29, Mar, 2009

RMA Amendments and Submission Guide

Category: News

“Simplifying and Streamlining” Resource Management Amendment Bill, is bad news for the community and environment, despite the spin in its title. The Bill should be called the Resource Management (anti community and developer assistance) Bill, since its primary effects are to tilt the RMAs processes in favour of large projects and against communities.

Submissions on the Bill close with Parliament’s Local Government and Environment Select Committee on 3 April. We provide an analysis of the Bill and some of its major problems below.

The Bill is phase one of the National-Act’s RMA “reforms” which would be better termed “deforms”. Dr Nick Smith, Minister for the Environment, has been under considerable pressure from his Cabinet colleagues and National’s supporters, to savage the Act. So far Part II of the RMA, which provides the Purpose and Principles of the Act have remained intact, but there are hints that this may be tackled in Phase 2. A paper is to go to Cabinet on the terms of reference for Phase 2 at the end of March 2008.

The Government has presented no information on the environmental impacts of its proposals nor the impacts on communities.

The Government sees submitters including residents. local community groups and environment groups as holding up development and wants to the public out of the way of pet projects such as roads and other infrastructure. These RMA changes will fast track large developments and those who can pay for plan changes It will make little difference to smaller projects. This is similar to the controversial National Development Act which was repealed prior to the passage of the RMA.

The Bill strengthens the role of the Minister for the Environment and downgrades the role of the Minister of Conservation, particularly in relations to coastal management.

Additional Analyses

Analyses of the Bill and guides to writing submissions on the Bill can be found at ECO’s website, Forest and Bird’s site; the EDS site ; the Green’s site.

To make a submission

To make a submission, send your points to Select Committee Clerk, Local Government and Environment Select Committee, Parliament Building, Wellington. Phone: 04-817-9687 or Fax: 04-499-0486. If you can, provide two hard copies to the Committee and ask to be heard in support of your submission.

Submissions should be concise, clear and to the point, illustrated if effective with cases that have affected you, and if you can, suggest alternative wording. Present your submission in type, 1.5 or double spaced, with wide margins.

Members of Select Committee:

The Members of the Local Government and Environment Select Committee are:

Chairperson Chris Auchinvole, National Party, West Coast-Tasman; Steve Chadwick, Labour Party, List; David Garrett, ACT New Zealand, List; Shane Jones, Labour Party, List; Rahui Katene, Maori Party, Te Tai Tonga; Nikki Kaye, National Party, Auckland Central; Sue Kedgley, Green Party, List; Nanaia Mahuta, Labour Party, Hauraki-Waikato; Louise Upston, National Party, Taupo; Deputy-Chairperson Nicky Wagner, National Party, List; Jonathan Young, National Party, New Plymouth.

Key objectionable elements of the Bill which should not proceed are:

  1. Security of costs – this proposal would be a major barrier to environment and community groups and others raising legitimate issues. This change would empower a judge to require objectors to provide potentially tens or hundreds of thousands of dollars in a bond before they are allowed to embark on an appeal in the Environment Court. This provision ignores the fact that there is already the ability for the court to dismiss “frivelous and vexatious” objections (s279(4)). Amendment clause 133 which repeals section 284A of the Act should be deleted.
  2. The removal of the decision role of the Minister of Conservation in restricted coastal activities. The Minister of Conservation acts on behalf of the Crown as the “owner” in the coastal marine area. Currently the Minister is the final decision-maker for large projects or complex applications that are restricted coastal activities. Removal of this power will also prejudice any future iwi or hapu rights to protect the seabed and foreshore in coastal areas. The Bill removes this power and passes it to the regional council. To impove the curent process applicants should be asked to seek consent from the Minister of Conservation prior to having that matter resolved through the RMA processes. Clause 20 should be deleted.
  3. Limitation of appeals on policy statements and plans and the removal of cross-submissions. This severely undermines public participation and the development of robust policies and plans. This is an important avenue for people to work through policy statements and plans. Even councils are known to appeal their own decisions or support other appeals as a means of fixing mistakes in their decisions. The proposed amendments are shortsighted as most plan and policy appeals are resolved through mediation without going to a full hearing – this is a cost effective outcome. Full appeals have assisted resolving controversial issues, eg minimum river flows or subdivision controls. Amendment clauses 132 and 136 should be deleted.
  4. Elimination of Council duties to summarise and respond to submissions and to call for further submissions on resource plans and policies. The publicly stated rationale for this is to save time and to have Plans and Policies be finalised quickly, but the further or “cross-submission” process allows the community, individuals, businesses and others to indicate to the Council whether they support or oppose a proposal and points made in submission by others. This also enables councils to identify parties with which these issues should be further discussed.. This process and the summarising of submissions is an essential process for good plan and policy development. Amendment clause 148 should be deleted.
  5. The removal of the right of all interest groups and other parties to join appeals where they were not submitters in the first instance. The current provisions (s 274(1) and (2)) allow groups or businesses “representing a relevant aspect of the public interest” to join a case despite not being original submitters. This change will likely to mean those with a financial interest can join but environmental and community groups cannot. This provision has been used to allow community groups and business associations to join cases to add the rebustness of the process. Amendment clause 131 should be deleted.
  6. Removing the non-complying category of resource consents. This will lead to greater uncertainty for the environment as more activities get put in the lower “default” discretionary category. The non-complying category of resource consent fits between discretionary and prohibited in a hierarchy from permitted to prohibited. The purpose of the sequence of types was designed to provide potential applicants for consents with a set of signals that would indicate the likely acceptability of their proposals, and so save investment in projects that would be unlikely to get approval. The proposed removal of the non-complying category will reduce this signalling and will likely lead to less ability for councils to reject proposals and reduce the environmental constraints on an activity as councils rarely put activities in the prohibited category. It will also just add to the workload of council and the community with lots of cost and doubtful benefits of sorting out this change and amending plans. Amendment clauses 147 and 152 and the first schedule of the Bill should be deleted.
  7. Delaying the legal effect of proposed plan changes until a fnial decision is made thus placing the environment at risk. This change could make changes to vegetation control or coastal control rules in plans irrelevant as developers move quickly to get consents under the old rules and thus defeat the purpose of the change. It will induce other such pre-emptive behaviour. Amendment clauses 59 should be deleted
  8. Removal of the presumption the resource consents must be notified will mean even fewer consents are notified. The Bill proposes to remove the presumption in favour of notification (section 93) – already less than 5 percent of consent are notified. The Courts have used the presumption in favour of notifying to support notification of consents when councils have not notified significant decisions. The proposed changes in clause 68 gives local authorities powers to write non-notificaiton into Plans, and that in the case of proposed section 94AAC actually prohibit notification when effects are considered to be minor. This means the community will have no chance to participate in assessments of whether effects are minor or not, and councils can be prosecuted for notifying consents if it is found that the effects are in fact minor when a council judged them other wise. Amendment clause 68 should be deleted.
  9. The requirement that only effects beyond the immediate environment have to be considered when councils decide whether to notify resource consent applications. The test is for the notification requirements in proposed section 94AA (Clause 68 of the Bill) to not consider effects within the immediate environment of the activity. In para a) notification is only compulsory if there are effects “beyond the immediate environment” of the activity. Not only is this vague, it also puts at risk any biodiversity or historic values on the site itself. Thus if a subdivision or mine, say, were only to destroy rare species in the immediate environment of the subdivision or mine, the council, by this test, would not be required to publicly notify the resource consent. Similarly, loud noise ïn the “immediate environment” would not be a basis for notification. Clause 68 should be amended so that in proposed section 94AA(a) the words “beyond the immediate environment” are deleted.
  10. Removal of any generic urban tree protection rules. This provision does not just affect single urban trees on private or public land but also rules to protect trees on private land in gullies, riparian areas, and coastal areas in the urban environment. The urban environment is not defined and could be widely interpreted. If this clause was retained, councils would be buried in invidual applications to protect each tree. Amendment clauses 52 and 151 should be deleted.
  11. Removing the requirement to review district plans every 10 years. The argument put forward for this is that developing plans has taken a long time. In our view this is true but a spurious argument, since future plan reviews have existing plans to build on and will not be nearly as laborious as developing the first rounds. With changing conditions and pressures, and the increasing number of private plan change applications, plans need regular reviews and it is important for Councils to review their plan every 10 years especially as second or third generation plan are developed. Amendment clauses 54 should be deleted.
  12. Allowing the applicant to veto Councils seeking further information. An essential part of the RMA resource consent process is obtaining sufficient information to make good decisions, rather than making a fast decision which is a bad decision. While there is a requirement for an environmental assessment to be prepared, there is now to be no audit of that report which was previously required. The current provisions in the Act (section 92A(3)) allows councils to reject a proposal if “it has insufficient information to enable it to determine an application”. This provision is proposed to be deleted. This is another example of tilting decision making in favour of applicants and of increasing risk to the enviornment and community. Amendment clause 66 should be deleted.
  13. Applicant is the “process maker”. If you have a project which you consider is a proposal of national significance (echoes of the repugnant National Development Act here) and want a fast process and can pay, then you can ask the Environmental Protection Agency to recommend to the Minister to take the project direct to a Board of Inquiry. This skips the council process and the Environment Court. For a smaller project you can ask the Council to agree to go direct to the Environment Court (new sections 87C and 87D) or you can get the Environment Court to over-rule the Council’s opposition (new section 87E). The Bill encourages cheque book planning. This is not in the interests of the community or the environment. Delete amendment clause 93.
  14. Making National Environmental Standards (NES) the maximum standard rather than a national minimum. There are a range of changes which position the NESs as maximum standards rather than minimum standard that allow councils to set more stringent standards based on their individual circumstances. The Bill will make no improvement to the process by which these standards are made. This is weak compared to the development of National Policy Statements or rules under a plan in the First Schedule. Amendment clauses 39 and 40 (new section 44A) should be changed so that NESs are minimum standards.
Good things:
  1. Increase in the penalties to $300,000 for individuals and $600,000 for corporate bodies – but the increase still leaves fines at low levels when compared to the maximum penalties under the Commerce Act. Those are $5 million for bodies corporate and $500,000 for natural persons. (Support Clause 141 but call for stronger penalties).
  2. Providing power of the Environment Court to require a review of an offender’s resource consent by a council. (Support Clause 141).
  3. Allowing enforcement action to be taken against the Crown. This action is limited to only local councils and cannot be taken by other parties. That limitation should be removed (clause 5).
  4. Removing a Requiring Authority that is an applicant from the role of the final decision-maker. This is a major step forward and will stop roading, transmission and other companies from being both the applicant and the decision-maker. (Support clauses 110-112).
Other matters:
  1. The Bill includes reference to the Environmental Protection Agency but it is really only a name and in the first instance will be the head of the Ministry for the Environment, a position subject to direction of the Minister. The EPA should have no political direction in making decisions on whether a project is of national significance and in then establishing a Board of Inquiry to hear the application. These provisions should have been left to the phase II process to allow wider considerations of the role of the EPA. Clause 35 and associated provises should be tabled by the Committee for further consideration and not for passage in this Bill.
  2. There are a number of changes in the Bill which down-weigh the role of the Environment Court as a specialist body. Instead of a standing Court, hearing and assessing environmental issues from scratch hear by a judge and two expert commissioners, it will often be replaced by an ad hoc Board of Inquiry. This will generate a confusing two-track jurisprudence – one in the Environment Court and one in the Board of Inquiry process. It is unclear how conflicts will be resolved. This will leave a more tangled legal process and unclear precedence for the future.
  3. The direct referral of matters to the Environment Court (clause 59 - new sections 87C to 87E) or to a Board of Inquiry (clauses 91 and 93 new sections 140 to 150AA), designed to save time, will create clogging in the Environment Court as the problem solving and resolving role of Council hearings will be lost. These provisions should be deleted.
  4. The bulk of “appeals” to the Enviornment Court at present are really only designed as credible threats as a precondition to successful court-ordered mediation. Most such appeals never in fact reach the Environment Court at all. The mediation process is only available via the appeals process and it is in mediation that most äppeals are resolved. The direct referral of cases to the Environment Court or Board of Inquiry will not only clog those bodies and “burn off” community participation, they will also deprive the parties of mediated outcomes which often deliver much lower cost and better crafted outcomes than court hearings. The role of the Environment Court as a successful mediator will be blocked by direct referral and also by limitations on appeals on plans and policies.
More detailed comments:
  1. Time taken is overstated

    The Minister for the Environment, Nick Smith, has made a great claim about delays for large projects under the RMA but it he right.

    All the projects that the Minister mentions were controversial and all controversial projects are likely to take more time than run of the mill projects.

    Among the projects the Minister has highlighted was the Wellington inner-city bypass. The Minister claimed the RMA process took 15 years but the information on the Transit NZ website tells a different story. A designation under the Resource Management Act was applied for in April 1996. The Resource Consent process, including appeals, was completed by May 1999. The RMA process (including appeals to the Environment Court) took 3 years and not the 15 years claimed by the Minister.

    Claims are made that the Young-Cooper study for the Ministry for the Environment shows that roading projects take on average 5 years. This is a product of sloppy research. Young-Cooper makes that claim but the body of her research paper does not support that statistic which apparently came from a developer with no evidence cited to back it. The average time taken for roading projects undertaken in 2003 (see Young- Cooper 2003, table 1) showed that all the projects took less than3 years to pass through the RMA resource consent processes:

    • ALPURT B2 (Albany to Puhoi Realignment): 20 months (including appeal)
    • Auckland Grafton Gully 3 months
    • Project PJK Northern Arterial - Tauranga - 11 months (including appeal)
    • Wellington Inner City Bypass - 15 months plus appeal

    It is clear that the Minister has been badly advised on delays which are more urban myth than fact.

  2. Crown gives up on coastal management

    Coastal management is different from land managment. The Minister of Conservation acts on behalf of the Crown interest in the coastal marine area as the defacto landowner.

    Unlike land management there is no requirement land owner consent to mineral activity under the Crown Minerals Act, that consent is incorporated in to the resource consent under the RMA.

    The Minister makes the final decision on a limited number of major activities which meet the test of restricted coastal activities under the New Zealand Coastal Policy Statement. This provision has enabled the Minister to reduce the term of untreated sewage discharges into the sea.

    The Government’s proposal is to remove the Minister’s approval requirement and to pass that to the Regional Council without adding any other landowner consent provision (eg to the Crown Minerals Act) for coastal matters. This is anti-conservation but also will prejudice any future iwi rights to refuse consent in the coastal area. Regional Councils also do not have the Crown’s obligation to sort out Treaty of Waitangi claims which are important issue to consider in the coastal marine area.

    The Government should not proceed with this provision while there is a review of the Foreshore and Seabed Act.

  3. Urban Trees protection to get the axe

    The ability of councils to protect urban trees and habitats in urban areas is proposed to be severely curtailed by the provisions of the Bill.

    The Government has followed through on the Technical Advisory Group recommendations to stop councils making generic rules on trees.

    These general tree provisions protect not only individual trees but also safeguards groups of trees (ie forests, bush or shrublands) in an urban environment. This could include trees protecting riparian areas, coastal areas and other remnant vegetation of what is left of an ecological area. This proposal then undermines Part II of the Act to protect significant indigenous vegetation and outstanding natural features and landscapes, both of which can exist in urban areas.

    Imagine trying to schedule every tree that is found in a gully or coastal area under a district plan. Councils have generally found it easier to have generic rules in a plan rather than a bureacratic nightmare of identifying every tree.

    The Bill also fails to recognise the amenity values and values associated with urban trees. ECO doubts New Zealanders want to see urban areas turned into concrete jungles.

  4. Increase in RMA charges

    In addition to the changes to the RMA, the Government is proposing to drastically increase the charges to taking an appeal under the Act. The Minister has indicated that appeal lodgement charges will be increased to $500. This is an increase of nearly 1000 percent over the current costs for appeals on plan, policies or resource consents which now cost $55. The Minister can implement this increase with a change in regulations without changing the Act.

    These court fee increases are another barrier to public participation and good policy and plan making.

  5. Draconian Trade Competitor rules

    The proposed rules to deal with Trade Competitors are lop-sided and could result in community groups being prosecuted for innocent mistakes, for instance if they happen to have a member who is a trade competitor of the applicant for a resource consent.

    The provisions (clause 139) allow action to be taken up to 10 years after the contravention. This is much wider than the 6 months allowed after an offence is known under section 338 of the Act.

    This action can not only be taken against a competing business but any organisations or person supported by that competing business. Proceedings can be taken for damages which is much greater than the penalties that can be imposed under the Act for polluters and destroyers of the environment.

    The provision requires any group to before a case, disclose whether they “have received, is receiving or may receive direct or indirect help from” a trade competitor. This provision is so broad that it may require groups to advise the Court of any donation or potential future donation from any possible trade competitor now or for at least ten years in the future. This is unworkable and absurd, particularly since community groups often have membership turnovers over a decade, and because of the massive load it places on community groups.

    It also prevents the trade competitor from directly or indirectly helping another group or person. So in cases when the trade competitor has the experts or information that may prove the environmental effects of a project, then you cannot use them.

    Notice that the provision does not apply to the applicant – they can use as many inducements and other resources as they like to get supporting submissions on their application. There are no provisions in the Bill to stamp out the outrageous and increasingly prevalent practice of councils paying applicants for resource consents.

    These provisions need to be rethought or deleted from the Bill because they are unworkable and breach normal justice requirements of fairness and balance.