Improving our resource management system?
Following on from the Resource Management Reform Bill 2012, The Government has continued its programme of amendments to the Resource Management Act (RMA). The latest set of proposed reforms, outlined in a recent Government Discussion Document, represent the most significant programme of reforms since the RMA’s inception.
The Government has continually cited the RMA as a source of frustration and unnecessary cost, and that its processes can be long, cumbersome, and inefficient. To address these shortcomings, the Discussion Documents sets out six proposals that make up the proposed reform package.
This article does not attempt to cover all aspects of the proposed reform. Rather it focuses on the key features of three of these proposals, being greater national guidance, fewer plans, and a streamlined consenting system.
Greater national guidance
The Government considers that there is a need for stronger national guidance and tools that enable nationally significant issues to be addressed in a more consistent manner. It has therefore proposed changes to the principles of the RMA and extended the Government’s powers to intervene.
Section 6 & 7 principles
Sections 6 and 7 contain the guiding principles that apply to all decisions under the RMA and have remained largely unchanged since the RMA was introduced. Following on from a 2012 report by a Technical Advisory Group , it is proposed to combine sections 6 and 7 into one set of “principles” that decision makers must “recognise and provide for”. In addition, a new section 7 will be introduced requiring decision makers to adopt a number of methods that are considered to represent best practice.
The changes to the principles include introducing reference to the built environment, significant infrastructure, benefits of use and development of natural and physical resources, and managing the risks of natural hazards. In contrast to the TAG report, it is proposed that the references to “protect” and “preserve” generally be retained.
Whilst some have criticised TAG’s recommendations as favouring economic development over the environment, in many ways the new set of principles better reflects the balancing approach which already takes place in practice. To read more about these changes and their potential effect please see our earlier article on the TAG report here.
The Government has signalled that it wants to have a more active role in tackling nationally significant resource management issues, such as land supply for housing or natural hazard management. One proposal is that where the Government identifies an urgent need for a region, it could establish a streamlined process that would enable it to consult on a proposed rule for a limited period, and then advise on a final decision without going through the usual RMA process.
The Government has also proposed a process that enables it to identify an issue or outcome that it wants to be addressed in a council plan and inviting the council to set out how it has made provision for that outcome. If not satisfied the Government can direct a plan change and the matters to be considered by the authority. If this does not adequately address the outcome sought, the Government would have the ability to directly amend council plans, in matters that are deemed urgent or nationally or regionally significant.
These proposals are likely to be met with stiff opposition from some quarters, including local government bodies, as they place much greater power in the hands of central government.
The multitude and variability of plans has been identified as one of the major causes of the cost and complexity of the current system. The Government is therefore proposing steps to reduce the number of resource management plans currently in use across New Zealand’s regions and districts.
Single resource management plan template
It is proposed that all councils will have a single resource management plan per district within five years. It will be based on a nationally consistent template developed by central government, with district and regional councils responsible for developing their plan provisions, and inserting their sections into the single plan template.
The intention of these changes is not that only will all the rules for a district be located in a single plan, it will be easier to understand and compare plan provisions in districts throughout the country due to a higher level of consistency.
Joint plans with limited appeal rights
In a similar vein to the above, the proposed reforms contain a process for district and regional councils to jointly prepare a single integrated plan for each district or a larger area. This document would contain all of the objectives, policies and rules for the entire area, including those previously contained within a regional policy statement.
The sweetener for local authorities to undertake a joint plan process is that the plans would be heard before independent commissioners, with appeal rights limited to issues where the council deviates from the recommendations of the hearings panel. In addition, the Environment Court’s consideration of an appeal would also be narrowed to hearing appeals by way of rehearing rather than a de novo hearing, with limitations on presenting new evidence.
Under the current system, the Government considers that consenting requirements are out of proportion to the effects of the activities, resulting in increased time, cost and uncertainty for users. It is therefore promoting a range of amendments to the existing consenting regime to simplify the process and limit opportunities for participation and control.
A package of amendments are proposed to streamline the consent process for minor, uncontentious activities. This includes a 10-day time limit for straight-forward non notified consents, a process to allow for “approved exemptions” without consent for technical or minor rules breaches, and the use of Government regulations to specify which applications should be non-notified.
These measures are intended to speed up the process and reduce the cost for less complex projects that meet the existing tests for non-notification.
Limited participation and control
For notified applications, the Government is proposing measures to limit the issues that can be addressed by submissions, appeals and conditions of consent. It is proposed to restrict the scope of submissions and appeals to only the reasons why the application was notified and the effects related to those reasons. Similarly, local authorities would only be able to impose conditions that were directly related to the reason why consent was needed.
The rationale behind these changes is that there is often a clear and discrete reason why a consent is required or an application is notified. It is therefore considered appropriate that the debate should be focussed on that reason and not complicated by other issues.
Changes to appeals
Similar to the changes to plan appeals, the Government is considering limiting appeals on resource consents to a rehearing of the original decision, with limits on the presentation of new evidence. However, it does note that before doing so it would need to be satisfied that the rights of applicants and submitters would not be unreasonably affected by such a change.
As part of future work, the Government is also considering introducing a lower cost tribunal style resolution process for minor matters that provides an independent check on consenting authorities without the need to resort to the Environment Court.
Key themes and implications
The existing resource management system is characterised by decision making delegated to local authorities and wide opportunities for public participation. The proposed changes attempt to reverse this trend by providing greater central government control and limiting the ability to participate through submissions and appeals.
Some of the changes are likely to be welcomed by frequent users of the RMA, such as the proposals to reduce the number of plans and achieve greater consistency among districts and regions. The complexity and variety of plans throughout the country undoubtedly contributes to some of the frustration that exists about the usability of the RMA. However, there is likely to be a lengthy transition period while these new plans are prepared that may create some uncertainty.
The changes to the consenting process are generally favourable to applicants, particularly applicants that are frequently involved in small projects with minor effects. However, the proposed limitations on submissions and appeal rights could significantly restrict the ability of communities to comment on proposals, compared to the participation rights they currently enjoy.
In combination with the Government’s recent reforms to the Local Government Act, the proposed amendments continue to place further pressure on local authorities to lift their performance. Not only will they be required to prepare new plans and process consents within shorter timeframes, they are at risk of central government intervention if the Minister considers that a preferred outcome has not been achieved.
The overall effect of the proposed changes is widespread and will have positive and negative impacts on different users of the resource management system. The Discussion Document is currently open for submissions until Tuesday 2 April 2013. It is important that those with an interest take the opportunity to comment on the proposals before the changes make their way into an amendment bill later in the year.
A copy of the Discussion Document can be viewed here.
If you have any questions about any of the proposed changes or how they may affect you, please do not hesitate to contact any of the Adderley Head team.
Disclaimer: This is a brief summary for information purposes only and is not legal advice
Posted on Tuesday 5th March, 2013 at 02:09 pm