMA. The proposed amendments certainly follow the approach which the Courts have taken, which is to take an overall broad judgement of the various matters within sections 6 and 7 to achieve the purpose of the Act.
The proposed changes to section 7 recognise the approach the current Government has taken to increasing the efficiency of planning processes under the RMA, and require those exercising discretion under the RMA to work according to best practice. The TAG notes that whilst provisions relating to process matters may be perceived by some as being incompatible with Part 2 of the RMA (Purpose and Principles), it was seen by the TAG as necessary, as it is often process issues that are the reason for much of the criticism the RMA attracts.
The proposed amendments represent the most comprehensive rewriting of Part 2 of the RMA since its inception. However, the practical impact of the changes on decisions made under the RMA may not be as significant as first appears.
The changes to section 6 largely reflect the overall balancing approach that is already applied by the Courts and which is consistent with the sustainable management purpose of the RMA in section 5. In addition, the proposed changes to section 7 simply reflect good practice that is already widely adopted throughout the country.
Notwithstanding the above, rewriting the provisions of the RMA in this manner undoubtedly creates some uncertainty as to how the new wording may be interpreted and applied. The Government is expected to consider the TAG Report as part of its broader Phase II RMA reforms before deciding whether to implement the proposed changes.
Disclaimer: This is a brief sumamry for information purposes only and is not legal advice.
Posted on Friday 25th January, 2013 at 02:00 pm