RMA Proposed Changes - For the Better?
Following consultation on the Government Discussion Document in March 2013, Minister Amy Adams has recently released the Summary of Reform Proposals to the Resource Management Act (RMA), which will be implemented by a new Amendment Bill later this year.
This article follows on from our earlier article titled “Improving our resource management system?”, which discussed three of the six proposals namely greater national guidance, fewer plans, and a streamlined consenting system. This article revisits those three proposals and provides you with an update following the consultation phase. In particular, we discuss what has changed and provide some commentary on the impact of these changes.
Greater national guidance
Section 6 and 7 Principles
Sections 6 and 7 contain the underlying principles of the RMA, which have remain largely unaltered since the Act came into force. The proposed changes to these sections are controversial and have been met with stiff opposition from some sectors.
A number of refinements have been made to the wording of these sections since the earlier Discussion Document. One change of note is the proposal to specify significant habitats and areas of indigenous vegetation in resource management plans has been abandoned on the basis that is impractical and risks reducing protection for these areas.
These reforms provide significant changes to the ‘heart’ of the RMA to reflect up-to-date values, leaving many sectors feeling that environmental protection has been downgraded. However, it remains to be seen whether these reforms will have a meaningful impact on decisions and outcomes, or whether they simply better align the provisions with the overall balancing exercise that already occurs in practice.
The original Discussion Document proposed a range of new powers for the Government to intervene in local decision making, including avoiding the usual RMA submission process and directing plan changes to occur.
These changes have been tempered somewhat, with the Government clarifying the circumstances in which it can intervene. These circumstances include where a requirement for a process step in a resource consent process has not been complied with; where a requirement for a national direction has not been included in a policy statement or plan; and where a council asks central government to intervene to develop plan content more quickly to address an urgent issue.
These new circumstances reduce the scope of the Government’s power to intervene and clarifies that it cannot draft plan content. This may provide some comfort to those that were concerned about the nature and extent of the powers that were proposed.
Single resource management plan template
The proposal for a national planning template was generally supported and has been carried through to the latest summary of reforms. The template will be developed by the Minister for the Environment, with some opportunity for public input. This will be an important process to watch as the resulting template will then be rolled out throughout the country with little prospect of further change.
To ensure a fast transition, the timeframe in which Councils are to have their single resource management plans available has been reduced from five to three years. Given that the template is to be developed by within two years, this only leaves Councils with one year to convert their plans into the standard format.
The Discussion Document outlined alternative Council processes for the preparation of plans. The latest reform summary provides further clarity on the choices available to Councils and how they should make those choices. The three planning tracks available to Councils include the current process, a collaborative planning process for freshwater management and joint council (local and regional) planning process.
The third option has an added incentive for Councils as it allows for plans to be heard by independent commissioners with limited appeal rights on points of law if the Council accepts the Commissioners recommendations.
Council planning agreements
A new announcement is that the Government will require all Councils to publish a council planning agreement within six months of the legislation being passed. This agreement will set out how it will produce its single resource management plan per district (or other agreed area) and provide certainty to the community on which planning tracks the Council intends to use over the next three years.
At this stage there is no information as to whether the public will have any opportunity to comment on the content of these agreements. However, the agreements will be very important as they will set the framework for all council planning processes in the near future and the nature and extent of public participation they will involve.
The proposals to reduce the ‘red tape’ for minor consents have been generally supported by various interest groups and have been carried through into the latest reform package. This includes changes such as 10 day time limits and “approved exemptions”, among other measures.
Limited participation and control
In addition to the measures discussed in our earlier article, a number of new reforms are proposed to limit participation in resource consent applications and ensure that any debate is focused on the significant issues and effects not anticipated by the plan.
Currently, the notification tests for a resource consent application are largely based on the effects of the proposal. It is proposed to alter this test so that before considering the environmental effects of the proposal, the application will be assessed against the objectives and policies of the plan to determine whether the activity is anticipated.
Determining whether an activity is “anticipated” by the plan may be challenging, particularly given that many objectives and policies provide for a wide range of activities provided that the effects are appropriately avoided, remedied or mitigated. Substantial rewriting of some plans may be required in order to effectively apply this new notification test.
As originally proposed, the reasons for notification will be identified in the public notice and submissions will be confined to those reasons, unless supported by evidence.
The subdivision of land is one issue that has received special attention in the latest reform summary. This is presumably linked to the Government’s desire to increase land supply as a method to provide more affordable housing.
In a reversal of the current situation, subdivisions will be allowed unless expressly restricted by plan rules. In addition, any subdivision that is “anticipated by the underlying plan rules or zoning” will not be publicly notified, with the only affected parties being the owners of affected infrastructure assets or government agencies that have an interest in public health and safety.
This represents a significant change from the current situation and it is difficult to see how this will work in practice. There is uncertainty as to what is required for a subdivision to be “anticipated” by a plan. In many cases, rural land will be zoned for urban development, but there will be a number of detailed issues that need to be considered at subdivision stage, including matters that may affect neighbouring properties. It would be concerning if such subdivisions were able to proceed without the ability for genuinely affected parties to comment on the relevant details of the proposal, which are often unknown at the time the land is rezoned.
The Discussion Document proposed a number of significant reforms to the appeal process. Following consultation, a number of these have been abandoned by the Government, including removing de novo hearings to the Environment Court.
A new proposal is the ability for applicants to object to a Council decision or conditions on consent to an independent commissioner as an alternative to an Environment Court appeal. The scope of a commissioners powers to reconsider the Council decision is yet to be clarified.
If a decision is appealed to the Environment Court, changes are proposed to ensure that the appeal is resolved quickly and cost effectively. These reforms require the Court to consider the use of a judicial settlement conference and provide the ability to require parties to participate in mediation.
The proposal to compel parties to enter mediation seems to pulls against the concept of mediation as a voluntary settlement option. It remains to be seen whether the Court would actually force people to participate if there was no willingness to do so.
Key themes and implications
One of the key underlying themes of these reforms is placing more reliance on the planning documents to avoid debating issues at the resource consent stage. The driver behind this is that if community decisions are made early on about what activities are appropriate and captured in the relevant plan, there should no need to revisit the issue for individual consent applications.
There are undoubtedly some areas where plans could be more directive to reduce the discretion available at the resource consent stage. However, for other issues, we consider that the discretion must be retained and fulfils a very important function.
It is simply not possible for plans to anticipate every activity within the district and provide complete certainty about whether or not such activities are appropriate. To require this level of detail in a plan would make them unworkably complex and is contrary to the simplification objectives that the Government is trying to achieve. In many cases, determining whether an activity is appropriate is only possible once the details of the activity are known and can be assessed against the particular facts that exist in that case. Making broad generalisations about anticipated activities runs the risk of allowing activities that are not appropriate and preventing activities that should be allowed to occur.
This issue aside, many of the reforms proposed represent sensible amendments that should help to simplify and streamline various processes under the RMA. As always, the devil remains in the detail and we will wait to see how these reform proposals translate into actual changes to the RMA when a new Amendment Bill is released later this year.
A copy of the Summary of Reform Proposals 2013 can be viewed at: http://www.mfe.govt.nz/publications/rma/resource-management-summary-reform-proposals.pdf
Posted on Wednesday 21st August, 2013 at 02:57 pm