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3 Alternatives to the Status Quo

3.1 Introduction and summary

The Ministry for the Environment has considered and evaluated a range of alternative options for addressing the problem identified with the status quo.

The alternatives considered were:

  • amending the RMA to elevate the importance of renewable electricity generation into section 6 of the Act

  • amending section 166 of the RMA to include electricity generators, thereby enabling them to issue notices of requirement for designations

  • identifying a specific threshold above which the Minister will call in all renewable electricity generation proposals

  • preparing a national environmental standard

  • using non-statutory guidance

  • relying on submissions made by the Minister for the Environment solely or on behalf of the Crown

  • preparing a national policy statement for renewable electricity generation.

A summary of the evaluation of each alternative is provided in Table 5.

Table 5: Summary evaluation of alternatives for addressing the problem identified with the status quo

Table 6:Evaluation of the Objective
Alternative to the status quo Effect on renewable electricity generation Main strength Main weakness
Amend RMA Immediate and significant effect in support of renewable electricity generation. Clear and directive. May encourage development at the expense of the natural and physical environment.
Ministerial call-in above specific threshold Would provide a clear and consistent consent path for large-scale developers. Clear and likely to promote consistency in decision-making. Decisions will still be made within the existing status quo.
National environmental standard Would provide certainty as to the footprint of effects developers should expect. Consistent parameters of effects. Slow and difficult to build support for a nationally set standard.  Could be subject to challenge on the basis of site-specific information.
Non-statutory guidance May help upskill council processing officers. Can help increase consistency of implementation. Has no statutory weight.
Submissions made by the Minister solely or on behalf of the Crown Provide a government position on specific proposals. Could help decision-makers when making balancing judgements. Government submissions have no more weight than any other submitter.
National policy statement Immediate effect in support of renewables. Elevates benefits to a matter of national significance, influences judgements of decision-makers immediately and requires changes to planning framework. Objective and policies subject to interpretation and weighting of local decision-makers.  High costs of plan changes.

3.2 Evaluation of alternatives

3.2.1 Amending the RMA

Two alternative approaches to amending the RMA were considered:

  • elevating the importance of renewable electricity generation by moving “the benefits of renewable energy” into section 6

  • amend section 166 to include electricity generators, thereby enabling them to issue notices of requirement for designations.

Each alternative is addressed in turn below.

3.2.1.1 Amending section 6 of the RMA

The RMA was amended in 2004 to require decision-makers to have particular regard to the effects of climate change (section 7(i)) and the benefits to be derived from the use and development of renewable energy (section 7(j)).  As noted in section 2 of this report, very few local authorities have amended their plans to reflect this insertion; the lack of statutory clarity around the benefits of renewable electricity generation introduces the potential for future decisions on these benefits to interpret the meaning and significance of sections 7(i) and 7(j) differently.

At the time section 7 was amended, it was considered desirable to maintain the environmental preservation and protection emphasis of section 6.  Notwithstanding the wider national and international environmental benefits of renewable electricity development, inserting a ‘resource use and development’ emphasis into section 6 would challenge the established structure of the RMA, and could complicate interpretation of Part II of the RMA.  While New Zealand’s commitment to a renewable electricity target requires a substantial increase in renewable capacity overall, it is the government’s view that proposals with unacceptable adverse effects should not proceed.  Elevating renewable electricity generation to section 6 of the RMA as a matter of national importance could result in projects with unacceptable effects receiving consent.  As such, amending section 6 of the RMA to introduce the benefits to be derived from the use and development of renewable energy sources is not considered appropriate.

3.2.1.2 Amending section 166 of the RMA

Designations are a provision made in a district plan to give effect to a requirement made by a requiring authority.  Section 166 of the RMA enables network utility operators that are approved as requiring authorities by the Minister for the Environment, to issue notices of requirement to designate land in district plans for their projects or works (instead of applying for land-use consents under section 9 of the RMA).

Network utility operators and network utility operations include those defined in section 2 of the Electricity Act 1992 as being an electricity operator or electricity distributor for the purpose of line function services.  Currently, electricity generation does not fall within the definition of an electricity operator or distributor for the purpose of line function services, and therefore electricity generators cannot issue notices of requirement for electricity generation projects.

Approval as requiring authority enables a network utility operator, in addition to designating land, to apply to the Minister of Land Information under section 186 of the RMA: this can lead to compulsorily acquisition of land under the Public Works Act 1981 if need be, and the undertaking of emergency works under section 330 of the RMA.

Designations are a particularly powerful mechanism.  By explicitly including generators among network utility operators with the power to designate for the purposes of renewable electricity generation, the government would be sending a strong signal in support of the use and development of New Zealand’s renewable energy resources.  It is noted that designations apply only in district plans and as such will be useful only for those renewable electricity generation activities that are defined as ‘land uses’ under the RMA.

Including electricity generators in the definition of network utility operator would give the generator the power to make decisions on their requirements, following a recommendation from the relevant council.  As the requiring authority, the generator would still be required to make decisions under the framework of the RMA and these decisions would be subject to appeal to the Environment Court.  Importantly, the decisions of the requiring authority and Environment Court would still be made under the existing decision-making framework: therefore this approach would not necessarily address the problems identified with the status quo.

Notably, the option already exists for specific projects to be prescribed as a network utility operation by regulations made under section 166(i).  This approach was taken in relation to Project Aqua because the proposal was not in all respects a network utility operation.

However, the process is slower and more expensive than automatic network utility operator status, as it involves extensive survey and the promulgation of regulations.  This option is available only for projects that can be prescribed as a network utility operation by regulations.

Given that the decisions of the requiring authority would continue to be made under the established framework of the RMA, it is not possible to conclude that amending the RMA in this manner would address the problem identified with the status quo.  This alternative is therefore not considered appropriate as an alternative to the status quo, but it may be appropriate to consider whether this option may serve to complement other mechanisms for addressing the problem identified with the status quo.

3.2.2 Modify the call-in process

The option of Ministerial call-in is currently available under the status quo.  Call-in can reduce the time involved in granting consents as council hearings are avoided and appeals are only permitted on points of law.  At present, the decision to call in a particular process is made at the Minister’s discretion in accordance with the provisions of sections 141A and 141B of the RMA.

These sections could be amended to introduce a threshold (installed capacity for example) above which all projects would be called-in.  This would increase the level of certainty surrounding the call-in process and would enhance the likelihood that national interests would be applied consistently throughout the country.  This approach, however, has several potential drawbacks:

  • it might not always be appropriate to call in proposals: sometimes the national interest might be most appropriately served by alternative means such as the issuing of Crown submissions

  • it is not clear where such a threshold should be set.  If it is set too low, then the volume of projects required to be processed by the Ministry would increase dramatically.  This would duplicate council functions and, without significant resourcing, might in fact slow down the rate at which applications for resource consent are processed.  If the threshold is set too high then the process might fail to capture the potential cumulative benefits of small-scale distributed generation

  • setting a threshold of national significance could also impede proposals to develop small-scale and distributed generation by effectively sending a signal that the contributions of this form of development are not nationally significant

  • decisions on projects called in by the Minister are made under the existing RMA decision-making framework.  Without statutory clarification of the benefits of renewable electricity generation there can be no guarantee that these decisions would afford particular weight to these benefits.

For these reasons this approach is not considered appropriate as a means for addressing the problem identified with the status quo.

3.2.3 Develop a national environmental standard or standards

National environmental standards (NESs) could be developed to ensure that applicants use established and consistent methods for measuring and assessing effects, and decision-makers apply consistent standards when considering the effects of renewable electricity generation proposals.  This would be particularly relevant to renewable electricity generation projects where the effects are uncertain or subject to relative assessments, such as where wind turbines are proposed on visually prominent ridgelines.  Consistent methodologies for assessing effects and consistent effect thresholds would increase certainty in the marketplace, could reduce the time it takes to undertake effects assessments, and could reduce time spent debating and considering the merits of differing assessment methodologies at hearings.

Particular areas where NESs could be of value include:

  • setting specific effects assessment methodologies in the fields of visual amenity and landscape effects

  • setting specific effects thresholds for turbine noise, vibration and flicker

  • specifying activity status for small-, micro- and research-scale activities and those activities associated with the investigation of sites (such as wind monitoring masts).

However, factors that militate against the use of NESs in relation to renewable electricity generation include the following:

  • case law is emerging around existing standards (for example, New Zealand Standard 6808 for wind turbine noise and the Pigeon Bay Criteria for landscape significance).  Councils as well as independent experts are building these processes into their effects assessments and decisions.  In developing specific standards, the Ministry for the Environment might risk undermining the momentum that is building through case law towards the development of Court-tested and approved methods and thresholds

  • in the absence of a guiding national policy framework, it would be extremely challenging to develop national standards for some effects

  • in an environment where there is a large range of available technologies, and where technological development is rapid, NESs would by necessity have to focus on discrete technologies or effects, and could lead to a ‘piecemeal’ framework

  • it would be very difficult to build industry consensus on which methodologies and thresholds to adopt.  In some cases (such as for landscape assessment) it is likely to take significant time to develop NESs; in this case a lengthy process is undesirable

  • decisions made on the basis of standards set at a national level may be challenged in light of site-specific information provided by project proponents and opponents.  Such challenges have the potential to undermine the benefit that an NES offers, namely certainty and consistency

  • the development of national environmental standards would effectively entail central government assuming direct control over particularly influential regional and district planning provisions.  Decision-making at the local level is a fundamental aspect of the RMA; until such time as a very clear need for national standardisation is identified, an approach that challenged this principle would not be appropriate.

Despite these drawbacks, NESs could make a valuable contribution to clarifying the regulatory environment and addressing the problem identified with the status quo, particularly under a policy framework established by a NPS.  As the effect of the approved NPS on decision-making becomes clear, it may be appropriate to consider whether one or more NESs in discrete technical areas are necessary to support the achievement of the Objective.

3.2.4 Develop non-statutory guidance

Non-statutory guidance could provide an alternative to not only individual provisions within the proposed NPS, but also to the proposed NPS in its entirety.  Such guidance could be provided to:

  • help councils respond appropriately to sections 7(i) and 7(j) of the RMA

  • identify the matters relevant to decision-makers’ consideration of proposals to use and develop renewable energy resources

  • guide councils’ decisions as to the appropriate consent status for particular activities and appropriate assessment criteria.

Although guidance would be determined by the Court’s interpretation of sections 7(i) and 7(j), because it has no statutory weight, guidance cannot be relied upon to effectively address the problem identified with the status quo and there would be no guarantee that it would be interpreted or applied consistently.

Despite this fundamental drawback, guidance could nevertheless play an important role in supporting the consistent and timely interpretation and implementation of the proposed NPS.

3.2.5 Submissions made by the Minister solely or on behalf of the Crown

Submissions made by the Minister solely or on behalf of the Crown on particular applications and/or plan changes have the potential to assist decision-makers in the process of determining the national interest of a particular project.  These submissions could also help guide decisions on the balancing of matters included in Part II of the RMA.  In this regard they have the potential to address the problem identified with the status quo.  However, these submissions face several barriers that challenge their effectiveness:

  • Crown submissions and submissions of the Minister solely will ultimately be considered alongside other submissions without any particular weight being afforded to them

  • these submissions will not change the status quo and will therefore not clarify the weight to be given to the benefits of renewable electricity generation activities.

In isolation, submissions made by the Minister solely or on behalf of the Crown will not be an appropriate alternative for addressing the problem identified with the status quo.  However, in some instances they could assist the implementation of the proposed NPS.

3.2.6 Preparing a national policy statement

A national policy statement may be prepared at the discretion of the Minister for the Environment where it is considered that policy guidance on a matter of national significance would be beneficial.  Decision-makers are required to have regard to any relevant provisions of an NPS when considering an application for resource consent and any submissions received.  In addition, local authorities are required to give effect to an NPS through changes to plans and policy statements and through decisions on applications and submissions received.  As such, an NPS can have an, immediate and significant effect on the RMA decision-making framework.

An NPS can elevate a particular resource management matter to one of national significance and can help determine the weight that is to be given to that particular matter in the balancing judgements of decision-makers.  Nevertheless, the objectives and policies of an NPS will always be subject to balancing judgements made under Part II of the RMA and cannot alter the requirement of a decision-maker to consider and weigh the various section 6 and 7 matters raised when considering the effects of a particular application.  In addition, an NPS, cannot affect the decision-making processes undertaken in accordance with the requirements of the Conservation Act 1987 or the Historic Places Act 1993.

Importantly, the objectives and policies of an NPS can be focused on guiding the decision-making process and therefore can be expected to have an immediate effect on the status quo.  The speed with which an NPS can influence resource management decision-making is demonstrated by the influence of the recently gazetted NPS for Electricity Transmission in a recent decision of the Kapiti District Council15 and the officer’s report to the Timaru District Council on a subdivision consent.16  In both cases the NPS exerted a significant influence on decision-makers almost immediately after its gazettal.  This is particularly relevant in the case of renewable electricity generation where a significant number of projects will need to be consented and developed over the next five to 10-year period in order to secure electricity supply in New Zealand.

3.3 Conclusion

Introducing a pro-development sentiment into section 6 of the RMA could enable development in high-value environments that should best be avoided, and therefore could risk inconsistency with the purpose of the RMA.

It may be appropriate to consider developing an NES or suite of NESs in the future, but at this stage case law is emerging that should standardise assessment methodologies.  In the absence of a guiding policy framework, it is unlikely that nationally set standards for assessing effects, or establishing effects thresholds would, in themselves, address the problem identified with the status quo, but NESs may complement an NPS.  Similarly, providing generators with the ability to issue notices of requirement for designations, submissions made by the Minister for the Environment solely or on behalf of the Crown and non-statutory guidance will not, in themselves, be sufficient to address the problem identified with the status quo; these measures may however have an important role to play in supporting the implementation of an NPS.

Having considered the above alternatives for addressing the problem identified with the status quo, it is considered that the most appropriate approach is to develop a national policy statement which ensures that the national benefits of renewable electricity generation are explicitly articulated.  The key reason for this is that, aside from amending section 6 of the RMA, none of the alternatives would have an appreciable influence over the judgements central to the RMA decision-making process in relation to complex proposals that require balancing of effects and benefits across local, regional, national and, arguably, international scales.

15 Application RM 070156 to replace pole 913 at 331 Valley Road, Paraparaumu.

16 Application for subdivision consent No. 6314, Thornhill Holdings Ltd, Hilton Highway, Washdyke Flat.

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