Address to Auckland branch of Resource Management Law Assn

Thank you for inviting me to speak to you today. The first thing I'd like to talk about is my vision for the environment and the broad objectives I've set as a first step towards achieving it. I'll then update you on the Resource Management Act amendments and some of the work being done to reduce delays and costs at the Environment Court. Finally, I would like to take this opportunity to launch our latest good practice guide on effective and enforceable resource consent conditions.

NZ promotes a "clean, green, 100% pure" image to the world. This image assists our trade and attracts many overseas visitors. I am concerned that there is a gap between this image and reality. In reality, our environment is in trouble.

Many of our urban beaches and streams are unsafe because of contamination from farm runoff, stormwater drains and sewage overflows. Over 1000 of our known animal, plant and fungi species are considered threatened. The loss of natural ecosystems and habitats has turned a once-continuous range of unique ecosystems into a patchwork of isolated fragments. Most of our cities and some small provincial towns periodically experience air quality worse than London's. We have a waste disposal problem - it doesn't evaporate magically or disappear once the rubbish person picks it up from the gate.

My vision as Minister for the Environment is to:

Make New Zealand's clean, green image a reality.

I think that WE have to do better - and I don't mean simply that "the government" has to do better. I mean we ALL have to do better - individuals, community groups, pressure groups, local government, lawyers, scientists, planners, journalists, central government, rural residents, urban residents…
In fact there will be no change unless individuals in the community acknowledge there is a problem and start acting to rectify the problem.

The United Nations Conference on Environment and Development held at Rio de Janiero in 1992 changed the way we think about our place in the world. It anticipated, and addressed, potential major catastrophes in this 21st century that would have far reaching social, economic and environmental consequences. It set us on a path of sustainable development. It set us on a path of living on this earth, as nations and communities, as if we intended to be here for another thousand years.

Thankfully, now more and more New Zealanders are waking up to the fact that our clean, green image is not a reality and want something done about it. You'll be aware that over the last few months I have been encouraging communities to think and talk about the state of the environment through the Rio10 + community programme. So far we have had over 3700 responses. However, in response to questions about whether or not enough progress has been made over the last 10 years 65% of those who responded said "no". I am aware that such surveys/responses are skewed in that the interested choose to fill out the survey in the first place.

But overall, the call is for all New Zealanders - regardless of who they are and where they operate - to take greater action to sustain our environment. Two- thirds of the respondents feel that New Zealand has not made a strong enough commitment to progressing environmental issues in the past decade, which clearly signals a call for greater action.

And its not just a call from the community. Pretty much all of our economy is based in some way or another on our environment and it is increasingly quality not quantity that matters. We all know that we can't compete on volume or size. Think of our wine, our wool - in particular Merino NZ who sell their wool to top European fashion houses - and our dairy produce that is all marketed using the clean green image.
Clearly individual action is critical making the clean, green image a reality. The RMA also has an important role to play

In my view there is huge potential in promoting innovation and seeking economic growth that is environmentally sound and creates jobs. New Zealanders' future prosperity is about smart growth, based on innovation and knowledge, and using and sustaining our natural assets. New Zealanders' future health depends on safe water supplies, breathable air and strict controls on hazardous substances and organisms. The smart people we want to retain and attract want to live in a clean, green country. Investment in environment is therefore a strategic investment in our prosperity.

My vision for the environment acknowledges the gap between New Zealand's clean green image and its somewhat clean, still green around the edges reality. I want to use that acknowledgement as the first step towards motivating change.

I am pursuing six broad objectives to make this vision a reality:

· To motivate and empower people to own the problems and the solutions. - waste.
· To reduce risks to people and the environment - for example, from hazardous substances.
· To promote environmentally friendly economic growth - economic growth does not have to mean environmental degradation.
· To consolidate a close working relationship with local government and iwi.
· To forge a strategic alliance with clean, green business to promote sustainable development.
· To streamline rules and regulations (without compromising the above) so that they are owned and understood and not something left to lawyers and planners.
I have asked the Ministry for the Environment to take a very close look at whether the whole system is operating in a way that will help us deliver on these broad objectives. I have asked them to focus on four key areas in particular:

1. Performance in environmental management: I want to know how we can best monitor environmental results and the performance of local and central government agencies. We need to know what progress is being made towards making that clean green image a reality. We also need to look at how we provide incentives to councils and other agencies to meet the government's overall environmental objectives;

2. Promoting Community Action: I want to examine how we promote environmental awareness and action in the community; so that we can set up more effective long-term communication and education programmes. I am concerned that many people see the environment as "over there" - i.e a national park but not their own back yard.

3. Business innovation: I want to create new approaches to encourage environmental innovation in business. We need to look at how we can "tip the playing field" for those players that are willing to embrace sustainable development.

4. Environmental legislation and institutions: I want better integrated management of waste and hazardous substances under RMA and HSNO. I want less litigation and more alternative dispute resolution. I want new mechanisms for promoting national policy, consistency and standards. I also want to think about alternative institutional models that will improve capacity and leadership at the national level.

I am signalling a strategic shift in direction. It involves recognising the gap between the clean green image and reality - and doing something about it. It means seeing environment as an economic opportunity not just a cost. It means working both from the bottom up (which I had already begun through Rio+10 and similar community awareness programmes) and from the top down (through stronger leadership, promoting best practice, developing more standards and reviewing the institutional capacity to deliver these things).
So that's my broad vision for the environment.

As most of you work with the Resource Management Act on a day- to- day basis, I thought it would be useful to discuss briefly the upcoming RMA amendments. As you know the RMA Bill was introduced to the House nearly two years ago by former Environment Minister Simon Upton. I inherited the Bill, and the new Government made it clear that we had concerns with some of the radical changes proposed by the Bill as introduced.

The Government considers that the Resource Management Act is fundamentally sound - but we are eager to reduce compliance costs provided it does not undermine sound environmental protection and community participation. I indicated soon after the election that the Government did not support provisions in the Bill relating to:
· the introduction of contestable resource consent processing
· mandatory hearings' commissioners on request
· direct referral of consents to the Environment Court

The Select Committee received nearly 400 submissions. It heard and considered those submissions over a 12-month period and presented its report to the House on 8 May 2001. It produced a lengthy commentary as part of the reported back version of the Bill. If you haven't already done so, I recommend that you read it. I consider the Select Committee's report to be a well-reasoned and carefully considered document.

The Select Committee has recommended a number of amendments that will improve the implementation of the Act with respect to costs of compliance and efficiency. They include
· tightening up of the ability of third parties to join appeals - these parties must lodge a notice of their intention to appear within 30 working days of receiving a notice of appeal and specify their grounds for appealing. Third parties joining an appeal are subject to the awarding of costs provisions
· amending the Act so that any rule in a new proposed plan that is 'beyond challenge' supersedes the corresponding rule in the old operative plan
· clarification that the time limit clock should be stopped rather than reset when further information is requested or affected party approval is being sought
· extension of the default period for the lapsing and cancellation of consents from two years to five years
· allowing a council to send out a summary of its decision on a resource consent, designation or a plan provision rather than having to send out a full copy of the decision

The Government is committed to providing more national guidance in the form of national policy statements and national environmental standards. The reported back Bill also provides for a greater range of matters to be included as national environmental standards and clarifies how national environmental standards affect existing resource consents. It also improves the current provisions in the Act for the making of national policy statements, by allowing the Minister for the Environment to develop terms of reference for the Board of Inquiry, and to remove some of the excessive steps in the national policy statement preparation process.

The Ministerial Panel on Business Compliance Costs Panel reported back to Government on 9 July 2001. The report included around 45 recommendations on how to reduce compliance costs associated with the Resource Management Act (RMA). Some of the recommendations related to the Resource Management Amendment Bill. Many of the recommendations related to practice improvements for the Courts, local government central government and applicants. The Government is considering all the recommendations from the Panel and will provide a response to the BCCP report later this year.

The Select Committee's report is yet to be debated by Parliament, and I do not expect the debate to occur until the Government has carefully considered the recommendations from the Business Compliance Cost Panel relating to the Bill. The report back debate needs to take its place alongside all the other business before the House and the Bill is likely to require a significant amount of debating time as it is a substantial Bill. So the report back debate will hopefully be in late September or early October.

It was envisaged that the Amendment Act would come into force by the end of this year, but this may well have to be extended. Nevertheless I am eager to enact it so development of the Biodiversity National Policy Statement can proceed and I know the delay is creating uncertainty for those developing plans.

The comments in last Friday's NBR about the RMA being "arguably NZ's most costly and hated piece of legislation" reinforced to me that people are always going to complain about planning legislation regardless of the facts or the number of times the Act is reviewed and amended. I'm sure that if you looked back through the archives you would find similar comments being made on the Town and Country Planning Act and about planning legislation in other countries.

I think it's time to stop being negative about the RMA and dreaming of the utopian days of the 1953 Town and Country Planning Act and the Town and Country Planning Appeal Board. The days when our newspapers were filling with "Planning Notices" when there was no flexibility and 25% of consents were notified. It's time to recognise that the Resource Management Act is a huge improvement on what went before and that what it is trying to achieve will have long term benefits for all New Zealanders. I think that you as resource management professionals have a hugely important role to play in assisting people to better understand the Act and to help some of your clients implement it more effectively and efficiently.

You've all heard the statistics:
· 95% of applications are processed as non-notified
· 82% of resource consents are processed on time
· only 1% are declined
· only 1% are appealed, and of those about 70% of appeals are withdraw or settled without a hearing.
They do not suggest an Act in crisis from a compliance cost perspective to me. Rather, it suggests that the vast majority of consents are processed reasonably smoothly.

One area where I acknowledge there are some real issues is the Environment Court. Since becoming Minister for the Environment in late 1999, I've received an ever-increasing number of complaints about the costs that the delays being experienced in the Environment Court are imposing on the country. Some are saying that these delays are the most troublesome and costly part of the whole resource management process.

I don't think this is acceptable and that is why there are initiatives underway to improve this situation. A new permanent judge is to be appointed taking the total number of Environment Court Judges to nine, two more than at the start of this year.
This combined with an extra $2.1 million of funding for the Court will not only enable the Court to offer the public more available hearing time, but will also give it the opportunity to bolster the team of people who provide the Judges with the essential research and case management support that they need.

This will help significantly to reduce the length of the delays. It won't, however, address the backlog problem over night. To a certain extent, we have to accept that many of the reference matters in particular are tending to be very complex and lengthy and also very reliant on the resources that the local authority has available. Many councils simply are not able to resolve many references concurrently.

To be truly effective and durable, it is also necessary that the extra resources be complemented by in-depth research into the extent, nature, causes and costs of the delays. That the delays are multifaceted and interconnected is evident from factors such as the amount of hearing time lost through late settlements, the unavailability of legal counsel, and the ability to confine a case to the genuinely relevant issues. It is fundamental that our response to the delays is not based on perception or superficial analysis.

For this reason, the Ministry for the Environment with the assistance of the Tribunals Division at the Department for Courts is presently carrying out research with a view to ensuring that future decisions about the operation of the Environment Court are made with the benefit of the most robust information available. A crucial part of this research involves talking to people like yourselves who have to live with the delays on a daily basis. You are the people who know what needs to be done. I know many of you have given your thoughts to Paul Horgan from the Ministry's Christchurch office who is leading this work and I thank you for your assistance.

You may've also heard about the review of case management that the new Principal Environment Judge is undertaking. I understand that she has written to the New Zealand Planning Institute, all district law societies, and the Resource Management Law Association seeking suggestions from members about ways of improving the Court's management of cases. I urge you to get involved in this process. For your information, at a recent New Zealand Planning Institute function in Wellington Judge Allin spoke on these matters. I was interested in her comments about parties, particularly in Auckland, not being ready to go to trial. She said "Auckland continually complains a lot about delays and back log, but I struggle to find lawyers and planners who are ready to go." Something for this audience to think about.

I believe that the combined effect of these three initiatives (the extra resourcing, the Ministry for the Environment research and the work of Judge Allin) will help us improve the efficiency of the Environment Court while at the same time safeguarding the opportunity that the RMA provides to people to participate in the resource management process and to produce quality decisions on what are, after all, very complex, contentious and important issues.

Another related project is being run out of the Ministry's Auckland office looking at roading delays and the RMA. Please contact Murray Cameron if you want more information or have views on the project.

Earlier I mentioned that one of the ways I intended to achieve my vision for the environment was through promoting best practice in resource management. I am delighted to present you with our most recent good practice publication on effective and enforceable consent conditions.

This document is what I call one of my "technically driven publications", rather than one of my "people driven publications". This guide is about improving the use of conditions on resource consents. Its a joint effort by the Ministry for the Environment, the New Zealand Planning Institute and Simpson Grierson Law and follows a nationwide series of workshops on the topic.

The guide sets out, in a straightforward manner, the essential principles and legislative foundations of consent conditions. It also has good practice checklists and examples of effective conditions. Emphasis is placed on ensuring that conditions are for a resource management purpose, related to mitigating effects and enforceable both by the general public and professionals.
One of the things about the guide that appeals to me most is the use of simple checklists. They remind you to do things like check whether your condition is straight forward, written in plain English and easy to understand.

Pretty simple things to say really but they have a big impact on practice and mitigating effects on the environment. Particularly as a significant portion of those who apply for resource consents are the average "on the street person" who just wants to build their house, add to it, or simply undertake some earthworks. These people are not planners yet they need to understand the conditions on their consent, they need to understand what is meant and required of them without ambiguity or inconsistency.

I really liked one of the real life examples used in the guide to highlight the importance of ensuring that people understand their consent conditions. The condition goes something like this,

"the external treatment of the dwelling house shall reflect the natural surroundings within which it is located".

Isn't it a mouthful! The canny owner complied by placing mirrors around the exterior of the house, which then reflected its natural surroundings, and let him comply with his consent condition. Well, this condition speaks for itself really, and I don't think I need push the point further.

I'm confident that this guide will be used and will increase the calibre of consent conditions. I congratulate all those who have been involved in developing the guide and organising the associated training. I am pleased that we have made this tool available and hope that as many of you as possible will put it in your tool kit.

In addition, and speaking about launches I am particularly looking forward to the launch of the Quality Planning website on the 21 August. The RMLA has been involved in this project over the past two years. The purpose of the website is to promote best practice by sharing knowledge about policy and plan development under the RMA. The website aims to be New Zealand's most comprehensive site for all plan practitioners including Resource Management lawyers involved in writing plans. It will provide an opportunity for plan practitioners to keep up with the play on hot issues and debate these issues via the discussion forums. The site contains a series of guidance notes on various components of the plan process, (eg plan effectiveness monitoring and the policy framework) and on planning topics (eg landscape).

I'm really excited about this project as it provides the opportunity for everyone involved in plan writing to lift their performance by sharing their experiences in plan making over the past 10 years. The website is going live on 21 August - so keep an eye out for the website address.

There you have it. My vision for the environment, some information about the RMA Amendments and initiatives to reduce delays and costs at the Environment Court and a new good practice publication on effective and enforceable consent conditions.

I, or Ministry for the Environment officials, would now be happy to answer any questions you may have.

Thank you