Part B - Improving expression of the national interest
Improving expression of the national interest through national policy statements
Background
28. National policy statements (NPS) can be used to "state policies on matters of national significance that are relevant to achieving the purpose of the Act". Such statements guide subsequent decision making under the RMA at the national, regional and district levels. NPSs can therefore significantly affect resource management practices in New Zealand. The Minister of Conservation is required to prepare a New Zealand Coastal Policy Statement, but other national policy statements (prepared by the Minister for the Environment) are optional. Arguably, NPSs can be prepared on almost any matter, including different types of infrastructure, eg. electricity transmission and roads.
29. An NPS has immediate effect on consent applications once it is gazetted (being a matter to have regard to when making consent decisions on projects (s104)). It can, however, take anywhere between three and ten years from when a decision is made to prepare an NPS, through promulgation to when provisions of an NPS are reflected in plans. This is made up of four phases:
- preparation of the proposed document - depending on the complexity this can take anything from six months to some years (including the consultation needed and inter-departmental processes)
- public submission stage - hearing and recommendations by a Board of Inquiry - at an absolute minimum this would take 9 months
- Ministerial decision making - at a minimum this would take 2 months (including Cabinet processes)
- implementation by local authorities - up to six years depending on the transition time allowed by the NPS for councils to give effect to it, and then the length of time it takes for councils to have hearings and resolve appeals.
What is the problem?
30. Other than the New Zealand Coastal Policy Statement, there are no other NPSs. A number of issues arise once an NPS is initiated:
- Timeliness - as an absolute minimum the submission and Board of Inquiry process takes 9 months and then it may take 4-5 years before the policy is reflected in plans
- Cost - so far the NPS on biodiversity has cost over $1.2 million and it has not even been notified. There is also potential for it to impose costs on all local authorities to implement should it require their own interpretation and amendments following a first schedule plan change process
- Potential for inconsistent implementation - by definition NPSs are pitched at a policy level ie. it is up to local authorities to decide how they give effect to them.
What is the outcome sought?
31. Analysis undertaken as part of the review has indicated that an NPS could be prepared on:
- various types of network infrastructure (eg. electricity transmission, roads)
- water management issues (eg. allocation or use, quality, waters of national importance subject to the outcome of the Water Programme of Action)
- other allocation or nationally important resource issues (eg. renewable energy, geothermal).
32. Priorities for other NPSs to follow, would be determined by topical issues under consideration (eg. urban design) and guided by the matters of national importance identified in the Act (eg. landscape, biodiversity, historic heritage, public access, relationship of Māori with natural resources).
33. Changes could be made at both the beginning and the end of the NPS process to improve the timeliness of NPSs, reduce costs and simplify implementation. For those more complex policy issues a more complex approach may be appropriate.
What is proposed?
34. It is proposed that the government initiate the development of NPSs. The first priorities are for a series of NPS on infrastructure (eg. electricity transmission lines, roads, telecommunications), likely to be notified with complementary national environment standards (eg. electromagnetic radiation). Issues for water and other allocation issues could follow as identified above.
35. The Minister for the Environment and the Minister of Economic Development will report back on the detail of NPS proposals for infrastructure by 3 November 2004. The Minister for the Environment will report back by early December 2004 with a programme for developing other NPSs, following consultation during the Ministry for the Environment's November 'Talk Environment' roadshow.
36. It is considered that there should also be amendments to the Act to facilitate the use of NPSs. It is proposed to make a full Board of Inquiry process for NPS, at the front end, optional. The alternative process will be one that involves a "duty to consult" similar to that currently specified in s44 for national environmental standards and outlined below in paragraph 44 (this could reduce the time taken by about six months). This "duty to consult" follows the general principles of consultation. If this approach is adopted the NPS will be treated as a regulation and a draft could be referred to the Regulations Review Committee for consideration.
37. To address consistency and timeliness issues it is proposed to allow the NPS to specify the provisions that a local authority shall include in their planning documents (ie. a standard set of policy wording) without the need for normal notification and hearing processes, but only where local discretion in implementation is not required or is very limited. This will avoid unnecessary duplication and cost.
38. The two processes above would also apply to the New Zealand Coastal Policy Statement.
What are the risks, costs and benefits?
39. An abridged NPS development process will provide a quicker process for expression of the national interest. There should, however, be a direct correlation between the process requirements and the instrument's legal effect. To address concerns raised by Federated Farmers and Local Government New Zealand as part of the review, an NPS expressing national interest that impacts on private property rights would follow a normal board of inquiry process, for example biodiversity protection on private land.
Improving expression of the national interest through national environment standards
Background
40. National environmental standards (have direct effect on council rules and resource consent decisions, and indirectly influence council policies.
41. The RMA provides that standards can address a range of environmental management issues including: use of land, the coastal marine area and beds of lakes and rivers; water; discharges to air, land and water; noise; and monitoring. They currently cannot address subdivision issues.
42. National environmental standards may contain: qualitative or quantitative standards; discharge standards; methods for classifying a resource; methods, processes or technologies to implement a standard; exemptions from standards. Standards may also incorporate the requirements or recommended practices of international organisations.
43. A standard may prohibit an activity; allow an activity if it complies with conditions specified in the standard or rules in a regional or district plan; restrict the making of a rule or granting of a resource consent; require the review of a consent; require that consent be applied for.
44. The process adopted by the Minister for Environment for developing standards is as follows:
- The Minister must provide the public with adequate time and opportunity to comment.
- The Minister must notify the public of the proposed subject matter of the standard and the reasons for developing it.
- The Minister must commission a report and recommendation on the proposed standard.
- The report and recommendation must be publicly notified.
- The standard is legally established when the Governor-General, by Order in Council, adopts the relevant regulations.
45. The Ministry for the Environment has already developed 14 standards for air quality, dioxins and other toxics, and is proposing a standard on raw drinking water.
What is the problem?
46. The way local authorities have addressed similar activities in district and regional plans is varied and in some cases unexplainably inconsistent. These concerns are centred around:
- the uncertainty this creates for landowners and developers when dealing with different local authorities
- unnecessary compliance and regulatory costs
- a number of local authorities spending time and resources producing a range of approaches to common issues.
47. These issues contribute to a perception that the RMA is not working well and is a road block to development. The standards would be designed to reduce some of the 50,000 resource consents required annually by plans.
48. Standards should address matters under which duties and restrictions apply under the Act. This is the case for all matters except subdivision - eg. access requirements for allotments
49. Unfortunately, the usefulness of a standard is somewhat restricted under the RMA, especially in setting default standards for land use matters where consistency is desirable. Local authorities can make standards stricter than a standard for their district/region. While this is desirable when setting environmental bottom lines (eg. air quality) it tends to defeat the purpose of national consistency.
What is the outcome sought?
50. The contents of plans and the number of consents required could be reduced with more standards.
51. Standards could include the best elements of current industrial codes of practice and other forms of agreed standards - provided they meet the requirements of the Act, eg. agrichemical users' code of practice.
52. Use of a standard will:
- reduce the need for additional technical detail in plans, including the adoption of unnecessarily prescriptive technical rules
- promote consistent approaches across local authorities for nationally-based standards
- provide guidance on the way a specific activity ought to be undertaken or method of application adopted.
53. Standard could be further be developed for water issues (arising out of the Sustainable Development Water Programme of Action); network utilities (ie. radio frequency fields, substations, underground and overground lines, utility structures within the road); noise (ie. from roads, airports, ports, construction noise); parking, loading and site access provisions; agrichemical use; and domestic wastewater.
54. Standards should be developed in a manner that promotes consistency. At the moment a local authority can choose to adopt a more stringent standard if this can be justified. To achieve consistency the Act should allow for the standard to specify in what instances more stringent local standards can be adopted (set through district and regional plans).
What is proposed?
55. More standards will be developed by the Ministry for the Environment or other departments. The Minister for the Environment will report back by early December 2004 with a programme for developing standards, following consultation during the Ministry for the Environment's November 'Talk Environment' roadshow.
56. It is proposed to amend the list of matters that a standard can be prepared on to include subdivision standards.
57. To promote greater consistency it is proposed that the provisions of the Act be amended so standards could:
(a) set standards 'absolutely' throughout the country (replacing local controls)
(b) where allowed for in the standard, enable district or regional variation to set a more stringent standard.
58. In the case of the second matter (b), it is also proposed that more rigour be required for variance from a standard in s32 of the RMA (consideration of alternatives, benefits, and costs), with an extra test requiring local authority policy makers to prove that it is necessary to deviate from a standard. An extra test is justified in that the setting of standard has already undergone the rigour of an 's32 evaluation' as to the most appropriate way to achieve the purpose of the Act.
What are the risks, costs and benefits?
59. The contents of plans will reduce with greater use of standards - especially in use of codes of practice and other forms of agreed standards. Some of the more ubiquitous land use controls will be standardised, significantly reducing compliance costs.
60. If standards are not carefully designed and implemented they could impose costs and stifle innovation or local flexibility. Standards developed in conjunction with local government and industry, and through adequate consultation with other stakeholders, should achieve good results.
61. The costs and benefits of adopting individual standards are matters for consideration by local authorities at the time of adoption (s32 of the Act).
Improving expression of the national interest through central government advocacy
Background
62. Only a few government departments take active involvement in making submissions on RMA matters. When submissions are made they are usually reflective of that department's interests and roles and are not developed using a whole of government approach. Situations can arise where government departments present conflicting submissions.
What is the problem?
63. Local Government New Zealand has indicated that local authorities feel aggrieved at criticism that they are making decisions that do not reflect national interests. These concerns are real if those national interests have not been expressed in Part II of the Act, a NPS or through a hearing. The Act already contains a method for government to promote the national interest by advocacy - the submission process.
64. To be genuinely useful and influential, the government's position needs to be expressed coherently in a submission and not comprised of multiple positions articulated by individual departments-for local authorities to reconcile.
65. More use of national instruments is also an option, but in some cases direct input from central government is needed - to explain, in the context of a consent or plan, the national significance of a proposal including its effects, both positive and negative, from a national perspective.
What is the outcome sought?
66. It is considered that government should promote the use of a "government submission" for government departments to articulate the national interest for consent applications and in plan development. A similar mechanism is used to articulate government economic policy in section 26 of the Commerce Act 1986.
67. Such an approach in terms of RMA decision making is about central government providing leadership and in doing so reconciling views across the range of government ministries and departments in-house, to ease local government's task of trying to reconcile those views during the decision making process.
68. The Minister for the Environment will still be able to call-in projects, but in that regard a new process for non-local decision-making is outlined later in this paper.
What is proposed?
69. An agreed administrative protocol for the use of government submissions is proposed to be presented to Cabinet by 3 November 2004.
70. The submission could be in support or opposition, or would simply state the government's position on the proposal. The submission will be considered by the consent authority along with other submissions.
71. If a government submission were not lodged, individual Ministers or departments could continue to lodge submissions in the normal manner. The decision to make a whole of government submission would follow a Cabinet process. This would also provide for any Minister to opt out of a government submission by agreement or for legal reasons.
What are the risks, costs and benefits?
72. At present government does not participate regularly and consistently at hearings to represent the national interest. The submission process is an ad hoc, costly and time consuming manner of expressing national interest. However, government submissions present an opportunity for government to articulate matters of national interest.
73. The different policies, mandates and legislative responsibilities of different central government agencies will present problems in resolving view points (without resorting to oversimplified, 'lowest-common-denominator' statements that provide little direction). A robust process (most likely a cabinet process) to develop a government submission is necessary so that the submission may add value to local decision making.
74. The main risk with the development of a government submission is the possibility of not being able to agree on a submission within the timeframes of the Act. However, this can be overcome with sufficient resourcing and mandate.
75. There is also potential for lobbying by sectors seeking that government take a certain position on a project, and for the government position to be controversial.
Last updated: 6 May 2008
