Question and Answers regarding the Resource Management (Simplifying and Streamlining) Amendment Act 2009
1. What consultation was carried out on the Amendment Act?
- On 1 December 2008 the Minister for the Environment wrote to all local authorities seeking their comment on how the RMA could be improved.
- On 10 December 2008 the Minister for the Environment invited members of the key sector organisations to send in comments.
- The Minister, and the Minister of Local Government, received hundreds of letters outlining proposals for improving the function of the RMA. .
- In December 2008 the Minister for the Environment appointed a Technical Advisory Group (TAG) to advise him on RMA reforms.
- Members of the TAG have extensive, practical experience with the RMA. Membership of the TAG consists of: Alan Dormer, Barrister (chairperson); Guy Salmon, Executive Director of the Ecologic Foundation; Penny Webster, Mayor of Rodney District; Michael Foster, Director of Zomac Planning; Dennis Bush-King, Environment and Planning Manager at Tasman District Council; Wyatt Creech, businessman and former Deputy Prime Minister; Paul Majurey, Partner, Russell McVeagh; Mike Holm, Barrister.
- Between 18 December 2008 and 19 February 2009 TAG has worked intensely with the Minister and Ministry for the Environment officials. The TAG had six full-day meetings to consider options it developed, options suggested by officials, and ideas and comments received from local authorities, other organisations, businesses and the community.
- The Bill was referred to the Local Government and Environment Select Committee on 19 February 2009 with submissions opening the following day.
- A total of 840 submissions were received by the time submissions closed on 3 April 2009.
- 339 submitters were heard during 68 hours of hearings in Auckland, Wellington and Christchurch. Submitters from other centres were heard via teleconference.
- The TAG group met several times while the Bill was being considered by Select Committee and provided the Committee with a report on suggested changes to manage issues raised in submissions.
- An expert panel comprising two experienced RMA lawyers, a former Environment Judge, and a council CEO provided the Select Committee with advice on drafting changes being made to the Bill.
2. What Parliamentary support was there to pass these changes into law?
- National, ACT New Zealand and United Future are committed to supporting this reform.
- The Maori Party and Labour gave support during the first reading of the Bill, and supported it being referred to Select Committee.
- Voting on the first reading was 110 in favour, and 10 against.
- The Bill, as reported back from Select Committee contained only one minority report, that of the Green Party.
3. Are there any variations from National’s 2008 Election Policy on these reforms, and if so, why have changes been made?
- There were 17 specific policy commitments in National’s policy of reforming the RMA – 15 were included in the original Bill.
- Two proposals not included in the Amendment Act are:
- National’s policy said it would replace Section 8 in respect of the Treaty of Waitangi with a new clause setting out specific consultation requirements with iwi. The Maori Party made strong representations opposing any change to section 8. The Technical Advisory Group advised that case law on section 8 and the improvement in practice is such that this is no longer a significant issue.
- National’s policy proposed narrowing the definition of “the environment”. This was intended to try and prevent trade competitors abusing the RMA. The Technical Advisory Group advised that a narrower definition would have other unintended consequences that would not improve the overall performance of the Act. Instead it has recommended other significant changes to prevent trade competitors misusing the RMA. The Government has adopted this package of amendments.
- The Amendment Act, as enacted, removed the proposal to abolish the non-complying activity category because the costs (financial and in terms of removing a tool that was useful for managing environmental effects) outweighed the perceived benefits. However, reducing the number of resource consent categories is still being considered as part of Phase Two RMA reforms.
4. What examples would you cite supporting the case for RMA reform?
- Wairau Pak’nSave – The proposal to develop a Pak’nSave supermarket on Wairau Road on the North Shore has been embroiled in litigation since the 1990s. Consents have been granted several times only to be appealed to higher courts, and although the supermarket building has been constructed, it is unable to operate due to ongoing litigation.
- Wellington Inner-City Bypass – In 1992 Transit and Wellington City Council approved a design in principle. Finally opened in 2007 – 15 years later.
- Long Bay Structure Plan – 12-year planning process characterised by disagreement between North Shore City Council and developer ended with Environment Court issuing a decision in favour of the council-proposed Structure Plan.
- Whangamata Marina – Initially proposed in 1995, the Whangamata Marina proposal is still awaiting a final decision after the High Court directed the then Minister of Conservation to set his decision aside and reconsider the applications.
- Crest Energy Marine Energy Project – After almost four years Crest Energy is awaiting an Environment Court hearing.
- Project West Wind in Makara – Although the councils granted consents within six months, the Environment Court took a further 18 months to confirm their decision.
- Alpurt B (Albany to Puhoi Realignment) State Highway One – RMA approvals took approximately 10 years from lodgement to completion.
- Cost of first generation RMA plans: the average cost for preparing and taking the first generation of RMA plans through the submissions and appeals process was around $1.9 million dollars. After nearly 18 years of the RMA, some councils still do not have an operative district plan.
- Resource consents not processed on time: only 69% of resource consents were processed within statutory timeframes in 2007/2008, the lowest for more than a decade. Over the same time, the proportion of consent applications where councils have extended timeframes has grown from less than 5% to 28%.
5. What is being done to strengthen the environmental protection aspect of the Act?
- Greater central government guidance via National Environmental Standards and National Policy Statements assists local authorities to deal consistently with nationally important environmental issues.
- Speeding up the plan changing process will encourage councils to keep their plans up to date and therefore enable them to deal more quickly with environmental issues as they emerge. Changes include reducing decision reporting requirements, ruling out appeals that seek the withdrawal of entire plans, and removing the requirement to review entire plans every ten years regardless of whether some provisions have recently be subject to a change.
- Maximum fines are being increased significantly from $200,000 to $600,000 for corporate offenders and from $200,000 to $300,000 for individuals. This is a tangible disincentive to those breaching consent conditions.
- Courts will have specific power to order a review of consent conditions if an offender breaches their conditions. The Council then must take the Court’s reasons for ordering a review into account. If the consent that is being reviewed will have ongoing adverse effects, the Council can then cancel it. The Court may encourage this and therefore this is a major incentive to keep within the consent conditions.
- Enforcement action will be able to be pursued against the Crown. This power will be given to councils as per the Building Act.
6. Can you reassure the public they won’t be cut out of the process of RMA decision making?
- The principle of inviting local community involvement in decision making in order to achieve good, balanced decisions remains firm.
- The Amendment Act strikes a proper balance between a reasonable level of public participation and the need for councils to take action to protect the environment and timey decision making.
- The Amendment Act retains the ability for any person to make submissions on notified resource consents, plan changes and notices of requirement.
- Parties with an interest greater than the public generally will be able to make further submissions to plans and plan changes.
- Appeal rights on resource consents, notices of requirement for designations, proposed plans and plan changes related to points of merit have been retained.
- Where nationally significant projects are directed to a Board of Inquiry, there is ability for any person to make submissions.
- Third parties can still join appeals if they have an interest that is greater than the public generally. If they do not have an interest greater than the public generally, then the ability to participate rests on whether they made a submission concerning the matter. This is designed to encourage all parties to be involved at the earliest opportunity rather than wait until more expensive Court proceedings.
7. Will the reforms speed up the decision making process?
- Tighter restrictions on, and greater disincentives for, trade competitors using the RMA to thwart projects of others will discourage appeals made for reasons other than genuine environmental concerns.
- Changes to the public notification procedure for consents will mean more consents can be processed on the faster ‘non-notified’ track.
- Distribution of consent information by email and via websites to affected parties is a quicker and more efficient way to speed up communications.
- Limitations on stopping the clock when asking for more information will encourage councils to follow up faster. Councils will in turn demand higher quality applications from the outset.
- Reduced decision reporting requirements for non-notified consent applications, plans and plan change decisions.
- Councils will be required to have a discount policy in circumstances where resource consents are processed outside statutory timeframes due to the actions of the council. This will provide a much needed incentive for compliance with statutory timeframes.
- Third parties must be able to show that they have an interest greater than the general public to participate in appeal proceedings in circumstances where they have not made a submission. This places greater emphasis on such parties making a submission and therefore a greater ability for differences to be sorted out before.
- A new ability to have an application referred directly to the Environment Court for a decision (by passing council hearings) if the council that would have made the decision agrees.
- A Board of inquiry is obliged to make decisions on applications for proposals of national significance within nine months when such applications are lodged with the EPA.
8. How will the Environmental Protection Authority help improve implementation of the RMA?
- The Amendment Act sets up a transitional Environmental Protection Authority (EPA) within the Ministry for the Environment to provide efficient and timely administration of proposals of national significance.
- Anyone can apply to the EPA in regard to a project of national significance. The EPA makes a recommendation to the Minister within 20 working days of receiving the application and the Minister may direct that the proposal be sent to either a board of inquiry, or the Environment Court who will make a decision on it.
- The EPA will provide the administrative support to Boards of Inquiry that make decisions within nine months and also process certificates of compliance for proposals of national significance.
- Under the RMA it is relatively common for decisions on significant roading projects, energy projects, and other large scale infrastructure projects to be appealed to the Environment Court. This is very costly, time consuming and increases uncertainty for all. The board of inquiry process will avoid this situation.
- Boards of inquiry will be chaired by a current or retired Environment Judge, or a retired High Court Judge. Appeals from the board of inquiry will only be able to be made on points of law.
9. What happens next?
- The Amendment Act will commence (have legal force) from 1 October 2009.
- This Amendment Act is the first of two phases of reforming the resource management area. Phase II will set up the expand the role of the EPA, address overlaps with other legislation, and address complex issues such as the management of water, aquaculture, urban design, and infrastructure.
Last updated: 15 September 2009
