The RMA - Protecting Our Clean, Green Image
The Government is intending to pass an amendment to the Resource Management Act that will severely reduce the quality of environmental decision-making, says Forest and Bird.
The Resource Management Amendment Bill will reduce public participation in important environmental decisions. If the new limited notification process is introduced, it will mean that only those who are financially affected, including "nuisance-neighbours" and trade-competitors, will be able to take part in the decision-making process, while people representing the public interest will have no say.
"Public participation is the cornerstone of a democratic society," says Kate Mitcalfe, Forest and Bird's environmental lawyer. "Submitters provide alternative information to that of the applicant in the resource consent process. It is essential that communities have a say about what affects their environment, they often have vital knowledge that consultants and developers lack."
The business lobby is arguing that reducing public participation will cut costs to business. However, improvements to the implementation of the RMA by councils and an increase in central government leadership would improve RMA processes and environmental outcomes.
Already the vast majority of resource consent applications are considered without any opportunity for public input. "On average, a staggering 95% of resource consent applications are processed on a non-notified basis and decisions are based solely on information provided by the applicant. The failure of councils to notify resource consent applications means that significant natural areas are destroyed without any public input; for example, the clearfelling 100ha of pristine native forest in the Catlins."
A recent OECD Report shows that the average compliance costs for NZ businesses is lower than that of businesses in any of the ten other countries surveyed and the cost to comply with the RMA is lower than the cost to comply with our tax or employment laws.
The Business community wants the benefits of a clean, green image but do not want to take the steps needed to make it a reality. The Ministry for the Environment estimates that our clean green image is worth billions of dollars each year to exporters and the tourism industry.
"The Government's proposal will undermine any opportunity for the RMA to work effectively, unless the public interest is taken into account. It will lead to ad hoc development at the cost of clean air, land and water, public health and enjoyment, and the significant revenue generated as a result of the quality of our environment."
Public participation ensures that all relevant information can be made available and properly balanced, creating fair and sustainable decisions. It is essential that the interests of the community and the environment be considered alongside those with financial interests.
The RMA replaced over 50 statutes that dealt with different aspects of environmental management so all the effects of a proposed activity could be considered together. The RMA is world-leading in this respect and is frequently used as a guide for other countries considering environmental law reform.
Under the RMA, district and regional councils are responsible for making most environmental decisions.
The purpose of the RMA is to promote sustainable management by "avoiding, remedying or mitigating" the adverse effects of proposed activities on the environment. This does not mean that there should be no development or that all natural areas should be protected. To the contrary, this generally means there should be a process, the resource consent process, to consider the effects of proposed developments on our environment and our community.
On average, only 5% of resource consent applications are currently publicly notified, allowing any opportunity for public comment. In addition, more than 99% of all resource consent applications was granted last year and only 1% of applications were appealed. The level of notification under the RMA is less than half that which occurred under the Town and Country Planning Act 1977, the planning legislation that preceded it.
EXAMPLES OF NON-NOTIFIED APPLICATIONS
* A non-notified resource consent for a flockmud landfill at Waipu, south of Whangarei. Monitoring by Northland Regional Council has detected toxic waste in the landfill. Had the application been notified, local residents would have been able to voice their concerns, and the contamination would have been avoided.
* A non-notified coastal permit issued by the Wellington Regional Council to farm the alien invasive seaweed Undaria in Wellington harbour. Yet, considerable resources have been directed to trying to eradicate Undaria from other parts of the country such as Stewart Island and Bluff.
* Various burning permits in the Canterbury and Otago Regional Council areas, despite impacting on identified significant natural areas.
* Timberlands consent to log in Orikaka forest (Buller District Council), an outstanding area of native forest.
* Subdivision of a coastal block at Thompson's Point on Waiheke Island, which began illegally without a resource consent. Part of the works was in a wetland area where earthworks are not permitted under the District Plan. The earthworks are visible from public places and from the sea. The applicant then applied for retrospective non-notified resource, which has subsequently been approved by the council.
* Onetangi landfill, Waiheke Island - The applicant applied for consent to construct bunding and backfill with clean fill. The earthworks were adjacent to a public reserve and in the centre of Onetangi Village. The reserve is largely flat low-lying wetland.
* Non-notification of an application by Fletcher Challenge Energy to carry out seismic surveys (New Plymouth District Council). The surveys had significant adverse effects on the local community. Drilling also encroached into Maori burial grounds.
* Non-notification of new 42 dwelling subdivision development in Chartwell, Christchurch.
* Non-notification of multi-storey apartment development, Kelburn Parade, Wellington. Development had significant adverse and ongoing effects on neighbours. The recent Assignment programme covered this application.
* Non-notification of a consent to clear-fell 100 ha in the Catlins granted by Clutha District Council.
COSTS OF THE RMA
It is not uncommon to hear claims that the RMA creates 'unnecessary costs, delays, and uncertainties', but how much is environmental management really costing us?
A recent OECD Report (Businesses' Views on Red Tape: Administrative and Regulatory Burdens on Small and Medium-Sized Enterprises (2001) OECD) shows that New Zealand businesses require fewer resource consents under the RMA, than the number of permits required under environmental legislation in most of the ten other countries surveyed. The Report shows that it costs New Zealand businesses significantly less to comply with the RMA, than the cost to comply with our tax and employment legislation. It estimates that 42% of our businesses' compliance costs come from meeting the requirements of tax legislation, 32% from employment legislation and only 25% from meeting environmental standards. Further, the overall compliance costs for New Zealand businesses are substantially below the average compliance costs for the OECD countries surveyed in the Report.
The RMA, by its nature, is weighted in favour of developers and against community groups. Developers have better access to information, funding, scientific expertise, and legal representation, while community groups are usually under-resourced and unable to participate. Participating at the Environment Court level also exposes community groups to the risk of having costs awarded against them. After losing their case, legal costs of nearly $27,000 were awarded against the Save the Sounds - Stop the Wash group, which had sought to reduce the speed of the fast ferries to address environmental and safety issues (Marlborough District Council v New Zealand Rail Limited 1 NZED 60). The Marlborough District Council has since passed bylaws to reduce ferry speed.
Claims that "vexatious" submitters hold up development are used as an argument to reduce public participation. However, few members of the community have the time or energy to participate in the RMA planning process - if they manage to hear about and understand a proposal, writing a submission can still be a daunting prospect (let alone appearing before a council hearing committee). The RMA devolves responsibility for the environmental public interest to communities but there is little support for those that participate to ensure that councils properly consider the environment.
Complaints about the costs associated with the RMA are usually uninformed and without foundation. The RMA provides an opportunity to safeguard our environment for future generations - reducing public participation may reduce costs to the developer, but at what cost to the community and the environment?
COURTS SUPPORT PUBLIC PARTICIPATION
The courts have endorsed public participation in environmental decision-making. The Environment Court in Minister of Conservation v Southland District Council (A039/01) held that "the process of deciding whether resource consents should be granted or refused is more complete, and leads to better decisions, when others have the opportunity to make submissions." The High Court in Murray v Whakatane District Council (2 NZED 557) held that the broad right of public participation in environmental decision-making is "based upon a statutory judgment that decisions about resource management are best made if informed by a participative process in which matters of legitimate concern under the Act can be ventilated."
Conservation Assistant Royal Forest and Bird Protection Society of NZ Inc PO Box 631 Wellington
Contact: Kate Mitcalfe, Environmental Lawyer phone 04 385 7374 or Barry Weeber, Senior Researcher phone 04 385 7374, 025 622 7369