Is faster better? A review of recent fast track processes under the RMA
The RMA has long been identified as a source of delay and frustration. Labelled by some as unnecessary bureaucratic red tape, there have been numerous changes made to the RMA over the years to try and remedy some of its perceived shortcomings.
A recurring theme of the current government’s reform programme has been to simplify and streamline resource management processes. This has included amendments to the RMA itself, as well as the adoption of new fast track processes in various regions and districts throughout the country.
Nowhere have these changes been more acutely felt than in Canterbury. In a post-earthquake environment, the need for streamlined processes has assumed elevated importance to ensure that recovery efforts are not delayed. This has resulted in fast track processes for a large number of different planning documents, which are significantly different from the more comprehensive processes that have occurred in the past.
This article provides an overview of some the key features of these fast track processes and discusses the potential consequences of this approach. Although the motivations for such processes are readily apparent, the implications of adopting such an approach for both the extent of public participation and the quality of decision-making should not be overlooked.
What is a fast track process?
One area where fast track processes have been adopted in Canterbury in recent years is in relation to the various earthquake recovery plans, such as the Christchurch Central Recovery Plan (aka ‘the Blueprint’) and the Land Use Recovery Plan. Some key features of these processes have been:
- Reliance on informal consultation before the statutory process begins, such as the “share an idea” campaign for the Blueprint.
- Providing the usual ability for interested persons to make written submissions on the draft document when notified
- Either no hearing or a truncated hearing with limited time available to attend and present a case in support of a submission
- Final decisions made by the Minister rather than the local authorities
- Removal of the usual appeal rights after a decision is made
Another fast track process that is currently occurring is for the Proposed Christchurch Replacement District Plan. This is similar to the process adopted for the Auckland Unitary Plan and involves submission and hearings before an independent panel made up of current and retired judges and other experienced commissioners.
The process itself involves a range of procedural steps that are more commonly associated with a Court setting, including pre-hearing meetings, mediations, expert conferencing, pre-circulation of evidence and cross-examination of witnesses.
How does this affect public participation?
The content of planning documents is very important as it sets the framework for future resource management decisions in the affected region or district. The significance of plans is only likely to increase with further changes to the RMA likely in the near future that require plans to be more directive and reduce the ability for debate at the resource consent stage. It is therefore important that those people that will be affected by the planning documents have a full and meaningful opportunity to comment.
Fast track processes do retain the ability for the general public to participate and express their views. However, the extent and nature of this participation is undoubtedly reduced compared to the usual processes under the RMA. For example, the lack of a proper hearing for some of the recovery plans compromised the ability of people to speak to their concerns in person, which can be a critical component of ensuring that the message is clearly communicated to the decision maker.
In relation to the process for the Proposed District Plan, it could be argued that this process is actually more comprehensive than what would usually occur by providing a full hearing before independent commissioners. However, one concern with this approach is that it inevitably increases the formality and complexity of process. For the everyday person, the prospect of participating in that process can be daunting, potentially preventing people from making comment compared to a more informal Council process. In addition, the process is often quite fragmented with attendance required on multiple different occasions, even if a submission only relates to a single issue. The cost and time required to effectively participate can therefore quickly escalate, creating a further barrier to involvement in the process.
Does it result in better decisions?
In addition to the issue of public participation, a critical consideration when evaluating the merits of fast track processes is whether they ultimately lead to better decisions. There is little point in getting through a process quickly if the consequence of such haste is that the quality of the final plan is compromised. This will only create difficulties and unintended outcomes further down the track.
It is difficult to reach any firm conclusions on this point, as ultimately the quality of a particular decision will be closely influenced by the nature of the submissions and evidence that are presented and the approach that is adopted by the appointed decisions makers when making their decision. However, we make the following observations based on our experiences with these processes to date.
In terms of the quality and nature of submissions and evidence, informal consultation prior to notification generally attracts a reasonable amount of public input, as such input can be provided at low cost and with limited formal requirements. However, once a plan enters a fast track hearing process, it tends to become dominated by those submitters that have the resources to keep up with the process and participate to the extent that is required. This creates the risk that the decision maker’s considerations may be skewed in favour of those submitters, potentially at the expense of other interested parties.
In relation to the approach of the decision makers themselves, appointment of an independent panel of commissioners does ensure that those persons are well qualified and experienced to be making decisions in the RMA context. However, they may lack the local perspective that can often be held by appointed representatives. The approach of the decision makers will also be influenced by the challenging time constraints under which they are operating, which can lead to processes that are less than ideal for all involved to ensure that a specified deadline is met.
Finally, a common theme of all of these processes to date has been a lack of appeal rights to the Environment Court. Some may see this as a good thing, as appeals to the Environment Court will inevitably add further time to the process. However, the right to appeal the decision on its merits provides an important check and balance on decision making and can significantly enhance the quality of the final plan that is approved.
In many respects, it seems that Canterbury is being used as a guinea pig to trial a number of new plan review processes and approaches under the RMA. However, our expectation is that if these approaches produce the desired results from the government’s perspective, they may well be rolled out throughout the country.
Few would argue that processes for the development of some plans have gone on for too long, creating uncertainty for all involved. However, one of the reasons for the length of time required is that the issues involved with managing activities in a district or region are varied, complex, and directly impact on private property rights. There are a number of different perspectives and interests that need to be taken into account to ensure that the decisions are appropriate and will result in sustainable long term outcomes.
In this context, reducing the length of time that these processes take should not be seen as the ultimate goal. If this aim is pursued in isolation, there is a real risk that the quality of the decisions will be compromised and that plans will be created that do not reflect the aspirations of the community that they affect.
Certain aspects of a fast track process have merit, including greater emphasis on pre-notification consultation and the use of pre-hearing meetings or mediations to resolve and refine issues. However, other aspects such as a formal one stop process with no appeal rights to the Environment Court are much more contentious. Although this one stop approach may be appropriate in a post-earthquake environment, the same justification does not exist in ‘normal’ circumstances. In our view, adopting such an approach across the board would undermine the value of public participation and the quality of the decisions that result.
Disclaimer: Please note that this is a brief summary for information purposes only and is not legal advice
Posted on Wednesday 8th July, 2015 at 04:41 pm