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Executive Summary

Problems

The Resource Management Act 1991 (RMA or the Act) is the principal legislation for managing New Zealand’s environment and allocating rights for access to most natural resources. The RMA is a complex piece of legislation that seeks to balance social, cultural, economic and environmental matters – decisions made under the RMA often address some of the most controversial and contested issues facing New Zealand and play a crucial role in both environmental and socio-economic outcomes.

The RMA has been designed to operate on the basis that resource management decisions should be made by the authority that has the best available information, will be most affected by those decisions and therefore is best placed to promote sustainable management. Responsibility for implementing the RMA is, therefore, devolved to local authorities and the role of central government is to set policy on matters of national significance, provide support and training, and monitor the implementation of the Act. The high degree of devolution under the RMA coupled with a lack of clear central government direction has, however, exacerbated capacity issues in local government and led to variability in planning controls and the speed and quality of consent processing. In this context the RMA has been criticised for contributing to unnecessary delays and compliance costs that hinder efficient implementation, economic growth and major infrastructure development.

Problems with the RMA relate in particular to:

the clarity and effectiveness of central government direction
the balance between public participation and timely and efficient processes
the effectiveness of local government plan making processes
the efficiency and effectiveness of resource allocation mechanisms.

The government proposes to address problems with the RMA in a series of phases. This Regulatory Impact Statement is associated with the first phase of amendments aimed at streamlining, simplifying and improving RMA processes. Subsequent reforms will address key environmental issues including infrastructure, water management and urban design.

Overarching policy objective

To reduce delays, costs and uncertainty associated with Resource Management Act processes, and thereby help improve environmental, social and economic outcomes.

High level policy options

The options for achieving the government’s objective include:

Improving clarity and effectiveness of central government intervention. A clear and transparent strategy guiding the use of central government’s RMA powers would improve their effectiveness but, unless supported by legislative amendment, would not be sufficient to address the range of problems with RMA implementation and decision-making.
Increase local government resourcing. One way to improve RMA performance would be for central government to significantly increase its funding of local government. This will not, however, guarantee more effective implementation and will not address the question of how to appropriately balance national interests against local interests in a local decision-making forum.
Provide further non-statutory guidance. Non-statutory guidance plays an important role in assisting accurate interpretation and promoting improved performance. In isolation, however, non-statutory guidance will not guarantee effective or consistent implementation as compliance is voluntary.
Drafting special purpose legislation. While potentially effective, this option could counteract the principle of integrated management and would risk undermining the integrity of New Zealand’s resource management framework.
Amending related legislation. There are options available but they complex and may have significant or unintended implications that can not easily be identified within the timeframe set for the first phase of reform.
Amending the RMA to improve, streamline and simplify processes. There are a range of amendment options available to increase the consistency, speed and quality of planning controls and consent processes. In some instances, effective options are likely to include reduced opportunities for public participation and greater reliance on centralised rather than devolved decision-making. Amendments to the RMA could increase the effectiveness and efficiency of central government intervention and consent processing for nationally significant proposals to ensure that matters of national importance are appropriately factored into local decisions. There are also options available to improve the workability of the statute by correcting inaccuracies and omissions, and to increase the efficiency of decision-making processes and the effectiveness of compliance mechanisms.

The Resource Management (Simplifying and Streamlining) Amendment Bill 2009 is expected to improve environmental, social and economic outcomes by reducing delays, costs and uncertainty associated with RMA processes. At the highest level, the reforms aim to achieve this objective by:

addressing frivolous, vexatious and anti-competitive objections
improving the decision-making process for proposals of national significance and establishing an Environmental Protection Authority
improving plan development and change processes
improving resource consent processes
improving central government direction
improving the effectiveness of compliance mechanisms
improving decision making processes
making minor improvements to enhance the workability of the Act.

The weight of evidence indicates that many applications are delayed substantially by wide-ranging appeal rights and uncertain timeframes, which discourages investment. The overall direction of the amendments is to temper the right to object with the responsibility to behave constructively and reasonably; encouraging objectors to consider more deeply the merits of their case, and whether further action is justified.

The proposed amendments aim to enhance central government’s ability to provide guidance on matters of national significance. Clarifying when proposals will be called-in and processed by an Environmental Protection Authority, and improving the call-in provisions is expected to increase the consistency of decisions on proposals that are of national significance and increase certainty amongst the general public, local government and the private sector in terms of RMA interpretation. The reforms also enable the contents of National Policy Statements and Environmental Standards to be incorporated quickly into district plans, which should reduce the time it takes for central government guidance to translate into council decisions.

Reforms such as removing the need for councils to request further submissions on plans aim to accelerate the planning process, and are expected to allow a more timely response to emerging threats and opportunities. Similarly, proposed changes to the notification, assessment and reporting procedures for applications with minor or well-known effects are intended to increase the efficiency of RMA processes.

Many of the proposals are enabling rather than prescriptive (e.g. allowing, rather than requiring, local authorities to allow notification of consents via the internet), which can be expected to reduce costs.

While some of the proposed amendments will reduce currently numerous opportunities for public participation, the changes represent a rebalancing and streamlining of resource management decision-making processes, rather than a fundamental reweighting of the underlying philosophy, purpose or principles of the Act.

Specific problems, objectives and policy options

A. Frivolous, vexatious and anti-competitive objections

The RMA does not effectively deter some submitters and appellants from opposing applications on the basis of arguments that have little or no merit. Nor does the RMA effectively prevent anti-competitive behaviour by trade competitors. The government intends to reduce costs and delays arising from submissions and appeals that are frivolous or vexatious, or motivated by anti-competitive behaviour by:

reinstating the power of the Environment Court to require security for costs and allowing the Courts to award more extensive costs, including indemnity and punitive costs
preventing trade competitors from participating in proceedings unless they are directly affected by a potential adverse effect of the activity on the environment
making it explicit that decision-makers are prohibited from having regard to trade competition or its effects in relation to resource consent applications, notices of requirement, the preparation of plans and policy statements, and notification decisions
discouraging covert opposition of trade competitors through third parties.

Taking action to reduce opposition motivated by frivolous and vexatious concerns will improve the quality of arguments put to decision-makers and has the potential to significantly reduce costs for the Court, applicants and local government. Increasing penalties associated with anti-competitive behaviour and introducing new tools for effectively addressing this behaviour has the potential to significantly increase New Zealand’s economic productivity and efficiency. In both instances these benefits are expected to outweigh the consequences of limiting opportunities for public participation.

B. Decisions on proposals of national significance

At present, it is very likely that decisions on most significant roads, transmission infrastructure and other large scale infrastructure projects will be appealed to the Environment Court. Indirect costs associated with delays and uncertain timeframes and the direct costs of defending or mounting appeals have the potential to threaten the viability of projects that are in the national interest. The government intends to reduce the time it takes to reach decisions on significant projects while still maintaining effective public participation and promoting the sustainable management of natural and physical resources by:

providing guidance to clarify criteria determining eligibility for call-in and enabling councils, applicants and/or requiring authorities that comply with these criteria to submit their resource consent application, notice of requirement for a designation or related private plan change directly to an EPA that will process applications in accordance with an enhanced call-in process
limiting appeals on decisions of Boards of Inquiry and the Environment Court on matters that are called-in to the High Court and then to the Supreme Court in exceptional circumstances
enabling parties to apply directly to the EPA for certificates of compliance associated with matters of national significance.

Improving call-in provisions, and providing guidance to clarify eligibility criteria and thresholds, is expected to significantly reduce the length of time it takes between lodging an application and receiving a decision on proposals of national significance; in some cases these savings could be measured in years. Greater consistency in decisions on proposals that are of national significance will increase certainty amongst the general public, local government and the private sector in terms of RMA interpretation and implementation. In particular, increasing certainty around processes and timeframes is expected to improve investment certainty. Limiting the number of hearings and removing the opportunity to appeal on merit does reduce the opportunities for public participation in decision-making on significant projects. The process does, however, preserve the right of the public to submit on proposals and allows the board of inquiry to respond to local issues by building flexibility into board appointments and hearings processes. On balance it is considered that the benefits of greater efficiency, clarity and consistency outweigh the effects of reducing opportunities for public participation.

C. Environmental Protection Authority

The government intends to establish a body that can provide efficient and timely administration of proposals that are called-in by:

establishing an EPA as a statutory office within the Ministry for the Environment as a transitional arrangement, with the role of statutory officer to be exercised by the Secretary for the Environment.

The establishment of an EPA to centralise processing of proposals that are called-in will facilitate more efficient, consistent and transparent decision-making on proposals of national significance. The financial cost of establishing and operating the EPA will not outweigh these benefits.

D. Improving plan development and change processes

Cumbersome planning processes have hampered the ability of councils to respond quickly to changing conditions or emerging environmental issues. The government intends to improve the quality of plans and facilitate timely plan development and amendment to enable rapid responses to changing conditions or emerging environmental issues, while retaining an appropriate degree of public participation and legal right to redress. The government will achieve this by:

increasing the flexibility of processes governing plan development, the correction of minor errors and reporting on decisions
increasing the range of available alternatives for service and notification of plan changes, and associated proceedings
removing the non-complying class of activities
removing the mandatory obligation to review district plans every 10-years and encouraging the development of combined district and regional plans and policy statements
removing the requirement for local authorities to summarise submissions or call for further submissions, and requiring local authorities to consult with and have regard to the views of anyone who they consider may be affected by matters raised in submissions
clarifying the time at which proposed plan provisions have legal effect
limiting appeals on plans to the Environment Court on questions of law, except in cases where the appellant has gained the leave of the Court to appeal on the merit of a decision.

Significantly reduced administrative requirements in relation to plan and plan change development processes could enable councils to devote more resources to policy development and the evaluation of alternative policy options. Increasing the flexibility of consultation requirements, limiting the scope of submissions and appeals, and empowering councils to correct minor errors in plans has the potential to significantly reduce the time it takes to make plan provisions operative. This will help clarify the local planning framework which will benefit the general public, private enterprise and community groups. A more efficient plan development process is expected to promote more timely council responses to new information and emerging issues. Overall it is considered that these benefits outweigh the effects of constraining the scope of and reducing opportunities for appeal.

E. Improving resource consent processes

Statistics gathered by the Ministry for the Environment indicate that only 74% of non-notified consents and 56% of notified consents are processed within statutory timeframes and that performance has tracked steadily downwards over the past six years. The government intends to reduce the cost and time it takes to come to a decision on resource consent applications, while maintaining an appropriate degree of public participation and legal right to redress by:

modifying notification requirements to clarify criteria for notification
increasing options for service and notification
narrowing the scope of matters decision-makers are required to have regard to when considering applications for controlled and restricted discretionary activities
simplifying the reporting requirements for minor activities and proposals that do not require public notification
deleting existing blanket tree protection rules in urban areas and prohibiting local authorities from imposing rules of this type in the future
amending processes relating to local authorities’ requests for further information
requiring all councils to develop a discount policy in respect of breaches of statutory timeframes.

Clearer and more efficient notification, assessment and reporting requirements will substantially reduce administrative burdens and facilitate more effective work allocation within local authorities. This is expected to reduce the time it takes to process resource consents. Amendments to the provisions governing requests for further information are likely to promote more timely and certain consent acquisition timeframes. It is considered that the benefits of clearer and more efficient processes will outweigh the potential costs associated with a possible reduction in opportunities for public participation.

F. Improving central government direction

There is no overall strategy for the use of national RMA instruments, and the instruments themselves can be cumbersome, inflexible and difficult to implement. This has created a lack of certainty for all parties involved about when and how central government will intervene in RMA processes and has reduced the effectiveness of national RMA instruments. The government intends to increase the efficiency and effectiveness with which national RMA instruments are developed and implemented by:

broadening the scope of matters the Minister of Conservation and the Minister for the Environment are able to call-in
providing the relevant Minister with explicit powers to cancel, postpone, and restart a national policy statement process before it has been gazetted, and powers to make minor amendments to national environmental standards in an efficient and timely manner
truncating the process of amending plans and policy statements in response to national policy statements and national environmental standards, and limiting the scope of appeals on changes
clarifying the responsibilities of local authorities in relation to national environmental standards and the effect of these standards.

More flexible and efficient provisions governing the development and implementation of national environmental standards and national policy statements will facilitate the articulation of effective environmental bottom lines and policy expectations. Increasing the effectiveness of central government direction and easing local government implementation is expected to foster greater certainty and reduce the costs of implementing and complying with the RMA across all sectors. These benefits will outweigh the associated reduction in local discretion over interpretation and implementation of the Act.

G. Improving the effectiveness of compliance mechanisms

The resourcing of RMA monitoring and enforcement throughout New Zealand is variable and in some areas councils lack either (or both) the ability to effectively detect non-compliance or to take enforcement action. The government intends to ensure that the RMA enforcement regime acts as an effective deterrent to non-compliance by:

increasing the flexibility and scope of enforcement powers and responsibilities
raising the maximum fine for committing an offence
giving the Environment Court powers to direct a review of a resource consent where it is connected to an offence that has been committed
remove the provisions of the Act that protect the Crown from enforcement action.

The proposed extensions to the powers of local authorities and the Courts are expected to reduce costs associated with enforcement and the remediation of environmental damage, and to ensure that the Courts are able to more effectively recover unpaid fines.

H. Improving decision making processes

There is concern amongst applicants around the objectivity, skills and knowledge of elected decision makers. Ongoing concern has also been expressed by a variety of parties in regard to the role of the Minister of Conservation in regard to coastal activities. Applicants, submitters and decisions makers are often faced with duplication of process, cost and time resulting from applications having to go through a council hearing and then be re-heard again in the Environment Court, even though it was known from the start that the application was of such a nature that appeals were inevitable. Low Environment Court filing fees do little to discourage the lodgement of poorly conceived appeals, and do not indicate to appellants the seriousness of the consequences and expense all parties will incur if the appeal proceeds further. The government intends to increase the efficiency of decision-making processes under the RMA by:

allowing applicants for and submitters on resource consents and notices of requirement to require at least one independent commissioner on a decision panel,, provided that the party making the request bears any additional costs
enabling applicants for resource consents and notices of requirement to request that their application be directly referred to the Environment Court for a decision, provided that the permission of the local authority that would otherwise have made the decision has been obtained
clarifying that local authorities can delegate the power to make decisions on plan changes to staff or any other person
increasing the filing fee for lodging appeals with the Environment Court to $500 (inclusive of GST)
removing the Minister of Conservation’s final decision-making role in relation to restricted coastal activities and matters called-in by the Minister
requiring hearings to be formally closed no later than 10 working days after the last party has completed presentations
requiring decisions on applications for designations to be made by the relevant local authority.

Increasing filing fees, tightening hearing processes and providing greater flexibility as to who can make decisions will increase the rigour of decisions and decision-making processes under the RMA. Better quality submissions and appeals, and more robust decisions are expected to result; increasing the general level of confidence in the RMA decision-making process. In particular, the proposals will also lead to faster, more transparent, decision making on consent applications for activities in the coastal marine area. Improving the independence of decision-making on notices of requirement will increase confidence in the process. The increased filing fees are unlikely to act as a substantial barrier to legitimate public participation in RMA processes. The proposal to provide for direct referral of applications to the Environment Court could discourage public participation and may be open to abuse by local authorities seeking to avoid costly and controversial decisions. It does, however, have the potential to lead to significant time and overall cost savings. On balance the savings to applicants for resource consents and plan changes and savings to local authorities and the Environment Court will outweigh the potential effects on public participation.

I. Other matters to improve workability

Some of the timeframes for local authority obligations and public participation can create unnecessary procedural delays or compliance difficulties. There are also a number of minor and technical errors in the RMA that reduce its workability. The government intends to remove and replace redundant technical provisions with enforceable ones, and make minor procedural changes to avoid unnecessary delays and improve processes.

Improving the consistency, efficiency and enforceability of the statutory provisions is expected to facilitate more equitable and effective implementation of the RMA. Reducing the influence of those who seek to join as parties to other appeals will complement efforts to address misuse of the RMA for anti-competitive purposes.

Implementation and review

Legislative amendments will be complemented by guidance and communications material to assist local authorities in understanding how the amendments will impact on them, their processes, and how they are expected to respond.

After the bill is enacted in late-2009 the Ministry for the Environment will commence monitoring the effect and implementation of the Act, investigate performance and take actions to remedy poor implementation in accordance with the functions and powers of the Minister for the Environment currently set out the RMA.

Consultation

The government’s timeframe for implementing the first phase of RMA reform has ruled out comprehensive public consultation – best endeavors were, however, made to ensure public and professional input into the policy development process.

In late-2008 the government’s cross-departmental natural resources network considered the Ministry for the Environment’s most recent monitoring data and agreed on a set of core problems with the RMA. From November 2008 to January 2009 the Ministry for the Environment convened a working group comprised of officials from all government departments and conducted a series of workshops to identify potential solutions to address these problems.

On 1 December 2008, the Minister for the Environment sent a letter to all local authorities inviting comment on potential options for addressing problems with the RMA and any further suggestions. The Minister’s request was complemented by postings on the Ministry for the Environment website inviting comments and suggestions.

On 16 December 2008 the Minister for the Environment announced the appointment of a Technical Advisory Group (TAG) to support the Government's programme of reform of the RMA. Between December 2008 and January 2009 the TAG, supported by Ministry for the Environment officials, held six full-day meetings to consider potential options for addressing problems with the RMA. All responses to the Minister’s request were analysed and suggested amendments evaluated by the officials working group and TAG.

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