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Cover Note - Improving the Resource Management Act 1991 [Ref: CAB Min (04) 30/10]

On Monday 13 September 2004, Cabinet considered the paper "Improving the Resource Management Act 1991" [Ref: CAB Min (04) 30/10]. This paper is included.

1. Where information from the paper has been withheld under the Official Information Act (1982) it is clearly labelled. That information has been withheld under:

i. s 9(2)(f)(iv) on the grounds that withholding of the information is necessary to maintain the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials;

ii. s 9(2)(h) on the grounds that withholding of the information is necessary to maintain legal professional privilege.

 

Office of the Associate Minister for the Environment

The Chair
Cabinet

Improving the Resource Management Act 1991

Proposal

1. This paper seeks Cabinet agreement to proposals that will improve the Resource Management Act 1991 (RMA or the Act).

2. 0n 10 May 2004 Cabinet invited me to lead a review of the RMA that would develop a straight forward and understandable package of improvements (both legislative and non-legislative) for the Act (Cab Min (04) 15/12). The focus was on improving the quality of decisions and processes (more specifically increasing certainty and reducing delays, costs and abuse of processes), while not compromising good environmental outcomes or sacrificing public participation.

3. On 8 September 2004 the Cabinet Policy Committee considered the proposals and agreed to, subject to some further work as indicated, the recommendations included in this paper.

4. This paper concludes a four month review of the Act and identifies proposals for improving the Act that seek to:

  • Enable central government to better express the national interest so as to provide decision makers with clear guidance on how to take these matters into account.
  • Enable consent processes to be undertaken in a manner that is effective and efficient, and that provides certainty of process for applicants while ensuring appropriate public participation and the meeting of environmental objectives.
  • Improve the effectiveness of planning documents, and enable their timely development.
  • Provide certainty over the allocation of natural resources.
  • Further improve the implementation of the RMA by local authorities and ensure that decision-making is of a high quality.
  • Improve public and user awareness of the RMA and its processes.

Executive summary

5. The RMA is complex law. Upon its enactment in 1991, there was little effort made to manage the big changes in approach needed. The frequent criticism of the RMA is largely about process. Some of this criticism is justified, but most of it is not soundly based.

6. The approach to promoting the sustainable management of natural and physical resources (the purpose of the RMA) in New Zealand is enabling rather than prescriptive.

7. For 13 years there has been a lack of formal national guidance to assist local government in the implementation of the RMA, apart from the mandatory coastal policy statement. The transition to the RMA way of thinking, however, has not been easy, with previous governments consciously adhering to a 'hands off' approach to its implementation. No significant effort or additional resourcing was provided to assist local authorities to meet the demands of implementing the new legislation. Only now is government starting to promote the adoption of consistent standards at the regional and district levels through regulation.

8. Uncertainty and inefficiency in the process of obtaining approval for projects under the RMA has led to high costs and delays for applicants in some cases. There are also concerns from consent applicants about consultation requirements, especially with iwi - case law is unclear and councils take an inconsistent approach.

9. Further, fewer than half of the district plans required to be produced under the Act have been completed and are operational, and some are overly complex. At the regional level some water short regions do not have plans. On the other hand, where good water plans have been produced the community has more certainty, reduced compliance costs and environmental issues are being addressed.

10. In general, allocation of natural resources has not been handled consistently well and there is uncertainty in the legislation regarding the issue.

11. Local government practice in implementing the RMA has been steadily improving. However, there is still variability in the capacity and capability of councils to respond to resource management issues, and some councils fall short in their performance.

12. Any legislation that deals with conflicting values and property rights will generate friction. Public concern and frustration are manifest in the media and in the Minister's mail bag, reflecting the voices of business and environmental groups.

13. In summary the problems fall into the following categories -

  • achieving the right balance of RMA national and local interests in sustainable development
  • poor design and process of local plan making
  • inconsistent, uncertain, costly and lengthy consent decision making process
  • inefficient allocation or lack of allocation mechanisms for natural resources
  • practice and capacity limitations of some local authorities
  • public concern and frustration

14. The review of the RMA to address these problems has been guided by the following broad principles: achieving good environmental outcomes; certainty of process but not outcome; certainty of cost; local decision making; public participation; and central government leadership.

15. The outcome of the review is that it is proposed to amend the RMA. I believe the following amendments will have a significant bearing on the performance of the RMA:

  • Moving to a requirement that the majority membership of hearings panels are 'accredited' for hearing notified consenting matters.
  • Empowering all hearings panels with more inquisitorial powers and therefore increasing the robustness of the first (local authority) hearing.
  • Focusing appeals in the Environment Court on testing the merits of the first (local authority) hearing.
  • Providing a new shared mechanism for non-local decision making that builds on the existing ministerial call-in mechanism.
  • Streamlining the plan making process, including limiting appeals on local authority planning documents to ensure greater maintenance of locally developed outcomes.
  • Clarifying processes for iwi consultation and iwi resource planning.
  • Providing clarity for business about whether existing investment is recognised when consent terms are due to expire.

16. It is also proposed that central government takes a greater leadership role through:

  • the development and implementation of national policy statements and national environmental standards
  • increased use of non-local decision making processes
  • greater engagement in local decision making.

17. There are benefits in initiating longer term work to further improve the linkages of local plans with other strategies, and new work programmes such as for geothermal energy allocation and air shed allocation to complement work already happening for water.

18. Finally, one of the key roles for central government under the wider RMA is to help improve practice and build capacity of the Act's primary implementation sector - local government. Although some efforts have been made in recent years, more concerted effort is required to reduce sub-optimal performance of participants in resource management and to improve environmental outcomes and long term investment certainty.

19. Limited discussion has been undertaken with key stakeholders in developing these proposals. The Ministry for the Environment had already extensively consulted with the public, and the problems and need for reform are apparent. The process of review has confirmed outcomes from previous discussions. There has been good buy-in to the review process to date, especially from local government. The message received from stakeholders has been that the RMA is an important environmental safeguard.

20. This cabinet paper is formatted into the following parts:

21. To avoid duplication, details of the proposals appear in the recommendations section of this paper.

 

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Last updated: 6 May 2008