Is the RMA broken?
Minister Smith considers that the Resource Management Act 1991 (RMA) is not working and has some fundamental flaws that require substantial overhaul. He contends the RMA is outdated and ill matched with the reality of the issues that it manages. So he has presented the Resource Legislation Amendment Bill 2015(the Bill) to Parliament.
The Bill has had its first reading and a select committee has heard many submissions on the Bill. The Committee was due to report back to the House on 6 September, but this date has now been pushed out until 11 November 2016.
Accompanying the Bill is a discussion document that sets out the Government’s reasons for further reform of the RMA, which are summarised as follows:
“…resource management processes are cumbersome, costly and time consuming, and that the system is uncertain, difficult to predict and highly litigious. The system seems to be difficult for many to understand and use, and is discouraging investment and innovation. The outcome is delivered under the RMA are failing to meet New Zealanders’ expectations.”
In this article I will consider whether the above criticisms are justified and discuss the impacts of the proposed changes if some of the key reforms within the Bill are adopted.
The Reform Package
The Bill is some 180 pages long comprising 40 changes contained in 235 clauses and eight schedules. The Bill proposes changes to the RMA, the Reserves Act, the Public Works Act, the Conservation Act, the Environmental Protection Authority Act, and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act.
Judged by size alone, the Bill proposes significant changes. Changes of this breadth are not amenable to sensible coverage in a single article so I am focusing on only some of the proposed changes to the RMA that I consider will have the biggest impact.
Is the need for change made out?
The first question I have considered is whether the Minister is correct when he describes the RMA as cumbersome, costly, time consuming, and highly litigious. Examining data can be a useful approach to help determine if these contentions are supportable.
A survey completed of local authorities during 2012/13 confirmed that of the 34,000 resource consents processed, 95% were non-notified, 97% were processed on time and only 0.27% of applications processed to a decision were declined.
Turning to plan changes, that same survey details 133 plan changes and notes that the average time frame for processing was 24 months. These timeframes had increased by 7 to 8 months compared to the previous survey covering 2010/11.
The current Environment Court workload as at 1 June 2016 is 347 active appeals nationwide. In 2006/2007 the Court had 919 appeals along with some 222 miscellaneous applications. So between 2006 and 2016 the Court has disposed of a significant number of proceedings and the number of fresh proceedings has significantly declined.
Based on the above, in my view the data supports the argument the RMA and its processes are in fact efficient. So taken at face value, the data does not support the proposition the RMA is cumbersome, costly, time consuming and highly litigious.
What really motivates the changes?
If the data is not supportive of change, the question becomes what really motivates these changes. In my view reasons for change can be linked to what the RMA is all about. Allocation of access to resources is often contentious with accompanying entrenched positions depending on what side of the argument you sit. Some want access to resources with limited constraints via an allocation process which is streamlined, meaning one that limits participation, potential opposition and judicial oversight that can cause delay and expense to projects. Others want limits on access and controls on the use of resources accompanied with full rights to have a say and judicial oversight by appeal.
Given the RMA processes allocate access to resources, it has an influence on the market and has therefore faced political pressure for change since its inception. Not surprisingly there is a link between the nature of the changes now being advanced and the political leanings of the Government of the day.
The RMA has been the centrepiece of our environmental legislation for 25 years. It commenced providing a one stop process for allocation of resource rights including extensive public participation opportunities accompanied with strong judicial oversight.
Both public participation and judicial oversight have faced change pressure since inception of the RMA with a clear trend of contraction for both evidenced in many amendments over time. This Bill not only continues that trend but in my view more than any other amending Bill before it will further and significantly reduce rights of public participation and access to justice and will severely test along standing principal of planning decision making that local people will make decisions on local issues.
Public Participation and Access to Justice
Additional reasons supporting the need to review public participation is found in the regulatory impact statement accompanying the Bill. The amendments are supported on the basis that the current scheme of broad public participation is somehow a negative as it “undermines the purpose of notification and seeking submissions, which is to give decision makers useful, focussed input”.
I do not understand how this outcome arises. What is however clear is that this stance is directly opposed to the basic concept of public participation, which is the cornerstone of RMA processes.
Many submissions on the Bill from interested parties raised very clear concerns to the select committee that many of the amendments proposed under the Bill either completely remove or significantly diminish public participation and rights of appeal. Submitters were critical that the removal or loss of those rights was not counterbalanced by benefits of new processes provided for under the Bill.
This Bill proposes reducing public participation and judicial oversight in a number of ways, as discussed below.
The well settled notification provisions of the RMA are up for change. The Bill contains a new step by step test for notification. This proposed change will inevitably lead to uncertainty and possible litigation.
The circumstances in which an application will be publicly notified under the Bill are more limited than under the existing section 95A. In addition, the circumstances in which an application may be limited notified and the persons to whom it may be notified are more restrictive than what currently exists.
As already noted there is a low percentage of applications currently notified so reducing scope for notification and thereby reducing public participation and consequent judicial oversight even further is questionable in terms of justification.
Limited appeal rights
The Bill includes special appeal rules excluding the ability to appeal in relation to boundary activities, subdivision, and residential activities on a single allotment.
These rules are promoted on the basis that property rights should be better recognised. Excluding appeals for these types of activities will certainly mean property owners as applicants will be free of the effects of unnecessary appeals on the one hand, but property owners as submitters will be excluded access to justice.
The Bill would enable consent authorities on hearing a resource consent to have the same powers to strike out submissions as the Environment Court has with some new additions. The Bill requires an authority conducting a hearing to strike out those submissions that do not have a sufficient factual basis or are not supported by evidence or are unrelated to the effects that were the reason for notifying the application.
Directions to strike out can be made at any time through the hearing process. In my view the decision-makers under the RMA will be called upon to exercise this new power because if a submission is struck out appeal rights are lost. Disappointed participants undoubtedly would resort to any available legal avenue to challenge decisions striking out submissions.
Up until now submitters do not face onerous obligations in relation to the submissions. The current constraints require a simple statement as to the nature of the concern accompanied with reasons. This is because the subsequent resource consent hearing process which follows submissions enables evidence to be produced in support of those primary submissions.
So when during the process does the decision maker decide there is a lack of evidence to support a submitter’s view? Would a lack of evidence be made out if the submitter brings forward their own personal views as compared to an expert’s view? These questions remain unanswered.
Another set of provisions give the Minister for the Environment new powers, including the ability to dictate the content of rules in regional and district plans via regulations.
In my opinion, the Minister’s new powers directly contradict the previous approach of local decisions being made by local people. These new powers given to the Minister would enable him or her to even change existing rules put in place following public participation and overview of the Environment Court. So access to justice is further reduced.
The proposed new streamlined planning process for plan reviews is another process that the Minister is able to control. How that control is to be exercised is not clearly spelt out within the Bill. What is clear however is the power exists to completely reject an outcome that has been arrived at following local people putting forward their views. The Minister may displace that outcome and the Bill provides no right of appeal arising from the Minister’s decision. This in my view both impacts upon public consultation and removes judicial oversight, further reducing access to justice.
I am far from convinced that the RMA is performing so poorly that the significant interventions proposed by the Bill are justified.
I acknowledge that I have only considered a very limited number of possible amendments. I have chosen to comment on these points because I think they have the most significant impact.
If these proposals are ultimately passed into law in the form that they are expressed in the Bill then public participatory rights will be severely curtailed as well and access to the Environment Court for considered expert and impartial review. Central Government through the Minister will have wide reaching powers in terms of determining content of district and regional plans. I do not think these interventions are justified nor do I think they are likely to improve the RMA. If passed they will create much uncertainty and would likely give rise to more litigation.
We will provide further commentary on this matter once the Bill passes into law.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.
Posted on Tuesday 11th October, 2016 at 03:58 pm