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A statement of feasible options (regulatory or non-regulatory) that may constitute viable means for achieving the desired objective(s)

This section examines four options for achieving the public policy objectives.

Option A: Status Quo

The status quo involves a combination of existing legislative provisions and programmes to support best practice in implementing the RMA. Existing legislative provisions are outlined below.

Expressing national interest

National policy statements

  • A board of inquiry inquires into a proposed national policy statement.
  • A national policy statement must specify whether or not the first schedule to the RMA (formal plan-making process) should be followed in order to give effect to its policy in plan provisions.

National environmental standards:

  • The Minister for the Environment sets national environmental standards.
  • National environmental standards apply throughout New Zealand, and district or regional rules may be stricter.
  • National environmental standards can set a minimum (bottom-line) requirement. For example, a minimum standard for air quality would allow a higher level of air quality to be achieved through local government setting stricter rules.
  • There is no provision for national environmental standards to be developed for the subdivision of land (reflecting the current lack of flexibility in national environmental standards).
  • A local authority is required to conduct a cost-benefit analysis (under RMA section 32) of any proposed rule (or other provision) in a plan, including a rule that is stricter than a national environmental standard. The section 32 analysis of costs and benefits is required to be made available to the public.

Departmental submissions

  • Central government departments can, individually or together, make submissions on a proposed planning document or application for an approval. A submission can either be in support or opposition to a proposal. The submission is considered, with no extra weighting, alongside any other submission. There is no administrative process in place for an inter-departmental government submission to be prepared.

Approvals processes and decision making

Council-level processes and decision making

  • Applicants for resource consents are required to identify in their application those persons affected by the proposal, the consultation undertaken (if any) and any response to the views of those consulted.
  • A consent authority (ie, the district or regional authority processing the application for approval) may make any number of requests for further information from an applicant.
  • There is no requirement to have any particular skill set (other than being elected to council) for making decisions on notified resource consents, private plan changes, or in making recommendations on designations.
  • A hearings panel made up of councillors or commissioners has certain existing powers to conduct a hearing (eg, to summon a witness).

Environment Court processes and decision making

  • The Environment Court has some inquisitorial powers (eg, to question witnesses). However, hearings tend to be conducted in an adversarial style; ie, the parties define the dispute and the decision maker acts as an impartial and ‘passive’ arbiter (except on questions of law).
  • The Court is empowered to conduct a de novo hearing (ie, cases can be heard anew).
  • The Court does not have the power to require the preparation of an independent expert report.
  • The Court has processes to define the issues under dispute at an early stage (prior to the hearing).
  • Decisions on whether to publicly notify an application or to process it as non-notified can be judicially reviewed by the High Court.

Non-local decision making and central government engagement (through Ministerial call-in of applications)

  • If the Minister for the Environment considers an application for resource consent is of national significance, the application may be called in for the Minister to decide whether to grant consent. In contrast, applications for designations or plan changes cannot be called in. The call-in process has the following features.
  • Parties can only make informal requests for the Minister to call in an application for resource consent.
  • There are specified factors that a Minister considers in determining whether a proposal is of national significance.
  • The Minister appoints an ad hoc board of inquiry to hear any applications for resource consent that are called in and to make recommendations for the Minister’s consideration and decision. The board of inquiry is not required to have a minimum skill set.
  • The Minister’s decision can be appealed to the Environment Court (and the Court could substitute its decision for that of the Minister).

Local policy and plan making

  • The Minister has the power to appoint persons to perform the functions, powers or duties in place of a local authority. However, the Minister does not have the power to direct a council to develop a plan.
  • District and regional plans must ‘not be inconsistent’ with the regional policy statement (ie, a plan that is silent on a matter contained in a regional policy statement is ‘not inconsistent’ with that statement).
  • District and regional plans must state (in summary):
    • issues for the district or region respectively
    • objectives
    • policies
    • methods (including rules) for achieving the objectives or policies
    • principal reasons for adopting the objectives, policies and methods
    • the information to be included with an application for a resource consent
    • environmental results anticipated from the policies and methods
    • processes to deal with issues that cross territorial authority boundaries
    • the procedures to monitor the policies, rules and methods
    • other information (eg, monitoring requirements).
  • Regional policy statements are required to address similar matters to plans, as listed above, as well as other issues, such as the adverse effects of hazardous substances.
  • The process for developing a planning document involves the following.
    • Local authorities would generally apply the principles of consultation under the Local Government Act 2002 when developing a planning document under the RMA.
    • Local authorities conduct a separate process for consulting people on the development of planning documents under the RMA to that used for consulting on other (non-RMA) planning documents.
    • Local authorities do not have the explicit power to convene pre-hearing meetings with submitters to narrow the issues to be heard on planning documents.
    • Any person can make a further submission on any original submission made on a proposed planning document.
    • Further submissions can be made, either in support of or in opposition to, the original submission on the proposed planning document.
    • An adversarial-type approach is used at the council level to conduct hearings into proposed planning documents.
    • Council decisions on any provision (objective, policy, method or rule) of a proposed planning document can be appealed to the Environment Court on either matters of law or merit.
    • The Environment Court can hear all evidence de novo (anew) and replace the council’s decision with its own.

Iwi consultation and resource planning

  • There is no requirement for councils to hold information on iwi authorities, their rohe (extent of district or region), contact details and current iwi planning documents.
  • A local authority may transfer its functions, powers and duties (under RMA section 33), except for the power, itself, to transfer.
  • In preparing a planning document, a local authority must consult the tangata whenua of the area, and must take into account any relevant iwi planning documents. In addition, a regional policy statement is required to state the resource management issues of significance to iwi authorities in the region.
  • An applicant is required to identify those persons interested in or affected by the proposal, including iwi (if relevant), any consultation undertaken, and any response to the views of those consulted.
  • A consent authority must either serve notice of an application on affected parties or publicly notify an application for resource consent (unless the application is processed non-notified).

Natural resource allocation

  • The allocation of natural resources is not an explicit function of regional authorities.
  • Discharge permits are not transferable unless transfer is provided for as part of the permit (eg, a factory can not transfer a discharge permit from one site to another).
  • A consent authority is not required to consider or give weight to existing investment when setting the duration of a consent.
  • Consent authorities are not required to consider an application to renew an expiring consent ahead of any other application for the same or similar consent.

Best practice and implementation

Best practice programmes currently carried out by central government, particularly the Ministry for the Environment, include:

  • monitoring local authority processes under the RMA
  • guidance to promote best practice under the RMA
  • workshops and training of local government (eg, the accreditation of decision makers)
  • a pilot scheme for targeted council assistance
  • award programmes for performance excellence
  • guidance for iwi involvement in RMA processes
  • public information brochures to educate the general public about the RMA and its processes (eg, the Environment Court)
  • funds to support education and advisory services on the RMA, and to help groups with appeals to the Environment Court or High Court.

Option B: Combination of regulatory and non-regulatory approaches (preferred option)

This option involves a mixture of:

  • legislative change to the RMA (including minor and technical amendments to both the RMA and the Electricity Act 1992)
  • new and existing programmes to support best practice in implementing the RMA
  • longer-term programmes to improve the RMA.

Proposed legislative changes to the RMA are outlined below.

Expressing national interest

National policy statements

  • The board of inquiry process would be optional. As an alternative to appointing a board of inquiry, the Minister for the Environment would have a ‘duty to consult’ on the content of a proposed national policy statement with the public, and with agencies that have an interest in the matter.
  • A national policy statement would be able to specify the provisions that a local authority shall include in a planning document without the need for normal notification and hearing processes.
  • Network infrastructure would be a priority matter for the development of national policy statements.

National environmental standards

  • National environmental standards could be set for the subdivision of land.
  • A national environmental standard could set an ‘absolute’ standard (ie, one that no council could deviate from).
  • A national environmental standard could specifically allow a district or region to set a more stringent standard.
  • When carrying out a cost-benefit analysis (under section 32 of the RMA) of setting a more stringent standard (if allowed), local authorities would be required to take into account the necessity of being more stringent than the national environmental standard, and prove to the public that it is necessary to deviate from that standard.
  • More national environmental standards would be developed to provide national direction, especially for land-use activities (such as network infrastructure).

Government submissions

  • An administrative protocol would set out the procedure for developing government submissions, which could be in support of, in opposition to or neutral to the proposal.

Approvals processes and decision making

Council-level processes and decision making

  • Councils would have a role to encourage applicants to consult with all affected parties. Local government would have no obligation to consult on applications other than to notify affected parties of the application.
  • When requesting further information on an application, consent authorities would be required to give reasons for the request and to allow the applicant to proceed with the application on the basis of the information already provided. Councils would be able to reject applications on the basis of insufficient information.
  • At the pre-hearing stage for consent applications, consent authorities would have the power to:
    • require attendance at pre-hearing meetings
    • issue sanctions for non-attendance at pre-hearing meetings (eg, not allow a person to present their submission at the hearing)
    • establish lists of issues that are agreed and outstanding, the evidence to be called, its order, and a timetable for hearing
    • use independent mediators to mediate conflicts.
  • The role of a consent authority hearing is to inquire into and make decisions about applications for consents, designations, heritage orders and private plan changes.
  • Twelve months after the commencement of the proposed RMA amendments, the chairperson of a hearings panel at the council level would need to be accredited to hear applications (as listed above). Twenty-four months after the commencement of the amendments, the majority of members on a hearings panel at the council level would need to be accredited to hear applications. The Ministry for the Environment would be responsible for developing and implementing the programme for accrediting members of council-level hearings panels.
  • In addition to existing powers, any person or panel conducting a hearing would be empowered to:
    • require the applicant to circulate written briefs of evidence, including attachments, prior to a hearing
    • require that the evidence and attachments to evidence of submitters who intend to call experts be provided in advance of a hearing
    • organise the order of a hearing according to the subject matter of the submissions, or otherwise
    • direct that some issues be considered or reported on before others
    • limit the nature of the hearing, such as time limits, or limit submissions on matters not under dispute
    • allow evidence to be taken as read or limited to matters in conflict
    • enable expert evidence to be made available on council websites
    • require evidence to be recorded
    • seek evidence during the hearing
    • strike out a submission if it is vexatious, frivolous, discloses no relevant case or would be an abuse of the process.
  • Regulations would prescribe local authority use of the powers for hearings listed above, and councils would be provided with guidance on how and when to use the various new mechanisms.

Environment Court processes and decision making

  • The role of the Environment Court would be to inquire into and make decisions on applications for consents, designations, heritage orders and private plan changes.
  • The Environment Court would be required to have regard to the council’s decision, and conduct a focused hearing process of the application (ie, the Court would have an increased obligation to ensure that appeals disclose a relevant case, and could limit the introduction of new evidence), rather than a hearing de novo (ie, where new evidence may be introduced, or ‘old’ evidence heard in full for the second time). De novo could be adopted only if:
    • evidence relied upon at the council hearing was unsafe
    • evidence relied upon was insufficiently tested at the council hearing
    • principles of natural justice were not observed at the council hearing
    • important new information has become available.
  • The Court would have the power to order the preparation of an independent expert report (the cost of which may be covered by current Environment Court fees).
  • The Court would be required to define the issues to be resolved at an early stage.
  • Decisions on whether to publicly notify an application or to process it non-notified or on a limited notification basis can be appealed to the Environment Court (instead of judicial review at the High Court). This change would apply once the backlog of cases in the Environment Court had reached acceptable levels.

Non-local decision making and central government engagement (ie, alternative options to Ministerial call-in of applications)

  • Local government or applicants (for consents, designations, heritage orders and private plan changes) could make a request to the Minister for the Environment to assess whether there should be governmental involvement in local decision-making processes.
  • The Minister for the Environment would decide, based on an assessment of whether government should be involved in local decision-making processes, whether:
    • the local (standard) process is appropriate, or
    • the local (standard) process should proceed with central government assistance, or
    • the decision-making process should be at a national level (ie, Ministerial ‘call-in’).
  • If a local standard process with assistance is adopted to process an application, the government would have the ability to:
    • provide a government-funded independent project co-ordinator (to work with the community, local authorities and applicant to run a smooth process)
    • direct that applications be heard jointly where more than one local authority is involved in a project (such as may be the case with a network utility)
    • appoint a person on the locally led hearings panel (in the same way that the Minister of Conservation can appoint a member to a hearings panel to hear an application for a restricted coastal activity)
    • issue a government submission (using a whole-of-government process).
  • If decision making should be at a national level, the modified Ministerial call-in process would involve:
    • extending the Minister’s power to call in proposals to include designations and private plan changes (where a person seeks to change an aspect of a plan; eg, to make provision for an alternative land use)
    • establishing a new criterion to call in applications for matters involving cross-district issues
    • requiring appointments to a board of inquiry to have a minimum skill set and for members to be selected from a standing body of commissioners
    • empowering the board of inquiry (instead of the Minister) to make decisions on applications, including notices of requirement for designations (instead of making recommendations to the requiring authority)
    • limiting appeals on the board of inquiry’s decisions to be made on points of law only to the High Court.

Local policy and plan making

  • The Minister for the Environment would have a mandate to require regional councils to develop plans to address specific resource management issues (including a natural resource allocation plan).
  • District and regional plans would be required to ‘give effect’ to regional policy statements.
  • Regional policy statements could include policies about promoting sustainable urban form, timely and effective provision of infrastructure and its integration with land-use policies, or the allocation of natural resources. This would be in addition to matters already required by the RMA.
  • The content of a plan would only be required to include policies and rules, with any other matters included at the council’s discretion or contained in the cost-benefit analysis (under RMA section 32).
  • The existing process for preparing or changing planning documents would be retained, but amended as below.
  • The consultation principles in the Local Government Act 2002 would apply to developing RMA planning documents (to the extent that these principles are consistent with the requirements of clause 3 of the first schedule of the RMA, which identifies who must be consulted).
  • Local authorities would have fulfilled consultation requirements for a planning document if people or groups have been consulted on the same matter during the course of preparing other local authority planning documents.
  • Local authorities would be required to undertake ‘reasonable endeavours’ to consult with persons (identified under clause 3 of the first schedule of the RMA) when preparing planning documents.
  • Local authorities would have the power to convene pre-hearing meetings for the development of planning documents.
  • Further submissions (on original submissions to a planning document) could only be made in opposition and by persons directly affected by the original submission and who were not already a party to the matter.
  • An inquisitorial-type approach would be used at the council level to conduct hearings into proposed planning documents (as for applications for approvals).
  • Council decisions on provisions of proposed planning documents could be appealed to the Environment Court. After hearing appeals on council decisions the Environment Court refers the matter back to the council to make the decision, but with guidance from the Court that local government would be required to follow.

Iwi consultation and resource planning

  • Councils would (under section 35 of the RMA) keep a public register of iwi authorities and their rohe (districts/ regions), with contact details, and a list of current iwi planning documents. Te Puni Kokiri would provide material to local authorities on the rohe of iwi authorities.
  • The RMA would explicitly allow co-management options (eg, so that an iwi authority and local authority could jointly manage a natural resource such as a lake).
  • There would be a clear process for consulting iwi when developing national policy statements and national environmental standards.
  • The first schedule of the RMA, which sets out the process for preparing or changing a planning document, would require a local authority to:
    • establish a consultative procedure with iwi authorities (similar to the requirements under the Local Government Act 2002)
    • identify matters that have a bearing on resource management issues (including the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga), and how they have been dealt with in planning documents
    • identify and take into account any iwi planning documents recognised by an iwi authority (as is already required by the RMA)
    • undertake ‘reasonable endeavours’ to consult with iwi authorities.
  • On the basis that the processes listed immediately above have been carried out, in preparing or making decisions on applications (for consents, designations or heritage orders) Maori would have the same opportunities as any person adversely affected by the proposal. Iwi would be consulted on applications in the same way as any other affected party.
  • As an applicant, the Crown would have the same obligations as any other applicant when dealing with iwi authorities / Maori who may be adversely affected by an application (subject to particular statutory acknowledgements).
  • The responsibility of local authorities would be to notify affected parties, including iwi authorities, and to report on the effects as part of the decision-making process (having encouraged applicants to consult iwi authorities as affected parties).

Natural resource allocation

  • The allocation of natural resources, such as water, would be an explicit role and responsibility of regional authorities.
  • Consent authorities would be required, when considering applications to allocate resources following expiry of consents for the use of resources, to recognise existing investment as a factor in their decisions.
  • Regional plans would be able to specify that discharge consents can be transferred (in a similar way that water and coastal permits can be transferred), and that discharge or water consents can be transferred in part or full.
  • A default rule (subject to replacement by specific provisions in a plan) would apply to any consent that is about to expire for the use or take of a resource. The rule would allow an existing consent holder to apply for a new consent before a competing applicant, but on the basis of the following criteria (in addition to meeting the requirements of the Act):
    • compliance with any plan
    • compliance with consent conditions (including consideration of the track record for enforcement action)
    • whether the applicant operates under current industry good practice
    • national interest criteria.
    If these criteria are met other applications will not be considered. If the incumbent fails to meet the criteria, then the next application in the queue will be considered.

Best practice and implementation

  • The Minister for the Environment would have the ability to:
    • request information relating to the Minister’s functions from a local authority without being charged for that information
    • direct a council to undertake a specific action relating to the local authority’s functions under the RMA
    • invoke existing powers (under section 25 of the RMA) if a local authority fails to comply with the Minister’s directives.
  • To address the performance of RMA practitioners, roles under the RMA would be clarified (in particular so the public are aware of these roles), and better co-ordinated with the work of the Minister and Ministry for the Environment as follows:
    • Office of the Ombudsman — complaints on council practice
    • Office of the Auditor General — review council performance
    • Parliamentary Commissioner for the Environment — investigate environmental outcomes.
    In addition to existing programmes to support best practice in RMA implementation (under the status quo), the preferred option would:
    • provide commissioner and councillor training to support the mandatory accreditation of decision makers
    • extend the pilot programme to provide targeted one-on-one council assistance
    • provide resource management user awareness and education
    • provide best practice support for iwi in preparing robust planning documents and on consultation costs.
    Note that best practice support is also being considered as part of work on the Foreshore and Seabed Bill and Aquaculture Reform Bill.

Longer-term programmes to improve the RMA

  • The Environment Court would develop practice notes on the use of commissioners sitting alone and for the consistent application of alternative dispute resolution processes.
  • The Ministry for the Environment would investigate how the RMA could be improved to provide greater recognition of other government statements and strategies in resource management decision making.
  • The government would investigate how to improve linkages between RMA planning documents and plans under other legislation, such as Long Term Council Community Plans (required by the Local Government Act 2002).
  • The government would report on establishing work programmes to address geothermal energy allocation and airshed allocation (to complement the Water Programme of Action).

Option C: Strong regulatory approach

Option C would significantly increase the level of prescription provided in the RMA. In addition to the proposals for improving certainty and central government leadership under the preferred option, this option would require mandatory plans and other provisions in place of best practice guidance. For example, this could involve:

  • allowing the costs of the process to be awarded to the successful party at the council level
  • providing for direct referral of applications to the Environment Court
  • requiring Ministerial sign-off of all plans
  • establishing a new Environment Protection Authority.

This option would reduce inconsistency and provide increased certainty in resource management practice. However, a solely regulatory option would potentially constrain innovation and be inconsistent with the ethos of local decision making. It would also be inconsistent with a partnership approach with local government, and would reduce public participation. Therefore, although some regulatory components have merit and are included in the preferred option, without a balanced approach offering guidance and support this option would be inconsistent with the principles of the review. Furthermore, this approach would not necessarily result in improvements in the implementation of the Act, and so Option C was discarded.

Option D: Comprehensive best practice support

This option would involve a strong emphasis on ensuring best practice in the implementation of the RMA, and on making the public aware of how the Act works. That is, there would be no changes to the legislation. Instead, the existing best practice programmes would be retained, and there would be a significant increase in programmes such as those identified in Options A and B.

Although it is recognised that ongoing support for certain best practice initiatives is needed to meet the public policy objectives, these objectives would not be met by guidance and education alone. It is particularly evident that the objective relating to improving the expression of the national interest would not be achieved, nor would improved consent processes. The option of having no legislative amendments was therefore discarded.

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Last updated: 6 May 2008