News / Blog
March 2013
Resource Management Act 1991 Proposed Reforms - March 2013 - Tue, 19 March 2013
Ministry of the Environment - Improving our Resource Management System: A Discussion Document
On February 28 the Ministry of the Environment (the Ministry) released a document discussing a number of proposals on ways to improve the resource management system in New Zealand. The Ministry stated that the current resource management system is effective in that it often gets the right result in regards to resource management. However, its processes tends to be complex, long and expensive for both individuals and public bodies. A major concern for the Ministry is that the system has “failed to provide for the kind of clarity or predictability that is necessary to foster investment certainty, and appears to be discouraging both strategic planning and innovation” (at 9).
The discussion document sits at the base of a second stage of Governments reforms of the resource management system. The purpose of which is to streamline and simplify the system. The first set of reforms delivered a number of improvements such as establishing the EPA and a national consenting regime, increased penalties for non-compliance and for delays in consent processing and creating incentives to prevent anti-competitive behaviour. The second stage of reforms will target some of the more complex challenges that exist in the resource management system. The Ministry hopes that this second stage of reforms will be implemented though a Government Bill in late 2013.
The underlying problems of the resource management system
The document discussed a number of underlying problems with the resource management system that the second stage reforms will attempt to tackle. These included:
The complexity and the cost of the current planning system
New Zealand has 78 Local authorities with 170 resource management planning documents that cover 2272 different zones. The Ministry stated that the sheer number of plans and the breadth of their content makes New Zealand’s resource management system overly complicated and difficult for New Zealanders to engage, understand and comply with. Time is also a major issue and in some years consents and plan changes taking years to confirm.
The fact that the resource management system does not reflect up-to-date values
The Ministry has been advised that New Zealand’s resource management system does not do well enough in reflecting the current values and priorities of the people of New Zealand. Sections 6 and 7 of the Resource Management Act 1991 (RMA) contains the principles and the objectives of New Zealand’s resource management system. It has been noted that these sections do not include nationally significant matters such as natural hazards, urban design and related housing affordability issues. Aside from the RMA, guidance on national values and priorities can also be found in national policy statements (NPS’s) and national environment standards (NES’s). However, these NPS’s and NES’s take years to put together and there is no clear trigger for when such a statement should be developed or updated.
Tensions between different community groups are not resolved upfront
A 2008 survey showed that 90 per cent of all RMA plans were appealed to the Environment Court and between 2006 and 2011 there were on average 304 plan appeals each year. The ability for stake holders to appeal easily has the potential to encourage them to rely on appeals rather than engaging effectively during earlier steps in the process. This adds significant time and cost to the resource management planning and consent process.
Insufficiently proactive and integrated planning for future needs eg, housing
The RMA currently focuses largely on managing the negative effects of resource use with little focus on promoting and retaining positive effects. The Ministry believes that the RMA needs to be amended to enable councils to make effective decisions based on obtaining future positive effects. For instance the price of housing is currently increasing at a rate that far exceeds rises in income. The current level of housing construction is less than 15,000 units per year while the available projections show that between 20,000 and 23,000 units of housing are required per year across New Zealand for the next 5 years. The Ministry believes that New Zealand needs processes to tackle these issues head on rather than addressing them one resource consent at a time.
Lack of consistent service culture
Consent conditions and processes can vary between different councils. This makes the process very uncertain for clients and can lead to the situation where different conditions, cost and timeframes are applied for different resource consents without reason.
Learning the lessons of Christchurch: managing hazards
The Canterbury Earthquakes Royal Commission of Inquiry stated that both local and central Government could do a better job to manage the risks of natural hazards. Managing hazards is not prioritised in the RMA. As a result New Zealand is not adequately prepared for the many different natural hazards of which New Zealand is at risk.
The Proposed reform
The third chapter of the discussion document covers a number of reforms of the resource management system that the Ministry proposed to put in place by the end of 2013. The Ministry stated that “[t]he overall objective for these proposed resource management reforms is to increase ease of use, certainty and predictability of the system while reducing costs and protecting the quality of resource management outcomes.”(at 32). The proposal package contains 6 sets of policy proposals.
Proposal 1: Greater National consistency and guidance
The Ministry believes that greater national guidance should be put in place in the area of resource management. In order to do this it believes that tools need to be created that will enable nationally significant issues to be properly dealt with in resource management planning. The ministry believes that the Government should take the following action, amend the objectives and policies contained in the RMA to allow nationally significant matters to be given greater weight in decision making, implement a criteria to guide he Government in its use of national tools, extend and clarify the Central Governments powers to direct plan changes and give the Central Government the ability to target specific districts or regions where there are particular resource management issues, rather than requiring a national approach.
Proposal 2: Fewer resource management plans
The Ministry suggests that a single resource management plan should be adopted that uses a national template and standard term and conditions. This would mean that users of planning information could find all the information that they need in one place. When developing this single resource management plan the Central Government will have an obligation to plan positively for future needs such as land supply. The Ministry also proposes that the ability for groups to appeal resource management plans to the Environment Court should be narrowed and the Environment Court process should be sped up. This will limit the large amounts of appeals that are currently going through the system and reduce the cost involved in this process.
Proposal 3: More efficient and effective consenting
The Ministry also proposes to implement a new ten working day time limit for straight forward, non-notified consents and to put in place a new process to allow consent applications to receive an approval exemption where there are minor rule breaks that are merely technical. The Ministry intends to increase the number of consents that will be non- notified, limit the scope of conditions that can be placed on resource consents and limit the scope of submissions and third party appeals that can be made on notified applications. The Ministry also seeks to narrow the scope of the Environment Court appeals on plans to an appeal by way of rehearing. A number of other strategies to improve the efficiency and effectiveness of the consenting process where also proposed in this section.
Proposal 4: Better Natural hazard management
The Ministry proposes that New Zealand must learn the lesson from the Canterbury earth quake. It proposes that that the principles of the RMA should be extended to encompass matters relating to natural hazards. Changes should also be made to consent requirements so that natural hazards are properly considered in subdivision and other land consent decisions.
Proposal 5: Effective and meaningful iwi/Maori participation
The Ministry proposes that the reforms will include requirements for council to form arrangements for iwi/Maori to have an opportunity to provide comprehensive advice during the development resource management planning. This advice will be given statutory weight. The Ministry also proposes to create requirements that Iwi are consulted on the development of NES’s and to improve participation tools for Maori.
Proposal 6: Working with councils to improve practice
The Ministry intends to use the reforms to improve council’s accountability measures. The hope is that such an improvement in this area will promote a higher level of performance within the local government. The proposals include providing councils with greater clarity on expectations and greater explanations of how their performance will be measured, putting a national monitoring system is to be put into place and including these expectations and measures in the RMA to ensure that they are transparent and systematic.
Conclusion
Overall, the Ministry accepts “resource management decisions are often made in a context of uncertain information and changing or conflicting values. It is unlikely there will be a single correct solution to any particular resource management question”. However, it believes that “the framework these decisions are made under needs to be as clear robust, transparent and usable as possible.” (at 16). The Ministry expects that proposed reforms that are covered in the discussion document will have such an effect and will achieve positive outcomes for all parties involved in the resource management system.
Submissions
The Ministry hopes for its proposals to be put into place as quickly as possible and for the majority of the proposed changes to be introduced to Parliament through a Bill by the end of 2013. However, before this takes place the Ministry will consider public submissions on the issues. Anyone can make a submission and they are due on Tuesday 2 April 2013 at 5pm. The proposed reforms are significant so if you think that they will affect you, you might want to consider making a submission.
Please refer to Chapter 4 of the discussion document for guidelines on making a submission. The discussion document can be found at: http://www.mfe.govt.nz/publications/rma/improving-our-resource-management-system.html
If you require any further information on the discussion document or how any changes proposed might impact on you please do not hesitate to contact us at GTODD LAW. We are Resource Management Law specialists. Graeme has practiced in this area of law for in excess of 30 years.
We can be contacted by phone on 0064 3 4412743 or 0064 274330457 or on graeme@gtoddlaw.com or katharine@gtoddlaw.com
Resource Management Law Update - Thu, 7 March 2013
As Queenstown Resource Management Law specialists we at GTODD Law have had a hectic start to 2013.
The Minister to the Environment, the Honourable Amy Adams has recently released a discussion paper on proposed significant amendments to the Resource Management Act. Submissions in respect of the proposed changes have been requested by early April 2013. A number of my clients are seeking advice in respect to the implications of the changes and it will also be interesting to note whether local and regional Councils, such as the Queenstown Lakes District Council, will continue in light of the proposed changes, with notification of its proposed review of the District Plan due for release in October of this year.
We have had a particularly busy hearing schedule representing clients in respect of various matters.
First up we appeared on behalf of a submitter who was concerned that the New Zealand Transport Authority (“NZTA”) had not properly discharged its statutory obligations in its consideration of alternatives when seeking a designation for the proposed new bridge spanning the Kawarau River at the southern entrance to Queenstown. In particular we argued that NZTA had not given consideration to all alternative means of giving effect to the designation.
We then spent four days before the High Court which was sitting in Queenstown to hear the appeals against the decisions granted by the Environment Court in 2012 for our client’s proposed Mitre 10 MEGA and the proposed neighbouring Pak ‘N Save supermarket at Frankton. If that hearing was not complicated enough with some unique legal arguments, on the morning of the first day of the hearing, Judge Borthwick’s division of the Environment Court released its 280 page interim (or what we soon started referring to as an “interim interim”) decision on appeals relating to Plan Change 19 to the Queenstown Lakes District Council’s District Plan. The two proceedings were inter-related given that the proposed Mitre 10 MEGA and Pak ‘N Save are to be located on land proposed to be re-zoned in Plan Change 19 and one of the arguments before the High Court was that the Environment Court hearing the resource consent appeals should not have proceeded with the hearing given that the decision on higher order matters relating to Plan Change 19 was to be released soon after the date of the proposed hearings. A related argument was that the proposed Mitre 10 MEGA and Pak ‘N Save should not have been granted consent on the land for which they are proposed given that that land was proposed to be zoned predominantly for industrial use in terms of Plan Change 19. As we were able to point out to the High Court the subsequent decision of the Environment Court on Plan Change 19 actually recommended more land be zoned industrial than what was originally proposed and therefore the arguments that we were taking up, what might otherwise be a scarce resource with retail developments, was a non-starter.
The High Court has reserved its decision on the appeals and in the meantime two appeals have already been filed against the Plan Change 19 interim decision which will ensure completion of the hearings on Plan Change 19 will now be some years away.
Generally instructions for us to act on or give opinions in respect of resource management matters continue to roll in. We have four hearings scheduled in the next month either for rural subdivisions in the Queenstown Lakes District or in one case to appear in support of the first application for a dairy farm conversion in Southland under the new Environment Southland nutrient loading rules which means that all applications for dairy farm conversions in Southland now require resource consent.
In addition we have given opinions in the last month about the options of referring a large application for resource consent direct to the Environment Court and in terms of whether a local authority has acted lawfully in suggesting my client has not done enough to justify a decision to extend a resource consent that would otherwise lapse pursuant to Section 125 of the Act.
Speaking of direct referrals to the Environment Court, we have in the past couple of weeks given preliminary advice on a claim received from the Registrar of the Environment Court for a large sum of costs being the Court’s full costs of receiving, hearing and determining direct referral applications. Clearly the ability for the Court, and possibly the local authorities, to claim costs in respect of such process is a factor which needs to be taken into consideration when electing whether to make application to have matters referred directly to the Court.
We have also been involved in the last week in advising a client in respect of the contractual implications of implementing a $1M ecological restoration project involving the preparation of the site and the supply, planting and maintenance of the native planting. The project was offered by way of environmental compensation in consideration of our client receiving resource consent for a rural residential development in an area classified as an Outstanding Natural Landscape within the Wakatipu Basin.
It was also particularly pleasing to last week attend the official opening of our client, Devon Dairy Farms Limited’s large dairy farm operation at Lake Hawea, near Wanaka. This is the first dairy farm conversion in the Queenstown Lakes District and, if fully implemented, will result in a number of dairying units requiring in excess of 50 resource consents.
Finally, we are pleased to be co-sponsoring a Rural Resource Management Issues Forum to be held in Wanaka next week. A large number of rural landowners are expected to be in attendance along with the Mayor, Chief Executive Officer, politicians and staff of the Queenstown Lakes District Council.
Should you, your clients or associates require any advice on resource management issues either in the Queenstown Lakes or in other areas throughout New Zealand, you should not hesitate to contact us on 03 441 2743 or Mobile 0274 330457 or email at graeme@gtoddlaw.com Also don’t forget to follow us on Facebook at GTODD Law.