3.1 Proposals of national significance
Just as run of the mill applications for consent can be subject to unreasonable delays, so too can significant projects of national importance. In the case of the latter, the realisation of significant economic benefits to the community as a whole is thereby deferred. There remain a number of highway projects which have been calculated as having a high benefit-cost ratio, and yet for a variety of reasons have not been programmed for implementation. With the Government’s commitment to increased infrastructure spending, some of these will very likely gain a greater priority than hitherto. It would be unfortunate if the country were to be deprived of the clear economic benefit of that completion through delays in the approval process.
The delays are therefore a matter of national concern; especially given the current economic situation.
The Act does make provision for the Minister to “call-in” projects he or she considers to be of national significance, and to appoint a Board of Inquiry to hear the application or to refer the matter directly to the Environment Court. The Board of Inquiry is required to be chaired by a present, retired or former Environment Judge, and appeals are available on points of law only to the High Court.
This is clearly an appropriate mechanism for determining such applications in which there is often an inherent conflict between the benefit to be derived by the community as a whole, and the environmental burdens which are more often borne disproportionately by those in the locality of the works.
We shall refer shortly to the need for central government to make greater use of national policy statements and national environmental standards, and note with approval the moves in this direction by the former Government.
However, despite the availability of the call-in procedure, it has been used only on a handful of occasions in the 18 year history of the Act. We are unaware as to whether this reflected a political reluctance or the shortcomings in the Act’s procedures. Nevertheless, we understand that the Government is determined to make greater use of call-ins, and we suggest a number of enhancements to the Act as it presently stands.
There is presently a potential gap in the law such that uncertainty exists as to whether projects which of themselves may not individually be seen as being of national significance, but which are part of the infrastructure of a nationwide network utility operator, are eligible for consideration under the call-in procedure. Such projects will often play a significant role in improving or maintaining the functioning and integrity of nationally significant networks e.g. those relating to roads, railways, pipelines and electricity transmission. We recommend that the Act be amended to ensure that these projects are eligible for call-in also.
A criticism of the present procedure is that the Board of Inquiry contains no local representatives. It would be impractical to require this in every case, for example many projects may cross the boundaries of several local authorities. We do however recommend that the Minister be required to appoint at least one person with local knowledge to the Board, and that he or she be required to seek nominations for the Board from the local authority or authorities in the area.
An increased use of the call in procedure is likely to introduce a short term increase in the workload of the Environment Judges. At present their number is capped at eight. We recommend that this be raised to ten.
An increased use of the call in procedure is also likely to make heavy demands on the available pool of suitably qualified and experienced hearing commissioners. At present their remuneration is fixed by reference to the Fees and Travelling Allowances Act 1951. We would anticipate that the Minister may well find it difficult to attract sufficient commissioners of the required calibre under such a limited remuneration scale, and recommend that the Act be amended to delete this restriction. (The maximum payable to a member of a Board is $510 per day, and $800 per day for the Chair). There are no financial implications for the Crown in this reform, as the costs of the hearing are met by the applicant.
We also recommend that the Board of Inquiry be subject to mandatory timeframes similar to those applying to a local authority in the processing and consideration of applications. However, given the large scale of some of the projects likely to be called-in, we recommend that the decision be made within nine months of the date of notification, with a power for the Minister to extend this period should he or she be satisfied that further time is required.
It is also often the case that supplementary resource consents associated with a proposal are not all applied for at the time of lodging. We recommend that the Minister be empowered to decide whether:
the application be processed as a change to the original consent on non-notified basis and referred to the Board of Inquiry for a decision; or
- to notify the application and refer it to a Board for a decision; or
to refer the application to the relevant local authorities for processing in accordance with notification directions and a specified timeline for decisions.
The permitted baseline is a relevant factor in the evaluation of many projects, large and small. The extent of the baseline is often resolved by the applicant obtaining a certificate or series of certificates of compliance. Obtaining certificates of compliance from individual local authorities can be a cumbersome and time consuming process when projects cross many local authority boundaries. We recommend that a central body, most helpfully the Environmental Protection Agency which we understand the Government intends to establish, be empowered to issue certificates of compliance in respect of nationally important projects.
A number of minor changes are also desirable to enhance the conduct of the call in procedure, and we recommend that:
the Act be clarified to make it clear that a Board of Inquiry can request information or commission independent reports of matters that have been called in, and to enable this information to be circulated to all parties attending the hearing
the Act be clarified to make it clear that the comment procedure following upon the issue of the draft decision of a Board does not provide the opportunity to challenge the Board’s decision as to whether or not the application should be granted, and is confined to comments merely on the proposed conditions
- Board of Inquiry members be given legal protection against actions arising out of any acts or omissions made in good faith.
At present, appeals against decisions of Boards of Inquiry are heard by the High Court. Appeals from that Court can, with leave, be taken to the Court of Appeal. This can introduce a further period of delay, and in recognition of the national importance of the project under consideration, and the calibre of the Board, it is our recommendation that an appeal is to be made direct from the Board of Inquiry to the Court of Appeal.
3.2 Sections 6, 7 and 8
Sections 6 and 7 of the Act set out the matters of national importance and other matters which are to guide decision makers.
Section 8 relates to the Treaty of Waitangi. The TAG discussed issues surrounding section 8 and concluded that this section has not presented any significant difficulties in practice. As a related matter, it is noted that the 2005 amendments to the RMA provided that there is no duty under the Act to consult about resource consent applications and notices of requirement.
Sections 6 and 7 are at present rather a hotch-potch collection of sentiments, all directed at “environmental” issues (as that term is commonly understood), rather than the economic, cultural and social questions which are also central to the sustainability issues which lie at the heart of the Act.
From time to time, calls emerge for an amendment to sections 6 and 7 to correct this “imbalance” and insert in those sections references, for example, to “affordable housing” or “the development of infrastructure”.
The TAG has considered these suggestions, and a related proposal to amend the definition of “environment”, and recommends that no changes be made as part of Phase 1 of the reform process.
The TAG is concerned that any changes to these sections be thoroughly considered and widely consulted upon, both as to their societal acceptance and their legal effect. It would be unfortunate indeed if an amendment designed to simplify and streamline the Act, were to result in further doubts arising as to the interpretation of, and the weight to be given to, its most important provisions.
3.3 Improving national instruments
Central government guidance and direction can simplify the framework within which consent authorities make decisions, by setting clear environmental thresholds and targets, and clarifying relationships between potentially competing national strategies and matters of national importance.
National policy statements and national environment standards are tools under the RMA, which the government can use to provide direction on specific national, regional or local issues. As noted elsewhere, it is unfortunate indeed that it has taken central government so long to appreciate the importance of utilising these tools; and some of the blame for the perceived failures of the Act can be attributed to central government’s unwillingness in this regard.
As one learned commentator has put it:
“Local Government has been left to implement the RMA in a policy vacuum in the absence of any National Policy Statements having been prepared by the Government. Against this background it is not surprising that achieving the right balance between national and local interests should still be a matter of concern.” 6
A number of new national policy statements and national environment standards are expected within the next 18 months. The implementation of these is expected to impose significant financial burdens upon local government. Indeed, the Ministry estimates that these costs would be as high as $250 million. We cannot help but feel that if the Government is determined to spend $250 million on the environment, there must be more deserving causes.
The plan change process (Schedule 1 of the RMA) for changing district and regional plans and policy statements can be costly and lengthy. However, there is an ability to apply a shortened process where the national policy statement has been developed through a Board of Inquiry process.
National policy statementa are government mandated and in all cases go through a robust hearing process in their development. The potential benefits in the second level public process to reflect these policy statements at local and regional level needs to be balanced with the time and costs associated with a second round examination of these issues. We recommend that to enable national policy statements to be implemented with a minimum of cost and delay, local authorities be required to change their Plans without further formality.
We also recommend that linkages between national policy statements, national environmental standards and other provisions of the Act be strengthened by:
including a requirement that consent authorities must have regard to the relevant provisions of a national environmental standard when making decisions of resource consents
amending the RMA so that duties and restrictions under the Act explicitly recognise the effect of national environmental standards
- giving local authorities an explicit power to issue certificates of compliance in instances where activities comply with the provisions of a national environmental standard
enabling the Minister to make minor amendments and/or alterations to a national environmental standard already in force without requiring the full public process under section 44
incorporating into the Act provisions to allow local authorities to refer to a national environmental standard and remove any provisions from plans that directly conflict with or have been redundant by the national environmental standard, without further formality
empowering the Minister to cancel, postpone or restart the development of the proposed national environmental standard at any point.
The TAG is keenly aware that one way to improve the quality of environmental management and to streamline and simplify the processes, is to make greater use of national instruments. It must be recognised however that if central government wishes to determine issues through national instruments, then there is a collateral responsibility on it to ensure that such instruments are clear in purpose and intent and that inconsistencies between instruments are resolved. It is hardly reasonable to send to local government, policy statements which they are required to implement yet which between themselves contain conflicting or unclear requirements.
The TAG is agreed that there is a need for overall strategy for the use of national RMA instruments, and furthermore that these instruments must themselves be clear as to what is expected of those responsible for their implementation.
A fundamental responsibility for resolving conflict and the requirement between national policy statements and other instruments rest with central government rather than local government. Whilst good process will limit the number of conflicting issues between instruments, the reality is that from time to time such an outcome will emerge. As the use of national instruments becomes more important, the need for a resolution mechanism to deal with any conflicts between instruments will correspondingly become more important. There are various central government inter-departmental forums already in place that endeavour to construct a whole of government approach to issues, and we recommend that as part of Phase 2 of the reform process, consideration be given to a – hopefully simple – procedure whereby local authorities experiencing difficulty with apparent conflicts between national instruments might seek a binding determination.
6 Daya-Winterbottom NZ Journal of Environmental Law, Vol. 8, 214